Important Notice from DOL regarding H-2B Visa Labor Certification Process

Vol. II, Issue 01 – February 6, 2018

Topics in this issue:

We have received important information from the Department of Labor regarding the recent changes on H-2B Visa process. In case this notice might affect you, it is meant to inform you to take the appropriate actions as you deem advisable.


Summary: Due to an unprecedent number of applications received on January 1,2018, the Department of Labor has announced a change in the H-2B visa processing.

Every year, the Immigration and Nationality Act (INA) sets the number of aliens who may obtain an H-2B visa or H-2B nonimmigrant status by the Department of Homeland Security (DHS) at 66,000 per fiscal year. Of those, 33,000 are issued during the first half of the fiscal year and the remaining 33,000 are given during the second half. The announcement by the Department of Labor (DOL) impacts the process of visa applications for the second half of the fiscal year (April 1-September 30).

To obtain an H-2B certification, the employer must first file a complete Application for Temporary Employment Certification. After the Office of Foreign Labor Certification (OFLC) reviews and accepts the application, the employer must conduct a recruitment of U.S. workers and file a report of the same. Once DOL reviews the report, it issues a final temporary labor certification which allows employers that have complied with all requirements to start filing a petition with the United States Citizenship and Immigration Services (USCIS).

However, as of January 1, 2018, the OFLC received roughly 4,498 H-2B applications covering 81,008 H-2B worker positions. This unprecedent number is three times larger compared to the 1,538 H-2B applications received on January 1, 2017. Last year, the semi-annual applications covered an approximate 80% of entire visas offered during the second half of the fiscal year. This year, the applications are already greater than the 33,000 available visas. The OFLC processes its applications based on the day it was filed, regardless of the time of the day. Despite OFLC efforts to process these applications, this year workload has delayed the system.

For this reason, the OFLC has announced that to promote fairness, the process will change and “reflect the sequential order in which the employers filed applications”. The OFLC will not release certified H-2B applications until February 20, 2018. “On that day, OFLC will release certified H-2B applications that have met all regulatory requirements as of that day in sequential order based on the original calendar day and time the application was filed (i.e., receipt time).” Subsequently, OFLC will continue to release all certified H-2B applications in a sequential manner. This change will not affect the procedures on which OFLC issues rejections, withdrawals, and denials of labor certification applications.

 


© 2010-2018 Law Offices of Ron Katiraei. All rights reserved.