According to a press release, the Department of Homeland Security (DHS) and the Department of Labor (DOL) will publish a joint temporary final rule making available an additional 20,000 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022. These additional visas will be set aside for U.S. employers seeking to employ additional workers on or before March 31, 2022.
In a statement, the National Association of Landscape Professionals called it "a significant win for the landscape industry and other seasonal industries that continue to face labor shortages. This will allow landscape companies in warmer regions that have start dates in February and March to have a chance to access this supplemental allotment."
Under the Immigration and Nationality Act (INA), there is a cap on the total number of noncitizens who may receive an H-2B visa during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30). The first half was capped out on Sept. 30. According to the release, this is the first time there has been a supplemental release for the first half cap.
The supplemental H-2B visa allocation consists of 13,500 visas available only to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years (FY 2019, 2020, or 2021). The remaining 6,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Triangle), as well as nationals from Haiti.
The forthcoming rule also grants portability to certain H-2B workers by allowing H-2B nonimmigrant workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition but before the petition is approved. Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions.
The announcement does not include instructions for how to apply for the additional supplemental visas. However, eligibility and filing information should be posted in the final rule itself and on the H-2B cap count webpage.