DOL Provides H-2B Processing Update After Re-Opening iCERT
January 8, 2019. OFLC Issues H-2B Processing Announcement.
The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.
OFLC has received for processing approximately 5,276 H-2B applications covering more than 96,400 worker positions. Except where a statutory exemption applies, the Department of Homeland Security (DHS) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of FY 2019 (April 1 to September 30). This unprecedented level of employer requests for H-2B workers is nearly three times greater than the 33,000 semi-annual visa allotment for FY 2019 permitted under the Immigration and Nationality Act (INA). The OFLC takes each request for temporary labor certification seriously and administers the labor certification program in a manner that protects the wages and working conditions of both H-2B and U.S. workers who support the seasonal workforce needs of U.S. small businesses, consumers, and communities.
Processing of H-2B Applications
In order to process this significant surge of applications in a more equitable manner and to clarify the time at which an application is received, OFLC issued a public announcement on June 1, 2018, that it will sequentially assign H-2B applications to analysts based on the calendar date and time on which the applications are received (i.e., receipt date and time). Receipt time will be measured to the millisecond, e.g., 12:00:00.000 a.m. OFLC's technology servers are located in the Eastern Time Zone; therefore, the time an application is received and assigned to analysts is based on Eastern Time (ET). Applications submitted from other time zones may be filed as early as 12:00:00.000 a.m. ET.
Once assigned, the analysts will initiate review of each H-2B application in the order of receipt date and time, and in accordance with 20 C.F.R. 655.30. Based on the analyst's review, the Certifying Officer (CO) will authorize issuance of either a Notice of Acceptance (NOA) under 20 C.F.R. 655.33 or a Notice of Deficiency (NOD) under 20 C.F.R. 655.31. Following issuance of NOAs and/or NODs, the applications will be processed as each successive stage in the process is completed. Employers receiving NOAs may proceed to meet the additional regulatory requirements, including recruitment of U.S. workers and submission of recruitment reports. Employers receiving NODs must correct any deficiencies and then receive a NOA before proceeding to meet the additional regulatory requirements. As a result, for each application, analysts' review of NOD responses and recruitment reports, and issuance of final decisions (certifications and denials) will follow in the order in which each sequential step required by the regulations is concluded, irrespective of the receipt time of the application.
As required, OFLC will grant temporary labor certification only after the employer's H-2B application has met all the requirements for approving labor certification under 20 CFR 655.50 and the subpart. In accordance with regulatory requirements, OFLC will send all certified H-2B applications to the applicant by means normally assuring next day delivery. OFLC will issue rejections, withdrawals, and denials of labor certification applications as each determination is made by the CO.
Background on Statutory Limit of H-2B Visas
The INA set at 66,000 the annual number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status by the DHS to perform temporary non-agricultural work. Up to 33,000 H-2B visas may be issued in the first half of a fiscal year (October 1 to March 31), and the remaining annual allocation will be available for employers seeking to hire H-2B workers during the second half of the fiscal year (April 1 to September 30). If insufficient petitions are approved to use all H-2B numbers in a given fiscal year, the unused numbers cannot be carried over for petition approvals in the next fiscal year.
On December 12, 2018, the DHS United States Citizenship and Immigration Services (USCIS) announced that the first half of the annual number of H-2B visas for Fiscal Year (FY) 2019 was reached and, except where a statutory exemption applies, USCIS will reject new H-2B petitions requesting an employment start date on or before March 31, 2019. In accordance with the INA, USCIS will accept new H-2B petitions for the remaining 33,000 visas available for FY 2019 where the employer has received a temporary labor certification from the DOL and requests an employment start date on or after April 1, 2019.