Client Alert: Summer-season DOL processing delays

Pabian Law summer-season clients,

As we have been discussing on webinars and in recent Client Alerts, due to the large volume of H-2B applications filed by summer-season employers, the U.S. Department of Labor (DOL) continues to be backlogged in processing cases. The DOL is supposed to review cases within 7 calendar days, but backlogs have created processing times of 60-90 days in some cases.  Although DOL delays have been shorter this year (DOL is around 2.5 weeks ahead of last year’s pace), the backlogs still have the potential to create issues with H-2B petitions.  Therefore, we wanted to send a Client Alert to ensure everyone is updated about this and potential impacts.

Please find below a chart that outlines the current U.S. Department of Labor delays in comparison to past years.  The dates listed are when the first Notices of Acceptance were issued by the DOL.

*Please note: this client alert relates to delays in summer-season H-2B visa processing and therefore, impacts summer-season employers only.*

Risk of missing the start date:

• For April 1^st organizations: If you are an April 1^st employer who has not yet received a Notice of Acceptance (NOA) from the DOL, we will not have final H-2B approval before your start date. Specifically, in terms of timing, once the DOL issues an NOA, the final petition with U.S. Citizenship and Immigration Services (USCIS) cannot be filed until the recruitment period is over, which lasts at least 16 days. Then, assuming there are no additional requests from the government, final USCIS approval can be expected 1-2 weeks after that.
• For post-April 1^st organizations: given the extent of the delays (see the chart below showing last year’s delays), we do not expect any remaining summer-season employers to receive final approval from USCIS before the employment start date. This applies for 4/1 applications that have not yet received NOAs, as well as all later start dates such as 4/15 and 5/1 (it is certainly possible that the DOL catches up for start dates in May and June, however).  Please keep in mind that it is impossible to predict with any precision when a specific USCIS petition could be filed because it depends on how fast the DOL moves through the backlog over the next two months. However, the attached chart showing last year’s timing should be a good estimate for this year (although things may occur a couple of weeks sooner this year since the DOL is ahead of last year’s pace). The chart are the dates the DOL issued its first NOA for each respective group/start date. Therefore, that date plus 4 weeks would be a good rough estimate for potential final approval from USCIS (again, possibly a couple of weeks sooner this year).
  • The good news for in-country petitions – the Portability Provision: H-2B Portability is a helpful provision that allows workers transferring from one H-2B employer to another (i.e., “in-country transfers”) to begin working immediately upon receiving a hard-copy receipt notice from USCIS by mail (about 5-10 days earlier than if they had to wait for approval).

Risk of Worker Expiration

Applies only to in-country petitions: this is one of the biggest risks presented by the DOL delays. If an in-country H-2B candidate’s H-2B status expires prior to the time we are able to file the H-2B in-country transfer petition with USCIS, then that worker is then considered “out of status,” and USCIS may not approve the in-country extension for that worker. This creates issues for both the worker (being in the U.S. without status) and the employer (possibly not getting approval to hire the worker).

• One solution – “Nunc Pro Tunc” requests: USCIS has authority to provide relief in situations where a worker’s visa expires before an extension/transfer petition is filed for reasons outside the employer’s/employee’s control. This is called “Nunc Pro Tunc” relief. USCIS approved all Nunc Pro Tunc petitions that Pabian Law filed in 2023 and 2024 due to DOL delays (we filed dozens of these cases). However, this relief is discretionary and case-specific and cannot be relied upon with certainty. Additionally, in order to request Nunc Pro Tunc relief, a worker must make the decision to remain in the country after the expiration of their current H-2B status. If the Nunc Pro Tunc petition is approved, the worker’s visa overstay will be forgiven. However, many workers (for good reason) may be reluctant to do this.
  • Note: for Pabian Law clients, we will be reviewing for potential worker expirations and will reach out to you directly to flag these issues. Pabian Law does not charge additional fees for petitions containing Nunc Pro Tunc requests.
• Update regarding the new 30-day grace period: On January 17, 2025, a new law went into effect that allows for a 30-day grace period at the end of the H-2B employment period for expiring workers. However, this grace period is not automatic – it must be granted on the worker’s I-94 record (either at the bottom of their Form I-797A (in-country extension approval notice) or on their online I-94 issued by U.S. Customs and Border Protection (CBP) when they last entered the U.S.).  Most workers who are currently in the U.S. working for a winter-season employer would have received their most recent I-94 prior to January 17^th (when the law went into effect) and would not have the grace period.  Therefore, the new law most likely will not help with H-2B transfers this season; however, it will be hugely helpful in future years.

What Employers can do to be in the Best Position Possible

• Recruiting in-country workers with a significant overlap in visa dates (i.e., their expiration is several weeks after your start date) is the safest option for employers who have been significantly impacted by backlogs. However, we understand that recruiting begins early, and this is not always possible.
• If you find yourself in the position where your organization’s in-country candidates may expire before your H-2B in-country transfer petition is filed, we encourage you to communicate with your candidates about the situation and determine their plans. It is hard to pinpoint exactly who may be at risk (because again this depends on DOL processing), but in general, workers who may be at highest risk are those whose current H-2B status expires 15 days or less after your start date.
• Additionally, if you are a Pabian Law client, please ensure you communicate with us as soon as possible regarding your plans and provide all documents for your in-country candidates as soon as possible. We will need to file any in-country petitions on the first day possible, which means we must have all worker documents weeks in advance to prepare the petitions for immediate filing once the DOL certifies the application.

Please do not hesitate to contact us with any questions.

Thank you,

Keith and the Pabian Law Team