Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 80394-80460 [2023-25493]
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80394
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2764–24]
RIN 1615–AC89
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
[DOL Docket No. ETA–2023–0005]
RIN 1205–AC18
Exercise of Time-Limited Authority To
Increase the Numerical Limitation for
FY 2024 for the H–2B Temporary
Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers
Seeking To Change Employers
U.S. Citizenship and
Immigration Services (USCIS),
Department of Homeland Security
(DHS), and Employment and Training
Administration and Wage and Hour
Division, U.S. Department of Labor
(DOL).
ACTION: Temporary rule.
AGENCY:
DHS, in consultation with
DOL, is exercising time-limited Fiscal
Year (FY) 2024 authority and increasing
the total number of noncitizens who
may receive an H–2B nonimmigrant visa
by up to 64,716 for the entirety of FY
2024. These supplemental visas will be
distributed in several allocations. 20,000
visas made available in this rule will be
reserved for nationals of Guatemala, El
Salvador, Honduras, Haiti, Colombia,
Ecuador, or Costa Rica. All visas will be
available only to businesses that are
suffering or will suffer impending
irreparable harm, as attested by the
employer. In addition, DHS is again
providing temporary portability
flexibility.
SUMMARY:
Effective dates: The amendments
at instructions 1, 3, and 5 are effective
November 17, 2023; at instructions 2
and 4 amending 8 CFR 214.2 and
274a.12, respectively, are effective from
November 17, 2023, through November
17, 2026; at instruction 6, adding 20
CFR 655.64, is effective from November
17, 2023, through September 30, 2024;
and at instruction 7, adding 20 CFR
655.65, is effective from November 17,
2023, through September 30, 2027.
Petition dates: DHS will not accept
any H–2B petitions under provisions
related to the FY 2024 supplemental
numerical allocations after September
16, 2024, and will not approve any such
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DATES:
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H–2B petitions after September 30,
2024. The provisions related to
portability are only available to
petitioners and H–2B nonimmigrant
workers initiating employment through
the end of January 24, 2025.
Comments on the Information
Collection: The Office of Foreign Labor
Certification within the U.S. Department
of Labor will accept comments in
connection with the new information
collection Form ETA–9142B–CAA–8
associated with this rule until January
16, 2024. The electronic Federal Docket
Management System will accept
comments prior to midnight eastern
time at the end of that day.
ADDRESSES: You may submit written
comments on the new information
collection Form ETA–9142B–CAA–8,
identified by Regulatory Information
Number (RIN) 1205–AC18,
electronically by the following method:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions on the website for
submitting comments.
Instructions: Include the agency’s
name and the RIN 1205–AC18 in your
submission. All comments received will
become a matter of public record and
will be posted without change to
https://www.regulations.gov. Please do
not include any personally identifiable
information or confidential business
information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT:
Regarding 8 CFR parts 214 and 274a:
Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD
20746; telephone 240–721–3000 (this is
not a toll-free number).
Regarding 20 CFR part 655 and Form
ETA–9142B–CAA–8: Brian D.
Pasternak, Administrator, Office of
Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Ave NW, Room N–
5311, Washington, DC 20210, telephone
(202) 693–8200 (this is not a toll-free
number).
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legal Framework
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B. H–2B Numerical Limitations Under the
INA
C. FY 2023 Omnibus and FY 2024 Public
Law 118–15
D. Joint Issuance of the Final Rule
E. Comments and Responses to Comments
on the FY 2023 TFR
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for
Fiscal Year 2024
C. Returning Workers
D. 20,000 Allocation for Nationals of
Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica
E. Business Need Standard—Irreparable
Harm and FY 2024 Attestation
F. Portability
G. Compliance With Employment-Related
Laws
H. DHS Petition Procedures
I. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866: Regulatory
Planning and Review; Executive Order
14094: Modernizing Regulatory Review;
and Executive Order 13563: Improving
Regulation and Regulatory Review
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice
Reform)
G. National Environmental Policy Act
H. Congressional Review Act
I. Paperwork Reduction Act
I. Executive Summary
FY 2024 H–2B Supplemental Cap
With this temporary final rule (TFR),
the Secretary of Homeland Security,
following consultation with the
Secretary of Labor, is authorizing the
release of an additional 64,716 H–2B
visas for FY 2024, subject to certain
conditions. The 64,716 visas are divided
into the following allocations:
• For the first half of FY 2024: 20,716
immediately available visas limited to
returning workers, in other words, those
workers who were issued H–2B visas or
held H–2B status in fiscal years 2021,
2022, or 2023, regardless of country of
nationality. These petitions must
request employment start dates on or
before March 31, 2024;
• For the early second half of FY 2024
(April 1 to May 14): 19,000 visas limited
to returning workers, in other words,
those workers who were issued H–2B
visas or held H–2B status in fiscal years
2021, 2022, or 2023 regardless of
country of nationality. These early
second half of FY 2024 petitions must
request employment start dates from
April 1, 2024, to May 14, 2024.
Furthermore, employers must file these
petitions no earlier than 15 days after
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the second half statutory cap 1 is
reached;
• For the late second half of FY 2024:
(May 15 to September 30): 5,000 visas
limited to returning workers, in other
words, those workers who were issued
H–2B visas or held H–2B status in fiscal
years 2021, 2022, or 2023 regardless of
country of nationality. These late
second half of FY 2024 petitions must
request employment start dates from
May 15, 2024, to September 30, 2024.
Furthermore, employers must file these
petitions no earlier than 45 days after
the second half statutory cap is reached;
and
• For the entirety of FY 2024: 20,000
visas reserved for nationals of El
Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica
(country-specific allocation) as attested
by the petitioner (regardless of whether
such nationals are returning workers).
Employers requesting an employment
start date in the first half of FY 2024
may file such petitions immediately
after the publication of this TFR.
Employers requesting an employment
start date in the second half of FY 2024
must file such petitions no earlier than
15 days after the second half statutory
cap is reached.
To qualify for the FY 2024
supplemental caps provided by this
temporary final rule, eligible petitioners
must:
• Meet all existing H–2B eligibility
requirements, including obtaining an
approved temporary labor certification
(TLC) from DOL before filing the Form
I–129, Petition for a Nonimmigrant
Worker, with USCIS;
• Properly file the Form I–129,
Petition for a Nonimmigrant Worker,
with USCIS at its Texas Service Center
on or before September 16, 2024;
• Submit an attestation affirming,
under penalty of perjury, that the
employer is suffering irreparable harm
or will suffer impending irreparable
harm without the ability to employ all
of the H–2B workers requested on the
petition, and that they are seeking to
employ returning workers only, unless
the H–2B worker is a Salvadoran,
Guatemalan, Honduran, Haitian,
Colombian, Ecuadorian, or Costa Rican
national and counted towards the
20,000 cap exempt from the returning
worker requirement; and
• Prepare and retain a detailed
written statement describing how the
employer is suffering irreparable harm
or will suffer impending irreparable
harm and how evidence demonstrates
1 The term ‘‘statutory cap’’ refers to the 66,000
cap set forth at INA section 214(g)(1)(B) or the
33,300 semiannual caps at INA section 214(g)(10).
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irreparable harm and supports their
application.
Employers filing an H–2B petition 30
or more days after the certified start date
on the TLC, must attest to engaging in
the following additional steps to recruit
U.S. workers:
• No later than 1 business day after
filing the petition, place a new job order
with the relevant State Workforce
Agency (SWA) for at least 15 calendar
days;
• Contact the nearest American Job
Center serving the geographic area
where work will commence and request
staff assistance in recruiting qualified
U.S. workers;
• Contact the employer’s former U.S.
workers, including those the employer
furloughed or laid off beginning on
January 1, 2022, and until the date the
H–2B petition is filed, disclose the
terms of the job order and solicit their
return to the job;
• Provide written notification of the
job opportunity to the bargaining
representative for the employer’s
employees in the occupation and area of
employment, or post notice of the job
opportunity at the anticipated worksite
if there is no bargaining representative;
• Where the occupation is
traditionally or customarily unionized,
provide written notification of the job
opportunity to the nearest American
Federation of Labor and Congress of
Industrial Organizations (AFL–CIO)
office covering the area of intended
employment, by providing a copy of the
job order and requesting assistance in
recruiting qualified U.S. workers for the
job opportunity;
• Contact in writing and in a language
understood by the worker, all U.S.
workers currently employed at the place
of employment, disclose the terms of the
job order, and request assistance in
recruiting qualified U.S. workers for the
job;
• Where the employer maintains a
website for its business operations, post
the job opportunity in a conspicuous
location on the employer’s website; and
• Hire any qualified U.S. worker who
applies or is referred for the job
opportunity until the later of either (1)
the date on which the last H–2B worker
departs for the place of employment, or
(2) 30 days after the last date of the SWA
job order posting.
Petitioners filing H–2B petitions
under this FY 2024 supplemental cap
must retain documentation of
compliance with the attestation
requirements for 3 years from the date
DOL approved the TLC, and must
provide the documents and records
upon the request of DHS or DOL, as well
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80395
as fully cooperate with any compliance
reviews such as audits.
Through audits and investigations,
both Departments have received
evidence of employer non-compliance
with the terms and conditions of the H–
2B program, as well as violations of
other labor and employment laws. DOL
Office of Foreign Labor Certification
(OFLC), DOL Wage and Hour Division
(WHD), and USCIS Fraud Detection and
National Security (FDNS) personnel
have encountered non-compliance
issues such as failure to pay the
promised wage, failure to employ
returning workers, failure to
demonstrate irreparable harm, failure to
conduct the additional recruitment
steps, and failure to accurately disclose
the beneficiary’s work location(s).
Such non-compliance can harm U.S.
workers by undermining wages and
working conditions. It also directly
harms H–2B workers. Further, H–2B
workers depend on ongoing
employment with the petitioning
employer to maintain status in the
United States. This dependence creates
a power imbalance between the
employer and H–2B worker, making the
H–2B worker particularly vulnerable to
exploitation and violations. In
recognition of the substantial impact
that non-compliance can have on both
U.S. workers and H–2B workers, DHS
and DOL again intend to conduct a
significant number of audits focusing on
irreparable harm and other worker
protection provisions. And as it did as
part of the FY 2022 second half H–2B
supplemental cap TFR and the FY 2023
H–2B supplemental cap TFR, DHS will
again subject employers that have
committed labor law violations in the
H–2B program to additional scrutiny in
the supplemental cap petition process.2
DHS intends for this additional scrutiny
to help ensure compliance with H–2B
program requirements and obligations.
Specifically, falsifying information in
H–2B program attestation(s) can result
not only in penalties relating to perjury,
but also in, among other things, a
finding of fraud or willful
misrepresentation; denial or revocation
of the H–2B petition requesting
supplemental workers; and debarment
by DOL and DHS from the H–2B
program and any other foreign labor
2 See Exercise of Time-Limited Authority To
Increase the Numerical Limitation for Second Half
of FY 2022 for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking to Change Employers, 87 FR
30334, 30335 (May 18, 2022); Exercise of TimeLimited Authority To Increase the Numerical
Limitation for FY 2023 for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 76816, 76818 (Dec. 15, 2022).
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programs administered by DOL.
Falsifying information also may subject
a petitioner/employer to other criminal
and/or civil penalties.
DHS will not approve H–2B petitions
filed in connection with the FY 2024
supplemental cap authority on or after
October 1, 2024.
H–2B Portability
In addition to exercising its timelimited authority to make additional FY
2024 H–2B visas available, DHS is again
providing additional flexibilities to H–
2B petitioners under its general
programmatic authority by allowing
nonimmigrant workers in the United
States 3 in valid H–2B status and who
are beneficiaries of non-frivolous H–2B
petitions received on or after January 25,
2024, or who are the beneficiaries of
non-frivolous H–2B petitions that are
pending as of January 25, 2024, to begin
work with a new employer after an H–
2B petition (supported by a valid TLC)
is filed and before the petition is
approved, generally for a period of up
to 60 days. However, such employment
authorization would end 15 days after
USCIS denies the H–2B petition or such
petition is withdrawn. This H–2B
portability ends one year after the
provision’s effective date of January 25,
2024, in other words, at the end of
January 24, 2025.4
II. Background
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A. Legal Framework
The Immigration and Nationality Act
(INA), as amended, establishes the H–2B
nonimmigrant classification for a
nonagricultural temporary worker
‘‘having a residence in a foreign country
which he has no intention of
abandoning who is coming temporarily
to the United States to perform . . .
temporary [non-agricultural] service or
labor if unemployed persons capable of
performing such service or labor cannot
be found in this country.’’ INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
3 The term ‘‘United States’’ includes the
continental United States, Alaska, Hawaii, Puerto
Rico, Guam, the Virgin Islands of the United States,
and the Commonwealth of the Northern Mariana
Islands. INA section 101(a)(38), 8 U.S.C.
1101(a)(38).
4 On September 20, 2023, DHS issued a
Modernizing H–2 Program Requirements,
Oversight, and Worker Protections Notice of
Proposed Rulemaking (NPRM), 88 FR 65040, 65066,
with a 60-day public comment period that ends on
November 20, 2023. In that NPRM, DHS proposed
to extend portability to H–2A and H–2B workers on
a permanent basis. The Department’s proposal does
not interfere with the portability provision of this
rule, however, should DHS publish a final rule
making H–2 portability permanent, any such
provision would not expire on a specific date,
unlike the portability provision made effective by
this temporary final rule.
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1101(a)(15)(H)(ii)(b). Employers must
petition DHS for classification of
prospective temporary workers as H–2B
nonimmigrants. INA section 214(c)(1), 8
U.S.C. 1184(c)(1). Generally, DHS must
approve this petition before the
beneficiary can be considered eligible
for an H–2B visa. In addition, the INA
requires that ‘‘[t]he question of
importing any alien as [an H–2B]
nonimmigrant . . . in any specific case
or specific cases shall be determined by
[DHS],5 after consultation with
appropriate agencies of the
Government.’’ INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The INA generally
charges the Secretary of Homeland
Security with the administration and
enforcement of the immigration laws,
and provides that the Secretary ‘‘shall
establish such regulations . . . and
perform such other acts as he deems
necessary for carrying out his authority’’
under the INA. See INA section
103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3);
see also 6 U.S.C. 202(4) (charging the
Secretary with ‘‘[e]stablishing and
administering rules . . . governing the
granting of visas or other forms of
permission . . . to enter the United
States to individuals who are not a
citizen or an alien lawfully admitted for
permanent residence in the United
States’’). With respect to nonimmigrants
in particular, the INA provides that
‘‘[t]he admission to the United States of
any alien as a nonimmigrant shall be for
such time and under such conditions as
the [Secretary] may by regulations
prescribe.’’ INA section 214(a)(1), 8
U.S.C. 1184(a)(1); see also INA section
274A(a)(1) and (h)(3), 8 U.S.C.
1324a(a)(1) and (h)(3) (prohibiting
employment of noncitizens 6 not
authorized for employment). The
Secretary may designate officers or
employees to take and consider
evidence concerning any matter that is
material or relevant to the enforcement
of the INA. INA sections 287(a)(1), (b),
8 U.S.C. 1357(a)(1), (b) and INA section
235(d)(3), 8 U.S.C. 1225(d)(3).
Finally, under section 101 of the HSA,
6 U.S.C. 111(b)(1)(F), a primary mission
of DHS is to ‘‘ensure that the overall
5 As of March 1, 2003, in accordance with section
1517 of Title XV of the Homeland Security Act of
2002 (HSA), Public Law 107–296, 116 Stat. 2135,
any reference to the Attorney General in a provision
of the Immigration and Nationality Act describing
functions which were transferred from the Attorney
General or other Department of Justice official to the
Department of Homeland Security by the HSA
‘‘shall be deemed to refer to the Secretary’’ of
Homeland Security. See 6 U.S.C. 557 (2003)
(codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542
note; 8 U.S.C. 1551 note.
6 For purposes of this discussion, the
Departments use the term ‘‘noncitizen’’ colloquially
to be synonymous with the term ‘‘alien’’ as it is
used in the Immigration and Nationality Act.
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economic security of the United States
is not diminished by efforts, activities,
and programs aimed at securing the
homeland.’’
DHS regulations provide that an
approved TLC from the U.S. Department
of Labor (DOL), issued pursuant to
regulations established at 20 CFR part
655, or from the Guam Department of
Labor if the workers will be employed
on Guam, must accompany an H–2B
petition for temporary employment in
the United States. 8 CFR
214.2(h)(6)(iii)(A) and (C) through (E),
(h)(6)(iv)(A); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). The TLC
serves as DHS’s consultation with DOL
with respect to whether a qualified U.S.
worker is available to fill the petitioning
H–2B employer’s job opportunity and
whether a foreign worker’s employment
in the job opportunity will adversely
affect the wages and working conditions
of similarly-employed U.S. workers. See
INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
To determine whether to issue a TLC,
the Departments have established
regulatory procedures under which DOL
certifies whether a qualified U.S. worker
is available to fill the job opportunity
described in the employer’s petition for
a temporary nonagricultural worker, and
whether a foreign worker’s employment
in the job opportunity will adversely
affect the wages or working conditions
of similarly employed U.S. workers. See
20 CFR part 655, subpart A. The
regulations establish the process by
which employers obtain a TLC and
rights and obligations of workers and
employers.
Once the petition is approved, under
the INA and current DHS regulations,
H–2B workers do not have employment
authorization outside of the validity
period listed on the approved petition
unless otherwise authorized, and the
workers are limited to employment with
the H–2B petitioner. See 8 U.S.C.
1184(c)(1), 8 CFR 274a.12(b)(9). An
employer or U.S. agent generally may
submit a new H–2B petition, with a
new, approved TLC, to USCIS to request
an extension of H–2B nonimmigrant
status for the validity of the TLC or for
a period of up to 1 year. 8 CFR
214.2(h)(15)(ii)(C). Except as provided
for in the preceding H–2B supplemental
cap TFRs 7 and in this rule, and except
7 For instance, the FY 2023 H–2B supplemental
cap TFR included a portability provision at 8 CFR
214.2(h)(29)(iii)(A)(1)–(2), which remains in effect
through January 24, 2024. See e.g., Exercise of
Time-Limited Authority To Increase the Numerical
Limitation for FY 2023 for the H–2B Temporary
Nonagricultural Worker Program and Portability
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for certain professional athletes being
traded among organizations,8 H–2B
workers seeking to extend their status
with a new employer may not begin
employment with the new employer
until the new H–2B petition is
approved.
The INA also authorizes DHS to
impose appropriate remedies against an
employer for a substantial failure to
meet the terms and conditions of
employing an H–2B nonimmigrant
worker, or for a willful
misrepresentation of a material fact in a
petition for an H–2B nonimmigrant
worker. INA section 214(c)(14)(A), 8
U.S.C. 1184(c)(14)(A). The INA
expressly authorizes DHS to delegate
certain enforcement authority to DOL.
INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). DHS has
delegated its authority under INA
section 214(c)(14)(A)(i), 8 U.S.C.
1184(c)(14)(A)(i), to DOL. See DHS,
Delegation of Authority to DOL under
Section 214(c)(14)(A) of the INA (Jan.
16, 2009); see also 8 CFR 214.2(h)(6)(ix)
(stating that DOL may investigate
employers to enforce compliance with
the conditions of an H–2B petition and
a DOL-approved TLC). This
enforcement authority has been
delegated within DOL to the Wage and
Hour Division (WHD), and is governed
by regulations at 29 CFR part 503.
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B. H–2B Numerical Limitations Under
the INA
The maximum annual number
(‘‘statutory cap’’) of noncitizens who
may be issued H–2B visas or otherwise
provided H–2B nonimmigrant status to
perform temporary nonagricultural work
is 66,000, distributed semiannually
beginning in October and April. See
INA sections 214(g)(1)(B) and (g)(10), 8
U.S.C. 1184(g)(1)(B) and (g)(10).
Accordingly, with certain exceptions as
described below, up to 33,000
noncitizens may be issued H–2B visas
or provided H–2B nonimmigrant status
in the first half of a fiscal year, and the
remaining annual allocation, including
any unused nonimmigrant H–2B visas
from the first half of a fiscal year, are
available for employers seeking to hire
H–2B workers during the second half of
the fiscal year.9 If the number of
petitions approved by DHS is
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
8 See 8 CFR 214.2(h)(6)(vii) and 8 CFR
274a.12(b)(9).
9 The Federal Government’s fiscal year runs from
October 1 of the prior year through September 30
of the year being described. For example, fiscal year
2024 is from October 1, 2023, through September
30, 2024.
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insufficient to use all H–2B numbers in
a given fiscal year, DHS cannot carry
over the unused numbers for petition
approvals for employment start dates
beginning on or after the start of the
next fiscal year.
In FYs 2005, 2006, 2007, and 2016,
Congress exempted H–2B workers
identified as returning workers from the
annual H–2B cap of 66,000.10 A
returning worker is an H–2B worker
who was previously counted against the
annual H–2B cap during a designated
period of time.11 For example, Congress
designated that returning workers for FY
2016 needed to have been counted
against the cap during FY 2013, 2014, or
2015 to qualify for the exemption.12
DHS and the Department of State (DOS)
worked together to confirm that all
workers requested under the returning
worker provision in fact were eligible
for exemption from the annual cap (in
other words, were issued an H–2B visa
or provided H–2B status during one of
the prior 3 fiscal years) and were
otherwise eligible for H–2B
classification.
Because of the strong demand for H–
2B visas in recent years, the statutorilylimited semiannual visa allocation, the
DOL regulatory requirement that
employers apply for a TLC 75 to 90 days
before the start date of work,13 and the
DHS regulatory requirement that an
approved TLC accompany all H–2B
petitions,14 employers that wish to
obtain visas for their workers under the
semiannual allotment must act early to
receive a TLC and file a petition with
U.S. Citizenship and Immigration
Services (USCIS). As a result, the date
on which USCIS has reached sufficient
H–2B petitions to reach the first half of
the fiscal year statutory cap has
generally trended earlier in recent
years.15 For FY 2022, for the first time
10 See INA section 214(g)(9)(A), 8 U.S.C.
1184(g)(9)(A), see also Consolidated Appropriations
Act, 2016, Public Law 114–113, div. F, tit. V, sec
565; John Warner National Defense Authorization
Act for Fiscal Year 2007, Public Law 109–364, div.
A, tit. X, sec. 1074, (2006); Save Our Small and
Seasonal Businesses Act of 2005, Public Law 109–
13, div. B, tit. IV, sec. 402.
11 See INA section 214(g)(9)(A), 8 U.S.C.
1184(g)(9)(A).
12 See Consolidated Appropriations Act, 2016,
Public Law 114–113, div. F, tit. V, sec 565.
13 See 20 CFR 655.15(b).
14 See 8 CFR 214.2(h)(6)(vi)(A).
15 In fiscal years 2017 through 2021, USCIS
received a sufficient number of H–2B petitions to
reach or exceed the relevant first half statutory cap
on January 10, 2017, December 15, 2017, December
6, 2018, November 15, 2019, and November 16,
2020, respectively. See USCIS, USCIS Reaches the
H–2B Cap for the First Half of Fiscal Year 2017,
https://www.uscis.gov/archive/uscis-reaches-the-h2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13,
2017); USCIS, USCIS Reaches H–2B Cap for the
First Half of Fiscal Year 2018, https://
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80397
in more than a decade, USCIS received
sufficient H–2B petitions to reach the
first half of the fiscal year statutory cap
before the start of the fiscal year.16 This
occurred even earlier in FY 2023, when
USCIS received enough H–2B petitions
to reach the FY 2023 first-half statutory
cap on September 12, 2022.17 For FY
2024, USCIS received sufficient H–2B
petitions to reach the first half of the
fiscal year statutory cap on October 11,
2023.18 While this date was slightly
later than the prior two years, the
Departments note that DOL received
2,157 applications for the first half of
the FY 2024 statutory cap during the
initial three-day filing window of July
3–5, 2023, covering 40,947 worker
positions; a 59% increase in TLC
workload when compared to the same
time period in 2022.19 This trend in
recent years of increased demand for H–
www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS
Reaches H–2B Cap for the First Half of Fiscal Year
2019, https://www.uscis.gov/news/news-releases/
uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec.
12, 2018); USCIS, USCIS Reaches H–2B Cap for the
First Half of Fiscal Year 2020, https://
www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019);
USCIS, USCIS Reaches H–2B Cap for the First Half
of Fiscal Year 2021, https://www.uscis.gov/news/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2021 (Nov. 18, 2020).
16 On October 12, 2021, USCIS announced that it
had received sufficient petitions to reach the
congressionally mandated cap on H–2B visas for
temporary nonagricultural workers for the first half
of fiscal year 2022, and that September 30, 2021
was the final receipt date for new cap-subject H–
2B worker petitions requesting an employment start
date before April 1, 2022. See USCIS, USCIS
Reaches H–2B Cap for the First Half of Fiscal Year
2022, https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12,
2021).
17 On September 14, 2022, USCIS announced that
it had received sufficient petitions to reach the
congressionally mandated cap on H–2B visas for
temporary nonagricultural workers for the first half
of fiscal year 2023, and that September 12, 2022
was the final receipt date for new cap-subject H–
2B worker petitions requesting an employment start
date before April 1, 2023. See USCIS, USCIS
Reaches H–2B Cap for the First Half of Fiscal Year
2023, https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14,
2022).
18 On October 13, 2023, USCIS announced that it
had received sufficient petitions to reach the
congressionally mandated cap on H–2B visas for
temporary nonagricultural workers for the first half
of fiscal year 2024, and that October 11, 2023 was
the final receipt date for new cap-subject H–2B
worker petitions requesting an employment start
date before April 1, 2024. See USCIS, USCIS
Reaches H–2B Cap for First Half of FY 2024, https://
www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (October 13, 2023).
19 See DOL, OFLC Publishes List of Randomized
H–2B Applications Submitted July 3–5, 2023, for
Employers Seeking H–2B Workers Starting October
1, 2023, https://www.dol.gov/agencies/eta/foreignlabor/news (July 10, 2023).
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2B workers is even more apparent in the
second half of the fiscal year.20
Congress, in recognition of historical
and current demand has, for the last
several fiscal years, authorized
supplemental caps.21 The authorization
for the current supplemental cap is
under sections 101(6) and 106 of
Division A of Public Law 118–15,
Continuing Appropriations Act, 2024
and Other Extensions Act (FY 2024
authority), which extended the
authorization previously provided in
section 303 of Division O of the
Consolidated Appropriations Act, 2023,
Public Law 117–328 (FY 2023
Omnibus), as discussed below.
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C. FY 2023 Omnibus and FY 2024
Public Law 118–15
On December 29, 2022, President
Joseph Biden signed the FY 2023
Omnibus, which contains a provision,
section 303 of Division O, Title III,
permitting the Secretary of Homeland
Security, under certain circumstances
and after consultation with the
Secretary of Labor, to increase the
number of H–2B visas available to U.S.
employers, notwithstanding the
otherwise-established statutory
numerical limitation set forth in the
INA.22 Specifically, section 303
20 In recent years, DOL has received an increasing
number of TLC applications for an increasing
number of H–2B workers with April 1 start dates:
DOL received 4,500 applications on January 1,
2018, covering more than 81,600 worker positions;
DOL received 5,276 applications by January 8,
2019, covering more than 96,400 worker positions;
DOL received 5,677 applications during the initial
three-day filing window in 2020 covering 99,362
worker positions; DOL received 5,377 applications
during the initial three-day filing window in 2021
covering 96,641 worker positions; DOL received
7,875 applications by January 7, 2022, covering
136,555 worker positions; and DOL received 8,693
applications during the initial three-day filing
window in 2023, covering 142,796 worker
positions. See DOL, Announcements, https://
www.dol.gov/agencies/eta/foreign-labor/news.
21 See section 543 of Division F of the
Consolidated Appropriations Act, 2017, Public Law
115–31 (FY 2017 Omnibus); section 205 of Division
M of the Consolidated Appropriations Act, 2018,
Public Law 115–141 (FY 2018 Omnibus); section
105 of Division H of the Consolidated
Appropriations Act, 2019, Public Law 116–6 (FY
2019 Omnibus); section 105 of Division I of the
Further Consolidated Appropriations Act, 2020,
Public Law 116–94 (FY 2020 Omnibus); section 105
of Division O of the Consolidated Appropriations
Act, 2021, Public Law 116–260 (FY 2021 Omnibus);
section 105 of Division O of the Consolidated
Appropriations Act, 2021, FY 2021 Omnibus,
sections 101 and 106(3) of Division A of Public Law
117–43, Continuing Appropriations Act, 2022, and
section 101 of Division A of Public Law 117–70,
Further Continuing Appropriations Act, 2022
through February 18, 2022 (together, FY 2022
authority); and section 204 of Division O of the
Consolidated Appropriations Act, 2022, Public Law
117–103 (FY 2022 Omnibus).
22 The Department of Homeland Security
Appropriations Act, 2023, Public Law 117–328
(Dec. 29, 2022).
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provides that ‘‘the Secretary of
Homeland Security, after consultation
with the Secretary of Labor, and upon
determining that the needs of American
businesses cannot be satisfied in [FY]
2023 with United States workers who
are willing, qualified, and able to
perform temporary nonagricultural
labor,’’ may increase the total number of
noncitizens who may receive an H–2B
visa in FY 2023 by the highest number
of H–2B nonimmigrants who
participated in the H–2B returning
worker program in any fiscal year in
which returning workers were exempt
from the H–2B numerical limitation.
On September 30, 2023, Congress
passed Public Law 118–15, which
extends authorization under the same
terms and conditions provided in
section 303 of Division O of the FY 2023
Omnibus permitting the Secretary of
Homeland Security to increase the
number of H–2B visas available to U.S.
employers in FY 2024.23 In other words,
Public Law 118–15 permits the
Secretary of Homeland Security, after
consultation with the Secretary of
Labor, to provide up to 64,716
additional H–2B visas for FY 2024,
notwithstanding the otherwiseestablished statutory numerical
limitation set forth in the INA, for
eligible employers whose employment
needs for FY 2024 cannot be met.24
Under the Public Law 118–15 authority,
DHS and DOL are jointly publishing this
temporary final rule to authorize the
issuance of no more than 64,716
additional visas for FY 2024 to those
businesses that are suffering irreparable
harm or will suffer impending
23 See Public Law 118–15, Continuing
Appropriations Act, 2024 and Other Extensions
Act, Division A, sections 101(6) and 106 (extending
into 2024 DHS funding and other authorities,
including the authority to issue supplemental H–2B
visas that was provided under title III of Division
O of Pub. L. 117–328, through November 17, 2023).
24 Appropriations and authorities provided by the
continuing resolutions are available for the needs of
the entire fiscal year to which the continuing
resolution applies, although DHS’s ability to
obligate funds or exercise such authorities may
lapse at the sunset of such resolution. See, e.g.,
Comments on Due Date and Amount of District of
Columbia’s Contributions to Special Employee
Retirement Funds, B–271304 (Comp. Gen. Mar. 19,
1996) (explaining that ‘‘a continuing resolution
appropriates the full annual amount regardless of
its period of duration . . . . Standard continuing
resolution language makes it clear that the
appropriations are available to the extent and in the
manner which would be provided by the pertinent
appropriations act that has yet to be enacted (unless
otherwise provided in the continuing resolution).’’).
Consistent with this principle, DHS interprets the
current continuing resolution to provide DHS with
the ability to authorize additional H–2B visa
numbers with respect to all of FY 2024 subject to
the same terms and conditions as the FY 2023
authority at any time before the continuing
resolution expires, notwithstanding the reference to
FY 2023 in the FY 2023 Omnibus.
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irreparable harm, as attested by the
employer on a new attestation form. The
authority to approve H–2B petitions
under this FY 2024 supplemental cap
expires at the end of that fiscal year.
Therefore, USCIS will not approve H–
2B petitions filed in connection with
this FY 2024 supplemental cap
authority on or after October 1, 2024.
As noted above, since FY 2017,
Congress has enacted a series of public
laws providing the Secretary of
Homeland Security with the
discretionary authority to increase the
H–2B cap beyond the annual numerical
limitation set forth in section 214 of the
INA. The previous statutory provisions
were materially identical to section 303
of the FY 2023 Omnibus, which is the
same authority provided for FY 2024 by
the recent continuing resolution. During
each fiscal year from FY 2017 through
FY 2019, and FY 2021 through FY 2023,
the Secretary of Homeland Security,
after consulting with the Secretary of
Labor, determined that some American
businesses could not satisfy their needs
in such year with U.S. workers who
were willing, qualified, and able to
perform temporary nonagricultural
labor. On the basis of these
determinations, on July 19, 2017, and
May 31, 2018, DHS and DOL jointly
published temporary final rules for FY
2017 and FY 2018, respectively, each of
which allowed an increase of up to
15,000 additional H–2B visas for those
businesses that attested that if they did
not receive all of the workers requested
on the Petition for a Nonimmigrant
Worker (Form I–129), they were likely
to suffer irreparable harm, in other
words, suffer a permanent and severe
financial loss.25 USCIS approved a total
of 12,294 workers for H–2B
classification under petitions filed
pursuant to the FY 2017 supplemental
cap increase.26 In FY 2018, USCIS
received petitions for more than 15,000
beneficiaries during the first 5 business
days of filing for the supplemental cap
and held a lottery on June 7, 2018. The
total number of H–2B workers approved
toward the FY 2018 supplemental cap
increase was 15,788.27 The vast majority
25 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2017 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program, 82 FR 32987, 32998 (July 19, 2017);
Exercise of Time-Limited Authority To Increase the
Fiscal Year 2018 Numerical Limitation for the H–
2B Temporary Nonagricultural Worker Program, 83
FR 24905, 24917 (May 31, 2018).
26 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2022, TRK 10625.
27 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
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of the H–2B petitions received under the
FY 2017 and FY 2018 supplemental
caps requested premium processing
(Form I–907) 28 and were adjudicated
within 15 calendar days.
On May 8, 2019, DHS and DOL jointly
published a temporary final rule
authorizing an increase of up to 30,000
additional H–2B visas for the remainder
of FY 2019.29 The additional visas were
limited to returning workers who had
been counted against the H–2B cap or
were otherwise granted H–2B status in
the previous three fiscal years, and for
those businesses that attested to a level
of need such that, if they did not receive
all of the workers requested on the Form
I–129, they were likely to suffer
irreparable harm, in other words, suffer
a permanent and severe financial loss.30
The Secretary determined that limiting
returning workers to those who were
issued an H–2B visa or granted H–2B
status in the past 3 fiscal years was
appropriate, as it mirrored the standard
that Congress designated in previous
returning worker provisions. On June 5,
2019, approximately 30 days after the
supplemental visas became available,
USCIS announced that it received
sufficient petitions filed pursuant to the
FY 2019 supplemental cap increase.
USCIS did not conduct a lottery for the
FY 2019 supplemental cap increase. The
total number of H–2B workers approved
towards the FY 2019 supplemental cap
increase was 32,680.31 The vast majority
of these petitions requested premium
processing and were adjudicated within
15 calendar days.
Although Congress provided the
Secretary of Homeland Security with
the discretionary authority to increase
the H–2B cap in FY 2020, the Secretary
did not exercise that authority. DHS
initially intended to exercise its
authority and, on March 4, 2020,
Visa Issuance Data queried 10/2022, TRK 10625.
The number of approved workers exceeded the
number of additional visas authorized for FY 2018
to allow for the possibility that some approved
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States.
28 Premium processing allows for expedited
processing for an additional fee. See INA 286(u), 8
U.S.C. 1356(u).
29 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2019 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program, 84 FR 20005, 20021 (May 8, 2019).
30 See 84 FR at 20021.
31 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2022, TRK 10625.
The number of approved workers exceeded the
number of additional visas authorized for FY 2019
to allow for the possibility that some approved
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States.
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19:31 Nov 16, 2023
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announced that it would make available
35,000 supplemental H–2B visas for the
second half of the fiscal year.32 On
March 13, 2020, then-President Trump
declared a National Emergency
concerning COVID–19, a communicable
disease caused by the coronavirus
SARS–CoV–2.33 On April 2, 2020, DHS
announced that the rule to increase the
H–2B cap was on hold due to economic
circumstances, and that DHS would not
release additional H–2B visas until
further notice.34 DHS also noted that the
Department of State had suspended
routine visa services.35
In FY 2021, DHS in consultation with
DOL determined it was appropriate to
increase the H–2B cap for FY 2021
coupled with additional protections (for
example, post-adjudication audits,
investigations, and compliance checks),
based on the demand for H–2B workers
in the second half of FY 2021,
continuing economic growth, the
improving job market, and increased
visa processing capacity by the
Department of State. Accordingly, on
May 25, 2021, DHS and DOL jointly
published a temporary final rule
authorizing an increase of up to 22,000
additional H–2B visas for the remainder
of FY 2021.36 The supplemental visas
were available only to employers that
attested they were likely to suffer
irreparable harm without the additional
workers. The allocation of 22,000
additional H–2B visas under that rule
consisted of 16,000 visas available only
to H–2B returning workers from one of
the last three fiscal years (FY 2018,
2019, or 2020) and 6,000 visas that were
initially reserved for nationals of the
Northern Central American countries of
El Salvador, Guatemala, and Honduras,
who were exempt from the returning
worker requirement. By August 13,
2021, USCIS had received enough
petitions for returning workers to reach
the additional 22,000 H–2B visas made
available under the FY 2021 H–2B
supplemental visa temporary final
32 See DHS, DHS to Improve Integrity of Visa
Program for Foreign Workers (March 5, 2020),
https://www.dhs.gov/news/2020/03/05/dhsimprove-integrity-visa-program-foreign-workers.
33 See Proclamation 9994 of Mar. 13, 2020,
Declaring a National Emergency Concerning the
Coronavirus Disease (COVID–19) Outbreak, 85 FR
15337 (Mar. 18, 2020).
34 See https://twitter.com/DHSgov/status/
1245745115458568192?s=20.
35 See https://twitter.com/DHSgov/status/1245745
116528156673.
36 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2021 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 86 FR
28198 (May 25, 2021).
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80399
rule.37 The total number of H–2B
workers approved towards the FY 2021
supplemental cap increase was
30,707.38 This total number included
approved H–2B petitions for 23,937
returning workers, as well as 6,805
beneficiaries from the Northern Central
American countries.39
On January 28, 2022, DHS and DOL
jointly published a temporary final rule
authorizing an increase of up to 20,000
additional H–2B visas for FY 2022
positions with start dates on or before
March 31, 2022.40 These supplemental
visas were available only to employers
that attested they were suffering or
would suffer impending irreparable
harm without the additional workers.
The allocation of 20,000 additional H–
2B visas under that rule consisted of
13,500 visas available only to H–2B
returning workers from one of the last
three fiscal years (FY 2019, 2020, or
2021) and 6,500 visas reserved for
Salvadoran, Guatemalan, Honduran,
and Haitian nationals, who were
exempted from the returning worker
requirement. USCIS data show that the
total number of H–2B workers approved
towards the first half FY 2022
supplemental cap increase was 17,381,
including 14,150 workers under the
returning worker allocation, as well as
3,231 workers approved towards the
Haitian/Northern Central American
allocation.41
For the second half of FY 2022, DHS
in consultation with DOL determined it
was appropriate to increase the H–2B
cap for FY 2022 positions with start
dates beginning on April 1, 2022
37 See USCIS, Cap Reached for Remaining H–2B
Visas for Returning Workers for FY 2021, https://
www.uscis.gov/news/alerts/cap-reached-forremaining-h-2b-visas-for-returning-workers-for-fy2021 (Aug. 19, 2021).
38 The number of approved workers exceeded the
number of additional visas authorized for FY 2021
to allow for the possibility that some approved
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States. See Department of
Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data
queried 10/2023, TRK 13122, H–2B Visa Issuance
Report September 30, 2023.
39 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2023, TRK 13122, H–
2B Visa Issuance Report September 30, 2023.
40 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2022 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR 4722
(Jan. 28, 2022); 87 FR 6017 (Feb. 3, 2022)
(correction).
41 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2023, TRK 13122, H–
2B Visa Issuance Report September 30, 2023.
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through September 30, 2022, based on
the continued demand for H–2B
workers for the remainder of FY 2022,
continuing economic growth, increased
labor demand, and increased visa
processing capacity by the Department
of State. Accordingly, on May 18, 2022,
DHS and DOL jointly published a
temporary final rule authorizing an
increase of no more than 35,000
additional H–2B visas for the second
half of FY 2022.42 As in the January
2022 TFR, the supplemental visas were
available only to employers that attested
they were suffering or would suffer
impending irreparable harm without the
additional workers. The allocation of
35,000 additional H–2B visas under the
rule applicable to the second half of FY
2022 consisted of 23,500 visas available
only to H–2B returning workers from
one of the last three fiscal years (FY
2019, 2020, or 2021) and 11,500 visas
reserved for Salvadoran, Guatemalan,
Honduran, and Haitian nationals, who
were exempted from the returning
worker requirement. By May 25, 2022,
USCIS had received enough petitions
for returning workers to reach the
additional 23,500 H–2B visas made
available under the second half FY 2022
H–2B supplemental visa temporary final
rule.43 USCIS data show that the total
number of H–2B workers approved
towards the second half FY 2022
supplemental cap increase was 43,798,
including 31,480 workers under the
returning worker allocation, as well as
12,318 workers approved towards the
Haitian/Northern Central American
allocation.44
Finally, on December 15, 2022, DHS
and DOL jointly published a temporary
final rule authorizing an increase of up
to 64,716 additional H–2B visas for the
entirety of FY 2023. As in the FY 2022
TFRs, the additional visas were
available only to employers that attested
they were suffering or would suffer
impending irreparable harm without the
42 See Temporary Final Rule, Exercise of TimeLimited Authority To Increase the Numerical
Limitation for Second Half of FY 2022 for the H–
2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022).
43 See USCIS, Cap Reached for Additional
Returning Worker H–2B Visas for Second Half of FY
2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022).
44 The number of approved workers exceeded the
number of additional visas authorized for the
second half of FY 2022 to allow for the possibility
that some approved workers would either not seek
a visa or admission, would not be issued a visa, or
would not be admitted to the United States. See
Department of Homeland Security, U.S. Citizenship
and Immigration Services, Office of Performance
and Quality, C3 Consolidated, queried 10/2023,
TRK 13122, H–2B Visa Issuance Report September
30, 2023.
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19:31 Nov 16, 2023
Jkt 262001
additional workers.45 The 64,716
additional visas included 44,716
reserved for returning workers from one
of the last three fiscal years (FY 2020,
2021, or 2022), which were distributed
in several allocations based on date of
employer need: 18,216 for employers
with requested employment start dates
on or before March 31, 2023; 16,500 for
employers with requested employment
start dates from April 1, 2023, to May
14, 2023 (early second half allocation);
and 10,000 for employers with
requested employment start dates from
May 15, 2023, to Sept. 30, 2023 (late
second half allocation). The remaining
20,000 visas were available for the
entirety of FY 2023, and were set aside
for nationals of El Salvador, Guatemala,
Honduras, and Haiti, who were exempt
from the returning worker requirement.
By January 30, 2023, USCIS received
enough petitions to reach the cap for the
additional 18,216 H–2B visas made
available for returning workers for the
first half of fiscal year, and by March 30,
2023, USCIS received enough petitions
to reach the cap for the additional
16,500 H–2B visas made available for
returning workers for the early second
half of fiscal year.46 USCIS data show
that the total number of H–2B workers
approved towards the FY 2023
supplemental cap increase was 78,302,
including 54,470 workers under the
returning worker allocation, as well as
23,832 workers approved towards the
Haitian/Northern Central American
allocation.47
Once again, DHS in consultation with
DOL believes that it is appropriate to
increase the H–2B cap for FY 2024
based on the demand for H–2B workers
in the first half of FY 2024, anticipated
demand for the second half of FY 2024,
recent economic growth, and strong
45 See Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for
the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022); 87 FR 77979 (Dec. 21, 2022).
46 See USCIS, Cap Reached for Additional
Returning Worker H–2B Visas for the First Half of
FY 2023, https://www.uscis.gov/newsroom/alerts/
cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2023 (Jan. 31, 2023);
USCIS, Cap Reached for Additional Returning
Worker H–2B Visas for the Early Second Half of FY
2023, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
47 The number of approved workers exceeded the
number of additional visas authorized for FY 2023
to allow for the possibility that some approved
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States. See DHS, USCIS,
Office of Performance and Quality, CLAIMS3, VIBE,
DOS Visa Issuance Data, queried 10/2023, TRK
13122, H–2B Visa Issuance Report September 30,
2023.
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labor demand.48 Similar to the
preceding temporary rule, DHS and
DOL also believe that it is appropriate
and important to couple this cap
increase with additional worker
protections, as described below.
D. Joint Issuance of the Final Rule
As in FY 2017, FY 2018, FY 2019, FY
2021, FY 2022, and FY 2023, DHS and
DOL (the Departments) have determined
that it is appropriate to jointly issue this
temporary final rule.49 The
determination to issue the temporary
final rule jointly follows conflicting
court decisions concerning DOL’s
authority to independently issue
legislative rules to carry out its
consultative and delegated functions
pertaining to the H–2B program under
the INA.50 Although DHS and DOL each
have authority to independently issue
rules implementing their respective
duties under the H–2B program,51 the
Departments are implementing the
numerical increase in this manner to
ensure there can be no question about
the authority underlying the
48 The term ‘‘strong labor demand’’ in this context
relies on the most recently released figure from a
Bureau of Labor Statistics (BLS) survey at the time
this TFR was written. The BLS Job Openings and
Labor Turnover Survey (JOLTS) reports 9.6 million
job openings in August 2023. See DOL, BLS, Job
Openings and Labor Turnover—August 2023,
https://www.bls.gov/news.release/archives/jolts_
10032023.htm.
49 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2017 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program, 82 FR 32987 (Jul. 19, 2017); Exercise of
Time-Limited Authority To Increase the Fiscal Year
2018 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program, 83 FR 24905 (May
31, 2018); Exercise of Time-Limited Authority To
Increase the Fiscal Year 2019 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program, 84 FR 20005 (May 8, 2019); Exercise of
Time-Limited Authority To Increase the Fiscal Year
2021 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 86 FR 28198 (May 25, 2021); Exercise
of Time-Limited Authority To Increase the Fiscal
Year 2022 Numerical Limitation for the H–2B
Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022);
Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022
for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
30334 (May 18, 2022); Exercise of Time-Limited
Authority To Increase the Numerical Limitation for
FY 2023 for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022).
50 See Outdoor Amusement Bus. Ass’n v. Dep’t of
Homeland Sec., 983 F.3d 671 (4th Cir. 2020), cert.
denied, 142 S. Ct. 425 (2021); see also Temporary
Non-Agricultural Employment of H–2B Aliens in
the United States, 80 FR 24041, 24045 (Apr. 29,
2015).
51 See Outdoor Amusement Bus. Ass’n, 983 F.3d
at 684–89.
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administration and enforcement of the
temporary cap increase. This approach
is consistent with rules implementing
DOL’s general consultative role under
INA section 214(c)(1), 8 U.S.C.
1184(c)(1), and delegated functions
under INA sections 103(a)(6) and
214(c)(14)(B), 8 U.S.C. 1103(a)(6),
1184(c)(14)(B).52
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E. Comments and Responses to
Comments on the FY 2023 TFR
In connection with the FY 2023 TFR,
the Departments solicited public
comments for 60 days. During that
comment period, the Departments
received 10 substantive comments. In
the following discussion, the
Departments discuss and respond to
those comments by topic.
Timing and Distribution of Visas
Comment: Several commenters
expressed support for the Departments’
release of the maximum number of visas
authorized by Congress. In addition,
these commenters indicated
appreciation for the earlier release of
supplemental visas in 2023 than in prior
years, noting that the FY 2023 TFR
offered certainty that was beneficial to
employers. The commenters encouraged
the Departments to similarly make
future supplemental visas available
early in the relevant fiscal year.
Response: The Departments thank the
commenters for their feedback. The
Departments are again making the
maximum number of visas available for
FY 2024 and worked diligently to
release these visas as early as possible.
Comment: One commenter stated that
the number of supplemental visas was
not sufficiently justified by labor market
conditions. The commenter asserted
that the United States is not
experiencing a labor shortage and
disagreed with the Departments’ usage
of official unemployment rate data to
justify the decision to release 64,716
supplemental visas for FY 2023. The
comment centers on a critique of official
government statistics produced by the
Department of Labor. More specifically,
the comment noted the long-term
decline in the labor force participation
rate and, further, alleges that the official
unemployment rate is flawed because it
excludes persons who are considered to
no longer be in the labor force.
Response: The Departments
appreciate the comment regarding
justification for the number of
supplemental visas. However, the
Departments disagree that the rule did
not sufficiently justify the number of
52 See 8 CFR 214.2(h)(6)(iii)(A) and (C),
(h)(6)(iv)(A).
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supplemental visas. Specifically, the
Departments disagree with the assertion
that official government statistics are
incorrect or inadequate. Furthermore,
the Departments (as branches of the
Federal Government) believe that it is
reasonable to rely on official labor
market statistics produced by subjectmatter experts within the U.S.
Government when assessing the labor
market. Additionally, the Departments
note that did they not rely on any single
statistic to determine either the general
need for supplemental visas or the
specific number of supplemental visas,
but rather considered a number of
factors including demand for H–2B
workers (in the form of TLC data) and
labor market conditions (in the form of
multiple labor market statistics).
Finally, the Departments believe that
aspects of this comment, specifically the
discussion regarding long-term labor
force trends that (by the commenter’s
description) are impacted by multiple
variables other than short-term labor
needs, are out of the scope of the FY
2023 Temporary Final Rule.
Comment: Some commenters
expressed support for the Departments’
FY 2023 distribution of the
supplemental H–2B visas in multiple
seasonal allocations including two
allocations for the second half of the
fiscal year. These commenters noted
that this distribution was beneficial to
employers who hire later in the fiscal
year.
Response: The Departments thank the
commenters for their feedback and will
again make multiple allocations
available including two allocations for
the second half of FY 2024.
Comment: One commenter requested
that the Departments consider
combining the supplemental allocations
for the second half of the fiscal year into
a single allocation in future TFRs. The
commenter stated that administering
multiple allocations creates more work
for the Departments when they are
already struggling to process
applications and petitions in a timely
manner. The commenter also stated that
the allocations for the second half of the
fiscal year were ‘‘woefully insufficient’’
to meet employer demand.
Response: The Departments have
again decided to reserve supplemental
visas for the late second half of FY 2024.
As noted by the commenter,
administering multiple allocations
involves some level of additional work.
This includes both the work performed
by USCIS in the actual administration of
each allocation cap, as well as a
potential increase in DOL workload as
TLC requests may increase. However,
the Departments have attempted to
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balance such workload challenges with
the importance of addressing the needs
of U.S. employers, including those late
season employers who otherwise may
not have the opportunity to file for capsubject H–2B workers. As explained in
last year’s TFR and again in this TFR,
the intense competition for employers
requesting an April 1 start date has
resulted in H–2B visas being effectively
unavailable for many employers who
need workers to start late in the season,
and thus the late season allocation is
intended to directly assist those
employers.53 For FY 2024, as in FY
2023, the Departments believe that there
is sufficient demand and need for the
late second half to justify the additional
work and potential impact on
processing times.
Regarding the claim that the total
allocation for the second half of FY 2023
was inadequate, the Departments
reiterate that the 33,000 cap was
statutory, and the second half’s total
returning worker supplemental
allocation of 26,500 visas was more than
the first half’s returning worker
allocation of 18,216. In addition, while
the 20,000 allocation for nationals of El
Salvador, Guatemala, Honduras, and
Haiti was available for start dates
throughout FY 2023, the majority of
visas issued under that allocation went
to workers with second half start
dates.54 As with the FY 2023 TFR, the
Departments will continue to make
more total visas available for the second
half of FY 2024 than the first half.
Comment: One commenter
recommended reallocating unused visas
from one sub-allocation to another if
there were unused visas, such as unused
visas from the allocation for nationals of
El Salvador, Guatemala, Honduras, and
Haiti, to the returning worker allocation.
Another commenter more specifically
suggested that the Departments
coordinate with DOS to verify all visas
under the first half allocation are
actually used and roll over any
supplemental visas that were ‘‘used’’
(counted on a petition) but not issued
(by DOS) from the first half cap to the
second half cap, or from the early
53 Exercise of Time-Limited Authority To Increase
the Numerical Limitation for FY 2023 for the H–2B
Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 76816, 76830 (Dec. 15,
2022).
54 Under the FY 2023 TFR allocation for nationals
of Northern Central America and Haiti, a total of
over 16,700 visas were issued, with around 5,000
of those visas issued to workers with first half start
dates and the remainder issued to workers with
second half start dates. See DHS, USCIS, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data, queried 10/2023, TRK 13122,
FY 2023 H–2B Northern Central American Cap
Approvals by Validity Start Date Month.
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second half cap to the late second half
cap.
Response: The Departments again
decline to roll over any unused visas. As
explained in this and the prior TFR,
calculating and administering a process
to carry over unused visas would
significantly increase operational
burdens. Also, not permitting rollover
from the allocation for nationals of
certain countries into the returning
worker allocation provides employers
seeking to hire workers from these
countries with more time to petition for,
and bring in those workers and
encourages full use of the 20,000
allocation.55 This, in turn, contributes to
the United States Government’s efforts
to promote and improve safety, security
and economic stability in these
countries to help stem the flow of
irregular migration to the United States.
Further, DHS anticipates that the
issuance of this rule early in the fiscal
year, the fact that this is the fourth year
that DHS will make a specific allocation
available for workers from the Northern
Central American countries and Haiti,
as well as the inclusion of nationals
from Ecuador, Colombia, and Costa
Rica, will contribute to even greater
utilization of available visas under this
allocation during FY 2024 such that a
rollover would not be beneficial or
necessary. Similarly, it is the
Departments’ expectation that there will
be sufficient demand from employers
with first half and early second half start
dates to use the entirety of these
allocations in FY 2024, rendering
rollover unnecessary.
With respect to the suggestion to roll
over any supplemental visas that were
‘‘used’’ but not issued by DOS, the
Departments note that DHS already
accounts for visa usage rates (among
other factors) in its administration of the
caps by using projections of the number
of petitions necessary to achieve the
numerical limit of approvals. See new 8
CFR 214.2(h)(6)(xiv)(D). Further, any
55 In FY 2021, 3,079 visas out of 6,000 authorized
were issued under the allocation for nationals of
Northern Central America in the FY 2021 TFR,
which published on May 25, 2021—to use a visa
under this allocation the petition had to have been
received by July 8, 20211. In FY 2022, 2,481 visas
out of 6,500 authorized were issued under the
allocation for nationals of Northern Central America
and Haiti in the first half FY 2022 TFR, which
published on January 22, 2022; 7,405 visas out of
11,500 authorized were issued under the allocation
for nationals of Northern Central America and Haiti
in the second half FY 2022 TFR, which published
on May 18, 2022; and 16,713 visas were issued out
of 20,000 authorized under the allocation for
nationals of Northern Central America and Haiti in
the FY 2023 TFR, which published on December
15, 2022. See DHS, USCIS, Office of Performance
and Quality, CLAIMS3, VIBE, DOS Visa Issuance
Data, queried 10/2023, TRK 13122, H–2B Visa
Issuance Report September 30, 2023.
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rollover process would be operationally
burdensome as noted above.
Comment: A commenter requested the
Departments to prioritize the allocation
of late second half visas to essential and
critical infrastructure employers,
including seafood processors, as
designated by DHS. Another commenter
similarly requested the Departments to
prioritize critical and essential
infrastructure seafood industry jobs.
Response: The Departments decline
the suggestion to prioritize certain
industries or jobs in the allocation of
supplemental cap visas. As noted in the
FY 2023 TFR and this TFR, the
Departments interpret the use of the
phrase ‘‘the needs of American
businesses’’ in the relevant statutory
authority for the supplemental caps as
providing discretion to identify the
business needs that are most relevant,
while bearing in mind the need to
protect U.S. workers. The Departments
have implemented the irreparable harm
standard in order to prioritize the most
pressing business needs. Prioritizing
certain industries as ‘‘essential and
critical,’’ separate from the irreparable
harm consideration already in use,
could also harm industries DHS does
not designate as such. The Departments
believe considering the irreparable harm
to individual employers better addresses
the needs of employers than designating
entire industries for prioritization. In
addition, the Departments do not
believe such prioritization is necessary
as the decision to provide a late second
half allocation again for FY 2024 should
provide some relief to seafood
processors (one of the industries
highlighted in the comments) and other
similar companies facing a need for
additional workers in the late second
half.
FY 23 Allocation for Nationals of El
Salvador, Guatemala, Honduras, and
Haiti
Comment: Two commenters
expressed general opposition to the
allocation of supplemental visas for
nationals of El Salvador, Guatemala,
Honduras, and Haiti. These commenters
opined that the H–2B program is not an
appropriate strategy for addressing
humanitarian needs and that the H–2B
program would not provide permanent,
durable solutions for these countries’
nationals.
Response: The country-specific
allocation within the H–2B program is
an important part of the
administration’s overall strategy to
expand access to lawful pathways for
individuals from these countries to stem
irregular migration. These allocations
are just one of the additional lawful
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pathways offered to these nationals and
others, including new family
reunification parole processes for
certain nationals of El Salvador,56
Guatemala,57 Honduras,58 Colombia,59
and Ecuador,60 and modernized family
reunification parole processes for
certain nationals of Haiti 61 and Cuba.62
The root causes of migration from
these regions are multifold. Political
instability and insecurity, poverty and
economic inequality, pervasive crime
and corruption, and other factors all
contribute to irregular migration.63 The
diversity of the root causes of irregular
migration requires a multi-pronged
strategy, as employed by this
administration, to address them. As
such, this rule and the allocation for
certain countries provide an additional
lawful pathway for individuals seeking
an economic opportunity in the United
States who would eventually return to
contribute to the development of their
own community and country. However,
the Departments recognize other
programs and efforts are also needed to
56 Implementation of a Family Reunification
Parole Process for Salvadorans, 88 FR 43611 (July
10, 2023).
57 Implementation of a Family Reunification
Parole Process for Guatemalans, 88 FR 43581 (July
10, 2023).
58 Implementation of a Family Reunification
Parole Process for Hondurans, 88 FR 43601 (July
10, 2023).
59 Implementation of a Family Reunification
Parole Process for Colombians, 88 FR 43591 (July
10, 2023).
60 DHS announced a forthcoming family
reunification parole program for Ecuador on
October 18, 2023. DHS, DHS Announces Family
Reunification Parole Process for Ecuador (Oct. 18,
2023), https://www.uscis.gov/newsroom/newsreleases/dhs-announces-family-reunificationparole-process-for-ecuador (announcing that the
Federal Register notice for this process will be
published soon). As of October 27, 2023, the
program is not yet active.
61 Implementation of Changes to the Haitian
Family Reunification Parole Process, 88 FR 54635
(Aug. 11, 2023).
62 Implementation of Changes to the Cuban
Family Reunification Parole Process, 88 FR 54639
(Aug. 11, 2023).
63 See National Security Council, U.S. Strategy for
Addressing the Root Causes of Migration in Central
America, at 4 (Jul. 2021), https://
www.whitehouse.gov/wp-content/uploads/2021/07/
Root-Causes-Strategy.pdf (Poverty and economic
inequality, among other factors, contribute to
irregular migration). See also The White House,
Fact Sheet: Update on the U.S. Strategy for
Addressing the Root Causes of Migration in Central
America (Feb. 2023), https://www.whitehouse.gov/
briefing-room/statements-releases/2023/02/06/factsheet-update-on-the-u-s-strategy-for-addressing-theroot-causes-of-migration-in-central-america-2/
(economic challenges is one of the drivers of
irregular migration); Diana Roy and Amelia
Cheatham, Central America’s Turbulent Northern
Triangle (July 13, 2023), Council on Foreign
Relations, https://www.cfr.org/backgrounder/
central-americas-turbulent-northern-triangle
(‘‘Many interrelated factors drive people from the
Northern Triangle, including lack of economic
opportunity. . . .’’).
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address other drivers to irregular
migration.
Comment: A commenter stated that
the allocation of supplemental visas for
nationals of El Salvador, Guatemala,
Honduras, and Haiti was too high for H–
2B employers to take full advantage of
this set aside. The commenter stated
that visa processing times in those
countries cause employers to fear that
they will not be able to obtain H–2B
workers from these countries efficiently.
Response: The Departments disagree
that the 20,000 allocation for nationals
of El Salvador, Guatemala, Honduras,
and Haiti was too high. The
Departments have again decided to set
aside 20,000 supplemental visas for
nationals of certain countries and
believe all 20,000 visas will be utilized
in FY 2024 for the following reasons.
First, H–2B visa issuance growth data
for nationals of these countries for the
past several years supports the
Departments’ decision. Under the
dedicated allocations in prior TFRs, H–
2B visas were issued to 3,079 out of
6,000 authorized for nationals of
Northern Central America under the FY
2021 TFR; 9,886 out of 11,500
authorized for nationals of Northern
Central America and Haiti under the
two FY 2022 TFRs; and 16,713 out of
20,000 authorized for nationals of
Northern Central America and Haiti
under the FY 2023 TFR.64 These
numbers show a steady increase in
utilization over time. In addition, the
issuance of this rule early in the fiscal
year and the fact that this is the fourth
year that DHS will make a specific
allocation available for workers from the
Northern Central American countries
and Haiti, as well as the inclusion of
nationals from Colombia, Ecuador, and
Costa Rica, will increase the likelihood
that all 20,000 set-aside visas for FY
2024 will be used.
Comment: A commenter requested
including nationals of Ukraine in the
same priority allocation as nationals of
El Salvador, Guatemala, Honduras, and
Haiti.
Response: The Departments thank the
commenter but will decline this
suggestion. While DHS is committed to
providing support to Ukrainian
nationals, the allocation for Northern
Central American/Haitian nationals was
intended to support the administration’s
efforts to reduce irregular migration and
expand lawful pathways from across the
Western Hemisphere, and the
Departments are making a similar
64 See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data,
queried 10/2023, TRK 13122, H–2B Visa Issuance
Report September 30, 2023.
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separate allocation for nationals of
specified countries this year for the
same reasons. DHS continues to support
Ukrainian nationals through other
processes, such as Uniting for
Ukraine.65 The Departments further
note that, historically, Ukrainian
nationals have received relatively high
numbers of H–2B visas compared to
nationals of other countries.66 Including
Ukrainian nationals in the 20,000
allocation would take away from the
number of supplemental visas available
to help achieve the administration’s
overall goal of expanding lawful
pathways from the Americas.
Data Transparency
Comment: Several commenters
requested the Departments disclose
more data about the H–2B program.
Specifically, commenters requested that
DHS post ‘‘close to real time’’ data about
jobs for which employers are seeking H–
2B workers including the employer
name, wages and working conditions
and dates of need; provide more
information through the USCIS H–2B
Employer Data Hub including
information on cap-exempt petitions;
and provide additional information on
usage of the allocation for Northern
Central American and Haitian nationals,
including the number of visas that were
issued to nationals from each country,
as well as which industries, employers
and recruiters were involved. With
regard to suggestions for DOL,
commenters recommended enhancing
the seasonaljobs.gov website’s utility,
including by ensuring that workers
know in real time when an employer is
actively hiring.
Response: The Departments
appreciate these comments and note
that transparency and access to data and
65 USCIS, Uniting for Ukraine, https://
www.uscis.gov/ukraine; DHS, Fact Sheet: DHS
Efforts to Assist Ukrainian Nationals, https://
www.dhs.gov/news/2022/03/31/fact-sheet-dhsefforts-assist-ukrainian-nationals (last visited Oct.
31, 2023).
66 Ukraine was among the top ten H–2B visa
issuance countries in FY 2022 and among the top
five H–2B visa issuance countries in FY 2021 and
FY 2020. See USCIS, Characteristics of H–2B
Nonagricultural Temporary Workers Fiscal Year
2022 Report to Congress, https://www.uscis.gov/
sites/default/files/document/data/USCIS_H2B_
FY22_Characteristics_Report.pdf (Feb. 14, 2023)
(Ukrainian nationals were issued 1,085 H–2B visas
in FY22); Characteristics of H–2B Nonagricultural
Temporary Workers Fiscal Year 2021 Report to
Congress, https://www.uscis.gov/sites/default/files/
document/reports/H-2B-FY21-CharacteristicsReport.pdf (Mar. 10, 2022) (Ukrainian nationals
were issued 2,222 H–2B visas in FY21);
Characteristics of H–2B Nonagricultural Temporary
Workers Fiscal Year 2020 Report to Congress,
https://www.uscis.gov/sites/default/files/document/
reports/H-2B-FY20-Characteristics-Report.pdf (Feb.
22, 2021) (Ukrainian nationals were issued 1,585
H–2B visas in FY20).
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information continue to be among our
priorities.67 DHS/USCIS has sought to
increase transparency in employmentbased visa programs, including through
the USCIS H–2B Employer Data Hub
which provides detailed information on
H–2B petitions including employer
name, state, worksite state, industry,
occupation, and wage levels.68 Notably,
the goal of improving data transparency
is among the objectives included in a
recently published report by the H–2B
Worker Protection Taskforce.69
Specifically, one of the action items
described in the report is the leveraging
of existing data to increase transparency
and reduce the vulnerability of H–2B
and H–2A workers, including by
improving interagency data sharing;
improving publicly available data to
inform outreach and advocacy efforts,
including through new anonymized
quarterly data reports and on DHS’s H–
2B Data Hub; and by publishing
anonymized, aggregated data by gender,
sector, and occupation to provide an
additional transparency to the H–2
programs and aid efforts to prevent
gender discrimination.
In addition, USCIS included some
data about visas allocated under the FY
2022 allocation for nationals of
Northern Central American countries
and Haiti in its most recent report to
Congress (which is available to the
public) about characteristics of the H–
2B program.70 The Departments will
consider the suggestions provided by
these commenters as they seek to
improve clarity and transparency of data
for the public. However, the
Departments believe that many of the
67 USCIS, Annual Statistical Report FY 2022,
https://www.uscis.gov/sites/default/files/document/
reports/FY2022_Annual_Statistical_Report.pdf.
Since FY 2008, DOL continues to publish selected
statistical factsheets and individual TLC case record
data cumulated on a quarterly and annual basis
useful to a wide range of stakeholders and the
general public at https://www.dol.gov/agencies/eta/
foreign-labor/performance.
68 USCIS, H–2B Employer Data Hub, https://
www.uscis.gov/tools/reports-and-studies/h-2bemployer-data-hub (last visited Oct. 17, 2023). The
data in the H–2B Employer Data Hub comes from
fields on an employer’s Form I–129, from USCIS’
adjudicative decisions, and from the DOL H–2B
Application for Temporary Employment
Certification (Form ETA–9142B). USCIS,
Understanding our H–2B Employer Data Hub,
https://www.uscis.gov/tools/reports-and-studies/h2b-employer-data-hub/understanding-our-h-2bemployer-data-hub (last visited Oct. 17, 2023).
69 See The White House, Strengthening
Protections for H–2B Temporary Workers, Report of
the H–2B Worker Protection Taskforce, https://
www.whitehouse.gov/wp-content/uploads/2023/10/
Final-H-2B-Worker-Protection-Taskforce-Report.pdf
(Oct. 19, 2023).
70 USCIS, Characteristics of H–2B Nonagricultural
Temporary Workers Fiscal Year 2022 Report to
Congress, https://www.uscis.gov/sites/default/files/
document/data/USCIS_H2B_FY22_Characteristics_
Report.pdf (Feb. 14, 2023).
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suggestions, as well as other data
enhancements, can be accomplished
outside of the regulatory process.
Therefore, DHS declines to adopt these
suggestions as part of this temporary
final rule.
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Irreparable Harm Standard
Comment: Two commenters
expressed concerns related to the
irreparable harm standard as articulated.
One commenter stated that the standard
is unclear, overly burdensome, applied
inconsistently by the Departments, and
disruptive to business operations. The
commenter felt that, if the standard is
retained, the Departments should
provide clearer guidance on what
specific documents are required and
sufficient, and recommended that the
Departments issue step-by-step
instructions for participating in the
program to assist employers with
understanding their obligations and
reducing the risk of noncompliance.
Response: As discussed in greater
detail below, because the authority to
increase the statutory cap is tied to the
needs of businesses, the Departments
think it is reasonable for employers to
attest that they are suffering irreparable
harm or that they will suffer impending
irreparable harm without the ability to
employ all of the H–2B workers
requested on their petition and to retain
and be able to produce (upon request)
documentation of that harm as well as
a statement describing the harm and
explaining the relevance of the
documentation. The Departments also
think that the standard is sufficiently
clear to allow compliance, and that
listing out specific documents that must
be provided in each case is not an
appropriate approach. Each
determination of irreparable harm is
made on a case-by-case basis. This
inherently means that some
documentation presented in one case
may not be sufficient in another case
presenting a different set of facts. In
addition, not listing specific documents
provides more flexibility for employers
across occupations and industries to
provide documentation that is relevant
to their types of businesses.
Recruitment Requirements
Comment: One commenter stated that
the additional recruitment requirements
included in the TFR create an undue
burden for participating employers.
Specifically, the commenter stated that
the requirement to provide a copy of the
job notice to the AFL–CIO is
unnecessary, and ‘‘purely duplicative,
given the steps already required of
petitioners to recruit U.S. workers.’’ The
commenter also asserted that the
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requirement failed to acknowledge the
rate at which workers are unionized,
noting the low rate of unionization in
the residential construction industry,
and suggested that in some areas
alternative organizations—such as state
and local trade associations or
workforce boards—may be better
positioned to conduct recruitment
efforts in place of the AFL–CIO.
Response: As discussed in the FY
2023 TFR and below, while the
Departments recognize that the
recruitment requirements create some
burden on employers, the Departments
believe they are necessary to ensure that
the employer’s recruitment has not
become stale and that there are no U.S.
workers available for the relevant job
opportunity. The Departments reiterate
that the additional recruitment
requirements are only applicable if an
employer files their I–129 petition 30 or
more days after their certified start dates
of work. The Departments, as discussed
in the FY 2023 TFR and below, believe
that the requirement to provide a copy
of the job notice to the AFL–CIO is
complementary to, rather than
duplicative of, the other recruitment
requirements for several reasons. For
example, the Departments explained in
the prior TFR that the State Federations
of Labor and local unions to which
SWAs would circulate relevant job
orders, based on their knowledge of the
local labor market, are composed of
various union organizations and may
not always include the AFL–CIO. At the
same time, the requirement to contact
the AFL–CIO increases outreach to
qualified U.S. workers as H–2B job
opportunities in traditionally or
customarily unionized occupations tend
to fall within those industries most
likely to be organized or represented by
AFL–CIO member unions. See 87 FR
76816, 76844–45. The Departments
disagree that they have not taken the
rate of unionization into account as the
Departments previously provided, and
will continue to provide, a list of
occupations that they believe are
typically or customarily unionized. See,
e.g., 87 FR 76816, 76844 n.145 (noting
the occupations or industries listed are
ones in which the Department has
typically observed substantial union
presence). Finally, the Departments
agree that other organizations in
addition to the AFL–CIO are well
positioned to assist employers with
recruitment activities as demonstrated
by the requirement to post a new job
order with the SWA and to engage with
the local AJC to assist with recruitment.
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Attestation Form
Comment: One commenter stated that
the attestation form that is required ‘‘to
demonstrate irreparable harm’’ under
the TFR is ‘‘overly burdensome and may
discourage employer participation when
noncitizen workers are needed to
address labor shortages,’’ and urged the
Departments to exclude the attestation
form from subsequent rulemakings. The
commenter indicated the Departments
should recognize that a petitioner’s
investment of resources into seeking a
TLC and filing Form I–129 with
accompanying documentation shows
‘‘the implied need for H–2B workers.’’
Response: The Departments disagree
with this comment. The attestation form
contains information needed to
establish eligibility for supplemental H–
2B visas that is not captured on other
forms. It also contains information that
the Departments need to properly
administer the allocations under this
rule. For example, among other things,
the petitioner must indicate which
allocation they are requesting workers
under, attest that they are suffering or
will suffer impending irreparable harm
and indicate the types of evidence that
they have retained to demonstrate
irreparable harm. The Departments
believe that the additional attestation is
the least burdensome way to collect
information needed to establish
eligibility and to properly administer
the supplemental visa allocations. The
Departments also disagree that the
attestation form is overly burdensome as
DOL estimated that the total time
burden for the ETA–9142–B–CAA–7 is
1 hour.71 It is unlikely that an employer
would be discouraged from seeking H–
2B workers because of this 1 hour
burden, especially if the employer is
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ those workers.
Legal Issues
Comment: One commenter stated that
DHS violated the National
Environmental Policy Act (NEPA) by
failing to provide any analysis to justify
its assertion that adding up to 64,716
visas would not result in ‘‘meaningful,
calculable change in environment
effect,’’ or to justify its conclusion that
the FY 2023 TFR therefore fits within a
categorical exclusion.
Response: The Departments disagree
with the commenter regarding the
sufficiency of the NEPA analysis in the
FY 2023 TFR. As explained in the FY
71 The Departments are retaining the attestation
form requirement, and the total time burden for the
FY 2024 attestation form, ETA–9142–B–CAA–8,
remains 1 hour.
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2023 TFR, an additional 64,716 H–2B
nonimmigrant visas will not result in
any meaningful, calculable change in
environmental effect with respect to the
current H–2B limit or in the context of
a current U.S. population exceeding
331,893,745, which represents a
maximum temporary increase of 0.0195
percent. As further explained, the FY
2023 TFR is a stand-alone temporary
authorization and not a part of any
larger action and presents no
extraordinary circumstances creating
the potential for significant
environmental effects.
Comment: While a commenter agreed
with DHS that there was good cause to
immediately increase the cap, the
commenter opined that there was not
good cause for the other ‘‘ancillary
policy provisions,’’ particularly the
requirement to ‘‘affirmatively contact’’
the nearest AFL–CIO office and provide
written notice of the job order placed
with the SWA when the employment is
in a traditionally or customarily
unionized occupation or industry.
Accordingly, the commenter urged the
Departments to reissue the FY 2023 TFR
as two separate rules, a final rule to
release the supplemental visas and a
proposed rule that contains the other
provisions.
Response: The Departments maintain
there was good cause to couple the
release of supplemental visas with
additional provisions, such as the
additional recruitment requirements, in
a temporary final rule. The Departments
provided their rationale for the
recruitment requirements in the FY
2023 TFR 72 and articulated sufficient
good cause to forgo notice and comment
rulemaking for all aspects of the
temporary final rule. As indicated in the
FY 2023 temporary final rule, the
duration of the authorization to make
supplemental cap visas available,
combined with the urgent need of
American businesses for H–2B workers
did not provide sufficient time to
conduct pre-promulgation notice and
comment rulemaking on any aspect of
the TFRs, including additional
recruitment requirements.
Suggestions Outside the Departments’
Authority
Comment: Two commenters urged the
administration to consider an
‘‘Alternative Model for Labor
Migration’’ that would give workers in
the H–2B visa program, and more
72 Exercise of Time-Limited Authority To Increase
the Numerical Limitation for FY 2023 for the H–2B
Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 76816, 76842–47 (Dec.
15, 2022).
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broadly in all work visa programs, more
control over their visas by allowing
them to self-petition and be matched
with employers via a government
database, and would enable workers to
petition for citizenship. The
commenters set forth a detailed plan
regarding how the model would
function, including specific DOL and
USCIS procedures, and they provided
an analysis of the benefits of the
alternative model relative to the current
program.
The commenters asserted that the
supplemental cap TFR represents an
opportunity for the Departments to
‘‘partially implement’’ the model
described. Specifically, the commenters
suggested that the Departments could
implement a lottery open to all
returning workers by which they could
apply to be assigned a priority ranking.
Employers approved through the TLC
and petition processes would be
required to post the number of open H–
2B positions and procedures for
applying publicly on
seasonaljobs.dol.gov, and any returning
H–2B worker would be eligible to apply
directly to the employer or the
employer’s designated agent. If the
applications from returning H–2B
workers exceeded the vacancies,
workers’ priority would be based on
their assigned lottery rank.
Response: As implicitly
acknowledged by the commenters in
their suggestions that the proposed
model could be ‘‘partially’’
implemented by regulation, many
aspects of the commenters’ proposed
‘‘Alternative Model for Labor
Migration,’’ such as enabling workers to
self-petition and to pursue citizenship,
are clearly outside the Departments
authority under the current statutory
scheme. It is unclear whether the
Departments have authority to
otherwise ‘‘partially implement’’ the
model as suggested. Regardless, even
assuming such authority, the
Departments note that the proposal
would not be feasible in the context of
a temporary and time-limited statutory
authority and rule such as the current
TFR, due to the level of changes to
existing processes and the development
of new systems and processes that
would be required for implementation.
Broader Program Reforms
Some commenters made suggestions
for broader program reforms that would
require Congressional action. For
example, commenters made suggestions
relating to permanently increasing the
H–2B annual statutory cap, exempting
certain workers from that cap, and
increasing funding for DOL’s H–2B
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80405
enforcement. However, the Departments
decline to further detail and respond to
these comments, as the
recommendations are all outside of the
Departments’ authority to accomplish.
In addition to the issues discussed
above, the public comments included
numerous suggestions for the
Departments to make permanent
changes to the H–2B program, with
several commenters expressing that the
Departments should not exercise their
authority to increase the number of H–
2B visas unless and until the program is
more broadly reformed. The
recommendations for permanent
program reforms included suggestions
for both DHS and DOL regarding ways
to increase protections for both foreign
and U.S. workers, and to improve the
overall integrity and efficiency of the
program. Specifically, commenters
suggested that one or both Departments
should implement the following
changes to the H–2B program before or
instead of authorizing supplemental
visas:
• Provide a grace period with
employment authorization so workers
can leave employers for any reason;
• Notify beneficiaries about their own
immigration status;
• Provide workers access to
information about their rights and about
available resources to enforce those
rights;
• Improve access to deferred action
for H–2 workers who experience or
witness labor rights violations,
including an expedited process for
issuance of statements of interest from
government entities;
• Fully implement the existing
provision at 8 CFR 214.2(h)(17)(iii) to
protect workers who leave abusive
employers from accruing unlawful
presence;
• Do more to prevent discrimination
and discriminatory hiring practices in
the H–2B program;
• Collect and release more and better
data about the H–2B program; 73
• Provide increased real-time
information about available job
opportunities;
• Require employers to give priority
to anyone in the U.S. with employment
authorization (including ‘‘individuals
with unexpired valid H–2B visas’’) for
any open unfilled position for which an
employer sought or obtained H–2B labor
certification;
• Prioritize petitions for industries
with the lowest unemployment rate(s)
instead of using a lottery system;
73 See above comment and response under the
heading ‘‘Data Transparency’’ for further discussion
on this topic.
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• Allocate visas to employers who
pay the highest wages instead of using
a random lottery system;
• Do not issue H–2B visas to
employers who are engaged in labor
disputes, and only issue visas to direct
employers and end outsourcing and
labor contractors; 74
• Grant work authorization to spouses
of H–2 nonimmigrants;
• Impose greater employer
accountability for actions of contractors,
recruiters, and agents;
• Seek ways to enforce the ban on
recruitment fees without penalizing
workers;
• Allow H–2B workers to pursue
permanent labor certification or ‘‘other
applications for permanent residence;’’
• Prohibit the imposition of
unnecessary requirements for entrylevel positions;
• Improve health and safety standards
at H–2B workplaces;
• Require employers to undertake
both local and national recruitment
efforts before looking abroad;
• Require employers to pay for
housing and daily transportation to and
from the worksite for both U.S. and H–
2B workers;
• Require full contract compliance,
including all hours promised;
• Cease issuance of H–2B labor
certifications for work in certain areas,
such as ‘‘labor surplus areas or
occupations’’ or ‘‘high unemployment
regions and industries;’’
• Create a streamlined process for
reporting program violations;
• Create an avenue for stakeholders,
including U.S. workers, to raise
concerns about job orders and labor
certifications;
• Reinstate the Interagency Working
Group for the Consistent Enforcement of
Federal Labor, Employment and
Immigration Laws to strengthen
deconfliction efforts between key
agencies and support affirmative
protections for immigrant and
nonimmigrant workers;
• Create a civil society advisory group
to promote decent work in the Central
American regional strategy;
• Update the H–2B prevailing wage
methodology in various ways;
• Implement the additional U.S.
recruitment requirements;
• Improve language access for
workers;
• Keep job postings active until all
positions are actually filled, and require
employers to update the job postings
with new information;
74 These recommendations were specifically for
USCIS, however, the Departments note that visas
are issued by the Department of State.
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• Keep labor violators out of the
program, including by creating an
employer screening and/or registration
program;
• Establish a formal registration
process for international recruiters, as
well as U.S. agents;
• Require employers to disclose every
person authorized to engage in
recruitment on their behalf;
• Work with Department of State to
enhance consulates’ H–2B job
verification services by verifying
recruiters associated with the job order;
• Increase enforcement in various
ways, such as by debarring all recruiters
that engage in any prohibited practice,
creating stiffer penalties for employer
violations, and/or instituting processing
fees at sufficient levels to fund robust
enforcement;
• Change the visa allocation
procedures for the statutory 66,000 cap,
including allocation in 4 different
increments, and using less than 33,000
visas during the first half of the fiscal
year;
• Modify the current process for
randomizing H–2B TLC applications in
such a manner as to give H–2B
employers opportunities to participate
without regard to the date specified as
the first date for employment;
• Reduce the period a worker is
required to be outside the United States
following 3 years in H–2B status to 60
days;
• Provide notice of seasonal job
openings to unions representing
workers in relevant occupations so that
they may dispatch members in
response;
• Limit the duration of H–2B eligible
job orders to 7 months;
• Cap at 100 the number of visas that
any single employer can receive;
The permanent changes to the H–2B
program that commenters have
suggested are not appropriate for
inclusion in a rule of temporary
duration such as the current TFR, and
the Departments therefore decline to
discuss each of these suggestions with
further specificity. The Departments
appreciate the thoughtful
recommendations for permanent
program reforms, however, and note
that they are actively engaged in reform
efforts outside of this rulemaking,
including efforts to address some of the
issues discussed in the suggestions.
Notably, on September 20, 2023, DHS
published a notice of proposed
rulemaking (NPRM) to modernize and
improve both the H–2B and H–2A
programs by providing greater flexibility
and protections for participating
workers, and improving the program’s
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efficiency.75 The NPRM contains
discussions and proposals related to
some of the reform concepts included in
the commenters’ suggestions including,
for example, providing grace periods
during which an H–2 worker can leave
work to seek new employment, ensuring
greater accountability for employers and
recruiters with past violations, reducing
the required amount of time to be spent
outside the United States after reaching
3 years in H–2B status, and allowing
workers to take steps toward permanent
residence without violating their
nonimmigrant status on that basis. DHS
is currently accepting public comments
specific to the NPRM through November
20, 2023, and will consider all such
comments in developing a subsequent
final rule. In addition, both Departments
are involved in an H–2B Worker
Protection Taskforce, convened by the
White House, which focuses on threats
to H–2B program integrity, H–2B
workers’ fundamental vulnerabilities,
and the impermissible use of the
program to avoid hiring U.S. workers.76
On October 19, 2023, the H–2B Worker
Protection Taskforce published a report
announcing new actions to be taken by
four federal agencies—DHS, DOL, DOS,
and the U.S. Agency for International
Development (USAID)— to strengthen
protections for vulnerable workers.77
With regard to commenters’ specific
recommendation that the Departments
decline to provide supplemental H–2B
visas unless and until the program is
broadly reformed, the Departments
disagree with that recommendation.
While permanent reforms to the relevant
DHS regulations are being considered
outside of this rulemaking as noted
above, the Departments have
determined, as discussed in greater
detail below, that an increase in H–2B
visas for businesses facing irreparable
harm is warranted and justified under
the authority provided in section 303 of
the FY 2023 Omnibus, as extended by
Public Law 118–15.
75 Modernizing H–2 Program Requirements,
Oversight, and Worker Protections, 88 FR 65040
(Sep. 20, 2023).
76 See DHS, DHS to Supplement H–2B Cap with
Nearly 65,000 Additional Visas for Fiscal Year 2023
(Oct. 12, 2022), https://www.dhs.gov/news/2022/10/
12/dhs-supplement-h-2b-cap-nearly-65000additional-visas-fiscal-year-2023 (announcing the
creation of the H–2B Worker Protection Taskforce).
77 See The White House, Strengthening
Protections for H–2B Temporary Workers, Report of
the H–2B Worker Protection Taskforce, https://
www.whitehouse.gov/wp-content/uploads/2023/10/
Final-H-2B-Worker-Protection-Taskforce-Report.pdf
(Oct. 19, 2023).
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III. Discussion
A. Statutory Determination
Following consultation with the
Secretary of Labor, the Secretary of
Homeland Security has determined that
some U.S. employers cannot satisfy
their needs in FY 2024 with U.S.
workers who are willing, qualified, and
able to perform temporary
nonagricultural labor. In accordance
with the FY 2024 continuing resolution
extending the authority provided in
section 303 of the FY 2023 Omnibus,
the Secretary of Homeland Security has
determined that it is appropriate, for the
reasons stated below, to raise the
numerical limitation on H–2B
nonimmigrant visas through the end of
FY 2024 by up to 64,716 additional
visas for those American businesses that
attest that they are suffering irreparable
harm or will suffer impending
irreparable harm, in other words, a
permanent and severe financial loss,
without the ability to employ all of the
H–2B workers requested on their
petition. These businesses must retain
documentation, as described below,
supporting this attestation.
As in connection with the FY 2021,
FY 2022, and FY 2023 H–2B
supplemental visa temporary final rules,
and consistent with existing authority,
DHS and DOL intend to conduct a
significant number of audits with
respect to petitions filed under this TFR
requesting supplemental H–2B visas
during the period of temporary need.
The Departments will use their
discretion to select which petitions to
audit, and the Departments will use the
audits to verify compliance with H–2B
program requirements, including the
irreparable harm standard as well as
other key worker protection provisions
implemented through this rule. If the
Departments find that an employer’s
documentation does not meet the
irreparable harm standard, or that the
employer fails to provide evidence
demonstrating irreparable harm or
comply with the audit process, the
Departments may consider it to be a
substantial violation resulting in an
adverse agency action against the
employer, including revocation of the
petition and/or TLC or program
debarment. Of the audits completed so
far, some audits conducted of employers
that received visas under the
supplemental caps in FY 2021, FY 2022,
and FY 2023 revealed concerns
surrounding payment of the promised
wage, employment of returning workers,
documentation of irreparable harm, and
employment at the listed location,
which may warrant further review and
action.
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As he did in FY 2021, FY 2022, and
FY 2023, the Secretary of Homeland
Security has also again determined,
following consultation with the
Secretary of Labor, that for certain
employers, additional recruitment steps
are necessary to confirm that there are
no qualified U.S. workers available for
the positions. In addition, the Secretary
of Homeland Security has determined,
following consultation with the
Secretary of Labor, that the
supplemental visas will be limited to
returning workers, with the exception
that up to 20,000 of the 64,716 visas will
be exempt from the returning worker
requirement and will be reserved for H–
2B workers who are nationals of El
Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica.78
DHS is reserving these 20,000 H–2B
visas for nationals of these countries to
further the United States’ objectives in
the Western Hemisphere to manage
irregular migration through various
lines of efforts including increasing and
expanding access to lawful pathways for
nationals of countries that have
extensively collaborated with the
United States on migration issues, such
as through endorsing the Los Angeles
Declaration on Migration and Protection
(L.A. Declaration),79 joining the United
States to ramp up efforts to address the
irregular migration flows through the
Darien,80 and hosting Safe Mobility
Offices so that migrants do not trek
north to the U.S. Southwest Border.81
78 These conditions and limitations are not
inconsistent with sections 214(g)(3) (‘‘first in, first
out’’ H–2B processing) and (g)(10) (fiscal year H–
2B allocations) because noncitizens covered by the
special allocation under section 303 of the FY 2023
Omnibus are not ‘‘subject to the numerical
limitations of [section 214(g)(1)].’’ See, e.g., INA
section 214(g)(3); INA section 214(g)(10);
Continuing Appropriations Act, 2024, div. A, sec.
101(6) (extending the authority provided in FY
2023 Omnibus div. O, sec. 303 (‘‘Notwithstanding
the numerical limitation set forth in section
214(g)(1)(B) of the [INA] . . . .’’)).
79 The White House, Los Angeles Declaration on
Migration and Protection, June 10, 2022, https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/.
80 Trilateral Joint Statement, April 11, 2023,
https://www.dhs.gov/news/2023/04/11/trilateraljoint-statement.
81 The White House, Joint Statement from the
United States and Guatemala on Migration (June 1,
2023), https://www.whitehouse.gov/briefing-room/
statements-releases/2023/06/01/joint-statementfrom-the-united-states-and-guatemala-onmigration/; United States Department of State, U.S.Colombia Joint Commitment to Address the
Hemispheric Challenge of Irregular Migration (June
4, 2023), https://www.state.gov/u-s-colombia-jointcommitment-to-address-the-hemispheric-challengeof-irregular-migration/; The White House, Readout
of Principal Deputy National Security Advisor Jon
Finer’s Meeting with Colombian Foreign Minister
Alvaro Leyva (June 11, 2023), https://
www.whitehouse.gov/briefing-room/statements-
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The 20,000 set-aside will also deliver on
the objectives of E.O. 14010, which,
among other initiatives, instructs the
Secretary of Homeland Security and the
Secretary of State to implement
measures to enhance access to visa
programs for nationals of the Northern
Central American countries.82 DHS is
also allocating these visas to specific
countries to further promote
development and economic stability of
these countries to reduce irregular
migration throughout the Western
Hemisphere.83
DHS observed robust employer
interest in response to the FY 2021 H–
2B supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran
nationals and the FY 2022 and FY 2023
supplemental visa allocations for
Salvadoran, Guatemalan, Honduran,
and Haitian nationals, with USCIS
releases/2023/06/11/readout-of-principal-deputynational-security-advisor-jon-finers-meeting-withcolombian-foreign-minister-alvaro-leyva/; United
States Department of State, U.S.-Costa Rica Joint
Commitment to Address the Hemispheric Challenge
of Irregular Migration (June 12, 2023), https://
www.state.gov/u-s-costa-rica-joint-commitment-toaddress-the-hemispheric-challenge-of-irregularmigration/; United States Department of State,
Announcement of Safe Mobility Office in Ecuador
(October 19, 2023), https://www.state.gov/
announcement-of-safe-mobility-office-in-ecuador/
#:∼:text=The%20United%20States%20
is%20pleased,authorized%20
channels%20of%20lawful%20migration.
82 See Section 3(c) of E.O. 14010, Creating a
Comprehensive Regional Framework To Address
the Causes of Migration, To Manage Migration
Throughout North and Central America, and To
Provide Safe and Orderly Processing of Asylum
Seekers at the United States Border, signed
February 2, 2021, https://www.govinfo.gov/content/
pkg/FR-2021-02-05/pdf/2021-02561.pdf. E.O. 14010
referred to the three countries of El Salvador,
Guatemala, and Honduras as the ‘‘Northern
Triangle,’’ but this rule refers to these countries
collectively as the Northern Central American
countries.
83 See https://twitter.com/DHSgov/status/
1580310211931144194?ref_src=twsrc%5Etfw (this
supplemental allocation to workers from Haiti,
Honduras, Guatemala, and El Salvador ‘‘advances
the Biden Administration’s pledge, under the L.A.
Declaration to expand legal pathways as an
alternative to irregular migration’’); The White
House, Fact Sheet: The Los Angeles Declaration on
Migration and Protection U.S, Government and
Foreign Partner Deliverables, https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-and-foreign-partner-deliverables/
(addressing several measures, including the H–2B
allocation for nationals of Haiti, as part of ‘‘the
President’s commitment to support the people of
Haiti.’’). We also note Congress’ recent statement, in
a provision within the FY 2022 Omnibus, that it is
the policy of the United States to support the
sustainable rebuilding and development of Haiti.
See Section 102 of Division V of the Consolidated
Appropriations Act, 2022, Public Law 117–103. See
also DHS, Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H–2A
and H–2B Nonimmigrant Worker Programs, 86 FR
62562 (Nov. 10, 2021) (sustainable development
and the stability of Haiti is vital to the interests of
the United States as a close partner and neighbor).
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approving petitions on behalf of 6,805
beneficiaries under the FY 2021
allocation,84 3,231 beneficiaries under
the FY 2022 first half supplemental
allocation,85 12,318 beneficiaries for the
second half of the fiscal year FY 2022,
and 23,832 beneficiaries under the FY
2023 allocation.86 In addition, DHS and
the Biden administration have
continued to conduct outreach efforts
promoting the H–2B program as, among
other things, a lawful pathway for
nationals of El Salvador, Guatemala,
Honduras, and Haiti to work in the
United States.87
DHS will not accept and will reject
petitions submitted for the countryspecific allocation with a date of need
on or after April 1, 2024 that are
received earlier than 15 days after the
INA section 214(g) cap for the second
half of FY 2024 is met or are received
84 While USCIS approved a greater number of
beneficiaries from the Northern Central American
countries than the 6,000 visas allocated under the
FY 2021 supplemental cap for those countries, the
Department of State issued 3,079 visas to nationals
from those countries. See DHS, USCIS, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data, queried 10/2023, TRK 13122,
H–2B Visa Issuance Report September 30, 2023.
This discrepancy can be attributed to adverse
impacts on consular processing caused by the
COVID–19 pandemic, travel restrictions, as well as
lack of readily available processes to efficiently
match workers from Northern Central American
countries with U.S. recruiters/employers on an
expedited timeline.
85 See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data,
queried 10/2023, TRK 13122, H–2B Visa Issuance
Report September 30, 2023.
86 See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data,
queried 10/2023, TRK 13122, H–2B Visa Issuance
Report September 30, 2023. While USCIS approved
a greater number of beneficiaries from the Northern
Central American countries and Haiti than the
11,500 visas allocated under the FY 2022 second
half supplemental cap for those countries, the
Department of State issued approximately 7,405
visas to nationals from those countries. Similarly,
while USCIS approved a greater number of
beneficiaries from the Northern Central American
countries and Haiti than the 20,000 visas allocated
under the FY 2023 supplemental cap for those
countries, the Department of State issued
approximately 16,713 visas to nationals from those
countries. DHS anticipates that the issuance of this
rule early in the fiscal year, the fact that this is the
fourth year that DHS will make a specific allocation
available for workers from the Northern Central
American countries, as well as the inclusion of
nationals from several additional countries, will
contribute to even greater utilization of available
visas under this allocation during FY 2024.
87 See, e.g., USAID, Administrator Samantha
Power at the Summit of the Americas Fair
Recruitment and H–2 Visa Side Event, https://
www.usaid.gov/news-information/speeches/jun-9–
2022-administrator-samantha-power-summitamericas-fair-recruitment-and-h-2-visa (June 9,
2022) (‘‘Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the
Foreign Ministry in El Salvador] . . . resulted in a
record number of H–2 visas issued in 2021,
including a nearly forty percent increase over the
pre-pandemic levels in H–2B visas issued across all
three countries.’’).
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after the applicable numerical limitation
has been reached or after September 16,
2024. Requiring petitioners to wait to
submit H–2B supplemental cap
petitions with start dates of need on or
after April 1, 2024 is consistent with the
supplemental cap authority in section
303, as extended to FY 2024 by Public
Law 118–15, Continuing Appropriations
Act, 2023 and Other Extensions Act,
and will facilitate the orderly intake and
processing of supplemental cap
petitions for the country-specific
allocation. As discussed above, similar
limitations apply to the intake and
processing of returning worker petitions
with start dates of need on or after April
1, 2024.
Similar to the previous temporary
final rules for the FY 2019, FY 2021, FY
2022, and FY 2023 supplemental caps,
the Secretary of Homeland Security has
also determined to limit the
supplemental visas to H–2B returning
workers,88 unless the employer
indicates on the new attestation form
that it is requesting workers who are
nationals of one of the specified
countries and who are therefore counted
towards the 20,000 country-specific
allocation regardless of whether they are
new or returning workers. If the 20,000
country-specific allocation is reached
and visas remain available under the
returning worker cap, USCIS would
reject a petition seeking workers under
the 20,000 allocation and return any
fees submitted to the petitioner. In such
a case, a petitioner may continue to
request workers who are nationals of
one of these countries, but the petitioner
must file a new Form I–129 petition,
with fee, and attest that these
noncitizens will be returning workers,
in other words, workers who were
issued H–2B visas or were otherwise
granted H–2B status in FY 2021, 2022,
or 2023.89 Like the temporary final rules
for the first half and for the second half
of FY 2022 and FY 2023, if the 20,000
returning worker exemption cap for
specific nationals remains unfilled, DHS
will not make unfilled visas reserved for
these nationals available to the general
88 For purposes of this rule, these returning
workers could have been H–2B cap exempt or
extended H–2B status in FY 2021, 2022, or 2023.
Additionally they may have been previously
counted against the annual H–2B cap of 66,000
visas during FY 2021, 2022, or 2023, or the
supplemental caps in FY 2021, 2022, or 2023.
89 The returning worker allocations are for
workers who were issued H–2B visas or held H–2B
status in fiscal years 2021, 2022, or 2023, regardless
of country of nationality. Therefore, a petitioner
may choose to petition for Salvadoran, Guatemalan,
Honduran, Haitian, Colombian, Ecuadorian, or
Costa Rican nationals who meet this requirement
under an available returning worker allocation,
regardless of whether the separate 20,000 allocation
for these nationals has been reached.
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returning worker cap. The DHS decision
not to make available unfilled visas
from the country-specific allocation to
the general supplemental cap for
returning workers is consistent with the
administration’s goal of providing a
lawful pathway for such nationals to
temporarily work in the United States.
To that end, not permitting rollover into
the returning worker allocation provides
employers with more time to petition
for, and bring in, workers from these
countries and encourages full use of the
20,000 country-specific allocation to
meet employer needs. This, in turn,
contributes to our country’s efforts to
promote and improve safety, security
and economic stability in these
countries to help stem the flow of
irregular migration to the United States.
The Secretary of Homeland Security’s
determination to increase the numerical
limitation is based, in part, on the
conclusion that some businesses are
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ all of the H–2B
workers requested on their petition. In
recent years, members of Congress have
informed the Secretaries of Homeland
Security and Labor about the needs of
some U.S. businesses for H–2B workers
(after the statutory cap for the relevant
half of the fiscal year has been reached)
and about the potentially negative
impact on state and local economies if
the cap is not increased.90 U.S.
businesses, chambers of commerce,
employer organizations, and state and
local elected officials have also
expressed concerns in recent years to
the DHS and Labor Secretaries regarding
the unavailability of H–2B visas after
the statutory cap was reached.91 In
addition, several commenters on the FY
2023 TFR supported the Departments’
decision to publish one rule covering
the entire fiscal year for 2023, and urged
the Departments to once again publish
one rule covering the entire fiscal year
for 2024 in order to save time in the
second half of the fiscal year, conserve
limited agency resources, and reduce
uncertainty for employers.92
After considering the full range of
evidence and diverse points of view, the
Secretary of Homeland Security has
deemed it appropriate to take action to
prevent further severe and permanent
financial loss for those employers
currently suffering irreparable harm and
to avoid impending irreparable harm for
other employers unable to obtain H–2B
90 See the docket for this rulemaking for access to
these letters.
91 See the docket for this rulemaking for access to
these letters.
92 See the docket for this rulemaking for access to
these comments.
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workers under the statutory cap,
including potential wage and job losses
by their U.S. workers, as well as other
adverse downstream economic effects.93
At the same time, the Secretary of
Homeland Security believes it is
appropriate to condition receipt of
supplemental visas on adherence to
additional worker protections, as
discussed below.
The decision to afford the benefits of
this temporary cap increase to U.S.
businesses that need H–2B workers
because they are suffering irreparable
harm already or will suffer impending
irreparable harm, and that will comply
with additional worker protections,
rather than applying the cap increase to
any and all businesses seeking
temporary workers, is consistent with
DHS’s time-limited authority to increase
the cap, as explained below. The
Secretary of Homeland Security, in
implementing section 303, as extended
by Public Law 118–15, and determining
the scope of any such increase, has
broad discretion, following consultation
with the Secretary of Labor, to identify
the business needs that are most
relevant, while bearing in mind the
need to protect U.S. workers. Within
that context, for the below reasons, the
Secretary of Homeland Security has
determined to allow an overall increase
of up to 64,716 additional visas solely
for the businesses facing permanent,
severe financial loss or those who will
face such loss in the near future.
First, DHS interprets the reference to
‘‘the needs of American businesses’’ in
section 303, as extended by Public Law
118–15, as describing a need different
from the need ordinarily required of
employers in petitioning for an H–2B
worker. Under the generally applicable
H–2B program, each individual H–2B
employer must demonstrate that it has
a temporary need for the services or
labor for which it seeks to hire H–2B
workers. See 8 CFR 214.2(h)(6)(ii); 20
CFR 655.6. The use of the phrase ‘‘needs
of American businesses,’’ which is not
found in INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations
governing the standard H–2B cap,
authorizes the Secretary of Homeland
Security in allocating additional H–2B
93 See, e.g., Impacts of the H–2B Visa Program for
Seasonal Workers on Maryland’s Seafood Industry
and Economy, Maryland Department of Agriculture
Seafood Marketing Program and Chesapeake Bay
Seafood Industry Association (March 2, 2020),
available at https://mda.maryland.gov/documents/
2020–H2B-Impact-Study.pdf (last visited Sept. 29,
2023); Hospitality Employment Rose in May, But
Hoteliers Report Lingering Labor Woes, Hotel Dive
(Jun. 7, 2023), https://www.hoteldive.com/news/
hotel-employment-labor-shortage-increased-wage/
652308/(last visited Oct. 2, 2023).
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visas under section 303, as extended by
Public Law 118–15, to require that
employers establish a need above and
beyond the normal standard under the
H–2B program, that is, an inability to
find sufficient qualified U.S. workers
willing and available to perform
temporary services or labor and that the
employment of the H–2B worker will
not adversely affect the wages and
working conditions of U.S. workers, see
8 CFR 214.2(h)(6)(i)(A). DOL concurs
with this interpretation. Accordingly,
the Secretaries have determined that it
is appropriate, within the limits
discussed below, to tailor the
availability of this temporary cap
increase to those businesses that are
suffering irreparable harm or will suffer
impending irreparable harm, in other
words, those facing permanent and
severe financial loss.
Second, the approach set forth in this
rule, which is similar to the
implementation of the supplemental
caps in previous fiscal years, provides
protections against adverse effects on
U.S. workers that may result from a cap
increase, including, as in previous rules,
requiring employers seeking H–2B
workers under the supplemental cap to
engage in additional recruitment efforts
for U.S. workers.
In sum, this rule increases the
numerical limitation by up to 64,716
additional H–2B visas for the entirety of
FY 2024, but also restricts the
availability of those additional visas by
prioritizing only the most significant
business needs, and limiting eligibility
to H–2B returning workers, unless the
worker is a national of one of the
countries included in the 20,000
country-specific allocation that is
exempt from the returning worker
limitation. This rule also distributes the
supplemental visas in several
allocations to assist U.S. businesses that
need workers to begin work on different
start dates. These provisions are each
described in turn below.
B. Numerical Increase and Allocations
for Fiscal Year 2024
Making the Maximum Number of Visas
Available
The increase of up to 64,716 visas will
help address the urgent needs of eligible
employers for additional H–2B workers
for those employers with employment
needs in fiscal year 2024.94 The
94 In contrast with section 214(g)(1) of the INA,
8 U.S.C. 1184(g)(1), which establishes a cap on the
number of individuals who may be issued visas or
otherwise provided H–2B status (emphasis added),
and section 214(g)(10) of the INA, 8 U.S.C.
1184(g)(10), which imposes a first half of the fiscal
year cap on H–2B issuance with respect to the
number of individuals who may be issued visas or
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80409
determination to allow up to 64,716
additional H–2B visas reflects a
balancing of a number of factors
including: the demand for H–2B visas
during the first half of FY 2024 and
expected demand for the second half of
FY 2024; current labor market
conditions; the general trend of
increased demand for H–2B visas from
FY 2017 to FY 2023; H–2B returning
worker data; the amount of time for
employers to hire and obtain H–2B
workers in this fiscal year; and the
objectives of E.O. 14010 and the L.A.
Declaration. DHS believes the numerical
increase both addresses the needs of
U.S. businesses and, as explained in
more detail below, furthers the foreign
policy interests of the United States.
Section 303 of the FY 2023 Omnibus,
as extended by Public Law 118–15, sets
the highest number of H–2B returning
workers who were exempt from the cap
in certain previous years as the
maximum limit for any increase in the
H–2B numerical limitation for FY
2024.95 Consistent with the statute’s
reference to H–2B returning workers, in
determining the appropriate number by
which to increase the H–2B numerical
limitation, the Secretary of Homeland
Security focused on the number of visas
allocated to such workers in years in
which Congress enacted returning
worker exemptions from the H–2B
numerical limitation. During each of the
years the returning worker provision
was in force, U.S. employers’ standard
business needs for H–2B workers
exceeded the statutory 66,000 cap. The
highest number of H–2B returning
workers approved was 64,716 in FY
2007. In setting the number of
are accorded [H–2B] status’’ (emphasis added),
section 303 only authorizes DHS to increase the
number of available H–2B visas. Accordingly, DHS
will not permit individuals authorized for H–2B
status pursuant to an H–2B petition approved under
section 303 to change to H–2B status from another
nonimmigrant status. See INA section 248, 8 U.S.C.
1258; see also 8 CFR part 248. If a petitioner files
a petition seeking H–2B workers in accordance with
this rule and requests a change of status on behalf
of someone in the United States, the change of
status request will be denied, but the petition will
be adjudicated in accordance with applicable DHS
regulations. Any noncitizen authorized for H–2B
status under the approved petition would need to
obtain the necessary H–2B visa at a consular post
abroad and then seek admission to the United
States in H–2B status at a port of entry.
95 During fiscal years 2005 to 2007, and 2016,
Congress enacted ‘‘returning worker’’ exemptions to
the H–2B visa cap, allowing workers who were
counted against the H–2B cap in one of the three
preceding fiscal years not to be counted against the
upcoming fiscal year cap. Save Our Small and
Seasonal Businesses Act of 2005, Public Law 109–
13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109–364,
Sec. 1074 (Oct. 17, 2006); Consolidated
Appropriations Act of 2016, Public Law 114–113,
Sec. 565 (Dec. 18, 2015).
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additional H–2B visas to be made
available for FY 2024, DHS considered
this number, overall indications of
increased need, and the availability of
U.S. workers, as discussed below. On
the basis of these considerations, DHS
determined that it is appropriate to
make available up to 64,716 additional
visas, which is the maximum allowed,
under the FY 2024 supplemental cap
authority. The Secretary further
considered the objectives of E.O. 14010
and the L.A. Declaration, both of which
focus in part on addressing the root
causes of irregular migration and
managing migration through lawful
pathways. Accordingly, the Secretary
determined that it is appropriate to
reserve up to 20,000 of the up to 64,716
additional visas and exempt this
number from the returning worker
requirement for nationals of El Salvador,
Guatemala, Honduras, Haiti, Colombia,
Ecuador, or Costa Rica.
In past years, the number of
beneficiaries covered by H–2B petitions
filed exceeded the number of additional
visas allocated under recent
supplemental caps. In FY 2018, USCIS
received petitions for approximately
29,000 beneficiaries during the first 5
business days of filing for the 15,000
supplemental cap. USCIS therefore
conducted a lottery on June 7, 2018, to
randomly select petitions that it would
accept under the supplemental cap. Of
the selected petitions, USCIS issued
approvals for 15,672 beneficiaries.96 In
FY 2019, USCIS received sufficient
petitions for the 30,000 supplemental
cap on June 5, 2019, but did not conduct
a lottery to randomly select petitions
that it would accept under the
supplemental cap. Of the petitions
received, USCIS issued approvals for
32,717 beneficiaries. In FY 2021, USCIS
received a sufficient number of petitions
for the 22,000 supplemental cap on
August 13, 2021, including a significant
number for workers from Northern
Central American countries.97 Of the
96 USCIS recognizes it may have received
petitions for more than 29,000 supplemental H–2B
workers if the cap had not been exceeded within
the first 5 days of opening. However, DHS estimates
that not all of the 29,000 workers requested under
the FY 2018 supplemental cap would have been
approved and/or issued visas. For instance,
although DHS approved petitions for 15,672
beneficiaries under the FY 2018 cap increase, the
Department of State data shows that as of January
15, 2019, it issued only 12,243 visas under that cap
increase. Similarly, DHS approved petitions for
12,294 beneficiaries under the FY 2017 cap
increase, but the Department of State data shows
that it issued only 9,160 visas.
97 On June 3, 2021, USCIS announced that it had
received enough petitions to reach the cap for the
additional 16,000 H–2B visas made available for
returning workers only, but that it would continue
accepting petitions for the additional 6,000 visas
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petitions received, USCIS issued
approvals for 30,707 beneficiaries,
including approvals for 6,805
beneficiaries under the allocation for the
nationals of the Northern Central
American countries.98
In FY 2022, DHS made the
supplemental cap available twice, once
in January 2022 and again in May 2022.
Under the earlier FY 2022 supplemental
cap for petitions with start dates in the
first half of FY 2022, USCIS had issued
approvals for 17,381 beneficiaries,
including approvals for 3,231
beneficiaries under the allocation for
nationals of the Northern Central
American countries and Haiti.99 For the
second half of FY 2022, within the first
five business days of filing, USCIS
received petitions for more beneficiaries
than the additional 23,500 supplemental
visas made available for returning
workers, thus necessitating a random
selection of petitions to meet the
returning worker allotment.100 Of the
petitions received for the second half of
FY 2022, USCIS issued approvals for
43,798 beneficiaries, including
approvals for 12,318 beneficiaries under
the allocation for nationals of the
Northern Central American countries
and Haiti.101
allotted for nationals of the Northern Central
American countries. See USCIS, Cap Reached for
Additional Returning Worker H–2B Visas for FY
2021, https://www.uscis.gov/news/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-fy-2021 (Jun. 3, 2021). On July 23, 2021, USCIS
announced that, because it did not receive enough
petitions to reach the allocation for the Northern
Central American countries by the July 8 filing
deadline, the remaining visas were available to H–
2B returning workers regardless of their country of
origin. See USCIS, Employers May File H–2B
Petitions for Returning Workers for FY 2021,
https://www.uscis.gov/news/alerts/employers-mayfile-h-2b-petitions-for-returning-workers-for-fy-2021
(Jul. 23, 2021).
98 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2023, TRK 13122.
The number of approved workers exceeded the
number of additional visas authorized for FY 2018,
FY 2019, as well as for FY 2021 to allow for the
possibility that some approved workers would
either not seek a visa or admission, would not be
issued a visa, or would not be admitted to the
United States. Unlike these past supplemental cap
TFRs, petitions filed under the first half FY 2022
TFR did not exceed the additional allocation of
20,000 H–2B visas provided by that rule.
99 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2023, TRK 13122.
100 See USCIS, Cap Reached for Additional
Returning Worker H–2B Visas for Second Half of FY
2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022).
101 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, C3 Consolidated, queried
10/2023, TRK 13122. The number of approved
workers exceeded the number of additional visas
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Fmt 4701
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In FY 2023, USCIS received enough
petitions to reach the cap for the
additional 18,216 H–2B visas made
available for returning workers for the
first half of fiscal year by January 30,
2023, and USCIS received enough
petitions to reach the cap for the
additional 16,500 H–2B visas made
available for returning workers for the
early second half of fiscal year by March
30, 2023.102 Of the petitions for
supplemental H–2B visas in FY 2023,
USCIS issued approvals for 78,302
beneficiaries, including 7,157
beneficiaries under the allocation of
10,000 visas made available for
returning workers for the late second
half of the fiscal year and 23,832
beneficiaries under the allocation of
20,000 visas reserved for nationals of
the Northern Central American
countries and Haiti.103
Data for the first half of FY 2024
clearly indicate an immediate need for
additional supplemental H–2B visas for
employers with start dates on or before
March 31, 2024. USCIS received a
sufficient number of H–2B petitions to
reach the first half of the FY 2024 fiscal
year statutory cap on October 11,
2023.104 Further, the date on which
USCIS received sufficient H–2B
petitions to reach the first half
semiannual statutory cap has generally
trended earlier in recent years. In fiscal
years 2017 through 2024, USCIS
received a sufficient number of H–2B
petitions to reach or exceed the relevant
first half statutory cap on January 10,
2017, December 15, 2017, December 6,
2018, November 15, 2019, November 16,
2020, September 30, 2021, September
authorized for the second half of FY 2022 to allow
for the possibility that some approved workers
would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to
the United States.
102 See USCIS, Cap Reached for Additional
Returning Worker H–2B Visas for the First Half of
FY 2023, https://www.uscis.gov/newsroom/alerts/
cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2023 (Jan. 31, 2023);
USCIS, Cap Reached for Additional Returning
Worker H–2B Visas for the Early Second Half of FY
2023, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
103 See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data,
queried 10/2023, TRK 13122, H–2B Visa Issuance
Report September 30, 2023. The number of
approved workers exceeded the number of
additional visas authorized for FY 2023 to allow for
the possibility that some approved workers would
either not seek a visa or admission, would not be
issued a visa, or would not be admitted to the
United States.
104 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2024 (Oct. 13, 2023).
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12, 2022, and October 11, 2023,
respectively.105
Through the third quarter of FY 2023,
approximately 85.2 percent of H–2B
filings were for positions within just 5
sectors.106 NAICS 56 (Administrative
and Support and Waste Management
and Remediation Services) accounted
for 39.5% of filings, NAICS 71
(Accommodation and Food Services)
accounted for 11.2%, NAICS 72 (Arts,
Entertainment, and Recreation)
accounted for 18.00%, NAICS 23
(Construction) accounted for 12.4%, and
NAICS 11 (Agriculture, Forestry,
Fishing and Hunting) accounted for
4.1% of filings.
80411
Within these industries, DOL data
show higher labor demand relative to
recent history. More specifically,
industry unemployment data from the
Bureau of Labor Statistics (BLS) show
that the industry unemployment rate in
each of these industries is lower than
the long term (10-year) average.107
10-year Average of Industry Unemployment Rate
NAICS
NAICS
NAICS
NAICS
NAICS
56*
11
23
71
72
5.01
7.76
6.43
8.35
8.23
*Supersector is used as a proxy, see footnote 102.
indication of a strong labor demand
within these industries. The
Departments believe that the
supplemental allocation of H–2B visas
described in this temporary final rule
will help to meet demand in these
industries.
Economy-wide data also indicate that
labor-market tightness continues to
exist. The most recent Employment
Situation released by the Bureau of
Labor Statistics (BLS) stated that the
unemployment rate was 3.8 percent in
September 2023.109 Historically, the
availability of H–2B visas addressed a
need in the labor market during periods
of lower unemployment. Chart 1 110
shows that the H–2B visa allocations for
Fiscal Year 2024 111 made by this rule
are slightly higher than the historical
trend but are generally consistent with
what the current unemployment rate
alone would predict. Additionally,
when the unemployment rate is below
6 percent, there is greater variance in
the total number of H–2B visas issued
in a given year; for example, in years
2022, 2007 and 2006, when the
unemployment rate ranged from
approximately 3.5 percent to 4.6
percent, the total number of H–2B visas
issued were comparable to what is
planned for 2024. The data presented in
chart 1 is meant to provide additional
context and to demonstrate that the total
allocation of H–2B visas is reasonable
given labor market conditions.
105 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2017, https://www.uscis.gov/archive/
uscis-reaches-the-h-2b-cap-for-the-first-half-offiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS
Reaches H–2B Cap for First Half of FY 2018, https://
www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS
Reaches H–2B Cap for First Half of FY 2019, https://
www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018);
USCIS, USCIS Reaches H–2B Cap for First Half of
FY 2020, https://www.uscis.gov/news/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (Nov. 20, 2019); USCIS, USCIS Reaches H–2B
Cap for First Half of FY 2021, https://
www.uscis.gov/news/alerts/uscis-reaches-h-2b-capfor-first-half-of-fy-2021 (Nov. 18, 2020); USCIS,
USCIS Reaches H–2B Cap for First Half of FY 2022,
https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12,
2021); USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2023, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B
Cap for First Half of FY 2024, https://
www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (Oct. 13, 2023).
106 USCIS analysis of DOL OLFC Performance
data.
107 USCIS has elected to use a long-term average
as a reference point so as to minimize the impact
that the Covid-19 pandemic has on the comparison
of the industry employment rate. All data are taken
from the respective BLS ‘‘Industry at a Glance’’
pages. See https://www.bls.gov/iag/tgs/iag11.htm,
https://www.bls.gov/iag/tgs/iag23.htm, https://
www.bls.gov/iag/tgs/iag60.htm, https://
www.bls.gov/iag/tgs/iag71.htm, https://
www.bls.gov/iag/tgs/iag72.htm. All data accessed
September 20, 2023.
108 Data presented here are for the Professional
and Business Services Supersector, which is
comprised of NAICS 54, NAICS 55 and NAICS 56.
See https://www.bls.gov/iag/tgs/iag60.htm. As such,
the data presented here should be understood to be
the best possible proxy for changes in NAICS 56
and not a direct measurement of any specific
change in the actual underlying sectors. The latest
data available, for July, 2023 from the Department
of Labor’s Current Employment Statistics program
indicates that NAICS 56 accounted for just under
42% of employment in Professional Business
Services. All data accessed September 27, 2023.
109 See DOL, BLS, The Employment Situation—
September 2023, https://www.bls.gov/news.release/
archives/empsit_10062023.pdf (Oct. 6, 2023).
110 Annual data presented here is on a fiscal year
basis. Fiscal year averages were calculated by taking
the average of the monthly unemployment rate for
the months in each respective fiscal year (OctoberSeptember). Data for fiscal year 2023 are for October
2022-August 2023. Unemployment rate for 2024 is
based on median Federal Reserve projections See
https://www.federalreserve.gov/monetarypolicy/
fomcprojtabl20230920.htm (accessed September 29,
2023).
111 The number of estimated visas issued for
Fiscal Year 2024 is based on the sum of the fiscal
year statutory cap for H–2B workers (66,000) and
the supplemental allocation for this rule (64,716),
for a total H–2B visa allocation of 130,716.
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ER17NO23.021</GPH>
In August 2023, the industry
unemployment for NAICS 56 108 was 3.7
percent, which is 1.31 points lower than
its 10-year average of 5.01 percent,
while the industry unemployment rate
for NAICS 71 was 4.5 percent which is
3.85 points lower than its 10-year
average of 8.35 percent. The August
2023 industry unemployment rate for
NAICS 72 (6.10 percent) was 2.13 points
lower than its 10-year average of 8.23
percent while the rate for NAICS 23 (3.9
percent) was 2.53 points lower than its
10-year average of 6.43 percent. The
industry unemployment rate for NAICS
11 (5.80 percent) was 1.96 points lower
than its 10-year average of 7.76 percent.
The relatively low unemployment rate
across these industries is a clear
ER17NO23.020</GPH>
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Aui ust 2023 Industry Unemployment Rate
NAICS
NAICS
NAICS
NAICS
NAICS
11
23
56*
71
72
5.8
3.9
3.7
4.5
6.1
*Supersector is used as a proxy, see footnote 102.
80412
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
Chart 1: H-2B Visa Issuance vs National Unemployment Rate
140,000
• •.
----•
- -~022
....
120,000
--
••
y
LUU/
2006
••••••··· ••••·
•••••
•
2019.
100,000
• •6oos
20 8
2017 20
60,000
•
I
t~s······•J(
80,000
-~---- ~----R' = 0.6903
?1
•
• 20a,i2C 03
LU.LJ
···~········ •••· •.....
• ....
202~013
LU14
2002
40,000
···•~·-······· .._•
,v~2QQ9
•
--~····2010
20,000
Source: USCIS RCD-Econ
0
3.00
4.00
Given the level of demand for H–2B
workers, the continued economic
recovery, and continued job growth,
DHS believes it is appropriate to release
the maximum amount of additional
visas at this time.
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Making Allocations for All of FY 2024
in a Single Rule
As in FY 2023, DHS believes that it
is appropriate to issue a single rule for
the entire fiscal year for multiple
reasons.112 First, DHS expects that there
is demand for supplemental visas in the
first half of FY 2024. As previously
discussed, USCIS already received
enough petitions to reach the
congressionally mandated cap on H–2B
visas for temporary nonagricultural
workers for the first half of FY 2024.113
Further, the date on which USCIS
received sufficient H–2B petitions to
reach the first half semiannual statutory
caps has generally trended earlier in
recent years. In fiscal years 2017
through 2024, USCIS received a
sufficient number of H–2B petitions to
reach or exceed the relevant first half
statutory cap on January 10, 2017,
December 15, 2017, December 6, 2018,
November 15, 2019, November 16, 2020,
September 30, 2021, September 12,
2022, and October 11, 2023,
respectively.114
112 Further, DHS believes that 64,716 is an
appropriate number of supplemental visas to make
available, as this rule will cover both the first and
second half of FY 2024.
113 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2024 (Oct. 13, 2023).
114 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2017, https://www.uscis.gov/archive/
uscis-reaches-the-h-2b-cap-for-the-first-half-of-
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5.00
6.00
7.00
Second, based on relevant data, DHS
expects that USCIS will reach the
statutory cap for the second half of FY
2024 and that there will accordingly be
demand for supplemental visas in the
second half of FY 2024. For example, in
fiscal years 2017 through 2023, USCIS
received a sufficient number of H–2B
petitions to reach or exceed the relevant
second half statutory cap on March 13,
2017, February 27, 2018, February 19,
2019, February 18, 2020, February 12,
2021, February 25, 2022, and February
27, 2023.115 In addition, DOL data
fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS
Reaches H–2B Cap for First Half of FY 2018, https://
www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS
Reaches H–2B Cap for First Half of FY 2019, https://
www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018);
USCIS, USCIS Reaches H–2B Cap for First Half of
FY 2020, https://www.uscis.gov/news/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (Nov. 20, 2019); USCIS, USCIS Reaches H–2B
Cap for First Half of FY 2021, https://
www.uscis.gov/news/alerts/uscis-reaches-h-2b-capfor-first-half-of-fy-2021 (Nov. 18, 2020); USCIS,
USCIS Reaches H–2B Cap for First Half of FY 2022,
https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12,
2021); USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2023, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B
Cap for First Half of FY 2024, https://
www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (Oct. 13, 2023).
115 See USCIS, USCIS Reaches the H–2B Cap for
Fiscal Year 2017, https://www.uscis.gov/archivealerts/uscis-reaches-the-h-2b-cap-for-fiscal-year2017 (Mar. 16, 2017); USCIS, USCIS Completes
Random Selection Process for H–2B Visa Cap for
Second Half of FY 2018, https://www.uscis.gov/
archive/uscis-completes-random-selection-processfor-h-2b-visa-cap-for-second-half-of-fy-2018 (Mar. 1,
2018); USCIS, H–2B Cap Reached for FY 2019,
https://www.uscis.gov/archive/h-2b-cap-reachedfor-fy-2019 (Feb. 22, 2019); USCIS, H–2B Cap
Reached for Second Half of FY 2020, https://
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9.00
10.00
shows consistently high demand in
recent years, particularly during the
second half of the fiscal year. In recent
years, DOL has received an increasing
number of TLC applications for an
increasing number of H–2B workers
with April 1 start dates: DOL received
4,500 applications on January 1, 2018,
covering more than 81,600 worker
positions; DOL received 5,276
applications by January 8, 2019,
covering more than 96,400 worker
positions; DOL received 5,677
applications during the initial three-day
filing window in 2020 covering 99,362
worker positions; DOL received 5,377
applications during the initial three-day
filing window in 2021 covering 96,641
worker positions; DOL received 7,875
applications by January 7, 2022,
covering 136,555 worker positions; and
DOL received 8,693 applications during
the initial three-day filing window in
2023, covering 142,796 worker
positions.116
Finally, publishing one rule that
addresses all the visas available for FY
2024 benefits the regulated public by
giving more notice and certainty of what
will become available for the second
www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy2020 (Feb. 26, 2020); USCIS, H–2B
Cap Reached for Second Half of FY 2021, https://
www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy-2021 (Feb. 24, 2021); USCIS, H–2B
Cap Reached for Second Half of FY 2022, https://
www.uscis.gov/newsroom/alerts/h-2b-cap-reachedfor-second-half-of-fy-2022 (Mar. 1, 2022); USCIS,
USCIS Reaches H–2B Cap for Second Half of FY
2023 and Announces Filing Dates for the Second
Half of FY 2023 Supplemental Visas, https://
www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-second-half-of-fy-2023-and-announcesfiling-dates-for-the-second-half-of (Mar. 2, 2023).
116 See DOL, Announcements, https://
www.dol.gov/agencies/eta/foreign-labor/news.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
half. As noted in comments received in
response to the FY 2023 TFR, this
approach allows businesses to better
plan ahead for their seasonal workforce
needs.117
Filing Deadline of September 16, 2024
for All Petitions
The authority to approve H–2B
petitions under this FY 2024
supplemental cap expires at the end of
the fiscal year, i.e., the end of September
30, 2024. Therefore, DHS is requiring
employers requesting any supplemental
visas under this TFR, regardless of the
employment start date(s), to properly
file their H–2B petition with USCIS no
later than September 16, 2024. USCIS
will reject any cases that are received
after September 16, 2024. See new 8
CFR 214.2(h)(6)(xiv)(C). Because DHS
believes that 15 days from the end of the
fiscal year is generally the minimum
time needed for petitions to be
adjudicated, but also to account for the
fact that September 15, 2024 falls on a
Sunday,118 DHS has set September 16,
2024 as the last day to file in order to
provide USCIS with adequate time for
petition processing before the expiration
of the authority at the end of the fiscal
year, although USCIS cannot guarantee
the time period will be sufficient for
adjudication of petitions in all cases.
In addition, the filing deadline will be
earlier than September 16, 2024 if the
applicable numerical limit for the
relevant supplemental visa allocation is
reached before that date. See new 8 CFR
214.2(h)(6)(xiv)(C). In such a case,
USCIS will also reject any cases that are
received after the applicable numerical
limitation has been reached.
Returning Worker Allocation for the
First Half of FY 2024 (October 1, 2023
Through March 31, 2024)
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For the first half of FY 2024, DHS will
make 20,716 visas immediately
available upon publication of this TFR
that are limited to returning workers, in
other words, those workers who were
issued H–2B visas or held H–2B status
in fiscal years 2021, 2022, or 2023,
regardless of country of nationality.
These petitions must request a date of
need starting on or before March 31,
2024. See new 8 CFR 214.2(h)(6)(xiv)(C).
117 See the docket for this rulemaking for access
to these comments.
118 In prior rules, USCIS used September 15th as
the cutoff date for accepting petitions filed under
the supplemental cap. However, in FY 2024,
September 15th is on a Sunday when USCIS does
not accept petitions. DHS has revised this date
accordingly to avoid potential confusion and
frustration from petitioners who might have
otherwise expected their petitions to be received on
the 15th but would instead face rejection.
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DHS anticipates that employers will
use all of the first half allocation for
returning workers, given how quickly
USCIS reached the FY 2024 first half
statutory cap and the first half
supplemental allocation for FY 2023. As
noted previously, USCIS received
enough H–2B petitions to reach the FY
2024 first half statutory cap on October
11, 2023.119 Under the FY 2023 TFR,
which published on December 15, 2022,
USCIS received enough petitions to
reach the 18,216 first half allocation by
January 31, 2023.120 Similarly, the
relatively early publication of this rule
will provide interested employers more
time to prepare their petitions,
increasing the likelihood that the first
half allocation for returning workers
will be used.121 To the extent that the
first half allocation for returning
workers is used, this TFR may provide
affected employers with some relief by
making available a separate allocation of
visas for nationals of El Salvador,
Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica, which will be
available for the entirety of FY 2024.
In the event that USCIS approves
insufficient petitions to use all 20,716
visas, the unused numbers will not
carry over for the second half allocation
because DHS believes that the
operational burdens of calculating and
administering a process to carry over
unused visas, combined with the
potential confusion for the public and
adjudicators that could result from
having different filing cutoff dates for
the different allocations, would
outweigh the benefits. In order to make
any unused first half visas available for
employers with second half start dates,
DHS would need to set a filing cutoff
date prior to September 16, 2024 for the
first half allocation, upon which it
would stop accepting such petitions and
make a calculation of how many visas
should be re-released for second half
employers. Calculating visas to be rereleased could also entail an additional
cap allocation, additional
announcements to the public, and
potentially an additional lottery, all of
which would significantly increase
119 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2024 (Oct. 13, 2023).
120 USCIS, Cap Reached for Additional Returning
Worker H–2B Visas for the First Half of FY 2023,
https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-first-half-of-fy-2023 (Jan. 31, 2023).
121 Compare the publication date of this rule with
December 15, 2022, the date the FY 2023 TFR was
first published, and January 28, 2022, the date the
temporary final rule making available additional H–
2B visas for the first half of FY 2022 was first
published.
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80413
operational burdens. In addition to
increasing operational burdens, DHS
believes that the opening, closing, and
potential re-opening of this allocation
(and/or other cap allocations) could
cause confusion for the public and
adjudicators. Furthermore, not setting a
filing cutoff date prior to September 16,
2024 will maximize employers’
opportunity to avail themselves of the
first half allocation. While DHS
acknowledges that this approach could
potentially result in some employers
with a demonstrated business need in
the second half of the fiscal year losing
the opportunity to receive a
supplemental visa, it is DHS’s
expectation that there will be sufficient
demand from employers with first half
start dates to use the entire allocation.
Initial Returning Worker Allocation for
the Early Second Half (April 1, 2024,
Through May 14, 2024)
For the second half of FY 2024, DHS
will initially make available 19,000
visas limited to returning workers, in
other words, those workers who were
issued H–2B visas or held H–2B status
in fiscal years 2021, 2022, or 2023,
regardless of country of nationality.
These petitions must request a date of
need starting on or after April 1, 2024,
through and including May 14, 2024.
Limiting this allocation to employers
with employment start dates on or
before May 14, 2024 reflects DHS’s
intentions to give employers with needs
later in the season a better opportunity
to access the H–2B program, and to
prevent employers from petitioning
under both of the second-half
allocations to fill the same need.
To mitigate complications from
concurrent administration of the
statutory second half cap, these
petitions must be filed no earlier than
15 days after the second half statutory
cap is reached, a date that USCIS will
identify in a public announcement.122
When USCIS announces that it has
received a sufficient number of petitions
to reach the second half statutory cap,
it will also announce the earliest
possible filing date (15 days after the
second half statutory cap) for this
allocation. Concurrent administration of
the second half statutory cap with the
second half supplemental cap would
pose significant operational challenges,
particularly considering the volume of
H–2B petitions USCIS would have to
122 Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(2),
USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(ii) of this section
requesting employment start dates from April 1,
2024 to May 14, 2024 that are received earlier than
15 days after the INA section 214(g) cap for the
second half FY 2024 has been met.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
process at the same time. A cushion of
15 days after the second half statutory
cap is reached should provide USCIS
with sufficient time to process H–2B
petitions filed under the second half
statutory cap and prepare to process
petitions under this supplemental cap,
and should also provide petitioners not
selected under the statutory cap with
enough time to refile under this
supplemental cap. Furthermore, making
this allocation available after the second
half statutory cap has been reached
builds in flexibility to account for
variations in the timing of that cap being
reached. DHS cannot predict with
certainty when the FY 2024 second half
statutory cap will be reached (or if it
will be reached), and therefore, did not
specify a date for when to first allow
petitioners to file for FY 2024 second
half supplemental visas. In the event
that the statutory second half FY 2024
cap is not reached, the supplemental
allocation for returning workers for the
second half of FY 2024 will not become
available.
Based on historical data showing
increasingly high demand for H–2B
workers with April 1 start dates, DHS
expects all 19,000 visas to be used
quickly once the supplemental
allocation becomes available. However,
in the event that USCIS approves
insufficient petitions to use all 19,000
visas, the unused numbers will not
carry over for petition approvals for
employment start dates beginning on or
after May 15, 2024. DHS chose to limit
these 19,000 visas to start dates on or
before May 14, 2024, without the ability
for these visas to be carried over into the
next allocation. As previously stated,
DHS believes that the operational
burdens of calculating and
administering a process to carry over
unused visas, combined with the
potential confusion for the public and
adjudicators that could result from
having different filing cutoff dates for
the different allocations, would
outweigh the benefits. In order to make
any unused visas from this allocation
available for late second half of FY 2024
petitions, DHS would need to set a filing
cutoff date that would be after the cutoff
for the first half allocation but prior to
any cutoff for late second half of FY
2024 petitions and prior to September
16, 2024, upon which it would stop
accepting petitions and make a
calculation of how many visas should
be re-released for late second half
employers. Calculating visas to be rereleased could also entail an additional
cap allocation, additional
announcements to the public, and
potentially an additional lottery, all of
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which would significantly increase
operational burdens. In addition to
increasing operational burdens, DHS
believes that the opening, closing, and
potential re-opening of this allocation
(and/or other cap allocations) could
cause confusion for the public and
adjudicators. Furthermore, not setting a
filing cutoff date prior to September 16,
2024, will maximize employers’
opportunity to avail themselves of the
early second half allocation. While DHS
acknowledges that this approach could
result in employers in the late second
half losing the opportunity to receive a
supplemental visa, it is DHS’s
expectation that there will be sufficient
demand from employers to use this
entire allocation.
Additional Returning Worker Allocation
for the Late Second Half (on or After
May 15, 2024, Through September 30,
2024)
For the late second half of FY 2024,
DHS will make available an additional
allocation of 5,000 visas limited to
returning workers, in other words, those
workers who were issued H–2B visas or
held H–2B status in fiscal years 2021,
2022, or 2023, regardless of country of
nationality. To assist employers needing
workers to begin work during the late
spring and summer seasons in the fiscal
year (also referred to as ‘‘late season
employers’’), these petitions must
request a date of need starting on or
after May 15, 2024. These petitions must
be filed no sooner than 45 days after the
second half statutory cap is reached, a
date that USCIS will identify in a public
announcement.123 When USCIS
announces that it has received a
sufficient number of petitions to reach
the second half statutory cap, it will also
announce the earliest possible filing
date (45 days after the second half
statutory cap) for this allocation. The
cushion of 45 days after the second half
statutory cap is reached is intended to
provide USCIS with sufficient time to
process H–2B petitions filed under the
second half statutory cap that remain
pending, as well as to process the
expected influx of petitions under the
early second half supplemental cap that
will begin 15 days after the second half
statutory cap is reached.124 By allowing
123 Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(3),
USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(iii) of this section
requesting employment start dates from May 15,
2024 to September 30, 2024, that are received
earlier than 45 days after the INA section 214(g) cap
for the second half FY 2024 has been met.
124 While petitioners may continue to submit
petitions under the early second half supplemental
cap through September 16, DHS expects the
heaviest filing to occur soon after the visas become
available. This expectation is based on historical
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USCIS to manage its workload in this
way, the 45-day period will help USCIS
prepare to process petitions under the
late second half supplemental cap and
mitigate the complications from
concurrent administration of these
various caps.
This is the second supplemental cap
reserved for late season employers that
need workers to begin work during the
late spring and summer seasons in the
fiscal year.125 By regulation, employers
may only apply for a TLC 75 to 90 days
before the start date of need,126 and, as
such, employers needing workers to
begin work on or after May 15 are not
eligible to file TLC applications until on
or after February 15. As noted in the FY
2023 TFR, in past years, because of this
requirement and the strong demand for
& workers in recent years to begin work
on the earliest employment start date
(i.e., April 1), late season employers
were unable to receive cap-subject H–2B
workers because they did not have an
opportunity to file visa petitions for capsubject H–2B workers before the second
semiannual statutory cap was reached.
Since, based on recent years’ data,127
USCIS has typically received sufficient
H–2B petitions to meet the statutory cap
for the second half of the fiscal year
around mid-February, many of these
late season employers may have decided
to not file a TLC application.
DHS, in consultation with DOL, has
again determined that it is appropriate
to make a separate allocation available
for late season employers whose late
season labor needs may have put them
at a disadvantage in accessing H–2B
workers in recent years. While there was
significant demand for the late second
half allocation in FY 2023, the full
allocation of 10,000 visas was not
reached. As of October 6, 2023, DOS has
issued 5,071 visas towards the late
second half allocation, while USCIS
approved 7,157 beneficiaries towards
the late second half allocation.128
filing patterns, as well as an assumption that
employers will try act quickly to secure workers
consistent with their dates of need.
125 See Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for
the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022).
126 See 20 CFR 655.15(b).
127 As noted above, in fiscal years 2017 through
2023, USCIS received a sufficient number of H–2B
petitions to reach or exceed the relevant second half
statutory cap on March 13, 2017, February 27, 2018,
February 19, 2019, February 18, 2020, February 12,
2021, February 25, 2022, and February 27, 2023
respectively.
128 Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data queried 10/2023, TRK 13122, H–
2B Visa Issuance Report September 30, 2023.
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Therefore, in order to meet the employer
demand in the late second half of FY
2024, while still maximizing the overall
usage of supplemental visas, DHS has
determined it is appropriate to limit the
late second half allocation for FY 2024
to up to 5,000 visas. DHS, in
consultation with DOL, has determined
that authorizing two allocations for the
second half of FY 2024 based on an
employer’s start date of need, in
addition to requiring that the employer’s
start date of need on the Form I–129
match the start date of need on the
approved TLC,129 will provide
employers with late season needs a
better opportunity to receive H–2B
workers to avoid irreparable harm.
Specifically, employers with early
season needs that need work to begin on
or after April 1 will have the
opportunity to file H–2B petitions under
both the statutory cap and the first
allocation of the supplemental cap,
while employers with late season needs
do not have that opportunity.
To mitigate complications from
concurrent administration of the
additional returning worker allocation
for the second half of the fiscal year for
late season employers and either the
statutory second half cap or the initial
supplemental allocation for returning
workers for the second half of the fiscal
year (or both), these petitions must be
filed no earlier than 45 days after the
second half statutory cap is reached.
When USCIS announces that it has
received a sufficient number of petitions
to reach the second half statutory, it will
also announce the earliest possible
filing date (45 days after the second half
statutory cap) for this allocation. In the
event that the statutory second half FY
2024 cap is not reached, this
supplemental allocation for late season
filers workers will not become available.
Furthermore, in the event that USCIS
does not approve sufficient petitions to
use all 5,000 visas for late season
employers, DHS will not carry over the
unused numbers for petition approvals
for any other allocation. For example,
any unused numbers would not carry
over to petitions under the countryspecific allocation. As noted above, DHS
believes the operational burdens of
calculating and administering a process
to carry over unused visas would
outweigh the benefits because of the
potential confusion for the public and
adjudicators that could result from
having different filing cutoff dates for
the different allocations. A process to
129 See 8 CFR 214.2(h)(6)(iv)(D) (‘‘an H–2B
petition must state an employment start date that
is the same as the date of need stated on the
approved temporary labor certification’’).
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carry over unused visas could also
entail an additional cap allocation,
additional announcements to the public,
and potentially an additional lottery, all
of which significantly increase
operational burdens and may add
further confusion to the public and
adjudicators.
Allocation for Nationals of El Salvador,
Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica
DHS will make available 20,000
additional visas that are reserved for
nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador,
and Costa Rica, as attested by the
petitioner (regardless of whether such
nationals are returning workers). These
20,000 visas will be available for
petitioners requesting an employment
start date before the end of FY 2024, up
to and including September 30, 2024.
While prior fiscal years’ allocations
for nationals of the Northern Central
American countries and Haiti have not
been reached, DHS anticipates a higher
likelihood that the 20,000 visas
allocated for certain nationals by this
rule will be reached by the end of this
fiscal year. As discussed above, DHS
observed robust employer interest in
response to the FY 2021 H–2B
supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran
nationals and the FY 2022 and FY 2023
supplemental visa allocations for
Salvadoran, Guatemalan, Honduran,
and Haitian nationals, and the data
show a trend of increased participation
by Haitian, Salvadoran, Guatemalan,
and Honduran workers in the H–2B
program.130 Furthermore, the inclusion
of nationals from the additional
countries of Colombia, Ecuador, and
Costa Rica also increases the likelihood
that the 20,000 visas will be used.
Employers requesting workers under
the country-specific allocation with an
employment start date in the first half
of FY 2024 may file their petitions
immediately after the publication of this
TFR. Employers requesting workers
under the country-specific allocation
with an employment start date in the
second half of FY 2024 must file their
petitions no earlier than 15 days after
the second half statutory cap is reached.
The requirement to file the petition no
earlier than 15 days after the second half
130 As previously noted, USCIS approved
petitions on behalf of 6,805 beneficiaries under the
FY 2021 allocation, 3,231 beneficiaries under the
FY 2022 first half supplemental allocation, 12,318
beneficiaries for the second half of the fiscal year
FY 2022, and 23,832 beneficiaries under the FY
2023 allocation. See DHS, USCIS, Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data, queried 10/2023, TRK 13122,
H–2B Visa Issuance Report September 30, 2023.
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80415
statutory cap is reached is consistent
with the approach taken for the initial
returning worker allocation for the early
second half of the fiscal year, and is in
line with the Departments’
interpretation of their authority to make
available supplemental (or in other
words, additional) visas as contingent
upon the exhaustion of visas under the
statutory cap.131
As in FY 2023, the Departments have
decided not to further divide the 20,000
visas for workers from specific countries
into separate allocations for the first and
second half of the fiscal year. The
Departments intend for this additional
flexibility of allowing any employment
start date within FY 2024 to encourage
U.S. employers that are suffering
irreparable harm or will suffer
impending irreparable harm to seek out
workers from such countries, and, at the
same time, increase interest among
nationals of the Northern Central
American countries, Haiti, Colombia,
Ecuador, and Costa Rica seeking a legal
pathway for temporary employment in
the United States. While this approach
could potentially result in employers
with start dates in the first half of FY
2024 using all 20,000 visas for nationals
of the specified countries, and
consequently, employers with start
dates in the second half of FY 2024
losing the opportunity to utilize this
particular allocation, DHS believes that
the benefits of increasing the flexibility
of this allocation outweighs the
potential risk. Moreover, employers
with start dates in the second half of FY
2024 seeking to employ nationals under
the country-specific allocation may
request a visa under one of the two
second half supplemental allocations
which are available for returning
workers regardless of country of
nationality.
In the event that USCIS does not
approve sufficient petitions to use all
20,000 visas under the country-specific
allocation by the end of FY 2024, DHS
will not carry over the unused numbers
for petition approvals for any other
allocation. For example, any unused
numbers would not carry over to
petitions for returning workers with
employment start dates in the second
half of FY 2024. As noted above, DHS
believes the operational burdens of
calculating and administering a process
to carry over unused visas would
outweigh the benefits because of the
potential confusion for the public and
131 Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(4),
USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(2) of this section that have
a date of need on or after April 1, 2024 and are
received earlier than 15 days after the INA section
214(g) cap for the second half of FY 2024 is met.
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adjudicators that could result from
having different filing cutoff dates for
the different allocations. A process to
carry over unused visas could also
entail an additional cap allocation,
additional announcements to the public,
and potentially an additional lottery, all
of which significantly increase
operational burdens and may add
further confusion to the public and
adjudicators. Further, this single filing
cutoff approach provides employers
with incentive and more time to petition
for, and bring in, workers from El
Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica to
meet employer needs, consistent with
the administration’s efforts and outreach
to promote and improve safety, security,
and economic stability in these
countries.
Process if Cap Allocations Are Reached
Finally, recognizing the high demand
for H–2B visas, it is plausible that the
additional H–2B supplemental
allocations provided in this rule will be
reached prior to September 16, 2024.
Specifically, the following scenarios
may still occur:
• The 20,716 supplemental cap visas
limited to returning workers that will be
immediately available for employers
with dates of need on or after October
1, 2023, through March 31, 2024, will be
reached before September 16, 2024;
• The 19,000 supplemental cap visas
limited to returning workers that will be
available for employers with dates of
need starting on or after April 1, 2024,
through May 14, 2024, will be reached
before September 16, 2024;
• The 5,000 supplemental cap visas
limited to returning workers that will be
available for late season employers with
dates of need on or after May 15, 2024,
through September 30, 2024, will be
reached before September 16, 2024; or
• The 20,000 supplemental cap visas
limited to nationals of El Salvador,
Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica will be reached
before September 16, 2024.
Under this rule, new 8 CFR
214.2(h)(6)(xiv)(D) reaffirms the existing
processes that are in place when H–2B
numerical limitations under INA section
214(g)(1)(B) or (g)(10), 8 U.S.C.
1184(g)(1)(B) or (g)(10), are reached,132
as applicable to each of the scenarios
described above that involve numerical
limitations of the supplemental cap.
Specifically, for each of the scenarios
mentioned above, DHS will monitor
petitions received, and make projections
of the number of petitions necessary to
achieve the projected numerical limit of
132 See
8 CFR 214.2(h)(8)(vii).
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approvals. USCIS will also notify the
public of the dates that USCIS has
received the necessary number of
petitions (the ‘‘final receipt dates’’) for
each of these scenarios. The day the
public is notified will not control the
final receipt dates. Moreover, USCIS
may randomly select, via computergenerated selection, from among the
petitions received on the final receipt
date the remaining number of petitions
deemed necessary to generate the
numerical limit of approvals for each of
the scenarios involving numerical
limitations to the supplemental cap.
USCIS may, but will not necessarily,
conduct a lottery if: the 20,716
supplemental cap visas limited to
returning workers that will be
immediately available for employers
with dates of need on or after October
1, 2023, through March 31, 2024, is
reached before September 16, 2024; the
19,000 supplemental cap visas limited
to returning workers that will be
available for employers with dates of
need on or after April 1, 2024, through
May 14, 2024, is reached before
September 16, 2024; the 5,000
supplemental cap visas limited to
returning workers that will be available
for late season employers with dates of
need on or after May 15, 2024, through
September 30, 2024, is reached before
September 16, 2024; or the 20,000 visas
limited to certain nationals is reached
before September 16, 2024. Similar to
the processes applicable to the H–2B
semiannual statutory cap, if the final
receipt date is any of the first 5 business
days on which petitions subject to the
applicable numerical limit may be
received (in other words, if the
numerical limit is reached on any one
of the first 5 business days that filings
can be made), USCIS will randomly
apply all of the numbers among the
petitions received on any of those 5
business days.
C. Returning Workers
As noted above, to address the
increased and, in some cases,
impending need for H–2B workers in
this fiscal year, the Secretary of
Homeland Security, in consultation
with the Secretary of Labor, has
determined that employers may petition
for supplemental visas on behalf of up
to 44,716 workers who were issued an
H–2B visa or were otherwise granted H–
2B status in FY 2021, 2022, or 2023.
This temporal limitation mirrors the
prior fiscal year’s temporal limitation in
the returning worker definition 133 and
133 See e.g., Exercise of Time-Limited Authority
To Increase the Numerical Limitation for FY 2023
for the H–2B Temporary Nonagricultural Worker
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the temporal limitation Congress
imposed in previous returning worker
statutes.134 Such workers (in other
words, those who recently participated
in the H–2B program and who now seek
a new H–2B visa from DOS) may obtain
their new visas through DOS and begin
work more expeditiously because they
have previously obtained H–2B visas
and therefore have been vetted by DOS
and would have departed the United
States as generally required by the terms
of their nonimmigrant admission.135
DOS has informed DHS that, in general,
H–2B visa applicants who are able to
demonstrate clearly that they have
previously abided by the terms of their
status granted by DHS have a higher
visa issuance rate when applying to
renew their H–2B visas, as compared
with the overall visa applicant pool
from a given country. Furthermore,
consular officers are authorized to waive
the in-person interview requirement for
certain nonimmigrant visa applicants,
including certain H–2B applicants
renewing visas in the same
classification within 48 months of the
prior visa’s expiration, who otherwise
meet the strict limitations set out under
INA section 222(h), 8 U.S.C. 1202(h).136
Limiting the supplemental cap to
returning workers is beneficial because
these workers have generally followed
immigration law in good faith and
demonstrated their willingness to return
home when they have completed their
temporary labor or services or their
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022) (defining ‘‘returning workers’’
as those who were issued H–2B visas or held H–
2B status in fiscal years 2020, 2021, or 2022).
134 See INA section 214(g)(9)(A), 8 U.S.C.
1184(g)(9)(A); Consolidated Appropriations Act,
2016, Public Law 114–113, div. F, tit. V, sec 565;
John Warner National Defense Authorization Act
for Fiscal Year 2007, Public Law 109–364, div. A,
tit. X, sec. 1074, (2006); Save Our Small and
Seasonal Businesses Act of 2005, Public Law. 109–
13, div. B, tit. IV, sec. 402.
135 The previous review of an applicant’s
qualifications and current evidence of lawful travel
to the United States will generally lead to a shorter
processing time of a renewal application.
136 The interview waiver authority for certain H–
2B applicants renewing visas in the same
classification within 48 months of the prior visa’s
expiration has no sunset date. Currently, certain
first-time H–2B visa applicants or certain H–2B visa
applicants previously issued any type of visa within
the last 48 months may be eligible for an interview
waiver; however, the authority for these interview
waivers is set to expire on December 31, 2023. See
DOS, Important Announcement on Waivers of the
Interview Requirement for Certain Nonimmigrant
Visas, https://travel.state.gov/content/travel/en/
News/visas-news/important-announcement-onwaivers-of-the-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23,
2022); DOS, Extension of Interview Waivers for
Certain Nonimmigrant Visa Applicants, https://
www.state.gov/extension-of-interview-waivers-forcertain-nonimmigrant-visa-applicants/ (last
updated Dec. 23, 2022).
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period of authorized stay, which is a
condition of H–2B status. The returning
worker condition therefore provides a
basis to believe that H–2B workers
under this cap increase will again abide
by the terms and conditions of their visa
or nonimmigrant status.
The returning worker condition also
benefits employers that seek to re-hire
known and trusted workers who have a
proven positive employment track
record while previously employed as
workers in this country. While the
Departments recognize that the
returning worker requirement may limit
to an extent the flexibility of employers
that might wish to hire non-returning
workers, the requirement provides an
important safeguard against H–2B
abuse, which DHS considers to be a
significant consideration.
To ensure compliance with the
requirement that additional visas only
be made available to returning workers,
DHS will require petitioners seeking H–
2B workers under the supplemental cap
to attest that each employee requested
or instructed to apply for a visa under
the FY 2024 supplemental cap was
issued an H–2B visa or otherwise
granted H–2B status in FY 2021, 2022,
or 2023, unless the H–2B worker is a
national of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica and is counted towards the
20,000 cap. This attestation will serve as
prima facie initial evidence to DHS that
each worker, unless a national of one of
these countries who is counted against
the 20,000 country-specific cap, meets
the returning worker requirement. DHS
and DOS retain the right to review and
verify that each beneficiary is in fact a
returning worker any time before and
after approval of the petition or visa.
DHS has authority to review and verify
this attestation during the course of an
audit or investigation, as otherwise
discussed in this rule.
With respect to satisfying the
returning worker requirement,
employers must maintain evidence that
the employer requested and/or
instructed that each of the workers
petitioned by the employer in
connection with this temporary rule
were issued H–2B visas or otherwise
granted H–2B status in FY 2021, 2022,
or 2023, unless the H–2B worker is a
national of one of the specific countries
counted towards the 20,000 cap. Such
evidence would include, but is not
limited to, a date-stamped written
communication from the employer to its
agent(s) and/or recruiter(s) that instructs
the agent(s) and/or recruiter(s) to only
recruit and provide instruction
regarding an application for an H–2B
visa to those foreign workers who were
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previously issued an H–2B visa or
granted H–2B status in FY 2021, 2022,
or 2023.
D. 20,000 Allocation for Nationals of
Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica
As described above, the Secretary of
Homeland Security has determined that
up to 20,000 additional H–2B visas will
be limited to workers who are nationals
of Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica.
These 20,000 visas will be exempt from
the returning worker requirement.
Because the returning worker
allocations have no restrictions related
to a worker’s country of nationality, if
the 20,000 visa limit has been reached
and the 44,716 returning worker cap has
not, petitioners may continue to request
workers who are nationals of one of
these countries, but the workers must be
specifically requested as returning
workers who were issued H–2B visas or
were otherwise granted H–2B status in
FY 2021, 2022, or 2023.
While DHS reiterates the benefits of
allocating visas under the supplemental
cap to returning workers, the Secretary
of Homeland Security has determined
that the 20,000 country-specific
allocation which is exempted from the
returning worker requirement is
beneficial for following reasons. First,
this country-specific allocation furthers
the U.S. foreign policy objective of
managing irregular migration with
partner countries through expanding
access to lawful pathways to nationals
of these countries seeking economic
opportunity in the United States.
Several of these countries have
extensively collaborated with the
United States on migration issues such
as through endorsing the L.A.
Declaration, joining the United States to
ramp up efforts to address the irregular
migration flows through the Darien and
hosting Safe Mobility Offices (SMOs) to
facilitate access to lawful pathways to
the United States and other countries,
including expedited refugee processing
and other humanitarian pathways. After
a series of negotiations, on June 1, 2023,
the United States and Guatemala issued
a joint statement to commit to take a
series of critical steps to humanely
reduce irregular migration and expand
lawful pathways under the L.A.
Declaration.137 As the first step of a
comprehensive program to manage
irregular migration, both countries have
137 See The White House, Joint Statement from
the United States and Guatemala on Migration (June
1, 2023), https://www.whitehouse.gov/briefingroom/statements-releases/2023/06/01/jointstatement-from-the-united-states-and-guatemalaon-migration/.
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80417
been implementing a six-month pilot
phase of SMOs since June 12, 2023.138
On June 4, 2023, the United States and
Colombia announced the impending
establishment of SMOs that would
identify, register, and categorize the
reasons for irregular migration and
channel those who qualify through
lawful pathways from Colombia to the
United States.139 The Safe Mobility
initiative launched in Colombia on June
28, 2023, with SMOs currently
operational in three cities. Furthermore,
on June 12, 2023, the United States and
the Government of Costa Rica, in
furtherance of bilateral partnership and
addressing hemispheric challenge of
irregular migration, launched an
exploratory six-month implementation
of SMOs.140 On October 19, 2023, the
United States and Ecuador announced
their partnership in establishing SMOs
in Ecuador.141 This allocation for
nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador,
and Costa Rica will promote safe,
orderly and lawful migration to the
United States, as well as help provide
U.S. employers with additional labor
from these countries with whom the
United States Government has engaged
in outreach efforts to promote the H–2B
program.142
Second, in addition to the allocation
for returning workers, the countryspecific allocation will also address the
needs of certain H–2B employers that
138 Id.
139 See United States Department of State, U.S.Colombia Joint Commitment to Address the
Hemispheric Challenge of Irregular Migration (June
4, 2023), https://www.state.gov/u-s-colombia-jointcommitment-to-address-the-hemispheric-challengeof-irregular-migration/. See The White House,
Readout of Principal Deputy National Security
Advisor Jon Finer’s Meeting with Colombian
Foreign Minister Alvaro Leyva (June 11, 2023),
https://www.whitehouse.gov/briefing-room/
statements-releases/2023/06/11/readout-ofprincipal-deputy-national-security-advisor-jonfiners-meeting-with-colombian-foreign-ministeralvaro-leyva/.
140 See United States Department of State, U.S.Costa Rica Joint Commitment to Address the
Hemispheric Challenge of Irregular Migration (June
12, 2023), https://www.state.gov/u-s-costa-ricajoint-commitment-to-address-the-hemisphericchallenge-of-irregular-migration/.
141 See United States Department of State,
Announcement of Safe Mobility Office in Ecuador
(Oct. 19, 2023), https://www.state.gov/
announcement-of-safe-mobility-office-in-ecuador/.
142 See, e.g., USAID, Administrator Samantha
Power at the Summit of the Americas Fair
Recruitment and H–2 Visa Side Event, https://
www.usaid.gov/news-information/speeches/jun-92022-administrator-samantha-power-summitamericas-fair-recruitment-and-h-2-visa (Jun. 9,
2022) (‘‘Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the
Foreign Ministry in El Salvador] . . . resulted in a
record number of H–2 visas issued in 2021,
including a nearly forty percent increase over the
pre-pandemic levels in H–2B visas issued across all
three countries.’’).
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are suffering irreparable harm or will
suffer impending irreparable harm.
Third, the 20,000 set-aside will
deliver on the objectives of E.O. 14010,
which, among other initiatives, instructs
the Secretary of Homeland Security and
the Secretary of State to implement
measures to enhance access for
nationals of the Northern Central
American countries to visa programs, as
appropriate and consistent with
applicable law. E.O. 14010 also directs
relevant government agencies to create a
comprehensive regional framework to
address the causes of migration, and to
manage migration throughout North and
Central America.143
Fourth, DHS is allocating these visas
to specific countries to further promote
development and economic stability of
these countries to reduce irregular
migration throughout the Western
Hemisphere.144
As in prior years, DOS will work with
the relevant countries to facilitate
consular interviews, if required,145 and
channels for reporting incidents of fraud
143 See also National Security Council,
Collaborative Migration Management Strategy,
https://www.whitehouse.gov/wp-content/uploads/
2021/07/Collaborative-Migration-ManagementStrategy.pdf (July 2021) (stating that ‘‘The United
States has strong national security, economic, and
humanitarian interests in reducing irregular
migration and promoting safe, orderly, and humane
migration’’ within North and Central America).
144 See, e.g., https://twitter.com/DHSgov/status/
1580310211931144194?ref_src=twsrc%5Etfw (this
supplemental allocation to workers from Haiti,
Honduras, Guatemala, and El Salvador ‘‘advances
the Biden Administration’s pledge, under the L.A.
Declaration to expand legal pathways as an
alternative to irregular migration’’); The White
House, Fact Sheet: The Los Angeles Declaration on
Migration and Protection U.S, Government and
Foreign Partner Deliverables, https://
www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-and-foreign-partner-deliverables/
(addressing several measures, including the H–2B
allocation for nationals of Haiti, as part of ‘‘the
President’s commitment to support the people of
Haiti’’).
145 As noted previously, some consular sections
may waive the in-person interview requirement for
H–2B applicants whose prior visa expired within a
specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h),
8 U.S.C. 1202(h). The authority allowing for waiver
of interview of certain H–2 (temporary agricultural
and non-agricultural workers) applicants is
extended through the end of 2023. Certain
applicants renewing a visa in the same
classification within 48 months of the prior visa’s
expiration are also eligible for interview waiver.
DOS, Important Announcement on Waivers of the
Interview Requirement for Certain Nonimmigrant
Visas, https://travel.state.gov/content/travel/en/
News/visas-news/important-announcement-onwaivers-of-the-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23,
2022); DOS, Extension of Interview Waivers for
Certain Nonimmigrant Visa Applicants, https://
www.state.gov/extension-of-interview-waivers-forcertain-nonimmigrant-visa-applicants/ (last
updated Dec. 23, 2022).
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and abuse within the H–2 programs.
Further, each country’s own consular
networks will maintain contact with the
workers while in the United States and
ensure the workers know their rights
and responsibilities under the U.S.
immigration laws, which are all
valuable protections to the immigration
system, U.S. employers, U.S. workers,
and workers entering the country on H–
2 visas. DHS has determined that
reserving 20,000 supplemental H–2B
visas towards the country-specific
allocation and inclusion of additional
countries this fiscal year is reasonable
given the progressively increasing use of
H–2B visas in recent years among the
Northern Central American and Haitian
populations, as noted above. DHS
believes these aspects will encourage
U.S. employers that are suffering
irreparable harm or will suffer
impending irreparable harm to seek out
workers from such countries, while, at
the same time, increase interest among
such nationals seeking a legal pathway
for temporary employment in the
United States. DHS also believes its
outreach efforts with the governments of
these countries, along with efforts in
some of these countries by USAID to
increase access to the H–2B program,
support the decision to provide this
allocation of 20,000 visas. USAID has
worked to build government capacity in
Northern Central America to facilitate
access to temporary worker visas under
the H–2 program. Collaborating closely
with the governments of El Salvador,
Guatemala, and Honduras, USAID has
strengthened the capacity of relevant
government ministries to transparently
and efficiently match qualified workers
to temporary labor opportunities in the
United States. In Fiscal Years 2021,
2022, and 2023 USAID increased
funding to expand capacity building
activities in El Salvador, Guatemala, and
Honduras in response to the increased
demand generated by the supplemental
allocations of H–2B visas for Northern
Central American nationals included in
the FY 2021, FY 2022, and FY 2023
TFRs. The acceleration of USAID’s
activities likely helped increase uptake
of H–2B visas issuance under the FY
2021, FY 2022, and FY 2023 TFRs, as
H–2B visa issuances to Salvadorans,
Guatemalans and Hondurans increased
significantly over prior years,146 and
146 See DOS, Nonimmigrant Visa Issuance
Statistics, Nonimmigrant Visa Issuances by Visa
Class and by Nationality, https://travel.state.gov/
content/travel/en/legal/visa-law0/visa-statistics/
nonimmigrant-visa-statistics.html (last visited Sept.
26, 2023); U.S. Dep’t of Homeland Security, U.S.
Citizenship and Immigr. Servs., Office of
Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data, queried 10/2023, TRK 13122,
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USAID’s assistance helped reduce the
average period of time to match
qualified workers from these three
countries to requests from U.S.
employers—from 42 days to 14 days in
El Salvador, 55 days to 20 days in
Guatemala, and 24 days to 8 days in
Honduras.147 USAID’s programs also
strengthen worker protections by
helping crowd out unethical recruiters
and providing labor rights education
and resources to seasonal workers.
DOS issued a combined total of
approximately 26,630 H–2B visas to
nationals of the Northern Central
American countries and Haiti from FY
2015 through FY 2020, an average of
approximately 4,400 per year.148 In FY
2021, the first year in which
supplemental H–2B visas were reserved
for nationals of Northern Central
American countries, DOS issued a
combined total of 6,277 H–2B visas to
nationals of those countries.149 In FY
2022, DOS issued a combined total of
15,058 H–2B visas to nationals of Haiti
and the Northern Central American
countries.150 In FY 2023, DOS issued a
combined total of 23,816 H–2B visas to
nationals of Haiti and the Northern
Central American countries.151 This
increase is likely due in part to the
additional H–2B visas made available to
nationals of these countries by the FY
2021, FY 2022, and FY 2023 H–2B
supplemental visa temporary final rules.
In addition, based in part on the vital
U.S. interest of promoting sustainable
development and the stability of Haiti,
in November 2021, DHS added Haiti to
the list of countries whose nationals are
eligible to participate in the H–2A and
Issuances for FY 2023 H–2Bs By Requested
Nationality Code.
147 See USAID, Additional H–2B Visa Allocations
for Northern Central America and Haiti to Address
Irregular Migration, https://www.usaid.gov/newsinformation/press-releases/oct-12-2022-additionalH-2B-visa-allocations-northern-central-americaand-haiti#:∼:text=Collaborating%20
closely%20with,eight%20in%20Honduras (Oct. 12,
2022).
148 The ‘‘combined total’’ includes all H–2B visas
and are not limited to visas issued under
supplemental caps. See DOS, Nonimmigrant Visa
Issuance Statistics, Nonimmigrant Visa Issuances
by Visa Class and by Nationality, https://travel.
state.gov/content/travel/en/legal/visa-law0/visastatistics/nonimmigrant-visa-statistics.html.
149 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, C3 Consolidated, DOS
Issuance Data, queried 10/2022, TRK #10698.
150 See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of
Performance and Quality, C3 Consolidated, DOS
Issuance Data, queried 10/2022, TRK #10698.
151 DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data,
queried 10/2023, TRK 13122, Issuances for FY 2023
H–2Bs By Requested Nationality Code.
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H–2B programs.152 Therefore, as
previously stated, DHS has determined
that the additional increase in FY 2024
will not only provide U.S. businesses
that have been unable to find qualified
and available U.S. workers with
potential workers, but also promote
further expansion of lawful immigration
and lawful employment authorization
for nationals of the specified countries.
The exemption from the returning
worker requirement recognizes the
small, albeit increasing, number of
individuals from the three Northern
Central American countries and Haiti,
and the small number of individuals
from Colombia, Ecuador, and Costa
Rica,153 who were previously granted
H–2B visas in recent years. Absent this
exemption, there may be an insufficient
number of qualifying workers from
these countries to use the allocated
visas. Exempting this population from
the returning worker requirement will
increase the ability of workers from
these countries to pursue lawful
temporary work in the U.S., encourage
employers to seek out individuals from
these countries, and maximize the
chance of meeting the goal of reaching
the full allocation.
USCIS will stop accepting petitions
received under the country-specific
allocation after September 16, 2024.
This end date should provide H–2B
employers ample time, should they
choose, to petition for, and bring in,
workers under the country-specific
allocation. This, in turn, provides an
opportunity for employers to contribute
to our country’s efforts to promote and
improve safety, security and economic
stability in these countries to help stem
the flow of irregular migration to the
United States. Nothing in this rule will
limit the authority of DHS or DOS to
deny, revoke, or take any other lawful
action with respect to an H–2B petition
or visa application at any time before or
after approval of the H–2B petition or
visa application.
152 See Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H–2A
and H–2B Nonimmigrant Worker Programs, 86 FR
62559, 62562, https://www.govinfo.gov/content/
pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10,
2021).
153 During fiscal years 2021 and 2022, the
Department of State issued 74 and 247 H–2B visas
respectively to Colombian nationals, 35 and 115 H–
2B visas respectively to Ecuadorian nationals, and
204 and 283 H–2B visas respectively to Costa Rican
nationals. See Characteristics of H–2B
Nonagricultural Temporary Workers Fiscal Year
2021 Report to Congress, https://www.uscis.gov/
sites/default/files/document/reports/H-2B-FY21Characteristics-Report.pdf (Mar. 10, 2022);
Characteristics of H-2B Nonagricultural Temporary
Workers Fiscal Year 2022 Report to Congress,
https://www.uscis.gov/sites/default/files/document/
data/USCIS_H2B_FY22_Characteristics_Report.pdf
(Feb. 14, 2023).
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E. Business Need Standard—Irreparable
Harm and FY 2024 Attestation
To file any H–2B petition under this
rule, petitioners must meet all existing
H–2B eligibility requirements, including
having an approved, valid, and
unexpired TLC. See 8 CFR 214.2(h)(6)
and 20 CFR part 655, subpart A. The
TLC process focuses on establishing
whether a petitioner has a temporary
need for workers and whether there are
U.S. workers who are able, willing,
qualified, and available to perform the
temporary service or labor, and does not
address the harm a petitioner is facing
or will face in the absence of such
workers; the attestation addresses this
question. In addition, under this rule,
the petitioner must submit an attestation
to USCIS in which the petitioner
affirms, under penalty of perjury, that it
meets the business need standard—that
they are suffering irreparable harm or
will suffer impending irreparable harm
(that is, permanent and severe financial
loss) without the ability to employ all of
the H–2B workers requested on their
petition.154 In addition to asserting that
it meets the business need standard, the
employer must attest that, by the time
of submission of the petition to USCIS,
they have prepared and retained a
detailed written statement describing
how the evidence gathered in support of
their petition demonstrates that
irreparable harm is occurring or
impending. The employer must also
attest that, upon request, it will provide
to DHS and/or DOL all documentary
evidence that supports its claim of
irreparable harm, along with the
detailed written statement it prepared
by the time of submitting the petition to
USCIS, describing how such evidence
demonstrates irreparable harm. The
petitioner must submit the attestation
directly to USCIS, together with Form I–
129, the approved and valid TLC,155 and
any other necessary documentation. As
in the rules implementing prior years’
temporary cap increases, employers will
be required to complete the new
attestation form which can be found at:
154 An employer may request fewer workers on
the H–2B petition than the number of workers listed
on the TLC. See Instructions for Petition for
Nonimmigrant Worker, providing that ‘‘the total
number of workers you request on the petition must
not exceed the number of workers approved by the
Department of Labor or Guam Department of Labor,
if required, on the temporary labor certification.’’
155 Since July 26, 2019, USCIS has been accepting
a printed copy of the electronic one-page ETA–
9142B, Final Determination: H–2B Temporary
Labor Certification Approval, as an original,
approved TLC. See Notice of DHS’s Requirement of
the Temporary Labor Certification Final
Determination Under the H–2B Temporary Worker
Program, 85 FR 13178, 13179 (Mar. 6, 2020).
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80419
https://www.foreignlaborcert.doleta.gov/
form.cfm.156
The irreparable harm standard is the
same as in the temporary final rule for
the second half of FY 2022 and the
temporary final rule for FY 2023. The
irreparable harm standard requires
employers to attest that they are
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ all of the H–2B
workers requested on the petition filed
under this rule.
As noted above, Congress authorized
the Secretary of Homeland Security, in
consultation with the Secretary of
Labor, to increase the total number of
H–2B visas available ‘‘upon the
determination that the needs of
American businesses cannot be
satisfied’’ with U.S. workers.157 The
irreparable harm standard in this rule
aligns with this determination that
Congress requires DHS to make before
increasing the number of H–2B visas
available to U.S. employers. In
particular, requiring employers to attest
that they are suffering irreparable harm
or will suffer impending irreparable
harm without the ability to employ all
of the requested H–2B workers is
directly relevant to the needs of the
business—if an employer is suffering or
will suffer irreparable harm, then their
needs are not being satisfied. Because
the authority to increase the statutory
cap is tied to the needs of businesses,
the Departments think it is reasonable
for employers to attest that they are
suffering irreparable harm or that they
will suffer impending irreparable harm
without the ability to employ all of the
H–2B workers requested on their
petition. If such employers are unable to
attest to such harm and retain and
produce (upon request) documentation
of that harm, it calls into question
whether the need set forth in this rule
cannot in fact be satisfied without the
ability to employ H–2B workers.
As in the FY 2023 rule, this rule also
requires an employer to attest that it has
prepared a detailed written statement
describing (i) how the employer’s
business is suffering irreparable harm or
will suffer impending irreparable harm
without the ability to employ all H–2B
workers requested on the I–129 petition,
and (ii) how each type of evidence
156 The attestation requirement does not apply to
workers who have already been counted under the
H–2B statutory caps for fiscal year 2024. Further,
the attestation requirement does not apply to
noncitizens who are exempt from the fiscal year
2024 H–2B statutory cap, including those who are
extending their stay in H–2B status. Accordingly,
petitioners that are filing on behalf of such workers
are not subject to the attestation requirement.
157 See section 303 of Public Law 117–328, as
extended by Public Law 118–15.
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relied upon by the employer
demonstrates the applicable irreparable
harm. The employer will not submit this
detailed written statement to DHS with
its petition for supplemental visas, but
will attest on the attestation form to
having prepared a detailed written
statement. The detailed written
statement must be provided to DHS
and/or DOL upon request in the event
of an audit or during the course of an
investigation. This requirement was first
introduced in the FY 2023 TFR to
provide additional clarity informed by
the Departments’ experiences in
assessing the irreparable harm standard
in previous years.
As explained in the FY 2023 TFR, the
attestation that irreparable harm is
occurring or is impending cannot be
based on a speculative analysis that
permanent or severe financial loss ‘‘may
occur’’ or ‘‘is likely to occur.’’ Rather, as
of the time of submission to DHS,
employers must have concrete evidence
establishing that severe and permanent
financial loss is occurring, with the
scope and severity of harm clearly
articulable, or that severe and
permanent financial loss will occur in
the near future without access to the
supplemental visas. Even if no
irreparable harm ultimately occurs
because the employer is approved for
supplemental visas under this rule, the
employer must be able to articulate how
permanent and severe financial loss was
impending at the time of filing.
Additionally, in DOL’s experience,
employers sometimes do not retain the
documentation they specifically attested
they would retain, or will not or cannot
explain how this documentation
demonstrates the relevant irreparable
harm to which they attested, which
indicates that some of the employers
seeking to benefit from hiring H–2B
workers are not thoughtfully
considering, or considering at all,
whether their business needs qualify
them for supplemental H–2B visas
under these rules.
Additionally, the Departments
continue to believe that the written
statement is necessary in the case of an
audit or investigation to explain, in
detail, the employer’s reasoning as to
why irreparable harm was occurring or
impending without the ability to
employ H–2B workers, and how the
evidence supports the employer’s
reasoning. In audits and investigations,
some employers have provided
hundreds of pages of evidence without
any explanation as to how this evidence
demonstrates irreparable harm, leaving
DOL or DHS to determine how a
voluminous compilation of complex
and, sometimes, seemingly unrelated
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documents demonstrates irreparable
harm without any understanding of the
employer’s intent when providing the
documents. A detailed, thoughtful
explanation from the employer will
clarify the purpose of these documents
and allow the employer to clearly make
their case that the business was
experiencing irreparable harm or would
experience impending irreparable harm
at the time of petitioning for
supplemental visas.
As such, the Departments believe that
it is prudent to require employers to
identify how they are suffering
irreparable harm (that is, permanent or
severe financial loss), or will suffer
impending irreparable harm, and how
the evidence they will maintain shows
that harm was occurring or impending,
at the time they petition for H–2B visas
under this rule. The written statement
should identify, in detail, the severe and
permanent financial loss that is
occurring or will occur in the near
future without access to the
supplemental visas and should describe
how the information contained in the
documentary evidence demonstrates
this severe and permanent financial
loss. A written statement explaining that
no irreparable harm occurred because
the employer was approved for
supplemental H–2B visas is insufficient;
if no irreparable harm actually occurred,
the employer must be able to show that
irreparable harm was impending at the
time of the petition’s filing. Supporting
evidence of the employer’s irreparable
harm (either occurring or impending)
maintained and discussed in the
detailed written statement may include,
but is not limited to, the following types
of documentation:
(1) Evidence that the business is
suffering or will suffer in the near future
permanent and severe financial loss due
to the inability to meet financial or
existing contractual obligations because
they were unable to employ H–2B
workers, including evidence of
contracts, reservations, orders, or other
business arrangements that have been or
would be cancelled, and evidence
demonstrating an inability to pay debts/
bills;
(2) Evidence that the business is
suffering or will suffer in the near future
permanent and severe financial loss, as
compared to prior years, such as
financial statements (including profit/
loss statements) comparing the
employer’s period of need to prior years;
bank statements, tax returns, or other
documents showing evidence of current
and past financial condition; and
relevant tax records, employment
records, or other similar documents
showing hours worked and payroll
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comparisons from prior years to the
current year;
(3) Evidence showing the number of
workers needed in the previous three
seasons (FY 2021, 2022, and 2023) to
meet the employer’s need as compared
to those currently employed or expected
to be employed at the beginning of the
start date of need. Such evidence must
indicate the dates of their employment,
and their hours worked (for example,
payroll records) and evidence showing
the number of H–2B workers it claims
are needed, and the workers’ actual
dates of employment and hours worked;
and/or
(4) Evidence that the petitioner is
reliant on obtaining a certain number of
workers to operate, based on the nature
and size of the business, such as
documentation showing the number of
workers it has needed to maintain its
operations in the past, or will in the
near future need, including but not
limited to: a detailed business plan,
copies of purchase orders or other
requests for good and services, or other
reliable forecast of an impending need
for workers.
These examples are not exhaustive,
nor will they necessarily establish that
the business meets the irreparable harm
standard; petitioners may retain other
types of evidence they believe will
satisfy these standards. Such evidence
must be maintained and provided, with
the written statement, to DOL and/or
DHS upon request.
While the employer will not submit
the detailed written statement nor the
supporting evidence to DHS at the time
of filing a petition for H–2B visas under
this rule, the Departments emphasize
that the employer must prepare the
detailed written statement and compile
the evidence at the time of filing. The
employer must complete the analysis as
to whether the employer is experiencing
irreparable harm or will experience
impending irreparable harm at the time
the employer petitions for supplemental
visas using evidence available at this
time. In the interest of efficiency, the
Departments do not require the
submission of this statement to DHS at
the time of filing the petition. Instead,
the employer must attest that it has
prepared the detailed written statement.
The attestation form will serve as
prima facie initial evidence to DHS that
the petitioner’s business is suffering
irreparable harm or will suffer
impending irreparable harm. USCIS
may reject in accordance with 8 CFR
103.2(a)(7)(ii) or deny in accordance
with 8 CFR 103.2(b)(8)(ii), as applicable,
any petition requesting H–2B workers
under this FY 2024 supplemental cap
that is lacking the requisite attestation
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form. Although this regulation does not
require submission of evidence and/or a
detailed written statement at the time of
filing of the petition, other than an
attestation, the employer must have
such evidence and the accompanying
detailed written statement on hand and
ready to present to DHS and/or DOL at
any time starting with the date of filing
the I–129 petition, through the
prescribed document retention period
discussed below.
As with petitions filed under the FY
2021, FY 2022, and FY 2023
Supplemental TFRs, the Departments
intend to select a significant number of
petitions for audit examination to verify
compliance with program requirements,
including the irreparable harm standard
and recruitment provisions
implemented through this rule. The
Departments may consider failure to
provide evidence demonstrating
irreparable harm, to prepare or provide
the detailed written statement
explaining irreparable harm, or to
comply with the audit process to be a
substantial violation resulting in an
adverse agency action on the employer,
including assessment of a civil money
penalty, revocation of the petition and/
or TLC, or program debarment.
Similarly, failure to cooperate with any
compliance review, evaluation,
verification, or inspection conducted by
DHS and/or DOL as required by 8 CFR
214.2(h)(6)(xiv)(B)(2)(v) and (vi) may
constitute a violation of the terms and
conditions of an approved petition and
lead to petition revocation under 8 CFR
214.2(h)(11)(iii)(A)(3).
The attestation submitted to USCIS
will also state that the employer:
(1) meets all other eligibility criteria
for the available visas, including the
returning worker requirement, unless
exempt because the H–2B worker is a
national of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica who is counted against the
20,000 visas reserved for such workers;
(2) will comply with all assurances,
obligations, and conditions of
employment set forth in the Application
for Temporary Employment
Certification (Form ETA 9142B and
appendices) certified by DOL for the job
opportunity (which serves as the TLC);
(3) will conduct additional
recruitment of U.S. workers in
accordance with the requirements of
this rule and discussed further below;
and
(4) will document and retain evidence
of such compliance.
Because petitioners will submit the
attestation to USCIS as initial evidence
with Form I–129, DHS considers the
attestation to be evidence that is
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incorporated into and a part of the
petition consistent with 8 CFR
103.2(b)(1). Accordingly, USCIS may
deny or revoke, as applicable, a petition
based on or related to statements made
in the attestation, including but not
limited to the following grounds: (1) the
employer failed to demonstrate
employment of all of the requested
workers is necessary under the
appropriate business need standard; or
(2) the employer failed to demonstrate
that it requested and/or instructed that
each worker petitioned for is a returning
worker, or a national of one of the
specified countries, as required by this
rule. The petitioner may appeal any
denial or revocation on such basis,
however, under 8 CFR part 103,
consistent with DHS regulations and
existing USCIS procedures.
It is the view of the Secretaries of
Homeland Security and Labor that
requiring a post-TLC attestation to
USCIS is the most practical approach to
applying the eligibility requirements of
this rule without causing undue delays
in the filing or adjudication processes
for those employers with start dates in
the first half of the fiscal year, many of
whom will have already begun or
completed the TLC application process.
The Departments have determined that,
if such employers were required to
submit the attestation form to DOL
before filing a petition with DHS, the
attendant delays would negatively
impact the ability of American
businesses to timely get the help that
they need given TLC processing
timeframes. For consistency and to
avoid confusion, the Departments will
also maintain the post-TLC attestation
process for employers with start dates in
the second half of the fiscal year that
seek supplemental H–2B visas under
this rule. This approach, in conjunction
with additional integrity safeguards, has
been used consistently in prior
supplemental H–2B temporary final
rules, and the Departments will
continue to monitor its effectiveness
and sufficiency.
As in prior years, all employers under
this rule are required to retain
documentation, which the employer
must provide upon request by DHS and/
or DOL, supporting the new attestations
regarding (1) the irreparable harm
standard; (2) the returning worker
requirement, or, alternatively,
documentation supporting that the H–
2B worker(s) requested is a national of
one of the specified countries who is
counted against the 20,000 countryspecific allocation (which may be
satisfied by the separate Form I–129 that
employers are required to file for such
workers in accordance with this rule);
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and (3) a recruitment report for any
additional recruitment required under
this rule for a period of 3 years. See 20
CFR 655.65. Although the employer
must have such documentation on hand
at the time it files the petition, the
Departments do not believe it is
necessary or efficient for all employers
to submit such documentation to USCIS
at the time of filing the petition.
However, as noted above, the
Departments will employ program
integrity measures, including additional
scrutiny by DHS of employers that have
committed labor law violations in the
H–2B program, and continue to conduct
audits, investigations, and/or postadjudication compliance reviews on a
significant number of H–2B petitions.
As part of that process, USCIS may issue
a request for additional evidence, a
notice of intent to revoke, or a
revocation notice, based on the review
of such documentation, see 8 CFR
103.2(b) and 8 CFR 214.2(h)(11), and
DOL’s OFLC and WHD will be able to
review this documentation and enforce
the attestations during the course of an
audit examination or investigation.
In accordance with the attestation
requirements, under which petitioners
attest that they meet the irreparable
harm standard, that they are seeking to
employ only returning workers (unless
exempt as described above), and that
they meet the document retention
requirements at 20 CFR 655.65,
petitioners must retain documents and
records fulfilling their responsibility to
demonstrate compliance with this rule
for 3 years from the date the TLC was
approved, and must provide the
documents and records upon the
request of DHS and/or DOL. With regard
to the irreparable harm standard,
employers attesting that they are
suffering irreparable harm must be able
to provide concrete evidence
establishing severe and permanent
financial loss that is occurring; the
scope and severity of the harm must be
clearly articulable. Employers attesting
that they will suffer impending
irreparable harm must be able to
demonstrate that severe and permanent
financial loss will occur in the near
future without access to the
supplemental visas. It will not be
enough to provide evidence suggesting
that such harm may or is likely to occur;
rather, the documentary evidence must
show that impending harm is occurring
or will occur and document the form of
such harm. Examples of possible types
of evidence to be maintained are listed
earlier in this section.
When a petition is selected for audit
examination, or investigation, DHS and/
or DOL will review all evidence
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available to it to confirm that the
petitioner properly attested to DHS, at
the time of filing the petition, that their
business was suffering irreparable harm
or would suffer impending irreparable
harm, and that they petitioned for and
employed only returning workers,
unless the H–2B worker is a national of
one of the specific countries counted
towards the 20,000 country-specific
allocation, among other attestations. If
DHS subsequently finds that the
evidence does not support the
employer’s attestations, DHS may deny
or, if the petition has already been
approved, revoke the petition at any
time consistent with existing regulatory
authorities. DHS may also, or
alternatively, refer the petitioner to DOL
for further investigation. In addition,
DOL may independently take
enforcement action, including by,
among other things, debarring the
petitioner from the H–2B program for
not less than one year or more than five
years from the date of the final agency
decision, which also disqualifies the
debarred party from filing any labor
certification applications or labor
condition applications with DOL for the
same period set forth in the final
debarment decision. See, e.g., 20 CFR
655.73; 29 CFR 503.20, 503.24.158
Evidence reflecting a preference for
hiring H–2B workers over U.S. workers
may warrant an investigation by
additional agencies enforcing
employment and labor laws, such as the
Immigrant and Employee Rights Section
(IER) of the Department of Justice’s Civil
Rights Division. See INA section 274B,
8 U.S.C. 1324b (prohibiting certain
types of employment discrimination
based on citizenship status or national
origin). Moreover, DHS and DOL may
refer potential discrimination to IER
pursuant to applicable interagency
agreements. See IER, Partnerships,
https://www.justice.gov/crt/partnerships
(last visited Sept. 26, 2023). In addition,
if members of the public have
information that a participating
employer may be abusing this program,
DHS invites them to notify USCIS by
completing the online fraud tip form,
https://www.uscis.gov/report-fraud/
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158 Pursuant
to the statutory provisions governing
enforcement of the H–2B program, INA section
214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists
under the H–2B program where there has been a
willful misrepresentation of a material fact in the
petition or a substantial failure to meet any of the
terms and conditions of the petition. A substantial
failure is a willful failure to comply that constitutes
a significant deviation from the terms and
conditions. See, e.g., INA section 214(c)(14)(D), 8
U.S.C. 1184(c)(14)(D); see also 29 CFR 503.19.
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uscis-tip-form (last visited Sept. 26,
2023).159
DHS, in exercising its statutory
authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), and section 303 of
the FY 2023 Omnibus, as extended by
Public Law 118–15, is responsible for
adjudicating eligibility for H–2B
classification. As in all cases, the
burden rests with the petitioner to
establish eligibility by a preponderance
of the evidence. INA section 291, 8
U.S.C. 1361. Matter of Chawathe, 25
I&N Dec. 369, 375–76 (AAO 2010).
Accordingly, as noted above, where the
petition lacks initial evidence, such as
a properly completed attestation, USCIS
may, as applicable, reject the petition in
accordance with 8 CFR 103.2(a)(7)(ii) or
deny the petition in accordance with 8
CFR 103.2(b)(8)(ii). Further, where the
initial evidence submitted with the
petition contains inconsistencies or is
inconsistent with other evidence in the
petition and the underlying TLC, USCIS
may issue a Request for Evidence,
Notice of Intent to Deny, or Denial in
accordance with 8 CFR 103.2(b)(8). In
addition, where it is determined that an
H–2B petition filed pursuant to the FY
2023 Omnibus, as extended by Public
Law 118–15, was granted erroneously,
the H–2B petition approval may be
revoked. See 8 CFR 214.2(h)(11).
Because of the particular
circumstances of this regulation, and
because the attestation and other
requirements of this rule play a vital
role in achieving the purposes of this
rule, DHS and DOL intend that the
attestation requirement, DOL
procedures, and other aspects of this
rule be non-severable from the
remainder of the rule, including the
increase in the numerical allocations.160
Thus, if the attestation requirement or
any other part of this rule is enjoined or
held invalid, the Departments intend for
the remainder of the rule, with the
exception of the retention requirements
being codified in 20 CFR 655.65, to
cease operation in the relevant
jurisdiction, without prejudice to
workers already present in the United
States under this regulation, as
consistent with law.
159 DHS may publicly disclose information
regarding the H–2B program consistent with
applicable law and regulations. For information
about DHS disclosure of information contained in
a system of records, see https://www.dhs.gov/
system-records-notices-sorns. Additional general
information about DHS privacy policy can be
accessed at https://www.dhs.gov/policy.
160 The Departments’ intentions with respect to
non-severability extend to all features of this rule
other than the portability provision, which is
described in the section below.
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F. Portability
As an additional option for employers
that cannot find U.S. workers, and as an
additional flexibility for H–2B
employees seeking to begin work with a
new H–2B employer, this rule allows
petitioners to immediately employ
certain H–2B workers who are present
in the United States in H–2B status
without waiting for approval of the H–
2B petition, generally for a period of up
to 60 days. Such workers must be
beneficiaries of a timely, non-frivolous
H–2B petition requesting an extension
of stay received on or after January 25,
2024, but no later than 1 year after that
date.161 In addition, such workers must
have been lawfully admitted to the
United States and have not worked
without authorization subsequent to
such lawful admission. Additionally,
petitioners may immediately employ
individuals who are beneficiaries of a
non-frivolous H–2B petition requesting
an extension of the worker’s stay that is
pending as of January 25, 2024 without
waiting for approval of the H–2B
petition. To be eligible for portability,
employers must have received an
approved TLC demonstrating that they
have completed a test of the U.S. labor
market, and that DOL determined that
there were no qualified U.S. workers
available to fill these temporary
positions. DHS is making this
portability available for an additional
one-year period in order to provide
greater certainty for H–2B employers
and workers.162
The portability provision at new 8
CFR 214.2(h)(31) is substantively the
same as the portability provision offered
in the FY 2023 H–2B supplemental visa
temporary final rule, which was
codified at 8 CFR 214.2(h)(29), and will
begin upon the expiration of that
provision. See new 8 CFR 214.2(h)(31).
Additionally, the provision is similar to
temporary flexibilities that DHS has
used previously to improve employer
161 Individuals who are the beneficiaries of
petitions filed on the basis of 8 CFR 214.1(c)(4) are
not eligible to port to a new employer under 8 CFR
214.2(h)(31).
162 On September 20, 2023, DHS issued a
Modernizing H–2 Program Requirements,
Oversight, and Worker Protections Notice of
Proposed Rulemaking (NPRM), 88 FR 65040, 65066,
with a 60-day public comment period that ends on
November 20, 2023. In that NPRM, DHS proposed
to extend portability to H–2A and H–2B workers on
a permanent basis. The Department’s proposal does
not interfere with the portability provision of this
rule, however, should DHS publish a final rule
making H–2 portability permanent, any such
provision will not expire on a specific date, unlike
the portability provision made effective by this
temporary final rule.
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access to noncitizen workers during the
COVID–19 pandemic.163
The employment authorization
provided under this provision would
end 15 days after USCIS denies the H–
2B petition or such petition is
withdrawn. This 15-day period of
employment following an H–2B petition
denial or withdrawal is consistent with
prior H–2B supplemental cap temporary
final rules, as well as the 15-day period
of employment following petition denial
under existing DHS regulations at 8 CFR
274a.12(b)(21) for certain E-Verify
participants to employ H–2A workers.
As in the prior temporary final rules, the
15-day period is intended to account for
the passage of time between USCIS
denial of the H–2B petition and the
petitioner receiving notice of such
denial.164
DHS is strongly committed not only to
protecting U.S. workers and helping
U.S. businesses receive the documented
workers authorized to perform
temporary nonagricultural services or
labor that they need, but also to
protecting the rights and interests of H–
2B workers (consistent with Executive
Order 13563 and in particular its
reference to ‘‘equity,’’ ‘‘fairness,’’ and
‘‘human dignity’’). In the FY 2020 DHS
Further Consolidated Appropriations
Act (Pub. L. 116–94), Congress directed
DHS to provide options to improve the
163 See Exercise of Time-Limited Authority To
Increase the Fiscal Year 2021 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers 86 FR 28198
(May 25, 2021). On May 14, 2020, DHS published
a temporary final rule in the Federal Register to
amend certain H–2B requirements to help H–2B
petitioners seeking workers to perform temporary
nonagricultural services or labor essential to the
U.S. food supply chain. Temporary Changes to
Requirements Affecting H–2B Nonimmigrants Due
to the COVID–19 National Emergency, 85 FR 28843
(May 14, 2020). In addition, on April 20, 2020, DHS
issued a temporary final rule which, among other
flexibilities, allowed H–2A workers to change
employers and begin work before USCIS approved
the new H–2A petition for the new employer.
Temporary Changes to Requirements Affecting H–
2A Nonimmigrants Due to the COVID–19 National
Emergency, 85 FR 21739 (April 20, 2020). DHS has
subsequently extended that portability provision for
H–2A workers through two additional temporary
final rules, on August 20, 2020, and December 18,
2020, which have been effective for H–2A petitions
that were received on or after August 19, 2020
through December 17, 2020, and on or after
December 18, 2020 through June 16, 2021,
respectively. Temporary Changes to Requirements
Affecting H–2A Nonimmigrants Due To the COVID–
19 National Emergency: Partial Extension of Certain
Flexibilities, 85 FR 51304 (August 20, 2020) and
Temporary Changes to Requirements Affecting H–
2A Nonimmigrants due to the COVID–19 National
Emergency: Extension of Certain Flexibilities, 85 FR
82291 (December 18, 2020).
164 A similar portability provision exists in DHS
regulations related to H–1B nonimmigrant workers,
but does not include a 15-day period. See 8 CFR
214.2(h)(2)(i)(H)(2).
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H–2A and H–2B visa programs, to
include options that would protect
worker rights.165 DHS has determined
that providing H–2B nonimmigrant
workers with the flexibility of being able
to begin work with a new H–2B
petitioner immediately and avoid a
potential job loss or loss of income
while the new H–2B petition is pending,
provides some certainty to H–2B
workers who may have found
themselves in situations that warrant a
change in employers.166 This flexibility
also provides an alternative to H–2B
petitioners who have not been able to
find U.S. workers and who have not
been able to obtain H–2B workers
subject to the statutory or supplemental
caps who have the skills to perform the
job duties. In that sense as well, it is
equitable and fair.
G. Compliance With EmploymentRelated Laws
In recent supplemental cap TFRs
issued during the COVID–19 public
health emergency, the Departments have
specifically required petitioners to attest
that they will comply with all Federal,
State, and local employment-related
laws and regulations, including, where
applicable, with laws related to COVID–
19 worker protections and any right to
time off or paid time off for COVID–19
vaccination, or to reimbursement for
travel to and from the nearest
vaccination site. See, e.g., 8 CFR
214.2(h)(29)(iii)(B). In addition, the
Departments have required petitioners
165 The Joint Explanatory Statement
accompanying the Fiscal Year (FY) 2020
Department of Homeland Security (DHS) Further
Consolidated Appropriations Act (Pub. L. 116–94)
states, ‘‘Not later than 120 days after the date of
enactment of this Act, DHS, the Department of
Labor, the Department of State, and the United
States Digital Service are directed to report on
options to improve the execution of the H–2A and
H–2B visa programs, including: processing
efficiencies; combatting human trafficking;
protecting worker rights; and reducing employer
burden, to include the disadvantages imposed on
such employers due to the current semiannual
distribution of H–2B visas on October 1 and April
1 of each fiscal year. USCIS is encouraged to
leverage prior year materials relating to the issuance
of additional H–2B visas, to include previous
temporary final rules, to improve processing
efficiencies.’’
166 The White House, The National Action Plan
to Combat Human Trafficking, Priority Action 1.5.3,
at p. 25 (Dec 2021); The White House, The National
Action Plan to Combat Human Trafficking, Priority
Action 1.6.3, at p. 20–21 (2020) (Stating that
‘‘[w]orkers sometimes find themselves in abusive
work situations, but because their immigration
status is dependent on continued employment with
the employer in whose name the visa has been
issued, workers may be left with few options to
leave that situation.’’). By providing the option of
changing employers without risking job loss or a
loss of income through the publication of this rule,
DHS believes that H–2B workers may be more likely
to leave abusive work situations, and thereby are
afforded greater worker protections.
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80423
to attest that they would notify any H–
2B workers approved under the
supplemental cap, in a language
understood by the worker as necessary
or reasonable, that all persons in the
United States, including
nonimmigrants, have equal access to
COVID–19 vaccines and vaccine
distribution sites. As the public health
emergency is no longer in effect,167 the
Departments no longer believe it is
necessary to include the requirements
that are specific to COVID–19.
In addition, after removing the
language related to COVID–19, the
Departments believe that the remaining
attestation from these prior rules would
overlap with the general requirement
found at 20 CFR 655.20(z) and 29 CFR
503.16(z) that all employers, as a
condition of their labor certification,
comply with employment-related laws
including health and safety laws. To
avoid confusion the Departments are
also removing this attestation from the
TFR. While there is no additional
attestation with respect to H–2B
petitioners that do not avail themselves
of the supplemental H–2B visas made
available under this rule, the
Departments remind all H–2B
employers that they must comply with
all Federal, State, and local
employment-related laws and
regulations, including health and safety
laws. To the extent that Federal, State,
or local laws and regulations relating to
COVID–19 remain in effect, the
Departments note that an employer
remains obligated to comply with them.
Failure to comply with such laws and
regulations would be contrary to the
attestation 7 on ETA 9142B—Appendix
B, and therefore may be a basis for DHS
to revoke the petition under 8 CFR
214.2(h)(11)(iii)(A)(3) for violating terms
and conditions of the approved
petition.168
H. DHS Petition Procedures
To petition for H–2B workers under
the supplemental allocations in this
rule, the petitioner must file a Form I–
129 at the USCIS Texas Service
Center 169 in accordance with applicable
regulations and form instructions, along
167 See HHS, Fact Sheet: End of the COVID–19
Public Health Emergency (May 9, 2023), https://
www.hhs.gov/about/news/2023/05/09/fact-sheetend-of-the-covid-19-public-health-emergency.html.
168 During the period of employment specified on
the TLC, the employer must comply with all
applicable Federal, State and local employmentrelated laws and regulations, including health and
safety laws. 20 CFR 655.20(z). By submitting the
TLC as evidence supporting the petition, it is
incorporated into and considered part of the benefit
request under 8 CFR 103.2(b)(1).
169 This is a different filing location from the FY
2023 TFR.
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with an unexpired TLC and the
attestation Form ETA–9142–B–CAA–8.
Petitions filed for supplemental
allocations under this rule at any
location other than the USCIS Texas
Service Center will be rejected and the
filing fees will be returned.170 For all
petitions filed under this rule and the
H–2B program, generally, employers
must establish, among other
requirements, that insufficient qualified
U.S. workers are available to fill the
petitioning H–2B employer’s job
opportunity and that the foreign
worker’s employment in the job
opportunity will not adversely affect the
wages or working conditions of
similarly-employed U.S. workers. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8
CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR
655.1. To meet this standard of
protection for U.S. workers and, in order
to be eligible for additional visas under
this rule, employers must have applied
for and received a valid TLC in
accordance with 8 CFR
214.2(h)(6)(iv)(A) and (D) and 20 CFR
part 655, subpart A. Under DOL’s H–2B
regulations, TLCs are valid only for the
period of employment certified by DOL
and expire on the last day of authorized
employment. 20 CFR 655.55(a).
In order to have a valid TLC,
therefore, the employment start date on
the employer’s H–2B petition must not
be different from the employment start
date certified by DOL on the TLC. See
8 CFR 214.2(h)(6)(iv)(D). Under
generally applicable DHS regulations,
the only exception to this requirement
applies when an employer files an
amended H–2B petition, accompanied
by a copy of the previously approved
TLC and a copy of the initial visa
petition approval notice, at a later date
to substitute workers as set forth under
8 CFR 214.2(h)(6)(viii)(B). This rule also
requires additional recruitment for
certain petitioners, as discussed below.
All H–2B petitions must state the
nationality of all the requested H–2B
workers, whether named or unnamed,
even if there are beneficiaries from more
than one country. See 8 CFR
214.2(h)(2)(iii). If filing multiple Forms
I–129 based on the same TLC (for
instance, one requesting returning
workers and another requesting workers
under the country-specific allocation),
170 On Nov. 1, 2023, USCIS changed the service
center filing location for all petitioners filing Forms
I–129, Petition for a Nonimmigrant Worker, to
request H–2B workers. Those petitions should now
be filed at the Texas Service Center. Although
USCIS provided a 60-day grace period for H–2B
petitions that are filed at the California and
Vermont Service Centers during which they could
still be accepted (through Dec. 31, 2023), this grace
period does not apply to petitions filed for
supplemental allocations under this rule.
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each H–2B petition must include a copy
of the TLC and reference all previouslyfiled or concurrently-filed petitions
associated with the same TLC. The total
number of requested workers may not
exceed the total number of workers
indicated on the approved TLC.
Petitioners seeking H–2B
classification for nationals under the
20,000 country-specific visa allocation
that are exempt from the returning
worker provision must file a separate
Form I–129 for those nationals only. See
new 8 CFR 214.2(h)(6)(xiv). In this
regard, a petition must be filed with a
single Form ETA–9142–B–CAA–8 that
clearly indicates that the petitioner is
only requesting nationals from El
Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica who
are exempt from the returning worker
requirement. Specifically, if the
petitioner checks the first box of Form
ETA–9142–B–CAA–8, then the petition
accompanying that form must be filed
only on behalf of nationals of one or
more of these and not other countries.
In such a case, if the Form I–129
petition is requesting beneficiaries from
countries other than one of these
countries, then USCIS may reject it or
issue a request for evidence, notice of
intent to deny, or denial, or, in the case
of a non-frivolous petition, a partial
approval limiting the petition to the
number of beneficiaries who are from
Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica.
Requiring the filing of separate petitions
to request returning workers and to
request workers who are nationals of the
specified countries is necessary to
ensure the operational capability to
properly calculate and manage the
respective additional cap allocations
and to ensure that all corresponding
visa issuances are limited to qualifying
applicants, particularly when such
petitions request unnamed beneficiaries
or are relied upon for subsequent
requests to substitute beneficiaries in
accordance with 8 CFR 214.2(h)(6)(viii).
The attestations must be filed on
Form ETA–9142–B–CAA–8, Attestation
for Employers Seeking to Employ H–2B
Nonimmigrant Workers Under Section
303 of Division O of the Consolidated
Appropriations Act, 2023, Public Law
117–328, as extended by sections 101(6)
and 106 of Division A of the Continuing
Appropriations Act, 2024 and Other
Extensions Act, Public Law 118–15. See
20 CFR 655.64. Petitioners are required
to retain a copy of such attestations and
all supporting evidence for 3 years from
the date the associated TLC was
approved, consistent with 20 CFR
655.56 and 29 CFR 503.17. See 20 CFR
655.65. Petitions submitted to DHS
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pursuant to Public Law 118–15, which
extended the FY 2023 Omnibus, will be
processed in the order in which they
were received within the relevant
supplemental allocation, and pursuant
to processes parallel to those in place
for when numerical limitations are
reached under INA section 214(g)(1)(B)
or (g)(10), 8 U.S.C. 1184(g)(1)(B) or
(g)(10).
All filings under the supplemental
allocations in this rule must be filed at
the USCIS Texas Service Center. USCIS
will reject petitions filed under the
supplemental allocations in this rule at
any location other than the USCIS Texas
Service Center and will return the filing
fees for any such petition.
Immediately upon publication of the
rule, but no earlier than that date,
USCIS will begin accepting returning
worker H–2B petitions requesting dates
of need starting on or before March 31,
2024, as well as H–2B petitions for
workers under the country-specific
allocation with dates of need in the first
half of FY 2024. Beginning no earlier
than 15 days after the second half
statutory cap is reached, USCIS will
begin accepting returning worker H–2B
petitions requesting work to begin on or
after April 1, 2024, through May 14,
2024, as well as H–2B petitions for
workers under the country-specific
allocation with dates of need on or after
April 1, 2024 through September 30,
2024. Finally, beginning no earlier than
45 days after the second half statutory
cap is reached, USCIS will begin
accepting returning worker H–2B
petitions requesting work to begin on or
after May 15 through September 30,
2024.
USCIS will reject any returning
worker petition that is received after
September 16, 2024, or after the
applicable numerical limitation has
been reached. DHS believes that 15 days
from the end of the fiscal year is the
minimum time needed for petitions to
be adjudicated, although USCIS cannot
guarantee the time period will be
sufficient in all cases. Therefore, even if
the country-specific allocation and
second half supplemental allocations
provided in this rule have not yet been
reached, USCIS will stop accepting
petitions under those allocations that
are received after September 16, 2024.
See new 8 CFR 214.2(h)(6)(xiv)(C). Such
petitions will be rejected and the filing
fees will be returned. Petitioners may
choose to request premium processing
of their petitions under 8 CFR 106.4,
which allows for expedited processing
for an additional fee.
Based on the time-limited authority
granted to DHS by Public Law 118–15,
on the same terms as section 303 of the
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FY 2023 Omnibus, DHS is notifying the
public that USCIS cannot approve
petitions seeking H–2B workers under
this rule on or after October 1, 2024. See
new 8 CFR 214.2(h)(6)(xiv)(C). Petitions
pending with USCIS that are not
approved before October 1, 2024 will be
denied and any fees will not be
refunded. See new 8 CFR
214.2(h)(6)(xiv)(C).
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I. DOL Procedures
As noted above, all employers are
required to have an approved and valid
TLC from DOL in order to file a Form
I–129 petition with DHS. See 8 CFR
214.2(h)(6)(iv)(A) and (D). The
standards and procedures governing the
submission and processing of
Applications for Temporary
Employment Certification for employers
seeking to hire H–2B workers are set
forth in 20 CFR part 655, subpart A. An
employer that seeks to hire H–2B
workers must request a TLC in
compliance with the application filing
requirements set forth in 20 CFR 655.15
and meet all the requirements of 20 CFR
part 655, subpart A, to obtain a valid
TLC, including the criteria for
certification set forth in 20 CFR 655.51.
See 20 CFR 655.64(a) and 655.50(b).
Employers with an approved TLC have
conducted recruitment, as set forth in 20
CFR 655.40 through 655.48, to
determine whether U.S. workers are
qualified and available to perform the
work for which employers sought H–2B
workers.
The H–2B regulations require that,
among other things, an employer
seeking to hire H–2B workers in a nonemergency situation must file a
completed Application for Temporary
Employment Certification with the
National Processing Center (NPC)
designated by the OFLC Administrator
no more than 90 calendar days and no
fewer than 75 calendar days before the
employer’s date of need (i.e., start date
for the work). See 20 CFR 655.15.
Emergency Procedures
Under 20 CFR 655.17, an employer
may request a waiver of the time
period(s) for filing an Application for
Temporary Employment Certification
based on ‘‘good and substantial’’ cause,
provided that the employer has
sufficient time to thoroughly test the
domestic labor market on an expedited
basis and the OFLC certifying officer
(CO) has sufficient time to make a final
determination as required by the
regulation. To rely on this provision, as
the Departments explained in the 2015
H–2B Interim Final Rule, the employer
must provide the OFLC CO with
detailed information describing the
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‘‘good and substantial cause’’
necessitating the waiver. Such cause
may include the substantial loss of U.S.
workers due to Acts of God, or a similar
unforeseeable human-made catastrophic
event that is wholly outside the
employer’s control, unforeseeable
changes in market conditions, or
pandemic health issues. Thus, to ensure
an adequate test of the domestic labor
market and to protect the integrity of the
H–2B program, the Departments clearly
intended that use of emergency
procedures must be narrowly construed
and permitted in extraordinary and
unforeseeable catastrophic
circumstances that have a direct impact
on the employer’s need for the specific
services or labor to be performed. Even
under the existing H–2B statutory visa
cap structure, DOL considers USCIS’
announcement(s) that the statutory
cap(s) on H–2B visas has been reached,
which may occur with regularity every
six months depending on H–2B visa
need, as foreseeable, and therefore not
within the meaning of ‘‘good and
substantial cause’’ that would justify a
request for emergency procedures.
Accordingly, employers cannot rely
solely on the supplemental H–2B visas
made available through this rule as good
and substantial cause to use emergency
procedures under 20 CFR 655.17.
Additional Recruitment
In addition to the recruitment already
conducted in connection with a valid
TLC, to ensure the recruitment has not
become stale, employers that wish to
obtain visas for their workers under 8
CFR 214.2(h)(6)(xiv), and who file an I–
129 petition 30 or more days after the
certified start date of work on the TLC
must conduct additional recruitment for
U.S. workers. As noted in the 2015 H–
2B Interim Final Rule, U.S. workers
seeking employment in temporary
nonagricultural jobs typically do not
search for work months in advance and
cannot make commitments about their
availability for employment far in
advance of the work start date. See 80
FR 24041, 24061, 24071. Given that the
temporary labor certification process
generally begins 75 to 90 days in
advance of the employer’s start date of
work, employer recruitment efforts
typically occur between 40 and 60 days
before that date with an obligation to
provide employment to any qualified
U.S. worker who applies until 21 days
before the date of need. Therefore,
employers with TLCs containing a start
date of work on October 1, 2023, for
example, likely conducted their positive
recruitment beginning around late-July
and ending around mid-August 2023,
and continued to consider U.S. worker
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applicants and referrals only until
September 10, 2023.
In order to provide U.S. workers a
realistic opportunity to pursue jobs for
which employers will be seeking foreign
workers under this rule, the
Departments have determined that if
employers file an I–129 petition 30 or
more days after their certified start dates
of work, as shown on its approved Form
ETA–9142B, Final Determination: H–2B
Temporary Labor Certification
Approval, they have not conducted
recruitment recently enough for the
DOL to reasonably conclude that there
are currently an insufficient number of
U.S. workers who are qualified, willing,
and available to perform the work
absent taking additional, positive
recruitment steps. As noted in the FY
2022 second half H–2B supplemental
cap TFR, the Departments determined
that this 30-day requirement is
consistent with provisions contained in
previous TFRs and better aligns with the
goal of affording workers an adequate
opportunity to apply for jobs closer to
when they tend to search for temporary
employment, as explained in the 2015
H–2B Interim Final Rule, which found
that U.S. applicants applying for
temporary positions typically offered by
H–2B employers are often not seeking
job opportunities, or making informed
decisions about such work, several
months in advance. See 80 FR 24041,
24071; 87 FR 30334, 30353–54. The
Departments continued to use this 30day requirement in the FY 2023 H–2B
supplemental cap TFR based on the
rationale provided in the FY 2022
second half H–2B supplemental cap
TFR. See 87 FR 76816, 76842–76843.
The Departments have determined that
this requirement is necessary to provide
U.S. workers an opportunity to pursue
jobs for which employers are seeking
supplemental visas.
An employer that files an I–129
petition under 8 CFR 214.2(h)(6)(xiv)
fewer than 30 days after the certified
start date of work on the TLC must
submit the TLC and a completed Form
ETA–9142B–CAA–8 but is not required
to conduct additional recruitment for
U.S. workers beyond the recruitment
already conducted as a condition of
certification. Only those employers with
still-valid TLCs with a certified start
date of work that is 30 or more days
before the date they file a petition will
be required to conduct recruitment in
addition to that conducted prior to
being granted a TLC and attest that the
recruitment will be conducted, as
follows.
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Placement of New Job Orders With State
Workforce Agencies
Employers that are required to engage
in additional recruitment must place a
new job order for the job opportunity
with the State Workforce Agency (SWA)
serving the area of intended
employment no later than the next
business day after submitting an I–129
petition for H–2B workers to USCIS, and
inform the SWA that the job order is
being placed in connection with a
previously submitted and certified
Application for Temporary Employment
Certification for H–2B workers by
providing the SWA with the unique
OFLC TLC case number. Under this
rule, employers must also provide the
OFLC NPC with the unique TLC case
number concurrently with their
placement of new job orders with the
SWAs. This notification will allow
OFLC to cross reference and repost
information about the job opportunities
that are provided on the employers’
certified Applications for Temporary
Labor Certification and posted by OFLC
on SeasonalJobs.dol.gov, which is
DOL’s electronic job registry authorized
under 20 CFR 655.34. Once posted by
OFLC, information about the employer’s
certified job opportunity will remain
posted for a period of at least 15
calendar days, which is consistent with
the period of time SWAs post job orders
for intrastate and interstate clearance to
recruit U.S. workers, as discussed
below. The Departments continue to
believe this additional notification is a
reasonable and cost-efficient method of
disseminating available job
opportunities to a wider audience and
those U.S. workers who may be
interested in applying. While not meant
to recreate it, this action will serve the
same functional purpose as the posting
on Seasonal Jobs. To help employers
who must conduct this notification
requirement, DOL encourages
employers to notify the OFLC NPC, at
the same time notification is sent to the
SWA, by sending an email to H2Bsupplementalvisas@dol.gov, and
including the words ‘‘H–2B TFR 2024
Recruitment’’ followed by the unique
TLC case number in the subject line of
the email.
The new job order placed with the
SWA must contain the job assurances
and contents set forth in 20 CFR 655.18
for recruitment of U.S. workers at the
place of employment, and remain
posted for at least 15 calendar days. The
employer must also follow all
applicable SWA instructions for posting
job orders and receive applications in
all forms allowed by the SWA,
including online applications. The
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19:31 Nov 16, 2023
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Departments have concluded that
keeping the job order posted for a period
of at least 15 calendar days, during the
period the employer is conducting the
additional recruitment steps explained
below and OFLC reposts the job
opportunity information, will effectively
ensure U.S. workers are apprised of the
job opportunity and are referred for
employment, if they are willing,
qualified, and available to perform the
work. The minimum 15 calendar day
period also is consistent with the
employer-conducted recruitment
activity period applicable under 20 CFR
655.40(b).
Once the SWA places the new job
order on its public labor exchange
system, the SWA will perform its
normal employment service activities by
circulating the job order for intrastate
clearance, and in interstate clearance by
providing a copy of the job order to
other SWAs with jurisdiction over listed
worksites as well as those States the
OFLC CO designated in the original
Notice of Acceptance issued under 20
CFR 655.33. Where the occupation or
industry is traditionally or customarily
unionized, the SWA will also circulate
a copy of the new job order to the
central office of the State Federation of
Labor in the State(s) in which work will
be performed, and the office(s) of local
union(s) representing workers in the
same or substantially equivalent job
classification in the area(s) in which
work will be performed, consistent with
its current obligation under 20 CFR
655.33(b)(5). To facilitate an effective
dissemination of these job
opportunities, DOL encourages union(s)
or hiring halls representing workers in
occupations typically used in the H–2B
program to proactively contact and
establish partnerships with SWAs in
order to obtain timely information on
available temporary job opportunities.
This will aid the SWAs’ prompt and
effective outreach under the rule. DOL’s
OFLC maintains a comprehensive
directory of contact information for each
SWA at https://www.dol.gov/agencies/
eta/foreign-labor/contact.
Contact With American Job Centers
The employer also must conduct
additional recruitment steps during the
period of time the SWA is actively
circulating the job order for intrastate
clearance. First, the employer must
contact, by email or other electronic
means, the nearest American Job
Center(s) (AJC) serving the area of
intended employment where work will
commence to request staff assistance to
advertise and recruit U.S. workers for
the job opportunity. AJCs bring together
a variety of programs providing a wide
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range of employment and training
services for U.S. workers, including job
search services and assistance for
prospective workers and recruitment
services for employers through the
Wagner-Peyser Program. Therefore,
AJCs can offer assistance to employers
with recruitment of U.S. workers, and
contact with local AJCs will facilitate
contemporaneous and effective
recruitment activities that can broaden
dissemination of the employer’s job
opportunity through connections with
other partner programs within the OneStop System to locate qualified U.S.
workers to fill the employer’s labor
need. For example, the local AJC,
working in concert with the SWA, can
coordinate efforts to contact
community-based organizations in the
geographic area that serve potentially
qualified workers or, when a job
opportunity is in an occupation or
industry that is traditionally or
customarily unionized, the local AJC
may be better positioned to identify and
circulate the job order to appropriate
local union(s) or hiring hall(s),
consistent with 20 CFR 655.33(b)(5). In
addition, as a partner program in the
One-Stop System, AJCs are connected
with the State’s unemployment
insurance program, thus an employer’s
connection with the AJC will help
facilitate knowledge of the job
opportunity to U.S. workers actively
seeking employment. When contacting
the AJC(s), the employer must provide
staff with the job order number or, if the
job order number is unavailable, a copy
of the job order.
To increase navigability and to make
the process as convenient as possible,
DOL offers an online service for
employers to locate the nearest local
AJC at https://www.careeronestop.org/
and by selecting the ‘‘Find Local Help’’
feature on the main homepage. This
feature will navigate the employer to a
search function called ‘‘Find an
American Job Center’’ where the city,
state or zip code covering the
geographic area where work will
commence can be entered. Once entered
and the search function is executed, the
online service will return a listing of the
name(s) of the AJC(s) serving that
geographic area as well as a contact
option(s) and an indication as to
whether the AJC is a ‘‘comprehensive’’
or ‘‘affiliate’’ center. Employers must
contact the nearest ‘‘comprehensive’’
AJC serving the area of intended
employment where work will
commence or, where a
‘‘comprehensive’’ AJC is not available,
the nearest ‘‘affiliate’’ AJC. A
‘‘comprehensive’’ AJC tends to be a
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large office that offers the full range of
employment and business services, and
an ‘‘affiliate’’ AJC typically is a smaller
office that offers a self-service career
center, conducts hiring events, and
provides workshops or other select
employment services for workers.
Because a ‘‘comprehensive’’ AJC may
not be available in many geographic
areas, particularly among rural
communities, this rule permits
employers to contact the nearest
‘‘affiliate’’ AJC serving the area of
intended employment where a
‘‘comprehensive’’ AJC is not available.
In order to facilitate efficient access to
AJC services, this rule requires that
employers utilize available electronic
methods to contact the nearest AJC to
meet the contact and disclosure
requirements in this rule.
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Contact With AFL–CIO for Jobs in
Traditionally or Customarily Unionized
Occupation or Industry
When a job is in a traditionally or
customarily unionized occupation or
industry, during the time the SWA is
actively circulating the job order the
employer must affirmatively contact the
nearest American Federation of Labor
and Congress of Industrial
Organizations (AFL–CIO) office
covering the area of intended
employment to provide written notice of
the job opportunity and request
assistance in recruiting qualified U.S.
workers who may be interested in
applying for the job opportunity. The
employer must provide the AFL–CIO
office (by mail, email, or other effective
written means) a copy of the job order
placed with the SWA. To determine
which occupations are traditionally or
customarily unionized, and to obtain
information about the proper AFL–CIO
office to contact,171 employers should
171 The Departments have determined that the
requirement for employers to contact the nearest
AFL–CIO office properly balances the goal of
increasing U.S. worker outreach in those H–2B job
opportunities that are in traditionally or
customarily unionized occupations, while still
providing employers with necessary guidance on
recruitment requirements. The AFL–CIO is a
voluntary federation of more than 60 national and
international labor unions covering a substantial
number of union employees. AFL–CIO, About Us,
https://aflcio.org/about-us (last visited October 11,
2023). The H–2B job opportunities in traditionally
or customarily unionized occupations most
frequently fall within those industries most likely
to be organized or represented by AFL–CIO member
unions. Additionally, the AFL–CIO’s status as the
largest federation of unions in the United States
provides for comprehensive national coverage and
increases the chances that a U.S. worker will be
hired. See AFL–CIO Press Release, https://
aflcio.org/press/releases/afl-cio-teams-wilmingtontrust-and-bny-mellon-expand-retirement-planningoptions (last visited October 11, 2023) (noting the
AFL–CIO is ‘‘the nation’s largest federation of labor
unions’’). As discussed below, the SWAs
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search the resources available on the
OFLC website, under the ‘‘Customarily
Unionized H–2B Occupations’’ tab on
the lefthand side of the OFLC
homepage: https://www.dol.gov/
agencies/eta/foreign-labor.172 In
addition, to help employers who must
conduct this additional recruitment
step, employers may also contact the
national AFL–CIO and request
assistance in circulating the job order to
the nearest AFL–CIO office covering the
area of intended employment to
advertise and recruit U.S. workers for
the job opportunity. The most effective
means of contacting the national AFL–
CIO is to email the job order and request
for assistance to H-2B@aflcio.org, but
employers may also visit https://
aflcio.org to obtain information on other
effective means of contacting the
organization for assistance. Upon
receipt, the national AFL–CIO will
distribute a copy of the job order, on
behalf of the employer, to the most
appropriate AFL–CIO office(s) serving
the area of intended employment for
that job opportunity. The Department
believes that this approach will be more
straightforward and simpler for
employers, and therefore encourages
employers to meet the notification
requirement by contacting the national
AFL–CIO directly.
When applicable, the employer must
include information in its recruitment
report confirming that either the
national or nearest AFL–CIO office was
contacted and notified in writing of the
job opportunity or opportunities. In the
recruitment report, the employer must
state whether the nearest AFL–CIO
office referred qualified U.S. worker(s),
including the number of referrals, or
indicate that it was non-responsive to
the employer’s requests. The employer
must retain all documentation
establishing that it has contacted either
the national or nearest AFL–CIO office
and submit all such information upon
request from the Departments.
circulation of relevant job orders based on their
knowledge of the local labor market would provide
effective outreach to other federations of unions and
non-affiliated unions.
172 These resources were developed based on
recent information received from stakeholders
indicating that collective bargaining agreements
now exist in certain occupations, such as
landscaping. In addition, the occupations or
industries listed are ones in which the Department
has typically observed substantial union presence
in its program administration experience, such as
occupations involved in public sector employment,
construction and extraction activities, and servicerelated industries, where historical Bureau of Labor
Statistics data has demonstrated a presence of
union affiliated workers. See BLS, Economic News
Release, Table 3. Union Affiliation of Employed
Wage and Salary Workers by Occupation and
Industry (Jan. 20, 2022), https://www.bls.gov/
news.release/union2.t03.htm.
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Documentation or evidence that would
help employers establish that the
appropriate AFL–CIO office was
contacted, may include, but is not
limited to: documentation proving the
job order was shipped and delivered to
the AFL–CIO office (e.g., copy of the job
order along with the certificate of
shipment provided by the U.S. Postal
Service or other courier mail or parcel
delivery services and/or any other form
of delivery confirmation); evidence
confirming that the job order, along with
a request for assistance to recruit
workers, was in fact emailed to the
appropriate AFL–CIO office (e.g., copies
of emails); phone records accompanied
by proof of a follow-up email sending
the job order to the appropriate AFL–
CIO office; or copies of any
correspondence exchanged (e.g., letter,
email) between the employer and the
AFL–CIO office regarding worker
referrals.
We believe the requirement that
employers contact the AFL–CIO in
occupations or industries that are
traditionally or customarily unionized
will complement the requirement that
SWAs circulate the job order to the State
Federation of Labor and local unions in
such situations, thereby increasing the
likelihood that a U.S. worker will be
recruited for the job opportunity. This is
because in traditionally or customarily
unionized industries and occupations,
unions serve as an essential conduit for
communications between U.S. workers
and hiring employers and have
traditionally been recognized as a
reliable source of referrals of U.S.
workers. Unionized applicants may
additionally share information about the
job opportunity with nonunionized
applicants, resulting in more referrals of
qualified applicants to the job
opportunity. Within this context, the
two requirements complement each
other as the State Federations of Labor
and local unions that SWAs would
circulate relevant job orders to, based on
their knowledge of the local labor
market, are comprised of various union
organizations and may not always
include the AFL–CIO. Since H–2B job
opportunities in traditionally or
customarily unionized occupations tend
to fall within those industries most
likely to be organized or represented by
AFL–CIO member unions, this
requirement increases outreach to
qualified U.S. workers. Moreover, this
requirement offers a chance for hiring
employers to directly contact a potential
pool of U.S. workers who are qualified
and interested in the job opportunity,
which can strengthen the probability
that employers will locate U.S. workers
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suited for the job opportunity. For
example, potential U.S. workers may be
more inclined to contact an employer
directly upon learning of the job
opportunity rather than utilize the SWA
as an intermediary since the application
process could be quicker and
demonstrates a willingness by
employers to consider union workers.
Direct contact between employers and
unions may also initiate a dialogue
between employers and unions that
could lead to a future working
relationship that fulfills the workforce
needs of employers. Therefore, in
providing timely and meaningful notice
of job opportunities in traditionally or
customarily unionized industries to the
AFL–CIO, employers build on efforts by
SWAs to circulate job orders to state and
local unions, which may differ from the
AFL–CIO, and thus broaden the scope of
their U.S. worker outreach.
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Contact With Former U.S. Workers
During the period of time the SWA is
actively circulating the job order
described in paragraph (a)(4)(i) of 20
CFR 655.64 for intrastate clearance, the
employer must make reasonable efforts
to contact (by mail or other written
effective means) its former U.S. workers
that it employed in the occupation at
the place of employment (except those
who were dismissed for cause or who
abandoned the worksite) during the
period beginning January 1, 2022 until
the date the I–129 petition required
under 8 CFR 214.2(h)(6)(xiv) is
submitted. Among the employees the
employer must contact are those who
have been furloughed 173 or laid off
during this period. The employer must
disclose to its former employees the
terms of the job order placed with the
SWA, and solicit their return to the job.
The employer must provide the contact
and disclosures required by this
paragraph in a language understood by
the worker, as necessary or reasonable,
and in writing to ensure the recruitment
effort is effective and meaningful in
reaching each former U.S. worker. The
Departments are requiring written
communication because they believe
that written contact and disclosure of
the terms of the job order is more
effective than oral disclosure, and
provides greater assurance that workers
understand the terms and working
conditions of the job opportunity and
can more effectively pursue redress if
they do not receive the disclosed terms
and working conditions. Written
173 Furloughed employees are employees the
employer laid off (as the term is defined in 20 CFR
655.5 and 29 CFR 503.4), but the layoff is intended
to last for a temporary period of time.
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communication and disclosure will also
make it easier for employers to establish
compliance with this requirement, if
necessary.
Contact With the Bargaining
Representative or Posting of the Job
Order
As the employer was required to do
when initially applying for its labor
certification, the employer must provide
a copy of the job order to the bargaining
representative for its employees in the
occupation and area of intended
employment, consistent with 20 CFR
655.45(a), or if there is no bargaining
representative, post the job order in the
places and manner described in 20 CFR
655.45(b). Similar to the requirement to
contact former U.S. workers, discussed
above, the employer must provide the
contact and disclosures required by this
paragraph in a language understood by
the worker, as necessary or reasonable,
and in writing to ensure the recruitment
effort is effective and meaningful in
reaching each former U.S. worker.
Contact With Current U.S. Workers
As was required in the FY 2023 H–2B
supplemental visa TFR, employers must
again contact U.S. workers currently
employed at the place of employment to
inform them of the job opportunity and
request their assistance in recruiting
qualified U.S. workers who may be
seeking employment. The Departments
continue to believe this recruitment step
is a reasonable and cost-effective
method of broadening dissemination of
available job opportunities and
increasing the likelihood that qualified
U.S. workers will apply. We believe the
requirement that employers contact
their current U.S. workers employed at
the place(s) of employment and solicit
their assistance in recruiting other
qualified U.S. workers will complement
the requirement that employers post the
job order in the places and manner
described in 20 CFR 655.45(b), enhance
word-of-mouth recruiting, which is a
common method of soliciting referrals
of qualified U.S. workers, and increase
the likelihood of locating U.S. workers
suited for the job opportunity more
quickly and efficiently. U.S. workers
currently employed by the employer,
who are more likely to be familiar with
the nature of the employer’s business
operations and services or labor to be
performed, will generally refer other
U.S. workers who are qualified and may
be more inclined to contact an employer
directly upon learning of the job
opportunity from a family, friend, or
colleague with experience working for
the employer.
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Accordingly, during the period of
time the SWA is actively circulating the
job order described in paragraph (a)(4)(i)
of 20 CFR 655.64 for intrastate
clearance, the employer must make
reasonable efforts to contact (by mail or
other effective written means) all U.S.
workers it currently employs at the
place(s) of employment under the
certified TLC. The employer must
disclose to each of its current U.S.
workers the terms of the job order
placed with the SWA, and request
assistance in recruiting qualified U.S.
workers who may be interested in
applying for the job opportunity. The
contacts, disclosures, and requests for
assistance required by this paragraph
must be provided in a language
understood by the worker, as necessary
or reasonable, and in writing to ensure
the recruitment effort is effective and
meaningful in reaching each current
U.S. worker.
The employer must retain all
documentation establishing that it has
contacted each U.S. worker it currently
employs at the place(s) of employment
under the certified TLC and submit all
such information upon request from the
Departments. Documentation or
evidence that would help employers
establish compliance with this
regulatory requirement may include, but
is not limited to the following:
documentation proving the job order,
along with a request for assistance to
recruit workers, was shipped and
delivered to each current U.S. worker’s
address (e.g., copy of the job order and
request for assistance along with the
certificate of shipment provided by the
U.S. Postal Service or other courier mail
or parcel delivery services and/or any
other form of delivery confirmation);
evidence confirming that the job order,
along with a request for assistance to
recruit workers, was emailed to the
current U.S. worker (e.g., copies of
emails); or copies of any
correspondence exchanged (e.g., letter,
email) between the employer and the
current U.S. worker regarding referrals
of other qualified U.S. workers.
The requirements to contact current
and former U.S. workers and provide
notice to the bargaining representative
or post the job order must be conducted
in a language understood by the
workers, as necessary or reasonable.
This requirement would apply, for
example, in situations where an
employer has one or more employees
who do not speak English as their
primary language and who have a
limited ability to read, write, speak, or
understand English. This requirement
would allow those workers to make
informed decisions regarding the job
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opportunity, and is a reasonable
interpretation of the recruitment
requirements in 20 CFR part 655,
subpart A, in light of the need to ensure
that the test of the U.S. labor market is
as comprehensive as possible.
Consistent with existing language
requirements in the H–2B program
under 20 CFR 655.20(l), DOL intends to
broadly interpret the necessary or
reasonable qualification, and apply an
exemption only in those situations
where having the job order translated
into a particular language would both
place an undue burden on an employer
and not significantly disadvantage the
employee.
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Posting of the Job Opportunity on the
Employer’s Website If the Employer Has
a Website
Finally, as was required in the FY
2023 H–2B supplemental visa TFR,
where the employer maintains a
company website for its business
operations, the employer must post an
electronic advertisement of the job
opportunity in a conspicuous location
on this website.
Although the vast majority of small
businesses in the United States maintain
a website, the Departments acknowledge
that not all employers maintain a
company website.174 As discussed in
the prior TFR, although there is no
parallel requirement for employers
without a website, the Departments
believe that continuing to require
employers with websites to post the job
announcement on their website is
reasonable because this population of
employers uses their websites to inform
the public about their existence and/or
the services they may provide. Thus,
these employers’ advertisement of the
job opportunity, via their websites, is
consistent with these employers’ use of
the internet/electronic means to
communicate with the public.
Accordingly, this recruitment
requirement will continue to apply only
to employers that maintain a website for
business operations. For employers who
must conduct this additional
recruitment step, the electronic
advertisement of the job opportunity on
the company website must be posted in
a conspicuous location. This means
174 The U.S. Chamber of Commerce reports that
71% of small businesses have a website and, of
those with websites, 79% of survey respondents
claimed that their websites are mobile-friendly.
According to the survey results, 92% of the 29%
of small businesses without a website reported
planning to have one up and running by the end
of 2018. See U.S. Chamber of Commerce, Small
Business Statistics, available at https://
www.chamberofcommerce.org/small-businessstatistics/#marketing-statistics (accessed October
11, 2023).
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access to the electronic advertisement
on the company website must be clearly
visible on the website’s homepage or
easily accessible from the website’s
homepage using any job search tool(s) or
direct links from the homepage to a
subsequent web page where other
available jobs or careers are normally
posted by the employer.
The Departments have concluded that
keeping the electronic advertisements
on company websites posted for a
period of at least 15 calendar days,
along with the other additional
recruitment steps discussed above, will
effectively ensure that U.S. workers are
apprised of the job opportunity and are
referred for employment, if they are
willing, qualified, and available to
perform the work. The minimum 15
calendar day period is also consistent
with the employer-conducted
recruitment activity period applicable
under 20 CFR 655.40(b).
The employer must retain all
documentation establishing that it has
posted the electronic advertisement of
the job opportunity in compliance with
regulatory requirements and submit all
such information upon request from the
Departments. Documentation or
evidence for employers to establish
compliance with these regulatory
requirements can include screenshots of
the company website on which the
advertisement appears for a period of no
less than 15 days and screen shots of the
web pages establishing the path that
U.S. workers must follow to access the
advertisement on the website.
Hiring U.S. Workers
The employer must hire any qualified
U.S. worker who applies or is referred
for the job opportunity until either (1)
the date on which the last H–2B worker
departs for the place of employment, or
(2) 30 days after the last date on which
the SWA job order is posted, whichever
is later. Additionally, consistent with 20
CFR 655.40(a), applicants may be
rejected only for lawful job-related
reasons. Given that the employer, SWA,
and AJC(s) will be actively engaged in
conducting recruitment and broader
dissemination of the job opportunity
during the period of time the job order
is active, this requirement provides an
adequate period of time for U.S. workers
to contact the employer or SWA for
referral to the employer and completion
of the additional recruitment steps
described above. As explained above,
the Departments have determined that if
employers file a petition 30 or more
days after their dates of need, they have
not conducted recruitment recently
enough for the Departments to
reasonably conclude that there are
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currently an insufficient number of U.S.
workers qualified, willing, and available
to perform the work absent additional
recruitment.
Because of the abbreviated timeline
for the additional recruitment required
for employers whose initial recruitment
has gone stale, the Departments have
determined that this hiring period is
necessary to approximate the hiring
period under normal recruitment
procedures and ensure that domestic
workers have access to these job
opportunities, consistent with the
Departments’ mandate. Additionally,
given the relatively brief period during
which additional recruitment will
occur, additional time may be necessary
for U.S. workers to have a meaningful
opportunity to learn about the job
opportunities and submit applications.
The Departments remind all H–2B
employers that the job opportunity must
be, through the recruitment period set
forth in this rule, open to any qualified
U.S. worker regardless of race, color,
national origin, age, sex, religion,
disability, or citizenship, as specified
under 20 CFR 655.20(r). Further,
employers that wish to require
interviews must conduct those
interviews by phone or provide a
procedure for the interviews to be
conducted in the location where the
worker is being recruited so that the
worker incurs little or no cost.
Employers cannot provide potential H–
2B workers with more favorable
treatment with respect to the
requirement for, and conduct of,
interviews. See 20 CFR 655.40(d).
Any U.S. worker who applies or is
referred for the job opportunity and is
not considered by the employer for the
job opportunity, experiences difficulty
accessing or understanding the material
terms and conditions of the job
opportunity, or believes they have been
improperly rejected by the employer
may file a complaint directly with the
SWA serving the area of intended
employment. Each SWA maintains a
complaint system for public labor
exchange services, established under 20
CFR part 658, subpart E, and any
complaint filed with the SWA by, or on
behalf of, a U.S. worker about a specific
H–2B job order will be processed under
this existing complaint system.
Depending on the circumstances, the
SWA may seek informal resolution by
working with the complainant and the
employer to resolve, for example,
miscommunications with the employer
to be considered for the job opportunity
or other concerns or misunderstandings
related to the terms and conditions of
the job opportunity; or issue a formal,
written determination where informal
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resolution cannot be reached. In other
circumstances, such as allegations
involving discriminatory hiring
practices or violations of other
employment-related laws, the SWA will
formally enter the complaint and refer
the matter to an appropriate
enforcement agency for prompt action.
As mentioned above, DOL’s OFLC
maintains a comprehensive directory of
contact information for each SWA that
can be used to obtain more information
on how to file a complaint.
Although the hiring period may
require some employers to hire U.S.
workers after the start of the contract
period, this is not unprecedented. For
example, in the H–2A program,
employers have been required to hire
U.S. workers through 50 percent of the
contract period since at least 2010,
which ‘‘enhance[s] protections for U.S.
workers, to the maximum extent
possible, while balancing the potential
costs to employers,’’ and is consistent
with the Departments’ responsibility to
ensure that these job opportunities are
available to U.S. workers. 74 FR 45906,
45917. The Department acknowledges
that hiring workers after the start of the
contract period imposes an additional
cost on employers, but that cost can be
lessened, in part, by the ability to
discharge the H–2B worker upon hiring
a U.S. worker (note, however, that an
employer must pay for any discharged
H–2B worker’s return transportation, 20
CFR 655.20(j)(1)(ii) and 29 CFR
503.16(j)(1)(ii)). Additionally, this rule
permits employers to immediately hire
H–2B workers who are already present
in the United States without waiting for
approval of an H–2B petition, which
will reduce the potential for harm to H–
2B workers as a result of displacement
by U.S. workers. See new 8 CFR
214.2(h)(31). Most importantly, a longer
hiring period will ensure that available
U.S. workers have a viable opportunity
to apply for H–2B job opportunities.
Accordingly, the Departments have
determined that in affording the benefits
of this temporary cap increase to
businesses that are suffering irreparable
harm or will suffer impending
irreparable harm, it is necessary to
ensure U.S. workers have sufficient time
to apply for these jobs.
As in the temporary rules
implementing the supplemental cap
increases in prior years, employers must
retain documentation demonstrating
compliance with the recruitment
requirements described above. Under
this TFR, in accordance with 20 CFR
655.65, employers must retain
documentation that demonstrates
placement of a new job order with the
SWA, contact with AJCs, contact with
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the bargaining representative or AFL–
CIO when required, contact with former
U.S. workers, compliance with 20 CFR
655.45(a) or (b), contact with current
U.S. workers at the place of
employment, and posting of the job
opportunity on the employer’s website,
if the employer has a website.
Employers must prepare and retain a
recruitment report that describes these
efforts and meets the requirements set
forth in 20 CFR 655.48, including the
requirement to update the recruitment
report throughout the recruitment and
hiring period set forth in paragraph
(a)(4)(viii) of 20 CFR 655.64. Employers
must maintain copies of the recruitment
report, attestation, and supporting
documentation, as described above, for
a period of 3 years from the date that the
TLC was approved, consistent with the
document retention requirements under
20 CFR 655.65, 20 CFR 655.56, and 29
CFR 503.17. These requirements are
similar to those that apply to certain
seafood employers that stagger the entry
of H–2B workers under 20 CFR
655.15(f).
The Departments are committed to
ensuring that all recruitment conducted
in conjunction with this rule complies
with the additional recruitment
requirements discussed above and
encourages individuals with
information about that recruitment to
contact DOL through the OFLC H–2B
Ombudsman Program email box
(H2B.Ombudsman@dol.gov). The H–2B
Ombudsman Program facilitates the fair
and equitable resolution of concerns
that arise within the H–2B filing
community, by conducting independent
and impartial inquiries into issues
related to the administration of the H–
2B program. The H–2B Ombudsman
Program also receives concerns and
information relevant to case processing
from employers, unions, and worker
advocate organizations and ensures
such information is appropriately
referred within OFLC or to SWAs, as
appropriate.
DOL actively monitors the H–2B
Ombudsman Program email box, which
is the best method for the public to
provide information to the Department
that is relevant to the processing of H–
2B applications. Such information may
include information about an in-process
TLC application, information regarding
the employer’s compliance with H–2B
recruitment of U.S. workers, or
information bearing on an employer’s
irreparable harm justification. When the
H–2B Ombudsman Program receives
information relevant to its review of an
H–2B TLC application, the information
will be forwarded to the H–2B
processing center. The H–2B processing
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center will review the information it
receives and will consider it, as
appropriate.
The H–2B Ombudsman Program,
however, is separate and distinct from
the employment service complaint
system administered by the
Employment and Training
Administration under regulations at 20
CFR part 658, subpart E. Any
information relevant to an employment
service complaint will be forwarded to
the appropriate SWA. The public may
also submit employment service
complaints directly to the appropriate
SWA; the contact information for each
SWA is available at the following web
page: https://www.dol.gov/agencies/eta/
foreign-labor/contact.
Complaints regarding an employer’s
failure to comply with the H–2B
program requirements may also be
submitted to DOL’s WHD. WHD has the
authority to investigate the employer’s
attestations, as the attestations are a
required part of the H–2B petition
process under this rule and the
attestations rely on the employer’s
existing, approved TLC. Where a WHD
investigation determines that there has
been a willful misrepresentation of a
material fact or a substantial failure to
meet the required terms and conditions
of the attestations, WHD may institute
administrative proceedings to impose
sanctions and remedies, including (but
not limited to) assessment of civil
money penalties; recovery of wages due
to workers; make-whole relief for any
U.S. worker who has been improperly
rejected for employment, laid off, or
displaced; make-whole relief for any
person who has been discriminated
against; and/or debarment for 1 to 5
years. See 29 CFR 503.19, 503.20. This
regulatory authority is consistent with
WHD’s existing enforcement authority
and is not limited by the expiration date
of this rule. Therefore, in accordance
with the documentation retention
requirements at 20 CFR 655.65, the
petitioner must retain documents and
records evidencing compliance with
this rule, and must provide the
documents and records upon request by
DHS or DOL.
When conducting an investigation,
WHD will generally review the
employer’s compliance with this rule,
the H–2B program obligations in
general, and any other Federal labor
laws that WHD enforces (such as the
Fair Labor Standards Act, which
establishes minimum wage, overtime,
recordkeeping and child labor
obligations for most employers in the
United States) and to which the
employer is subject. WHD’s
investigations generally involve meeting
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with the employer, touring the worksite,
conducting confidential interviews with
employees, reviewing records
(including those required by 20 CFR
655.65 evidencing compliance with this
rule), and, when appropriate, imposing
sanctions and remedies (including back
wages). For example, in the past five
years (Fiscal Years 2019–2023), WHD
collected more than $16.7 million in H–
2B back wages owed to 10,778 workers,
and assessed more than $12.4 million in
H–2B civil money penalties.
Within the context of this rule, WHD’s
investigative tools are particularly adept
for the review of alleged violations that
may result in back wages and/or that
require intensive fact-finding at the
worksite. Additionally, WHD is well
suited to investigate alleged violations
that occur after the job order has closed
and H–2B workers are already in the
United States. For example, WHD’s
tools are well suited to investigate
allegations that U.S. applicants were
improperly rejected for the job
opportunity (if supplemental
recruitment was required as outlined in
20 CFR 655.64(a)(4)) after the job order
has closed, as WHD may conduct
employee interviews, question the
employer as to why the applicant was
not hired, review recruitment records,
and, if a violation is substantiated,
compute back wages for the improperly
rejected U.S. applicant.
Additionally, WHD is well suited to
investigate allegations of retaliation, as
these cases involve complex fact finding
and, if allegations are substantiated,
may result in make-whole relief or back
wages owed to the worker. An employer
is prohibited from intimidating,
threatening, restraining, coercing,
blacklisting, discharging, or in any
manner discriminating against any
person who has, among other actions:
filed a complaint related to H–2B rights
and protections; consulted with a
workers’ rights center, community
organization, labor union, legal
assistance program, or attorney on H–2B
rights or protections; or exercised or
asserted H–2B rights and protections on
behalf of themselves or others. 20 CFR
655.20(n) and 29 CFR 503.16(n).
Examples of protected activity include
making a complaint to a manager,
employer, or WHD; cooperating with a
WHD investigation; requesting payment
of wages; refusing to return back wages
to the employer; consulting with WHD
or workers’ rights organization; and
testifying in a trial. If other laws are
applicable (such as the Fair Labor
Standards Act), the anti-retaliation
provisions of those laws may also be
applicable.
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In addition to the H–2B Ombudsman
Program and the employment service
complaint system under 20 CFR part
658, subpart E, which are described
above, workers or U.S. applicants for job
opportunities who believe their rights
under the H–2B program have been
violated may file complaints with WHD
by telephone at 1–866–487–9243 or may
access the telephone number via TTY by
calling 1–877–889–5627 or visit https://
www.dol.gov/agencies/whd to locate the
nearest WHD office for assistance.
Complainants should be prepared to
provide their name and contact
information; name, address, and contact
information for the employer; and
details about the alleged violation. WHD
maintains all complaints as confidential
unless the complainant provides WHD
with permission to use their name when
speaking to the employer.
DHS has the authority to verify any
information submitted to establish H–2B
eligibility at any time before or after the
petition has been adjudicated by USCIS.
See, e.g., INA sections 103 and 214 (8
U.S.C. 1103, 1184); see also 8 CFR part
103 and section 214.2(h). DHS’
verification methods may include, but
are not limited to, review of public
records and information, contact via
written correspondence or telephone,
unannounced physical site inspections,
and interviews. USCIS will use
information obtained through
verification to determine H–2B
eligibility and assess compliance with
the requirements of the H–2B program.
Subject to the exceptions described in 8
CFR 103.2(b)(16), USCIS will provide
petitioners with an opportunity to
address adverse information that may
result from a USCIS compliance review,
verification, or site visit that occurs after
a formal decision is made on a petition
or after the agency has initiated an
adverse action that may result in
revocation or termination of an
approval.
DOL’s OFLC already has the authority
under 20 CFR 655.70 to conduct audit
examinations on adjudicated
Applications for Temporary
Employment Certification, including all
appropriate appendices, and verify any
information supporting the employer’s
attestations. OFLC uses audits of
adjudicated Applications for Temporary
Employment Certification, as authorized
by 20 CFR 655.70, to ensure employer
compliance with attestations made in its
Application for Temporary Employment
Certification and to ensure the employer
has met all statutory and regulatory
criteria and satisfied all program
requirements. The OFLC CO has sole
discretion to choose which Applications
for Temporary Employment
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80431
Certification will be audited. See 20
CFR 655.70(a). Post-adjudication audits
can be used to establish a record of
employer compliance or noncompliance with program requirements
and the information gathered during the
audit assists DOL in determining
whether it needs to further investigate
or debar an employer or its agent or
attorney from future labor certifications.
Under this rule, an employer may
submit a petition to USCIS, including a
valid TLC and Form ETA–9142B–CAA–
8, in which the employer attests to
compliance with requirements for
access to the supplemental H–2B visas
allocated through 8 CFR
214.2(h)(6)(xiv), including that its
business is suffering irreparable harm or
will suffer impending irreparable harm,
and that it will conduct additional
recruitment, if necessary to refresh the
TLC’s labor market test. DHS and DOL
consider Form ETA–9142B–CAA–8 to
be an appendix to the Application for
Temporary Employment Certification
and the attestations contained on the
Form ETA–9142B–CAA–8 and
documentation supporting the
attestations to be evidence that is
incorporated into and a part of the
approved TLC. Therefore, DOL’s audit
authority includes the authority to audit
the veracity of any attestations made on
Form ETA–9142B–CAA–8 and
documentation supporting the
attestations. In order to make certain
that the supplemental visa allocation is
not subject to fraud or abuse, DHS will
continue to share information regarding
Forms ETA–9142B–CAA–8 with DOL,
consistent with existing authorities.
This information sharing between DHS
and DOL, along with relevant
information that may be obtained
through the separate SWA and WHD
complaint systems, are expected to
support DOL’s identification of TLCs
used to access the supplemental visa
allocation for closer examination of
TLCs through the audit process.
In accordance with the
documentation retention requirements
in this rule, the petitioner must retain
documents and records proving
compliance with this rule, and must
provide the documents and records
upon request by DHS or DOL. Under
this rule, DOL will audit a significant
number of TLCs used to access the
supplemental visa allocation to ensure
employer compliance with attestations,
including those regarding the
irreparable harm standard and
additional employer conducted
recruitment, required under this rule. In
the event of an audit, the OFLC CO will
send a letter to the employer and, if
appropriate, a copy of the letter to the
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employer’s attorney or agent, listing the
documentation the employer must
submit and the date by which the
documentation must be sent to the CO.
During audits under this rule, the CO
will request documentation necessary to
demonstrate the employer conducted all
recruitment steps required under this
rule and truthfully attested to the
irreparable harm the employer was
suffering or would suffer in the near
future without the ability to employ all
of the H–2B workers requested under
the cap increase, including
documentation the employer is required
to retain under this rule. If necessary to
complete the audit, the CO may request
supplemental information and/or
documentation from the employer
during the course of the audit process.
20 CFR 655.70(c).
Failure to comply in the audit process
may result in the revocation of the
employer’s certification or in
debarment, under 20 CFR 655.72 and
655.73, respectively, or require the
employer to undergo assisted
recruitment in future filings of an
Application for Temporary Employment
Certification, under 20 CFR 655.71.
Where an audit examination or review
of information from DHS or other
appropriate agencies determines that
there has been fraud or willful
misrepresentation of a material fact or a
substantial failure to meet the required
terms and conditions of the attestations
or failure to comply with the audit
examination process, OFLC may
institute appropriate administrative
proceedings to impose sanctions on the
employer. Those sanctions may result in
revocation of an approved TLC, the
requirement that the employer undergo
assisted recruitment in future filings of
an Application for Temporary
Employment Certification for a period of
up to 2 years, and/or debarment from
the H–2B program and any other foreign
labor certification program administered
by DOL for 1 to 5 years. See 20 CFR
655.71, 655.72, 655.73. Additionally,
OFLC has the authority to provide any
finding made or documents received
during the course of conducting an
audit examination to DHS, WHD, IER, or
other enforcement agencies. OFLC’s
existing audit authority is
independently authorized, and is not
limited by the expiration date of this
rule. Therefore, in accordance with the
documentation retention requirements
at 20 CFR 655.65, the petitioner must
retain documents and records proving
compliance with this rule, and must
provide the documents and records
upon request by DHS or DOL.
Petitioners must also comply with any
other applicable laws, such as avoiding
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unlawful discrimination against U.S.
workers based on their citizenship
status or national origin. Specifically,
the failure to recruit and hire qualified
and available U.S. workers on account
of such individuals’ national origin or
citizenship status may violate INA
section 274B, 8 U.S.C. 1324b.
IV. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
This rule is issued without prior
notice and opportunity to comment and
with an immediate effective date
pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b)
and (d).
1. Good Cause To Forgo Notice and
Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B),
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency, for good
cause, finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Among other
things, the good cause exception for
forgoing notice and comment
rulemaking ‘‘excuses notice and
comment in emergency situations, or
where delay could result in serious
harm.’’ Jifry v. FAA, 370 F.3d 1174,
1179 (D.C. Cir. 2004). Courts have found
‘‘good cause’’ under the APA in similar
situations when an agency is moving
expeditiously to avoid significant
economic harm to a program, program
users, or an industry. See, e.g., Nat’l
Fed’n of Fed. Emps. v. Devine, 671 F.2d
607, 611 (D.C. Cir. 1982) (holding that
an agency may use the good cause
exception to address ‘‘a serious threat to
the financial stability of [a government]
benefit program’’); Am. Fed’n of Gov’t
Emps. v. Block, 655 F.2d 1153, 1156
(D.C. Cir. 1981) (finding good cause
when an agency bypassed notice and
comment to avoid ‘‘economic harm and
disruption’’ to a given industry, which
would likely result in higher consumer
prices).
Although the good-cause exception is
‘‘narrowly construed and only
reluctantly countenanced,’’ Tenn. Gas
Pipeline Co. v. FERC, 969 F.2d 1141,
1144 (D.C. Cir. 1992), the Departments
have appropriately invoked the
exception in this case due to the time
exigencies resulting from the unique
procedural history of the Department’s
authority for this action and the ongoing
economic need for this rulemaking, as
described further below. Overall, the
Departments are bypassing notice and
comment to prevent ‘‘serious economic
harm to the H–2B community,’’
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including U.S. employers, associated
U.S. workers, and related professional
associations, that could result from the
failure to provide supplemental visas as
authorized by Congress. See Bayou
Lawn & Landscape Servs. v. Johnson,
173 F. Supp. 3d 1271, 1285 & n.12 (N.D.
Fla. 2016). The Departments note that
this action is temporary in nature, see
id.,175 and limits eligibility for H–2B
supplemental visas to only those
businesses most in need, and also
protects H–2B and U.S. workers.
With respect to the supplemental
allocations provisions in 8 CFR 214.2
and 20 CFR part 655, subpart A, as
explained above, the Departments are
acting pursuant to the extension of
supplemental cap authority in Section
303 of the Consolidated Appropriations
Act, 2023 by sections 101(6) and 106 of
the Continuing Appropriations Act,
2024 and Other Extensions Act
(authorized on September 30, 2023) to
FY 2024.176 The deadline for exercising
the FY 2024 supplemental cap authority
under the Continuing Appropriations
Act, 2023 is November 17, 2023, the
date on which the Continuing
Appropriations Act, 2024 expires.177
This timing concern is critical since the
Departments are bypassing advance
notice and comment in order to urgently
address increased labor demand.178
Acting expeditiously is intended to
prevent economic harm resulting from
American businesses suffering
irreparable harm due to a lack of a
sufficient labor force. This harm would
ensue if the Departments do not exercise
the authority provided by the extension
of supplemental cap authority. USCIS
175 Because the Departments have issued this rule
as a temporary final rule, the supplemental cap
portion of this rule—with the sole exception of the
document retention requirements—will be of no
effect after September 30, 2024. The ability to
initiate employment with a new employer pursuant
to the portability provisions of this rule expires at
the end of on January 24, 2025.
176 See Section 303, Consolidated Appropriations
Act, 2023, Division O, Public Law 117–328 (Dec.
29, 2022), extended by sections 101(6) and 106 of
the Continuing Appropriations Act, 2024 and Other
Extensions Act, Division A (‘‘Continuing
Appropriations Act, 2024’’), Public Law 118–15
(Sep. 30, 2023).
177 Pursuant to section 101(6) and 106 of the
Continuing Appropriations Act, 2024, Division A,
Public Law 118–15, the deadline for exercising the
FY 2024 supplemental cap authority under this act
is Nov. 17, 2023, the date on which the Continuing
Appropriations Act expires.
178 See Irina Ivanova, America’s labor shortage is
actually an immigrant shortage, CBS News, https://
www.cbsnews.com/news/immigration-jobs-workerslabor-shortage/ (Apr. 8, 2022). (‘‘U.S. employers say
it’s a hard time to find and keep talent. Workers are
decamping at near-record rates, while millions of
open jobs go unfilled. One reason for this labor
crunch that has largely flown beneath the radar:
Immigration to the U.S. is plummeting, a shift with
potentially enormous long-term implications for the
job market.’’)
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received more than enough petitions to
meet the H–2B visa statutory cap for the
first half of FY 2024 on October 11,
2023.179 Based on past years’
experience, DHS anticipates that it will
also receive sufficient petitions to meet
the semiannual cap for the second half
of the FY 2024; last year on February 27,
2023, USCIS received sufficient
petitions to meet the H–2B visa
statutory cap for the second half of FY
2023.180 Given the continued high
demand of American businesses for H–
2B workers (as discussed in this
preamble), rapidly evolving economic
conditions and historically high labor
demand, and the limited time remaining
until the expiration of the continuing
resolution authorizing supplemental cap
authority to help prevent further
irreparable harm currently experienced
by some U.S. employers or avoid
impending economic harm for others, a
decision to undertake notice and
comment rulemaking, which would
delay final action on this matter by
months, would greatly complicate and
potentially preclude the Departments
from successfully exercising the
authority created by section 303, Public
Law 117–328 as extended to FY 2024 by
secs. 101(6) and 106, Public Law 118–
15. If the Departments are precluded
from exercising this authority,
substantial economic harm will result
for the reasons stated above.
The temporary portability and change
of employer provisions in 8 CFR 214.2
and 274a.12 are also supported by labor
market demands. Courts have found
‘‘good cause’’ under the APA when an
agency is moving expeditiously to avoid
significant economic harm to a program,
program users, or an industry. Courts
have held that an agency may use the
good cause exception to address ‘‘a
serious threat to the financial stability of
[a government] benefit program,’’ Nat’l
Fed’n of Fed. Emps. v. Devine, 671 F.2d
607, 611 (D.C. Cir. 1982), or to avoid
‘‘economic harm and disruption’’ to a
given industry, which would likely
result in higher consumer prices, Am.
Fed’n of Gov’t Emps. v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981).
Finally, taking public comments on
this year’s temporary final rule before
implementation may have limited
179 See USCIS, USCIS Reaches H–2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/
alerts/uscis-reaches-H–2B-cap-for-first-half-of-fy2024 (Oct 13, 2023).
180 See USCIS, USCIS Reaches H–2B Cap for
Second Half of FY 2023 and Announces Filing
Dates for the Second Half of FY 2023 Supplemental
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19:31 Nov 16, 2023
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utility given that the Departments took
post-promulgation public comments
during a 60-day comment period on last
year’s (FY 2023) nearly identical TFR.
Those comments are discussed in detail
above in the preamble of this temporary
final rule. In addition, DHS is separately
pursuing broader programmatic
improvements in the H–2B and H–2A
programs through a separate notice and
comment rulemaking which includes a
proposal to make portability permanent
for all H–2 workers.181
2. Good Cause To Proceed With an
Immediate Effective Date
The APA also authorizes agencies to
make a rule effective immediately, upon
a showing of good cause, instead of
imposing a 30-day delay. 5 U.S.C.
553(d)(3). The good cause exception to
the 30-day effective date requirement is
easier to meet than the good cause
exception for foregoing notice and
comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485
(9th Cir. 1992); Am. Fed’n of Gov’t
Emps., AFL–CIO v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981); U.S. Steel
Corp. v. EPA, 605 F.2d 283, 289–90 (7th
Cir. 1979). An agency can show good
cause for eliminating the 30-day delayed
effective date when it demonstrates
urgent conditions the rule seeks to
correct or unavoidable time limitations.
U.S. Steel Corp., 605 F.2d at 290; United
States v. Gavrilovic, 511 F.2d 1099,
1104 (8th Cir. 1977). For the same
reasons set forth above expressing the
need for immediate action, we also
conclude that the Departments have
good cause to dispense with the 30-day
effective date requirement.
B. Executive Order 12866: Regulatory
Planning and Review; Executive Order
14094: Modernizing Regulatory Review;
and Executive Order 13563: Improving
Regulation and Regulatory Review
Under E.O. 12866, OMB’s Office of
Information and Regulatory Affairs
(OIRA) determines whether a regulatory
action is significant and, therefore,
subject to the requirements of the E.O.
and review by OMB. 58 FR 51735.
Section 3(f) of E.O. 12866, as amended
by E.O. 14094, defines a ‘‘significant
regulatory action’’ as an action that is
Visas, https://www.uscis.gov/newsroom/alerts/
uscis-reaches-H–2B-cap-for-second-half-of-fy-2023and-announces-filing-dates-for-the-second-half-of
(Mar. 2, 2023).
181 On September 20, 2023, DHS issued a
Modernizing H–2 Program Requirements,
Oversight, and Worker Protections Notice of
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80433
likely to result in a rule that: (1) has an
annual effect on the economy of $200
million or more, or adversely affects in
a material way a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities; (2) creates serious
inconsistency or otherwise interferes
with an action taken or planned by
another agency; (3) materially alters the
budgetary impacts of entitlement grants,
user fees, or loan programs, or the rights
and obligations of recipients thereof; or
(4) raises novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the E.O. 88 FR 21879.
The Office of Management and Budget
(OMB) has designated this temporary
final rule a significant regulatory action
under section 3(f)(1) of Executive Order
12866, as amended by Executive Order
14094, because its annual effects on the
economy exceed $200 million in any
year of the analysis. Accordingly, OMB
has reviewed this rule.
E.O. 13563 directs agencies to propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs; the regulation is tailored
to impose the least burden on society,
consistent with achieving the regulatory
objectives; and in choosing among
alternative regulatory approaches, the
agency has selected those approaches
that maximize net benefits. E.O. 13563
recognizes that some benefits are
difficult to quantify and provides that,
where appropriate and permitted by
law, agencies may consider (and discuss
qualitatively) values that are difficult or
impossible to quantify, including
equity, human dignity, fairness, and
distributive impacts.
1. Summary
With this temporary final rule (TFR),
DHS is authorizing the release of up to
an additional 64,716 total H–2B visas to
be allocated throughout FY 2024. In
accordance with the FY 2024 continuing
resolution extending the authority
provided in section 303 of the FY 2023
Omnibus, DHS is allocating the
supplemental visas in the following
manner:
Proposed Rulemaking (NPRM), 88 FR 65040, 65066,
with a 60-day public comment period that ends on
November 20, 2023. In that NPRM, DHS proposed
to extend portability to H–2A and H–2B workers on
a permanent basis.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
FY24 First Half Returning Worker Allocation
20,716
FY24 Second Half Returning Worker Allocation
19,000
FY24 Second Half Returning Worker Allocation #2 - (Late
season Filers)
5,000
FY24 Country-specific Allocation (available whole FY)
20,000
FY24 Total Supplemental Visas
64,716
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As with previous H–2B visa
supplements, these visas will be
available to businesses that: (1) show
that there are an insufficient number of
U.S. workers to meet their needs
throughout FY 2024; (2) attest that their
businesses are suffering irreparable
harm or will suffer impending
irreparable harm without the ability to
employ all of the H–2B workers
requested on their petition; and (3)
petition for returning workers who were
issued an H–2B visa or were otherwise
granted H–2B status in FY 2021, 2022,
or 2023, unless the H–2B worker is a
national of one of the countries
included in the country-specific
allocation. Additionally, up to 20,000
visas may be granted to workers from
countries included in the countryspecific allocation who are exempt from
the returning worker requirement. This
TFR aims to prevent irreparable harm to
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19:31 Nov 16, 2023
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certain U.S. businesses by allowing
them to hire additional H–2B workers
within FY 2024.
The estimated total costs to
petitioners range from $7,530,484 to
$10,043,625. The estimated total cost to
the Federal Government is $350,028.
Therefore, DHS estimates that the total
cost of this rule ranges from $7,880,512
to $10,393,653. Total transfers from
filing fees made by petitioners to the
Government are $9,214,500. The
benefits of this rule are diverse, though
some of them are difficult to quantify.
Some of these benefits include:
• Employers benefit from this rule
significantly through increased access to
H–2B workers;
• Customers and others benefit
directly or indirectly from increased
access;
• Some American workers may
benefit to the extent that they do not
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lose jobs through the reduced or closed
business activity that might occur if
fewer H–2B workers were available;
• Some American workers may
benefit from the additional recruitment
activities that the rule requires certain
petitioners to complete, to the extent
that these activities could result in some
U.S. workers being hired.
• The existence of a lawful pathway
for up to 20,000 temporary workers from
countries included in the countryspecific allocation is likely to provide
multiple benefits in terms of U.S. policy
with respect to those countries; and
• The Federal Government benefits
from increased evidence regarding
attestations. Table 2 provides a
summary of the provisions in this rule
and some of their impacts.
BILLING CODE 9111–97–P
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80435
Table 2. Summarv ofthe TFR 's Provisions and Economic Imvact
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- The current statutory
cap limits H-2B visa
allocations to 66,000
workers a year.
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19:31 Nov 16, 2023
- The amended
provisions will allow for
an additional 64,716 H2B temporary workers.
Up to 20,000 of the
64,716 additional visas
will be reserved for
workers who are
nationals of the
countries included in the
country-specific
allocation and will be
exempt from the
returning worker
requirement.
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Expected Costs of the
Provisions of the TFR
- The total estimated
opportunity cost of time
to file Form 1-129
(Petition for a
Nonimmigrant Worker)
by human resource
specialists is
approximately
$508,705. The total
estimated opportunity
cost of time to file Form
1-129 and Form G-28
will range from
approximately
$1,214,165 if filed by
in-house lawyers to
approximately
$2,093,429 if filed by
outsourced lawyers.
The total estimated
opportunity cost of time
associated with filing
additional petitions
ranges from $1,722,870
to $2,602,134
depending on the filer.
- The total estimated
opportunity cost of time
associated with filing
Form 1-907 (Request
for Premium Processing
Service) if it is filed
with Form 1-129 is
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Expected Benefits of the
Provisions of the TFR
- Form 1-129 petitioners would
be able to hire temporary
workers needed to prevent their
businesses from suffering
irreparable harm.
- Businesses that are dependent
on the success of other
businesses that are dependent on
H-2B workers would be
protected from the repercussions
of local business failures.
- Some American workers may
benefit to the extent that they do
not lose jobs through the
reduced or closed business
activity that might occur if
additional H-2B workers were
not available.
- Additional recruitment
activities may result in some
U.S. workers being hired.
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Current Provision
Changes Resulting
from the Provisions of
the TFR
80436
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VerDate Sep<11>2014
n/a
-Petitioners will be
required to fill out Form
ETA-9142B in order to
utilize the 5,000 late
season H-2B visas
allocated under the rule.
- The estimated cost for
late season petitioners
to file Form ETA9142B ranges from
$59,068 to $87,595
depending on the filer.
-An approved Form ETA-9142B
is required before filing a Form
1-129 to request H-2B workers.
n/a
- Petitioners will be
required to fill out the
newly created Form
ETA-9142-B-CAA-8,
Attestation for
Employers Seeking to
EmployH-2B
Nonimmigrant Workers
Under Section 303 of
Division O of the
Consolidated
Appropriations Act,
2023, Public Law 117328, as extended by
sections 101 (6) and 106
of Division A of the
- The total estimated
cost to petitioners to
complete and file Form
ETA-9142-B-CAA-8 is
approximately
$1,912,291.
- Form ETA-9142-B-CAA-8
will serve as initial evidence to
DHS that the petitioner meets
the irreparable harm standard
and returning worker
requirements.
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$62,173 if filed by
human resource
specialists. The total
estimated costs
associated with filing
Form 1-907 would
range from
approximately $124,560
if filed by an in-house
lawyer to approximately
$214,754 if filed by an
outsourced lawyer. The
total estimated
opportunity cost of time
associated with
requesting premium
processing ranges from
approximately $186,733
to approximately
$276,927.
- The total estimated
costs of this provision
to petitioners range
from $1,909,603 to
$2,879,061, depending
on the filer.
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
80437
VerDate Sep<11>2014
n/a
- Certain Petitioners
would be required to
conduct an additional
round of recruitment.
- The total estimated
cost to petitioners to
conduct an additional
round of recruitment is
approximately
$284,245.
- The additional round of
recruitment will ensure that a
U.S. worker who is willing and
able to fill the position is not
replaced by a nonimmigrant
worker. Furthermore, additional
recruitment activities may result
in some U.S. workers being
hired.
Temporary Portability
-AnH-2B
nonimmigrant who is
physically present in the
United States may port
to another employer.
- The total estimated
opportunity cost of time
to file Form 1-129 by
human resource
specialists is
approximately $34,046.
The total estimated
opportunity cost of time
to file Form T-129 and
Form G-28 will range
from approximately
$81,456 if filed by inhouse lawyers to
approximately $140,444
if filed by outsourced
lawyers.
- The total estimated
costs associated with
filing Form 1-907 ifit is
filed with Form 1-129 is
$4,167 iffiled by
human resource
specialists. The total
estimated costs
associated with filing
Form 1-907 would
range from
approximately $8,344 if
filed by an in-house
lawyer to approximately
$14,385 if filed by an
outsourced lawyer.
- The total estimated
costs associated with
- H-2B workers present in the
United States will be able to port
to another employer and
potentially extend their stay and,
therefore, earn additional wages.
- An H-2B worker with an
employer that is not complying
with H-2B program
requirements would have
additional flexibility in porting
to another employer's certified
position.
- This provision would ensure
employers will be able to hire
the H-2B workers they need.
19:31 Nov 16, 2023
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Continuing
Appropriations Act,
2024 and Other
Extensions Act, Public
Law 118-15.
80438
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VerDate Sep<11>2014
n/a
- DHS and DOL intend
to conduct several
audits during the period
of temporary need to
verify compliance with
H-2B program
requirements, including
the irreparable harm
standard as well as other
key worker protection
provisions implemented
through this rule.
- Employers will have
to comply with audits
for an estimated total
opportunity cost of time
of$213,948.
- It is expected both
DHS and DOL will be
able to shift resources to
be able to conduct these
audits without incurring
additional costs.
However, the
Departments will incur
opportunity costs of
time. The audits are
expected to take a total
of approximately 4,200
hours and cost
approximately
$350,028.
- DOL and DHS audits will
yield evidence of the efficacy of
attestations in enforcing
compliance with H-2B
supplemental cap requirements.
- Conducting a significant
number of audits will discourage
uncorroborated attestations.
Additional Scrutiny
- Some petitioners will
provide additional
evidence.
- Some employers will
need to print and ship
additional evidence to
USCIS. Opportunity
costs of time associated
with compiling such
evidence are
unavailable due to the
unique fact pattern in
each instance and a lack
of data regarding the
time to comply. The
- Additional scrutiny of
employers with past H-2B
program violations are aimed at
ensuring compliance with
program requirements, reducing
harms to both U.S. workers and
H-2B workers.
19:31 Nov 16, 2023
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the portability provision
ranges from $128,013
to $193,042, depending
on the filer.
- DHS may incur some
additional adjudication
costs as more
petitioners file Form I129. However, these
additional costs to
USCTS are expected to
be covered by the fees
paid for filing the form,
which have been
accounted for in costs to
petitioners.
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
80439
estimated cost to submit
additional evidentiary
requirements is
$22,028.
Familiarization Cost
- Petitioners or their
representatives will
familiarize themselves
with the rule.
- Petitioners or their
representatives will
need to read and
understand the rule at
an estimated total
opportunity cost of time
that ranges from
$3,001,288 to
$4,451,415.
- Petitioners will have the
necessary information to take
advantage of and comply with
the provisions of this rule.
Total cost of the rule to
petitioners ranges from
$7,530,484 to
$10,043,625 depending
on the filer. Total costs
of the rule to
government are
$350,028. Total costs of
the rule range from
$7,880,512 to
$10,393,653.
Total Costs
BILLING CODE 9111–97–C
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2. Background and Purpose of the
Temporary Rule
The H–2B visa classification program
was designed to serve U.S. businesses
that are unable to find enough U.S.
workers to perform nonagricultural
work of a temporary nature. For a
nonimmigrant worker to be admitted
into the United States under this visa
classification, the hiring employer is
required to: (1) receive a temporary
labor certification (TLC) from the
Department of Labor (DOL); and (2) file
Form I–129 with DHS. The temporary
nature of the services or labor described
on the approved TLC is subject to DHS
review during adjudication of Form I–
129.182 The INA sets the annual number
of H–2B visas for workers performing
temporary nonagricultural work at
66,000 to be distributed semiannually
beginning in October (33,000) and in
182 Revised effective 1/18/2009; Changes to
Requirements Affecting H–2B Nonimmigrants and
Their Employers; Correction, 73 FR 78104 (Jan. 19,
2009); Changes to Requirements Affecting H–2B
Nonimmigrants and Their Employers; Correction,
74 FR 2837 (Jan 18, 2009).
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19:31 Nov 16, 2023
Jkt 262001
April (33,000).183 Any unused H–2B
visas from the first half of the fiscal year
are available for employers seeking to
hire H–2B workers during the second
half of the fiscal year. However, any
unused H–2B visas from one fiscal year
do not carry over into the next and
would therefore not be made
available.184 Once the statutory H–2B
visa cap limit has been reached,
petitioners must wait until the next half
of the fiscal year, or the beginning of the
next fiscal year, for additional visas to
become available.
On September 30, 2023, the President
signed the Continuing Appropriations
Act, 2024 and Other Extensions Act.
Sections 101(6) and 106 reauthorize Sec.
303 of Div. O of the Consolidated
Appropriations Act FY 2023, permitting
the Secretary of Homeland Security,
under certain circumstances, to increase
183 See INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B)
and INA 214(g)(4), 8 U.S.C. 1184(g)(4).
184 A temporary labor certification (TLC)
approved by the Department of Labor must
accompany an H–2B petition. The employment start
date stated on the petition must match the start date
listed on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and
(D).
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the number of H–2B visas available to
U.S. employers, notwithstanding the
established statutory numerical
limitation. After consulting with the
Secretary of Labor, the Secretary of the
Homeland Security has determined it is
appropriate to exercise his discretion
and raise the H–2B cap by up to a total
of 64,716 visas for FY 2024. The total
supplemental allocation will be divided
into four separate allocations: one for
the first half of FY 2024, two for the
second half of FY 2024 (a first one for
employment from April 1 through May
14, 2024, and a second one for those
with start dates on or after May 15,
2024), and a full fiscal year allocation
for workers from the countries included
in the country-specific allocation. As
with previous supplemental allocations,
USCIS will make these supplemental
visas available only to businesses that
qualify and meet the requirements for
the supplemental visas. These
businesses must attest that they are
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ all the H–2B workers
requested on their petition.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
In contrast to previously issued H–2B
TFRs which codified the availability of
supplemental H–2B visas only after the
relevant statutory fiscal half-year caps
had been reached, the Secretaries have
determined that this TFR will cover the
entirety of FY 2024. While the
Fiscal Year
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2019
2020
2021
2022
2023
5-yr Average 187
Departments cannot predict with
certainty what labor market conditions
will be during the second half of FY
2024, they believe that the structure of
this TFR is reasonable because: (1) the
availability of the second half FY
supplemental visas is contingent on the
exhaustion of the second half FY
statutory cap, (2) strong historical
demand for H–2B workers, and (3)
mainstream estimates of labor market
conditions for FY 2024 indicate a
continuation of labor market tightness
from a historical perspective.185
Table 3. DOL Certified Worker Demand 186
Number ofDOL
DOL Certified Workers
Number of
Certified Workers
with requested start dates
Certifications
Requested
4/1 or later
7,044
141,787
91,209
6,001
123,291
78,544
6,365
136,711
89,543
8,899
177,429
113,108
10,385
193,961
113,505
7,739
154,636
97,182
With respect to historical demand for
H–2B workers, Table 3 makes two
important points supporting the
Departments’ decision to structure this
rule in a manner that covers the entire
fiscal year. First, Table 3 shows that H–
2B demand, as represented by the
number of workers requested on
certified TLCs, has outpaced the
statutorily capped allotment of H–2B
visas. This demonstrates that, in
aggregate, there is sufficient demand for
the entire supplementary allocation that
the Departments are making available.
To that end, the 5-year average of
workers requested on certified TLCs,
154,636, would still completely exhaust
the total supplemental allocation made
available by the TFR. Second, Table 3
demonstrates that within a given fiscal
year, demand for H–2B workers is
particularly strong in the second half of
the fiscal year. On average over the last
5 fiscal years, H–2B employers have
requested 97,182 employees with start
dates on April 1 or later, which would
completely exhaust the 24,000 188 total
supplemental H–2B visas explicitly set
aside for workers with employment start
dates in the second half of FY 2024.
Given these conditions, the Departments
believe that the decision to authorize a
second half supplement is reasonable.
In terms of the actual distribution of
the visas being made available by the
Rule, the Departments have determined
that up to 44,716 of the 64,716
supplemental visas will be limited to
returning H–2B returning workers for
nationals of any country. These
individuals must be workers who were
issued H–2B visas or were otherwise
granted H–2B status in fiscal years 2021,
2022, or 2023. The 44,716 visas for
returning workers will be divided into
three separate allocations that will be
available to petitioners over the fiscal
year. The first allocation is comprised of
20,716 visas for returning workers with
requested start dates between October 1,
2023, and March 31, 2024. These visas
will be available to petitioners
immediately upon the publication of the
rule. The second allocation is comprised
of 19,000 visas for returning workers
with requested start dates between April
1, 2024, and May 14, 2024. These visas
will be available to petitioners 15
calendar days after the second half
statutory cap of 33,000 visas is reached.
The third allocation is comprised of
5,000 visas for returning workers with
requested start dates between May 15,
2024, and September 30, 2024. These
visas will be available to petitioners 45
calendar days after the second half
statutory cap of 33,000 visas is reached.
The inclusion of an allocation of visas
specifically for those petitioners with
employment needs starting on or after
May 15 is in response to trends in TLC
data. As stated in the FY 2023 H–2B
TFR, the relative demand in FY 2016 for
workers with start dates later in the
fiscal year was higher relative to recent
years. More specifically, data for FY
2016 show that approximately 45.51
percent of certified TLCs requested
workers with start dates in April while
17.93 percent of certified TLCs
requested workers with start dates after
April.189 Table 4 and Table 5
demonstrate that the 5-year average for
these values skew toward April start
dates. The increase in the relative
prevalence of April 1 start dates since
2016 raises the question whether
petitioners with employment needs later
in the fiscal year may not have the
opportunity to utilize the H–2B program
because the supply of supplemental
visas is already exhausted by the time
a petitioner with a later start date can
file a TLC and receive eligibility to
request workers on Form I–129. Under
DOL regulations, employers must apply
for a TLC 75 to 90 days before the start
185 September 2023 Federal Open Market
Committee (FOMC) projections for unemployment
rate in 2024 ranged from 3.7 to 4.5% with central
tendency more tightly clustered between 3.9 and
4.4%. See https://www.federalreserve.gov/
monetarypolicy/fomcprojtabl20230920.htm (last
accessed Sept. 29, 2023).
186 USCIS analysis of OFLC Performance data. All
data are for applications listed as having a case
status of ‘‘Certification’’, ‘‘Partial Certification’’,
‘‘Determination—Certification’’, or
‘‘Determination—Partial Certification’’.
Furthermore, data have been adjusted to a fiscal
year using the employment begin date provided on
the TLC application. As such, counts differ from
counts based on the Disclosure Files of OFLC H–
2B Performance data. This adjustment was made so
that the OFLC data more closely align to USCIS I–
129 data. Data for FY 2023 include data through the
end of quarter 3.
187 Averages are rounded to the nearest whole
number.
188 19,000 visas for returning workers and 5,000
visas for filers with employment start dates May 15,
2024 or later.
189 See https://www.federalregister.gov/
documents/2022/12/15/2022-27236/exercise-oftime-limited-authority-to-increase-the-numericallimitation-for-fy-2023-for-the-h-2b (accessed
September 26, 2023).
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
date of work.190 Employers must have a
DOL-approved TLC before filing their
Form I–129 request for H–2B workers
with USCIS. Because the availability of
H–2B visas is limited by statute and
regulation, USCIS generally announces
to the public when it has received a
sufficient number of I–129 petitions,
and by extension H–2B beneficiaries, to
Fiscal
Year
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2016
2018
2019
2020
2021
2022
Table 4. DOL Certified Worker Demand for A1>ril Start Dates
Percentage of DOL
Certified DOL
DOL Certified Workers
Certified Workers with
Workers
with requested start dates
requested start dates in
Requested
in April
April
93,324
42,469
45.51%
129,374
80,239
62.02%
60.25%
141,787
85,421
123,291
76,168
61.78%
63.34%
136,711
86,589
61.07%
177,429
108,361
Table 5. DOL Certified Worker Demand post-April Start Dates
Percentage of DOL
Certified DOL
DOL Certified Workers
Certified Workers with
Workers
with requested start dates
requested start dates after
Requested
after April
April
93,324
16,736
17.93%
4.23%
129,374
5,470
141,787
5,788
4.08%
1.93%
123,291
2,376
136,711
2,954
2.16%
2.68%
177,429
4,747
190 See
20 CFR 655.15(b).
USCIS, Cap Reached for Additional
Returning Worker H–2B Visas for Second Half of FY
2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022).
191 See
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192 Tables 4 and 5 contain USCIS analysis of
OFLC Performance data. All data are for
applications listed as having a case status of
‘‘Certification’’, ‘‘Partial Certification’’,
‘‘Determination—Certification’’, or
‘‘Determination—Partial Certification.’’
Furthermore, data have been adjusted to a fiscal
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year using the employment begin date provided on
the TLC application. As such, counts differ from
counts based on the Disclosure Files of OFLC H–
2B Performance data. This adjustment was made so
that the OFLC data more closely align to USCIS I–
129 data.
E:\FR\FM\17NOR2.SGM
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ER17NO23.031</GPH>
2016
2018
2019
2020
2021
2022
been allocated before they can petition
USCIS for the necessary workers. Using
OFLC TLC data, Table 4 illustrates that
relative to 2016, when employers of
returning workers had greater flexibility
in determining TLC-requested start
dates, requested H–2B employment start
dates have become increasingly
concentrated in April.192
ER17NO23.030</GPH>
Fiscal
Year
exhaust the respective H–2B visa
allocation.191 USCIS rejects H–2B I–129
petitions that are received after USCIS
has determined that a given allocation
has been fully utilized. Functionally,
this means that a subset of petitioners
that would utilize H–2B workers given
the chance may not be able to do so
because the available visas have already
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
This has given rise to the concern that
this proliferation of April start dates
may be crowding out employers with
labor needs later in the season (shown
in Table 5). These data suggest there
may be structural barriers that preclude
employers with later start dates from
being able to employ needed workers
through the H–2B program. To
illustrate, in FY 2016, a temporary
statutory provision exempted certain H–
2B visas from the cap that had been
counted against the cap in any of the
three prior fiscal years. Data from FY
2016 show a much higher incidence of
employers that request relatively later
start dates, suggesting that employers
with late-season needs would use the
H–2B program but for the unavailability
of visas.
As part of the FY 2023 TFR, USCIS
made 10,000 visas available to
petitioners with start dates later in the
season (after May 15). The goal for this
separate allocation was to address this
potentially inequitable situation and to
take steps towards collecting
information through that rule to
determine whether such a structural
barrier exists. As of September 2023,
approximately 72 percent of the lateseason filer allocation was used.193
Preliminary analysis of Form I–129
filings under the late-season filer
allocation suggests some variation in the
demand by industry appeared for this
allocation. Specifically, petitioners in
the Seafood Product Preparation and
Packaging industry (NAICS 3117),
appeared to respond to the availability
of the late-season filer allocation. This
industry historically requested
temporary H–2B workers during the first
half of the fiscal year for both statutory
caps and any available supplemental
allocations, such that well over 50
percent of the total industry
beneficiaries were for the first half of a
given fiscal year.194 For FY 2023,
however, approximately 47 percent of
industry beneficiaries were requested
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193 USCIS, Office of Performance and Quality,
SAS PME C3 Consolidated, Data queried 09/2023,
TRK 12921. Calculation: 7,198 beneficiaries granted
visas under the late-season filer allocation/10,000
visas allocated = 71.98% utilization.
194 For Fiscal Years 2018 through 2022,
Petitioners in NAICS 3117 were approved for
49,332 non cap-exempt beneficiaries. Of that total,
31,204 were approved for the 1st half of a fiscal
year, yielding a rate of 63% (rounded).
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under first half caps while almost 22
percent were requested under the lateseason filer allocation.195 This data
point, while limited, provides some
evidence that certain industries may be
able to more efficiently fulfill their
temporary labor needs by petitioning for
beneficiaries under this cap.
While DOL TLC data indicates that
there was sufficient employer demand
to exhaust the late-season filer
allocation, the Form I–129 filing data
mentioned above indicates that fewer
employers took the subsequent (and
necessary) step of filing for
supplemental workers under this cap.196
Therefore, the Departments’ experience
with the late-season filer allocation
under the prior TFR confirms that the
demand for workers with later start
dates exists, though it may not be fully
reflected in petition filings. To that end,
USCIS has elected to scale down this
allocation, as mentioned in the
preamble.
The Secretaries have also determined
that up to 20,000 of the 64,716
additional visas will be reserved for
workers who are nationals of the
countries included in the countryspecific allocation and that these 20,000
workers will be exempt from the
returning worker requirement. These
visas will be available for the entirety of
the fiscal year and do not have
limitations regarding the requested start
date of the H–2B beneficiaries’
employment within the fiscal year. If
the 20,000-visa limit has been reached,
a petitioner may request H–2B visas for
workers who are nationals of the
countries included in the countryspecific allocation but these workers
must be returning workers.
The Departments note that they are
committed to analyzing the results and
impacts of this and future H–2B
supplemental visa TFRs in a holistic
manner, and have attempted to fully
quantify the potential impacts of the FY
2024 TFR, where time and data allow.
195 USCIS Analysis as of 7/29/2023, Office of
Performance and Quality, SAS PME C3
Consolidated, Data queried 07/2023, TRK 12149.
196 See DOL H–2B public disclosure data for FY
2023 covering applications processed on and after
October 1, 2022, through June 30, 2023, at
Performance Data | U.S. Department of Labor
(https://www.dol.gov/agencies/eta/foreign-labor/
performance).
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3. Population
This rule will affect those employers
that file Form I–129 on behalf of
nonimmigrant workers they seek to hire
under the H–2B visa program. More
specifically, this rule will affect those
employers that can establish that their
business is suffering irreparable harm or
will suffer impending irreparable harm
without the ability to employ all the H–
2B workers requested on their petition
and without the exercise of authority
that is the subject of this rule. Due to
historical trends and strong demand for
the H–2B program (see Table 3), the
Departments believe that it is reasonable
to assume that the population of eligible
petitioners for these additional 64,716
visas will generally be the same
population as those employers that
would already complete the steps to
receive an approved TLC irrespective of
this rule. One exception is the
population of late season employers,
described below.
This rulee will also have additional
impacts on the population of H–2B
employers and workers presently in the
United States by permitting some H–2B
workers to port to another certified H–
2B employer. These H–2B workers will
continue to earn wages and gaining
employers will continue to obtain
necessary workers.
a. Population That Will File a Form I–
129, Petition for a Nonimmigrant
Worker
As discussed above, the population
that will file a Form I–129 is necessarily
limited to those business that have
already established that their business is
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ all the H–2B workers
requested on their petition and without
the exercise of authority that is the
subject of this rule. Because the number
of supplementary visas available is
finite, USCIS has generally informed the
public when the number of submitted
Form I–129 petitions and, by extension,
the number of respective beneficiaries is
enough to exhaust the supply of
supplemental visas.197
197 See, e.g., https://www.uscis.gov/newsroom/
alerts/cap-reached-for-additional-returning-workerh-2b-visas-for-second-half-of-fy-2022.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
80443
and therefore recognizes that the
number of petitions may be
underestimated.
Table 6 shows the total supplemental
H–2B visa allocations issued by the
Departments in each fiscal year since
2017,200 including the total number of
petitions and the total number of
beneficiaries submitted under a
supplement in each fiscal year. Using
the historical average of 14.85
beneficiaries per petition for
supplemental visas derived in Table 6,
USCIS anticipates that 4,358 Forms I–
129 will be submitted as a result of this
temporary final rule.201
Using the estimates in Table 6, the
Departments further estimate that the
allocation of 5,000 visas for late season
filers made by this TFR, addressing the
disadvantage these employers face in
accessing scarce H–2B visas, will result
in 337 202 additional Form ETA–9142B
requests to DOL, assuming each late
season visa requestor submits a TLC and
Form I–129 for the historic average of
14.85 beneficiaries. The number of
additional Form ETA–9142B requests
could be lower if some petitioners that
would have filed for April 1 start dates
in the absence of this TFR change their
behavior to request late season workers
as a result of this allocation.
Alternatively, this number could be
higher if late season filers are at a larger
disadvantage in accessing H–2B workers
than recent data suggests. The
Departments commit to monitoring the
utilization of these late season FY24
visas to determine if this carve-out
promotes access, as anticipated, to
employers with needs for workers later
in the second half of the fiscal year but
that have faced obstacles to accessing
H–2B workers in the past.
USCIS recognizes that some
employers will have to submit two I–
129 Forms if they choose to request H–
2B workers under both the returning
worker and country-specific caps. At
this time, USCIS cannot predict how
many employers will choose to take
advantage of more than one allocation,
If a lawyer or accredited
representative submits Form I–129 on
behalf of the petitioner, Form G–28,
Notice of Entry of Appearance as
Attorney or Accredited Representative,
must accompany the Form I–129
submission.203 Using data from FY 2018
to FY 2022, we estimate that a lawyer
or accredited representative will file
47.21 percent of Form I–129 petitions.
Table 7 shows the percentage of Form
I–129 H–2B petitions that were
accompanied by a Form G–28.
Therefore, we estimate that in-house or
outsourced lawyers will file 2,057
Forms I–129 and Forms G–28, and that
human resources (HR) specialists will
file 2,301 Forms I–129.204
198 In Fiscal Year 2021, the Departments
authorized a single supplemental allocation which
was divided between returning workers and
workers from specific countries. See https://
www.federalregister.gov/documents/2021/05/25/
2021-11048/exercise-of-time-limited-authority-toincrease-the-fiscal-year-2021-numerical-limitationfor-the (accessed October 6, 2023).
199 In Fiscal Year 2022, the Departments
authorized two separate supplemental allocations of
H–2B Visas, with each being further divided
between returning workers and workers from
specific countries. See https://
www.federalregister.gov/documents/2022/01/28/
2022-01866/exercise-of-time-limited-authority-toincrease-the-fiscal-year-2022-numerical-limitationfor-the; https://www.federalregister.gov/documents/
2022/05/18/2022-10631/exercise-of-time-limitedauthority-to-increase-the-numerical-limitation-forsecond-half-of-fy-2022.
200 FY 2020 was not included due to the
suspension of additional H–2B visas to be released
in 2020. DHS also noted that the Department of
State had suspended routine visa services.
201 Calculation for expected petitions. If each I–
129 requests 14.85 workers, we’d expect to see
4,358 petitioners exhausting the 64,716 supplement
allocated this year: 64,716 / 14.85 = 4,358
(rounded).
202 Calculation for expected late season TLCs:
5,000 visas / 14.85 beneficiaries per petition = 337
TLCs (rounded down).
203 USCIS, Filing Your Form G–28, https://
www.uscis.gov/forms/filing-your-form-g-28.
204 Calculation: 4,358 estimated additional
petitions * 47.21 percent of petitions filed by a
lawyer = 2,057 (rounded) petitions filed by a
lawyer.
Calculation: 4,358 estimated additional
petitions¥2,057 petitions filed by a lawyer = 2,301
petitions filed by an HR specialist.
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b. Population That Files Form G–28,
Notice of Entry of Appearance as
Attorney or Accredited Representative
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Table 6. 1-129 Petitions per Supplemental H-2B Visa Allocation
Totall-129
Beneficiaries
Totall-129
Supplement
Petitions
per 1-129
Amount
Beneficiaries
Sunnlement
Received
netition
15,000
15,868
16.14
983
2018 Supplement
30,000
2,700
33,239
12.31
2019 Supplement
22,000
2,180
31,274
14.35
2021 Supplement198
199
55,000
4,045
61,868
15.29
2022 Supplement
64,716
4,900
79,095
16.14
2023 Supplement
14.85
Avera~e
80444
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
2019
3,335
7,461
44.70%
2020
2021
2,434
5,422
44.89%
4,228
9,160
46.16%
2022
5,983
12,392
48.28%
2023
6,498
13,181
49.30%
2019 - 2023 Total
22,478
47,616
47.21%
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK
12921
c. Population That Files Form I–907,
Request for Premium Processing Service
Employers may use Form I–907,
Request for Premium Processing
Service, to request faster processing of
their Form I–129 petitions for H–2B
visas. Table 8 shows the percentage of
Form I–129 H–2B petitions that were
filed with a Form I–907. Using data
from FY 2018 to FY 2022, USCIS
estimates that approximately 91.43
percent of Form I–129 H–2B petitioners
will file a Form I–907 requesting
premium processing. Based on this
historical data, USCIS estimates that
3,985 Forms I–907 will be filed with the
Forms I–129 as a result of this rule.205
Of these 3,985 premium processing
requests, we estimate that in-house or
outsourced lawyers will file 1,881
Forms I–907 and HR specialists or an
equivalent occupation will file 2,104.206
2019
7,227
7,461
96.86%
2020
4,341
5,422
80.06%
2021
8,650
9,160
94.43%
2022
11,773
12,392
95.00%
2023
11,543
13,181
87.57%
2019 - 2023 Total
43,534
47,616
91.43%
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206 Calculation: 3,985 additional Form I–907 *
47.21 percent of petitioners represented by a lawyer
= 1,881 (rounded) additional Form I–907 filed by
a lawyer.
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Calculation: 3,985 additional Form I–907¥1,881
additional Form I–907 filed by a lawyer = 2,104
additional Form I–907 filed by an HR specialist.
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ER17NO23.034</GPH>
205 Calculation: 4,358 estimated additional
petitions * 91.43 percent premium processing filing
rate = 3,985 (rounded) additional Form I–907.
ER17NO23.033</GPH>
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
d. Population That Files Form ETA–
9142–B–CAA–8, Attestation for
Employers Seeking To Employ H–2B
Nonimmigrant Workers Under Section
303 of Division O of the Consolidated
Appropriations Act, 2023, Public Law
117–328, as Extended by Sections
101(6) and 106 of Division A of the
Continuing Appropriations Act, 2024
and Other Extensions Act, Public Law
118–15
Petitioners seeking to take advantage
of this FY 2024 H–2B supplemental visa
cap will need to file a Form ETA–9142–
B–CAA–8 attesting that their business is
suffering irreparable harm or will suffer
impending irreparable harm without the
ability to employ all the H–2B workers
requested on the petition, comply with
third-party notification, and maintain
required records, among other
requirements. DOL estimates that each
of the 4,358 petitions will need to be
accompanied by Form ETA–9142–B–
CAA–8 and petitioners filing these
petitions and attestations will incur
burdens complying with the evidentiary
requirements.
e. Population of Late Season Employers
That File Form ETA–9142B,
Application for Temporary Employment
Certification
As Table 3 demonstrated, historical
data strongly indicate that there will be
sufficient demand such that only those
petitioners that utilize the late season
allocation of supplemental visas will
need to file an additional Form ETA–
9142B. Assuming that the historical
average of 14.85 beneficiaries per I–129
petition holds, 337 207 petitioners will
need to file Form ETA–9142B as a direct
result of the provision reserving 5,000
visas for beneficiaries of these
employers. Given estimates from Table
7 of the percentage of Form I–129 H–2B
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207 Calculation for expected late season TLCs:
5,000 late season visas/14.85 beneficiaries per
petition = 337 TLCs (rounded up).
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petitions accompanied by a Form G–28,
we estimate that in-house or outsourced
lawyers will file 159 of these Forms
ETA–9142B, and that human resources
(HR) specialists will file 178 Forms
ETA–9142B.208
f. Population That Must Undergo
Additional Recruitment Activities
An employer that files Form ETA–
9142B–CAA–8 and the I–129 petition 30
or more days after the certified start date
of work must conduct additional
recruitment of U.S. workers. This
consists of placing a new job order with
the State Workforce Agency (SWA),
contacting the relevant American Job
Center (AJC), contacting former U.S.
workers, contacting the bargaining
representative or posting the job order
in the places and manner described in
20 CFR 655.45(b) if there is no
bargaining representative, contacting
current U.S. workers, posting the job to
the company’s website if it maintains
one and, if applicable, contacting the
AFL–CIO.
The Departments assume that, due to
the timing of the publication of the rule,
only petitioners that file for H–2B
workers under the first half
supplemental allocation of 20,716
workers will incur burdens associated
with this additional recruitment. By
utilizing the average number of
beneficiaries per Form I–129 petition
established in Table 6, the Departments
estimate that the population of
petitioners that would need to fulfill the
additional recruitment requirements
would be 1,395.209
208 Calculation: 337 estimated additional requests
* 47.21 percent of petitions filed by a lawyer (see
Table 5) = 159 (rounded) ETA–9142–B requests
filed by a lawyer.
Calculation: 337 estimated additional
requests¥159 requests filed by a lawyer = 178
requests filed by an HR specialist.
209 Calculation: 20,716 workers in the 1st half
returning working supplemental allocation/14.85
workers per petitioner = 1,395 (rounded) petitioners
required to undertake additional recruitment.
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80445
g. Population Affected by the Portability
Provision
The population affected by this
provision are nonimmigrants in H–2B
status who are present in the United
States and the employers with valid
TLCs seeking to hire H–2B workers. We
use the population of 66,000 H–2B
workers authorized by statute and the
64,716 additional H–2B workers
authorized by this rule as a proxy for the
H–2B population that could be currently
present in the United States.210 USCIS
uses the number of Forms I–129 filed for
extension of stay due to change of
employer relative to the Forms I–129
filed for new employment from FY 2016
to FY 2020, the five years prior to the
implementation of the first portability
provision in a H–2B supplemental cap
TFR, to estimate the baseline rate. We
compare the average rate from FY 2016–
FY 2020 to the average rate from FY
2021–FY 2023. Table 9 presents the
number of Forms I–129 filed for
extensions of stay due to change of
employer and Forms I–129 filed for new
employment for Fiscal year 2016 FY
through FY 2020. The average rate of
extension of stay due to change of
employer compared to new employment
is approximately 12.6 percent.
210 H–2B workers may have varying lengths in
time approved on their H–2B visas. This number
may overestimate H–2B workers who have already
completed employment and departed and may
underestimate H–2B workers not reflected in the
current cap and long-term H–2B workers. In FY
2021, USCIS approved 735 requests for change of
status to H–2B, and Customs and Border Protection
(CBP) processed 1,341 crossings of visa-exempt H–
2B workers. See Characteristics of H–2B
Nonagricultural Temporary Workers FY2021 Report
to Congress, https://www.uscis.gov/sites/default/
files/document/reports/H-2B-FY21-CharacteristicsReport.pdf (accessed April 4, 2022). USCIS assumes
some of these workers, along with current workers
with a valid H–2B visa under the cap, could be
eligible to port under this new provision. USCIS
does not know the exact number of H–2B workers
who would be eligible to port at this time but uses
the cap and supplemental cap allocations as a
possible proxy for this population.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
2016
427
5,750
7.4%
2017
556
744
5,298
10.5%
5,136
14.5%
2018
2019
812
6,251
13.0%
2020
804
3,997
20.1%
FY 2016 -2020 Total
3,343
26,433
12.6%
USC IS, USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK
12921
211 USCIS, Office of Performance and Quality,
SAS PME C3 Consolidated, Data queried 09/2023,
TRK 12921
212 See Id.
213 See Id.
214 Calculation, Step 1: 1,113 Form I–129
petitions for extension of stay due to change of
employer FY 2021 + 1,795 Form I–129 petitions for
extension of stay due to change of employer in FY
2022 + 2,113 Form I–129 petitions for extension of
stay due to change of employer FY 2023 = 5,021
Form I–129 petitions filed extension of stay due to
change of employer in portability provision years.
Calculation, Step 2: 7,206 Form I–129 petitions
filed for new employment in FY 2021 + 9,231 Form
I–129 petitions filed for new employment in FY
2022 + 9,579 Form I–129 petitions filed for new
employment in FY 2023 = 26,016 Form I–129
petitions filed for new employment in portability
provision years.
Calculation, Step 3: 5,021 extension of stay due
to change of employment petitions/26,016 new
employment petitions = 19.3 percent rate of
extension of stay due to change of employment to
new employment (rounded).
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without a portability provision. 19.3
percent is our estimate of the rate
expected in periods with a portability
provision in the supplemental visa
allocation. Using the 4,358 as our
estimate for the number of Forms I–129
filed for H–2B new employment in FY
2024, we estimate that 549 Forms I–129
for extension of stay due to change of
employer would be filed in absence of
this provision.215 With this portability
provision, we estimate that 841 Forms
I–129 for extension of stay due to
change of employer would be filed.216
This difference results in 292 additional
Forms I–129 as a result of this
provision.217 As previously estimated,
we expect that about 47.21 percent of
Form I–129 petitions will be filed by an
in-house or outsourced lawyer.
Therefore, we expect that a lawyer will
file 138 of these petitions and an HR
specialist or equivalent occupation will
file the remaining 154.218 Previously in
215 Calculation: 4,358 Form I–129 H–2B petitions
filed for new employment * 12.6 percent = 549
estimated number of Form I–129 H–2B petitions
filed for extension of stay due to change of
employer, no portability provision.
216 Calculation: 4,358 Form I–129 H–2B petitions
filed for new employment * 19.3 percent = 841
estimated number of Form I–129 H–2B petitions
filed for extension of stay due to change of
employer, with a portability provision.
217 Calculation: 841 estimated number of Form I–
129 H–2B petitions filed for extension of stay due
to change of employer, with a portability
provision¥549 estimated number of Form I–129 H–
2B petitions filed for extension of stay due to
change of employer, no portability provision = 292
Form I–129 H–2B petition increase as a result of
portability provision.
218 Calculation, Lawyers: 292 additional Form I–
129 due to portability provision * 47.21 percent of
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this analysis, we estimated that about
91.43 percent of Form I–129 H–2B
petitions are filed with Form I–907 for
premium processing. As a result of this
portability provision, we expect that an
additional 267 Forms I–907 will be
filed.219 We expect a lawyer to file 126
of those Forms I–907 and an HR
specialist to file the remaining 141.220
h. Population Affected by the Audits
Under this time-limited FY 2024 H–
2B supplemental cap rule, DHS intends
to conduct 250 audits of employers
hiring H–2B workers, and DOL intends
to conduct 100 audits of employers
hiring H–2B workers. The determination
of which employers will be audited will
be done at the discretion of the
Departments, though the agencies will
coordinate so that no employer is
audited by both DOL and DHS.
Therefore, the Federal Government
expects to conduct a total of 350 audits
Form I–129 for H–2B positions filed by an attorney
or accredited representative = 138 (rounded)
estimated Form I–129 filed by a lawyer.
Calculation, HR specialist: 292 additional Form I–
129 due to portability provision¥138 estimated
Form I–129 filed by a lawyer = 154 estimated Form
I–129 filed by an HR specialist.
219 Calculation: 292 Form I–129 H–2B petitions *
91.43 percent premium processing filing rate = 267
(rounded) Forms I–907.
220 Calculation, Lawyers: 267 Forms I–907 * 47.21
percent filed by an attorney or accredited
representative = 126 (rounded) Forms I–907 filed by
a lawyer.
Calculation, HR specialists: 267 Forms I–
907¥126 Forms I–907 filed by a lawyer = 141
Forms I–907 filed by an HR specialist.
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In FY 2021, the first year an H–2B
supplemental cap included a portability
provision, there were 1,113 Forms I–129
filed for extension of stay due to change
of employer compared to 7,206 Forms I–
129 filed for new employment.211 In FY
2022, there were 1,795 Forms I–129
filed for extension of stay due to change
of employer compared to 9,231 Forms I–
129 filed for new employment.212 In FY
2023, there were 2,113 Forms I–129
filed for extension of stay due to change
of employer compared to 9,579 Forms I–
129 filed for new employment.213 Over
the period when a portability provision
was in place for H–2B workers, the rate
of Form I–129 for extension of stay due
to change of employer relative to new
employment is 19.3 percent.214 This is
above the 12.6 percent rate expected
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations
on employers that petition for H–2B
workers under this TFR.221
i. Population Affected by Additional
Scrutiny
DHS expects that petitioners that have
been cited by WHD for H–2B program
violations will undergo additional
scrutiny from USCIS. To estimate the
number of firms expected to undergo
increased scrutiny, we utilize DOL’s
Wage and Hour Compliance Action
Data.222 The data available here is for
concluded cases. Table 10 presents the
number of employers that were cited for
H–2B violations that have a worker
protection violation end date in FYs
2018–2022. The worker protection
violation end date is established based
on the ‘‘findings end date,’’ which
represents the date that the last worker
protection violation occurred in the
80447
concluded case. During FY 2018–2022,
on average 77 (rounded) employers that
were cited for H–2B violations had a
worker protection violation end date
each year. USCIS intends to request
evidence from employers cited for H–2B
violations with a worker protection
violation end date in the last two years.
Therefore, for purposes of this analysis,
we expect 154 petitioners will undergo
additional scrutiny from USCIS.223
Table 10. Employers with H-2B violations with worker protection violation end
date in FY 2018-2022
Fiscal Year
Employers cited for H-2B violations with worker
protection violation end date in Fiscal Year
2018
2019
2020
2021
2022
96
119
84
48
37
Five-year Average (rounded)
77
j. Population Expected To Familiarize
Themselves With This Rule
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DHS expects employers that have
filed for TLCs to familiarize themselves
with this rule. Table 3 shows that the
average number of certifications over
the last five FYs is 7,739. We use the
TLC population, rather than the
estimated 4,358 expected to file a Form
I–129 petition, because employers that
have applied for TLCs would need to
familiarize themselves with the rule in
order to determine whether or not to
subsequently file a Form I–129 petition.
We expect a HR specialist, in-house
lawyer, or outsourced lawyer will
perform familiarization with the rule at
the same rate as petitioners that file a
Form G–28. As discussed above, an
estimated 47.21 percent of petitioners
are submitted by lawyers. Therefore, we
221 These 350 audits are separate and distinct
from WHD’s investigations pursuant to its existing
enforcement authority.
222 Available at https://enforcedata.dol.gov/views/
data_catalogs.php (accessed September 22, 2023).
223 It is possible not every employer that has been
cited for an H–2B violation in the last two years will
petition for H–2B employees under this
supplemental cap authority. DHS considers an
upper limit of 154 to be a reasonable estimate of the
number of petitioners that will undergo additional
scrutiny.
224 Calculation for lawyers: 7,739 estimated
applicants * 47.21 percent represents by a lawyer
= 3,654 (rounded) represented by a lawyer.
Calculation for HR specialists: 7,739 approved,
pending, and projected applicants¥3,654
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estimate that 3,654 lawyers and 4,085
HR specialists will incur familiarization
costs.224
The provisions of this rule require the
submission of a Form I–129 H–2B
petition. The costs for this form include
the opportunity cost of time to complete
and submit the form.225 The estimated
time to complete and file Form I–129 for
H–2B classification is 4.34 hours.226 A
U.S. employer, a U.S. agent, or a foreign
employer filing through the U.S. agent
must file the petition. DHS estimates
that an in-house or outsourced lawyer
will file 47.21 percent of Form I–129 H–
2B petitions, and an HR specialist or
equivalent occupation will file the
remainder (52.79 percent). DHS presents
estimated costs for HR specialists filing
Form I–129 petitions and an estimated
range of costs for in-house lawyers or
outsourced lawyers filing Form I–129
petitions.
To estimate the total opportunity cost
of time to HR specialists who complete
and file Form I–129, DHS uses the mean
hourly wage rate of HR specialists of
$35.13 as the base wage rate.227 If
petitioners hire an in-house or
outsourced lawyer to file Form I–129 on
their behalf, DHS uses the mean hourly
wage rate $78.74 as the base wage
rate.228 Using the most recent BLS data,
DHS calculated a benefits-to-wage
multiplier of 1.45 to estimate the full
wages to include benefits such as paid
leave, insurance, and retirement.229
DHS multiplied the average hourly U.S.
wage rate for HR specialists and for inhouse lawyers by the benefits-to-wage
represented by a lawyer = 4,085 represented by an
HR specialist.
225 Filing fees are not considered costs to society.
These fees have been accounted for as a transfer
from petitioners to USCIS.
226 The public reporting burden for this form is
2.34 hours for Form I–129 and an additional 2.00
hours for H Classification Supplement, totaling 4.34
hours. See Form I–129 instructions at https://
www.uscis.gov/sites/default/files/document/forms/
i-129instr.pdf (accessed September 28, 2023).
227 U.S. Department of Labor, Bureau of Labor
Statistics, ‘‘May 2022 National Occupational
Employment and Wage Statistics’’ Human
Resources Specialist (13–1071), Mean Hourly Wage,
available at https://www.bls.gov/oes/2022/may/
oes131071.htm (accessed September 13, 2023).
228 U.S. Department of Labor, Bureau of Labor
Statistics. ‘‘May 2022 National Occupational
Employment and Wage Estimates’’ Lawyers (23–
1011), Mean Hourly Wage, available at https://
www.bls.gov/oes/2022/may/oes231011.htm
(accessed September 13, 2023).
229 Calculation: $42.48 mean Total Employee
Compensation per hour for civilian workers/$29.32
mean Wages and Salaries per hour for civilian
workers = 1.45 benefits-to-wage multiplier. See
Economic News Release, Bureau of Labor Statistics,
U.S. Department of Labor, Employer Costs for
Employee Compensation—December 2022 Table 1.
Employer Costs for Employee Compensation by
ownership, Civilian workers, available at https://
www.bls.gov/news.release/archives/ecec_
03172023.pdf (accessed September 13, 2023).
4. Cost-Benefit Analysis
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multiplier of 1.45 to estimate total
compensation to employees. The total
compensation for an HR specialist is
$50.94 per hour, and the total
compensation for an in-house lawyer is
$114.17 per hour.230 In addition, DHS
recognizes that an entity may not have
an in-house lawyer and may seek
outside counsel to complete and file
Form I–129 on behalf of the petitioner.
Therefore, DHS presents a second wage
rate for lawyers labeled as outsourced
lawyers. DHS recognizes that the wages
for outsourced lawyers may be much
higher than in-house lawyers and
therefore uses a higher compensation-towage multiplier of 2.5 for outsourced
lawyers.231 DHS estimates the total
compensation for an outsourced lawyer
is $196.85 per hour.232 If a lawyer
submits Form I–129 on behalf of the
petitioner, Form G–28 must accompany
the Form I–129 petition.233 DHS
estimates the time burden to complete
and submit Form G–28 for a lawyer is
50 minutes (0.83 hour, rounded).234 For
this analysis, DHS adds the time to
complete Form G–28 to the opportunity
cost of time to lawyers for filing Form
I–129 on behalf of a petitioner. This
results in a time burden of 5.17 hours
230 Calculation, HR specialist: $35.13 mean
hourly wage * 1.45 benefits-to-wage multiplier =
$50.94 hourly total compensation (hourly
opportunity cost of time).
Calculation, In-house Lawyer: $78.74 mean
hourly wage * 1.45 benefits-to-wage multiplier =
$114.17 hourly total compensation (hourly
opportunity cost of time).
231 The DHS ICE ‘‘Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter’’
acknowledges that ‘‘the cost of hiring services
provided by an outside vendor or contractor is two
to three times more expensive than the wages paid
by the employer for that service produced by an inhouse employee,’’ based on information received in
public comment to that rule. We believe the
explanation and methodology used in the Final
Small Entity Impact Analysis (SEIA) remains sound
for using 2.5 as a multiplier for outsourced labor
wages in this rule: Safe Harbor Procedures for
Employers Who Receive a No-Match Letter:
Clarification; Final Regulatory Flexibility Analysis,
73 FR 63843 (Oct. 28, 2008), available at https://
www.regulations.gov/document/ICEB-2006-00040921 (accessed Sep. 29, 2023). See also Exercise of
Time-Limited Authority To Increase the Fiscal Year
2022 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 4722 (Jan. 28, 2022), available at
https://www.regulations.gov/document/DHS-20220010-0001 (accessed September 29, 2023).
232 Calculation, Outsourced Lawyer: $78.74 mean
hourly wage * 2.5 benefits-to-wage multiplier =
$196.85 hourly total compensation (hourly
opportunity cost of time).
233 USCIS, Filing Your Form G–28, https://
www.uscis.gov/forms/filing-your-form-g-28
(accessed October 11, 2023).
234 USCIS, G–28, Instructions for Notice of Entry
of Appearance as Attorney or Accredited
Representative, https://www.uscis.gov/sites/default/
files/document/forms/g-28instr.pdf.
Calculation: 50 minutes/60 minutes per hour =
0.83 hour (rounded).
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for in-house lawyers and outsourced
lawyers to complete Form G–28 and
Form I–129.235 Therefore, the total
opportunity cost of time per petition for
an HR specialist to complete and file
Form I–129 is approximately $221.08,
for an in-house lawyer to complete and
file Forms I–129 and G–28 is about
$590.26, and for an outsourced lawyer
to complete and file is approximately
$1,017.71.236
a. Transfers
i. Transfers From Petitioners to the
Government
The provisions of this rule require the
submission of a Form I–129 H–2B
petition. The transfers for this form
include the filing costs to submit the
form. The current filing fee for Form I–
129 is $460 and employers filing H–2B
petitions must submit an additional fee
of $150.237 These filing fees are not a
cost to society or an expenditure of new
resources but a transfer from the
petitioner to USCIS in exchange for
agency services. DHS anticipates that
petitioners will file 4,358 Forms I–129
due to the rule’s supplemental visa
allocation and an additional 292 Forms
I–129 due to the rule’s portability
provision. The total value of transfers
from petitioners to the Government for
Form I–129 filings due to the rule is
$2,836,500.238
Additionally, employers may use
Form I–907 to request premium
processing of Form I–129 petitions for
H–2B visas. The filing fee for Form I–
907 for H–2B petitions is $1,500. Based
upon historical trends, USCIS expects
that 91.43 percent of petitioners will file
a Form I–907 in addition to their Form
I–129. Applying that rate to the
expected number of Forms I–129 would
result in 4,252 Forms I–907 filed due to
the rule.239 Transfers from petitioners to
the Government related to the filing of
Forms I–907 as a result of the rule are
235 Calculation: 0.83 hour to file Form G–28 +
4.34 hours to file Form I–129 = 5.17 hours to file
both forms.
236 Calculation, HR specialist files Form I–129:
$50.94 hourly opportunity cost of time * 4.34 hours
= $221.08 opportunity cost of time per petition.
Calculation, In-house Lawyer files Form I–129
and Form G–28: $114.17 hourly opportunity cost of
time * 5.17 hours = $590.26 opportunity cost of
time per petition.
Calculation, Outsourced Lawyer files Form I–129
and Form G–28: $196.85 hourly opportunity cost of
time * 5.17 hours = $1,017.71 opportunity cost of
time per petition.
237 See Form I–129 instructions at https://
www.uscis.gov/sites/default/files/document/forms/
i-129instr.pdf (accessed September 28, 2023). See
also 8 U.S.C. 1184(c)(13).
238 Calculation: (4,358 petitions + 292 petitions)
* $610 per petition = $2,836,500.
239 Calculation (4,358 petitions + 292 petitions) *
91.43 Form I–907 rate = 4,252 Forms I–907.
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$6,378,000.240 Total transfers from
petitioners to the Government are
$9,214,500.241
b. Cost to Petitioners
As mentioned in Section 3, the
estimated population impacted by this
rule is 4,358 eligible petitioners that are
projected to apply for the additional
64,716 H–2B visas, with 20,000 of those
additional visas reserved for employers
that will petition for workers who are
nationals of the countries included in
the country-specific allocation, who are
exempt from the returning worker
requirement.
i. Costs to Petitioners To File Form I–
129 and Form G–28
As discussed above, DHS estimates
that HR specialists will file an
additional 2,301 petitions using Form I–
129 and lawyers will file an additional
2,057 petitions using Form I–129 and
Form G–28. DHS estimates the total cost
to file Form I–129 petitions if filed by
HR specialists is $508,705 (rounded).242
DHS estimates the total cost to file Form
I–129 petitions and Form G–28 if filed
by lawyers will range from $1,214,165
(rounded) if only in-house lawyers file
these forms, to $2,093,429 (rounded) if
only outsourced lawyers file them.243
Therefore, the estimated total cost to file
Form I–129 and Form G–28 range from
$1,722,870 and $2,602,134.244
ii. Costs to File Form I–907
Employers may use Form I–907 to
request premium processing of Form I–
129 petitions for H–2B visas. The filing
fee for Form I–907 for H–2B petitions is
$1,500, and the time burden for
completing the form is 35 minutes (0.58
hour).245 246 Using the wage rates
240 Calculation: $1,500 per petition * 4,252 Forms
I–907 = $6,378,000
241 Calculation: $2,836,500 + $6,378,000 =
$9,214,500.
242 Calculation, HR specialist: $221.08 cost per
petition * 2,301 Form I–129 = $508,705 (rounded)
total cost.
243 Calculation, In-house Lawyer: $590.26 cost per
petition * 2,057 Form I–129 and Form G–28 =
$1,214,165 (rounded) total cost.
Calculation, Outsourced Lawyer: $1,017.71 cost
per petition * 2,057 Form I–129 and Form G–28 =
$2,093,429 (rounded) total cost.
244 Calculation: $508,705 total cost of Form I–129
filed by HR specialists + $1,214,165 total cost of
Form I–129 and Form G–28 filed by in-house
lawyers = $1,722,870 estimated total costs to file
Form I–129 and G–28.
Calculation: $508,705 total cost of Form I–129
filed by HR specialists + $2,093,429 total cost of
Form I–129 and G–28 filed by outsourced lawyers
= $2,602,134 estimated total costs to file Form I–
129 and G–28.
245 The filing fee is a transfer from the petitioner
requesting premium processing and proxy for the
total costs to USCIS.
246 See Form I–907 instructions at https://
www.uscis.gov/i-907 (accessed September 22, 2023).
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established previously, the opportunity
cost of time to file Form I–907 is
approximately $29.55 for an HR
specialist, $66.22 for an in-house
lawyer, and $114.17 for an outsourced
lawyer.247
As discussed above, DHS estimates
that HR specialists will file an
additional 2,104 Form I–907 and
lawyers will file an additional 1,881
Form I–907. DHS estimates the total cost
of Form I–907 filed by HR specialists is
about $62,173 (rounded).248 DHS
estimates the total cost to file Form I–
907 filed by lawyers range from about
$124,560 (rounded) for only in-house
lawyers, to $214,754 (rounded) for only
outsourced lawyers.249 The estimated
total cost to file Form I–907 range from
$186,733 and $276,927.250
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iii. Cost to Late Season Employers Filing
Form ETA–9142B
In addition to the costs for employers
projected to request TLCs irrespective of
this rule, the population of 337 late
season employers that would not
otherwise request H–2B workers will
file Form ETA–9142B as a precondition
to utilizing the late season allocation of
H–2B visas made available by the rule.
There is no filing fee for Form ETA–
9142B, and the time burden for
completing the form, including
Appendix A, Appendix B, Appendix C,
Appendix D, and record keeping, is 2
hours and 10 minutes (2.17 hours).251
DHS estimates the total cost of Form
Calculation: 35 minutes/60 minutes per hour =
0.58 (rounded) hour.
247 Calculation, HR specialist Form I–907: $50.94
hourly opportunity cost of time * 0.58 hour =
$29.55 opportunity cost of time per request.
Calculation, In-house Lawyer Form I–907:
$114.17 hourly opportunity cost of time * 0.58 hour
= $66.22 opportunity cost of time per request.
Calculation, Outsourced Lawyer Form I–907:
$196.85 hourly opportunity cost of time * 0.58 hour
= $114.17 opportunity cost of time per request.
248 Calculation, HR specialist: $29.55 opportunity
cost of time per request * 2,104 Form I–907 =
$62,173 (rounded) total cost of Form I–907 filed by
HR specialists.
249 Calculation, In-house Lawyer Form I–907:
$66.22 hourly opportunity cost of time * 1,881
applications = $124,560.
Calculation, Outsourced Lawyer Form I–907:
$114.17 hourly opportunity cost of time * 1,881
applications = $214,754.
250 Calculation: $62,173 total cost of Form I–907
filed by HR specialists + $124,560 total cost of Form
I–907 filed by in-house lawyers = $186,733
estimated total costs to file Form I–907.
Calculation: $62,173 total cost of Form I–129 filed
by HR specialists + $214,754 total cost of Form I–
907 filed by outsourced lawyers = $276,927
estimated total costs to file Form I–907.
251 The 130 minute burden estimate is as follows:
9142–B—55 minutes, Appendix A—15 minutes,
Appendix B- 15 minutes, Appendix C—20 minutes,
Appendix D—10 minutes, Record Keeping—15
minutes. See Form ETA–9142–B at https://
www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_
Form_9142B.pdf (last accessed Sep. 22, 2023).
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ETA–9142B filed by HR specialists is
about $19,676 (rounded).252 DHS
estimates the total cost to file Form
ETA–9142B by lawyers range from
about $39,392 (rounded) for only inhouse lawyers, to $67,919 (rounded) for
only outsourced lawyers.253 The
estimated total cost to file Form ETA–
9142B range from $59,068 and
$87,595.254
iv. Cost to File Form ETA–9142–B–
CAA–8
Form ETA–9142–B–CAA–8 is an
attestation form that includes recruiting
requirements, the irreparable harm
standard, and document retention
obligations. DOL estimates the time
burden for completing and signing the
form is 0.25 hours, 0.25 hours for
retaining records, and 0.50 hours to
comply with the returning workers’
attestation, for a total time burden of 1
hour. Using the $50.94 hourly total
compensation for an HR specialist, the
opportunity cost of time for an HR
specialist to complete the attestation
form, notify third parties, and retain
records relating to the returning worker
requirements is approximately
$50.94.255 Employers are also required
to send OFLC and AFL–CIO the ETA
case number when filing a petition with
DHS. DOL estimates the time burden for
this task is 10 minutes (0.17 hours) for
an HR specialist. The opportunity cost
of time for an HR specialist to send
OFLC and AFL the ETA case number is
approximately $8.66.256 The total
opportunity cost of time for filing Form
ETA–9142–B–CAA–8 and emailing the
ETA case number to both OFLC and the
AFL–CIO is $59.60.257
252 Calculation, HR specialist: $50.94 per hour *
2.17 hours * 178 Form ETA–9142–B = $19,676
(rounded) total cost of Form ETA–9142–B filed by
HR specialists.
253 Calculation, In-house Lawyer Form ETA–
9142–B: $114.17 per hour * 2.17 hours * 159
applications = $39,392 (rounded). Calculation,
Outsourced Lawyer Form ETA–9142–B: $196.85 per
hour * 2.17 hours * 159 applications = $67,919
(rounded).
254 Calculation: $19,676 total cost of Form ETA–
9142–B filed by HR specialist + $39,392 total cost
of Form ETA–9142–B filed by In-house Lawyer =
$59,068 estimated total costs to file Form ETA–
9142–B.
Calculation: $19,676 total cost of Form ETA–
9142–B filed by HR specialist + $67,919 total cost
of Form ETA–9142–B filed by Outsourced Lawyer
= $87,595 estimated total costs to file Form ETA–
9142–B.
255 Calculation: $50.94 hourly opportunity cost of
time * 1-hour time burden for the new attestation
form and notifying third parties and retaining
records related to the returning worker
requirements = $50.94.
256 Calculation: $50.94 hourly opportunity cost of
time * 0.17 hours to send OFLC and AFL–CIO the
ETA case number = $8.66 (rounded).
257 Calculation: $50.94 + $8.66 = $59.60.
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Additionally, the form requires that
petitioners assess, prepare a detailed
written statement, and document
supporting evidence for meeting the
irreparable harm standard, and retain
those documents and records, which we
assume will require the resources of a
financial analyst (or another equivalent
occupation). Using the same
methodology previously described for
wages, the mean hourly wage for a
financial analyst is $52.30,258 and the
estimated hourly total compensation for
a financial analyst is $75.84.259 DOL
estimates the time burden for these tasks
is at least 4 hours, and 1 hour for
gathering and retaining documents and
records, for a total time burden of 5
hours. Therefore, the total opportunity
cost of time for a financial analyst to
assess, document, and retain supporting
evidence is approximately $379.20.260
As discussed previously, DHS
believes that the 4,358 Form I–129
petitions required to exhaust the
number of supplemental visas made
available in this rule represents the
number of potential employers that will
request to employ H–2B workers under
this rule. This number of petitions is a
reasonable proxy for the number of
employers that may need to review and
sign the attestation. Using this estimate
for the total number of certifications, we
estimate the opportunity cost of time for
completing the attestation and sending
the ETA case number to OFLC and
AFL–CIO for HR specialists is
approximately $259,737 (rounded) and
for financial analysts is about
$1,652,554 (rounded).261
The estimated total cost to file Form
ETA–9142–B–CAA–8 and comply with
the attestation is approximately
1,912,291.262
258 See U.S. Department of Labor, Bureau of Labor
Statistics, ‘‘May 2022 National Occupational
Employment and Wage Statistics’’ Financial and
Investment Analysts (13–2051), https://
www.bls.gov/oes/2022/may/oes132051.htm
(accessed September 13, 2023).
259 Calculation: $52.30 mean hourly wage for a
financial analyst * 1.45 benefits-to-wage multiplier
= $75.84 (rounded).
260 Calculation: $75.84 estimated total
compensation for a financial analyst * 5 hours to
meet the requirements of the irreparable harm
standard = $379.20.
261 Calculations, HR specialists: $59.60
opportunity cost of time to comply with attestation
requirements and to send the ETA case number to
OFLC and AFL–CIO * 4,358 estimated additional
petitions = $259,737 (rounded) total cost to comply
with attestation requirements.
Calculation, Financial Analysts: $379.20
opportunity cost of time to comply with attestation
requirements * 4,358 estimated additional petitions
= $1,652,554 (rounded) to comply with attestation
requirements.
262 Calculation: $259,737 total cost for HR
specialist to comply with attestation requirement
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v. Cost To Conduct Recruitment
An employer that files Form ETA–
9142B–CAA–8 and the I–129 petition 30
or more days after the certified start date
of work must conduct additional
recruitment of U.S. workers. This
consists of: (1) placing a new job order
with the State Workforce Agency
(SWA), (2) contacting the relevant
American Job Center (AJC), (3)
contacting the AFL–CIO if applicable,
(4) contacting former U.S. workers, (5)
recruiting U.S. workers as provided in
§ 655.45(a) and (b), (6) contacting
current employees for referrals, and (7)
placing the available job opportunity on
the employer’s website if the employer
maintains a website for its business and.
Specifically, the employer must place
a new job order for the job opportunity
with the SWA serving the area of
intended employment. During the
period the SWA is actively circulating
the job order, employers must also
contact, by email or other available
electronic means, the nearest local AJC
to request staff assistance advertising
and recruiting qualified U.S. workers for
the job opportunity, and to provide to
the AJC the unique identification
number associated with the job order
placed with the SWA.
If the occupation is traditionally or
customarily unionized, employers must
provide written notification of the job
opportunity to the nearest American
Federation of Labor and Congress of
Industrial Organizations (AFL–CIO)
office covering the area of intended
employment, by providing a copy of the
job order, and request assistance in
recruiting qualified U.S. workers for the
job opportunity.
Employers are required to make
reasonable efforts to contact, by mail or
other effective means, their former U.S.
workers, including those workers who
were furloughed and laid off, beginning
January 1, 2022. Employers must
disclose the terms of the job order to
these workers as required by the rule.
The employer must provide a copy of
the job order to the bargaining
representative for its employees in the
occupation and area of intended
employment, consistent with 20 CFR
655.45(a), or if there is no bargaining
representative, post the job order in the
places and manner described in 20 CFR
655.45(b).
Employers are also required to contact
current employees regarding available
job opportunities for referrals.
and to send the ETA case number to OFLC and
AFL–CIO + $1,652,554 total cost for financial
analysts to comply with attestation requirements =
$1,912,291 total cost to comply with attestation
requirements.
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Finally, employers are required to
post the available job opportunity on the
employer’s website if the employer
maintains a website for its business.
DOL estimates the average expected
time burden for activities related to
conducting recruitment is 4 hours.263
Assuming this work will be done by an
HR specialist or an equivalent
occupation, the estimated cost to each
petitioner is approximately $203.76.264
Using 1,395 as the estimated number of
petitioners required to undergo
additional recruitment activities, the
estimated total cost of this provision is
approximately $284,245 (rounded).265
It is possible that if U.S. employees
apply for these positions, H–2B
employers may incur some costs
associated with reviewing applications,
interviewing, vetting, and hiring
applicants who are referred to H–2B
employers by the recruiting activities
required by this rule. However, DOL is
unable to quantify the impact.
vi. Cost of the Portability Provision
Petitioners seeking to hire H–2B
nonimmigrants who are currently
present in the United States with a valid
H–2B visa would need to file a Form I–
129, which includes paying the
associated fee as discussed above. Also
previously discussed, we estimate that
approximately 292 additional Form I–
129 H–2B petitions will be filed as a
result of this provision.
As discussed previously, if a
petitioner is represented by a lawyer,
the lawyer must file Form G–28. In
addition, if a petitioner desires premium
processing, the petitioner must file
Form I–907 and pay the associated fee.
We expect an HR specialist, in-house
lawyer, or an outsourced lawyer will
perform these actions. Moreover, as
previously estimated, we expect that an
263 This is the average expected time burden
across all employers; not all employers will need
to notify the AFL–CIO, because not all occupation
are traditionally or customarily unionized. DOL
estimates the time burden for placing a new job
order for the job opportunity with SWA is 1 hour,
0.5 hours for contacting the nearest AJC, 1 hour for
contacting former U.S. workers, 0.5 hours for
contacting current employees for referrals, 0.5 hours
for placing the available job opportunity on the
employer’s website, and 0.5 hours to provide a copy
of job order to the bargaining representative and
written notification of job opportunity to nearest
AFL–CIO if the occupation is traditionally or
customarily unionized, for a total time burden of 4
hours.
264 Calculation: $50.94 hourly opportunity cost of
time for an HR specialist * 4 hours to conduct
additional recruitment = $203.76 per petitioner cost
to conduct additional recruitment.
265 Calculation: 1,395 estimated number of
petitioners subject to additional recruitment
requirements * $203.76 per petitioner cost to
conduct additional recruitment = $284,245
(rounded) total cost to conduct additional
recruitment.
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in-house or outsourced lawyer will file
about 47.21 percent of these Form I–129
petitions. Therefore, we expect that a
lawyer will file 138 of these petitions
and an HR specialist or equivalent
occupation will file the remaining 154.
As previously discussed, the
opportunity cost of time to file a Form
I–129 H–2B petition is $221.08 for an
HR specialist; and the opportunity cost
of time to file a Form I–129 H–2B
petition with accompanying Form G–28
is $590.26 for an in-house lawyer and
$1,017.71 for an outsourced lawyer.
Therefore, we estimate the cost of the
additional Forms I–129 from the
portability provision for HR specialists
is $34,046.266 The estimated cost of the
additional Forms I–129 accompanied by
Forms G–28 from the portability
provision for lawyers is $81,456 if filed
by in-house lawyers and $140,444 if
filed by outsourced lawyers.267
Previously in this analysis, we
estimated that about 91.43 percent of
Form I–129 H–2B petitions are filed
with Form I–907 for premium
processing. As a result of this provision,
we expect that an additional 267 Forms
I–907 will be filed.268 We expect a
lawyer will file 126 of those Forms I–
907 and an HR specialist or equivalent
occupation will file the remaining
141.269 As previously discussed, the
estimated opportunity cost of time to
file a Form I–907 is $29.55 for an HR
specialist; and the estimated
opportunity cost of time to file a Form
I–907 is approximately $66.22 for an inhouse lawyer and $114.17 for an
outsourced lawyer. The estimated total
cost of the additional Forms I–907 if HR
specialists file is $4,167.270 The
estimated total cost of the additional
Forms I–907 is $8,344 if filed by inhouse lawyers and $14,385 if filed by
outsourced lawyers.271
266 Calculation, HR specialist: $221.08 estimated
cost to file a Form I–129 H–2B petition * 154
petitions = $34,046 (rounded).
267 Calculation, In-house Lawyer: $590.26
estimated cost to file a Form I–129 H–2B petition
and accompanying Form G–28 * 138 petitions =
$81,456 (rounded).
Calculation, Outsourced Lawyer: $1,017.71
estimated cost to file a Form I–129 H–2B petition
and accompanying Form G–28 * 138 petitions =
$140,444 (rounded).
268 Calculation: 292 estimated additional Form I–
129 H–2B petitions * 91.43 percent accompanied by
Form I–907 = 267 (rounded) additional Form I–907.
269 Calculation, Lawyers: 267 additional Form I–
907 * 47.21 percent = 126 (rounded) Form I–907
filed by a lawyer. Calculation, HR specialists: 267
Form I–907¥126 Form I–907 filed by a lawyer =
141 Form I–907 filed by an HR specialist.
270 Calculation, HR specialist: $29.55 to file a
Form I–907 * 141 forms = $4,167 (rounded).
271 Calculation, In-house lawyer: $66.22 to file a
Form I–907 * 126 forms = $8,344 (rounded).
Calculation for an outsourced lawyer: $114.17 to
file a Form I–907 * 126 forms = $14,385 (rounded).
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The estimated total cost of this
provision ranges from $128,013 to
$193,042 depending on what share of
the forms are filed by in-house or
outsourced lawyers.272
vii. Cost of Audits to Petitioners
As discussed above, DHS intends to
conduct 250 audits of employers hiring
H–2B workers, and DOL intends to
conduct 100 audits of employers hiring
H–2B workers, for a total of 350
employers. Employers will need to
provide requested information to
comply with the audit. We estimate that
the expected time burden to comply
with audits conducted by DHS and
DOL’s Office of Foreign Labor
Certification is 12 hours.273 We expect
that an HR specialist or equivalent
occupation will provide these
documents. Given an hourly
opportunity cost of time of $50.94, the
estimated cost of complying with audits
is $611.28 per audited employer.274
Therefore, the total estimated cost to
employers to comply with audits is
$213,948.275
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viii. Cost of Additional Scrutiny
The Departments expect that
petitioners undergoing additional
scrutiny will need to submit additional
evidence to USCIS. The costs associated
with additional scrutiny include the
opportunity cost of time to assess,
document, and compile evidence and
the costs (both explicit costs and
opportunity costs of time) of submitting
the compiled evidence.
The opportunity costs of time
associated with compiling such
evidence are unavailable due to the
unique fact pattern in each instance and
a lack of data at this time regarding the
time to comply. To estimate the explicit
costs of additional scrutiny, we assume
154 petitioners will need to print 500
pages of documents and mail this to
USCIS. We expect these documents to
272 Calculation for HR specialists and in-house
lawyers: $34,046 for HR specialists to file Form I–
129 H–2B petitions + $81,456 for in-house lawyers
to file Form I–129 and the accompanying Form G–
28 + $4,167 for HR specialists to file Form I–907
+ $8,344 for in-house lawyers to file Form I–907 =
$128,013.
Calculation for HR specialists and outsourced
lawyers: $34,046 for HR specialists to file Form I–
129 H–2B petitions + $140,444 for outsourced
lawyers to file Form I–129 and the accompanying
Form G–28 + $4,167 for HR specialists to file Form
I–907 + $14,385 for outsourced lawyers to file Form
I–907 = $193,042.
273 The number in hours for audits was provided
by the USCIS, Service Center Operations.
274 Calculation: $50.94 hourly opportunity cost of
time for an HR specialist * 12 hours to comply with
an audit = $611.28 per audited employer.
275 Calculation: 350 audited employers * $611.28
opportunity cost of time to comply with an audit
= $213,948.
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be able to fit in a Priority Mail Medium
Flat Rate box, which costs $17.10.276 We
estimate the costs of printing at $0.15
per page and the cost of printing 500 at
$75.00.277 The estimated cost for an
employer to print and ship evidence to
USCIS is $92.10.278 With an estimated
154 petitioners expected to print and
ship evidence, the total estimated costs
for printing and shipping evidence is
$14,183.279
We also expect petitioners to incur a
time burden associated with printing
and shipping evidence to USCIS. We
estimate it will take an HR specialist or
equivalent employee 1 hour to print and
ship evidence. Using the $50.94 hourly
opportunity cost of time for HR
specialist, we estimate the opportunity
cost of time for each petitioner is
$50.94.280 With an estimated 154
petitioners expected to print and ship
evidence, the total estimated
opportunity cost of time to print and
ship evidence is $7,845.281
We do not expect this provision to
impose new costs on to USCIS. The
costs to request and review evidence
from petitioners is included in the fees
paid to the agency.
The total estimated cost of additional
scrutiny is $22,028.282
ix. Familiarization Costs
We expect that petitioners or their
representatives will need to read and
understand this rule if they seek to take
advantage of the supplemental cap. As
a result, we expect this rule will impose
one-time familiarization costs associated
with reading and understanding this
rule. As shown previously, we estimate
that approximately 7,739 petitioners
may take advantage of the provisions of
this rule, and that a lawyer will
represent 3,654 of these petitioners and
276 USPS, Priority Mail, https://www.usps.com/
ship/priority-mail.htm (accessed September 23,
2023).
277 See https://www.montgomerycountymd.gov/
Library/services/computerhelp.html (accessed
September 20, 2023). Cost to make black and white
copies. Calculation: 500 pages * $0.15 per page =
$75.00 in printing costs.
278 Calculation: $75.00 in printing costs + $17.10
in shipping costs = $92.10 to print and ship
evidence.
279 Calculation: 154 petitioners * $92.10 to print
and ship evidence = $14,183 total printing and
shipping costs.
280 Calculation: $50.94 hourly opportunity cost of
time for HR specialist * 1 hour to print and ship
evidence = $50.94 opportunity cost of time per
petitioner.
281 Calculation: 154 petitioners * $50.94
opportunity cost of time per petitioner = $7,845
total estimated opportunity cost of time to print and
ship evidence.
282 Calculation: $14,183 total printing and
shipping costs + $7,845 total opportunity cost of
time = $22,028 total estimated cost of additional
scrutiny.
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an HR specialist or equivalent
occupation will represent 4,085.
To estimate the costs of rule
familiarization, we estimate the time it
will take to read and understand the
rule by assuming a reading speed of 238
words per minute.283 This rule has
approximately 69,000 words.284 Using a
reading speed of 238 words per minute,
DHS estimates it will take
approximately 4.8 hours to read and
understand this rule.285
The estimated hourly total
compensation for a HR specialist, inhouse lawyer, and outsourced lawyer
are $50.94, $114.17, and $196.85,
respectively. The estimated opportunity
cost of time for each of these filers to
read and understand the rule are
$244.51, $548.02, and $944.88,
respectively.286 The estimated total
opportunity cost of time for 4,085 HR
specialists to familiarize themselves
with this rule is approximately
$998,823.287 The estimated total
opportunity cost of time for 3,654
lawyers to familiarize themselves with
this rule is approximately $2,002,465 if
they are all in-house lawyers and
$3,452,592 if they are all outsourced
lawyers.288 Accordingly, the estimated
total opportunity costs of time for
petitioners’ representatives to
familiarize themselves with this rule
283 Brysbaert, Marc (2019, April 12). ‘How many
words do we read per minute? A review and metaanalysis of reading rate.’ https://doi.org/10.31234/
osf.io/xynwg (accessed September 22, 2023). We use
the average speed for silent reading of English
nonfiction by adults.
284 Please note that this number represents that
Departments’ best estimate of the final word count,
given that the actual word may change during the
promulgation of the Rule.
285 Calculation, Step 1: roughly 69,000 words/238
words per minute = 290 (rounded) minutes.
Calculation, Step 2: 290 minutes/60 minutes per
hour = 4.8 (rounded) hours.
286 Calculation, HR Specialists: $50.94 estimated
hourly total compensation for an HR specialist * 4.8
hours to read and become familiar with the rule =
$244.51 opportunity cost of time for an HR
specialist to read and understand the rule.
Calculation, In-house lawyer: 114.17 estimated
hourly total compensation for an in-house lawyer
* 4.8 hours to read and become familiar with the
rule = 548.02 (rounded) opportunity cost of time for
an in-house lawyer to read and understand the rule.
Calculation, Outsourced lawyer: $196.85
estimated hourly total compensation for an
outsourced lawyer * 4.8 hours to read and become
familiar with the rule = $944.88 (rounded)
opportunity cost of time for an outsourced lawyer
to read and understand the rule.
287 Calculation, HR specialists: $244.51
opportunity cost of time * 4,085 = $998,823
(rounded).
288 Calculation for in-house lawyers: $548.02
opportunity cost of * 3,654 = $2,002,465 (rounded).
Calculation for outsourced lawyers: 944.88
opportunity cost of time * 3,654 = $3,452,592
(rounded).
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ranges from $3,001,288 to
$4,451,415.289
x. Estimated Total Costs to Petitioners
In sum, the monetized costs of this
rule come from time spent filing and
complying with Form I–129, Form G–
28, Form I–907, and Form ETA–9142–
B–CAA–8, as well as contacting and
refreshing recruitment efforts, posting
notifications, time spent filing to obtain
a porting worker, and complying with
audits. The estimated total cost to file
Form I–129 and an accompanying Form
G–28 ranges from $1,722,870 to
$2,602,134, depending on the filer. The
estimated total cost of filing Form I–907
ranges from $186,733 to $276,927,
depending on the filer. The estimated
cost for late season employers to file
Form ETA–9142B ranges from $59,068
to $87,595 depending on the filer. The
estimated total cost of filing and
complying with Form ETA–9142–B–
CAA–8 is $1,912,291. The estimated
total cost of conducting additional
recruitment is $284,245. The estimated
cost of the portability provision ranges
from $128,013 to $193,042, depending
on the filer. The estimated total cost for
employers to comply with audits is
$213,948. The estimated total costs for
petitioners or their representatives to
familiarize themselves with this rule
ranges from $3,001,288 to $4,451,415,
depending on the filer. The estimated
total cost of additional scrutiny is
$22,028. The total estimated cost to
petitioners ranges from $7,530,484 to
$10,043,625, depending on the filer.290
c. Cost to the Federal Government
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USCIS will incur costs related to the
adjudication of petitions as a result of
this TFR. DHS expects USCIS to recover
these costs by the fees associated with
the forms, which have been accounted
for as a transfer from petitioners to
USCIS and serve as a proxy for the costs
to the agency. The total filing fees
associated with Form I–129 H–2B
petitions are $2,836,500, 291 and the
total filing fees associated with
premium processing are $6,378,000.292
289 Calculation: $998,823 + $2,002,465 =
$3,001,288.
Calculation: $998,823 + $3,452,592 = $4,451,415.
290 Calculation of lower range: $1,722,870 +
$186,733 + $59,068 + $1,912,291 + $284,245 +
$128,013 + $213,948 + $3,001,288 + $22,028 =
$7,530,484.
Calculation of upper range: $2,602,134 +
$276,927 + $87,595 + $1,912,291 + $284,245 +
$$193,042 + $213,948 + $4,451,415 + $22,028 =
$10,043,625.
291 Calculation: (4,358 + 292 Form I–129
petitions) * $610 per petition = $2,836,500.
292 Calculation: (3,985 + 267 Forms I–907) *
$1,500 per form = $6,378,000.
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Total transfers from petitioners to the
Government are $9,214,500.293
The INA provides USCIS with the
authority to collect fees at a level that
will ensure recovery of the full costs of
providing adjudication and
naturalization services, including
administrative costs, and services
provided without charge to certain
applicants and petitioners.294 DHS notes
USCIS establishes its fees by assigning
costs to an adjudication based on its
relative adjudication burden and use of
USCIS resources. USCIS establishes fees
at an amount that is necessary to recover
these assigned costs, such as clerical,
officers, and managerial salaries and
benefits, plus an amount to recover
unassigned overhead (for example,
facility rent, IT equipment and systems
among other expenses) and immigration
benefits provided without a fee charged.
Consequently, since USCIS immigration
fees are primarily based on resource
expenditures related to the benefit in
question, USCIS uses the fee associated
with an information collection as a
reasonable measure of the collection’s
costs to USCIS. DHS anticipates some
additional costs in adjudicating the
additional petitions submitted because
of the increase in cap limitation for H–
2B visas.
Both DOL and DHS intend to conduct
a significant number of audits during
the period of temporary need to verify
compliance with H–2B program
requirements, including the irreparable
harm standard as well as other key
worker protection provisions
implemented through this rule.295
While fees fund most USCIS activities
and appropriations fund DOL, we
expect both agencies will be able to shift
resources to conduct these audits
without incurring additional costs. As
previously mentioned, the agencies will
conduct a total of 350 audits, and we
expect each audit to take 12 hours. This
results in a total time burden of 4,200
hours.296 USCIS anticipates that a
Federal employee at a GS–13 Step 5
salary will typically conduct these
audits for each agency. The base hourly
pay for a GS–13 Step 5 in the
Washington, DC locality area is
$60.83.297 To estimate the total hourly
293 Calculation: $2,836,500 + $6,378,000 =
$9,214,500.
294 See INA section 286(m), 8 U.S.C. 1356(m).
295 These audits are distinct from the WHD’s
authority to perform investigations regarding
employers’ compliance with the requirements of the
H–2B program.
296 Calculation: 12 hours to conduct an audit *
350 audits = 4,200 total hours to conduct audits.
297 See U.S. Office of Personnel Management, Pay
and Leave, Salaries and Wages, For the Locality Pay
area of Washington-Baltimore-Arlington, DC-MDVA-WV-PA, 2023, Hourly Basic Rate, https://
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compensation for these positions, we
multiply the hourly wage ($60.83) by
the Federal benefits to wage multiplier
of 1.37.298 This results in an hourly
opportunity cost of time of $83.34 for
GS–13 Step 5 Federal employees in the
Washington, DC locality pay area.299
The total opportunity costs of time for
Federal workers to conduct audits is
estimated to be $350,028.300
This final rule implements changes to
the DOL’s mechanisms to receive
complaints from advocates, unions, and
other stakeholders about jobs posted on
seasonaljobs.gov. DOL expects that the
changes to the DOL’s mechanisms to
receive complaints may result in some
additional costs to DOL. However, DOL
is unable to quantify such costs due to
lack of data.
d. Benefits to Petitioners
The Departments assume that
employers will incur the costs of this
rule and other costs associated with
hiring H–2B workers if the expected
benefits of those workers exceed the
expected costs. We assume that
employers expect some level of net
benefit from being able to hire
additional H–2B workers. However, the
Departments do not collect or require
data from H–2B employers on the
profits from hiring these additional
workers to estimate this increase in net
benefits.
The inability to access H–2B workers
for some entities is currently causing
irreparable harm or will cause their
businesses to suffer irreparable harm in
the near future. Temporarily increasing
the number of available H–2B visas for
this fiscal year may result in a benefit,
because it will allow some businesses to
hire the additional labor resources
necessary to avoid such harm.
Preventing such harm may also result in
cost savings by ultimately preserve the
jobs of other employees (including U.S.
workers) at that establishment.
www.opm.gov/policy-data-oversight/pay-leave/
salaries-wages/salary-tables/pdf/2023/DCB_h.pdf
(last accessed September 14, 2023).
298 Calculation, Step 1: $2,342,954 Full-time
Permanent Salaries + $860,318 Civilian Personnel
Benefits = $3,203,272 Compensation.
Calculation, Step 2: $3,203,272 Compensation/
$2,342,954 Full-time Permanent Salaries = 1.37
(rounded) Federal employee benefits to wage ratio.
See https://www.uscis.gov/sites/default/files/
document/reports/USCIS_FY_2021_Budget_
Overview.pdf (accessed September 13, 2023).
299 Calculation: $60.83 hourly wage for a GS 13–
5 in the Washington, DC locality area * 1.37 Federal
employee benefits to wage ratio = $83.34 hourly
opportunity cost of time for a GS 13–5 federal
employee in the Washington, DC locality area.
300 Calculation: 4,200 hours to conduct audits *
$83.34 hourly opportunity cost of time = $350,028
total opportunity costs of time for Federal
employees to conduct audits.
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Additionally, returning workers are
likely to be very familiar with the H–2B
process and requirements, and may be
positioned to begin work more
expeditiously with these employers.
Moreover, employers may already be
familiar with returning workers as they
have trained, vetted, and worked with
some of these returning workers in past
years. As such, limiting the
supplemental visas to returning workers
will assist employers that are suffering
irreparable harm or will suffer
impending irreparable harm.
e. Benefits to Workers
The Departments assume that workers
will only incur the costs of this rule and
other costs associated with obtaining a
H–2B position if the expected benefits
of that position exceed the expected
costs. We assume that H–2B workers
expect some level of net benefit from
being able to work for H–2B employers.
However, the Departments do not have
sufficient data to estimate this increase
in net benefits and lack the necessary
resources to investigate this in a timely
manner. This rule is not expected to
impact wages because DOL prevailing
wage regulations apply to all H–2B
workers covered by this rule.
Additionally, the RIA shows that
employers incur costs in conducting
additional recruitment of U.S. workers
and attesting to irreparable harm from
current labor shortfall. These costs
suggest employers are not taking
advantage of a large supply of foreign
labor at the expense of domestic
workers.
The existence of this rule will benefit
the workers who receive H–2B visas.
See Arnold Brodbeck et al., Seasonal
Migrant Labor in the Forest Industry of
the United States: The Impact of H–2B
Employment on Guatemalan
Livelihoods, 31 Society & Natural
Resources 1012 (2018), and in particular
this finding: ‘‘Participation in the H–2B
guest worker program has become a
vital part of the livelihood strategies of
rural Guatemalan families and has had
a positive impact on the quality of life
in the communities where they live.
Migrant workers who were landless,
lived in isolated rural areas, had few
economic opportunities, and who had
limited access to education or adequate
health care, now are investing in small
trucks, building roads, schools, and
homes, and providing employment for
others in their home communities. . . .
The impact has been transformative and
positive.’’
Some provisions of this rule will
benefit such workers in particular ways.
The portability provision of this rule
will allow nonimmigrants with valid H–
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2B visas who are present in the United
States to transfer to a new employer
more quickly and potentially extend
their stay in the United States and,
therefore, earn additional wages.
DHS recognizes that some of the
effects of these provisions may occur
beyond the borders of the United States.
The current analysis does not seek to
quantify or monetize costs or benefits
that occur outside of the United States.
U.S. workers will also benefit from
this rule in multiple ways. For example,
the additional round of recruitment and
U.S. worker referrals required by the
provisions of this rule will ensure that
a nonimmigrant worker does not
displace a U.S. worker who is willing
and able to fill the position and may
result in some U.S. workers being hired.
As noted, the avoidance of current or
impending irreparable harm made
possible through the granting of
supplemental visas in this rule could
ensure that U.S. workers—who
otherwise may be vulnerable if H–2B
workers were not given visas—do not
lose their jobs.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency
rules that are subject to the notice and
comment requirements of the APA. See
5 U.S.C. 603(a), 604(a). This temporary
final rule is exempt from notice and
comment requirements for the reasons
stated above. Therefore, the
requirements of the RFA applicable to
final rules, 5 U.S.C. 604, do not apply
to this temporary final rule.
Accordingly, the Departments are not
required to either certify that the
temporary final rule would not have a
significant economic impact on a
substantial number of small entities nor
conduct a regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the Act requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed rule, or final rule
for which the agency published a
proposed rule that includes any Federal
mandate that may result in $100 million
or more expenditure (adjusted annually
for inflation) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector.301
301 See
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80453
This rule is exempt from the written
statement requirement because DHS did
not publish a notice of proposed
rulemaking for this rule.
In addition, this rule does not exceed
the $100 million in 1995 expenditure in
any 1 year when adjusted for inflation
($192 million in 2022 dollars based on
the Consumer Price Index for All Urban
Consumers (CPI–U)),302 and this
rulemaking does not contain such a
Federal mandate as the term is defined
under UMRA.303 The requirements of
Title II of the Act, therefore, do not
apply, and the Departments have not
prepared a statement under the Act.
E. Executive Order 13132 (Federalism)
This rule does not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, 64 FR 43255 (Aug. 4,
1999), this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
F. Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, 61 FR
4729 (Feb. 5, 1996).
G. National Environmental Policy Act
DHS and its components analyze their
proposed actions to determine whether
the National Environmental Policy Act
(NEPA) applies to them and, if so, what
degree of analysis is required. DHS
Directive (Dir) 023–01 Rev. 01 and
Instruction Manual 023–01–001–01 Rev.
01 (Instruction Manual) establish the
procedures that DHS and its
components use to comply with NEPA
302 See U.S. Department of Labor, BLS,
‘‘Historical Consumer Price Index for All Urban
Consumers (CPI–U): U.S. city average, all items, by
month,’’ available at https://www.bls.gov/cpi/tables/
supplemental-files/historical-cpi-u-202308.pdf (last
visited September 27, 2023). Calculation of
inflation: (1) Calculate the average monthly CPI–U
for the reference year (1995) and the current year
(2022); (2) Subtract reference year CPI–U from
current year CPI–U; (3) Divide the difference of the
reference year CPI–U and current year CPI–U by the
reference year CPI–U; (4) Multiply by 100 =
[(Average monthly CPI–U for 2022¥Average
monthly CPI–U for 1995)/(Average monthly CPI–U
for 1995)] * 100 = [(292.655¥152.4)/152.4] * 100
= (140.255/152.4) * 100 = 0.9203 (rounded) * 100
= 92.03 percent = 92 percent (rounded). Calculation
of inflation-adjusted value: $100 million in 1995
dollars * 1.92 = $192 million in 2022 dollars.
303 The term ‘‘Federal mandate’’ means a Federal
intergovernmental mandate or a Federal private
sector mandate. See 2 U.S.C. 1502(1), 658(6).
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and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500
through 1508.
NEPA and the CEQ regulations allow
Federal agencies to establish categories
of actions (‘‘categorical exclusions’’) that
normally do not significantly affect the
quality of the human environment and,
therefore, do not require an
Environmental Assessment (EA) or
Environmental Impact Statement (EIS).
42 U.S.C. 4336e(1), 42 U.S.C. 4336(a)(2);
40 CFR 1501.4, 40 CFR 1508.1(d). The
Instruction Manual, Appendix A, Table
1 lists Categorical Exclusions that DHS
has found to have no such effect. Under
DHS NEPA implementing procedures,
for an action to be categorically
excluded, it must satisfy each of the
following three conditions: (1) The
entire action clearly fits within one or
more of the categorical exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
effect. Instruction Manual, section
V.B.2(a–c).
This rule temporarily amends the
regulations implementing the H–2B
nonimmigrant visa program to increase
the numerical limitation on H–2B
nonimmigrant visas for FY 2024, based
on the Secretary of Homeland Security’s
determination, in consultation with the
Secretary of Labor, consistent with the
FY 2023 Omnibus and Public Law 118–
15. It also allows H–2B beneficiaries
who are in the United States to change
employers upon the filing of a new H–
2B petition and begin to work for the
new employer for a period generally not
to exceed 60 days before the H–2B
petition is approved by USCIS.
DHS has considered in accordance
with its NEPA implementing procedures
and has determined that this temporary
final rule clearly fits within categorical
exclusion A3(d) because it interprets or
amends a regulation without changing
its environmental effect. The
amendments to 8 CFR part 214 would
authorize up to an additional 64,716
visas for noncitizens who may receive
H–2B nonimmigrant visas, of which
44,716 are for returning workers
(persons issued H–2B visas or were
otherwise granted H–2B status in Fiscal
Years 2021, 2022, or 2023). The
proposed amendments would also
facilitate H–2B nonimmigrants to move
to new employment faster than they
could if they had to wait for a petition
to be approved. The amendment’s
operative provisions approving H–2B
petitions under the supplemental
allocation would effectively terminate
after September 30, 2024 for the cap
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19:31 Nov 16, 2023
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increase, and at the end of January 24,
2025 for the portability provision. DHS
believes amending applicable
regulations to authorize up to an
additional 64,716 H–2B nonimmigrant
visas will not result in reasonably
foreseeable effects that would
necessitate an environmental
assessment or environmental impact
statement with respect to the current H–
2B limit or in the context of a current
U.S. population exceeding 333,287,557
(maximum temporary increase of 0.0194
percent).304 DHS has also considered
and determined that this action would
not have extraordinary circumstances
that would require the preparation of an
environmental assessment or
environmental impact statement.
The amendment to applicable
regulations is a stand-alone temporary
authorization and not a part of any
larger action, and presents no
extraordinary circumstances creating
the potential for significant
environmental effects. Therefore, this
action is categorically excluded and no
further NEPA analysis is required.
H. Congressional Review Act
The Office of Information and
Regulatory Affairs has determined that
this temporary final rule is a ‘‘major
rule’’ as defined by the Congressional
Review Act (‘‘CRA’’) in 5 U.S.C.
804(2)(a) and is subject to both the
CRA’s reporting requirement and the
delayed effective date requirement,
pursuant to 5 U.S.C. 801. However, as
stated in section IV.A of this rule, the
Departments have good cause to forgo
APA’s requirements for notice and
public comment (and a delayed effective
date), pursuant to 5 U.S.C. 553.
Therefore, the Departments also have
good cause to forgo the CRA’s 60-day
delayed effective date requirement,
pursuant to 5 U.S.C. 808(2). This rule is
effective upon publication. DHS has
complied with the CRA’s reporting
requirements and has sent this rule to
Congress and to the Comptroller General
as required by 5 U.S.C. 801(a)(1).
304 See U.S. Census Bureau Quick Facts, available
at https://www.census.gov/quickfacts/US (accessed
September 28, 2023).
Calculation: 64,716 additional visas/333,287,557
million people in the United States = 0.0194
(rounded) percent temporary increase in the
population.
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Fmt 4701
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I. Paperwork Reduction Act
Attestation for Employers Seeking To
Employ H–2B Nonimmigrants Workers
Under Section 303 of Division O of the
Consolidated Appropriations Act, 2023,
Public Law 117–328, as Extended by
Sections 101(6) and 106 of Division A
of the Continuing Appropriations Act,
2024 and Other Extensions Act, Public
Law 118–15, Form ETA–9142–B–CAA–
8
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has
submitted the Information Collection
Request (ICR) contained in this rule to
OMB and obtained approval of a new
form, Form ETA–9142B–CAA–8, using
emergency clearance procedures
outlined at 5 CFR 1320.13. The
Departments note that while DOL
submitted the ICR, both DHS and DOL
will use the information provided by
employers in response to this
information collection.
Petitioners will use the new Form
ETA–9142B–CAA–8 to make
attestations regarding, for example,
irreparable harm and the returning
worker requirement (unless exempt
because the H–2B worker is a national
of one of the countries included in the
country-specific allocation who is
counted against the 20,000 returning
worker exemption cap) described above.
Petitioners will need to file the
attestation with DHS until it announces
that the supplemental H–2B cap has
been reached. In addition, the petitioner
will need to retain all documentation
demonstrating compliance with this
implementing rule, and must provide it
to DHS or DOL in the event of an audit
or investigation.
In addition to obtaining immediate
emergency approval pursuant to 5 CFR
1320.13, DOL is seeking comments on
this information collection pursuant to
44 U.S.C. 3506(c)(2)(A). Comments on
the information collection must be
received by January 16, 2024. This
process of engaging the public and other
Federal agencies helps ensure that
requested data can be provided in the
desired format, reporting burden (time
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and financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirements on respondents can be
properly assessed. The PRA provides
that a Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. See 44 U.S.C. 3501 et seq. In
addition, notwithstanding any other
provisions of law, no person must
generally be subject to a penalty for
failing to comply with a collection of
information that does not display a
valid OMB Control Number. See 5 CFR
1320.5(a) and 1320.6.
In accordance with the PRA, DOL is
affording the public with notice and an
opportunity to comment on the new
information collection, which is
necessary to implement the
requirements of this rule. The
information collection activities covered
under a newly granted OMB Control
Number 1205–NEW are required under
Section 303 of Division O of the FY
2023 Omnibus as extended by Public
Law 118–15, which provides that ‘‘the
Secretary of Homeland Security, after
consultation with the Secretary of
Labor, and upon the determination that
the needs of American businesses
cannot be satisfied . . . with U.S.
workers who are willing, qualified, and
able to perform temporary
nonagricultural labor,’’ may increase the
total number of noncitizens who may
receive an H–2B visa by not more than
the highest number of H–2B
nonimmigrants who participated in the
H–2B returning worker program in any
fiscal year in which returning workers
were exempt from the H–2B numerical
limitation. As previously discussed in
the preamble of this rule, the Secretary
of Homeland Security, in consultation
with the Secretary of Labor, has decided
to increase the numerical limitation on
H–2B nonimmigrant visas to authorize
the issuance of up to, but not more than,
an additional 64,716 visas for FY 2024
for certain H–2B workers, for U.S.
businesses that attest that they are
suffering irreparable harm or will suffer
impending irreparable harm. As with
the previous supplemental rules, the
Secretary has determined that the
additional visas will only be available
for returning workers, that is workers
who were issued H–2B visas or
otherwise granted H–2B status in FY
2021, 2022, or 2023, unless the worker
is one of the 20,000 nationals of one of
the countries included in the country-
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19:31 Nov 16, 2023
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80455
specific allocation who are exempt from
the returning worker requirement.
Commenters are encouraged to
discuss the following:
• Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
• The accuracy of the agency’s
estimate of the burden of the proposed
collection of information, including the
validity of the methodology and
assumptions used;
• The quality, utility, and clarity of
the information to be collected; and
• The burden of the collection of
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology, for example,
permitting electronic submission of
responses.
The aforementioned information
collection requirements are summarized
as follows:
Agency: DOL–ETA.
Type of Information Collection:
Extension of an existing information
collection.
Title of the Collection: Attestation for
Employers Seeking to Employ H–2B
Nonimmigrants Workers Under Section
303 of Division O of the Consolidated
Appropriations Act, 2023, Public Law
117–328, as extended by sections 101(6)
and 106 of Division A of the Continuing
Appropriations Act, 2024 and Other
Extensions Act, Public Law 118–15.
Agency Form Number: Form ETA–
9142–B–CAA–8.
Affected Public: Private Sector—
businesses or other for-profits.
Total Estimated Number of
Respondents: 4,358.
Average Responses per Year per
Respondent: 1.
Total Estimated Number of
Responses: 4,358.
Average Time per Response: 10.17
hours per application.
Total Estimated Annual Time Burden:
32,469 hours.
Total Estimated Other Costs Burden:
$2,195,689.
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. Form I–907,
Request for Premium Processing
Service, has been approved by OMB and
assigned OMB control number 1615–
0048. DHS is making no changes to the
Form I–907 in connection with this
temporary rule implementing the timelimited authority pursuant to Section
303 of Division O of the Consolidated
Appropriations Act, 2023, Public Law
117–328 as extended by Public Law
118–15 (which expires on November 17,
2023). However, USCIS estimates that
this temporary rule may result in
approximately 4,325 additional filings
of Form I–907 in fiscal year 2024. The
current OMB-approved estimate of the
number of annual respondents filing a
Form I–907 is 815,773. USCIS has
determined that the OMB-approved
estimate is sufficient to fully encompass
the additional respondents who will be
filing Form I–907 in connection with
this temporary rule, which represents a
small fraction of the overall Form I–907
population. Therefore, DHS is not
changing the collection instrument or
increasing its burden estimates in
connection with this temporary rule and
is not publishing a notice under the
PRA or making revisions to the
currently approved burden for OMB
control number 1615–0048.
Request for Premium Processing
Service, Form I–907
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
PO 00000
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List of Subjects
8 CFR Part 214
Administrative practice and
procedure, Aliens, Cultural exchange
program, Employment, Foreign officials,
Health professions, Reporting and
recordkeeping requirements, Students.
8 CFR Part 274a
Administrative practice and
procedure, Aliens, Cultural exchange
program, Employment, Penalties,
Reporting and recordkeeping
requirements, Students.
20 CFR Part 655
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For the reasons discussed in the joint
preamble, chapter I of title 8 of the Code
of Federal Regulations is amended as
follows:
DEPARTMENT OF HOMELAND
SECURITY
PART 214—NONIMMIGRANT CLASSES
1. The authority citation for part 214
continues to read as follows:
■
Authority: 6 U.S.C. 202, 236; 8 U.S.C.
1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301–1305, 1357, and
1372; sec. 643, Pub. L. 104–208, 110 Stat.
3009–708; Pub. L. 106–386, 114 Stat. 1477–
1480; section 141 of the Compacts of Free
Association with the Federated States of
Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau,
48 U.S.C. 1901 note and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C.
1806).
2. Effective November 17, 2023,
through November 17, 2026, amend
§ 214.2 by adding entries for ‘‘(30)’’ and
‘‘(31)’’ to table 3 to paragraph (h) and
adding paragraph (h)(6)(xiv), a reserved
paragraph (h)(30), and paragraph (h)(31)
to read as follows:
■
§ 214.2 Special requirements for
admission, extension, and maintenance of
status.
*
*
*
(h) * * *
*
*
TABLE 3 TO PARAGRAPH (h)—PARAGRAPH CONTENTS
*
*
*
*
*
(30) [Reserved]
(31) Change of employers and portability for H–2B workers (January 25, 2024 through January 24, 2025).
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*
*
*
*
*
(6) * * *
(xiv) Special requirements for
additional cap allocations under Public
Laws 117–328 and 118–15—(A) Public
Law 117–328 and section 101(6) of
Division A of Public Law 118–15,
Continuing Appropriations Act, 2024
and Other Extensions Act—(1)
Supplemental allocation for returning
workers. Notwithstanding the numerical
limitations set forth in paragraph
(h)(8)(i)(C) of this section, for fiscal year
2024 only, the Secretary has authorized
up to an additional 64,716 visas for
aliens who may receive H–2B
nonimmigrant visas pursuant to section
303 of Division O of Public Law 117–
328, the Consolidated Appropriations
Act, 2023, and section 101(6) of
Division A of Public Law 118–15,
Continuing Appropriations Act, 2024
and Other Extensions Act. An alien may
be eligible to receive an H–2B
nonimmigrant visa under this paragraph
(h)(6)(xiv)(A)(1) if she or he is a
returning worker. The term ‘‘returning
worker’’ under this paragraph
(h)(6)(xiv)(A)(1) means a person who
was issued an H–2B visa or was
otherwise granted H–2B status in fiscal
year 2021, 2022, or 2023.
Notwithstanding § 248.2 of this chapter,
an alien may not change status to H–2B
nonimmigrant under this paragraph
(h)(6)(xiv)(A)(1). The additional H–2B
visas authorized under this paragraph
will be made available to returning
workers as follows:
(i) Up to an additional 20,716 visas for
aliens who may receive H–2B
nonimmigrant visas based on petitions
requesting FY 2024 employment start
dates on or before March 31, 2024.
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(ii) Up to an additional 19,000 visas
for aliens who may receive H–2B
nonimmigrant visas based on petitions
requesting FY 2024 employment start
dates from April 1, 2024 to May 14,
2024.
(iii) Up to an additional 5,000 visas
available for aliens with employment
start dates from May 15, 2024 to
September 30, 2024.
(2) Supplemental allocation for
nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica. Notwithstanding the
numerical limitations set forth in
paragraph (h)(8)(i)(C) of this section, for
fiscal year 2024 only, and in addition to
the allocation described in paragraph
(h)(6)(xiv)(A)(1) of this section, the
Secretary has authorized up to an
additional 20,000 visas for aliens who
are nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica, who may receive H–2B
nonimmigrant visas pursuant section
303 of Division O of the Consolidated
Appropriations Act, 2023, Public Law
117–328, and section 101(6) of Division
A of Public Law 118–15 Continuing
Appropriations Act, 2024 and Other
Extensions Act, based on petitions with
FY 2024 employment start dates. Such
workers are not subject to the returning
worker requirement in paragraph
(h)(6)(xiv)(A)(1). Petitioners must
request such workers in an H–2B
petition that is separate from H–2B
petitions that request returning workers
under paragraph (h)(6)(xiv)(A)(1) and
must declare that they are requesting
these workers in the attestation Form
ETA–9142–B–CAA–8 required under 20
CFR 655.65(a)(1). A petition requesting
returning workers under paragraph
(h)(6)(xiv)(A)(1), which is accompanied
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*
*
by an attestation indicating that the
petitioner is requesting nationals of
Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica,
will be rejected, denied or, in the case
of a non-frivolous petition, approved
solely for the number of beneficiaries
that are from the Guatemala, El
Salvador, Honduras, Haiti, Colombia,
Ecuador, or Costa Rica. Notwithstanding
§ 248.2 of this chapter, an alien may not
change status to H–2B nonimmigrant
under this paragraph (h)(6)(xiv)(A)(2).
(B) Eligibility. In order to file a
petition with USCIS under this
paragraph (h)(6)(xiv), the petitioner
must:
(1) Comply with all other statutory
and regulatory requirements for H–2B
classification, including, but not limited
to, requirements in this section, under
part 103 of this chapter, and under 20
CFR part 655 and 29 CFR part 503; and
(2) Submit to USCIS, at the time the
employer files its petition, a U.S.
Department of Labor attestation, in
compliance with this section and 20
CFR 655.64, evidencing that:
(i) Its business is suffering irreparable
harm or will suffer impending
irreparable harm (that is, permanent and
severe financial loss) without the ability
to employ all of the H–2B workers
requested on the petition filed pursuant
to this paragraph (h)(6)(xiv);
(ii) All workers requested and/or
instructed to apply for a visa have been
issued an H–2B visa or otherwise
granted H–2B status in fiscal year 2021,
2022, or 2023, unless the H–2B worker
is a national of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica who is counted towards the
20,000 cap described in paragraph
(h)(6)(xiv)(A)(2) of this section;
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(iii) The employer will comply with
obligations and additional recruitment
requirements outlined in 20 CFR
655.64(a)(3) through (5);
(iv) The employer will provide
documentary evidence of the facts in
paragraphs (h)(6)(xiv)(B)(2)(i) through
(iii) of this section to DHS and/or DOL
upon request; and
(v) The employer will agree to fully
cooperate with any compliance review,
evaluation, verification, or inspection
conducted by DHS, including an on-site
inspection of the employer’s facilities,
interview of the employer’s employees
and any other individuals possessing
pertinent information, and review of the
employer’s records related to the
compliance with immigration laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2024
supplemental allocations outlined in
paragraph (h)(6)(xiv)(B) of this section,
as a condition for the approval of the
petition.
(vi) The employer will fully cooperate
with any audit, investigation,
compliance review, evaluation,
verification or inspection conducted by
DOL, including an on-site inspection of
the employer’s facilities, interview of
the employer’s employees and any other
individuals possessing pertinent
information, and review of the
employer’s records related to the
compliance with applicable laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2024
supplemental allocations outlined in 20
CFR 655.64(a) and 655.65(a), as a
condition for the approval of the H–2B
petition. The employer must attest to
this on Form ETA–9142–B–CAA–8 and
must further attest on Form ETA–9142–
B–CAA–8 that it will not impede,
interfere, or refuse to cooperate with an
employee of the Secretary of the U.S.
Department of Labor who is exercising
or attempting to exercise DOL’s audit or
investigative authority pursuant to 20
CFR part 655, subpart A, and 29 CFR
503.25.
(C) Processing—(1) Petitions filed
pursuant to paragraph
(h)(6)(xiv)(A)(1)(a) requesting FY 2024
employment start dates on or before
March 31, 2024. USCIS will reject
petitions filed pursuant to paragraph
(h)(6)(xiv)(A)(1)(a) of this section
requesting employment start dates on or
before March 31, 2024 that are received
after the applicable numerical limitation
has been reached or after September 16,
2024.
(2) Petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(ii) of this
section requesting FY 2024 employment
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start dates from April 1, 2024 to May 14,
2024. USCIS will reject petitions filed
pursuant to paragraph
(h)(6)(xiv)(A)(1)(ii) of this section
requesting employment start dates from
April 1, 2024 to May 14, 2024 that are
received earlier than 15 days after the
INA section 214(g) cap for the second
half FY 2024 has been met, or after the
applicable numerical limitation has
been reached or after September 16,
2024.
(3) Petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(iii) of this
section requesting FY 2024 employment
start dates from May 15, 2024 and
September 30, 2024. USCIS will reject
petitions filed pursuant to paragraph
(h)(6)(xiv)(A)(1)(iii) of this section
requesting employment start dates from
May 15, 2024 to September 30, 2024
that are received earlier than 45 days
after the INA section 214(g) cap for the
second half FY 2024 has been met, or
after the applicable numerical limitation
has been reached or after September 16,
2024.
(4) Petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(2) requesting
nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica with FY 2024 employment
start dates. USCIS will reject petitions
filed pursuant to paragraph
(h)(6)(xiv)(A)(2) of this section that have
a date of need on or after April 1, 2024
and are received earlier than 15 days
after the INA section 214(g) cap for the
second half of FY 2024 is met, or after
the applicable numerical limitation has
been reached or after September 16,
2024.
(5) USCIS will not approve a petition
filed pursuant to this paragraph
(h)(6)(xiv) on or after October 1, 2024.
(D) Numerical limitations under
paragraphs (h)(6)(xiv)(A)(1) and (2) of
this section. When calculating the
numerical limitations under paragraphs
(h)(6)(xiv)(A)(1) and (2) of this section
as authorized under Public Law 117–
328, as extended by Public Law 118–15,
USCIS will make numbers for each
allocation available to petitions in the
order in which the petitions subject to
the respective limitation are received.
USCIS will make projections of the
number of petitions necessary to
achieve the numerical limit of
approvals, taking into account historical
data related to approvals, denials,
revocations, and other relevant factors.
USCIS will monitor the number of
petitions received (including the
number of workers requested when
necessary) and will notify the public of
the dates that USCIS has received the
necessary number of petitions (the
‘‘final receipt dates’’) under paragraph
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80457
(h)(6)(xiv)(A)(1) or (2). The day the
public is notified will not control the
final receipt dates. When necessary to
ensure the fair and orderly allocation of
numbers subject to the numerical
limitations in paragraphs
(h)(6)(xiv)(A)(1) and (2), USCIS may
randomly select from among the
petitions received on the final receipt
dates the remaining number of petitions
deemed necessary to generate the
numerical limit of approvals. This
random selection will be made via
computer-generated selection. Petitions
subject to a numerical limitation not
randomly selected or that were received
after the final receipt dates that may be
applicable under paragraph
(h)(6)(xiv)(A)(1) or (2) will be rejected.
If the final receipt date is any of the first
5 business days on which petitions
subject to the applicable numerical
limits described in paragraph
(h)(6)(xiv)(A)(1) or (2) may be received
(in other words, if either of the
numerical limits described in paragraph
(h)(6)(xiv)(A)(1) or (2) is reached on any
one of the first 5 business days that
filings can be made), USCIS will
randomly apply all of the numbers
among the petitions received on any of
those 5 business days.
(E) Sunset. This paragraph (h)(6)(xiv)
expires on October 1, 2024.
(F) Non-severability. The requirement
to file an attestation under paragraph
(h)(6)(xiv)(B)(2) of this section is
intended to be non-severable from the
remainder of this paragraph (h)(6)(xiv),
including, but not limited to, the
numerical allocation provisions at
paragraphs (h)(6)(xiv)(A)(1) and (2) of
this section in their entirety. In the
event that any part of this paragraph
(h)(6)(xiv) is enjoined or held to be
invalid by any court of competent
jurisdiction, the remainder of this
paragraph (h)(6)(xiv) is also intended to
be enjoined or held to be invalid in such
jurisdiction, without prejudice to
workers already present in the United
States under this paragraph (h)(6)(xiv),
as consistent with law.
*
*
*
*
*
(30) [Reserved]
(31) Change of employers and
portability for H–2B workers. (i) This
paragraph (h)(31) relates to H–2B
workers seeking to change employers
during the time period specified in
paragraph (h)(31)(iv) of this section.
Notwithstanding paragraph (h)(2)(i)(D)
of this section:
(A) An alien in valid H–2B
nonimmigrant status whose new
petitioner files a non-frivolous H–2B
petition requesting an extension of the
alien’s stay on or after January 25, 2024,
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is authorized to begin employment with
the new petitioner after the petition
described in this paragraph (h)(31) is
received by USCIS and before the new
H–2B petition is approved, but no
earlier than the start date indicated in
the new H–2B petition; or
(B) An alien whose new petitioner
filed a non-frivolous H–2B petition
requesting an extension of the alien’s
stay before January 25, 2024, that
remains pending on January 25, 2024, is
authorized to begin employment with
the new petitioner before the new H–2B
petition is approved, but no earlier than
the start date of employment indicated
on the new H–2B petition.
(ii)(A) With respect to a new petition
described in paragraph (h)(31)(i)(A) of
this section, and subject to the
requirements of 8 CFR 274a.12(b)(34),
the new period of employment
described in paragraph (h)(31)(i) of this
section may last for up to 60 days
beginning on the Received Date on Form
I–797 (Notice of Action) or, if the start
date of employment occurs after the I–
797 Received Date, for a period of up to
60 days beginning on the start date of
employment indicated in the H–2B
petition.
(B) With respect to a new petition
described in paragraph (h)(31)(i)(B) of
this section, the new period of
employment described in paragraph
(h)(31)(i) of this section may last for up
to 60 days beginning on the later of
either January 25, 2024, or the start date
of employment indicated in the H–2B
petition.
(C) With respect to either type of new
petition, if USCIS adjudicates the new
petition before the expiration of this 60day period and denies the petition, or if
the new petition is withdrawn by the
petitioner before the expiration of the
60-day period, the employment
authorization associated with the filing
of that petition under 8 CFR
274a.12(b)(34) will automatically
terminate 15 days after the date of the
denial decision or 15 days after the date
on which the new petition is
withdrawn. Nothing in this paragraph
(h)(31) is intended to alter the
availability of employment
authorization related to professional H–
2B athletes who are traded between
organizations pursuant to paragraph
(h)(6)(vii) of this section and 8 CFR
274a.12(b)(9).
(iii) In addition to meeting all other
requirements in paragraph (h)(6) of this
section for the H–2B classification, to
commence employment under this
paragraph (h)(31):
(A) The alien must either:
(1) Have been in valid H–2B
nonimmigrant status on or after January
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19:31 Nov 16, 2023
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25, 2024 and be the beneficiary of a nonfrivolous H–2B petition requesting an
extension of the alien’s stay that is
received on or after January 25, 2024,
but no later than January 24, 2025; or
(2) Be the beneficiary of a nonfrivolous H–2B petition requesting an
extension of the alien’s stay that is
pending as of January 25, 2024; and
(B) The petitioner may not impede,
interfere, or refuse to cooperate with an
employee of the Secretary of the U.S.
Department of Labor who is exercising
or attempting to exercise DOL’s audit or
investigative authority under 20 CFR
part 655, subpart A, and 29 CFR 503.25.
(iv) Authorization to initiate
employment changes pursuant to this
paragraph (h)(31) begins at 12 a.m. on
January 25, 2024, and ends at the end
of January 24, 2025.
*
*
*
*
*
20 CFR Chapter V
3. The authority citation for part 274a
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1105a,
1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L.
101–410, 104 Stat. 890, as amended by Pub.
L. 114–74, 129 Stat. 599.
4. Effective November 17, 2023,
through November 17, 2026, amend
§ 274a.12 by adding paragraph (b)(34) to
read as follows:
■
§ 274a.12 Classes of aliens authorized to
accept employment.
*
*
*
*
(b) * * *
(34)(i) Pursuant to 8 CFR 214.2(h)(31)
and notwithstanding 8 CFR
214.2(h)(2)(i)(D), an alien is authorized
to be employed no earlier than the start
date of employment indicated in the H–
2B petition and no earlier than January
25, 2024, by a new employer that has
filed an H–2B petition naming the alien
as a beneficiary and requesting an
extension of stay for the alien, for a
period not to exceed 60 days beginning
on:
(A) The later of the ‘‘Received Date’’
on Form I–797 (Notice of Action)
acknowledging receipt of the petition, or
the start date of employment indicated
on the new H–2B petition, for petitions
filed on or after January 25, 2024; or
(B) The later of January 25, 2024, or
the start date of employment indicated
on the new H–2B petition, for petitions
that are pending as of January 25, 2024.
(ii) If USCIS adjudicates the new
petition prior to the expiration of the 60day period in paragraph (b)(34)(i) of this
section and denies the new petition for
extension of stay, or if the petitioner
withdraws the new petition before the
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DEPARTMENT OF LABOR
Employment and Training
Administration
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
*
expiration of the 60-day period, the
employment authorization under this
paragraph (b)(34) will automatically
terminate upon 15 days after the date of
the denial decision or the date on which
the new petition is withdrawn. Nothing
in this section is intended to alter the
availability of employment
authorization related to professional H–
2B athletes who are traded between
organizations pursuant to paragraph
(b)(9) of this section and 8 CFR
214.2(h)(6)(vii).
(iii) Authorization to initiate
employment changes pursuant to 8 CFR
214.2(h)(31) and paragraph (b)(34)(i) of
this section begins at 12 a.m. on January
25, 2024, and ends at the end of January
24, 2025.
*
*
*
*
*
Accordingly, for the reasons stated in
the joint preamble, 20 CFR part 655 is
amended as follows:
PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES
5. The authority citation for part 655
continues to read as follows:
■
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and
(t), 1184(c), (g), and (j), 1188, and 1288(c) and
(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat.
2099, 2102 (8 U.S.C. 1182 note); sec. 221(a),
Pub. L. 101–649, 104 Stat. 4978, 5027 (8
U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102–
232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and
(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 412(e), Pub. L. 105–277, 112 Stat.
2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114–74 at section 701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
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Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).
6. Effective November 17, 2023,
through September 30, 2024, add
§ 655.64 to read as follows:
■
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§ 655.64 Special application filing and
eligibility provisions for Fiscal Year 2024
under the November 17, 2023 supplemental
cap increase.
(a) An employer filing a petition with
USCIS under 8 CFR 214.2(h)(6)(xiv) to
request H–2B workers with FY 2024
employment start dates on or before
September 30, 2024, must meet the
following requirements:
(1) The employer must attest on the
Form ETA–9142–B–CAA–8 that its
business is suffering irreparable harm or
will suffer impending irreparable harm
(that is, permanent and severe financial
loss) without the ability to employ all of
the H–2B workers requested on the
petition filed pursuant to 8 CFR
214.2(h)(6)(xiv). Additionally, the
employer’s attestation must identify the
types of evidence the employer is
relying on and will retain to meet the
irreparable harm standard, attest that
the employer has created a detailed
written statement describing how it is
suffering irreparable harm or will suffer
impending irreparable harm and
describing how such evidence
demonstrates irreparable harm, and
attest that the employer will provide all
documentary evidence of the applicable
irreparable harm and the written
statement describing how such evidence
demonstrates irreparable harm to DHS
and/or DOL upon request.
(2) The employer must attest on Form
ETA–9142–B–CAA–8 that each of the
workers requested and/or instructed to
apply for a visa, whether named or
unnamed, on a petition filed pursuant to
8 CFR 214.2(h)(6)(xiv), have been issued
an H–2B visa or otherwise granted H–
2B status during one of the last three (3)
fiscal years (fiscal year 2021, 2022, or
2023), unless the H–2B worker is a
national of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica and is counted towards the
20,000 cap described in 8 CFR
214.2(h)(6)(xiv)(A)(2).
(3) The employer must attest on Form
ETA–9142–B–CAA–8 that the employer
will comply with all the assurances,
obligations, and conditions of
employment set forth on its approved
Application for Temporary Employment
Certification.
(4) An employer that submits Form
ETA–9142B–CAA–8 and the I–129
petition 30 or more days after the
certified start date of work, as shown on
its approved Form ETA–9142B, Final
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19:31 Nov 16, 2023
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Determination: H–2B Temporary Labor
Certification Approval, must conduct
additional recruitment of U.S. workers
as follows:
(i) Not later than the next business
day after submitting the I–129 petition
for H–2B worker(s), the employer must
place a new job order for the job
opportunity with the State Workforce
Agency (SWA), serving the area of
intended employment. The employer
must follow all applicable SWA
instructions for posting job orders,
concurrently inform the SWA and NPC
that the job order is being placed in
connection with a previously certified
Application for Temporary Employment
Certification for H–2B workers by
providing the unique temporary labor
certification (TLC) identification
number, and receive applications in all
forms allowed by the SWA, including
online applications (sometimes known
as ‘‘self-referrals’’). The job order must
contain the job assurances and contents
set forth in § 655.18 for recruitment of
U.S. workers at the place of
employment, and remain posted for at
least 15 calendar days;
(ii) During the period of time the SWA
is actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must contact, by email or
other available electronic means, the
nearest comprehensive American Job
Center (AJC) serving the area of
intended employment where work will
commence, request staff assistance
advertising and recruiting qualified U.S.
workers for the job opportunity, and
provide the unique identification
number associated with the job order
placed with the SWA or, if unavailable,
a copy of the job order. If a
comprehensive AJC is not available, the
employer must contact the nearest
affiliate AJC serving the area of intended
employment where work will
commence to satisfy the requirements of
this paragraph (a)(4)(ii);
(iii) Where the occupation or industry
is traditionally or customarily
unionized, during the period of time the
SWA is actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must contact (by mail, email
or other effective means) the nearest
American Federation of Labor and
Congress of Industrial Organizations
office covering the area of intended
employment and provide written notice
of the job opportunity, by providing a
copy of the job order placed pursuant to
(a)(4)(i) of this section, and request
assistance in recruiting qualified U.S.
workers for the job;
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80459
(iv) During the period of time the
SWA is actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must contact (by mail or other
effective means) its former U.S. workers,
including those who have been
furloughed or laid off, during the period
beginning January 1, 2022, until the date
the I–129 petition required under 8 CFR
214.2(h)(6)(xiv) is submitted, who were
employed by the employer in the
occupation at the place of employment
(except those who were dismissed for
cause or who abandoned the worksite),
disclose the terms of the job order
placed pursuant to (a)(4)(i) of this
section, and solicit their return to the
job. The contact and disclosures
required by this paragraph (a)(4)(iv)
must be provided in a language
understood by the worker, as necessary
or reasonable, and in writing;
(v) During the period of time the SWA
is actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must engage in the
recruitment of U.S. workers as provided
in § 655.45(a) and (b). The contact and
disclosures required by this paragraph
(a)(4)(v) must be provided in a language
understood by the worker, as necessary
or reasonable, in writing; and
(vi) During the period of time the
SWA is actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must contact (by mail or other
effective written means) all U.S. workers
currently employed at the place of
employment, disclose the terms of the
job order placed pursuant to (a)(4)(i) of
this section, and request assistance in
recruiting qualified U.S. workers for the
job. The contact, disclosure, and request
for assistance required by this paragraph
(a)(4)(vi) must be provided in a language
understood by the worker, as necessary
or reasonable, and in writing;
(vii) Where the employer maintains a
website for its business operations,
during the period of time the SWA is
actively circulating the job order
described in paragraph (a)(4)(i) of this
section for intrastate clearance, the
employer must post the job opportunity
in a conspicuous location on the
website. The job opportunity posted on
the website must disclose the terms of
the job order placed pursuant to (a)(4)(i)
of this section, and remain posted for at
least 15 calendar days;
(viii) The employer must hire any
qualified U.S. worker who applies or is
referred for the job opportunity until the
date on which the last H–2B worker
departs for the place of employment, or
30 days after the last date on which the
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80460
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khammond on DSKJM1Z7X2PROD with RULES2
SWA job order is posted, whichever is
later. Consistent with § 655.40(a),
applicants can be rejected only for
lawful job-related reasons.
(5) The employer must attest on Form
ETA–9142–B–CAA–8 that it will fully
cooperate with any audit, investigation,
compliance review, evaluation,
verification, or inspection conducted by
DOL, including an on-site inspection of
the employer’s facilities, interview of
the employer’s employees and any other
individuals possessing pertinent
information, and review of the
employer’s records related to the
compliance with applicable laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2024
supplemental allocations outlined in
this paragraph (a) and § 655.65(a), as a
condition for the approval of the H–2B
petition. Pursuant to this subpart and 29
CFR 503.25, the employer will not
impede, interfere, or refuse to cooperate
with an employee of the Secretary who
is exercising or attempting to exercise
DOL’s audit or investigative authority.
(b) This section expires on October 1,
2024.
(c) The requirements under paragraph
(a) of this section are intended to be
non-severable from the remainder of
this section; in the event that paragraph
(a)(1), (2), (3), (4), or (5) of this section
is enjoined or held to be invalid by any
court of competent jurisdiction, the
remainder of this section is also
intended to be enjoined or held to be
invalid in such jurisdiction, without
prejudice to workers already present in
VerDate Sep<11>2014
19:31 Nov 16, 2023
Jkt 262001
the United States under this part, as
consistent with law.
■ 7. Effective November 17, 2023,
through September 30, 2027, add
§ 655.65 to read as follows:
§ 655.65 Special document retention
provisions for Fiscal Years 2024 through
2027 under the Consolidated
Appropriations Act, 2023, as extended by
Public Law 118–15.
(a) An employer that files a petition
with USCIS to employ H–2B workers in
fiscal year 2024 under authority of the
temporary increase in the numerical
limitation under section 303 of Division
O, Public Law 117–328, as extended by
Public Law 118–15 must maintain for a
period of three (3) years from the date
of certification, consistent with 20 CFR
655.56 and 29 CFR 503.17, the
following:
(1) A copy of the attestation filed
pursuant to the regulations in 8 CFR
214.2 governing that temporary
increase;
(2) Evidence establishing, at the time
of filing the I–129 petition, that the
employer’s business is suffering
irreparable harm or will suffer
impending irreparable harm (that is,
permanent and severe financial loss)
without the ability to employ all of the
H–2B workers requested on the petition
filed pursuant to 8 CFR 214.2(h)(6)(xiv),
including a detailed written statement
describing the irreparable harm and
how such evidence shows irreparable
harm;
(3) Documentary evidence
establishing that each of the workers the
employer requested and/or instructed to
PO 00000
Frm 00068
Fmt 4701
Sfmt 9990
apply for a visa, whether named or
unnamed on a petition filed pursuant to
8 CFR 214.2(h)(6)(xiv), have been issued
an H–2B visa or otherwise granted H–
2B status during one of the last three (3)
fiscal years (fiscal year 2021, 2022, or
2023), unless the H–2B worker(s) is a
national of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica and is counted towards the
20,000 cap described in 8 CFR
214.2(h)(6)(xiv)(A)(2). Alternatively, if
applicable, employers must maintain
documentary evidence that the workers
the employer requested and/or
instructed to apply for visas are eligible
nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or
Costa Rica as defined in 8 CFR
214.2(h)(6)(xiv)(A)(2); and
(4) If applicable, proof of recruitment
efforts set forth in § 655.64(a)(4)(i)
through (vii) and a recruitment report
that meets the requirements set forth in
§ 655.48(a)(1) through (4) and (7), and
maintained throughout the recruitment
period set forth in § 655.64(a)(4)(viii).
(b) DOL and/or DHS may inspect the
documents in paragraphs (a)(1) through
(4) of this section upon request.
(c) This section expires on October 1,
2027.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
[FR Doc. 2023–25493 Filed 11–16–23; 8:45 am]
BILLING CODE 9111–97–P; 4510–FP–P
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]]>Agencies
[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80394-80460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25493]
[[Page 80393]]
Vol. 88
Friday,
No. 221
November 17, 2023
Part II
Department of Homeland Security
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8 CFR Parts 214 and 274a
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Numerical Limitation
for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change Employers;
Temporary Rule
Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 /
Rules and Regulations
[[Page 80394]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2764-24]
RIN 1615-AC89
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2023-0005]
RIN 1205-AC18
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To Change
Employers
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS), and Employment and Training Administration
and Wage and Hour Division, U.S. Department of Labor (DOL).
ACTION: Temporary rule.
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SUMMARY: DHS, in consultation with DOL, is exercising time-limited
Fiscal Year (FY) 2024 authority and increasing the total number of
noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716
for the entirety of FY 2024. These supplemental visas will be
distributed in several allocations. 20,000 visas made available in this
rule will be reserved for nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be
available only to businesses that are suffering or will suffer
impending irreparable harm, as attested by the employer. In addition,
DHS is again providing temporary portability flexibility.
DATES: Effective dates: The amendments at instructions 1, 3, and 5 are
effective November 17, 2023; at instructions 2 and 4 amending 8 CFR
214.2 and 274a.12, respectively, are effective from November 17, 2023,
through November 17, 2026; at instruction 6, adding 20 CFR 655.64, is
effective from November 17, 2023, through September 30, 2024; and at
instruction 7, adding 20 CFR 655.65, is effective from November 17,
2023, through September 30, 2027.
Petition dates: DHS will not accept any H-2B petitions under
provisions related to the FY 2024 supplemental numerical allocations
after September 16, 2024, and will not approve any such H-2B petitions
after September 30, 2024. The provisions related to portability are
only available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2025.
Comments on the Information Collection: The Office of Foreign Labor
Certification within the U.S. Department of Labor will accept comments
in connection with the new information collection Form ETA-9142B-CAA-8
associated with this rule until January 16, 2024. The electronic
Federal Docket Management System will accept comments prior to midnight
eastern time at the end of that day.
ADDRESSES: You may submit written comments on the new information
collection Form ETA-9142B-CAA-8, identified by Regulatory Information
Number (RIN) 1205-AC18, electronically by the following method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and the RIN 1205-AC18 in
your submission. All comments received will become a matter of public
record and will be posted without change to https://www.regulations.gov. Please do not include any personally identifiable
information or confidential business information you do not want
publicly disclosed.
FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a:
Charles L. Nimick, Chief, Business and Foreign Workers Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free
number).
Regarding 20 CFR part 655 and Form ETA-9142B-CAA-8: Brian D.
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202)
693-8200 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2023 Omnibus and FY 2024 Public Law 118-15
D. Joint Issuance of the Final Rule
E. Comments and Responses to Comments on the FY 2023 TFR
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for Fiscal Year 2024
C. Returning Workers
D. 20,000 Allocation for Nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica
E. Business Need Standard--Irreparable Harm and FY 2024
Attestation
F. Portability
G. Compliance With Employment-Related Laws
H. DHS Petition Procedures
I. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. National Environmental Policy Act
H. Congressional Review Act
I. Paperwork Reduction Act
I. Executive Summary
FY 2024 H-2B Supplemental Cap
With this temporary final rule (TFR), the Secretary of Homeland
Security, following consultation with the Secretary of Labor, is
authorizing the release of an additional 64,716 H-2B visas for FY 2024,
subject to certain conditions. The 64,716 visas are divided into the
following allocations:
For the first half of FY 2024: 20,716 immediately
available visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023, regardless of country of nationality. These
petitions must request employment start dates on or before March 31,
2024;
For the early second half of FY 2024 (April 1 to May 14):
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023 regardless of country of nationality. These early
second half of FY 2024 petitions must request employment start dates
from April 1, 2024, to May 14, 2024. Furthermore, employers must file
these petitions no earlier than 15 days after
[[Page 80395]]
the second half statutory cap \1\ is reached;
---------------------------------------------------------------------------
\1\ The term ``statutory cap'' refers to the 66,000 cap set
forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at
INA section 214(g)(10).
---------------------------------------------------------------------------
For the late second half of FY 2024: (May 15 to September
30): 5,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023 regardless of country of nationality. These late
second half of FY 2024 petitions must request employment start dates
from May 15, 2024, to September 30, 2024. Furthermore, employers must
file these petitions no earlier than 45 days after the second half
statutory cap is reached; and
For the entirety of FY 2024: 20,000 visas reserved for
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica (country-specific allocation) as attested by
the petitioner (regardless of whether such nationals are returning
workers). Employers requesting an employment start date in the first
half of FY 2024 may file such petitions immediately after the
publication of this TFR. Employers requesting an employment start date
in the second half of FY 2024 must file such petitions no earlier than
15 days after the second half statutory cap is reached.
To qualify for the FY 2024 supplemental caps provided by this
temporary final rule, eligible petitioners must:
Meet all existing H-2B eligibility requirements, including
obtaining an approved temporary labor certification (TLC) from DOL
before filing the Form I-129, Petition for a Nonimmigrant Worker, with
USCIS;
Properly file the Form I-129, Petition for a Nonimmigrant
Worker, with USCIS at its Texas Service Center on or before September
16, 2024;
Submit an attestation affirming, under penalty of perjury,
that the employer is suffering irreparable harm or will suffer
impending irreparable harm without the ability to employ all of the H-
2B workers requested on the petition, and that they are seeking to
employ returning workers only, unless the H-2B worker is a Salvadoran,
Guatemalan, Honduran, Haitian, Colombian, Ecuadorian, or Costa Rican
national and counted towards the 20,000 cap exempt from the returning
worker requirement; and
Prepare and retain a detailed written statement describing
how the employer is suffering irreparable harm or will suffer impending
irreparable harm and how evidence demonstrates irreparable harm and
supports their application.
Employers filing an H-2B petition 30 or more days after the
certified start date on the TLC, must attest to engaging in the
following additional steps to recruit U.S. workers:
No later than 1 business day after filing the petition,
place a new job order with the relevant State Workforce Agency (SWA)
for at least 15 calendar days;
Contact the nearest American Job Center serving the
geographic area where work will commence and request staff assistance
in recruiting qualified U.S. workers;
Contact the employer's former U.S. workers, including
those the employer furloughed or laid off beginning on January 1, 2022,
and until the date the H-2B petition is filed, disclose the terms of
the job order and solicit their return to the job;
Provide written notification of the job opportunity to the
bargaining representative for the employer's employees in the
occupation and area of employment, or post notice of the job
opportunity at the anticipated worksite if there is no bargaining
representative;
Where the occupation is traditionally or customarily
unionized, provide written notification of the job opportunity to the
nearest American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) office covering the area of intended
employment, by providing a copy of the job order and requesting
assistance in recruiting qualified U.S. workers for the job
opportunity;
Contact in writing and in a language understood by the
worker, all U.S. workers currently employed at the place of employment,
disclose the terms of the job order, and request assistance in
recruiting qualified U.S. workers for the job;
Where the employer maintains a website for its business
operations, post the job opportunity in a conspicuous location on the
employer's website; and
Hire any qualified U.S. worker who applies or is referred
for the job opportunity until the later of either (1) the date on which
the last H-2B worker departs for the place of employment, or (2) 30
days after the last date of the SWA job order posting.
Petitioners filing H-2B petitions under this FY 2024 supplemental
cap must retain documentation of compliance with the attestation
requirements for 3 years from the date DOL approved the TLC, and must
provide the documents and records upon the request of DHS or DOL, as
well as fully cooperate with any compliance reviews such as audits.
Through audits and investigations, both Departments have received
evidence of employer non-compliance with the terms and conditions of
the H-2B program, as well as violations of other labor and employment
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and
Hour Division (WHD), and USCIS Fraud Detection and National Security
(FDNS) personnel have encountered non-compliance issues such as failure
to pay the promised wage, failure to employ returning workers, failure
to demonstrate irreparable harm, failure to conduct the additional
recruitment steps, and failure to accurately disclose the beneficiary's
work location(s).
Such non-compliance can harm U.S. workers by undermining wages and
working conditions. It also directly harms H-2B workers. Further, H-2B
workers depend on ongoing employment with the petitioning employer to
maintain status in the United States. This dependence creates a power
imbalance between the employer and H-2B worker, making the H-2B worker
particularly vulnerable to exploitation and violations. In recognition
of the substantial impact that non-compliance can have on both U.S.
workers and H-2B workers, DHS and DOL again intend to conduct a
significant number of audits focusing on irreparable harm and other
worker protection provisions. And as it did as part of the FY 2022
second half H-2B supplemental cap TFR and the FY 2023 H-2B supplemental
cap TFR, DHS will again subject employers that have committed labor law
violations in the H-2B program to additional scrutiny in the
supplemental cap petition process.\2\ DHS intends for this additional
scrutiny to help ensure compliance with H-2B program requirements and
obligations.
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\2\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022 for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking to Change Employers, 87 FR 30334, 30335
(May 18, 2022); Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76818 (Dec. 15,
2022).
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Specifically, falsifying information in H-2B program attestation(s)
can result not only in penalties relating to perjury, but also in,
among other things, a finding of fraud or willful misrepresentation;
denial or revocation of the H-2B petition requesting supplemental
workers; and debarment by DOL and DHS from the H-2B program and any
other foreign labor
[[Page 80396]]
programs administered by DOL. Falsifying information also may subject a
petitioner/employer to other criminal and/or civil penalties.
DHS will not approve H-2B petitions filed in connection with the FY
2024 supplemental cap authority on or after October 1, 2024.
H-2B Portability
In addition to exercising its time-limited authority to make
additional FY 2024 H-2B visas available, DHS is again providing
additional flexibilities to H-2B petitioners under its general
programmatic authority by allowing nonimmigrant workers in the United
States \3\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2024, or who
are the beneficiaries of non-frivolous H-2B petitions that are pending
as of January 25, 2024, to begin work with a new employer after an H-2B
petition (supported by a valid TLC) is filed and before the petition is
approved, generally for a period of up to 60 days. However, such
employment authorization would end 15 days after USCIS denies the H-2B
petition or such petition is withdrawn. This H-2B portability ends one
year after the provision's effective date of January 25, 2024, in other
words, at the end of January 24, 2025.\4\
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\3\ The term ``United States'' includes the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the
United States, and the Commonwealth of the Northern Mariana Islands.
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
\4\ On September 20, 2023, DHS issued a Modernizing H-2 Program
Requirements, Oversight, and Worker Protections Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public comment
period that ends on November 20, 2023. In that NPRM, DHS proposed to
extend portability to H-2A and H-2B workers on a permanent basis.
The Department's proposal does not interfere with the portability
provision of this rule, however, should DHS publish a final rule
making H-2 portability permanent, any such provision would not
expire on a specific date, unlike the portability provision made
effective by this temporary final rule.
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II. Background
A. Legal Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this
petition before the beneficiary can be considered eligible for an H-2B
visa. In addition, the INA requires that ``[t]he question of importing
any alien as [an H-2B] nonimmigrant . . . in any specific case or
specific cases shall be determined by [DHS],\5\ after consultation with
appropriate agencies of the Government.'' INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The INA generally charges the Secretary of Homeland
Security with the administration and enforcement of the immigration
laws, and provides that the Secretary ``shall establish such
regulations . . . and perform such other acts as he deems necessary for
carrying out his authority'' under the INA. See INA section 103(a)(1),
(3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 202(4) (charging the
Secretary with ``[e]stablishing and administering rules . . . governing
the granting of visas or other forms of permission . . . to enter the
United States to individuals who are not a citizen or an alien lawfully
admitted for permanent residence in the United States''). With respect
to nonimmigrants in particular, the INA provides that ``[t]he admission
to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the [Secretary] may by regulations
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA
section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3)
(prohibiting employment of noncitizens \6\ not authorized for
employment). The Secretary may designate officers or employees to take
and consider evidence concerning any matter that is material or
relevant to the enforcement of the INA. INA sections 287(a)(1), (b), 8
U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8 U.S.C. 1225(d)(3).
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\5\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
\6\ For purposes of this discussion, the Departments use the
term ``noncitizen'' colloquially to be synonymous with the term
``alien'' as it is used in the Immigration and Nationality Act.
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Finally, under section 101 of the HSA, 6 U.S.C. 111(b)(1)(F), a
primary mission of DHS is to ``ensure that the overall economic
security of the United States is not diminished by efforts, activities,
and programs aimed at securing the homeland.''
DHS regulations provide that an approved TLC from the U.S.
Department of Labor (DOL), issued pursuant to regulations established
at 20 CFR part 655, or from the Guam Department of Labor if the workers
will be employed on Guam, must accompany an H-2B petition for temporary
employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C)
through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C.
1103(a)(6). The TLC serves as DHS's consultation with DOL with respect
to whether a qualified U.S. worker is available to fill the petitioning
H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly-employed U.S. workers. See INA section
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
To determine whether to issue a TLC, the Departments have
established regulatory procedures under which DOL certifies whether a
qualified U.S. worker is available to fill the job opportunity
described in the employer's petition for a temporary nonagricultural
worker, and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See 20 CFR part 655, subpart A. The
regulations establish the process by which employers obtain a TLC and
rights and obligations of workers and employers.
Once the petition is approved, under the INA and current DHS
regulations, H-2B workers do not have employment authorization outside
of the validity period listed on the approved petition unless otherwise
authorized, and the workers are limited to employment with the H-2B
petitioner. See 8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer
or U.S. agent generally may submit a new H-2B petition, with a new,
approved TLC, to USCIS to request an extension of H-2B nonimmigrant
status for the validity of the TLC or for a period of up to 1 year. 8
CFR 214.2(h)(15)(ii)(C). Except as provided for in the preceding H-2B
supplemental cap TFRs \7\ and in this rule, and except
[[Page 80397]]
for certain professional athletes being traded among organizations,\8\
H-2B workers seeking to extend their status with a new employer may not
begin employment with the new employer until the new H-2B petition is
approved.
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\7\ For instance, the FY 2023 H-2B supplemental cap TFR included
a portability provision at 8 CFR 214.2(h)(29)(iii)(A)(1)-(2), which
remains in effect through January 24, 2024. See e.g., Exercise of
Time-Limited Authority To Increase the Numerical Limitation for FY
2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
\8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8
U.S.C. 1184(c)(14)(A)(i), to DOL. See DHS, Delegation of Authority to
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL
to the Wage and Hour Division (WHD), and is governed by regulations at
29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The maximum annual number (``statutory cap'') of noncitizens who
may be issued H-2B visas or otherwise provided H-2B nonimmigrant status
to perform temporary nonagricultural work is 66,000, distributed
semiannually beginning in October and April. See INA sections
214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10).
Accordingly, with certain exceptions as described below, up to 33,000
noncitizens may be issued H-2B visas or provided H-2B nonimmigrant
status in the first half of a fiscal year, and the remaining annual
allocation, including any unused nonimmigrant H-2B visas from the first
half of a fiscal year, are available for employers seeking to hire H-2B
workers during the second half of the fiscal year.\9\ If the number of
petitions approved by DHS is insufficient to use all H-2B numbers in a
given fiscal year, DHS cannot carry over the unused numbers for
petition approvals for employment start dates beginning on or after the
start of the next fiscal year.
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\9\ The Federal Government's fiscal year runs from October 1 of
the prior year through September 30 of the year being described. For
example, fiscal year 2024 is from October 1, 2023, through September
30, 2024.
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In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers
identified as returning workers from the annual H-2B cap of 66,000.\10\
A returning worker is an H-2B worker who was previously counted against
the annual H-2B cap during a designated period of time.\11\ For
example, Congress designated that returning workers for FY 2016 needed
to have been counted against the cap during FY 2013, 2014, or 2015 to
qualify for the exemption.\12\ DHS and the Department of State (DOS)
worked together to confirm that all workers requested under the
returning worker provision in fact were eligible for exemption from the
annual cap (in other words, were issued an H-2B visa or provided H-2B
status during one of the prior 3 fiscal years) and were otherwise
eligible for H-2B classification.
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\10\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see
also Consolidated Appropriations Act, 2016, Public Law 114-113, div.
F, tit. V, sec 565; John Warner National Defense Authorization Act
for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law 109-13, div. B, tit. IV, sec. 402.
\11\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).
\12\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
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Because of the strong demand for H-2B visas in recent years, the
statutorily-limited semiannual visa allocation, the DOL regulatory
requirement that employers apply for a TLC 75 to 90 days before the
start date of work,\13\ and the DHS regulatory requirement that an
approved TLC accompany all H-2B petitions,\14\ employers that wish to
obtain visas for their workers under the semiannual allotment must act
early to receive a TLC and file a petition with U.S. Citizenship and
Immigration Services (USCIS). As a result, the date on which USCIS has
reached sufficient H-2B petitions to reach the first half of the fiscal
year statutory cap has generally trended earlier in recent years.\15\
For FY 2022, for the first time in more than a decade, USCIS received
sufficient H-2B petitions to reach the first half of the fiscal year
statutory cap before the start of the fiscal year.\16\ This occurred
even earlier in FY 2023, when USCIS received enough H-2B petitions to
reach the FY 2023 first-half statutory cap on September 12, 2022.\17\
For FY 2024, USCIS received sufficient H-2B petitions to reach the
first half of the fiscal year statutory cap on October 11, 2023.\18\
While this date was slightly later than the prior two years, the
Departments note that DOL received 2,157 applications for the first
half of the FY 2024 statutory cap during the initial three-day filing
window of July 3-5, 2023, covering 40,947 worker positions; a 59%
increase in TLC workload when compared to the same time period in
2022.\19\ This trend in recent years of increased demand for H-
[[Page 80398]]
2B workers is even more apparent in the second half of the fiscal
year.\20\
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\13\ See 20 CFR 655.15(b).
\14\ See 8 CFR 214.2(h)(6)(vi)(A).
\15\ In fiscal years 2017 through 2021, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
first half statutory cap on January 10, 2017, December 15, 2017,
December 6, 2018, November 15, 2019, and November 16, 2020,
respectively. See USCIS, USCIS Reaches the H-2B Cap for the First
Half of Fiscal Year 2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan.
13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of
Fiscal Year 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for
the First Half of Fiscal Year 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20,
2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal
Year 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
\16\ On October 12, 2021, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2022, and that September 30, 2021 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2022. See USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021).
\17\ On September 14, 2022, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2023, and that September 12, 2022 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2023. See USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022).
\18\ On October 13, 2023, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2024, and that October 11, 2023 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2024. See USCIS, USCIS Reaches
H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (October 13,
2023).
\19\ See DOL, OFLC Publishes List of Randomized H-2B
Applications Submitted July 3-5, 2023, for Employers Seeking H-2B
Workers Starting October 1, 2023, https://www.dol.gov/agencies/eta/foreign-labor/news (July 10, 2023).
\20\ In recent years, DOL has received an increasing number of
TLC applications for an increasing number of H-2B workers with April
1 start dates: DOL received 4,500 applications on January 1, 2018,
covering more than 81,600 worker positions; DOL received 5,276
applications by January 8, 2019, covering more than 96,400 worker
positions; DOL received 5,677 applications during the initial three-
day filing window in 2020 covering 99,362 worker positions; DOL
received 5,377 applications during the initial three-day filing
window in 2021 covering 96,641 worker positions; DOL received 7,875
applications by January 7, 2022, covering 136,555 worker positions;
and DOL received 8,693 applications during the initial three-day
filing window in 2023, covering 142,796 worker positions. See DOL,
Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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Congress, in recognition of historical and current demand has, for
the last several fiscal years, authorized supplemental caps.\21\ The
authorization for the current supplemental cap is under sections 101(6)
and 106 of Division A of Public Law 118-15, Continuing Appropriations
Act, 2024 and Other Extensions Act (FY 2024 authority), which extended
the authorization previously provided in section 303 of Division O of
the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023
Omnibus), as discussed below.
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\21\ See section 543 of Division F of the Consolidated
Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus);
section 205 of Division M of the Consolidated Appropriations Act,
2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division
H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY
2019 Omnibus); section 105 of Division I of the Further Consolidated
Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus);
section 105 of Division O of the Consolidated Appropriations Act,
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus,
sections 101 and 106(3) of Division A of Public Law 117-43,
Continuing Appropriations Act, 2022, and section 101 of Division A
of Public Law 117-70, Further Continuing Appropriations Act, 2022
through February 18, 2022 (together, FY 2022 authority); and section
204 of Division O of the Consolidated Appropriations Act, 2022,
Public Law 117-103 (FY 2022 Omnibus).
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C. FY 2023 Omnibus and FY 2024 Public Law 118-15
On December 29, 2022, President Joseph Biden signed the FY 2023
Omnibus, which contains a provision, section 303 of Division O, Title
III, permitting the Secretary of Homeland Security, under certain
circumstances and after consultation with the Secretary of Labor, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the otherwise-established statutory numerical
limitation set forth in the INA.\22\ Specifically, section 303 provides
that ``the Secretary of Homeland Security, after consultation with the
Secretary of Labor, and upon determining that the needs of American
businesses cannot be satisfied in [FY] 2023 with United States workers
who are willing, qualified, and able to perform temporary
nonagricultural labor,'' may increase the total number of noncitizens
who may receive an H-2B visa in FY 2023 by the highest number of H-2B
nonimmigrants who participated in the H-2B returning worker program in
any fiscal year in which returning workers were exempt from the H-2B
numerical limitation.
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\22\ The Department of Homeland Security Appropriations Act,
2023, Public Law 117-328 (Dec. 29, 2022).
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On September 30, 2023, Congress passed Public Law 118-15, which
extends authorization under the same terms and conditions provided in
section 303 of Division O of the FY 2023 Omnibus permitting the
Secretary of Homeland Security to increase the number of H-2B visas
available to U.S. employers in FY 2024.\23\ In other words, Public Law
118-15 permits the Secretary of Homeland Security, after consultation
with the Secretary of Labor, to provide up to 64,716 additional H-2B
visas for FY 2024, notwithstanding the otherwise-established statutory
numerical limitation set forth in the INA, for eligible employers whose
employment needs for FY 2024 cannot be met.\24\ Under the Public Law
118-15 authority, DHS and DOL are jointly publishing this temporary
final rule to authorize the issuance of no more than 64,716 additional
visas for FY 2024 to those businesses that are suffering irreparable
harm or will suffer impending irreparable harm, as attested by the
employer on a new attestation form. The authority to approve H-2B
petitions under this FY 2024 supplemental cap expires at the end of
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with this FY 2024 supplemental cap authority on or
after October 1, 2024.
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\23\ See Public Law 118-15, Continuing Appropriations Act, 2024
and Other Extensions Act, Division A, sections 101(6) and 106
(extending into 2024 DHS funding and other authorities, including
the authority to issue supplemental H-2B visas that was provided
under title III of Division O of Pub. L. 117-328, through November
17, 2023).
\24\ Appropriations and authorities provided by the continuing
resolutions are available for the needs of the entire fiscal year to
which the continuing resolution applies, although DHS's ability to
obligate funds or exercise such authorities may lapse at the sunset
of such resolution. See, e.g., Comments on Due Date and Amount of
District of Columbia's Contributions to Special Employee Retirement
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a
continuing resolution appropriates the full annual amount regardless
of its period of duration . . . . Standard continuing resolution
language makes it clear that the appropriations are available to the
extent and in the manner which would be provided by the pertinent
appropriations act that has yet to be enacted (unless otherwise
provided in the continuing resolution).''). Consistent with this
principle, DHS interprets the current continuing resolution to
provide DHS with the ability to authorize additional H-2B visa
numbers with respect to all of FY 2024 subject to the same terms and
conditions as the FY 2023 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2023 in the FY 2023 Omnibus.
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As noted above, since FY 2017, Congress has enacted a series of
public laws providing the Secretary of Homeland Security with the
discretionary authority to increase the H-2B cap beyond the annual
numerical limitation set forth in section 214 of the INA. The previous
statutory provisions were materially identical to section 303 of the FY
2023 Omnibus, which is the same authority provided for FY 2024 by the
recent continuing resolution. During each fiscal year from FY 2017
through FY 2019, and FY 2021 through FY 2023, the Secretary of Homeland
Security, after consulting with the Secretary of Labor, determined that
some American businesses could not satisfy their needs in such year
with U.S. workers who were willing, qualified, and able to perform
temporary nonagricultural labor. On the basis of these determinations,
on July 19, 2017, and May 31, 2018, DHS and DOL jointly published
temporary final rules for FY 2017 and FY 2018, respectively, each of
which allowed an increase of up to 15,000 additional H-2B visas for
those businesses that attested that if they did not receive all of the
workers requested on the Petition for a Nonimmigrant Worker (Form I-
129), they were likely to suffer irreparable harm, in other words,
suffer a permanent and severe financial loss.\25\ USCIS approved a
total of 12,294 workers for H-2B classification under petitions filed
pursuant to the FY 2017 supplemental cap increase.\26\ In FY 2018,
USCIS received petitions for more than 15,000 beneficiaries during the
first 5 business days of filing for the supplemental cap and held a
lottery on June 7, 2018. The total number of H-2B workers approved
toward the FY 2018 supplemental cap increase was 15,788.\27\ The vast
majority
[[Page 80399]]
of the H-2B petitions received under the FY 2017 and FY 2018
supplemental caps requested premium processing (Form I-907) \28\ and
were adjudicated within 15 calendar days.
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\25\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905, 24917 (May 31, 2018).
\26\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\27\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
\28\ Premium processing allows for expedited processing for an
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
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On May 8, 2019, DHS and DOL jointly published a temporary final
rule authorizing an increase of up to 30,000 additional H-2B visas for
the remainder of FY 2019.\29\ The additional visas were limited to
returning workers who had been counted against the H-2B cap or were
otherwise granted H-2B status in the previous three fiscal years, and
for those businesses that attested to a level of need such that, if
they did not receive all of the workers requested on the Form I-129,
they were likely to suffer irreparable harm, in other words, suffer a
permanent and severe financial loss.\30\ The Secretary determined that
limiting returning workers to those who were issued an H-2B visa or
granted H-2B status in the past 3 fiscal years was appropriate, as it
mirrored the standard that Congress designated in previous returning
worker provisions. On June 5, 2019, approximately 30 days after the
supplemental visas became available, USCIS announced that it received
sufficient petitions filed pursuant to the FY 2019 supplemental cap
increase. USCIS did not conduct a lottery for the FY 2019 supplemental
cap increase. The total number of H-2B workers approved towards the FY
2019 supplemental cap increase was 32,680.\31\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\29\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2019 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).
\30\ See 84 FR at 20021.
\31\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2019 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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Although Congress provided the Secretary of Homeland Security with
the discretionary authority to increase the H-2B cap in FY 2020, the
Secretary did not exercise that authority. DHS initially intended to
exercise its authority and, on March 4, 2020, announced that it would
make available 35,000 supplemental H-2B visas for the second half of
the fiscal year.\32\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\33\ On April 2, 2020, DHS announced that
the rule to increase the H-2B cap was on hold due to economic
circumstances, and that DHS would not release additional H-2B visas
until further notice.\34\ DHS also noted that the Department of State
had suspended routine visa services.\35\
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\32\ See DHS, DHS to Improve Integrity of Visa Program for
Foreign Workers (March 5, 2020), https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
\33\ See Proclamation 9994 of Mar. 13, 2020, Declaring a
National Emergency Concerning the Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
\34\ See https://twitter.com/DHSgov/status/1245745115458568192?s=20.
\35\ See https://twitter.com/DHSgov/status/1245745116528156673.
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In FY 2021, DHS in consultation with DOL determined it was
appropriate to increase the H-2B cap for FY 2021 coupled with
additional protections (for example, post-adjudication audits,
investigations, and compliance checks), based on the demand for H-2B
workers in the second half of FY 2021, continuing economic growth, the
improving job market, and increased visa processing capacity by the
Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly
published a temporary final rule authorizing an increase of up to
22,000 additional H-2B visas for the remainder of FY 2021.\36\ The
supplemental visas were available only to employers that attested they
were likely to suffer irreparable harm without the additional workers.
The allocation of 22,000 additional H-2B visas under that rule
consisted of 16,000 visas available only to H-2B returning workers from
one of the last three fiscal years (FY 2018, 2019, or 2020) and 6,000
visas that were initially reserved for nationals of the Northern
Central American countries of El Salvador, Guatemala, and Honduras, who
were exempt from the returning worker requirement. By August 13, 2021,
USCIS had received enough petitions for returning workers to reach the
additional 22,000 H-2B visas made available under the FY 2021 H-2B
supplemental visa temporary final rule.\37\ The total number of H-2B
workers approved towards the FY 2021 supplemental cap increase was
30,707.\38\ This total number included approved H-2B petitions for
23,937 returning workers, as well as 6,805 beneficiaries from the
Northern Central American countries.\39\
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\36\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).
\37\ See USCIS, Cap Reached for Remaining H-2B Visas for
Returning Workers for FY 2021, https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19, 2021).
\38\ The number of approved workers exceeded the number of
additional visas authorized for FY 2021 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK
13122, H-2B Visa Issuance Report September 30, 2023.
\39\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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On January 28, 2022, DHS and DOL jointly published a temporary
final rule authorizing an increase of up to 20,000 additional H-2B
visas for FY 2022 positions with start dates on or before March 31,
2022.\40\ These supplemental visas were available only to employers
that attested they were suffering or would suffer impending irreparable
harm without the additional workers. The allocation of 20,000
additional H-2B visas under that rule consisted of 13,500 visas
available only to H-2B returning workers from one of the last three
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were
exempted from the returning worker requirement. USCIS data show that
the total number of H-2B workers approved towards the first half FY
2022 supplemental cap increase was 17,381, including 14,150 workers
under the returning worker allocation, as well as 3,231 workers
approved towards the Haitian/Northern Central American allocation.\41\
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\40\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2022 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); 87
FR 6017 (Feb. 3, 2022) (correction).
\41\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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For the second half of FY 2022, DHS in consultation with DOL
determined it was appropriate to increase the H-2B cap for FY 2022
positions with start dates beginning on April 1, 2022
[[Page 80400]]
through September 30, 2022, based on the continued demand for H-2B
workers for the remainder of FY 2022, continuing economic growth,
increased labor demand, and increased visa processing capacity by the
Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly
published a temporary final rule authorizing an increase of no more
than 35,000 additional H-2B visas for the second half of FY 2022.\42\
As in the January 2022 TFR, the supplemental visas were available only
to employers that attested they were suffering or would suffer
impending irreparable harm without the additional workers. The
allocation of 35,000 additional H-2B visas under the rule applicable to
the second half of FY 2022 consisted of 23,500 visas available only to
H-2B returning workers from one of the last three fiscal years (FY
2019, 2020, or 2021) and 11,500 visas reserved for Salvadoran,
Guatemalan, Honduran, and Haitian nationals, who were exempted from the
returning worker requirement. By May 25, 2022, USCIS had received
enough petitions for returning workers to reach the additional 23,500
H-2B visas made available under the second half FY 2022 H-2B
supplemental visa temporary final rule.\43\ USCIS data show that the
total number of H-2B workers approved towards the second half FY 2022
supplemental cap increase was 43,798, including 31,480 workers under
the returning worker allocation, as well as 12,318 workers approved
towards the Haitian/Northern Central American allocation.\44\
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\42\ See Temporary Final Rule, Exercise of Time-Limited
Authority To Increase the Numerical Limitation for Second Half of FY
2022 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 30334 (May 18, 2022).
\43\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
\44\ The number of approved workers exceeded the number of
additional visas authorized for the second half of FY 2022 to allow
for the possibility that some approved workers would either not seek
a visa or admission, would not be issued a visa, or would not be
admitted to the United States. See Department of Homeland Security,
U.S. Citizenship and Immigration Services, Office of Performance and
Quality, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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Finally, on December 15, 2022, DHS and DOL jointly published a
temporary final rule authorizing an increase of up to 64,716 additional
H-2B visas for the entirety of FY 2023. As in the FY 2022 TFRs, the
additional visas were available only to employers that attested they
were suffering or would suffer impending irreparable harm without the
additional workers.\45\ The 64,716 additional visas included 44,716
reserved for returning workers from one of the last three fiscal years
(FY 2020, 2021, or 2022), which were distributed in several allocations
based on date of employer need: 18,216 for employers with requested
employment start dates on or before March 31, 2023; 16,500 for
employers with requested employment start dates from April 1, 2023, to
May 14, 2023 (early second half allocation); and 10,000 for employers
with requested employment start dates from May 15, 2023, to Sept. 30,
2023 (late second half allocation). The remaining 20,000 visas were
available for the entirety of FY 2023, and were set aside for nationals
of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from
the returning worker requirement. By January 30, 2023, USCIS received
enough petitions to reach the cap for the additional 18,216 H-2B visas
made available for returning workers for the first half of fiscal year,
and by March 30, 2023, USCIS received enough petitions to reach the cap
for the additional 16,500 H-2B visas made available for returning
workers for the early second half of fiscal year.\46\ USCIS data show
that the total number of H-2B workers approved towards the FY 2023
supplemental cap increase was 78,302, including 54,470 workers under
the returning worker allocation, as well as 23,832 workers approved
towards the Haitian/Northern Central American allocation.\47\
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\45\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); 87
FR 77979 (Dec. 21, 2022).
\46\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
\47\ The number of approved workers exceeded the number of
additional visas authorized for FY 2023 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK
13122, H-2B Visa Issuance Report September 30, 2023.
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Once again, DHS in consultation with DOL believes that it is
appropriate to increase the H-2B cap for FY 2024 based on the demand
for H-2B workers in the first half of FY 2024, anticipated demand for
the second half of FY 2024, recent economic growth, and strong labor
demand.\48\ Similar to the preceding temporary rule, DHS and DOL also
believe that it is appropriate and important to couple this cap
increase with additional worker protections, as described below.
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\48\ The term ``strong labor demand'' in this context relies on
the most recently released figure from a Bureau of Labor Statistics
(BLS) survey at the time this TFR was written. The BLS Job Openings
and Labor Turnover Survey (JOLTS) reports 9.6 million job openings
in August 2023. See DOL, BLS, Job Openings and Labor Turnover--
August 2023, https://www.bls.gov/news.release/archives/jolts_10032023.htm.
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D. Joint Issuance of the Final Rule
As in FY 2017, FY 2018, FY 2019, FY 2021, FY 2022, and FY 2023, DHS
and DOL (the Departments) have determined that it is appropriate to
jointly issue this temporary final rule.\49\ The determination to issue
the temporary final rule jointly follows conflicting court decisions
concerning DOL's authority to independently issue legislative rules to
carry out its consultative and delegated functions pertaining to the H-
2B program under the INA.\50\ Although DHS and DOL each have authority
to independently issue rules implementing their respective duties under
the H-2B program,\51\ the Departments are implementing the numerical
increase in this manner to ensure there can be no question about the
authority underlying the
[[Page 80401]]
administration and enforcement of the temporary cap increase. This
approach is consistent with rules implementing DOL's general
consultative role under INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and
delegated functions under INA sections 103(a)(6) and 214(c)(14)(B), 8
U.S.C. 1103(a)(6), 1184(c)(14)(B).\52\
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\49\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited
Authority To Increase the Fiscal Year 2019 Numerical Limitation for
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May
8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal
Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for FY 2023
for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
\50\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021);
see also Temporary Non-Agricultural Employment of H-2B Aliens in the
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
\51\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\52\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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E. Comments and Responses to Comments on the FY 2023 TFR
In connection with the FY 2023 TFR, the Departments solicited
public comments for 60 days. During that comment period, the
Departments received 10 substantive comments. In the following
discussion, the Departments discuss and respond to those comments by
topic.
Timing and Distribution of Visas
Comment: Several commenters expressed support for the Departments'
release of the maximum number of visas authorized by Congress. In
addition, these commenters indicated appreciation for the earlier
release of supplemental visas in 2023 than in prior years, noting that
the FY 2023 TFR offered certainty that was beneficial to employers. The
commenters encouraged the Departments to similarly make future
supplemental visas available early in the relevant fiscal year.
Response: The Departments thank the commenters for their feedback.
The Departments are again making the maximum number of visas available
for FY 2024 and worked diligently to release these visas as early as
possible.
Comment: One commenter stated that the number of supplemental visas
was not sufficiently justified by labor market conditions. The
commenter asserted that the United States is not experiencing a labor
shortage and disagreed with the Departments' usage of official
unemployment rate data to justify the decision to release 64,716
supplemental visas for FY 2023. The comment centers on a critique of
official government statistics produced by the Department of Labor.
More specifically, the comment noted the long-term decline in the labor
force participation rate and, further, alleges that the official
unemployment rate is flawed because it excludes persons who are
considered to no longer be in the labor force.
Response: The Departments appreciate the comment regarding
justification for the number of supplemental visas. However, the
Departments disagree that the rule did not sufficiently justify the
number of supplemental visas. Specifically, the Departments disagree
with the assertion that official government statistics are incorrect or
inadequate. Furthermore, the Departments (as branches of the Federal
Government) believe that it is reasonable to rely on official labor
market statistics produced by subject-matter experts within the U.S.
Government when assessing the labor market. Additionally, the
Departments note that did they not rely on any single statistic to
determine either the general need for supplemental visas or the
specific number of supplemental visas, but rather considered a number
of factors including demand for H-2B workers (in the form of TLC data)
and labor market conditions (in the form of multiple labor market
statistics). Finally, the Departments believe that aspects of this
comment, specifically the discussion regarding long-term labor force
trends that (by the commenter's description) are impacted by multiple
variables other than short-term labor needs, are out of the scope of
the FY 2023 Temporary Final Rule.
Comment: Some commenters expressed support for the Departments' FY
2023 distribution of the supplemental H-2B visas in multiple seasonal
allocations including two allocations for the second half of the fiscal
year. These commenters noted that this distribution was beneficial to
employers who hire later in the fiscal year.
Response: The Departments thank the commenters for their feedback
and will again make multiple allocations available including two
allocations for the second half of FY 2024.
Comment: One commenter requested that the Departments consider
combining the supplemental allocations for the second half of the
fiscal year into a single allocation in future TFRs. The commenter
stated that administering multiple allocations creates more work for
the Departments when they are already struggling to process
applications and petitions in a timely manner. The commenter also
stated that the allocations for the second half of the fiscal year were
``woefully insufficient'' to meet employer demand.
Response: The Departments have again decided to reserve
supplemental visas for the late second half of FY 2024. As noted by the
commenter, administering multiple allocations involves some level of
additional work. This includes both the work performed by USCIS in the
actual administration of each allocation cap, as well as a potential
increase in DOL workload as TLC requests may increase. However, the
Departments have attempted to balance such workload challenges with the
importance of addressing the needs of U.S. employers, including those
late season employers who otherwise may not have the opportunity to
file for cap-subject H-2B workers. As explained in last year's TFR and
again in this TFR, the intense competition for employers requesting an
April 1 start date has resulted in H-2B visas being effectively
unavailable for many employers who need workers to start late in the
season, and thus the late season allocation is intended to directly
assist those employers.\53\ For FY 2024, as in FY 2023, the Departments
believe that there is sufficient demand and need for the late second
half to justify the additional work and potential impact on processing
times.
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\53\ Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76830 (Dec. 15,
2022).
---------------------------------------------------------------------------
Regarding the claim that the total allocation for the second half
of FY 2023 was inadequate, the Departments reiterate that the 33,000
cap was statutory, and the second half's total returning worker
supplemental allocation of 26,500 visas was more than the first half's
returning worker allocation of 18,216. In addition, while the 20,000
allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti
was available for start dates throughout FY 2023, the majority of visas
issued under that allocation went to workers with second half start
dates.\54\ As with the FY 2023 TFR, the Departments will continue to
make more total visas available for the second half of FY 2024 than the
first half.
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\54\ Under the FY 2023 TFR allocation for nationals of Northern
Central America and Haiti, a total of over 16,700 visas were issued,
with around 5,000 of those visas issued to workers with first half
start dates and the remainder issued to workers with second half
start dates. See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
FY 2023 H-2B Northern Central American Cap Approvals by Validity
Start Date Month.
---------------------------------------------------------------------------
Comment: One commenter recommended reallocating unused visas from
one sub-allocation to another if there were unused visas, such as
unused visas from the allocation for nationals of El Salvador,
Guatemala, Honduras, and Haiti, to the returning worker allocation.
Another commenter more specifically suggested that the Departments
coordinate with DOS to verify all visas under the first half allocation
are actually used and roll over any supplemental visas that were
``used'' (counted on a petition) but not issued (by DOS) from the first
half cap to the second half cap, or from the early
[[Page 80402]]
second half cap to the late second half cap.
Response: The Departments again decline to roll over any unused
visas. As explained in this and the prior TFR, calculating and
administering a process to carry over unused visas would significantly
increase operational burdens. Also, not permitting rollover from the
allocation for nationals of certain countries into the returning worker
allocation provides employers seeking to hire workers from these
countries with more time to petition for, and bring in those workers
and encourages full use of the 20,000 allocation.\55\ This, in turn,
contributes to the United States Government's efforts to promote and
improve safety, security and economic stability in these countries to
help stem the flow of irregular migration to the United States.
Further, DHS anticipates that the issuance of this rule early in the
fiscal year, the fact that this is the fourth year that DHS will make a
specific allocation available for workers from the Northern Central
American countries and Haiti, as well as the inclusion of nationals
from Ecuador, Colombia, and Costa Rica, will contribute to even greater
utilization of available visas under this allocation during FY 2024
such that a rollover would not be beneficial or necessary. Similarly,
it is the Departments' expectation that there will be sufficient demand
from employers with first half and early second half start dates to use
the entirety of these allocations in FY 2024, rendering rollover
unnecessary.
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\55\ In FY 2021, 3,079 visas out of 6,000 authorized were issued
under the allocation for nationals of Northern Central America in
the FY 2021 TFR, which published on May 25, 2021--to use a visa
under this allocation the petition had to have been received by July
8, 20211. In FY 2022, 2,481 visas out of 6,500 authorized were
issued under the allocation for nationals of Northern Central
America and Haiti in the first half FY 2022 TFR, which published on
January 22, 2022; 7,405 visas out of 11,500 authorized were issued
under the allocation for nationals of Northern Central America and
Haiti in the second half FY 2022 TFR, which published on May 18,
2022; and 16,713 visas were issued out of 20,000 authorized under
the allocation for nationals of Northern Central America and Haiti
in the FY 2023 TFR, which published on December 15, 2022. See DHS,
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report
September 30, 2023.
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With respect to the suggestion to roll over any supplemental visas
that were ``used'' but not issued by DOS, the Departments note that DHS
already accounts for visa usage rates (among other factors) in its
administration of the caps by using projections of the number of
petitions necessary to achieve the numerical limit of approvals. See
new 8 CFR 214.2(h)(6)(xiv)(D). Further, any rollover process would be
operationally burdensome as noted above.
Comment: A commenter requested the Departments to prioritize the
allocation of late second half visas to essential and critical
infrastructure employers, including seafood processors, as designated
by DHS. Another commenter similarly requested the Departments to
prioritize critical and essential infrastructure seafood industry jobs.
Response: The Departments decline the suggestion to prioritize
certain industries or jobs in the allocation of supplemental cap visas.
As noted in the FY 2023 TFR and this TFR, the Departments interpret the
use of the phrase ``the needs of American businesses'' in the relevant
statutory authority for the supplemental caps as providing discretion
to identify the business needs that are most relevant, while bearing in
mind the need to protect U.S. workers. The Departments have implemented
the irreparable harm standard in order to prioritize the most pressing
business needs. Prioritizing certain industries as ``essential and
critical,'' separate from the irreparable harm consideration already in
use, could also harm industries DHS does not designate as such. The
Departments believe considering the irreparable harm to individual
employers better addresses the needs of employers than designating
entire industries for prioritization. In addition, the Departments do
not believe such prioritization is necessary as the decision to provide
a late second half allocation again for FY 2024 should provide some
relief to seafood processors (one of the industries highlighted in the
comments) and other similar companies facing a need for additional
workers in the late second half.
FY 23 Allocation for Nationals of El Salvador, Guatemala, Honduras, and
Haiti
Comment: Two commenters expressed general opposition to the
allocation of supplemental visas for nationals of El Salvador,
Guatemala, Honduras, and Haiti. These commenters opined that the H-2B
program is not an appropriate strategy for addressing humanitarian
needs and that the H-2B program would not provide permanent, durable
solutions for these countries' nationals.
Response: The country-specific allocation within the H-2B program
is an important part of the administration's overall strategy to expand
access to lawful pathways for individuals from these countries to stem
irregular migration. These allocations are just one of the additional
lawful pathways offered to these nationals and others, including new
family reunification parole processes for certain nationals of El
Salvador,\56\ Guatemala,\57\ Honduras,\58\ Colombia,\59\ and
Ecuador,\60\ and modernized family reunification parole processes for
certain nationals of Haiti \61\ and Cuba.\62\
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\56\ Implementation of a Family Reunification Parole Process for
Salvadorans, 88 FR 43611 (July 10, 2023).
\57\ Implementation of a Family Reunification Parole Process for
Guatemalans, 88 FR 43581 (July 10, 2023).
\58\ Implementation of a Family Reunification Parole Process for
Hondurans, 88 FR 43601 (July 10, 2023).
\59\ Implementation of a Family Reunification Parole Process for
Colombians, 88 FR 43591 (July 10, 2023).
\60\ DHS announced a forthcoming family reunification parole
program for Ecuador on October 18, 2023. DHS, DHS Announces Family
Reunification Parole Process for Ecuador (Oct. 18, 2023), https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-process-for-ecuador (announcing that the
Federal Register notice for this process will be published soon). As
of October 27, 2023, the program is not yet active.
\61\ Implementation of Changes to the Haitian Family
Reunification Parole Process, 88 FR 54635 (Aug. 11, 2023).
\62\ Implementation of Changes to the Cuban Family Reunification
Parole Process, 88 FR 54639 (Aug. 11, 2023).
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The root causes of migration from these regions are multifold.
Political instability and insecurity, poverty and economic inequality,
pervasive crime and corruption, and other factors all contribute to
irregular migration.\63\ The diversity of the root causes of irregular
migration requires a multi-pronged strategy, as employed by this
administration, to address them. As such, this rule and the allocation
for certain countries provide an additional lawful pathway for
individuals seeking an economic opportunity in the United States who
would eventually return to contribute to the development of their own
community and country. However, the Departments recognize other
programs and efforts are also needed to
[[Page 80403]]
address other drivers to irregular migration.
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\63\ See National Security Council, U.S. Strategy for Addressing
the Root Causes of Migration in Central America, at 4 (Jul. 2021),
https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf (Poverty and economic inequality, among other factors,
contribute to irregular migration). See also The White House, Fact
Sheet: Update on the U.S. Strategy for Addressing the Root Causes of
Migration in Central America (Feb. 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/06/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-2/ (economic challenges is
one of the drivers of irregular migration); Diana Roy and Amelia
Cheatham, Central America's Turbulent Northern Triangle (July 13,
2023), Council on Foreign Relations, https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle (``Many
interrelated factors drive people from the Northern Triangle,
including lack of economic opportunity. . . .'').
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Comment: A commenter stated that the allocation of supplemental
visas for nationals of El Salvador, Guatemala, Honduras, and Haiti was
too high for H-2B employers to take full advantage of this set aside.
The commenter stated that visa processing times in those countries
cause employers to fear that they will not be able to obtain H-2B
workers from these countries efficiently.
Response: The Departments disagree that the 20,000 allocation for
nationals of El Salvador, Guatemala, Honduras, and Haiti was too high.
The Departments have again decided to set aside 20,000 supplemental
visas for nationals of certain countries and believe all 20,000 visas
will be utilized in FY 2024 for the following reasons. First, H-2B visa
issuance growth data for nationals of these countries for the past
several years supports the Departments' decision. Under the dedicated
allocations in prior TFRs, H-2B visas were issued to 3,079 out of 6,000
authorized for nationals of Northern Central America under the FY 2021
TFR; 9,886 out of 11,500 authorized for nationals of Northern Central
America and Haiti under the two FY 2022 TFRs; and 16,713 out of 20,000
authorized for nationals of Northern Central America and Haiti under
the FY 2023 TFR.\64\ These numbers show a steady increase in
utilization over time. In addition, the issuance of this rule early in
the fiscal year and the fact that this is the fourth year that DHS will
make a specific allocation available for workers from the Northern
Central American countries and Haiti, as well as the inclusion of
nationals from Colombia, Ecuador, and Costa Rica, will increase the
likelihood that all 20,000 set-aside visas for FY 2024 will be used.
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\64\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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Comment: A commenter requested including nationals of Ukraine in
the same priority allocation as nationals of El Salvador, Guatemala,
Honduras, and Haiti.
Response: The Departments thank the commenter but will decline this
suggestion. While DHS is committed to providing support to Ukrainian
nationals, the allocation for Northern Central American/Haitian
nationals was intended to support the administration's efforts to
reduce irregular migration and expand lawful pathways from across the
Western Hemisphere, and the Departments are making a similar separate
allocation for nationals of specified countries this year for the same
reasons. DHS continues to support Ukrainian nationals through other
processes, such as Uniting for Ukraine.\65\ The Departments further
note that, historically, Ukrainian nationals have received relatively
high numbers of H-2B visas compared to nationals of other
countries.\66\ Including Ukrainian nationals in the 20,000 allocation
would take away from the number of supplemental visas available to help
achieve the administration's overall goal of expanding lawful pathways
from the Americas.
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\65\ USCIS, Uniting for Ukraine, https://www.uscis.gov/ukraine;
DHS, Fact Sheet: DHS Efforts to Assist Ukrainian Nationals, https://www.dhs.gov/news/2022/03/31/fact-sheet-dhs-efforts-assist-ukrainian-nationals (last visited Oct. 31, 2023).
\66\ Ukraine was among the top ten H-2B visa issuance countries
in FY 2022 and among the top five H-2B visa issuance countries in FY
2021 and FY 2020. See USCIS, Characteristics of H-2B Nonagricultural
Temporary Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023) (Ukrainian
nationals were issued 1,085 H-2B visas in FY22); Characteristics of
H-2B Nonagricultural Temporary Workers Fiscal Year 2021 Report to
Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (Mar. 10, 2022)
(Ukrainian nationals were issued 2,222 H-2B visas in FY21);
Characteristics of H-2B Nonagricultural Temporary Workers Fiscal
Year 2020 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf (Feb.
22, 2021) (Ukrainian nationals were issued 1,585 H-2B visas in
FY20).
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Data Transparency
Comment: Several commenters requested the Departments disclose more
data about the H-2B program. Specifically, commenters requested that
DHS post ``close to real time'' data about jobs for which employers are
seeking H-2B workers including the employer name, wages and working
conditions and dates of need; provide more information through the
USCIS H-2B Employer Data Hub including information on cap-exempt
petitions; and provide additional information on usage of the
allocation for Northern Central American and Haitian nationals,
including the number of visas that were issued to nationals from each
country, as well as which industries, employers and recruiters were
involved. With regard to suggestions for DOL, commenters recommended
enhancing the seasonaljobs.gov website's utility, including by ensuring
that workers know in real time when an employer is actively hiring.
Response: The Departments appreciate these comments and note that
transparency and access to data and information continue to be among
our priorities.\67\ DHS/USCIS has sought to increase transparency in
employment-based visa programs, including through the USCIS H-2B
Employer Data Hub which provides detailed information on H-2B petitions
including employer name, state, worksite state, industry, occupation,
and wage levels.\68\ Notably, the goal of improving data transparency
is among the objectives included in a recently published report by the
H-2B Worker Protection Taskforce.\69\ Specifically, one of the action
items described in the report is the leveraging of existing data to
increase transparency and reduce the vulnerability of H-2B and H-2A
workers, including by improving interagency data sharing; improving
publicly available data to inform outreach and advocacy efforts,
including through new anonymized quarterly data reports and on DHS's H-
2B Data Hub; and by publishing anonymized, aggregated data by gender,
sector, and occupation to provide an additional transparency to the H-2
programs and aid efforts to prevent gender discrimination.
---------------------------------------------------------------------------
\67\ USCIS, Annual Statistical Report FY 2022, https://www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf. Since FY 2008, DOL continues
to publish selected statistical factsheets and individual TLC case
record data cumulated on a quarterly and annual basis useful to a
wide range of stakeholders and the general public at https://www.dol.gov/agencies/eta/foreign-labor/performance.
\68\ USCIS, H-2B Employer Data Hub, https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub (last visited Oct. 17,
2023). The data in the H-2B Employer Data Hub comes from fields on
an employer's Form I-129, from USCIS' adjudicative decisions, and
from the DOL H-2B Application for Temporary Employment Certification
(Form ETA-9142B). USCIS, Understanding our H-2B Employer Data Hub,
https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub/understanding-our-h-2b-employer-data-hub (last visited Oct. 17,
2023).
\69\ See The White House, Strengthening Protections for H-2B
Temporary Workers, Report of the H-2B Worker Protection Taskforce,
https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf (Oct. 19, 2023).
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In addition, USCIS included some data about visas allocated under
the FY 2022 allocation for nationals of Northern Central American
countries and Haiti in its most recent report to Congress (which is
available to the public) about characteristics of the H-2B program.\70\
The Departments will consider the suggestions provided by these
commenters as they seek to improve clarity and transparency of data for
the public. However, the Departments believe that many of the
[[Page 80404]]
suggestions, as well as other data enhancements, can be accomplished
outside of the regulatory process. Therefore, DHS declines to adopt
these suggestions as part of this temporary final rule.
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\70\ USCIS, Characteristics of H-2B Nonagricultural Temporary
Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023).
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Irreparable Harm Standard
Comment: Two commenters expressed concerns related to the
irreparable harm standard as articulated. One commenter stated that the
standard is unclear, overly burdensome, applied inconsistently by the
Departments, and disruptive to business operations. The commenter felt
that, if the standard is retained, the Departments should provide
clearer guidance on what specific documents are required and
sufficient, and recommended that the Departments issue step-by-step
instructions for participating in the program to assist employers with
understanding their obligations and reducing the risk of noncompliance.
Response: As discussed in greater detail below, because the
authority to increase the statutory cap is tied to the needs of
businesses, the Departments think it is reasonable for employers to
attest that they are suffering irreparable harm or that they will
suffer impending irreparable harm without the ability to employ all of
the H-2B workers requested on their petition and to retain and be able
to produce (upon request) documentation of that harm as well as a
statement describing the harm and explaining the relevance of the
documentation. The Departments also think that the standard is
sufficiently clear to allow compliance, and that listing out specific
documents that must be provided in each case is not an appropriate
approach. Each determination of irreparable harm is made on a case-by-
case basis. This inherently means that some documentation presented in
one case may not be sufficient in another case presenting a different
set of facts. In addition, not listing specific documents provides more
flexibility for employers across occupations and industries to provide
documentation that is relevant to their types of businesses.
Recruitment Requirements
Comment: One commenter stated that the additional recruitment
requirements included in the TFR create an undue burden for
participating employers. Specifically, the commenter stated that the
requirement to provide a copy of the job notice to the AFL-CIO is
unnecessary, and ``purely duplicative, given the steps already required
of petitioners to recruit U.S. workers.'' The commenter also asserted
that the requirement failed to acknowledge the rate at which workers
are unionized, noting the low rate of unionization in the residential
construction industry, and suggested that in some areas alternative
organizations--such as state and local trade associations or workforce
boards--may be better positioned to conduct recruitment efforts in
place of the AFL-CIO.
Response: As discussed in the FY 2023 TFR and below, while the
Departments recognize that the recruitment requirements create some
burden on employers, the Departments believe they are necessary to
ensure that the employer's recruitment has not become stale and that
there are no U.S. workers available for the relevant job opportunity.
The Departments reiterate that the additional recruitment requirements
are only applicable if an employer files their I-129 petition 30 or
more days after their certified start dates of work. The Departments,
as discussed in the FY 2023 TFR and below, believe that the requirement
to provide a copy of the job notice to the AFL-CIO is complementary to,
rather than duplicative of, the other recruitment requirements for
several reasons. For example, the Departments explained in the prior
TFR that the State Federations of Labor and local unions to which SWAs
would circulate relevant job orders, based on their knowledge of the
local labor market, are composed of various union organizations and may
not always include the AFL-CIO. At the same time, the requirement to
contact the AFL-CIO increases outreach to qualified U.S. workers as H-
2B job opportunities in traditionally or customarily unionized
occupations tend to fall within those industries most likely to be
organized or represented by AFL-CIO member unions. See 87 FR 76816,
76844-45. The Departments disagree that they have not taken the rate of
unionization into account as the Departments previously provided, and
will continue to provide, a list of occupations that they believe are
typically or customarily unionized. See, e.g., 87 FR 76816, 76844 n.145
(noting the occupations or industries listed are ones in which the
Department has typically observed substantial union presence). Finally,
the Departments agree that other organizations in addition to the AFL-
CIO are well positioned to assist employers with recruitment activities
as demonstrated by the requirement to post a new job order with the SWA
and to engage with the local AJC to assist with recruitment.
Attestation Form
Comment: One commenter stated that the attestation form that is
required ``to demonstrate irreparable harm'' under the TFR is ``overly
burdensome and may discourage employer participation when noncitizen
workers are needed to address labor shortages,'' and urged the
Departments to exclude the attestation form from subsequent
rulemakings. The commenter indicated the Departments should recognize
that a petitioner's investment of resources into seeking a TLC and
filing Form I-129 with accompanying documentation shows ``the implied
need for H-2B workers.''
Response: The Departments disagree with this comment. The
attestation form contains information needed to establish eligibility
for supplemental H-2B visas that is not captured on other forms. It
also contains information that the Departments need to properly
administer the allocations under this rule. For example, among other
things, the petitioner must indicate which allocation they are
requesting workers under, attest that they are suffering or will suffer
impending irreparable harm and indicate the types of evidence that they
have retained to demonstrate irreparable harm. The Departments believe
that the additional attestation is the least burdensome way to collect
information needed to establish eligibility and to properly administer
the supplemental visa allocations. The Departments also disagree that
the attestation form is overly burdensome as DOL estimated that the
total time burden for the ETA-9142-B-CAA-7 is 1 hour.\71\ It is
unlikely that an employer would be discouraged from seeking H-2B
workers because of this 1 hour burden, especially if the employer is
suffering irreparable harm or will suffer impending irreparable harm
without the ability to employ those workers.
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\71\ The Departments are retaining the attestation form
requirement, and the total time burden for the FY 2024 attestation
form, ETA-9142-B-CAA-8, remains 1 hour.
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Legal Issues
Comment: One commenter stated that DHS violated the National
Environmental Policy Act (NEPA) by failing to provide any analysis to
justify its assertion that adding up to 64,716 visas would not result
in ``meaningful, calculable change in environment effect,'' or to
justify its conclusion that the FY 2023 TFR therefore fits within a
categorical exclusion.
Response: The Departments disagree with the commenter regarding the
sufficiency of the NEPA analysis in the FY 2023 TFR. As explained in
the FY
[[Page 80405]]
2023 TFR, an additional 64,716 H-2B nonimmigrant visas will not result
in any meaningful, calculable change in environmental effect with
respect to the current H-2B limit or in the context of a current U.S.
population exceeding 331,893,745, which represents a maximum temporary
increase of 0.0195 percent. As further explained, the FY 2023 TFR is a
stand-alone temporary authorization and not a part of any larger action
and presents no extraordinary circumstances creating the potential for
significant environmental effects.
Comment: While a commenter agreed with DHS that there was good
cause to immediately increase the cap, the commenter opined that there
was not good cause for the other ``ancillary policy provisions,''
particularly the requirement to ``affirmatively contact'' the nearest
AFL-CIO office and provide written notice of the job order placed with
the SWA when the employment is in a traditionally or customarily
unionized occupation or industry. Accordingly, the commenter urged the
Departments to reissue the FY 2023 TFR as two separate rules, a final
rule to release the supplemental visas and a proposed rule that
contains the other provisions.
Response: The Departments maintain there was good cause to couple
the release of supplemental visas with additional provisions, such as
the additional recruitment requirements, in a temporary final rule. The
Departments provided their rationale for the recruitment requirements
in the FY 2023 TFR \72\ and articulated sufficient good cause to forgo
notice and comment rulemaking for all aspects of the temporary final
rule. As indicated in the FY 2023 temporary final rule, the duration of
the authorization to make supplemental cap visas available, combined
with the urgent need of American businesses for H-2B workers did not
provide sufficient time to conduct pre-promulgation notice and comment
rulemaking on any aspect of the TFRs, including additional recruitment
requirements.
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\72\ Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76842-47 (Dec. 15,
2022).
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Suggestions Outside the Departments' Authority
Comment: Two commenters urged the administration to consider an
``Alternative Model for Labor Migration'' that would give workers in
the H-2B visa program, and more broadly in all work visa programs, more
control over their visas by allowing them to self-petition and be
matched with employers via a government database, and would enable
workers to petition for citizenship. The commenters set forth a
detailed plan regarding how the model would function, including
specific DOL and USCIS procedures, and they provided an analysis of the
benefits of the alternative model relative to the current program.
The commenters asserted that the supplemental cap TFR represents an
opportunity for the Departments to ``partially implement'' the model
described. Specifically, the commenters suggested that the Departments
could implement a lottery open to all returning workers by which they
could apply to be assigned a priority ranking. Employers approved
through the TLC and petition processes would be required to post the
number of open H-2B positions and procedures for applying publicly on
seasonaljobs.dol.gov, and any returning H-2B worker would be eligible
to apply directly to the employer or the employer's designated agent.
If the applications from returning H-2B workers exceeded the vacancies,
workers' priority would be based on their assigned lottery rank.
Response: As implicitly acknowledged by the commenters in their
suggestions that the proposed model could be ``partially'' implemented
by regulation, many aspects of the commenters' proposed ``Alternative
Model for Labor Migration,'' such as enabling workers to self-petition
and to pursue citizenship, are clearly outside the Departments
authority under the current statutory scheme. It is unclear whether the
Departments have authority to otherwise ``partially implement'' the
model as suggested. Regardless, even assuming such authority, the
Departments note that the proposal would not be feasible in the context
of a temporary and time-limited statutory authority and rule such as
the current TFR, due to the level of changes to existing processes and
the development of new systems and processes that would be required for
implementation.
Broader Program Reforms
Some commenters made suggestions for broader program reforms that
would require Congressional action. For example, commenters made
suggestions relating to permanently increasing the H-2B annual
statutory cap, exempting certain workers from that cap, and increasing
funding for DOL's H-2B enforcement. However, the Departments decline to
further detail and respond to these comments, as the recommendations
are all outside of the Departments' authority to accomplish.
In addition to the issues discussed above, the public comments
included numerous suggestions for the Departments to make permanent
changes to the H-2B program, with several commenters expressing that
the Departments should not exercise their authority to increase the
number of H-2B visas unless and until the program is more broadly
reformed. The recommendations for permanent program reforms included
suggestions for both DHS and DOL regarding ways to increase protections
for both foreign and U.S. workers, and to improve the overall integrity
and efficiency of the program. Specifically, commenters suggested that
one or both Departments should implement the following changes to the
H-2B program before or instead of authorizing supplemental visas:
Provide a grace period with employment authorization so
workers can leave employers for any reason;
Notify beneficiaries about their own immigration status;
Provide workers access to information about their rights
and about available resources to enforce those rights;
Improve access to deferred action for H-2 workers who
experience or witness labor rights violations, including an expedited
process for issuance of statements of interest from government
entities;
Fully implement the existing provision at 8 CFR
214.2(h)(17)(iii) to protect workers who leave abusive employers from
accruing unlawful presence;
Do more to prevent discrimination and discriminatory
hiring practices in the H-2B program;
Collect and release more and better data about the H-2B
program; \73\
---------------------------------------------------------------------------
\73\ See above comment and response under the heading ``Data
Transparency'' for further discussion on this topic.
---------------------------------------------------------------------------
Provide increased real-time information about available
job opportunities;
Require employers to give priority to anyone in the U.S.
with employment authorization (including ``individuals with unexpired
valid H-2B visas'') for any open unfilled position for which an
employer sought or obtained H-2B labor certification;
Prioritize petitions for industries with the lowest
unemployment rate(s) instead of using a lottery system;
[[Page 80406]]
Allocate visas to employers who pay the highest wages
instead of using a random lottery system;
Do not issue H-2B visas to employers who are engaged in
labor disputes, and only issue visas to direct employers and end
outsourcing and labor contractors; \74\
---------------------------------------------------------------------------
\74\ These recommendations were specifically for USCIS, however,
the Departments note that visas are issued by the Department of
State.
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Grant work authorization to spouses of H-2 nonimmigrants;
Impose greater employer accountability for actions of
contractors, recruiters, and agents;
Seek ways to enforce the ban on recruitment fees without
penalizing workers;
Allow H-2B workers to pursue permanent labor certification
or ``other applications for permanent residence;''
Prohibit the imposition of unnecessary requirements for
entry-level positions;
Improve health and safety standards at H-2B workplaces;
Require employers to undertake both local and national
recruitment efforts before looking abroad;
Require employers to pay for housing and daily
transportation to and from the worksite for both U.S. and H-2B workers;
Require full contract compliance, including all hours
promised;
Cease issuance of H-2B labor certifications for work in
certain areas, such as ``labor surplus areas or occupations'' or ``high
unemployment regions and industries;''
Create a streamlined process for reporting program
violations;
Create an avenue for stakeholders, including U.S. workers,
to raise concerns about job orders and labor certifications;
Reinstate the Interagency Working Group for the Consistent
Enforcement of Federal Labor, Employment and Immigration Laws to
strengthen deconfliction efforts between key agencies and support
affirmative protections for immigrant and nonimmigrant workers;
Create a civil society advisory group to promote decent
work in the Central American regional strategy;
Update the H-2B prevailing wage methodology in various
ways;
Implement the additional U.S. recruitment requirements;
Improve language access for workers;
Keep job postings active until all positions are actually
filled, and require employers to update the job postings with new
information;
Keep labor violators out of the program, including by
creating an employer screening and/or registration program;
Establish a formal registration process for international
recruiters, as well as U.S. agents;
Require employers to disclose every person authorized to
engage in recruitment on their behalf;
Work with Department of State to enhance consulates' H-2B
job verification services by verifying recruiters associated with the
job order;
Increase enforcement in various ways, such as by debarring
all recruiters that engage in any prohibited practice, creating stiffer
penalties for employer violations, and/or instituting processing fees
at sufficient levels to fund robust enforcement;
Change the visa allocation procedures for the statutory
66,000 cap, including allocation in 4 different increments, and using
less than 33,000 visas during the first half of the fiscal year;
Modify the current process for randomizing H-2B TLC
applications in such a manner as to give H-2B employers opportunities
to participate without regard to the date specified as the first date
for employment;
Reduce the period a worker is required to be outside the
United States following 3 years in H-2B status to 60 days;
Provide notice of seasonal job openings to unions
representing workers in relevant occupations so that they may dispatch
members in response;
Limit the duration of H-2B eligible job orders to 7
months;
Cap at 100 the number of visas that any single employer
can receive;
The permanent changes to the H-2B program that commenters have
suggested are not appropriate for inclusion in a rule of temporary
duration such as the current TFR, and the Departments therefore decline
to discuss each of these suggestions with further specificity. The
Departments appreciate the thoughtful recommendations for permanent
program reforms, however, and note that they are actively engaged in
reform efforts outside of this rulemaking, including efforts to address
some of the issues discussed in the suggestions.
Notably, on September 20, 2023, DHS published a notice of proposed
rulemaking (NPRM) to modernize and improve both the H-2B and H-2A
programs by providing greater flexibility and protections for
participating workers, and improving the program's efficiency.\75\ The
NPRM contains discussions and proposals related to some of the reform
concepts included in the commenters' suggestions including, for
example, providing grace periods during which an H-2 worker can leave
work to seek new employment, ensuring greater accountability for
employers and recruiters with past violations, reducing the required
amount of time to be spent outside the United States after reaching 3
years in H-2B status, and allowing workers to take steps toward
permanent residence without violating their nonimmigrant status on that
basis. DHS is currently accepting public comments specific to the NPRM
through November 20, 2023, and will consider all such comments in
developing a subsequent final rule. In addition, both Departments are
involved in an H-2B Worker Protection Taskforce, convened by the White
House, which focuses on threats to H-2B program integrity, H-2B
workers' fundamental vulnerabilities, and the impermissible use of the
program to avoid hiring U.S. workers.\76\ On October 19, 2023, the H-2B
Worker Protection Taskforce published a report announcing new actions
to be taken by four federal agencies--DHS, DOL, DOS, and the U.S.
Agency for International Development (USAID)-- to strengthen
protections for vulnerable workers.\77\
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\75\ Modernizing H-2 Program Requirements, Oversight, and Worker
Protections, 88 FR 65040 (Sep. 20, 2023).
\76\ See DHS, DHS to Supplement H-2B Cap with Nearly 65,000
Additional Visas for Fiscal Year 2023 (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023 (announcing the creation of the H-
2B Worker Protection Taskforce).
\77\ See The White House, Strengthening Protections for H-2B
Temporary Workers, Report of the H-2B Worker Protection Taskforce,
https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf (Oct. 19, 2023).
---------------------------------------------------------------------------
With regard to commenters' specific recommendation that the
Departments decline to provide supplemental H-2B visas unless and until
the program is broadly reformed, the Departments disagree with that
recommendation. While permanent reforms to the relevant DHS regulations
are being considered outside of this rulemaking as noted above, the
Departments have determined, as discussed in greater detail below, that
an increase in H-2B visas for businesses facing irreparable harm is
warranted and justified under the authority provided in section 303 of
the FY 2023 Omnibus, as extended by Public Law 118-15.
[[Page 80407]]
III. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that some U.S. employers cannot
satisfy their needs in FY 2024 with U.S. workers who are willing,
qualified, and able to perform temporary nonagricultural labor. In
accordance with the FY 2024 continuing resolution extending the
authority provided in section 303 of the FY 2023 Omnibus, the Secretary
of Homeland Security has determined that it is appropriate, for the
reasons stated below, to raise the numerical limitation on H-2B
nonimmigrant visas through the end of FY 2024 by up to 64,716
additional visas for those American businesses that attest that they
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, a permanent and severe financial loss, without
the ability to employ all of the H-2B workers requested on their
petition. These businesses must retain documentation, as described
below, supporting this attestation.
As in connection with the FY 2021, FY 2022, and FY 2023 H-2B
supplemental visa temporary final rules, and consistent with existing
authority, DHS and DOL intend to conduct a significant number of audits
with respect to petitions filed under this TFR requesting supplemental
H-2B visas during the period of temporary need. The Departments will
use their discretion to select which petitions to audit, and the
Departments will use the audits to verify compliance with H-2B program
requirements, including the irreparable harm standard as well as other
key worker protection provisions implemented through this rule. If the
Departments find that an employer's documentation does not meet the
irreparable harm standard, or that the employer fails to provide
evidence demonstrating irreparable harm or comply with the audit
process, the Departments may consider it to be a substantial violation
resulting in an adverse agency action against the employer, including
revocation of the petition and/or TLC or program debarment. Of the
audits completed so far, some audits conducted of employers that
received visas under the supplemental caps in FY 2021, FY 2022, and FY
2023 revealed concerns surrounding payment of the promised wage,
employment of returning workers, documentation of irreparable harm, and
employment at the listed location, which may warrant further review and
action.
As he did in FY 2021, FY 2022, and FY 2023, the Secretary of
Homeland Security has also again determined, following consultation
with the Secretary of Labor, that for certain employers, additional
recruitment steps are necessary to confirm that there are no qualified
U.S. workers available for the positions. In addition, the Secretary of
Homeland Security has determined, following consultation with the
Secretary of Labor, that the supplemental visas will be limited to
returning workers, with the exception that up to 20,000 of the 64,716
visas will be exempt from the returning worker requirement and will be
reserved for H-2B workers who are nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica.\78\ DHS is
reserving these 20,000 H-2B visas for nationals of these countries to
further the United States' objectives in the Western Hemisphere to
manage irregular migration through various lines of efforts including
increasing and expanding access to lawful pathways for nationals of
countries that have extensively collaborated with the United States on
migration issues, such as through endorsing the Los Angeles Declaration
on Migration and Protection (L.A. Declaration),\79\ joining the United
States to ramp up efforts to address the irregular migration flows
through the Darien,\80\ and hosting Safe Mobility Offices so that
migrants do not trek north to the U.S. Southwest Border.\81\ The 20,000
set-aside will also deliver on the objectives of E.O. 14010, which,
among other initiatives, instructs the Secretary of Homeland Security
and the Secretary of State to implement measures to enhance access to
visa programs for nationals of the Northern Central American
countries.\82\ DHS is also allocating these visas to specific countries
to further promote development and economic stability of these
countries to reduce irregular migration throughout the Western
Hemisphere.\83\
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\78\ These conditions and limitations are not inconsistent with
sections 214(g)(3) (``first in, first out'' H-2B processing) and
(g)(10) (fiscal year H-2B allocations) because noncitizens covered
by the special allocation under section 303 of the FY 2023 Omnibus
are not ``subject to the numerical limitations of [section
214(g)(1)].'' See, e.g., INA section 214(g)(3); INA section
214(g)(10); Continuing Appropriations Act, 2024, div. A, sec. 101(6)
(extending the authority provided in FY 2023 Omnibus div. O, sec.
303 (``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the [INA] . . . .'')).
\79\ The White House, Los Angeles Declaration on Migration and
Protection, June 10, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
\80\ Trilateral Joint Statement, April 11, 2023, https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
\81\ The White House, Joint Statement from the United States and
Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/; United States
Department of State, U.S.-Colombia Joint Commitment to Address the
Hemispheric Challenge of Irregular Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; The White House,
Readout of Principal Deputy National Security Advisor Jon Finer's
Meeting with Colombian Foreign Minister Alvaro Leyva (June 11,
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/;
United States Department of State, U.S.-Costa Rica Joint Commitment
to Address the Hemispheric Challenge of Irregular Migration (June
12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; United
States Department of State, Announcement of Safe Mobility Office in
Ecuador (October 19, 2023), https://www.state.gov/announcement-of-
safe-mobility-office-in-ecuador/
#:~:text=The%20United%20States%20is%20pleased,authorized%20channels%2
0of%20lawful%20migration.
\82\ See Section 3(c) of E.O. 14010, Creating a Comprehensive
Regional Framework To Address the Causes of Migration, To Manage
Migration Throughout North and Central America, and To Provide Safe
and Orderly Processing of Asylum Seekers at the United States
Border, signed February 2, 2021, https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf. E.O. 14010 referred to the
three countries of El Salvador, Guatemala, and Honduras as the
``Northern Triangle,'' but this rule refers to these countries
collectively as the Northern Central American countries.
\83\ See https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw (this supplemental
allocation to workers from Haiti, Honduras, Guatemala, and El
Salvador ``advances the Biden Administration's pledge, under the
L.A. Declaration to expand legal pathways as an alternative to
irregular migration''); The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S, Government and Foreign
Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's
commitment to support the people of Haiti.''). We also note
Congress' recent statement, in a provision within the FY 2022
Omnibus, that it is the policy of the United States to support the
sustainable rebuilding and development of Haiti. See Section 102 of
Division V of the Consolidated Appropriations Act, 2022, Public Law
117-103. See also DHS, Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, 86 FR 62562 (Nov. 10, 2021)
(sustainable development and the stability of Haiti is vital to the
interests of the United States as a close partner and neighbor).
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DHS observed robust employer interest in response to the FY 2021 H-
2B supplemental visa allocation for Salvadoran, Guatemalan, and
Honduran nationals and the FY 2022 and FY 2023 supplemental visa
allocations for Salvadoran, Guatemalan, Honduran, and Haitian
nationals, with USCIS
[[Page 80408]]
approving petitions on behalf of 6,805 beneficiaries under the FY 2021
allocation,\84\ 3,231 beneficiaries under the FY 2022 first half
supplemental allocation,\85\ 12,318 beneficiaries for the second half
of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023
allocation.\86\ In addition, DHS and the Biden administration have
continued to conduct outreach efforts promoting the H-2B program as,
among other things, a lawful pathway for nationals of El Salvador,
Guatemala, Honduras, and Haiti to work in the United States.\87\
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\84\ While USCIS approved a greater number of beneficiaries from
the Northern Central American countries than the 6,000 visas
allocated under the FY 2021 supplemental cap for those countries,
the Department of State issued 3,079 visas to nationals from those
countries. See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
H-2B Visa Issuance Report September 30, 2023. This discrepancy can
be attributed to adverse impacts on consular processing caused by
the COVID-19 pandemic, travel restrictions, as well as lack of
readily available processes to efficiently match workers from
Northern Central American countries with U.S. recruiters/employers
on an expedited timeline.
\85\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
\86\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023. While USCIS approved a greater
number of beneficiaries from the Northern Central American countries
and Haiti than the 11,500 visas allocated under the FY 2022 second
half supplemental cap for those countries, the Department of State
issued approximately 7,405 visas to nationals from those countries.
Similarly, while USCIS approved a greater number of beneficiaries
from the Northern Central American countries and Haiti than the
20,000 visas allocated under the FY 2023 supplemental cap for those
countries, the Department of State issued approximately 16,713 visas
to nationals from those countries. DHS anticipates that the issuance
of this rule early in the fiscal year, the fact that this is the
fourth year that DHS will make a specific allocation available for
workers from the Northern Central American countries, as well as the
inclusion of nationals from several additional countries, will
contribute to even greater utilization of available visas under this
allocation during FY 2024.
\87\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (June 9, 2022) (``Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the Foreign Ministry in El
Salvador] . . . resulted in a record number of H-2 visas issued in
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
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DHS will not accept and will reject petitions submitted for the
country-specific allocation with a date of need on or after April 1,
2024 that are received earlier than 15 days after the INA section
214(g) cap for the second half of FY 2024 is met or are received after
the applicable numerical limitation has been reached or after September
16, 2024. Requiring petitioners to wait to submit H-2B supplemental cap
petitions with start dates of need on or after April 1, 2024 is
consistent with the supplemental cap authority in section 303, as
extended to FY 2024 by Public Law 118-15, Continuing Appropriations
Act, 2023 and Other Extensions Act, and will facilitate the orderly
intake and processing of supplemental cap petitions for the country-
specific allocation. As discussed above, similar limitations apply to
the intake and processing of returning worker petitions with start
dates of need on or after April 1, 2024.
Similar to the previous temporary final rules for the FY 2019, FY
2021, FY 2022, and FY 2023 supplemental caps, the Secretary of Homeland
Security has also determined to limit the supplemental visas to H-2B
returning workers,\88\ unless the employer indicates on the new
attestation form that it is requesting workers who are nationals of one
of the specified countries and who are therefore counted towards the
20,000 country-specific allocation regardless of whether they are new
or returning workers. If the 20,000 country-specific allocation is
reached and visas remain available under the returning worker cap,
USCIS would reject a petition seeking workers under the 20,000
allocation and return any fees submitted to the petitioner. In such a
case, a petitioner may continue to request workers who are nationals of
one of these countries, but the petitioner must file a new Form I-129
petition, with fee, and attest that these noncitizens will be returning
workers, in other words, workers who were issued H-2B visas or were
otherwise granted H-2B status in FY 2021, 2022, or 2023.\89\ Like the
temporary final rules for the first half and for the second half of FY
2022 and FY 2023, if the 20,000 returning worker exemption cap for
specific nationals remains unfilled, DHS will not make unfilled visas
reserved for these nationals available to the general returning worker
cap. The DHS decision not to make available unfilled visas from the
country-specific allocation to the general supplemental cap for
returning workers is consistent with the administration's goal of
providing a lawful pathway for such nationals to temporarily work in
the United States. To that end, not permitting rollover into the
returning worker allocation provides employers with more time to
petition for, and bring in, workers from these countries and encourages
full use of the 20,000 country-specific allocation to meet employer
needs. This, in turn, contributes to our country's efforts to promote
and improve safety, security and economic stability in these countries
to help stem the flow of irregular migration to the United States.
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\88\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2021, 2022,
or 2023. Additionally they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2021, 2022, or 2023,
or the supplemental caps in FY 2021, 2022, or 2023.
\89\ The returning worker allocations are for workers who were
issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or
2023, regardless of country of nationality. Therefore, a petitioner
may choose to petition for Salvadoran, Guatemalan, Honduran,
Haitian, Colombian, Ecuadorian, or Costa Rican nationals who meet
this requirement under an available returning worker allocation,
regardless of whether the separate 20,000 allocation for these
nationals has been reached.
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The Secretary of Homeland Security's determination to increase the
numerical limitation is based, in part, on the conclusion that some
businesses are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on their petition. In recent years, members of Congress have
informed the Secretaries of Homeland Security and Labor about the needs
of some U.S. businesses for H-2B workers (after the statutory cap for
the relevant half of the fiscal year has been reached) and about the
potentially negative impact on state and local economies if the cap is
not increased.\90\ U.S. businesses, chambers of commerce, employer
organizations, and state and local elected officials have also
expressed concerns in recent years to the DHS and Labor Secretaries
regarding the unavailability of H-2B visas after the statutory cap was
reached.\91\ In addition, several commenters on the FY 2023 TFR
supported the Departments' decision to publish one rule covering the
entire fiscal year for 2023, and urged the Departments to once again
publish one rule covering the entire fiscal year for 2024 in order to
save time in the second half of the fiscal year, conserve limited
agency resources, and reduce uncertainty for employers.\92\
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\90\ See the docket for this rulemaking for access to these
letters.
\91\ See the docket for this rulemaking for access to these
letters.
\92\ See the docket for this rulemaking for access to these
comments.
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After considering the full range of evidence and diverse points of
view, the Secretary of Homeland Security has deemed it appropriate to
take action to prevent further severe and permanent financial loss for
those employers currently suffering irreparable harm and to avoid
impending irreparable harm for other employers unable to obtain H-2B
[[Page 80409]]
workers under the statutory cap, including potential wage and job
losses by their U.S. workers, as well as other adverse downstream
economic effects.\93\ At the same time, the Secretary of Homeland
Security believes it is appropriate to condition receipt of
supplemental visas on adherence to additional worker protections, as
discussed below.
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\93\ See, e.g., Impacts of the H-2B Visa Program for Seasonal
Workers on Maryland's Seafood Industry and Economy, Maryland
Department of Agriculture Seafood Marketing Program and Chesapeake
Bay Seafood Industry Association (March 2, 2020), available at
https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf (last
visited Sept. 29, 2023); Hospitality Employment Rose in May, But
Hoteliers Report Lingering Labor Woes, Hotel Dive (Jun. 7, 2023),
https://www.hoteldive.com/news/hotel-employment-labor-shortage-increased-wage/652308/(last visited Oct. 2, 2023).
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The decision to afford the benefits of this temporary cap increase
to U.S. businesses that need H-2B workers because they are suffering
irreparable harm already or will suffer impending irreparable harm, and
that will comply with additional worker protections, rather than
applying the cap increase to any and all businesses seeking temporary
workers, is consistent with DHS's time-limited authority to increase
the cap, as explained below. The Secretary of Homeland Security, in
implementing section 303, as extended by Public Law 118-15, and
determining the scope of any such increase, has broad discretion,
following consultation with the Secretary of Labor, to identify the
business needs that are most relevant, while bearing in mind the need
to protect U.S. workers. Within that context, for the below reasons,
the Secretary of Homeland Security has determined to allow an overall
increase of up to 64,716 additional visas solely for the businesses
facing permanent, severe financial loss or those who will face such
loss in the near future.
First, DHS interprets the reference to ``the needs of American
businesses'' in section 303, as extended by Public Law 118-15, as
describing a need different from the need ordinarily required of
employers in petitioning for an H-2B worker. Under the generally
applicable H-2B program, each individual H-2B employer must demonstrate
that it has a temporary need for the services or labor for which it
seeks to hire H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6.
The use of the phrase ``needs of American businesses,'' which is not
found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B
cap, authorizes the Secretary of Homeland Security in allocating
additional H-2B visas under section 303, as extended by Public Law 118-
15, to require that employers establish a need above and beyond the
normal standard under the H-2B program, that is, an inability to find
sufficient qualified U.S. workers willing and available to perform
temporary services or labor and that the employment of the H-2B worker
will not adversely affect the wages and working conditions of U.S.
workers, see 8 CFR 214.2(h)(6)(i)(A). DOL concurs with this
interpretation. Accordingly, the Secretaries have determined that it is
appropriate, within the limits discussed below, to tailor the
availability of this temporary cap increase to those businesses that
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, those facing permanent and severe financial loss.
Second, the approach set forth in this rule, which is similar to
the implementation of the supplemental caps in previous fiscal years,
provides protections against adverse effects on U.S. workers that may
result from a cap increase, including, as in previous rules, requiring
employers seeking H-2B workers under the supplemental cap to engage in
additional recruitment efforts for U.S. workers.
In sum, this rule increases the numerical limitation by up to
64,716 additional H-2B visas for the entirety of FY 2024, but also
restricts the availability of those additional visas by prioritizing
only the most significant business needs, and limiting eligibility to
H-2B returning workers, unless the worker is a national of one of the
countries included in the 20,000 country-specific allocation that is
exempt from the returning worker limitation. This rule also distributes
the supplemental visas in several allocations to assist U.S. businesses
that need workers to begin work on different start dates. These
provisions are each described in turn below.
B. Numerical Increase and Allocations for Fiscal Year 2024
Making the Maximum Number of Visas Available
The increase of up to 64,716 visas will help address the urgent
needs of eligible employers for additional H-2B workers for those
employers with employment needs in fiscal year 2024.\94\ The
determination to allow up to 64,716 additional H-2B visas reflects a
balancing of a number of factors including: the demand for H-2B visas
during the first half of FY 2024 and expected demand for the second
half of FY 2024; current labor market conditions; the general trend of
increased demand for H-2B visas from FY 2017 to FY 2023; H-2B returning
worker data; the amount of time for employers to hire and obtain H-2B
workers in this fiscal year; and the objectives of E.O. 14010 and the
L.A. Declaration. DHS believes the numerical increase both addresses
the needs of U.S. businesses and, as explained in more detail below,
furthers the foreign policy interests of the United States.
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\94\ In contrast with section 214(g)(1) of the INA, 8 U.S.C.
1184(g)(1), which establishes a cap on the number of individuals who
may be issued visas or otherwise provided H-2B status (emphasis
added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10),
which imposes a first half of the fiscal year cap on H-2B issuance
with respect to the number of individuals who may be issued visas or
are accorded [H-2B] status'' (emphasis added), section 303 only
authorizes DHS to increase the number of available H-2B visas.
Accordingly, DHS will not permit individuals authorized for H-2B
status pursuant to an H-2B petition approved under section 303 to
change to H-2B status from another nonimmigrant status. See INA
section 248, 8 U.S.C. 1258; see also 8 CFR part 248. If a petitioner
files a petition seeking H-2B workers in accordance with this rule
and requests a change of status on behalf of someone in the United
States, the change of status request will be denied, but the
petition will be adjudicated in accordance with applicable DHS
regulations. Any noncitizen authorized for H-2B status under the
approved petition would need to obtain the necessary H-2B visa at a
consular post abroad and then seek admission to the United States in
H-2B status at a port of entry.
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Section 303 of the FY 2023 Omnibus, as extended by Public Law 118-
15, sets the highest number of H-2B returning workers who were exempt
from the cap in certain previous years as the maximum limit for any
increase in the H-2B numerical limitation for FY 2024.\95\ Consistent
with the statute's reference to H-2B returning workers, in determining
the appropriate number by which to increase the H-2B numerical
limitation, the Secretary of Homeland Security focused on the number of
visas allocated to such workers in years in which Congress enacted
returning worker exemptions from the H-2B numerical limitation. During
each of the years the returning worker provision was in force, U.S.
employers' standard business needs for H-2B workers exceeded the
statutory 66,000 cap. The highest number of H-2B returning workers
approved was 64,716 in FY 2007. In setting the number of
[[Page 80410]]
additional H-2B visas to be made available for FY 2024, DHS considered
this number, overall indications of increased need, and the
availability of U.S. workers, as discussed below. On the basis of these
considerations, DHS determined that it is appropriate to make available
up to 64,716 additional visas, which is the maximum allowed, under the
FY 2024 supplemental cap authority. The Secretary further considered
the objectives of E.O. 14010 and the L.A. Declaration, both of which
focus in part on addressing the root causes of irregular migration and
managing migration through lawful pathways. Accordingly, the Secretary
determined that it is appropriate to reserve up to 20,000 of the up to
64,716 additional visas and exempt this number from the returning
worker requirement for nationals of El Salvador, Guatemala, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica.
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\95\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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In past years, the number of beneficiaries covered by H-2B
petitions filed exceeded the number of additional visas allocated under
recent supplemental caps. In FY 2018, USCIS received petitions for
approximately 29,000 beneficiaries during the first 5 business days of
filing for the 15,000 supplemental cap. USCIS therefore conducted a
lottery on June 7, 2018, to randomly select petitions that it would
accept under the supplemental cap. Of the selected petitions, USCIS
issued approvals for 15,672 beneficiaries.\96\ In FY 2019, USCIS
received sufficient petitions for the 30,000 supplemental cap on June
5, 2019, but did not conduct a lottery to randomly select petitions
that it would accept under the supplemental cap. Of the petitions
received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021,
USCIS received a sufficient number of petitions for the 22,000
supplemental cap on August 13, 2021, including a significant number for
workers from Northern Central American countries.\97\ Of the petitions
received, USCIS issued approvals for 30,707 beneficiaries, including
approvals for 6,805 beneficiaries under the allocation for the
nationals of the Northern Central American countries.\98\
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\96\ USCIS recognizes it may have received petitions for more
than 29,000 supplemental H-2B workers if the cap had not been
exceeded within the first 5 days of opening. However, DHS estimates
that not all of the 29,000 workers requested under the FY 2018
supplemental cap would have been approved and/or issued visas. For
instance, although DHS approved petitions for 15,672 beneficiaries
under the FY 2018 cap increase, the Department of State data shows
that as of January 15, 2019, it issued only 12,243 visas under that
cap increase. Similarly, DHS approved petitions for 12,294
beneficiaries under the FY 2017 cap increase, but the Department of
State data shows that it issued only 9,160 visas.
\97\ On June 3, 2021, USCIS announced that it had received
enough petitions to reach the cap for the additional 16,000 H-2B
visas made available for returning workers only, but that it would
continue accepting petitions for the additional 6,000 visas allotted
for nationals of the Northern Central American countries. See USCIS,
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021,
https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021 (Jun. 3, 2021). On July 23,
2021, USCIS announced that, because it did not receive enough
petitions to reach the allocation for the Northern Central American
countries by the July 8 filing deadline, the remaining visas were
available to H-2B returning workers regardless of their country of
origin. See USCIS, Employers May File H-2B Petitions for Returning
Workers for FY 2021, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (Jul. 23,
2021).
\98\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for
the possibility that some approved workers would either not seek a
visa or admission, would not be issued a visa, or would not be
admitted to the United States. Unlike these past supplemental cap
TFRs, petitions filed under the first half FY 2022 TFR did not
exceed the additional allocation of 20,000 H-2B visas provided by
that rule.
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In FY 2022, DHS made the supplemental cap available twice, once in
January 2022 and again in May 2022. Under the earlier FY 2022
supplemental cap for petitions with start dates in the first half of FY
2022, USCIS had issued approvals for 17,381 beneficiaries, including
approvals for 3,231 beneficiaries under the allocation for nationals of
the Northern Central American countries and Haiti.\99\ For the second
half of FY 2022, within the first five business days of filing, USCIS
received petitions for more beneficiaries than the additional 23,500
supplemental visas made available for returning workers, thus
necessitating a random selection of petitions to meet the returning
worker allotment.\100\ Of the petitions received for the second half of
FY 2022, USCIS issued approvals for 43,798 beneficiaries, including
approvals for 12,318 beneficiaries under the allocation for nationals
of the Northern Central American countries and Haiti.\101\
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\99\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.
\100\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
\101\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2023, TRK 13122. The number of approved
workers exceeded the number of additional visas authorized for the
second half of FY 2022 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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In FY 2023, USCIS received enough petitions to reach the cap for
the additional 18,216 H-2B visas made available for returning workers
for the first half of fiscal year by January 30, 2023, and USCIS
received enough petitions to reach the cap for the additional 16,500 H-
2B visas made available for returning workers for the early second half
of fiscal year by March 30, 2023.\102\ Of the petitions for
supplemental H-2B visas in FY 2023, USCIS issued approvals for 78,302
beneficiaries, including 7,157 beneficiaries under the allocation of
10,000 visas made available for returning workers for the late second
half of the fiscal year and 23,832 beneficiaries under the allocation
of 20,000 visas reserved for nationals of the Northern Central American
countries and Haiti.\103\
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\102\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap
Reached for Additional Returning Worker H-2B Visas for the Early
Second Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
\103\ See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
H-2B Visa Issuance Report September 30, 2023. The number of approved
workers exceeded the number of additional visas authorized for FY
2023 to allow for the possibility that some approved workers would
either not seek a visa or admission, would not be issued a visa, or
would not be admitted to the United States.
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Data for the first half of FY 2024 clearly indicate an immediate
need for additional supplemental H-2B visas for employers with start
dates on or before March 31, 2024. USCIS received a sufficient number
of H-2B petitions to reach the first half of the FY 2024 fiscal year
statutory cap on October 11, 2023.\104\ Further, the date on which
USCIS received sufficient H-2B petitions to reach the first half
semiannual statutory cap has generally trended earlier in recent years.
In fiscal years 2017 through 2024, USCIS received a sufficient number
of H-2B petitions to reach or exceed the relevant first half statutory
cap on January 10, 2017, December 15, 2017, December 6, 2018, November
15, 2019, November 16, 2020, September 30, 2021, September
[[Page 80411]]
12, 2022, and October 11, 2023, respectively.\105\
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\104\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
\105\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21,
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019);
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021); USCIS,
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
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Through the third quarter of FY 2023, approximately 85.2 percent of
H-2B filings were for positions within just 5 sectors.\106\ NAICS 56
(Administrative and Support and Waste Management and Remediation
Services) accounted for 39.5% of filings, NAICS 71 (Accommodation and
Food Services) accounted for 11.2%, NAICS 72 (Arts, Entertainment, and
Recreation) accounted for 18.00%, NAICS 23 (Construction) accounted for
12.4%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting)
accounted for 4.1% of filings.
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\106\ USCIS analysis of DOL OLFC Performance data.
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Within these industries, DOL data show higher labor demand relative
to recent history. More specifically, industry unemployment data from
the Bureau of Labor Statistics (BLS) show that the industry
unemployment rate in each of these industries is lower than the long
term (10-year) average.\107\
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\107\ USCIS has elected to use a long-term average as a
reference point so as to minimize the impact that the Covid-19
pandemic has on the comparison of the industry employment rate. All
data are taken from the respective BLS ``Industry at a Glance''
pages. See https://www.bls.gov/iag/tgs/iag11.htm, https://www.bls.gov/iag/tgs/iag23.htm, https://www.bls.gov/iag/tgs/iag60.htm, https://www.bls.gov/iag/tgs/iag71.htm, https://www.bls.gov/iag/tgs/iag72.htm. All data accessed September 20, 2023.
[GRAPHIC] [TIFF OMITTED] TR17NO23.020
[GRAPHIC] [TIFF OMITTED] TR17NO23.021
In August 2023, the industry unemployment for NAICS 56 \108\ was
3.7 percent, which is 1.31 points lower than its 10-year average of
5.01 percent, while the industry unemployment rate for NAICS 71 was 4.5
percent which is 3.85 points lower than its 10-year average of 8.35
percent. The August 2023 industry unemployment rate for NAICS 72 (6.10
percent) was 2.13 points lower than its 10-year average of 8.23 percent
while the rate for NAICS 23 (3.9 percent) was 2.53 points lower than
its 10-year average of 6.43 percent. The industry unemployment rate for
NAICS 11 (5.80 percent) was 1.96 points lower than its 10-year average
of 7.76 percent. The relatively low unemployment rate across these
industries is a clear indication of a strong labor demand within these
industries. The Departments believe that the supplemental allocation of
H-2B visas described in this temporary final rule will help to meet
demand in these industries.
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\108\ Data presented here are for the Professional and Business
Services Supersector, which is comprised of NAICS 54, NAICS 55 and
NAICS 56. See https://www.bls.gov/iag/tgs/iag60.htm. As such, the
data presented here should be understood to be the best possible
proxy for changes in NAICS 56 and not a direct measurement of any
specific change in the actual underlying sectors. The latest data
available, for July, 2023 from the Department of Labor's Current
Employment Statistics program indicates that NAICS 56 accounted for
just under 42% of employment in Professional Business Services. All
data accessed September 27, 2023.
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Economy-wide data also indicate that labor-market tightness
continues to exist. The most recent Employment Situation released by
the Bureau of Labor Statistics (BLS) stated that the unemployment rate
was 3.8 percent in September 2023.\109\ Historically, the availability
of H-2B visas addressed a need in the labor market during periods of
lower unemployment. Chart 1 \110\ shows that the H-2B visa allocations
for Fiscal Year 2024 \111\ made by this rule are slightly higher than
the historical trend but are generally consistent with what the current
unemployment rate alone would predict. Additionally, when the
unemployment rate is below 6 percent, there is greater variance in the
total number of H-2B visas issued in a given year; for example, in
years 2022, 2007 and 2006, when the unemployment rate ranged from
approximately 3.5 percent to 4.6 percent, the total number of H-2B
visas issued were comparable to what is planned for 2024. The data
presented in chart 1 is meant to provide additional context and to
demonstrate that the total allocation of H-2B visas is reasonable given
labor market conditions.
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\109\ See DOL, BLS, The Employment Situation--September 2023,
https://www.bls.gov/news.release/archives/empsit_10062023.pdf (Oct.
6, 2023).
\110\ Annual data presented here is on a fiscal year basis.
Fiscal year averages were calculated by taking the average of the
monthly unemployment rate for the months in each respective fiscal
year (October-September). Data for fiscal year 2023 are for October
2022-August 2023. Unemployment rate for 2024 is based on median
Federal Reserve projections See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm (accessed September 29,
2023).
\111\ The number of estimated visas issued for Fiscal Year 2024
is based on the sum of the fiscal year statutory cap for H-2B
workers (66,000) and the supplemental allocation for this rule
(64,716), for a total H-2B visa allocation of 130,716.
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[[Page 80412]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.022
Given the level of demand for H-2B workers, the continued economic
recovery, and continued job growth, DHS believes it is appropriate to
release the maximum amount of additional visas at this time.
Making Allocations for All of FY 2024 in a Single Rule
As in FY 2023, DHS believes that it is appropriate to issue a
single rule for the entire fiscal year for multiple reasons.\112\
First, DHS expects that there is demand for supplemental visas in the
first half of FY 2024. As previously discussed, USCIS already received
enough petitions to reach the congressionally mandated cap on H-2B
visas for temporary nonagricultural workers for the first half of FY
2024.\113\ Further, the date on which USCIS received sufficient H-2B
petitions to reach the first half semiannual statutory caps has
generally trended earlier in recent years. In fiscal years 2017 through
2024, USCIS received a sufficient number of H-2B petitions to reach or
exceed the relevant first half statutory cap on January 10, 2017,
December 15, 2017, December 6, 2018, November 15, 2019, November 16,
2020, September 30, 2021, September 12, 2022, and October 11, 2023,
respectively.\114\
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\112\ Further, DHS believes that 64,716 is an appropriate number
of supplemental visas to make available, as this rule will cover
both the first and second half of FY 2024.
\113\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
\114\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21,
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019);
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021); USCIS,
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
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Second, based on relevant data, DHS expects that USCIS will reach
the statutory cap for the second half of FY 2024 and that there will
accordingly be demand for supplemental visas in the second half of FY
2024. For example, in fiscal years 2017 through 2023, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
second half statutory cap on March 13, 2017, February 27, 2018,
February 19, 2019, February 18, 2020, February 12, 2021, February 25,
2022, and February 27, 2023.\115\ In addition, DOL data shows
consistently high demand in recent years, particularly during the
second half of the fiscal year. In recent years, DOL has received an
increasing number of TLC applications for an increasing number of H-2B
workers with April 1 start dates: DOL received 4,500 applications on
January 1, 2018, covering more than 81,600 worker positions; DOL
received 5,276 applications by January 8, 2019, covering more than
96,400 worker positions; DOL received 5,677 applications during the
initial three-day filing window in 2020 covering 99,362 worker
positions; DOL received 5,377 applications during the initial three-day
filing window in 2021 covering 96,641 worker positions; DOL received
7,875 applications by January 7, 2022, covering 136,555 worker
positions; and DOL received 8,693 applications during the initial
three-day filing window in 2023, covering 142,796 worker
positions.\116\
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\115\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year
2017, https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017 (Mar. 16, 2017); USCIS, USCIS Completes
Random Selection Process for H-2B Visa Cap for Second Half of FY
2018, https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018 (Mar.
1, 2018); USCIS, H-2B Cap Reached for FY 2019, https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019 (Feb. 22, 2019);
USCIS, H-2B Cap Reached for Second Half of FY 2020, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020
(Feb. 26, 2020); USCIS, H-2B Cap Reached for Second Half of FY 2021,
https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021 (Feb. 24, 2021); USCIS, H-2B Cap Reached for Second Half
of FY 2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022 (Mar. 1, 2022); USCIS, USCIS Reaches H-2B
Cap for Second Half of FY 2023 and Announces Filing Dates for the
Second Half of FY 2023 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of (Mar. 2, 2023).
\116\ See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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Finally, publishing one rule that addresses all the visas available
for FY 2024 benefits the regulated public by giving more notice and
certainty of what will become available for the second
[[Page 80413]]
half. As noted in comments received in response to the FY 2023 TFR,
this approach allows businesses to better plan ahead for their seasonal
workforce needs.\117\
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\117\ See the docket for this rulemaking for access to these
comments.
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Filing Deadline of September 16, 2024 for All Petitions
The authority to approve H-2B petitions under this FY 2024
supplemental cap expires at the end of the fiscal year, i.e., the end
of September 30, 2024. Therefore, DHS is requiring employers requesting
any supplemental visas under this TFR, regardless of the employment
start date(s), to properly file their H-2B petition with USCIS no later
than September 16, 2024. USCIS will reject any cases that are received
after September 16, 2024. See new 8 CFR 214.2(h)(6)(xiv)(C). Because
DHS believes that 15 days from the end of the fiscal year is generally
the minimum time needed for petitions to be adjudicated, but also to
account for the fact that September 15, 2024 falls on a Sunday,\118\
DHS has set September 16, 2024 as the last day to file in order to
provide USCIS with adequate time for petition processing before the
expiration of the authority at the end of the fiscal year, although
USCIS cannot guarantee the time period will be sufficient for
adjudication of petitions in all cases.
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\118\ In prior rules, USCIS used September 15th as the cutoff
date for accepting petitions filed under the supplemental cap.
However, in FY 2024, September 15th is on a Sunday when USCIS does
not accept petitions. DHS has revised this date accordingly to avoid
potential confusion and frustration from petitioners who might have
otherwise expected their petitions to be received on the 15th but
would instead face rejection.
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In addition, the filing deadline will be earlier than September 16,
2024 if the applicable numerical limit for the relevant supplemental
visa allocation is reached before that date. See new 8 CFR
214.2(h)(6)(xiv)(C). In such a case, USCIS will also reject any cases
that are received after the applicable numerical limitation has been
reached.
Returning Worker Allocation for the First Half of FY 2024 (October 1,
2023 Through March 31, 2024)
For the first half of FY 2024, DHS will make 20,716 visas
immediately available upon publication of this TFR that are limited to
returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2021, 2022, or 2023,
regardless of country of nationality. These petitions must request a
date of need starting on or before March 31, 2024. See new 8 CFR
214.2(h)(6)(xiv)(C).
DHS anticipates that employers will use all of the first half
allocation for returning workers, given how quickly USCIS reached the
FY 2024 first half statutory cap and the first half supplemental
allocation for FY 2023. As noted previously, USCIS received enough H-2B
petitions to reach the FY 2024 first half statutory cap on October 11,
2023.\119\ Under the FY 2023 TFR, which published on December 15, 2022,
USCIS received enough petitions to reach the 18,216 first half
allocation by January 31, 2023.\120\ Similarly, the relatively early
publication of this rule will provide interested employers more time to
prepare their petitions, increasing the likelihood that the first half
allocation for returning workers will be used.\121\ To the extent that
the first half allocation for returning workers is used, this TFR may
provide affected employers with some relief by making available a
separate allocation of visas for nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica, which will be
available for the entirety of FY 2024.
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\119\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
\120\ USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023).
\121\ Compare the publication date of this rule with December
15, 2022, the date the FY 2023 TFR was first published, and January
28, 2022, the date the temporary final rule making available
additional H-2B visas for the first half of FY 2022 was first
published.
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In the event that USCIS approves insufficient petitions to use all
20,716 visas, the unused numbers will not carry over for the second
half allocation because DHS believes that the operational burdens of
calculating and administering a process to carry over unused visas,
combined with the potential confusion for the public and adjudicators
that could result from having different filing cutoff dates for the
different allocations, would outweigh the benefits. In order to make
any unused first half visas available for employers with second half
start dates, DHS would need to set a filing cutoff date prior to
September 16, 2024 for the first half allocation, upon which it would
stop accepting such petitions and make a calculation of how many visas
should be re-released for second half employers. Calculating visas to
be re-released could also entail an additional cap allocation,
additional announcements to the public, and potentially an additional
lottery, all of which would significantly increase operational burdens.
In addition to increasing operational burdens, DHS believes that the
opening, closing, and potential re-opening of this allocation (and/or
other cap allocations) could cause confusion for the public and
adjudicators. Furthermore, not setting a filing cutoff date prior to
September 16, 2024 will maximize employers' opportunity to avail
themselves of the first half allocation. While DHS acknowledges that
this approach could potentially result in some employers with a
demonstrated business need in the second half of the fiscal year losing
the opportunity to receive a supplemental visa, it is DHS's expectation
that there will be sufficient demand from employers with first half
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1,
2024, Through May 14, 2024)
For the second half of FY 2024, DHS will initially make available
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023, regardless of country of nationality. These
petitions must request a date of need starting on or after April 1,
2024, through and including May 14, 2024. Limiting this allocation to
employers with employment start dates on or before May 14, 2024
reflects DHS's intentions to give employers with needs later in the
season a better opportunity to access the H-2B program, and to prevent
employers from petitioning under both of the second-half allocations to
fill the same need.
To mitigate complications from concurrent administration of the
statutory second half cap, these petitions must be filed no earlier
than 15 days after the second half statutory cap is reached, a date
that USCIS will identify in a public announcement.\122\ When USCIS
announces that it has received a sufficient number of petitions to
reach the second half statutory cap, it will also announce the earliest
possible filing date (15 days after the second half statutory cap) for
this allocation. Concurrent administration of the second half statutory
cap with the second half supplemental cap would pose significant
operational challenges, particularly considering the volume of H-2B
petitions USCIS would have to
[[Page 80414]]
process at the same time. A cushion of 15 days after the second half
statutory cap is reached should provide USCIS with sufficient time to
process H-2B petitions filed under the second half statutory cap and
prepare to process petitions under this supplemental cap, and should
also provide petitioners not selected under the statutory cap with
enough time to refile under this supplemental cap. Furthermore, making
this allocation available after the second half statutory cap has been
reached builds in flexibility to account for variations in the timing
of that cap being reached. DHS cannot predict with certainty when the
FY 2024 second half statutory cap will be reached (or if it will be
reached), and therefore, did not specify a date for when to first allow
petitioners to file for FY 2024 second half supplemental visas. In the
event that the statutory second half FY 2024 cap is not reached, the
supplemental allocation for returning workers for the second half of FY
2024 will not become available.
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\122\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(2), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii)
of this section requesting employment start dates from April 1, 2024
to May 14, 2024 that are received earlier than 15 days after the INA
section 214(g) cap for the second half FY 2024 has been met.
---------------------------------------------------------------------------
Based on historical data showing increasingly high demand for H-2B
workers with April 1 start dates, DHS expects all 19,000 visas to be
used quickly once the supplemental allocation becomes available.
However, in the event that USCIS approves insufficient petitions to use
all 19,000 visas, the unused numbers will not carry over for petition
approvals for employment start dates beginning on or after May 15,
2024. DHS chose to limit these 19,000 visas to start dates on or before
May 14, 2024, without the ability for these visas to be carried over
into the next allocation. As previously stated, DHS believes that the
operational burdens of calculating and administering a process to carry
over unused visas, combined with the potential confusion for the public
and adjudicators that could result from having different filing cutoff
dates for the different allocations, would outweigh the benefits. In
order to make any unused visas from this allocation available for late
second half of FY 2024 petitions, DHS would need to set a filing cutoff
date that would be after the cutoff for the first half allocation but
prior to any cutoff for late second half of FY 2024 petitions and prior
to September 16, 2024, upon which it would stop accepting petitions and
make a calculation of how many visas should be re-released for late
second half employers. Calculating visas to be re-released could also
entail an additional cap allocation, additional announcements to the
public, and potentially an additional lottery, all of which would
significantly increase operational burdens. In addition to increasing
operational burdens, DHS believes that the opening, closing, and
potential re-opening of this allocation (and/or other cap allocations)
could cause confusion for the public and adjudicators. Furthermore, not
setting a filing cutoff date prior to September 16, 2024, will maximize
employers' opportunity to avail themselves of the early second half
allocation. While DHS acknowledges that this approach could result in
employers in the late second half losing the opportunity to receive a
supplemental visa, it is DHS's expectation that there will be
sufficient demand from employers to use this entire allocation.
Additional Returning Worker Allocation for the Late Second Half (on or
After May 15, 2024, Through September 30, 2024)
For the late second half of FY 2024, DHS will make available an
additional allocation of 5,000 visas limited to returning workers, in
other words, those workers who were issued H-2B visas or held H-2B
status in fiscal years 2021, 2022, or 2023, regardless of country of
nationality. To assist employers needing workers to begin work during
the late spring and summer seasons in the fiscal year (also referred to
as ``late season employers''), these petitions must request a date of
need starting on or after May 15, 2024. These petitions must be filed
no sooner than 45 days after the second half statutory cap is reached,
a date that USCIS will identify in a public announcement.\123\ When
USCIS announces that it has received a sufficient number of petitions
to reach the second half statutory cap, it will also announce the
earliest possible filing date (45 days after the second half statutory
cap) for this allocation. The cushion of 45 days after the second half
statutory cap is reached is intended to provide USCIS with sufficient
time to process H-2B petitions filed under the second half statutory
cap that remain pending, as well as to process the expected influx of
petitions under the early second half supplemental cap that will begin
15 days after the second half statutory cap is reached.\124\ By
allowing USCIS to manage its workload in this way, the 45-day period
will help USCIS prepare to process petitions under the late second half
supplemental cap and mitigate the complications from concurrent
administration of these various caps.
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\123\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(3), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii)
of this section requesting employment start dates from May 15, 2024
to September 30, 2024, that are received earlier than 45 days after
the INA section 214(g) cap for the second half FY 2024 has been met.
\124\ While petitioners may continue to submit petitions under
the early second half supplemental cap through September 16, DHS
expects the heaviest filing to occur soon after the visas become
available. This expectation is based on historical filing patterns,
as well as an assumption that employers will try act quickly to
secure workers consistent with their dates of need.
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This is the second supplemental cap reserved for late season
employers that need workers to begin work during the late spring and
summer seasons in the fiscal year.\125\ By regulation, employers may
only apply for a TLC 75 to 90 days before the start date of need,\126\
and, as such, employers needing workers to begin work on or after May
15 are not eligible to file TLC applications until on or after February
15. As noted in the FY 2023 TFR, in past years, because of this
requirement and the strong demand for & workers in recent years to
begin work on the earliest employment start date (i.e., April 1), late
season employers were unable to receive cap-subject H-2B workers
because they did not have an opportunity to file visa petitions for
cap-subject H-2B workers before the second semiannual statutory cap was
reached. Since, based on recent years' data,\127\ USCIS has typically
received sufficient H-2B petitions to meet the statutory cap for the
second half of the fiscal year around mid-February, many of these late
season employers may have decided to not file a TLC application.
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\125\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022).
\126\ See 20 CFR 655.15(b).
\127\ As noted above, in fiscal years 2017 through 2023, USCIS
received a sufficient number of H-2B petitions to reach or exceed
the relevant second half statutory cap on March 13, 2017, February
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021,
February 25, 2022, and February 27, 2023 respectively.
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DHS, in consultation with DOL, has again determined that it is
appropriate to make a separate allocation available for late season
employers whose late season labor needs may have put them at a
disadvantage in accessing H-2B workers in recent years. While there was
significant demand for the late second half allocation in FY 2023, the
full allocation of 10,000 visas was not reached. As of October 6, 2023,
DOS has issued 5,071 visas towards the late second half allocation,
while USCIS approved 7,157 beneficiaries towards the late second half
allocation.\128\
[[Page 80415]]
Therefore, in order to meet the employer demand in the late second half
of FY 2024, while still maximizing the overall usage of supplemental
visas, DHS has determined it is appropriate to limit the late second
half allocation for FY 2024 to up to 5,000 visas. DHS, in consultation
with DOL, has determined that authorizing two allocations for the
second half of FY 2024 based on an employer's start date of need, in
addition to requiring that the employer's start date of need on the
Form I-129 match the start date of need on the approved TLC,\129\ will
provide employers with late season needs a better opportunity to
receive H-2B workers to avoid irreparable harm. Specifically, employers
with early season needs that need work to begin on or after April 1
will have the opportunity to file H-2B petitions under both the
statutory cap and the first allocation of the supplemental cap, while
employers with late season needs do not have that opportunity.
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\128\ Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
\129\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must
state an employment start date that is the same as the date of need
stated on the approved temporary labor certification'').
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To mitigate complications from concurrent administration of the
additional returning worker allocation for the second half of the
fiscal year for late season employers and either the statutory second
half cap or the initial supplemental allocation for returning workers
for the second half of the fiscal year (or both), these petitions must
be filed no earlier than 45 days after the second half statutory cap is
reached. When USCIS announces that it has received a sufficient number
of petitions to reach the second half statutory, it will also announce
the earliest possible filing date (45 days after the second half
statutory cap) for this allocation. In the event that the statutory
second half FY 2024 cap is not reached, this supplemental allocation
for late season filers workers will not become available. Furthermore,
in the event that USCIS does not approve sufficient petitions to use
all 5,000 visas for late season employers, DHS will not carry over the
unused numbers for petition approvals for any other allocation. For
example, any unused numbers would not carry over to petitions under the
country-specific allocation. As noted above, DHS believes the
operational burdens of calculating and administering a process to carry
over unused visas would outweigh the benefits because of the potential
confusion for the public and adjudicators that could result from having
different filing cutoff dates for the different allocations. A process
to carry over unused visas could also entail an additional cap
allocation, additional announcements to the public, and potentially an
additional lottery, all of which significantly increase operational
burdens and may add further confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica
DHS will make available 20,000 additional visas that are reserved
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica, as attested by the petitioner (regardless of
whether such nationals are returning workers). These 20,000 visas will
be available for petitioners requesting an employment start date before
the end of FY 2024, up to and including September 30, 2024.
While prior fiscal years' allocations for nationals of the Northern
Central American countries and Haiti have not been reached, DHS
anticipates a higher likelihood that the 20,000 visas allocated for
certain nationals by this rule will be reached by the end of this
fiscal year. As discussed above, DHS observed robust employer interest
in response to the FY 2021 H-2B supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 and FY
2023 supplemental visa allocations for Salvadoran, Guatemalan,
Honduran, and Haitian nationals, and the data show a trend of increased
participation by Haitian, Salvadoran, Guatemalan, and Honduran workers
in the H-2B program.\130\ Furthermore, the inclusion of nationals from
the additional countries of Colombia, Ecuador, and Costa Rica also
increases the likelihood that the 20,000 visas will be used.
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\130\ As previously noted, USCIS approved petitions on behalf of
6,805 beneficiaries under the FY 2021 allocation, 3,231
beneficiaries under the FY 2022 first half supplemental allocation,
12,318 beneficiaries for the second half of the fiscal year FY 2022,
and 23,832 beneficiaries under the FY 2023 allocation. See DHS,
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report
September 30, 2023.
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Employers requesting workers under the country-specific allocation
with an employment start date in the first half of FY 2024 may file
their petitions immediately after the publication of this TFR.
Employers requesting workers under the country-specific allocation with
an employment start date in the second half of FY 2024 must file their
petitions no earlier than 15 days after the second half statutory cap
is reached. The requirement to file the petition no earlier than 15
days after the second half statutory cap is reached is consistent with
the approach taken for the initial returning worker allocation for the
early second half of the fiscal year, and is in line with the
Departments' interpretation of their authority to make available
supplemental (or in other words, additional) visas as contingent upon
the exhaustion of visas under the statutory cap.\131\
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\131\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(4), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) of
this section that have a date of need on or after April 1, 2024 and
are received earlier than 15 days after the INA section 214(g) cap
for the second half of FY 2024 is met.
---------------------------------------------------------------------------
As in FY 2023, the Departments have decided not to further divide
the 20,000 visas for workers from specific countries into separate
allocations for the first and second half of the fiscal year. The
Departments intend for this additional flexibility of allowing any
employment start date within FY 2024 to encourage U.S. employers that
are suffering irreparable harm or will suffer impending irreparable
harm to seek out workers from such countries, and, at the same time,
increase interest among nationals of the Northern Central American
countries, Haiti, Colombia, Ecuador, and Costa Rica seeking a legal
pathway for temporary employment in the United States. While this
approach could potentially result in employers with start dates in the
first half of FY 2024 using all 20,000 visas for nationals of the
specified countries, and consequently, employers with start dates in
the second half of FY 2024 losing the opportunity to utilize this
particular allocation, DHS believes that the benefits of increasing the
flexibility of this allocation outweighs the potential risk. Moreover,
employers with start dates in the second half of FY 2024 seeking to
employ nationals under the country-specific allocation may request a
visa under one of the two second half supplemental allocations which
are available for returning workers regardless of country of
nationality.
In the event that USCIS does not approve sufficient petitions to
use all 20,000 visas under the country-specific allocation by the end
of FY 2024, DHS will not carry over the unused numbers for petition
approvals for any other allocation. For example, any unused numbers
would not carry over to petitions for returning workers with employment
start dates in the second half of FY 2024. As noted above, DHS believes
the operational burdens of calculating and administering a process to
carry over unused visas would outweigh the benefits because of the
potential confusion for the public and
[[Page 80416]]
adjudicators that could result from having different filing cutoff
dates for the different allocations. A process to carry over unused
visas could also entail an additional cap allocation, additional
announcements to the public, and potentially an additional lottery, all
of which significantly increase operational burdens and may add further
confusion to the public and adjudicators. Further, this single filing
cutoff approach provides employers with incentive and more time to
petition for, and bring in, workers from El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica to meet employer
needs, consistent with the administration's efforts and outreach to
promote and improve safety, security, and economic stability in these
countries.
Process if Cap Allocations Are Reached
Finally, recognizing the high demand for H-2B visas, it is
plausible that the additional H-2B supplemental allocations provided in
this rule will be reached prior to September 16, 2024. Specifically,
the following scenarios may still occur:
The 20,716 supplemental cap visas limited to returning
workers that will be immediately available for employers with dates of
need on or after October 1, 2023, through March 31, 2024, will be
reached before September 16, 2024;
The 19,000 supplemental cap visas limited to returning
workers that will be available for employers with dates of need
starting on or after April 1, 2024, through May 14, 2024, will be
reached before September 16, 2024;
The 5,000 supplemental cap visas limited to returning
workers that will be available for late season employers with dates of
need on or after May 15, 2024, through September 30, 2024, will be
reached before September 16, 2024; or
The 20,000 supplemental cap visas limited to nationals of
El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa
Rica will be reached before September 16, 2024.
Under this rule, new 8 CFR 214.2(h)(6)(xiv)(D) reaffirms the
existing processes that are in place when H-2B numerical limitations
under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or
(g)(10), are reached,\132\ as applicable to each of the scenarios
described above that involve numerical limitations of the supplemental
cap. Specifically, for each of the scenarios mentioned above, DHS will
monitor petitions received, and make projections of the number of
petitions necessary to achieve the projected numerical limit of
approvals. USCIS will also notify the public of the dates that USCIS
has received the necessary number of petitions (the ``final receipt
dates'') for each of these scenarios. The day the public is notified
will not control the final receipt dates. Moreover, USCIS may randomly
select, via computer-generated selection, from among the petitions
received on the final receipt date the remaining number of petitions
deemed necessary to generate the numerical limit of approvals for each
of the scenarios involving numerical limitations to the supplemental
cap. USCIS may, but will not necessarily, conduct a lottery if: the
20,716 supplemental cap visas limited to returning workers that will be
immediately available for employers with dates of need on or after
October 1, 2023, through March 31, 2024, is reached before September
16, 2024; the 19,000 supplemental cap visas limited to returning
workers that will be available for employers with dates of need on or
after April 1, 2024, through May 14, 2024, is reached before September
16, 2024; the 5,000 supplemental cap visas limited to returning workers
that will be available for late season employers with dates of need on
or after May 15, 2024, through September 30, 2024, is reached before
September 16, 2024; or the 20,000 visas limited to certain nationals is
reached before September 16, 2024. Similar to the processes applicable
to the H-2B semiannual statutory cap, if the final receipt date is any
of the first 5 business days on which petitions subject to the
applicable numerical limit may be received (in other words, if the
numerical limit is reached on any one of the first 5 business days that
filings can be made), USCIS will randomly apply all of the numbers
among the petitions received on any of those 5 business days.
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\132\ See 8 CFR 214.2(h)(8)(vii).
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C. Returning Workers
As noted above, to address the increased and, in some cases,
impending need for H-2B workers in this fiscal year, the Secretary of
Homeland Security, in consultation with the Secretary of Labor, has
determined that employers may petition for supplemental visas on behalf
of up to 44,716 workers who were issued an H-2B visa or were otherwise
granted H-2B status in FY 2021, 2022, or 2023. This temporal limitation
mirrors the prior fiscal year's temporal limitation in the returning
worker definition \133\ and the temporal limitation Congress imposed in
previous returning worker statutes.\134\ Such workers (in other words,
those who recently participated in the H-2B program and who now seek a
new H-2B visa from DOS) may obtain their new visas through DOS and
begin work more expeditiously because they have previously obtained H-
2B visas and therefore have been vetted by DOS and would have departed
the United States as generally required by the terms of their
nonimmigrant admission.\135\ DOS has informed DHS that, in general, H-
2B visa applicants who are able to demonstrate clearly that they have
previously abided by the terms of their status granted by DHS have a
higher visa issuance rate when applying to renew their H-2B visas, as
compared with the overall visa applicant pool from a given country.
Furthermore, consular officers are authorized to waive the in-person
interview requirement for certain nonimmigrant visa applicants,
including certain H-2B applicants renewing visas in the same
classification within 48 months of the prior visa's expiration, who
otherwise meet the strict limitations set out under INA section 222(h),
8 U.S.C. 1202(h).\136\ Limiting the supplemental cap to returning
workers is beneficial because these workers have generally followed
immigration law in good faith and demonstrated their willingness to
return home when they have completed their temporary labor or services
or their
[[Page 80417]]
period of authorized stay, which is a condition of H-2B status. The
returning worker condition therefore provides a basis to believe that
H-2B workers under this cap increase will again abide by the terms and
conditions of their visa or nonimmigrant status.
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\133\ See e.g., Exercise of Time-Limited Authority To Increase
the Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022)
(defining ``returning workers'' as those who were issued H-2B visas
or held H-2B status in fiscal years 2020, 2021, or 2022).
\134\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A);
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F,
tit. V, sec 565; John Warner National Defense Authorization Act for
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law. 109-13, div. B, tit. IV, sec. 402.
\135\ The previous review of an applicant's qualifications and
current evidence of lawful travel to the United States will
generally lead to a shorter processing time of a renewal
application.
\136\ The interview waiver authority for certain H-2B applicants
renewing visas in the same classification within 48 months of the
prior visa's expiration has no sunset date. Currently, certain
first-time H-2B visa applicants or certain H-2B visa applicants
previously issued any type of visa within the last 48 months may be
eligible for an interview waiver; however, the authority for these
interview waivers is set to expire on December 31, 2023. See DOS,
Important Announcement on Waivers of the Interview Requirement for
Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last
updated Dec. 23, 2022); DOS, Extension of Interview Waivers for
Certain Nonimmigrant Visa Applicants, https://www.state.gov/extension-of-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last updated Dec. 23, 2022).
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The returning worker condition also benefits employers that seek to
re-hire known and trusted workers who have a proven positive employment
track record while previously employed as workers in this country.
While the Departments recognize that the returning worker requirement
may limit to an extent the flexibility of employers that might wish to
hire non-returning workers, the requirement provides an important
safeguard against H-2B abuse, which DHS considers to be a significant
consideration.
To ensure compliance with the requirement that additional visas
only be made available to returning workers, DHS will require
petitioners seeking H-2B workers under the supplemental cap to attest
that each employee requested or instructed to apply for a visa under
the FY 2024 supplemental cap was issued an H-2B visa or otherwise
granted H-2B status in FY 2021, 2022, or 2023, unless the H-2B worker
is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, or Costa Rica and is counted towards the 20,000 cap. This
attestation will serve as prima facie initial evidence to DHS that each
worker, unless a national of one of these countries who is counted
against the 20,000 country-specific cap, meets the returning worker
requirement. DHS and DOS retain the right to review and verify that
each beneficiary is in fact a returning worker any time before and
after approval of the petition or visa. DHS has authority to review and
verify this attestation during the course of an audit or investigation,
as otherwise discussed in this rule.
With respect to satisfying the returning worker requirement,
employers must maintain evidence that the employer requested and/or
instructed that each of the workers petitioned by the employer in
connection with this temporary rule were issued H-2B visas or otherwise
granted H-2B status in FY 2021, 2022, or 2023, unless the H-2B worker
is a national of one of the specific countries counted towards the
20,000 cap. Such evidence would include, but is not limited to, a date-
stamped written communication from the employer to its agent(s) and/or
recruiter(s) that instructs the agent(s) and/or recruiter(s) to only
recruit and provide instruction regarding an application for an H-2B
visa to those foreign workers who were previously issued an H-2B visa
or granted H-2B status in FY 2021, 2022, or 2023.
D. 20,000 Allocation for Nationals of Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica
As described above, the Secretary of Homeland Security has
determined that up to 20,000 additional H-2B visas will be limited to
workers who are nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica. These 20,000 visas will be exempt
from the returning worker requirement. Because the returning worker
allocations have no restrictions related to a worker's country of
nationality, if the 20,000 visa limit has been reached and the 44,716
returning worker cap has not, petitioners may continue to request
workers who are nationals of one of these countries, but the workers
must be specifically requested as returning workers who were issued H-
2B visas or were otherwise granted H-2B status in FY 2021, 2022, or
2023.
While DHS reiterates the benefits of allocating visas under the
supplemental cap to returning workers, the Secretary of Homeland
Security has determined that the 20,000 country-specific allocation
which is exempted from the returning worker requirement is beneficial
for following reasons. First, this country-specific allocation furthers
the U.S. foreign policy objective of managing irregular migration with
partner countries through expanding access to lawful pathways to
nationals of these countries seeking economic opportunity in the United
States. Several of these countries have extensively collaborated with
the United States on migration issues such as through endorsing the
L.A. Declaration, joining the United States to ramp up efforts to
address the irregular migration flows through the Darien and hosting
Safe Mobility Offices (SMOs) to facilitate access to lawful pathways to
the United States and other countries, including expedited refugee
processing and other humanitarian pathways. After a series of
negotiations, on June 1, 2023, the United States and Guatemala issued a
joint statement to commit to take a series of critical steps to
humanely reduce irregular migration and expand lawful pathways under
the L.A. Declaration.\137\ As the first step of a comprehensive program
to manage irregular migration, both countries have been implementing a
six-month pilot phase of SMOs since June 12, 2023.\138\ On June 4,
2023, the United States and Colombia announced the impending
establishment of SMOs that would identify, register, and categorize the
reasons for irregular migration and channel those who qualify through
lawful pathways from Colombia to the United States.\139\ The Safe
Mobility initiative launched in Colombia on June 28, 2023, with SMOs
currently operational in three cities. Furthermore, on June 12, 2023,
the United States and the Government of Costa Rica, in furtherance of
bilateral partnership and addressing hemispheric challenge of irregular
migration, launched an exploratory six-month implementation of
SMOs.\140\ On October 19, 2023, the United States and Ecuador announced
their partnership in establishing SMOs in Ecuador.\141\ This allocation
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica will promote safe, orderly and lawful migration
to the United States, as well as help provide U.S. employers with
additional labor from these countries with whom the United States
Government has engaged in outreach efforts to promote the H-2B
program.\142\
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\137\ See The White House, Joint Statement from the United
States and Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/.
\138\ Id.
\139\ See United States Department of State, U.S.-Colombia Joint
Commitment to Address the Hemispheric Challenge of Irregular
Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/. See The White House, Readout of Principal Deputy
National Security Advisor Jon Finer's Meeting with Colombian Foreign
Minister Alvaro Leyva (June 11, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/.
\140\ See United States Department of State, U.S.-Costa Rica
Joint Commitment to Address the Hemispheric Challenge of Irregular
Migration (June 12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/.
\141\ See United States Department of State, Announcement of
Safe Mobility Office in Ecuador (Oct. 19, 2023), https://www.state.gov/announcement-of-safe-mobility-office-in-ecuador/.
\142\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (Jun. 9, 2022) (``Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the Foreign Ministry in El
Salvador] . . . resulted in a record number of H-2 visas issued in
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
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Second, in addition to the allocation for returning workers, the
country-specific allocation will also address the needs of certain H-2B
employers that
[[Page 80418]]
are suffering irreparable harm or will suffer impending irreparable
harm.
Third, the 20,000 set-aside will deliver on the objectives of E.O.
14010, which, among other initiatives, instructs the Secretary of
Homeland Security and the Secretary of State to implement measures to
enhance access for nationals of the Northern Central American countries
to visa programs, as appropriate and consistent with applicable law.
E.O. 14010 also directs relevant government agencies to create a
comprehensive regional framework to address the causes of migration,
and to manage migration throughout North and Central America.\143\
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\143\ See also National Security Council, Collaborative
Migration Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021) (stating that ``The United States has
strong national security, economic, and humanitarian interests in
reducing irregular migration and promoting safe, orderly, and humane
migration'' within North and Central America).
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Fourth, DHS is allocating these visas to specific countries to
further promote development and economic stability of these countries
to reduce irregular migration throughout the Western Hemisphere.\144\
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\144\ See, e.g., https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw (this supplemental
allocation to workers from Haiti, Honduras, Guatemala, and El
Salvador ``advances the Biden Administration's pledge, under the
L.A. Declaration to expand legal pathways as an alternative to
irregular migration''); The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S, Government and Foreign
Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's
commitment to support the people of Haiti'').
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As in prior years, DOS will work with the relevant countries to
facilitate consular interviews, if required,\145\ and channels for
reporting incidents of fraud and abuse within the H-2 programs.
Further, each country's own consular networks will maintain contact
with the workers while in the United States and ensure the workers know
their rights and responsibilities under the U.S. immigration laws,
which are all valuable protections to the immigration system, U.S.
employers, U.S. workers, and workers entering the country on H-2 visas.
DHS has determined that reserving 20,000 supplemental H-2B visas
towards the country-specific allocation and inclusion of additional
countries this fiscal year is reasonable given the progressively
increasing use of H-2B visas in recent years among the Northern Central
American and Haitian populations, as noted above. DHS believes these
aspects will encourage U.S. employers that are suffering irreparable
harm or will suffer impending irreparable harm to seek out workers from
such countries, while, at the same time, increase interest among such
nationals seeking a legal pathway for temporary employment in the
United States. DHS also believes its outreach efforts with the
governments of these countries, along with efforts in some of these
countries by USAID to increase access to the H-2B program, support the
decision to provide this allocation of 20,000 visas. USAID has worked
to build government capacity in Northern Central America to facilitate
access to temporary worker visas under the H-2 program. Collaborating
closely with the governments of El Salvador, Guatemala, and Honduras,
USAID has strengthened the capacity of relevant government ministries
to transparently and efficiently match qualified workers to temporary
labor opportunities in the United States. In Fiscal Years 2021, 2022,
and 2023 USAID increased funding to expand capacity building activities
in El Salvador, Guatemala, and Honduras in response to the increased
demand generated by the supplemental allocations of H-2B visas for
Northern Central American nationals included in the FY 2021, FY 2022,
and FY 2023 TFRs. The acceleration of USAID's activities likely helped
increase uptake of H-2B visas issuance under the FY 2021, FY 2022, and
FY 2023 TFRs, as H-2B visa issuances to Salvadorans, Guatemalans and
Hondurans increased significantly over prior years,\146\ and USAID's
assistance helped reduce the average period of time to match qualified
workers from these three countries to requests from U.S. employers--
from 42 days to 14 days in El Salvador, 55 days to 20 days in
Guatemala, and 24 days to 8 days in Honduras.\147\ USAID's programs
also strengthen worker protections by helping crowd out unethical
recruiters and providing labor rights education and resources to
seasonal workers.
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\145\ As noted previously, some consular sections may waive the
in-person interview requirement for H-2B applicants whose prior visa
expired within a specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The authority allowing for waiver of interview of certain
H-2 (temporary agricultural and non-agricultural workers) applicants
is extended through the end of 2023. Certain applicants renewing a
visa in the same classification within 48 months of the prior visa's
expiration are also eligible for interview waiver. DOS, Important
Announcement on Waivers of the Interview Requirement for Certain
Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec.
23, 2022); DOS, Extension of Interview Waivers for Certain
Nonimmigrant Visa Applicants, https://www.state.gov/extension-of-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last
updated Dec. 23, 2022).
\146\ See DOS, Nonimmigrant Visa Issuance Statistics,
Nonimmigrant Visa Issuances by Visa Class and by Nationality,
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Sept. 26,
2023); U.S. Dep't of Homeland Security, U.S. Citizenship and Immigr.
Servs., Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, Issuances for FY 2023 H-
2Bs By Requested Nationality Code.
\147\ See USAID, Additional H-2B Visa Allocations for Northern
Central America and Haiti to Address Irregular Migration, https://
www.usaid.gov/news-information/press-releases/oct-12-2022-
additional-H-2B-visa-allocations-northern-central-america-and-
haiti#:~:text=Collaborating%20closely%20with,eight%20in%20Honduras
(Oct. 12, 2022).
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DOS issued a combined total of approximately 26,630 H-2B visas to
nationals of the Northern Central American countries and Haiti from FY
2015 through FY 2020, an average of approximately 4,400 per year.\148\
In FY 2021, the first year in which supplemental H-2B visas were
reserved for nationals of Northern Central American countries, DOS
issued a combined total of 6,277 H-2B visas to nationals of those
countries.\149\ In FY 2022, DOS issued a combined total of 15,058 H-2B
visas to nationals of Haiti and the Northern Central American
countries.\150\ In FY 2023, DOS issued a combined total of 23,816 H-2B
visas to nationals of Haiti and the Northern Central American
countries.\151\ This increase is likely due in part to the additional
H-2B visas made available to nationals of these countries by the FY
2021, FY 2022, and FY 2023 H-2B supplemental visa temporary final
rules. In addition, based in part on the vital U.S. interest of
promoting sustainable development and the stability of Haiti, in
November 2021, DHS added Haiti to the list of countries whose nationals
are eligible to participate in the H-2A and
[[Page 80419]]
H-2B programs.\152\ Therefore, as previously stated, DHS has determined
that the additional increase in FY 2024 will not only provide U.S.
businesses that have been unable to find qualified and available U.S.
workers with potential workers, but also promote further expansion of
lawful immigration and lawful employment authorization for nationals of
the specified countries.
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\148\ The ``combined total'' includes all H-2B visas and are not
limited to visas issued under supplemental caps. See DOS,
Nonimmigrant Visa Issuance Statistics, Nonimmigrant Visa Issuances
by Visa Class and by Nationality, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html.
\149\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, DOS Issuance Data, queried 10/2022, TRK #10698.
\150\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, DOS Issuance Data, queried 10/2022, TRK #10698.
\151\ DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, Issuances
for FY 2023 H-2Bs By Requested Nationality Code.
\152\ See Identification of Foreign Countries Whose Nationals
Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
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The exemption from the returning worker requirement recognizes the
small, albeit increasing, number of individuals from the three Northern
Central American countries and Haiti, and the small number of
individuals from Colombia, Ecuador, and Costa Rica,\153\ who were
previously granted H-2B visas in recent years. Absent this exemption,
there may be an insufficient number of qualifying workers from these
countries to use the allocated visas. Exempting this population from
the returning worker requirement will increase the ability of workers
from these countries to pursue lawful temporary work in the U.S.,
encourage employers to seek out individuals from these countries, and
maximize the chance of meeting the goal of reaching the full
allocation.
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\153\ During fiscal years 2021 and 2022, the Department of State
issued 74 and 247 H-2B visas respectively to Colombian nationals, 35
and 115 H-2B visas respectively to Ecuadorian nationals, and 204 and
283 H-2B visas respectively to Costa Rican nationals. See
Characteristics of H-2B Nonagricultural Temporary Workers Fiscal
Year 2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (Mar.
10, 2022); Characteristics of H-2B Nonagricultural Temporary Workers
Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023).
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USCIS will stop accepting petitions received under the country-
specific allocation after September 16, 2024. This end date should
provide H-2B employers ample time, should they choose, to petition for,
and bring in, workers under the country-specific allocation. This, in
turn, provides an opportunity for employers to contribute to our
country's efforts to promote and improve safety, security and economic
stability in these countries to help stem the flow of irregular
migration to the United States. Nothing in this rule will limit the
authority of DHS or DOS to deny, revoke, or take any other lawful
action with respect to an H-2B petition or visa application at any time
before or after approval of the H-2B petition or visa application.
E. Business Need Standard--Irreparable Harm and FY 2024 Attestation
To file any H-2B petition under this rule, petitioners must meet
all existing H-2B eligibility requirements, including having an
approved, valid, and unexpired TLC. See 8 CFR 214.2(h)(6) and 20 CFR
part 655, subpart A. The TLC process focuses on establishing whether a
petitioner has a temporary need for workers and whether there are U.S.
workers who are able, willing, qualified, and available to perform the
temporary service or labor, and does not address the harm a petitioner
is facing or will face in the absence of such workers; the attestation
addresses this question. In addition, under this rule, the petitioner
must submit an attestation to USCIS in which the petitioner affirms,
under penalty of perjury, that it meets the business need standard--
that they are suffering irreparable harm or will suffer impending
irreparable harm (that is, permanent and severe financial loss) without
the ability to employ all of the H-2B workers requested on their
petition.\154\ In addition to asserting that it meets the business need
standard, the employer must attest that, by the time of submission of
the petition to USCIS, they have prepared and retained a detailed
written statement describing how the evidence gathered in support of
their petition demonstrates that irreparable harm is occurring or
impending. The employer must also attest that, upon request, it will
provide to DHS and/or DOL all documentary evidence that supports its
claim of irreparable harm, along with the detailed written statement it
prepared by the time of submitting the petition to USCIS, describing
how such evidence demonstrates irreparable harm. The petitioner must
submit the attestation directly to USCIS, together with Form I-129, the
approved and valid TLC,\155\ and any other necessary documentation. As
in the rules implementing prior years' temporary cap increases,
employers will be required to complete the new attestation form which
can be found at: https://www.foreignlaborcert.doleta.gov/form.cfm.\156\
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\154\ An employer may request fewer workers on the H-2B petition
than the number of workers listed on the TLC. See Instructions for
Petition for Nonimmigrant Worker, providing that ``the total number
of workers you request on the petition must not exceed the number of
workers approved by the Department of Labor or Guam Department of
Labor, if required, on the temporary labor certification.''
\155\ Since July 26, 2019, USCIS has been accepting a printed
copy of the electronic one-page ETA-9142B, Final Determination: H-2B
Temporary Labor Certification Approval, as an original, approved
TLC. See Notice of DHS's Requirement of the Temporary Labor
Certification Final Determination Under the H-2B Temporary Worker
Program, 85 FR 13178, 13179 (Mar. 6, 2020).
\156\ The attestation requirement does not apply to workers who
have already been counted under the H-2B statutory caps for fiscal
year 2024. Further, the attestation requirement does not apply to
noncitizens who are exempt from the fiscal year 2024 H-2B statutory
cap, including those who are extending their stay in H-2B status.
Accordingly, petitioners that are filing on behalf of such workers
are not subject to the attestation requirement.
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The irreparable harm standard is the same as in the temporary final
rule for the second half of FY 2022 and the temporary final rule for FY
2023. The irreparable harm standard requires employers to attest that
they are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on the petition filed under this rule.
As noted above, Congress authorized the Secretary of Homeland
Security, in consultation with the Secretary of Labor, to increase the
total number of H-2B visas available ``upon the determination that the
needs of American businesses cannot be satisfied'' with U.S.
workers.\157\ The irreparable harm standard in this rule aligns with
this determination that Congress requires DHS to make before increasing
the number of H-2B visas available to U.S. employers. In particular,
requiring employers to attest that they are suffering irreparable harm
or will suffer impending irreparable harm without the ability to employ
all of the requested H-2B workers is directly relevant to the needs of
the business--if an employer is suffering or will suffer irreparable
harm, then their needs are not being satisfied. Because the authority
to increase the statutory cap is tied to the needs of businesses, the
Departments think it is reasonable for employers to attest that they
are suffering irreparable harm or that they will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on their petition. If such employers are unable to attest to
such harm and retain and produce (upon request) documentation of that
harm, it calls into question whether the need set forth in this rule
cannot in fact be satisfied without the ability to employ H-2B workers.
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\157\ See section 303 of Public Law 117-328, as extended by
Public Law 118-15.
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As in the FY 2023 rule, this rule also requires an employer to
attest that it has prepared a detailed written statement describing (i)
how the employer's business is suffering irreparable harm or will
suffer impending irreparable harm without the ability to employ all H-
2B workers requested on the I-129 petition, and (ii) how each type of
evidence
[[Page 80420]]
relied upon by the employer demonstrates the applicable irreparable
harm. The employer will not submit this detailed written statement to
DHS with its petition for supplemental visas, but will attest on the
attestation form to having prepared a detailed written statement. The
detailed written statement must be provided to DHS and/or DOL upon
request in the event of an audit or during the course of an
investigation. This requirement was first introduced in the FY 2023 TFR
to provide additional clarity informed by the Departments' experiences
in assessing the irreparable harm standard in previous years.
As explained in the FY 2023 TFR, the attestation that irreparable
harm is occurring or is impending cannot be based on a speculative
analysis that permanent or severe financial loss ``may occur'' or ``is
likely to occur.'' Rather, as of the time of submission to DHS,
employers must have concrete evidence establishing that severe and
permanent financial loss is occurring, with the scope and severity of
harm clearly articulable, or that severe and permanent financial loss
will occur in the near future without access to the supplemental visas.
Even if no irreparable harm ultimately occurs because the employer is
approved for supplemental visas under this rule, the employer must be
able to articulate how permanent and severe financial loss was
impending at the time of filing. Additionally, in DOL's experience,
employers sometimes do not retain the documentation they specifically
attested they would retain, or will not or cannot explain how this
documentation demonstrates the relevant irreparable harm to which they
attested, which indicates that some of the employers seeking to benefit
from hiring H-2B workers are not thoughtfully considering, or
considering at all, whether their business needs qualify them for
supplemental H-2B visas under these rules.
Additionally, the Departments continue to believe that the written
statement is necessary in the case of an audit or investigation to
explain, in detail, the employer's reasoning as to why irreparable harm
was occurring or impending without the ability to employ H-2B workers,
and how the evidence supports the employer's reasoning. In audits and
investigations, some employers have provided hundreds of pages of
evidence without any explanation as to how this evidence demonstrates
irreparable harm, leaving DOL or DHS to determine how a voluminous
compilation of complex and, sometimes, seemingly unrelated documents
demonstrates irreparable harm without any understanding of the
employer's intent when providing the documents. A detailed, thoughtful
explanation from the employer will clarify the purpose of these
documents and allow the employer to clearly make their case that the
business was experiencing irreparable harm or would experience
impending irreparable harm at the time of petitioning for supplemental
visas.
As such, the Departments believe that it is prudent to require
employers to identify how they are suffering irreparable harm (that is,
permanent or severe financial loss), or will suffer impending
irreparable harm, and how the evidence they will maintain shows that
harm was occurring or impending, at the time they petition for H-2B
visas under this rule. The written statement should identify, in
detail, the severe and permanent financial loss that is occurring or
will occur in the near future without access to the supplemental visas
and should describe how the information contained in the documentary
evidence demonstrates this severe and permanent financial loss. A
written statement explaining that no irreparable harm occurred because
the employer was approved for supplemental H-2B visas is insufficient;
if no irreparable harm actually occurred, the employer must be able to
show that irreparable harm was impending at the time of the petition's
filing. Supporting evidence of the employer's irreparable harm (either
occurring or impending) maintained and discussed in the detailed
written statement may include, but is not limited to, the following
types of documentation:
(1) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss due to the inability to
meet financial or existing contractual obligations because they were
unable to employ H-2B workers, including evidence of contracts,
reservations, orders, or other business arrangements that have been or
would be cancelled, and evidence demonstrating an inability to pay
debts/bills;
(2) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss, as compared to prior
years, such as financial statements (including profit/loss statements)
comparing the employer's period of need to prior years; bank
statements, tax returns, or other documents showing evidence of current
and past financial condition; and relevant tax records, employment
records, or other similar documents showing hours worked and payroll
comparisons from prior years to the current year;
(3) Evidence showing the number of workers needed in the previous
three seasons (FY 2021, 2022, and 2023) to meet the employer's need as
compared to those currently employed or expected to be employed at the
beginning of the start date of need. Such evidence must indicate the
dates of their employment, and their hours worked (for example, payroll
records) and evidence showing the number of H-2B workers it claims are
needed, and the workers' actual dates of employment and hours worked;
and/or
(4) Evidence that the petitioner is reliant on obtaining a certain
number of workers to operate, based on the nature and size of the
business, such as documentation showing the number of workers it has
needed to maintain its operations in the past, or will in the near
future need, including but not limited to: a detailed business plan,
copies of purchase orders or other requests for good and services, or
other reliable forecast of an impending need for workers.
These examples are not exhaustive, nor will they necessarily
establish that the business meets the irreparable harm standard;
petitioners may retain other types of evidence they believe will
satisfy these standards. Such evidence must be maintained and provided,
with the written statement, to DOL and/or DHS upon request.
While the employer will not submit the detailed written statement
nor the supporting evidence to DHS at the time of filing a petition for
H-2B visas under this rule, the Departments emphasize that the employer
must prepare the detailed written statement and compile the evidence at
the time of filing. The employer must complete the analysis as to
whether the employer is experiencing irreparable harm or will
experience impending irreparable harm at the time the employer
petitions for supplemental visas using evidence available at this time.
In the interest of efficiency, the Departments do not require the
submission of this statement to DHS at the time of filing the petition.
Instead, the employer must attest that it has prepared the detailed
written statement.
The attestation form will serve as prima facie initial evidence to
DHS that the petitioner's business is suffering irreparable harm or
will suffer impending irreparable harm. USCIS may reject in accordance
with 8 CFR 103.2(a)(7)(ii) or deny in accordance with 8 CFR
103.2(b)(8)(ii), as applicable, any petition requesting H-2B workers
under this FY 2024 supplemental cap that is lacking the requisite
attestation
[[Page 80421]]
form. Although this regulation does not require submission of evidence
and/or a detailed written statement at the time of filing of the
petition, other than an attestation, the employer must have such
evidence and the accompanying detailed written statement on hand and
ready to present to DHS and/or DOL at any time starting with the date
of filing the I-129 petition, through the prescribed document retention
period discussed below.
As with petitions filed under the FY 2021, FY 2022, and FY 2023
Supplemental TFRs, the Departments intend to select a significant
number of petitions for audit examination to verify compliance with
program requirements, including the irreparable harm standard and
recruitment provisions implemented through this rule. The Departments
may consider failure to provide evidence demonstrating irreparable
harm, to prepare or provide the detailed written statement explaining
irreparable harm, or to comply with the audit process to be a
substantial violation resulting in an adverse agency action on the
employer, including assessment of a civil money penalty, revocation of
the petition and/or TLC, or program debarment. Similarly, failure to
cooperate with any compliance review, evaluation, verification, or
inspection conducted by DHS and/or DOL as required by 8 CFR
214.2(h)(6)(xiv)(B)(2)(v) and (vi) may constitute a violation of the
terms and conditions of an approved petition and lead to petition
revocation under 8 CFR 214.2(h)(11)(iii)(A)(3).
The attestation submitted to USCIS will also state that the
employer:
(1) meets all other eligibility criteria for the available visas,
including the returning worker requirement, unless exempt because the
H-2B worker is a national of El Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica who is counted against the 20,000
visas reserved for such workers;
(2) will comply with all assurances, obligations, and conditions of
employment set forth in the Application for Temporary Employment
Certification (Form ETA 9142B and appendices) certified by DOL for the
job opportunity (which serves as the TLC);
(3) will conduct additional recruitment of U.S. workers in
accordance with the requirements of this rule and discussed further
below; and
(4) will document and retain evidence of such compliance.
Because petitioners will submit the attestation to USCIS as initial
evidence with Form I-129, DHS considers the attestation to be evidence
that is incorporated into and a part of the petition consistent with 8
CFR 103.2(b)(1). Accordingly, USCIS may deny or revoke, as applicable,
a petition based on or related to statements made in the attestation,
including but not limited to the following grounds: (1) the employer
failed to demonstrate employment of all of the requested workers is
necessary under the appropriate business need standard; or (2) the
employer failed to demonstrate that it requested and/or instructed that
each worker petitioned for is a returning worker, or a national of one
of the specified countries, as required by this rule. The petitioner
may appeal any denial or revocation on such basis, however, under 8 CFR
part 103, consistent with DHS regulations and existing USCIS
procedures.
It is the view of the Secretaries of Homeland Security and Labor
that requiring a post-TLC attestation to USCIS is the most practical
approach to applying the eligibility requirements of this rule without
causing undue delays in the filing or adjudication processes for those
employers with start dates in the first half of the fiscal year, many
of whom will have already begun or completed the TLC application
process. The Departments have determined that, if such employers were
required to submit the attestation form to DOL before filing a petition
with DHS, the attendant delays would negatively impact the ability of
American businesses to timely get the help that they need given TLC
processing timeframes. For consistency and to avoid confusion, the
Departments will also maintain the post-TLC attestation process for
employers with start dates in the second half of the fiscal year that
seek supplemental H-2B visas under this rule. This approach, in
conjunction with additional integrity safeguards, has been used
consistently in prior supplemental H-2B temporary final rules, and the
Departments will continue to monitor its effectiveness and sufficiency.
As in prior years, all employers under this rule are required to
retain documentation, which the employer must provide upon request by
DHS and/or DOL, supporting the new attestations regarding (1) the
irreparable harm standard; (2) the returning worker requirement, or,
alternatively, documentation supporting that the H-2B worker(s)
requested is a national of one of the specified countries who is
counted against the 20,000 country-specific allocation (which may be
satisfied by the separate Form I-129 that employers are required to
file for such workers in accordance with this rule); and (3) a
recruitment report for any additional recruitment required under this
rule for a period of 3 years. See 20 CFR 655.65. Although the employer
must have such documentation on hand at the time it files the petition,
the Departments do not believe it is necessary or efficient for all
employers to submit such documentation to USCIS at the time of filing
the petition. However, as noted above, the Departments will employ
program integrity measures, including additional scrutiny by DHS of
employers that have committed labor law violations in the H-2B program,
and continue to conduct audits, investigations, and/or post-
adjudication compliance reviews on a significant number of H-2B
petitions. As part of that process, USCIS may issue a request for
additional evidence, a notice of intent to revoke, or a revocation
notice, based on the review of such documentation, see 8 CFR 103.2(b)
and 8 CFR 214.2(h)(11), and DOL's OFLC and WHD will be able to review
this documentation and enforce the attestations during the course of an
audit examination or investigation.
In accordance with the attestation requirements, under which
petitioners attest that they meet the irreparable harm standard, that
they are seeking to employ only returning workers (unless exempt as
described above), and that they meet the document retention
requirements at 20 CFR 655.65, petitioners must retain documents and
records fulfilling their responsibility to demonstrate compliance with
this rule for 3 years from the date the TLC was approved, and must
provide the documents and records upon the request of DHS and/or DOL.
With regard to the irreparable harm standard, employers attesting that
they are suffering irreparable harm must be able to provide concrete
evidence establishing severe and permanent financial loss that is
occurring; the scope and severity of the harm must be clearly
articulable. Employers attesting that they will suffer impending
irreparable harm must be able to demonstrate that severe and permanent
financial loss will occur in the near future without access to the
supplemental visas. It will not be enough to provide evidence
suggesting that such harm may or is likely to occur; rather, the
documentary evidence must show that impending harm is occurring or will
occur and document the form of such harm. Examples of possible types of
evidence to be maintained are listed earlier in this section.
When a petition is selected for audit examination, or
investigation, DHS and/or DOL will review all evidence
[[Page 80422]]
available to it to confirm that the petitioner properly attested to
DHS, at the time of filing the petition, that their business was
suffering irreparable harm or would suffer impending irreparable harm,
and that they petitioned for and employed only returning workers,
unless the H-2B worker is a national of one of the specific countries
counted towards the 20,000 country-specific allocation, among other
attestations. If DHS subsequently finds that the evidence does not
support the employer's attestations, DHS may deny or, if the petition
has already been approved, revoke the petition at any time consistent
with existing regulatory authorities. DHS may also, or alternatively,
refer the petitioner to DOL for further investigation. In addition, DOL
may independently take enforcement action, including by, among other
things, debarring the petitioner from the H-2B program for not less
than one year or more than five years from the date of the final agency
decision, which also disqualifies the debarred party from filing any
labor certification applications or labor condition applications with
DOL for the same period set forth in the final debarment decision. See,
e.g., 20 CFR 655.73; 29 CFR 503.20, 503.24.\158\
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\158\ Pursuant to the statutory provisions governing enforcement
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a
violation exists under the H-2B program where there has been a
willful misrepresentation of a material fact in the petition or a
substantial failure to meet any of the terms and conditions of the
petition. A substantial failure is a willful failure to comply that
constitutes a significant deviation from the terms and conditions.
See, e.g., INA section 214(c)(14)(D), 8 U.S.C. 1184(c)(14)(D); see
also 29 CFR 503.19.
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Evidence reflecting a preference for hiring H-2B workers over U.S.
workers may warrant an investigation by additional agencies enforcing
employment and labor laws, such as the Immigrant and Employee Rights
Section (IER) of the Department of Justice's Civil Rights Division. See
INA section 274B, 8 U.S.C. 1324b (prohibiting certain types of
employment discrimination based on citizenship status or national
origin). Moreover, DHS and DOL may refer potential discrimination to
IER pursuant to applicable interagency agreements. See IER,
Partnerships, https://www.justice.gov/crt/partnerships (last visited
Sept. 26, 2023). In addition, if members of the public have information
that a participating employer may be abusing this program, DHS invites
them to notify USCIS by completing the online fraud tip form, https://www.uscis.gov/report-fraud/uscis-tip-form (last visited Sept. 26,
2023).\159\
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\159\ DHS may publicly disclose information regarding the H-2B
program consistent with applicable law and regulations. For
information about DHS disclosure of information contained in a
system of records, see https://www.dhs.gov/system-records-notices-sorns. Additional general information about DHS privacy policy can
be accessed at https://www.dhs.gov/policy.
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DHS, in exercising its statutory authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 303
of the FY 2023 Omnibus, as extended by Public Law 118-15, is
responsible for adjudicating eligibility for H-2B classification. As in
all cases, the burden rests with the petitioner to establish
eligibility by a preponderance of the evidence. INA section 291, 8
U.S.C. 1361. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010).
Accordingly, as noted above, where the petition lacks initial evidence,
such as a properly completed attestation, USCIS may, as applicable,
reject the petition in accordance with 8 CFR 103.2(a)(7)(ii) or deny
the petition in accordance with 8 CFR 103.2(b)(8)(ii). Further, where
the initial evidence submitted with the petition contains
inconsistencies or is inconsistent with other evidence in the petition
and the underlying TLC, USCIS may issue a Request for Evidence, Notice
of Intent to Deny, or Denial in accordance with 8 CFR 103.2(b)(8). In
addition, where it is determined that an H-2B petition filed pursuant
to the FY 2023 Omnibus, as extended by Public Law 118-15, was granted
erroneously, the H-2B petition approval may be revoked. See 8 CFR
214.2(h)(11).
Because of the particular circumstances of this regulation, and
because the attestation and other requirements of this rule play a
vital role in achieving the purposes of this rule, DHS and DOL intend
that the attestation requirement, DOL procedures, and other aspects of
this rule be non-severable from the remainder of the rule, including
the increase in the numerical allocations.\160\ Thus, if the
attestation requirement or any other part of this rule is enjoined or
held invalid, the Departments intend for the remainder of the rule,
with the exception of the retention requirements being codified in 20
CFR 655.65, to cease operation in the relevant jurisdiction, without
prejudice to workers already present in the United States under this
regulation, as consistent with law.
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\160\ The Departments' intentions with respect to non-
severability extend to all features of this rule other than the
portability provision, which is described in the section below.
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F. Portability
As an additional option for employers that cannot find U.S.
workers, and as an additional flexibility for H-2B employees seeking to
begin work with a new H-2B employer, this rule allows petitioners to
immediately employ certain H-2B workers who are present in the United
States in H-2B status without waiting for approval of the H-2B
petition, generally for a period of up to 60 days. Such workers must be
beneficiaries of a timely, non-frivolous H-2B petition requesting an
extension of stay received on or after January 25, 2024, but no later
than 1 year after that date.\161\ In addition, such workers must have
been lawfully admitted to the United States and have not worked without
authorization subsequent to such lawful admission. Additionally,
petitioners may immediately employ individuals who are beneficiaries of
a non-frivolous H-2B petition requesting an extension of the worker's
stay that is pending as of January 25, 2024 without waiting for
approval of the H-2B petition. To be eligible for portability,
employers must have received an approved TLC demonstrating that they
have completed a test of the U.S. labor market, and that DOL determined
that there were no qualified U.S. workers available to fill these
temporary positions. DHS is making this portability available for an
additional one-year period in order to provide greater certainty for H-
2B employers and workers.\162\
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\161\ Individuals who are the beneficiaries of petitions filed
on the basis of 8 CFR 214.1(c)(4) are not eligible to port to a new
employer under 8 CFR 214.2(h)(31).
\162\ On September 20, 2023, DHS issued a Modernizing H-2
Program Requirements, Oversight, and Worker Protections Notice of
Proposed Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public
comment period that ends on November 20, 2023. In that NPRM, DHS
proposed to extend portability to H-2A and H-2B workers on a
permanent basis. The Department's proposal does not interfere with
the portability provision of this rule, however, should DHS publish
a final rule making H-2 portability permanent, any such provision
will not expire on a specific date, unlike the portability provision
made effective by this temporary final rule.
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The portability provision at new 8 CFR 214.2(h)(31) is
substantively the same as the portability provision offered in the FY
2023 H-2B supplemental visa temporary final rule, which was codified at
8 CFR 214.2(h)(29), and will begin upon the expiration of that
provision. See new 8 CFR 214.2(h)(31). Additionally, the provision is
similar to temporary flexibilities that DHS has used previously to
improve employer
[[Page 80423]]
access to noncitizen workers during the COVID-19 pandemic.\163\
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\163\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers 86 FR 28198 (May 25, 2021). On
May 14, 2020, DHS published a temporary final rule in the Federal
Register to amend certain H-2B requirements to help H-2B petitioners
seeking workers to perform temporary nonagricultural services or
labor essential to the U.S. food supply chain. Temporary Changes to
Requirements Affecting H-2B Nonimmigrants Due to the COVID-19
National Emergency, 85 FR 28843 (May 14, 2020). In addition, on
April 20, 2020, DHS issued a temporary final rule which, among other
flexibilities, allowed H-2A workers to change employers and begin
work before USCIS approved the new H-2A petition for the new
employer. Temporary Changes to Requirements Affecting H-2A
Nonimmigrants Due to the COVID-19 National Emergency, 85 FR 21739
(April 20, 2020). DHS has subsequently extended that portability
provision for H-2A workers through two additional temporary final
rules, on August 20, 2020, and December 18, 2020, which have been
effective for H-2A petitions that were received on or after August
19, 2020 through December 17, 2020, and on or after December 18,
2020 through June 16, 2021, respectively. Temporary Changes to
Requirements Affecting H-2A Nonimmigrants Due To the COVID-19
National Emergency: Partial Extension of Certain Flexibilities, 85
FR 51304 (August 20, 2020) and Temporary Changes to Requirements
Affecting H-2A Nonimmigrants due to the COVID-19 National Emergency:
Extension of Certain Flexibilities, 85 FR 82291 (December 18, 2020).
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The employment authorization provided under this provision would
end 15 days after USCIS denies the H-2B petition or such petition is
withdrawn. This 15-day period of employment following an H-2B petition
denial or withdrawal is consistent with prior H-2B supplemental cap
temporary final rules, as well as the 15-day period of employment
following petition denial under existing DHS regulations at 8 CFR
274a.12(b)(21) for certain E-Verify participants to employ H-2A
workers. As in the prior temporary final rules, the 15-day period is
intended to account for the passage of time between USCIS denial of the
H-2B petition and the petitioner receiving notice of such denial.\164\
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\164\ A similar portability provision exists in DHS regulations
related to H-1B nonimmigrant workers, but does not include a 15-day
period. See 8 CFR 214.2(h)(2)(i)(H)(2).
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DHS is strongly committed not only to protecting U.S. workers and
helping U.S. businesses receive the documented workers authorized to
perform temporary nonagricultural services or labor that they need, but
also to protecting the rights and interests of H-2B workers (consistent
with Executive Order 13563 and in particular its reference to
``equity,'' ``fairness,'' and ``human dignity''). In the FY 2020 DHS
Further Consolidated Appropriations Act (Pub. L. 116-94), Congress
directed DHS to provide options to improve the H-2A and H-2B visa
programs, to include options that would protect worker rights.\165\ DHS
has determined that providing H-2B nonimmigrant workers with the
flexibility of being able to begin work with a new H-2B petitioner
immediately and avoid a potential job loss or loss of income while the
new H-2B petition is pending, provides some certainty to H-2B workers
who may have found themselves in situations that warrant a change in
employers.\166\ This flexibility also provides an alternative to H-2B
petitioners who have not been able to find U.S. workers and who have
not been able to obtain H-2B workers subject to the statutory or
supplemental caps who have the skills to perform the job duties. In
that sense as well, it is equitable and fair.
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\165\ The Joint Explanatory Statement accompanying the Fiscal
Year (FY) 2020 Department of Homeland Security (DHS) Further
Consolidated Appropriations Act (Pub. L. 116-94) states, ``Not later
than 120 days after the date of enactment of this Act, DHS, the
Department of Labor, the Department of State, and the United States
Digital Service are directed to report on options to improve the
execution of the H-2A and H-2B visa programs, including: processing
efficiencies; combatting human trafficking; protecting worker
rights; and reducing employer burden, to include the disadvantages
imposed on such employers due to the current semiannual distribution
of H-2B visas on October 1 and April 1 of each fiscal year. USCIS is
encouraged to leverage prior year materials relating to the issuance
of additional H-2B visas, to include previous temporary final rules,
to improve processing efficiencies.''
\166\ The White House, The National Action Plan to Combat Human
Trafficking, Priority Action 1.5.3, at p. 25 (Dec 2021); The White
House, The National Action Plan to Combat Human Trafficking,
Priority Action 1.6.3, at p. 20-21 (2020) (Stating that ``[w]orkers
sometimes find themselves in abusive work situations, but because
their immigration status is dependent on continued employment with
the employer in whose name the visa has been issued, workers may be
left with few options to leave that situation.''). By providing the
option of changing employers without risking job loss or a loss of
income through the publication of this rule, DHS believes that H-2B
workers may be more likely to leave abusive work situations, and
thereby are afforded greater worker protections.
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G. Compliance With Employment-Related Laws
In recent supplemental cap TFRs issued during the COVID-19 public
health emergency, the Departments have specifically required
petitioners to attest that they will comply with all Federal, State,
and local employment-related laws and regulations, including, where
applicable, with laws related to COVID-19 worker protections and any
right to time off or paid time off for COVID-19 vaccination, or to
reimbursement for travel to and from the nearest vaccination site. See,
e.g., 8 CFR 214.2(h)(29)(iii)(B). In addition, the Departments have
required petitioners to attest that they would notify any H-2B workers
approved under the supplemental cap, in a language understood by the
worker as necessary or reasonable, that all persons in the United
States, including nonimmigrants, have equal access to COVID-19 vaccines
and vaccine distribution sites. As the public health emergency is no
longer in effect,\167\ the Departments no longer believe it is
necessary to include the requirements that are specific to COVID-19.
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\167\ See HHS, Fact Sheet: End of the COVID-19 Public Health
Emergency (May 9, 2023), https://www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-public-health-emergency.html.
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In addition, after removing the language related to COVID-19, the
Departments believe that the remaining attestation from these prior
rules would overlap with the general requirement found at 20 CFR
655.20(z) and 29 CFR 503.16(z) that all employers, as a condition of
their labor certification, comply with employment-related laws
including health and safety laws. To avoid confusion the Departments
are also removing this attestation from the TFR. While there is no
additional attestation with respect to H-2B petitioners that do not
avail themselves of the supplemental H-2B visas made available under
this rule, the Departments remind all H-2B employers that they must
comply with all Federal, State, and local employment-related laws and
regulations, including health and safety laws. To the extent that
Federal, State, or local laws and regulations relating to COVID-19
remain in effect, the Departments note that an employer remains
obligated to comply with them. Failure to comply with such laws and
regulations would be contrary to the attestation 7 on ETA 9142B--
Appendix B, and therefore may be a basis for DHS to revoke the petition
under 8 CFR 214.2(h)(11)(iii)(A)(3) for violating terms and conditions
of the approved petition.\168\
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\168\ During the period of employment specified on the TLC, the
employer must comply with all applicable Federal, State and local
employment-related laws and regulations, including health and safety
laws. 20 CFR 655.20(z). By submitting the TLC as evidence supporting
the petition, it is incorporated into and considered part of the
benefit request under 8 CFR 103.2(b)(1).
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H. DHS Petition Procedures
To petition for H-2B workers under the supplemental allocations in
this rule, the petitioner must file a Form I-129 at the USCIS Texas
Service Center \169\ in accordance with applicable regulations and form
instructions, along
[[Page 80424]]
with an unexpired TLC and the attestation Form ETA-9142-B-CAA-8.
Petitions filed for supplemental allocations under this rule at any
location other than the USCIS Texas Service Center will be rejected and
the filing fees will be returned.\170\ For all petitions filed under
this rule and the H-2B program, generally, employers must establish,
among other requirements, that insufficient qualified U.S. workers are
available to fill the petitioning H-2B employer's job opportunity and
that the foreign worker's employment in the job opportunity will not
adversely affect the wages or working conditions of similarly-employed
U.S. workers. INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR
214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1. To meet this standard of
protection for U.S. workers and, in order to be eligible for additional
visas under this rule, employers must have applied for and received a
valid TLC in accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20
CFR part 655, subpart A. Under DOL's H-2B regulations, TLCs are valid
only for the period of employment certified by DOL and expire on the
last day of authorized employment. 20 CFR 655.55(a).
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\169\ This is a different filing location from the FY 2023 TFR.
\170\ On Nov. 1, 2023, USCIS changed the service center filing
location for all petitioners filing Forms I-129, Petition for a
Nonimmigrant Worker, to request H-2B workers. Those petitions should
now be filed at the Texas Service Center. Although USCIS provided a
60-day grace period for H-2B petitions that are filed at the
California and Vermont Service Centers during which they could still
be accepted (through Dec. 31, 2023), this grace period does not
apply to petitions filed for supplemental allocations under this
rule.
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In order to have a valid TLC, therefore, the employment start date
on the employer's H-2B petition must not be different from the
employment start date certified by DOL on the TLC. See 8 CFR
214.2(h)(6)(iv)(D). Under generally applicable DHS regulations, the
only exception to this requirement applies when an employer files an
amended H-2B petition, accompanied by a copy of the previously approved
TLC and a copy of the initial visa petition approval notice, at a later
date to substitute workers as set forth under 8 CFR
214.2(h)(6)(viii)(B). This rule also requires additional recruitment
for certain petitioners, as discussed below.
All H-2B petitions must state the nationality of all the requested
H-2B workers, whether named or unnamed, even if there are beneficiaries
from more than one country. See 8 CFR 214.2(h)(2)(iii). If filing
multiple Forms I-129 based on the same TLC (for instance, one
requesting returning workers and another requesting workers under the
country-specific allocation), each H-2B petition must include a copy of
the TLC and reference all previously-filed or concurrently-filed
petitions associated with the same TLC. The total number of requested
workers may not exceed the total number of workers indicated on the
approved TLC.
Petitioners seeking H-2B classification for nationals under the
20,000 country-specific visa allocation that are exempt from the
returning worker provision must file a separate Form I-129 for those
nationals only. See new 8 CFR 214.2(h)(6)(xiv). In this regard, a
petition must be filed with a single Form ETA-9142-B-CAA-8 that clearly
indicates that the petitioner is only requesting nationals from El
Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica
who are exempt from the returning worker requirement. Specifically, if
the petitioner checks the first box of Form ETA-9142-B-CAA-8, then the
petition accompanying that form must be filed only on behalf of
nationals of one or more of these and not other countries. In such a
case, if the Form I-129 petition is requesting beneficiaries from
countries other than one of these countries, then USCIS may reject it
or issue a request for evidence, notice of intent to deny, or denial,
or, in the case of a non-frivolous petition, a partial approval
limiting the petition to the number of beneficiaries who are from
Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa
Rica. Requiring the filing of separate petitions to request returning
workers and to request workers who are nationals of the specified
countries is necessary to ensure the operational capability to properly
calculate and manage the respective additional cap allocations and to
ensure that all corresponding visa issuances are limited to qualifying
applicants, particularly when such petitions request unnamed
beneficiaries or are relied upon for subsequent requests to substitute
beneficiaries in accordance with 8 CFR 214.2(h)(6)(viii).
The attestations must be filed on Form ETA-9142-B-CAA-8,
Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers
Under Section 303 of Division O of the Consolidated Appropriations Act,
2023, Public Law 117-328, as extended by sections 101(6) and 106 of
Division A of the Continuing Appropriations Act, 2024 and Other
Extensions Act, Public Law 118-15. See 20 CFR 655.64. Petitioners are
required to retain a copy of such attestations and all supporting
evidence for 3 years from the date the associated TLC was approved,
consistent with 20 CFR 655.56 and 29 CFR 503.17. See 20 CFR 655.65.
Petitions submitted to DHS pursuant to Public Law 118-15, which
extended the FY 2023 Omnibus, will be processed in the order in which
they were received within the relevant supplemental allocation, and
pursuant to processes parallel to those in place for when numerical
limitations are reached under INA section 214(g)(1)(B) or (g)(10), 8
U.S.C. 1184(g)(1)(B) or (g)(10).
All filings under the supplemental allocations in this rule must be
filed at the USCIS Texas Service Center. USCIS will reject petitions
filed under the supplemental allocations in this rule at any location
other than the USCIS Texas Service Center and will return the filing
fees for any such petition.
Immediately upon publication of the rule, but no earlier than that
date, USCIS will begin accepting returning worker H-2B petitions
requesting dates of need starting on or before March 31, 2024, as well
as H-2B petitions for workers under the country-specific allocation
with dates of need in the first half of FY 2024. Beginning no earlier
than 15 days after the second half statutory cap is reached, USCIS will
begin accepting returning worker H-2B petitions requesting work to
begin on or after April 1, 2024, through May 14, 2024, as well as H-2B
petitions for workers under the country-specific allocation with dates
of need on or after April 1, 2024 through September 30, 2024. Finally,
beginning no earlier than 45 days after the second half statutory cap
is reached, USCIS will begin accepting returning worker H-2B petitions
requesting work to begin on or after May 15 through September 30, 2024.
USCIS will reject any returning worker petition that is received
after September 16, 2024, or after the applicable numerical limitation
has been reached. DHS believes that 15 days from the end of the fiscal
year is the minimum time needed for petitions to be adjudicated,
although USCIS cannot guarantee the time period will be sufficient in
all cases. Therefore, even if the country-specific allocation and
second half supplemental allocations provided in this rule have not yet
been reached, USCIS will stop accepting petitions under those
allocations that are received after September 16, 2024. See new 8 CFR
214.2(h)(6)(xiv)(C). Such petitions will be rejected and the filing
fees will be returned. Petitioners may choose to request premium
processing of their petitions under 8 CFR 106.4, which allows for
expedited processing for an additional fee.
Based on the time-limited authority granted to DHS by Public Law
118-15, on the same terms as section 303 of the
[[Page 80425]]
FY 2023 Omnibus, DHS is notifying the public that USCIS cannot approve
petitions seeking H-2B workers under this rule on or after October 1,
2024. See new 8 CFR 214.2(h)(6)(xiv)(C). Petitions pending with USCIS
that are not approved before October 1, 2024 will be denied and any
fees will not be refunded. See new 8 CFR 214.2(h)(6)(xiv)(C).
I. DOL Procedures
As noted above, all employers are required to have an approved and
valid TLC from DOL in order to file a Form I-129 petition with DHS. See
8 CFR 214.2(h)(6)(iv)(A) and (D). The standards and procedures
governing the submission and processing of Applications for Temporary
Employment Certification for employers seeking to hire H-2B workers are
set forth in 20 CFR part 655, subpart A. An employer that seeks to hire
H-2B workers must request a TLC in compliance with the application
filing requirements set forth in 20 CFR 655.15 and meet all the
requirements of 20 CFR part 655, subpart A, to obtain a valid TLC,
including the criteria for certification set forth in 20 CFR 655.51.
See 20 CFR 655.64(a) and 655.50(b). Employers with an approved TLC have
conducted recruitment, as set forth in 20 CFR 655.40 through 655.48, to
determine whether U.S. workers are qualified and available to perform
the work for which employers sought H-2B workers.
The H-2B regulations require that, among other things, an employer
seeking to hire H-2B workers in a non-emergency situation must file a
completed Application for Temporary Employment Certification with the
National Processing Center (NPC) designated by the OFLC Administrator
no more than 90 calendar days and no fewer than 75 calendar days before
the employer's date of need (i.e., start date for the work). See 20 CFR
655.15.
Emergency Procedures
Under 20 CFR 655.17, an employer may request a waiver of the time
period(s) for filing an Application for Temporary Employment
Certification based on ``good and substantial'' cause, provided that
the employer has sufficient time to thoroughly test the domestic labor
market on an expedited basis and the OFLC certifying officer (CO) has
sufficient time to make a final determination as required by the
regulation. To rely on this provision, as the Departments explained in
the 2015 H-2B Interim Final Rule, the employer must provide the OFLC CO
with detailed information describing the ``good and substantial cause''
necessitating the waiver. Such cause may include the substantial loss
of U.S. workers due to Acts of God, or a similar unforeseeable human-
made catastrophic event that is wholly outside the employer's control,
unforeseeable changes in market conditions, or pandemic health issues.
Thus, to ensure an adequate test of the domestic labor market and to
protect the integrity of the H-2B program, the Departments clearly
intended that use of emergency procedures must be narrowly construed
and permitted in extraordinary and unforeseeable catastrophic
circumstances that have a direct impact on the employer's need for the
specific services or labor to be performed. Even under the existing H-
2B statutory visa cap structure, DOL considers USCIS' announcement(s)
that the statutory cap(s) on H-2B visas has been reached, which may
occur with regularity every six months depending on H-2B visa need, as
foreseeable, and therefore not within the meaning of ``good and
substantial cause'' that would justify a request for emergency
procedures. Accordingly, employers cannot rely solely on the
supplemental H-2B visas made available through this rule as good and
substantial cause to use emergency procedures under 20 CFR 655.17.
Additional Recruitment
In addition to the recruitment already conducted in connection with
a valid TLC, to ensure the recruitment has not become stale, employers
that wish to obtain visas for their workers under 8 CFR
214.2(h)(6)(xiv), and who file an I-129 petition 30 or more days after
the certified start date of work on the TLC must conduct additional
recruitment for U.S. workers. As noted in the 2015 H-2B Interim Final
Rule, U.S. workers seeking employment in temporary nonagricultural jobs
typically do not search for work months in advance and cannot make
commitments about their availability for employment far in advance of
the work start date. See 80 FR 24041, 24061, 24071. Given that the
temporary labor certification process generally begins 75 to 90 days in
advance of the employer's start date of work, employer recruitment
efforts typically occur between 40 and 60 days before that date with an
obligation to provide employment to any qualified U.S. worker who
applies until 21 days before the date of need. Therefore, employers
with TLCs containing a start date of work on October 1, 2023, for
example, likely conducted their positive recruitment beginning around
late-July and ending around mid-August 2023, and continued to consider
U.S. worker applicants and referrals only until September 10, 2023.
In order to provide U.S. workers a realistic opportunity to pursue
jobs for which employers will be seeking foreign workers under this
rule, the Departments have determined that if employers file an I-129
petition 30 or more days after their certified start dates of work, as
shown on its approved Form ETA-9142B, Final Determination: H-2B
Temporary Labor Certification Approval, they have not conducted
recruitment recently enough for the DOL to reasonably conclude that
there are currently an insufficient number of U.S. workers who are
qualified, willing, and available to perform the work absent taking
additional, positive recruitment steps. As noted in the FY 2022 second
half H-2B supplemental cap TFR, the Departments determined that this
30-day requirement is consistent with provisions contained in previous
TFRs and better aligns with the goal of affording workers an adequate
opportunity to apply for jobs closer to when they tend to search for
temporary employment, as explained in the 2015 H-2B Interim Final Rule,
which found that U.S. applicants applying for temporary positions
typically offered by H-2B employers are often not seeking job
opportunities, or making informed decisions about such work, several
months in advance. See 80 FR 24041, 24071; 87 FR 30334, 30353-54. The
Departments continued to use this 30-day requirement in the FY 2023 H-
2B supplemental cap TFR based on the rationale provided in the FY 2022
second half H-2B supplemental cap TFR. See 87 FR 76816, 76842-76843.
The Departments have determined that this requirement is necessary to
provide U.S. workers an opportunity to pursue jobs for which employers
are seeking supplemental visas.
An employer that files an I-129 petition under 8 CFR
214.2(h)(6)(xiv) fewer than 30 days after the certified start date of
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
8 but is not required to conduct additional recruitment for U.S.
workers beyond the recruitment already conducted as a condition of
certification. Only those employers with still-valid TLCs with a
certified start date of work that is 30 or more days before the date
they file a petition will be required to conduct recruitment in
addition to that conducted prior to being granted a TLC and attest that
the recruitment will be conducted, as follows.
[[Page 80426]]
Placement of New Job Orders With State Workforce Agencies
Employers that are required to engage in additional recruitment
must place a new job order for the job opportunity with the State
Workforce Agency (SWA) serving the area of intended employment no later
than the next business day after submitting an I-129 petition for H-2B
workers to USCIS, and inform the SWA that the job order is being placed
in connection with a previously submitted and certified Application for
Temporary Employment Certification for H-2B workers by providing the
SWA with the unique OFLC TLC case number. Under this rule, employers
must also provide the OFLC NPC with the unique TLC case number
concurrently with their placement of new job orders with the SWAs. This
notification will allow OFLC to cross reference and repost information
about the job opportunities that are provided on the employers'
certified Applications for Temporary Labor Certification and posted by
OFLC on SeasonalJobs.dol.gov, which is DOL's electronic job registry
authorized under 20 CFR 655.34. Once posted by OFLC, information about
the employer's certified job opportunity will remain posted for a
period of at least 15 calendar days, which is consistent with the
period of time SWAs post job orders for intrastate and interstate
clearance to recruit U.S. workers, as discussed below. The Departments
continue to believe this additional notification is a reasonable and
cost-efficient method of disseminating available job opportunities to a
wider audience and those U.S. workers who may be interested in
applying. While not meant to recreate it, this action will serve the
same functional purpose as the posting on Seasonal Jobs. To help
employers who must conduct this notification requirement, DOL
encourages employers to notify the OFLC NPC, at the same time
notification is sent to the SWA, by sending an email to [email protected], and including the words ``H-2B TFR 2024
Recruitment'' followed by the unique TLC case number in the subject
line of the email.
The new job order placed with the SWA must contain the job
assurances and contents set forth in 20 CFR 655.18 for recruitment of
U.S. workers at the place of employment, and remain posted for at least
15 calendar days. The employer must also follow all applicable SWA
instructions for posting job orders and receive applications in all
forms allowed by the SWA, including online applications. The
Departments have concluded that keeping the job order posted for a
period of at least 15 calendar days, during the period the employer is
conducting the additional recruitment steps explained below and OFLC
reposts the job opportunity information, will effectively ensure U.S.
workers are apprised of the job opportunity and are referred for
employment, if they are willing, qualified, and available to perform
the work. The minimum 15 calendar day period also is consistent with
the employer-conducted recruitment activity period applicable under 20
CFR 655.40(b).
Once the SWA places the new job order on its public labor exchange
system, the SWA will perform its normal employment service activities
by circulating the job order for intrastate clearance, and in
interstate clearance by providing a copy of the job order to other SWAs
with jurisdiction over listed worksites as well as those States the
OFLC CO designated in the original Notice of Acceptance issued under 20
CFR 655.33. Where the occupation or industry is traditionally or
customarily unionized, the SWA will also circulate a copy of the new
job order to the central office of the State Federation of Labor in the
State(s) in which work will be performed, and the office(s) of local
union(s) representing workers in the same or substantially equivalent
job classification in the area(s) in which work will be performed,
consistent with its current obligation under 20 CFR 655.33(b)(5). To
facilitate an effective dissemination of these job opportunities, DOL
encourages union(s) or hiring halls representing workers in occupations
typically used in the H-2B program to proactively contact and establish
partnerships with SWAs in order to obtain timely information on
available temporary job opportunities. This will aid the SWAs' prompt
and effective outreach under the rule. DOL's OFLC maintains a
comprehensive directory of contact information for each SWA at https://www.dol.gov/agencies/eta/foreign-labor/contact.
Contact With American Job Centers
The employer also must conduct additional recruitment steps during
the period of time the SWA is actively circulating the job order for
intrastate clearance. First, the employer must contact, by email or
other electronic means, the nearest American Job Center(s) (AJC)
serving the area of intended employment where work will commence to
request staff assistance to advertise and recruit U.S. workers for the
job opportunity. AJCs bring together a variety of programs providing a
wide range of employment and training services for U.S. workers,
including job search services and assistance for prospective workers
and recruitment services for employers through the Wagner-Peyser
Program. Therefore, AJCs can offer assistance to employers with
recruitment of U.S. workers, and contact with local AJCs will
facilitate contemporaneous and effective recruitment activities that
can broaden dissemination of the employer's job opportunity through
connections with other partner programs within the One-Stop System to
locate qualified U.S. workers to fill the employer's labor need. For
example, the local AJC, working in concert with the SWA, can coordinate
efforts to contact community-based organizations in the geographic area
that serve potentially qualified workers or, when a job opportunity is
in an occupation or industry that is traditionally or customarily
unionized, the local AJC may be better positioned to identify and
circulate the job order to appropriate local union(s) or hiring
hall(s), consistent with 20 CFR 655.33(b)(5). In addition, as a partner
program in the One-Stop System, AJCs are connected with the State's
unemployment insurance program, thus an employer's connection with the
AJC will help facilitate knowledge of the job opportunity to U.S.
workers actively seeking employment. When contacting the AJC(s), the
employer must provide staff with the job order number or, if the job
order number is unavailable, a copy of the job order.
To increase navigability and to make the process as convenient as
possible, DOL offers an online service for employers to locate the
nearest local AJC at https://www.careeronestop.org/ and by selecting
the ``Find Local Help'' feature on the main homepage. This feature will
navigate the employer to a search function called ``Find an American
Job Center'' where the city, state or zip code covering the geographic
area where work will commence can be entered. Once entered and the
search function is executed, the online service will return a listing
of the name(s) of the AJC(s) serving that geographic area as well as a
contact option(s) and an indication as to whether the AJC is a
``comprehensive'' or ``affiliate'' center. Employers must contact the
nearest ``comprehensive'' AJC serving the area of intended employment
where work will commence or, where a ``comprehensive'' AJC is not
available, the nearest ``affiliate'' AJC. A ``comprehensive'' AJC tends
to be a
[[Page 80427]]
large office that offers the full range of employment and business
services, and an ``affiliate'' AJC typically is a smaller office that
offers a self-service career center, conducts hiring events, and
provides workshops or other select employment services for workers.
Because a ``comprehensive'' AJC may not be available in many geographic
areas, particularly among rural communities, this rule permits
employers to contact the nearest ``affiliate'' AJC serving the area of
intended employment where a ``comprehensive'' AJC is not available. In
order to facilitate efficient access to AJC services, this rule
requires that employers utilize available electronic methods to contact
the nearest AJC to meet the contact and disclosure requirements in this
rule.
Contact With AFL-CIO for Jobs in Traditionally or Customarily Unionized
Occupation or Industry
When a job is in a traditionally or customarily unionized
occupation or industry, during the time the SWA is actively circulating
the job order the employer must affirmatively contact the nearest
American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) office covering the area of intended employment to provide
written notice of the job opportunity and request assistance in
recruiting qualified U.S. workers who may be interested in applying for
the job opportunity. The employer must provide the AFL-CIO office (by
mail, email, or other effective written means) a copy of the job order
placed with the SWA. To determine which occupations are traditionally
or customarily unionized, and to obtain information about the proper
AFL-CIO office to contact,\171\ employers should search the resources
available on the OFLC website, under the ``Customarily Unionized H-2B
Occupations'' tab on the lefthand side of the OFLC homepage: https://www.dol.gov/agencies/eta/foreign-labor.\172\ In addition, to help
employers who must conduct this additional recruitment step, employers
may also contact the national AFL-CIO and request assistance in
circulating the job order to the nearest AFL-CIO office covering the
area of intended employment to advertise and recruit U.S. workers for
the job opportunity. The most effective means of contacting the
national AFL-CIO is to email the job order and request for assistance
to [email protected], but employers may also visit https://aflcio.org to
obtain information on other effective means of contacting the
organization for assistance. Upon receipt, the national AFL-CIO will
distribute a copy of the job order, on behalf of the employer, to the
most appropriate AFL-CIO office(s) serving the area of intended
employment for that job opportunity. The Department believes that this
approach will be more straightforward and simpler for employers, and
therefore encourages employers to meet the notification requirement by
contacting the national AFL-CIO directly.
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\171\ The Departments have determined that the requirement for
employers to contact the nearest AFL-CIO office properly balances
the goal of increasing U.S. worker outreach in those H-2B job
opportunities that are in traditionally or customarily unionized
occupations, while still providing employers with necessary guidance
on recruitment requirements. The AFL-CIO is a voluntary federation
of more than 60 national and international labor unions covering a
substantial number of union employees. AFL-CIO, About Us, https://aflcio.org/about-us (last visited October 11, 2023). The H-2B job
opportunities in traditionally or customarily unionized occupations
most frequently fall within those industries most likely to be
organized or represented by AFL-CIO member unions. Additionally, the
AFL-CIO's status as the largest federation of unions in the United
States provides for comprehensive national coverage and increases
the chances that a U.S. worker will be hired. See AFL-CIO Press
Release, https://aflcio.org/press/releases/afl-cio-teams-wilmington-trust-and-bny-mellon-expand-retirement-planning-options (last
visited October 11, 2023) (noting the AFL-CIO is ``the nation's
largest federation of labor unions''). As discussed below, the SWAs
circulation of relevant job orders based on their knowledge of the
local labor market would provide effective outreach to other
federations of unions and non-affiliated unions.
\172\ These resources were developed based on recent information
received from stakeholders indicating that collective bargaining
agreements now exist in certain occupations, such as landscaping. In
addition, the occupations or industries listed are ones in which the
Department has typically observed substantial union presence in its
program administration experience, such as occupations involved in
public sector employment, construction and extraction activities,
and service-related industries, where historical Bureau of Labor
Statistics data has demonstrated a presence of union affiliated
workers. See BLS, Economic News Release, Table 3. Union Affiliation
of Employed Wage and Salary Workers by Occupation and Industry (Jan.
20, 2022), https://www.bls.gov/news.release/union2.t03.htm.
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When applicable, the employer must include information in its
recruitment report confirming that either the national or nearest AFL-
CIO office was contacted and notified in writing of the job opportunity
or opportunities. In the recruitment report, the employer must state
whether the nearest AFL-CIO office referred qualified U.S. worker(s),
including the number of referrals, or indicate that it was non-
responsive to the employer's requests. The employer must retain all
documentation establishing that it has contacted either the national or
nearest AFL-CIO office and submit all such information upon request
from the Departments. Documentation or evidence that would help
employers establish that the appropriate AFL-CIO office was contacted,
may include, but is not limited to: documentation proving the job order
was shipped and delivered to the AFL-CIO office (e.g., copy of the job
order along with the certificate of shipment provided by the U.S.
Postal Service or other courier mail or parcel delivery services and/or
any other form of delivery confirmation); evidence confirming that the
job order, along with a request for assistance to recruit workers, was
in fact emailed to the appropriate AFL-CIO office (e.g., copies of
emails); phone records accompanied by proof of a follow-up email
sending the job order to the appropriate AFL-CIO office; or copies of
any correspondence exchanged (e.g., letter, email) between the employer
and the AFL-CIO office regarding worker referrals.
We believe the requirement that employers contact the AFL-CIO in
occupations or industries that are traditionally or customarily
unionized will complement the requirement that SWAs circulate the job
order to the State Federation of Labor and local unions in such
situations, thereby increasing the likelihood that a U.S. worker will
be recruited for the job opportunity. This is because in traditionally
or customarily unionized industries and occupations, unions serve as an
essential conduit for communications between U.S. workers and hiring
employers and have traditionally been recognized as a reliable source
of referrals of U.S. workers. Unionized applicants may additionally
share information about the job opportunity with nonunionized
applicants, resulting in more referrals of qualified applicants to the
job opportunity. Within this context, the two requirements complement
each other as the State Federations of Labor and local unions that SWAs
would circulate relevant job orders to, based on their knowledge of the
local labor market, are comprised of various union organizations and
may not always include the AFL-CIO. Since H-2B job opportunities in
traditionally or customarily unionized occupations tend to fall within
those industries most likely to be organized or represented by AFL-CIO
member unions, this requirement increases outreach to qualified U.S.
workers. Moreover, this requirement offers a chance for hiring
employers to directly contact a potential pool of U.S. workers who are
qualified and interested in the job opportunity, which can strengthen
the probability that employers will locate U.S. workers
[[Page 80428]]
suited for the job opportunity. For example, potential U.S. workers may
be more inclined to contact an employer directly upon learning of the
job opportunity rather than utilize the SWA as an intermediary since
the application process could be quicker and demonstrates a willingness
by employers to consider union workers. Direct contact between
employers and unions may also initiate a dialogue between employers and
unions that could lead to a future working relationship that fulfills
the workforce needs of employers. Therefore, in providing timely and
meaningful notice of job opportunities in traditionally or customarily
unionized industries to the AFL-CIO, employers build on efforts by SWAs
to circulate job orders to state and local unions, which may differ
from the AFL-CIO, and thus broaden the scope of their U.S. worker
outreach.
Contact With Former U.S. Workers
During the period of time the SWA is actively circulating the job
order described in paragraph (a)(4)(i) of 20 CFR 655.64 for intrastate
clearance, the employer must make reasonable efforts to contact (by
mail or other written effective means) its former U.S. workers that it
employed in the occupation at the place of employment (except those who
were dismissed for cause or who abandoned the worksite) during the
period beginning January 1, 2022 until the date the I-129 petition
required under 8 CFR 214.2(h)(6)(xiv) is submitted. Among the employees
the employer must contact are those who have been furloughed \173\ or
laid off during this period. The employer must disclose to its former
employees the terms of the job order placed with the SWA, and solicit
their return to the job. The employer must provide the contact and
disclosures required by this paragraph in a language understood by the
worker, as necessary or reasonable, and in writing to ensure the
recruitment effort is effective and meaningful in reaching each former
U.S. worker. The Departments are requiring written communication
because they believe that written contact and disclosure of the terms
of the job order is more effective than oral disclosure, and provides
greater assurance that workers understand the terms and working
conditions of the job opportunity and can more effectively pursue
redress if they do not receive the disclosed terms and working
conditions. Written communication and disclosure will also make it
easier for employers to establish compliance with this requirement, if
necessary.
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\173\ Furloughed employees are employees the employer laid off
(as the term is defined in 20 CFR 655.5 and 29 CFR 503.4), but the
layoff is intended to last for a temporary period of time.
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Contact With the Bargaining Representative or Posting of the Job Order
As the employer was required to do when initially applying for its
labor certification, the employer must provide a copy of the job order
to the bargaining representative for its employees in the occupation
and area of intended employment, consistent with 20 CFR 655.45(a), or
if there is no bargaining representative, post the job order in the
places and manner described in 20 CFR 655.45(b). Similar to the
requirement to contact former U.S. workers, discussed above, the
employer must provide the contact and disclosures required by this
paragraph in a language understood by the worker, as necessary or
reasonable, and in writing to ensure the recruitment effort is
effective and meaningful in reaching each former U.S. worker.
Contact With Current U.S. Workers
As was required in the FY 2023 H-2B supplemental visa TFR,
employers must again contact U.S. workers currently employed at the
place of employment to inform them of the job opportunity and request
their assistance in recruiting qualified U.S. workers who may be
seeking employment. The Departments continue to believe this
recruitment step is a reasonable and cost-effective method of
broadening dissemination of available job opportunities and increasing
the likelihood that qualified U.S. workers will apply. We believe the
requirement that employers contact their current U.S. workers employed
at the place(s) of employment and solicit their assistance in
recruiting other qualified U.S. workers will complement the requirement
that employers post the job order in the places and manner described in
20 CFR 655.45(b), enhance word-of-mouth recruiting, which is a common
method of soliciting referrals of qualified U.S. workers, and increase
the likelihood of locating U.S. workers suited for the job opportunity
more quickly and efficiently. U.S. workers currently employed by the
employer, who are more likely to be familiar with the nature of the
employer's business operations and services or labor to be performed,
will generally refer other U.S. workers who are qualified and may be
more inclined to contact an employer directly upon learning of the job
opportunity from a family, friend, or colleague with experience working
for the employer.
Accordingly, during the period of time the SWA is actively
circulating the job order described in paragraph (a)(4)(i) of 20 CFR
655.64 for intrastate clearance, the employer must make reasonable
efforts to contact (by mail or other effective written means) all U.S.
workers it currently employs at the place(s) of employment under the
certified TLC. The employer must disclose to each of its current U.S.
workers the terms of the job order placed with the SWA, and request
assistance in recruiting qualified U.S. workers who may be interested
in applying for the job opportunity. The contacts, disclosures, and
requests for assistance required by this paragraph must be provided in
a language understood by the worker, as necessary or reasonable, and in
writing to ensure the recruitment effort is effective and meaningful in
reaching each current U.S. worker.
The employer must retain all documentation establishing that it has
contacted each U.S. worker it currently employs at the place(s) of
employment under the certified TLC and submit all such information upon
request from the Departments. Documentation or evidence that would help
employers establish compliance with this regulatory requirement may
include, but is not limited to the following: documentation proving the
job order, along with a request for assistance to recruit workers, was
shipped and delivered to each current U.S. worker's address (e.g., copy
of the job order and request for assistance along with the certificate
of shipment provided by the U.S. Postal Service or other courier mail
or parcel delivery services and/or any other form of delivery
confirmation); evidence confirming that the job order, along with a
request for assistance to recruit workers, was emailed to the current
U.S. worker (e.g., copies of emails); or copies of any correspondence
exchanged (e.g., letter, email) between the employer and the current
U.S. worker regarding referrals of other qualified U.S. workers.
The requirements to contact current and former U.S. workers and
provide notice to the bargaining representative or post the job order
must be conducted in a language understood by the workers, as necessary
or reasonable. This requirement would apply, for example, in situations
where an employer has one or more employees who do not speak English as
their primary language and who have a limited ability to read, write,
speak, or understand English. This requirement would allow those
workers to make informed decisions regarding the job
[[Page 80429]]
opportunity, and is a reasonable interpretation of the recruitment
requirements in 20 CFR part 655, subpart A, in light of the need to
ensure that the test of the U.S. labor market is as comprehensive as
possible. Consistent with existing language requirements in the H-2B
program under 20 CFR 655.20(l), DOL intends to broadly interpret the
necessary or reasonable qualification, and apply an exemption only in
those situations where having the job order translated into a
particular language would both place an undue burden on an employer and
not significantly disadvantage the employee.
Posting of the Job Opportunity on the Employer's Website If the
Employer Has a Website
Finally, as was required in the FY 2023 H-2B supplemental visa TFR,
where the employer maintains a company website for its business
operations, the employer must post an electronic advertisement of the
job opportunity in a conspicuous location on this website.
Although the vast majority of small businesses in the United States
maintain a website, the Departments acknowledge that not all employers
maintain a company website.\174\ As discussed in the prior TFR,
although there is no parallel requirement for employers without a
website, the Departments believe that continuing to require employers
with websites to post the job announcement on their website is
reasonable because this population of employers uses their websites to
inform the public about their existence and/or the services they may
provide. Thus, these employers' advertisement of the job opportunity,
via their websites, is consistent with these employers' use of the
internet/electronic means to communicate with the public. Accordingly,
this recruitment requirement will continue to apply only to employers
that maintain a website for business operations. For employers who must
conduct this additional recruitment step, the electronic advertisement
of the job opportunity on the company website must be posted in a
conspicuous location. This means access to the electronic advertisement
on the company website must be clearly visible on the website's
homepage or easily accessible from the website's homepage using any job
search tool(s) or direct links from the homepage to a subsequent web
page where other available jobs or careers are normally posted by the
employer.
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\174\ The U.S. Chamber of Commerce reports that 71% of small
businesses have a website and, of those with websites, 79% of survey
respondents claimed that their websites are mobile-friendly.
According to the survey results, 92% of the 29% of small businesses
without a website reported planning to have one up and running by
the end of 2018. See U.S. Chamber of Commerce, Small Business
Statistics, available at https://www.chamberofcommerce.org/small-business-statistics/#marketing-statistics (accessed October 11,
2023).
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The Departments have concluded that keeping the electronic
advertisements on company websites posted for a period of at least 15
calendar days, along with the other additional recruitment steps
discussed above, will effectively ensure that U.S. workers are apprised
of the job opportunity and are referred for employment, if they are
willing, qualified, and available to perform the work. The minimum 15
calendar day period is also consistent with the employer-conducted
recruitment activity period applicable under 20 CFR 655.40(b).
The employer must retain all documentation establishing that it has
posted the electronic advertisement of the job opportunity in
compliance with regulatory requirements and submit all such information
upon request from the Departments. Documentation or evidence for
employers to establish compliance with these regulatory requirements
can include screenshots of the company website on which the
advertisement appears for a period of no less than 15 days and screen
shots of the web pages establishing the path that U.S. workers must
follow to access the advertisement on the website.
Hiring U.S. Workers
The employer must hire any qualified U.S. worker who applies or is
referred for the job opportunity until either (1) the date on which the
last H-2B worker departs for the place of employment, or (2) 30 days
after the last date on which the SWA job order is posted, whichever is
later. Additionally, consistent with 20 CFR 655.40(a), applicants may
be rejected only for lawful job-related reasons. Given that the
employer, SWA, and AJC(s) will be actively engaged in conducting
recruitment and broader dissemination of the job opportunity during the
period of time the job order is active, this requirement provides an
adequate period of time for U.S. workers to contact the employer or SWA
for referral to the employer and completion of the additional
recruitment steps described above. As explained above, the Departments
have determined that if employers file a petition 30 or more days after
their dates of need, they have not conducted recruitment recently
enough for the Departments to reasonably conclude that there are
currently an insufficient number of U.S. workers qualified, willing,
and available to perform the work absent additional recruitment.
Because of the abbreviated timeline for the additional recruitment
required for employers whose initial recruitment has gone stale, the
Departments have determined that this hiring period is necessary to
approximate the hiring period under normal recruitment procedures and
ensure that domestic workers have access to these job opportunities,
consistent with the Departments' mandate. Additionally, given the
relatively brief period during which additional recruitment will occur,
additional time may be necessary for U.S. workers to have a meaningful
opportunity to learn about the job opportunities and submit
applications.
The Departments remind all H-2B employers that the job opportunity
must be, through the recruitment period set forth in this rule, open to
any qualified U.S. worker regardless of race, color, national origin,
age, sex, religion, disability, or citizenship, as specified under 20
CFR 655.20(r). Further, employers that wish to require interviews must
conduct those interviews by phone or provide a procedure for the
interviews to be conducted in the location where the worker is being
recruited so that the worker incurs little or no cost. Employers cannot
provide potential H-2B workers with more favorable treatment with
respect to the requirement for, and conduct of, interviews. See 20 CFR
655.40(d).
Any U.S. worker who applies or is referred for the job opportunity
and is not considered by the employer for the job opportunity,
experiences difficulty accessing or understanding the material terms
and conditions of the job opportunity, or believes they have been
improperly rejected by the employer may file a complaint directly with
the SWA serving the area of intended employment. Each SWA maintains a
complaint system for public labor exchange services, established under
20 CFR part 658, subpart E, and any complaint filed with the SWA by, or
on behalf of, a U.S. worker about a specific H-2B job order will be
processed under this existing complaint system. Depending on the
circumstances, the SWA may seek informal resolution by working with the
complainant and the employer to resolve, for example, miscommunications
with the employer to be considered for the job opportunity or other
concerns or misunderstandings related to the terms and conditions of
the job opportunity; or issue a formal, written determination where
informal
[[Page 80430]]
resolution cannot be reached. In other circumstances, such as
allegations involving discriminatory hiring practices or violations of
other employment-related laws, the SWA will formally enter the
complaint and refer the matter to an appropriate enforcement agency for
prompt action. As mentioned above, DOL's OFLC maintains a comprehensive
directory of contact information for each SWA that can be used to
obtain more information on how to file a complaint.
Although the hiring period may require some employers to hire U.S.
workers after the start of the contract period, this is not
unprecedented. For example, in the H-2A program, employers have been
required to hire U.S. workers through 50 percent of the contract period
since at least 2010, which ``enhance[s] protections for U.S. workers,
to the maximum extent possible, while balancing the potential costs to
employers,'' and is consistent with the Departments' responsibility to
ensure that these job opportunities are available to U.S. workers. 74
FR 45906, 45917. The Department acknowledges that hiring workers after
the start of the contract period imposes an additional cost on
employers, but that cost can be lessened, in part, by the ability to
discharge the H-2B worker upon hiring a U.S. worker (note, however,
that an employer must pay for any discharged H-2B worker's return
transportation, 20 CFR 655.20(j)(1)(ii) and 29 CFR 503.16(j)(1)(ii)).
Additionally, this rule permits employers to immediately hire H-2B
workers who are already present in the United States without waiting
for approval of an H-2B petition, which will reduce the potential for
harm to H-2B workers as a result of displacement by U.S. workers. See
new 8 CFR 214.2(h)(31). Most importantly, a longer hiring period will
ensure that available U.S. workers have a viable opportunity to apply
for H-2B job opportunities. Accordingly, the Departments have
determined that in affording the benefits of this temporary cap
increase to businesses that are suffering irreparable harm or will
suffer impending irreparable harm, it is necessary to ensure U.S.
workers have sufficient time to apply for these jobs.
As in the temporary rules implementing the supplemental cap
increases in prior years, employers must retain documentation
demonstrating compliance with the recruitment requirements described
above. Under this TFR, in accordance with 20 CFR 655.65, employers must
retain documentation that demonstrates placement of a new job order
with the SWA, contact with AJCs, contact with the bargaining
representative or AFL-CIO when required, contact with former U.S.
workers, compliance with 20 CFR 655.45(a) or (b), contact with current
U.S. workers at the place of employment, and posting of the job
opportunity on the employer's website, if the employer has a website.
Employers must prepare and retain a recruitment report that describes
these efforts and meets the requirements set forth in 20 CFR 655.48,
including the requirement to update the recruitment report throughout
the recruitment and hiring period set forth in paragraph (a)(4)(viii)
of 20 CFR 655.64. Employers must maintain copies of the recruitment
report, attestation, and supporting documentation, as described above,
for a period of 3 years from the date that the TLC was approved,
consistent with the document retention requirements under 20 CFR
655.65, 20 CFR 655.56, and 29 CFR 503.17. These requirements are
similar to those that apply to certain seafood employers that stagger
the entry of H-2B workers under 20 CFR 655.15(f).
The Departments are committed to ensuring that all recruitment
conducted in conjunction with this rule complies with the additional
recruitment requirements discussed above and encourages individuals
with information about that recruitment to contact DOL through the OFLC
H-2B Ombudsman Program email box ([email protected]). The H-2B
Ombudsman Program facilitates the fair and equitable resolution of
concerns that arise within the H-2B filing community, by conducting
independent and impartial inquiries into issues related to the
administration of the H-2B program. The H-2B Ombudsman Program also
receives concerns and information relevant to case processing from
employers, unions, and worker advocate organizations and ensures such
information is appropriately referred within OFLC or to SWAs, as
appropriate.
DOL actively monitors the H-2B Ombudsman Program email box, which
is the best method for the public to provide information to the
Department that is relevant to the processing of H-2B applications.
Such information may include information about an in-process TLC
application, information regarding the employer's compliance with H-2B
recruitment of U.S. workers, or information bearing on an employer's
irreparable harm justification. When the H-2B Ombudsman Program
receives information relevant to its review of an H-2B TLC application,
the information will be forwarded to the H-2B processing center. The H-
2B processing center will review the information it receives and will
consider it, as appropriate.
The H-2B Ombudsman Program, however, is separate and distinct from
the employment service complaint system administered by the Employment
and Training Administration under regulations at 20 CFR part 658,
subpart E. Any information relevant to an employment service complaint
will be forwarded to the appropriate SWA. The public may also submit
employment service complaints directly to the appropriate SWA; the
contact information for each SWA is available at the following web
page: https://www.dol.gov/agencies/eta/foreign-labor/contact.
Complaints regarding an employer's failure to comply with the H-2B
program requirements may also be submitted to DOL's WHD. WHD has the
authority to investigate the employer's attestations, as the
attestations are a required part of the H-2B petition process under
this rule and the attestations rely on the employer's existing,
approved TLC. Where a WHD investigation determines that there has been
a willful misrepresentation of a material fact or a substantial failure
to meet the required terms and conditions of the attestations, WHD may
institute administrative proceedings to impose sanctions and remedies,
including (but not limited to) assessment of civil money penalties;
recovery of wages due to workers; make-whole relief for any U.S. worker
who has been improperly rejected for employment, laid off, or
displaced; make-whole relief for any person who has been discriminated
against; and/or debarment for 1 to 5 years. See 29 CFR 503.19, 503.20.
This regulatory authority is consistent with WHD's existing enforcement
authority and is not limited by the expiration date of this rule.
Therefore, in accordance with the documentation retention requirements
at 20 CFR 655.65, the petitioner must retain documents and records
evidencing compliance with this rule, and must provide the documents
and records upon request by DHS or DOL.
When conducting an investigation, WHD will generally review the
employer's compliance with this rule, the H-2B program obligations in
general, and any other Federal labor laws that WHD enforces (such as
the Fair Labor Standards Act, which establishes minimum wage, overtime,
recordkeeping and child labor obligations for most employers in the
United States) and to which the employer is subject. WHD's
investigations generally involve meeting
[[Page 80431]]
with the employer, touring the worksite, conducting confidential
interviews with employees, reviewing records (including those required
by 20 CFR 655.65 evidencing compliance with this rule), and, when
appropriate, imposing sanctions and remedies (including back wages).
For example, in the past five years (Fiscal Years 2019-2023), WHD
collected more than $16.7 million in H-2B back wages owed to 10,778
workers, and assessed more than $12.4 million in H-2B civil money
penalties.
Within the context of this rule, WHD's investigative tools are
particularly adept for the review of alleged violations that may result
in back wages and/or that require intensive fact-finding at the
worksite. Additionally, WHD is well suited to investigate alleged
violations that occur after the job order has closed and H-2B workers
are already in the United States. For example, WHD's tools are well
suited to investigate allegations that U.S. applicants were improperly
rejected for the job opportunity (if supplemental recruitment was
required as outlined in 20 CFR 655.64(a)(4)) after the job order has
closed, as WHD may conduct employee interviews, question the employer
as to why the applicant was not hired, review recruitment records, and,
if a violation is substantiated, compute back wages for the improperly
rejected U.S. applicant.
Additionally, WHD is well suited to investigate allegations of
retaliation, as these cases involve complex fact finding and, if
allegations are substantiated, may result in make-whole relief or back
wages owed to the worker. An employer is prohibited from intimidating,
threatening, restraining, coercing, blacklisting, discharging, or in
any manner discriminating against any person who has, among other
actions: filed a complaint related to H-2B rights and protections;
consulted with a workers' rights center, community organization, labor
union, legal assistance program, or attorney on H-2B rights or
protections; or exercised or asserted H-2B rights and protections on
behalf of themselves or others. 20 CFR 655.20(n) and 29 CFR 503.16(n).
Examples of protected activity include making a complaint to a manager,
employer, or WHD; cooperating with a WHD investigation; requesting
payment of wages; refusing to return back wages to the employer;
consulting with WHD or workers' rights organization; and testifying in
a trial. If other laws are applicable (such as the Fair Labor Standards
Act), the anti-retaliation provisions of those laws may also be
applicable.
In addition to the H-2B Ombudsman Program and the employment
service complaint system under 20 CFR part 658, subpart E, which are
described above, workers or U.S. applicants for job opportunities who
believe their rights under the H-2B program have been violated may file
complaints with WHD by telephone at 1-866-487-9243 or may access the
telephone number via TTY by calling 1-877-889-5627 or visit https://www.dol.gov/agencies/whd to locate the nearest WHD office for
assistance. Complainants should be prepared to provide their name and
contact information; name, address, and contact information for the
employer; and details about the alleged violation. WHD maintains all
complaints as confidential unless the complainant provides WHD with
permission to use their name when speaking to the employer.
DHS has the authority to verify any information submitted to
establish H-2B eligibility at any time before or after the petition has
been adjudicated by USCIS. See, e.g., INA sections 103 and 214 (8
U.S.C. 1103, 1184); see also 8 CFR part 103 and section 214.2(h). DHS'
verification methods may include, but are not limited to, review of
public records and information, contact via written correspondence or
telephone, unannounced physical site inspections, and interviews. USCIS
will use information obtained through verification to determine H-2B
eligibility and assess compliance with the requirements of the H-2B
program. Subject to the exceptions described in 8 CFR 103.2(b)(16),
USCIS will provide petitioners with an opportunity to address adverse
information that may result from a USCIS compliance review,
verification, or site visit that occurs after a formal decision is made
on a petition or after the agency has initiated an adverse action that
may result in revocation or termination of an approval.
DOL's OFLC already has the authority under 20 CFR 655.70 to conduct
audit examinations on adjudicated Applications for Temporary Employment
Certification, including all appropriate appendices, and verify any
information supporting the employer's attestations. OFLC uses audits of
adjudicated Applications for Temporary Employment Certification, as
authorized by 20 CFR 655.70, to ensure employer compliance with
attestations made in its Application for Temporary Employment
Certification and to ensure the employer has met all statutory and
regulatory criteria and satisfied all program requirements. The OFLC CO
has sole discretion to choose which Applications for Temporary
Employment Certification will be audited. See 20 CFR 655.70(a). Post-
adjudication audits can be used to establish a record of employer
compliance or non-compliance with program requirements and the
information gathered during the audit assists DOL in determining
whether it needs to further investigate or debar an employer or its
agent or attorney from future labor certifications.
Under this rule, an employer may submit a petition to USCIS,
including a valid TLC and Form ETA-9142B-CAA-8, in which the employer
attests to compliance with requirements for access to the supplemental
H-2B visas allocated through 8 CFR 214.2(h)(6)(xiv), including that its
business is suffering irreparable harm or will suffer impending
irreparable harm, and that it will conduct additional recruitment, if
necessary to refresh the TLC's labor market test. DHS and DOL consider
Form ETA-9142B-CAA-8 to be an appendix to the Application for Temporary
Employment Certification and the attestations contained on the Form
ETA-9142B-CAA-8 and documentation supporting the attestations to be
evidence that is incorporated into and a part of the approved TLC.
Therefore, DOL's audit authority includes the authority to audit the
veracity of any attestations made on Form ETA-9142B-CAA-8 and
documentation supporting the attestations. In order to make certain
that the supplemental visa allocation is not subject to fraud or abuse,
DHS will continue to share information regarding Forms ETA-9142B-CAA-8
with DOL, consistent with existing authorities. This information
sharing between DHS and DOL, along with relevant information that may
be obtained through the separate SWA and WHD complaint systems, are
expected to support DOL's identification of TLCs used to access the
supplemental visa allocation for closer examination of TLCs through the
audit process.
In accordance with the documentation retention requirements in this
rule, the petitioner must retain documents and records proving
compliance with this rule, and must provide the documents and records
upon request by DHS or DOL. Under this rule, DOL will audit a
significant number of TLCs used to access the supplemental visa
allocation to ensure employer compliance with attestations, including
those regarding the irreparable harm standard and additional employer
conducted recruitment, required under this rule. In the event of an
audit, the OFLC CO will send a letter to the employer and, if
appropriate, a copy of the letter to the
[[Page 80432]]
employer's attorney or agent, listing the documentation the employer
must submit and the date by which the documentation must be sent to the
CO. During audits under this rule, the CO will request documentation
necessary to demonstrate the employer conducted all recruitment steps
required under this rule and truthfully attested to the irreparable
harm the employer was suffering or would suffer in the near future
without the ability to employ all of the H-2B workers requested under
the cap increase, including documentation the employer is required to
retain under this rule. If necessary to complete the audit, the CO may
request supplemental information and/or documentation from the employer
during the course of the audit process. 20 CFR 655.70(c).
Failure to comply in the audit process may result in the revocation
of the employer's certification or in debarment, under 20 CFR 655.72
and 655.73, respectively, or require the employer to undergo assisted
recruitment in future filings of an Application for Temporary
Employment Certification, under 20 CFR 655.71. Where an audit
examination or review of information from DHS or other appropriate
agencies determines that there has been fraud or willful
misrepresentation of a material fact or a substantial failure to meet
the required terms and conditions of the attestations or failure to
comply with the audit examination process, OFLC may institute
appropriate administrative proceedings to impose sanctions on the
employer. Those sanctions may result in revocation of an approved TLC,
the requirement that the employer undergo assisted recruitment in
future filings of an Application for Temporary Employment Certification
for a period of up to 2 years, and/or debarment from the H-2B program
and any other foreign labor certification program administered by DOL
for 1 to 5 years. See 20 CFR 655.71, 655.72, 655.73. Additionally, OFLC
has the authority to provide any finding made or documents received
during the course of conducting an audit examination to DHS, WHD, IER,
or other enforcement agencies. OFLC's existing audit authority is
independently authorized, and is not limited by the expiration date of
this rule. Therefore, in accordance with the documentation retention
requirements at 20 CFR 655.65, the petitioner must retain documents and
records proving compliance with this rule, and must provide the
documents and records upon request by DHS or DOL.
Petitioners must also comply with any other applicable laws, such
as avoiding unlawful discrimination against U.S. workers based on their
citizenship status or national origin. Specifically, the failure to
recruit and hire qualified and available U.S. workers on account of
such individuals' national origin or citizenship status may violate INA
section 274B, 8 U.S.C. 1324b.
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is issued without prior notice and opportunity to comment
and with an immediate effective date pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule
without prior notice and opportunity to comment when the agency, for
good cause, finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' Among other things,
the good cause exception for forgoing notice and comment rulemaking
``excuses notice and comment in emergency situations, or where delay
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.
Cir. 2004). Courts have found ``good cause'' under the APA in similar
situations when an agency is moving expeditiously to avoid significant
economic harm to a program, program users, or an industry. See, e.g.,
Nat'l Fed'n of Fed. Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982)
(holding that an agency may use the good cause exception to address ``a
serious threat to the financial stability of [a government] benefit
program''); Am. Fed'n of Gov't Emps. v. Block, 655 F.2d 1153, 1156
(D.C. Cir. 1981) (finding good cause when an agency bypassed notice and
comment to avoid ``economic harm and disruption'' to a given industry,
which would likely result in higher consumer prices).
Although the good-cause exception is ``narrowly construed and only
reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 969 F.2d
1141, 1144 (D.C. Cir. 1992), the Departments have appropriately invoked
the exception in this case due to the time exigencies resulting from
the unique procedural history of the Department's authority for this
action and the ongoing economic need for this rulemaking, as described
further below. Overall, the Departments are bypassing notice and
comment to prevent ``serious economic harm to the H-2B community,''
including U.S. employers, associated U.S. workers, and related
professional associations, that could result from the failure to
provide supplemental visas as authorized by Congress. See Bayou Lawn &
Landscape Servs. v. Johnson, 173 F. Supp. 3d 1271, 1285 & n.12 (N.D.
Fla. 2016). The Departments note that this action is temporary in
nature, see id.,\175\ and limits eligibility for H-2B supplemental
visas to only those businesses most in need, and also protects H-2B and
U.S. workers.
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\175\ Because the Departments have issued this rule as a
temporary final rule, the supplemental cap portion of this rule--
with the sole exception of the document retention requirements--will
be of no effect after September 30, 2024. The ability to initiate
employment with a new employer pursuant to the portability
provisions of this rule expires at the end of on January 24, 2025.
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With respect to the supplemental allocations provisions in 8 CFR
214.2 and 20 CFR part 655, subpart A, as explained above, the
Departments are acting pursuant to the extension of supplemental cap
authority in Section 303 of the Consolidated Appropriations Act, 2023
by sections 101(6) and 106 of the Continuing Appropriations Act, 2024
and Other Extensions Act (authorized on September 30, 2023) to FY
2024.\176\ The deadline for exercising the FY 2024 supplemental cap
authority under the Continuing Appropriations Act, 2023 is November 17,
2023, the date on which the Continuing Appropriations Act, 2024
expires.\177\ This timing concern is critical since the Departments are
bypassing advance notice and comment in order to urgently address
increased labor demand.\178\ Acting expeditiously is intended to
prevent economic harm resulting from American businesses suffering
irreparable harm due to a lack of a sufficient labor force. This harm
would ensue if the Departments do not exercise the authority provided
by the extension of supplemental cap authority. USCIS
[[Page 80433]]
received more than enough petitions to meet the H-2B visa statutory cap
for the first half of FY 2024 on October 11, 2023.\179\ Based on past
years' experience, DHS anticipates that it will also receive sufficient
petitions to meet the semiannual cap for the second half of the FY
2024; last year on February 27, 2023, USCIS received sufficient
petitions to meet the H-2B visa statutory cap for the second half of FY
2023.\180\ Given the continued high demand of American businesses for
H-2B workers (as discussed in this preamble), rapidly evolving economic
conditions and historically high labor demand, and the limited time
remaining until the expiration of the continuing resolution authorizing
supplemental cap authority to help prevent further irreparable harm
currently experienced by some U.S. employers or avoid impending
economic harm for others, a decision to undertake notice and comment
rulemaking, which would delay final action on this matter by months,
would greatly complicate and potentially preclude the Departments from
successfully exercising the authority created by section 303, Public
Law 117-328 as extended to FY 2024 by secs. 101(6) and 106, Public Law
118-15. If the Departments are precluded from exercising this
authority, substantial economic harm will result for the reasons stated
above.
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\176\ See Section 303, Consolidated Appropriations Act, 2023,
Division O, Public Law 117-328 (Dec. 29, 2022), extended by sections
101(6) and 106 of the Continuing Appropriations Act, 2024 and Other
Extensions Act, Division A (``Continuing Appropriations Act,
2024''), Public Law 118-15 (Sep. 30, 2023).
\177\ Pursuant to section 101(6) and 106 of the Continuing
Appropriations Act, 2024, Division A, Public Law 118-15, the
deadline for exercising the FY 2024 supplemental cap authority under
this act is Nov. 17, 2023, the date on which the Continuing
Appropriations Act expires.
\178\ See Irina Ivanova, America's labor shortage is actually an
immigrant shortage, CBS News, https://www.cbsnews.com/news/immigration-jobs-workers-labor-shortage/ (Apr. 8, 2022). (``U.S.
employers say it's a hard time to find and keep talent. Workers are
decamping at near-record rates, while millions of open jobs go
unfilled. One reason for this labor crunch that has largely flown
beneath the radar: Immigration to the U.S. is plummeting, a shift
with potentially enormous long-term implications for the job
market.'')
\179\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-H-2B-cap-
for-first-half-of-fy-2024 (Oct 13, 2023).
\180\ See USCIS, USCIS Reaches H-2B Cap for Second Half of FY
2023 and Announces Filing Dates for the Second Half of FY 2023
Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-
reaches-H-2B-cap-for-second-half-of-fy-2023-and-announces-filing-
dates-for-the-second-half-of (Mar. 2, 2023).
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The temporary portability and change of employer provisions in 8
CFR 214.2 and 274a.12 are also supported by labor market demands.
Courts have found ``good cause'' under the APA when an agency is moving
expeditiously to avoid significant economic harm to a program, program
users, or an industry. Courts have held that an agency may use the good
cause exception to address ``a serious threat to the financial
stability of [a government] benefit program,'' Nat'l Fed'n of Fed.
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid
``economic harm and disruption'' to a given industry, which would
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v.
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
Finally, taking public comments on this year's temporary final rule
before implementation may have limited utility given that the
Departments took post-promulgation public comments during a 60-day
comment period on last year's (FY 2023) nearly identical TFR. Those
comments are discussed in detail above in the preamble of this
temporary final rule. In addition, DHS is separately pursuing broader
programmatic improvements in the H-2B and H-2A programs through a
separate notice and comment rulemaking which includes a proposal to
make portability permanent for all H-2 workers.\181\
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\181\ On September 20, 2023, DHS issued a Modernizing H-2
Program Requirements, Oversight, and Worker Protections Notice of
Proposed Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public
comment period that ends on November 20, 2023. In that NPRM, DHS
proposed to extend portability to H-2A and H-2B workers on a
permanent basis.
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2. Good Cause To Proceed With an Immediate Effective Date
The APA also authorizes agencies to make a rule effective
immediately, upon a showing of good cause, instead of imposing a 30-day
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day
effective date requirement is easier to meet than the good cause
exception for foregoing notice and comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981);
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An
agency can show good cause for eliminating the 30-day delayed effective
date when it demonstrates urgent conditions the rule seeks to correct
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290;
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For
the same reasons set forth above expressing the need for immediate
action, we also conclude that the Departments have good cause to
dispense with the 30-day effective date requirement.
B. Executive Order 12866: Regulatory Planning and Review; Executive
Order 14094: Modernizing Regulatory Review; and Executive Order 13563:
Improving Regulation and Regulatory Review
Under E.O. 12866, OMB's Office of Information and Regulatory
Affairs (OIRA) determines whether a regulatory action is significant
and, therefore, subject to the requirements of the E.O. and review by
OMB. 58 FR 51735. Section 3(f) of E.O. 12866, as amended by E.O. 14094,
defines a ``significant regulatory action'' as an action that is likely
to result in a rule that: (1) has an annual effect on the economy of
$200 million or more, or adversely affects in a material way a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities; (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. 88 FR
21879.
The Office of Management and Budget (OMB) has designated this
temporary final rule a significant regulatory action under section
3(f)(1) of Executive Order 12866, as amended by Executive Order 14094,
because its annual effects on the economy exceed $200 million in any
year of the analysis. Accordingly, OMB has reviewed this rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider (and discuss qualitatively)
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
1. Summary
With this temporary final rule (TFR), DHS is authorizing the
release of up to an additional 64,716 total H-2B visas to be allocated
throughout FY 2024. In accordance with the FY 2024 continuing
resolution extending the authority provided in section 303 of the FY
2023 Omnibus, DHS is allocating the supplemental visas in the following
manner:
[[Page 80434]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.023
As with previous H-2B visa supplements, these visas will be
available to businesses that: (1) show that there are an insufficient
number of U.S. workers to meet their needs throughout FY 2024; (2)
attest that their businesses are suffering irreparable harm or will
suffer impending irreparable harm without the ability to employ all of
the H-2B workers requested on their petition; and (3) petition for
returning workers who were issued an H-2B visa or were otherwise
granted H-2B status in FY 2021, 2022, or 2023, unless the H-2B worker
is a national of one of the countries included in the country-specific
allocation. Additionally, up to 20,000 visas may be granted to workers
from countries included in the country-specific allocation who are
exempt from the returning worker requirement. This TFR aims to prevent
irreparable harm to certain U.S. businesses by allowing them to hire
additional H-2B workers within FY 2024.
The estimated total costs to petitioners range from $7,530,484 to
$10,043,625. The estimated total cost to the Federal Government is
$350,028. Therefore, DHS estimates that the total cost of this rule
ranges from $7,880,512 to $10,393,653. Total transfers from filing fees
made by petitioners to the Government are $9,214,500. The benefits of
this rule are diverse, though some of them are difficult to quantify.
Some of these benefits include:
Employers benefit from this rule significantly through
increased access to H-2B workers;
Customers and others benefit directly or indirectly from
increased access;
Some American workers may benefit to the extent that they
do not lose jobs through the reduced or closed business activity that
might occur if fewer H-2B workers were available;
Some American workers may benefit from the additional
recruitment activities that the rule requires certain petitioners to
complete, to the extent that these activities could result in some U.S.
workers being hired.
The existence of a lawful pathway for up to 20,000
temporary workers from countries included in the country-specific
allocation is likely to provide multiple benefits in terms of U.S.
policy with respect to those countries; and
The Federal Government benefits from increased evidence
regarding attestations. Table 2 provides a summary of the provisions in
this rule and some of their impacts.
BILLING CODE 9111-97-P
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BILLING CODE 9111-97-C
2. Background and Purpose of the Temporary Rule
The H-2B visa classification program was designed to serve U.S.
businesses that are unable to find enough U.S. workers to perform
nonagricultural work of a temporary nature. For a nonimmigrant worker
to be admitted into the United States under this visa classification,
the hiring employer is required to: (1) receive a temporary labor
certification (TLC) from the Department of Labor (DOL); and (2) file
Form I-129 with DHS. The temporary nature of the services or labor
described on the approved TLC is subject to DHS review during
adjudication of Form I-129.\182\ The INA sets the annual number of H-2B
visas for workers performing temporary nonagricultural work at 66,000
to be distributed semiannually beginning in October (33,000) and in
April (33,000).\183\ Any unused H-2B visas from the first half of the
fiscal year are available for employers seeking to hire H-2B workers
during the second half of the fiscal year. However, any unused H-2B
visas from one fiscal year do not carry over into the next and would
therefore not be made available.\184\ Once the statutory H-2B visa cap
limit has been reached, petitioners must wait until the next half of
the fiscal year, or the beginning of the next fiscal year, for
additional visas to become available.
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\182\ Revised effective 1/18/2009; Changes to Requirements
Affecting H-2B Nonimmigrants and Their Employers; Correction, 73 FR
78104 (Jan. 19, 2009); Changes to Requirements Affecting H-2B
Nonimmigrants and Their Employers; Correction, 74 FR 2837 (Jan 18,
2009).
\183\ See INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B) and INA
214(g)(4), 8 U.S.C. 1184(g)(4).
\184\ A temporary labor certification (TLC) approved by the
Department of Labor must accompany an H-2B petition. The employment
start date stated on the petition must match the start date listed
on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
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On September 30, 2023, the President signed the Continuing
Appropriations Act, 2024 and Other Extensions Act. Sections 101(6) and
106 reauthorize Sec. 303 of Div. O of the Consolidated Appropriations
Act FY 2023, permitting the Secretary of Homeland Security, under
certain circumstances, to increase the number of H-2B visas available
to U.S. employers, notwithstanding the established statutory numerical
limitation. After consulting with the Secretary of Labor, the Secretary
of the Homeland Security has determined it is appropriate to exercise
his discretion and raise the H-2B cap by up to a total of 64,716 visas
for FY 2024. The total supplemental allocation will be divided into
four separate allocations: one for the first half of FY 2024, two for
the second half of FY 2024 (a first one for employment from April 1
through May 14, 2024, and a second one for those with start dates on or
after May 15, 2024), and a full fiscal year allocation for workers from
the countries included in the country-specific allocation. As with
previous supplemental allocations, USCIS will make these supplemental
visas available only to businesses that qualify and meet the
requirements for the supplemental visas. These businesses must attest
that they are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all the H-2B workers
requested on their petition.
[[Page 80440]]
In contrast to previously issued H-2B TFRs which codified the
availability of supplemental H-2B visas only after the relevant
statutory fiscal half-year caps had been reached, the Secretaries have
determined that this TFR will cover the entirety of FY 2024. While the
Departments cannot predict with certainty what labor market conditions
will be during the second half of FY 2024, they believe that the
structure of this TFR is reasonable because: (1) the availability of
the second half FY supplemental visas is contingent on the exhaustion
of the second half FY statutory cap, (2) strong historical demand for
H-2B workers, and (3) mainstream estimates of labor market conditions
for FY 2024 indicate a continuation of labor market tightness from a
historical perspective.\185\
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\185\ September 2023 Federal Open Market Committee (FOMC)
projections for unemployment rate in 2024 ranged from 3.7 to 4.5%
with central tendency more tightly clustered between 3.9 and 4.4%.
See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm (last accessed Sept. 29, 2023).
\186\ USCIS analysis of OFLC Performance data. All data are for
applications listed as having a case status of ``Certification'',
``Partial Certification'', ``Determination--Certification'', or
``Determination--Partial Certification''. Furthermore, data have
been adjusted to a fiscal year using the employment begin date
provided on the TLC application. As such, counts differ from counts
based on the Disclosure Files of OFLC H-2B Performance data. This
adjustment was made so that the OFLC data more closely align to
USCIS I-129 data. Data for FY 2023 include data through the end of
quarter 3.
\187\ Averages are rounded to the nearest whole number.
[GRAPHIC] [TIFF OMITTED] TR17NO23.029
With respect to historical demand for H-2B workers, Table 3 makes
two important points supporting the Departments' decision to structure
this rule in a manner that covers the entire fiscal year. First, Table
3 shows that H-2B demand, as represented by the number of workers
requested on certified TLCs, has outpaced the statutorily capped
allotment of H-2B visas. This demonstrates that, in aggregate, there is
sufficient demand for the entire supplementary allocation that the
Departments are making available. To that end, the 5-year average of
workers requested on certified TLCs, 154,636, would still completely
exhaust the total supplemental allocation made available by the TFR.
Second, Table 3 demonstrates that within a given fiscal year, demand
for H-2B workers is particularly strong in the second half of the
fiscal year. On average over the last 5 fiscal years, H-2B employers
have requested 97,182 employees with start dates on April 1 or later,
which would completely exhaust the 24,000 \188\ total supplemental H-2B
visas explicitly set aside for workers with employment start dates in
the second half of FY 2024. Given these conditions, the Departments
believe that the decision to authorize a second half supplement is
reasonable.
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\188\ 19,000 visas for returning workers and 5,000 visas for
filers with employment start dates May 15, 2024 or later.
---------------------------------------------------------------------------
In terms of the actual distribution of the visas being made
available by the Rule, the Departments have determined that up to
44,716 of the 64,716 supplemental visas will be limited to returning H-
2B returning workers for nationals of any country. These individuals
must be workers who were issued H-2B visas or were otherwise granted H-
2B status in fiscal years 2021, 2022, or 2023. The 44,716 visas for
returning workers will be divided into three separate allocations that
will be available to petitioners over the fiscal year. The first
allocation is comprised of 20,716 visas for returning workers with
requested start dates between October 1, 2023, and March 31, 2024.
These visas will be available to petitioners immediately upon the
publication of the rule. The second allocation is comprised of 19,000
visas for returning workers with requested start dates between April 1,
2024, and May 14, 2024. These visas will be available to petitioners 15
calendar days after the second half statutory cap of 33,000 visas is
reached. The third allocation is comprised of 5,000 visas for returning
workers with requested start dates between May 15, 2024, and September
30, 2024. These visas will be available to petitioners 45 calendar days
after the second half statutory cap of 33,000 visas is reached.
---------------------------------------------------------------------------
\189\ See https://www.federalregister.gov/documents/2022/12/15/2022-27236/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-fy-2023-for-the-h-2b (accessed September
26, 2023).
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The inclusion of an allocation of visas specifically for those
petitioners with employment needs starting on or after May 15 is in
response to trends in TLC data. As stated in the FY 2023 H-2B TFR, the
relative demand in FY 2016 for workers with start dates later in the
fiscal year was higher relative to recent years. More specifically,
data for FY 2016 show that approximately 45.51 percent of certified
TLCs requested workers with start dates in April while 17.93 percent of
certified TLCs requested workers with start dates after April.\189\
Table 4 and Table 5 demonstrate that the 5-year average for these
values skew toward April start dates. The increase in the relative
prevalence of April 1 start dates since 2016 raises the question
whether petitioners with employment needs later in the fiscal year may
not have the opportunity to utilize the H-2B program because the supply
of supplemental visas is already exhausted by the time a petitioner
with a later start date can file a TLC and receive eligibility to
request workers on Form I-129. Under DOL regulations, employers must
apply for a TLC 75 to 90 days before the start
[[Page 80441]]
date of work.\190\ Employers must have a DOL-approved TLC before filing
their Form I-129 request for H-2B workers with USCIS. Because the
availability of H-2B visas is limited by statute and regulation, USCIS
generally announces to the public when it has received a sufficient
number of I-129 petitions, and by extension H-2B beneficiaries, to
exhaust the respective H-2B visa allocation.\191\ USCIS rejects H-2B I-
129 petitions that are received after USCIS has determined that a given
allocation has been fully utilized. Functionally, this means that a
subset of petitioners that would utilize H-2B workers given the chance
may not be able to do so because the available visas have already been
allocated before they can petition USCIS for the necessary workers.
Using OFLC TLC data, Table 4 illustrates that relative to 2016, when
employers of returning workers had greater flexibility in determining
TLC-requested start dates, requested H-2B employment start dates have
become increasingly concentrated in April.\192\
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\190\ See 20 CFR 655.15(b).
\191\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
\192\ Tables 4 and 5 contain USCIS analysis of OFLC Performance
data. All data are for applications listed as having a case status
of ``Certification'', ``Partial Certification'', ``Determination--
Certification'', or ``Determination--Partial Certification.''
Furthermore, data have been adjusted to a fiscal year using the
employment begin date provided on the TLC application. As such,
counts differ from counts based on the Disclosure Files of OFLC H-2B
Performance data. This adjustment was made so that the OFLC data
more closely align to USCIS I-129 data.
[GRAPHIC] [TIFF OMITTED] TR17NO23.030
[GRAPHIC] [TIFF OMITTED] TR17NO23.031
[[Page 80442]]
This has given rise to the concern that this proliferation of April
start dates may be crowding out employers with labor needs later in the
season (shown in Table 5). These data suggest there may be structural
barriers that preclude employers with later start dates from being able
to employ needed workers through the H-2B program. To illustrate, in FY
2016, a temporary statutory provision exempted certain H-2B visas from
the cap that had been counted against the cap in any of the three prior
fiscal years. Data from FY 2016 show a much higher incidence of
employers that request relatively later start dates, suggesting that
employers with late-season needs would use the H-2B program but for the
unavailability of visas.
As part of the FY 2023 TFR, USCIS made 10,000 visas available to
petitioners with start dates later in the season (after May 15). The
goal for this separate allocation was to address this potentially
inequitable situation and to take steps towards collecting information
through that rule to determine whether such a structural barrier
exists. As of September 2023, approximately 72 percent of the late-
season filer allocation was used.\193\ Preliminary analysis of Form I-
129 filings under the late-season filer allocation suggests some
variation in the demand by industry appeared for this allocation.
Specifically, petitioners in the Seafood Product Preparation and
Packaging industry (NAICS 3117), appeared to respond to the
availability of the late-season filer allocation. This industry
historically requested temporary H-2B workers during the first half of
the fiscal year for both statutory caps and any available supplemental
allocations, such that well over 50 percent of the total industry
beneficiaries were for the first half of a given fiscal year.\194\ For
FY 2023, however, approximately 47 percent of industry beneficiaries
were requested under first half caps while almost 22 percent were
requested under the late-season filer allocation.\195\ This data point,
while limited, provides some evidence that certain industries may be
able to more efficiently fulfill their temporary labor needs by
petitioning for beneficiaries under this cap.
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\193\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, Data queried 09/2023, TRK 12921. Calculation: 7,198
beneficiaries granted visas under the late-season filer allocation/
10,000 visas allocated = 71.98% utilization.
\194\ For Fiscal Years 2018 through 2022, Petitioners in NAICS
3117 were approved for 49,332 non cap-exempt beneficiaries. Of that
total, 31,204 were approved for the 1st half of a fiscal year,
yielding a rate of 63% (rounded).
\195\ USCIS Analysis as of 7/29/2023, Office of Performance and
Quality, SAS PME C3 Consolidated, Data queried 07/2023, TRK 12149.
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While DOL TLC data indicates that there was sufficient employer
demand to exhaust the late-season filer allocation, the Form I-129
filing data mentioned above indicates that fewer employers took the
subsequent (and necessary) step of filing for supplemental workers
under this cap.\196\ Therefore, the Departments' experience with the
late-season filer allocation under the prior TFR confirms that the
demand for workers with later start dates exists, though it may not be
fully reflected in petition filings. To that end, USCIS has elected to
scale down this allocation, as mentioned in the preamble.
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\196\ See DOL H-2B public disclosure data for FY 2023 covering
applications processed on and after October 1, 2022, through June
30, 2023, at Performance Data [verbar] U.S. Department of Labor
(https://www.dol.gov/agencies/eta/foreign-labor/performance).
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The Secretaries have also determined that up to 20,000 of the
64,716 additional visas will be reserved for workers who are nationals
of the countries included in the country-specific allocation and that
these 20,000 workers will be exempt from the returning worker
requirement. These visas will be available for the entirety of the
fiscal year and do not have limitations regarding the requested start
date of the H-2B beneficiaries' employment within the fiscal year. If
the 20,000-visa limit has been reached, a petitioner may request H-2B
visas for workers who are nationals of the countries included in the
country-specific allocation but these workers must be returning
workers.
The Departments note that they are committed to analyzing the
results and impacts of this and future H-2B supplemental visa TFRs in a
holistic manner, and have attempted to fully quantify the potential
impacts of the FY 2024 TFR, where time and data allow.
3. Population
This rule will affect those employers that file Form I-129 on
behalf of nonimmigrant workers they seek to hire under the H-2B visa
program. More specifically, this rule will affect those employers that
can establish that their business is suffering irreparable harm or will
suffer impending irreparable harm without the ability to employ all the
H-2B workers requested on their petition and without the exercise of
authority that is the subject of this rule. Due to historical trends
and strong demand for the H-2B program (see Table 3), the Departments
believe that it is reasonable to assume that the population of eligible
petitioners for these additional 64,716 visas will generally be the
same population as those employers that would already complete the
steps to receive an approved TLC irrespective of this rule. One
exception is the population of late season employers, described below.
This rulee will also have additional impacts on the population of
H-2B employers and workers presently in the United States by permitting
some H-2B workers to port to another certified H-2B employer. These H-
2B workers will continue to earn wages and gaining employers will
continue to obtain necessary workers.
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\197\ See, e.g., https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022.
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a. Population That Will File a Form I-129, Petition for a Nonimmigrant
Worker
As discussed above, the population that will file a Form I-129 is
necessarily limited to those business that have already established
that their business is suffering irreparable harm or will suffer
impending irreparable harm without the ability to employ all the H-2B
workers requested on their petition and without the exercise of
authority that is the subject of this rule. Because the number of
supplementary visas available is finite, USCIS has generally informed
the public when the number of submitted Form I-129 petitions and, by
extension, the number of respective beneficiaries is enough to exhaust
the supply of supplemental visas.\197\
[[Page 80443]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.032
Table 6 shows the total supplemental H-2B visa allocations issued
by the Departments in each fiscal year since 2017,\200\ including the
total number of petitions and the total number of beneficiaries
submitted under a supplement in each fiscal year. Using the historical
average of 14.85 beneficiaries per petition for supplemental visas
derived in Table 6, USCIS anticipates that 4,358 Forms I-129 will be
submitted as a result of this temporary final rule.\201\
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\198\ In Fiscal Year 2021, the Departments authorized a single
supplemental allocation which was divided between returning workers
and workers from specific countries. See https://www.federalregister.gov/documents/2021/05/25/2021-11048/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2021-numerical-limitation-for-the (accessed October 6, 2023).
\199\ In Fiscal Year 2022, the Departments authorized two
separate supplemental allocations of H-2B Visas, with each being
further divided between returning workers and workers from specific
countries. See https://www.federalregister.gov/documents/2022/01/28/2022-01866/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2022-numerical-limitation-for-the; https://www.federalregister.gov/documents/2022/05/18/2022-10631/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-second-half-of-fy-2022.
\200\ FY 2020 was not included due to the suspension of
additional H-2B visas to be released in 2020. DHS also noted that
the Department of State had suspended routine visa services.
\201\ Calculation for expected petitions. If each I-129 requests
14.85 workers, we'd expect to see 4,358 petitioners exhausting the
64,716 supplement allocated this year: 64,716 / 14.85 = 4,358
(rounded).
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Using the estimates in Table 6, the Departments further estimate
that the allocation of 5,000 visas for late season filers made by this
TFR, addressing the disadvantage these employers face in accessing
scarce H-2B visas, will result in 337 \202\ additional Form ETA-9142B
requests to DOL, assuming each late season visa requestor submits a TLC
and Form I-129 for the historic average of 14.85 beneficiaries. The
number of additional Form ETA-9142B requests could be lower if some
petitioners that would have filed for April 1 start dates in the
absence of this TFR change their behavior to request late season
workers as a result of this allocation. Alternatively, this number
could be higher if late season filers are at a larger disadvantage in
accessing H-2B workers than recent data suggests. The Departments
commit to monitoring the utilization of these late season FY24 visas to
determine if this carve-out promotes access, as anticipated, to
employers with needs for workers later in the second half of the fiscal
year but that have faced obstacles to accessing H-2B workers in the
past.
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\202\ Calculation for expected late season TLCs: 5,000 visas /
14.85 beneficiaries per petition = 337 TLCs (rounded down).
---------------------------------------------------------------------------
USCIS recognizes that some employers will have to submit two I-129
Forms if they choose to request H-2B workers under both the returning
worker and country-specific caps. At this time, USCIS cannot predict
how many employers will choose to take advantage of more than one
allocation, and therefore recognizes that the number of petitions may
be underestimated.
b. Population That Files Form G-28, Notice of Entry of Appearance as
Attorney or Accredited Representative
If a lawyer or accredited representative submits Form I-129 on
behalf of the petitioner, Form G-28, Notice of Entry of Appearance as
Attorney or Accredited Representative, must accompany the Form I-129
submission.\203\ Using data from FY 2018 to FY 2022, we estimate that a
lawyer or accredited representative will file 47.21 percent of Form I-
129 petitions. Table 7 shows the percentage of Form I-129 H-2B
petitions that were accompanied by a Form G-28. Therefore, we estimate
that in-house or outsourced lawyers will file 2,057 Forms I-129 and
Forms G-28, and that human resources (HR) specialists will file 2,301
Forms I-129.\204\
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\203\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
\204\ Calculation: 4,358 estimated additional petitions * 47.21
percent of petitions filed by a lawyer = 2,057 (rounded) petitions
filed by a lawyer.
Calculation: 4,358 estimated additional petitions-2,057
petitions filed by a lawyer = 2,301 petitions filed by an HR
specialist.
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[[Page 80444]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.033
c. Population That Files Form I-907, Request for Premium Processing
Service
Employers may use Form I-907, Request for Premium Processing
Service, to request faster processing of their Form I-129 petitions for
H-2B visas. Table 8 shows the percentage of Form I-129 H-2B petitions
that were filed with a Form I-907. Using data from FY 2018 to FY 2022,
USCIS estimates that approximately 91.43 percent of Form I-129 H-2B
petitioners will file a Form I-907 requesting premium processing. Based
on this historical data, USCIS estimates that 3,985 Forms I-907 will be
filed with the Forms I-129 as a result of this rule.\205\ Of these
3,985 premium processing requests, we estimate that in-house or
outsourced lawyers will file 1,881 Forms I-907 and HR specialists or an
equivalent occupation will file 2,104.\206\
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\205\ Calculation: 4,358 estimated additional petitions * 91.43
percent premium processing filing rate = 3,985 (rounded) additional
Form I-907.
\206\ Calculation: 3,985 additional Form I-907 * 47.21 percent
of petitioners represented by a lawyer = 1,881 (rounded) additional
Form I-907 filed by a lawyer.
Calculation: 3,985 additional Form I-907-1,881 additional Form
I-907 filed by a lawyer = 2,104 additional Form I-907 filed by an HR
specialist.
[GRAPHIC] [TIFF OMITTED] TR17NO23.034
[[Page 80445]]
d. Population That Files Form ETA-9142-B-CAA-8, Attestation for
Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 303
of Division O of the Consolidated Appropriations Act, 2023, Public Law
117-328, as Extended by Sections 101(6) and 106 of Division A of the
Continuing Appropriations Act, 2024 and Other Extensions Act, Public
Law 118-15
Petitioners seeking to take advantage of this FY 2024 H-2B
supplemental visa cap will need to file a Form ETA-9142-B-CAA-8
attesting that their business is suffering irreparable harm or will
suffer impending irreparable harm without the ability to employ all the
H-2B workers requested on the petition, comply with third-party
notification, and maintain required records, among other requirements.
DOL estimates that each of the 4,358 petitions will need to be
accompanied by Form ETA-9142-B-CAA-8 and petitioners filing these
petitions and attestations will incur burdens complying with the
evidentiary requirements.
e. Population of Late Season Employers That File Form ETA-9142B,
Application for Temporary Employment Certification
As Table 3 demonstrated, historical data strongly indicate that
there will be sufficient demand such that only those petitioners that
utilize the late season allocation of supplemental visas will need to
file an additional Form ETA-9142B. Assuming that the historical average
of 14.85 beneficiaries per I-129 petition holds, 337 \207\ petitioners
will need to file Form ETA-9142B as a direct result of the provision
reserving 5,000 visas for beneficiaries of these employers. Given
estimates from Table 7 of the percentage of Form I-129 H-2B petitions
accompanied by a Form G-28, we estimate that in-house or outsourced
lawyers will file 159 of these Forms ETA-9142B, and that human
resources (HR) specialists will file 178 Forms ETA-9142B.\208\
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\207\ Calculation for expected late season TLCs: 5,000 late
season visas/14.85 beneficiaries per petition = 337 TLCs (rounded
up).
\208\ Calculation: 337 estimated additional requests * 47.21
percent of petitions filed by a lawyer (see Table 5) = 159 (rounded)
ETA-9142-B requests filed by a lawyer.
Calculation: 337 estimated additional requests-159 requests
filed by a lawyer = 178 requests filed by an HR specialist.
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f. Population That Must Undergo Additional Recruitment Activities
An employer that files Form ETA-9142B-CAA-8 and the I-129 petition
30 or more days after the certified start date of work must conduct
additional recruitment of U.S. workers. This consists of placing a new
job order with the State Workforce Agency (SWA), contacting the
relevant American Job Center (AJC), contacting former U.S. workers,
contacting the bargaining representative or posting the job order in
the places and manner described in 20 CFR 655.45(b) if there is no
bargaining representative, contacting current U.S. workers, posting the
job to the company's website if it maintains one and, if applicable,
contacting the AFL-CIO.
The Departments assume that, due to the timing of the publication
of the rule, only petitioners that file for H-2B workers under the
first half supplemental allocation of 20,716 workers will incur burdens
associated with this additional recruitment. By utilizing the average
number of beneficiaries per Form I-129 petition established in Table 6,
the Departments estimate that the population of petitioners that would
need to fulfill the additional recruitment requirements would be
1,395.\209\
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\209\ Calculation: 20,716 workers in the 1st half returning
working supplemental allocation/14.85 workers per petitioner = 1,395
(rounded) petitioners required to undertake additional recruitment.
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g. Population Affected by the Portability Provision
The population affected by this provision are nonimmigrants in H-2B
status who are present in the United States and the employers with
valid TLCs seeking to hire H-2B workers. We use the population of
66,000 H-2B workers authorized by statute and the 64,716 additional H-
2B workers authorized by this rule as a proxy for the H-2B population
that could be currently present in the United States.\210\ USCIS uses
the number of Forms I-129 filed for extension of stay due to change of
employer relative to the Forms I-129 filed for new employment from FY
2016 to FY 2020, the five years prior to the implementation of the
first portability provision in a H-2B supplemental cap TFR, to estimate
the baseline rate. We compare the average rate from FY 2016-FY 2020 to
the average rate from FY 2021-FY 2023. Table 9 presents the number of
Forms I-129 filed for extensions of stay due to change of employer and
Forms I-129 filed for new employment for Fiscal year 2016 FY through FY
2020. The average rate of extension of stay due to change of employer
compared to new employment is approximately 12.6 percent.
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\210\ H-2B workers may have varying lengths in time approved on
their H-2B visas. This number may overestimate H-2B workers who have
already completed employment and departed and may underestimate H-2B
workers not reflected in the current cap and long-term H-2B workers.
In FY 2021, USCIS approved 735 requests for change of status to H-
2B, and Customs and Border Protection (CBP) processed 1,341
crossings of visa-exempt H-2B workers. See Characteristics of H-2B
Nonagricultural Temporary Workers FY2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (accessed April 4, 2022). USCIS assumes
some of these workers, along with current workers with a valid H-2B
visa under the cap, could be eligible to port under this new
provision. USCIS does not know the exact number of H-2B workers who
would be eligible to port at this time but uses the cap and
supplemental cap allocations as a possible proxy for this
population.
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[[Page 80446]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.035
In FY 2021, the first year an H-2B supplemental cap included a
portability provision, there were 1,113 Forms I-129 filed for extension
of stay due to change of employer compared to 7,206 Forms I-129 filed
for new employment.\211\ In FY 2022, there were 1,795 Forms I-129 filed
for extension of stay due to change of employer compared to 9,231 Forms
I-129 filed for new employment.\212\ In FY 2023, there were 2,113 Forms
I-129 filed for extension of stay due to change of employer compared to
9,579 Forms I-129 filed for new employment.\213\ Over the period when a
portability provision was in place for H-2B workers, the rate of Form
I-129 for extension of stay due to change of employer relative to new
employment is 19.3 percent.\214\ This is above the 12.6 percent rate
expected without a portability provision. 19.3 percent is our estimate
of the rate expected in periods with a portability provision in the
supplemental visa allocation. Using the 4,358 as our estimate for the
number of Forms I-129 filed for H-2B new employment in FY 2024, we
estimate that 549 Forms I-129 for extension of stay due to change of
employer would be filed in absence of this provision.\215\ With this
portability provision, we estimate that 841 Forms I-129 for extension
of stay due to change of employer would be filed.\216\ This difference
results in 292 additional Forms I-129 as a result of this
provision.\217\ As previously estimated, we expect that about 47.21
percent of Form I-129 petitions will be filed by an in-house or
outsourced lawyer. Therefore, we expect that a lawyer will file 138 of
these petitions and an HR specialist or equivalent occupation will file
the remaining 154.\218\ Previously in this analysis, we estimated that
about 91.43 percent of Form I-129 H-2B petitions are filed with Form I-
907 for premium processing. As a result of this portability provision,
we expect that an additional 267 Forms I-907 will be filed.\219\ We
expect a lawyer to file 126 of those Forms I-907 and an HR specialist
to file the remaining 141.\220\
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\211\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, Data queried 09/2023, TRK 12921
\212\ See Id.
\213\ See Id.
\214\ Calculation, Step 1: 1,113 Form I-129 petitions for
extension of stay due to change of employer FY 2021 + 1,795 Form I-
129 petitions for extension of stay due to change of employer in FY
2022 + 2,113 Form I-129 petitions for extension of stay due to
change of employer FY 2023 = 5,021 Form I-129 petitions filed
extension of stay due to change of employer in portability provision
years.
Calculation, Step 2: 7,206 Form I-129 petitions filed for new
employment in FY 2021 + 9,231 Form I-129 petitions filed for new
employment in FY 2022 + 9,579 Form I-129 petitions filed for new
employment in FY 2023 = 26,016 Form I-129 petitions filed for new
employment in portability provision years.
Calculation, Step 3: 5,021 extension of stay due to change of
employment petitions/26,016 new employment petitions = 19.3 percent
rate of extension of stay due to change of employment to new
employment (rounded).
\215\ Calculation: 4,358 Form I-129 H-2B petitions filed for new
employment * 12.6 percent = 549 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer, no
portability provision.
\216\ Calculation: 4,358 Form I-129 H-2B petitions filed for new
employment * 19.3 percent = 841 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision.
\217\ Calculation: 841 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision-549 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer, no
portability provision = 292 Form I-129 H-2B petition increase as a
result of portability provision.
\218\ Calculation, Lawyers: 292 additional Form I-129 due to
portability provision * 47.21 percent of Form I-129 for H-2B
positions filed by an attorney or accredited representative = 138
(rounded) estimated Form I-129 filed by a lawyer.
Calculation, HR specialist: 292 additional Form I-129 due to
portability provision-138 estimated Form I-129 filed by a lawyer =
154 estimated Form I-129 filed by an HR specialist.
\219\ Calculation: 292 Form I-129 H-2B petitions * 91.43 percent
premium processing filing rate = 267 (rounded) Forms I-907.
\220\ Calculation, Lawyers: 267 Forms I-907 * 47.21 percent
filed by an attorney or accredited representative = 126 (rounded)
Forms I-907 filed by a lawyer.
Calculation, HR specialists: 267 Forms I-907-126 Forms I-907
filed by a lawyer = 141 Forms I-907 filed by an HR specialist.
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h. Population Affected by the Audits
Under this time-limited FY 2024 H-2B supplemental cap rule, DHS
intends to conduct 250 audits of employers hiring H-2B workers, and DOL
intends to conduct 100 audits of employers hiring H-2B workers. The
determination of which employers will be audited will be done at the
discretion of the Departments, though the agencies will coordinate so
that no employer is audited by both DOL and DHS. Therefore, the Federal
Government expects to conduct a total of 350 audits
[[Page 80447]]
on employers that petition for H-2B workers under this TFR.\221\
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\221\ These 350 audits are separate and distinct from WHD's
investigations pursuant to its existing enforcement authority.
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i. Population Affected by Additional Scrutiny
DHS expects that petitioners that have been cited by WHD for H-2B
program violations will undergo additional scrutiny from USCIS. To
estimate the number of firms expected to undergo increased scrutiny, we
utilize DOL's Wage and Hour Compliance Action Data.\222\ The data
available here is for concluded cases. Table 10 presents the number of
employers that were cited for H-2B violations that have a worker
protection violation end date in FYs 2018-2022. The worker protection
violation end date is established based on the ``findings end date,''
which represents the date that the last worker protection violation
occurred in the concluded case. During FY 2018-2022, on average 77
(rounded) employers that were cited for H-2B violations had a worker
protection violation end date each year. USCIS intends to request
evidence from employers cited for H-2B violations with a worker
protection violation end date in the last two years. Therefore, for
purposes of this analysis, we expect 154 petitioners will undergo
additional scrutiny from USCIS.\223\
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\222\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed September 22, 2023).
\223\ It is possible not every employer that has been cited for
an H-2B violation in the last two years will petition for H-2B
employees under this supplemental cap authority. DHS considers an
upper limit of 154 to be a reasonable estimate of the number of
petitioners that will undergo additional scrutiny.
[GRAPHIC] [TIFF OMITTED] TR17NO23.036
j. Population Expected To Familiarize Themselves With This Rule
DHS expects employers that have filed for TLCs to familiarize
themselves with this rule. Table 3 shows that the average number of
certifications over the last five FYs is 7,739. We use the TLC
population, rather than the estimated 4,358 expected to file a Form I-
129 petition, because employers that have applied for TLCs would need
to familiarize themselves with the rule in order to determine whether
or not to subsequently file a Form I-129 petition.
We expect a HR specialist, in-house lawyer, or outsourced lawyer
will perform familiarization with the rule at the same rate as
petitioners that file a Form G-28. As discussed above, an estimated
47.21 percent of petitioners are submitted by lawyers. Therefore, we
estimate that 3,654 lawyers and 4,085 HR specialists will incur
familiarization costs.\224\
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\224\ Calculation for lawyers: 7,739 estimated applicants *
47.21 percent represents by a lawyer = 3,654 (rounded) represented
by a lawyer.
Calculation for HR specialists: 7,739 approved, pending, and
projected applicants-3,654 represented by a lawyer = 4,085
represented by an HR specialist.
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4. Cost-Benefit Analysis
The provisions of this rule require the submission of a Form I-129
H-2B petition. The costs for this form include the opportunity cost of
time to complete and submit the form.\225\ The estimated time to
complete and file Form I-129 for H-2B classification is 4.34
hours.\226\ A U.S. employer, a U.S. agent, or a foreign employer filing
through the U.S. agent must file the petition. DHS estimates that an
in-house or outsourced lawyer will file 47.21 percent of Form I-129 H-
2B petitions, and an HR specialist or equivalent occupation will file
the remainder (52.79 percent). DHS presents estimated costs for HR
specialists filing Form I-129 petitions and an estimated range of costs
for in-house lawyers or outsourced lawyers filing Form I-129 petitions.
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\225\ Filing fees are not considered costs to society. These
fees have been accounted for as a transfer from petitioners to
USCIS.
\226\ The public reporting burden for this form is 2.34 hours
for Form I-129 and an additional 2.00 hours for H Classification
Supplement, totaling 4.34 hours. See Form I-129 instructions at
https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed September 28, 2023).
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To estimate the total opportunity cost of time to HR specialists
who complete and file Form I-129, DHS uses the mean hourly wage rate of
HR specialists of $35.13 as the base wage rate.\227\ If petitioners
hire an in-house or outsourced lawyer to file Form I-129 on their
behalf, DHS uses the mean hourly wage rate $78.74 as the base wage
rate.\228\ Using the most recent BLS data, DHS calculated a benefits-
to-wage multiplier of 1.45 to estimate the full wages to include
benefits such as paid leave, insurance, and retirement.\229\ DHS
multiplied the average hourly U.S. wage rate for HR specialists and for
in-house lawyers by the benefits-to-wage
[[Page 80448]]
multiplier of 1.45 to estimate total compensation to employees. The
total compensation for an HR specialist is $50.94 per hour, and the
total compensation for an in-house lawyer is $114.17 per hour.\230\ In
addition, DHS recognizes that an entity may not have an in-house lawyer
and may seek outside counsel to complete and file Form I-129 on behalf
of the petitioner. Therefore, DHS presents a second wage rate for
lawyers labeled as outsourced lawyers. DHS recognizes that the wages
for outsourced lawyers may be much higher than in-house lawyers and
therefore uses a higher compensation-to-wage multiplier of 2.5 for
outsourced lawyers.\231\ DHS estimates the total compensation for an
outsourced lawyer is $196.85 per hour.\232\ If a lawyer submits Form I-
129 on behalf of the petitioner, Form G-28 must accompany the Form I-
129 petition.\233\ DHS estimates the time burden to complete and submit
Form G-28 for a lawyer is 50 minutes (0.83 hour, rounded).\234\ For
this analysis, DHS adds the time to complete Form G-28 to the
opportunity cost of time to lawyers for filing Form I-129 on behalf of
a petitioner. This results in a time burden of 5.17 hours for in-house
lawyers and outsourced lawyers to complete Form G-28 and Form I-
129.\235\ Therefore, the total opportunity cost of time per petition
for an HR specialist to complete and file Form I-129 is approximately
$221.08, for an in-house lawyer to complete and file Forms I-129 and G-
28 is about $590.26, and for an outsourced lawyer to complete and file
is approximately $1,017.71.\236\
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\227\ U.S. Department of Labor, Bureau of Labor Statistics,
``May 2022 National Occupational Employment and Wage Statistics''
Human Resources Specialist (13-1071), Mean Hourly Wage, available at
https://www.bls.gov/oes/2022/may/oes131071.htm (accessed September
13, 2023).
\228\ U.S. Department of Labor, Bureau of Labor Statistics.
``May 2022 National Occupational Employment and Wage Estimates''
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/oes/2022/may/oes231011.htm (accessed September 13,
2023).
\229\ Calculation: $42.48 mean Total Employee Compensation per
hour for civilian workers/$29.32 mean Wages and Salaries per hour
for civilian workers = 1.45 benefits-to-wage multiplier. See
Economic News Release, Bureau of Labor Statistics, U.S. Department
of Labor, Employer Costs for Employee Compensation--December 2022
Table 1. Employer Costs for Employee Compensation by ownership,
Civilian workers, available at https://www.bls.gov/news.release/archives/ecec_03172023.pdf (accessed September 13, 2023).
\230\ Calculation, HR specialist: $35.13 mean hourly wage * 1.45
benefits-to-wage multiplier = $50.94 hourly total compensation
(hourly opportunity cost of time).
Calculation, In-house Lawyer: $78.74 mean hourly wage * 1.45
benefits-to-wage multiplier = $114.17 hourly total compensation
(hourly opportunity cost of time).
\231\ The DHS ICE ``Safe-Harbor Procedures for Employers Who
Receive a No-Match Letter'' acknowledges that ``the cost of hiring
services provided by an outside vendor or contractor is two to three
times more expensive than the wages paid by the employer for that
service produced by an in-house employee,'' based on information
received in public comment to that rule. We believe the explanation
and methodology used in the Final Small Entity Impact Analysis
(SEIA) remains sound for using 2.5 as a multiplier for outsourced
labor wages in this rule: Safe Harbor Procedures for Employers Who
Receive a No-Match Letter: Clarification; Final Regulatory
Flexibility Analysis, 73 FR 63843 (Oct. 28, 2008), available at
https://www.regulations.gov/document/ICEB-2006-0004-0921 (accessed
Sep. 29, 2023). See also Exercise of Time-Limited Authority To
Increase the Fiscal Year 2022 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28,
2022), available at https://www.regulations.gov/document/DHS-2022-0010-0001 (accessed September 29, 2023).
\232\ Calculation, Outsourced Lawyer: $78.74 mean hourly wage *
2.5 benefits-to-wage multiplier = $196.85 hourly total compensation
(hourly opportunity cost of time).
\233\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed October 11, 2023).
\234\ USCIS, G-28, Instructions for Notice of Entry of
Appearance as Attorney or Accredited Representative, https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf.
Calculation: 50 minutes/60 minutes per hour = 0.83 hour
(rounded).
\235\ Calculation: 0.83 hour to file Form G-28 + 4.34 hours to
file Form I-129 = 5.17 hours to file both forms.
\236\ Calculation, HR specialist files Form I-129: $50.94 hourly
opportunity cost of time * 4.34 hours = $221.08 opportunity cost of
time per petition.
Calculation, In-house Lawyer files Form I-129 and Form G-28:
$114.17 hourly opportunity cost of time * 5.17 hours = $590.26
opportunity cost of time per petition.
Calculation, Outsourced Lawyer files Form I-129 and Form G-28:
$196.85 hourly opportunity cost of time * 5.17 hours = $1,017.71
opportunity cost of time per petition.
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a. Transfers
i. Transfers From Petitioners to the Government
The provisions of this rule require the submission of a Form I-129
H-2B petition. The transfers for this form include the filing costs to
submit the form. The current filing fee for Form I-129 is $460 and
employers filing H-2B petitions must submit an additional fee of
$150.\237\ These filing fees are not a cost to society or an
expenditure of new resources but a transfer from the petitioner to
USCIS in exchange for agency services. DHS anticipates that petitioners
will file 4,358 Forms I-129 due to the rule's supplemental visa
allocation and an additional 292 Forms I-129 due to the rule's
portability provision. The total value of transfers from petitioners to
the Government for Form I-129 filings due to the rule is
$2,836,500.\238\
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\237\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed
September 28, 2023). See also 8 U.S.C. 1184(c)(13).
\238\ Calculation: (4,358 petitions + 292 petitions) * $610 per
petition = $2,836,500.
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Additionally, employers may use Form I-907 to request premium
processing of Form I-129 petitions for H-2B visas. The filing fee for
Form I-907 for H-2B petitions is $1,500. Based upon historical trends,
USCIS expects that 91.43 percent of petitioners will file a Form I-907
in addition to their Form I-129. Applying that rate to the expected
number of Forms I-129 would result in 4,252 Forms I-907 filed due to
the rule.\239\ Transfers from petitioners to the Government related to
the filing of Forms I-907 as a result of the rule are $6,378,000.\240\
Total transfers from petitioners to the Government are $9,214,500.\241\
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\239\ Calculation (4,358 petitions + 292 petitions) * 91.43 Form
I-907 rate = 4,252 Forms I-907.
\240\ Calculation: $1,500 per petition * 4,252 Forms I-907 =
$6,378,000
\241\ Calculation: $2,836,500 + $6,378,000 = $9,214,500.
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b. Cost to Petitioners
As mentioned in Section 3, the estimated population impacted by
this rule is 4,358 eligible petitioners that are projected to apply for
the additional 64,716 H-2B visas, with 20,000 of those additional visas
reserved for employers that will petition for workers who are nationals
of the countries included in the country-specific allocation, who are
exempt from the returning worker requirement.
i. Costs to Petitioners To File Form I-129 and Form G-28
As discussed above, DHS estimates that HR specialists will file an
additional 2,301 petitions using Form I-129 and lawyers will file an
additional 2,057 petitions using Form I-129 and Form G-28. DHS
estimates the total cost to file Form I-129 petitions if filed by HR
specialists is $508,705 (rounded).\242\ DHS estimates the total cost to
file Form I-129 petitions and Form G-28 if filed by lawyers will range
from $1,214,165 (rounded) if only in-house lawyers file these forms, to
$2,093,429 (rounded) if only outsourced lawyers file them.\243\
Therefore, the estimated total cost to file Form I-129 and Form G-28
range from $1,722,870 and $2,602,134.\244\
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\242\ Calculation, HR specialist: $221.08 cost per petition *
2,301 Form I-129 = $508,705 (rounded) total cost.
\243\ Calculation, In-house Lawyer: $590.26 cost per petition *
2,057 Form I-129 and Form G-28 = $1,214,165 (rounded) total cost.
Calculation, Outsourced Lawyer: $1,017.71 cost per petition *
2,057 Form I-129 and Form G-28 = $2,093,429 (rounded) total cost.
\244\ Calculation: $508,705 total cost of Form I-129 filed by HR
specialists + $1,214,165 total cost of Form I-129 and Form G-28
filed by in-house lawyers = $1,722,870 estimated total costs to file
Form I-129 and G-28.
Calculation: $508,705 total cost of Form I-129 filed by HR
specialists + $2,093,429 total cost of Form I-129 and G-28 filed by
outsourced lawyers = $2,602,134 estimated total costs to file Form
I-129 and G-28.
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ii. Costs to File Form I-907
Employers may use Form I-907 to request premium processing of Form
I-129 petitions for H-2B visas. The filing fee for Form I-907 for H-2B
petitions is $1,500, and the time burden for completing the form is 35
minutes (0.58 hour).245 246 Using the wage rates
[[Page 80449]]
established previously, the opportunity cost of time to file Form I-907
is approximately $29.55 for an HR specialist, $66.22 for an in-house
lawyer, and $114.17 for an outsourced lawyer.\247\
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\245\ The filing fee is a transfer from the petitioner
requesting premium processing and proxy for the total costs to
USCIS.
\246\ See Form I-907 instructions at https://www.uscis.gov/i-907
(accessed September 22, 2023).
Calculation: 35 minutes/60 minutes per hour = 0.58 (rounded)
hour.
\247\ Calculation, HR specialist Form I-907: $50.94 hourly
opportunity cost of time * 0.58 hour = $29.55 opportunity cost of
time per request.
Calculation, In-house Lawyer Form I-907: $114.17 hourly
opportunity cost of time * 0.58 hour = $66.22 opportunity cost of
time per request.
Calculation, Outsourced Lawyer Form I-907: $196.85 hourly
opportunity cost of time * 0.58 hour = $114.17 opportunity cost of
time per request.
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As discussed above, DHS estimates that HR specialists will file an
additional 2,104 Form I-907 and lawyers will file an additional 1,881
Form I-907. DHS estimates the total cost of Form I-907 filed by HR
specialists is about $62,173 (rounded).\248\ DHS estimates the total
cost to file Form I-907 filed by lawyers range from about $124,560
(rounded) for only in-house lawyers, to $214,754 (rounded) for only
outsourced lawyers.\249\ The estimated total cost to file Form I-907
range from $186,733 and $276,927.\250\
---------------------------------------------------------------------------
\248\ Calculation, HR specialist: $29.55 opportunity cost of
time per request * 2,104 Form I-907 = $62,173 (rounded) total cost
of Form I-907 filed by HR specialists.
\249\ Calculation, In-house Lawyer Form I-907: $66.22 hourly
opportunity cost of time * 1,881 applications = $124,560.
Calculation, Outsourced Lawyer Form I-907: $114.17 hourly
opportunity cost of time * 1,881 applications = $214,754.
\250\ Calculation: $62,173 total cost of Form I-907 filed by HR
specialists + $124,560 total cost of Form I-907 filed by in-house
lawyers = $186,733 estimated total costs to file Form I-907.
Calculation: $62,173 total cost of Form I-129 filed by HR
specialists + $214,754 total cost of Form I-907 filed by outsourced
lawyers = $276,927 estimated total costs to file Form I-907.
---------------------------------------------------------------------------
iii. Cost to Late Season Employers Filing Form ETA-9142B
In addition to the costs for employers projected to request TLCs
irrespective of this rule, the population of 337 late season employers
that would not otherwise request H-2B workers will file Form ETA-9142B
as a precondition to utilizing the late season allocation of H-2B visas
made available by the rule. There is no filing fee for Form ETA-9142B,
and the time burden for completing the form, including Appendix A,
Appendix B, Appendix C, Appendix D, and record keeping, is 2 hours and
10 minutes (2.17 hours).\251\ DHS estimates the total cost of Form ETA-
9142B filed by HR specialists is about $19,676 (rounded).\252\ DHS
estimates the total cost to file Form ETA-9142B by lawyers range from
about $39,392 (rounded) for only in-house lawyers, to $67,919 (rounded)
for only outsourced lawyers.\253\ The estimated total cost to file Form
ETA-9142B range from $59,068 and $87,595.\254\
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\251\ The 130 minute burden estimate is as follows: 9142-B--55
minutes, Appendix A--15 minutes, Appendix B- 15 minutes, Appendix
C--20 minutes, Appendix D--10 minutes, Record Keeping--15 minutes.
See Form ETA-9142-B at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_Form_9142B.pdf (last accessed Sep. 22, 2023).
\252\ Calculation, HR specialist: $50.94 per hour * 2.17 hours *
178 Form ETA-9142-B = $19,676 (rounded) total cost of Form ETA-9142-
B filed by HR specialists.
\253\ Calculation, In-house Lawyer Form ETA-9142-B: $114.17 per
hour * 2.17 hours * 159 applications = $39,392 (rounded).
Calculation, Outsourced Lawyer Form ETA-9142-B: $196.85 per hour *
2.17 hours * 159 applications = $67,919 (rounded).
\254\ Calculation: $19,676 total cost of Form ETA-9142-B filed
by HR specialist + $39,392 total cost of Form ETA-9142-B filed by
In-house Lawyer = $59,068 estimated total costs to file Form ETA-
9142-B.
Calculation: $19,676 total cost of Form ETA-9142-B filed by HR
specialist + $67,919 total cost of Form ETA-9142-B filed by
Outsourced Lawyer = $87,595 estimated total costs to file Form ETA-
9142-B.
---------------------------------------------------------------------------
iv. Cost to File Form ETA-9142-B-CAA-8
Form ETA-9142-B-CAA-8 is an attestation form that includes
recruiting requirements, the irreparable harm standard, and document
retention obligations. DOL estimates the time burden for completing and
signing the form is 0.25 hours, 0.25 hours for retaining records, and
0.50 hours to comply with the returning workers' attestation, for a
total time burden of 1 hour. Using the $50.94 hourly total compensation
for an HR specialist, the opportunity cost of time for an HR specialist
to complete the attestation form, notify third parties, and retain
records relating to the returning worker requirements is approximately
$50.94.\255\ Employers are also required to send OFLC and AFL-CIO the
ETA case number when filing a petition with DHS. DOL estimates the time
burden for this task is 10 minutes (0.17 hours) for an HR specialist.
The opportunity cost of time for an HR specialist to send OFLC and AFL
the ETA case number is approximately $8.66.\256\ The total opportunity
cost of time for filing Form ETA-9142-B-CAA-8 and emailing the ETA case
number to both OFLC and the AFL-CIO is $59.60.\257\
---------------------------------------------------------------------------
\255\ Calculation: $50.94 hourly opportunity cost of time * 1-
hour time burden for the new attestation form and notifying third
parties and retaining records related to the returning worker
requirements = $50.94.
\256\ Calculation: $50.94 hourly opportunity cost of time * 0.17
hours to send OFLC and AFL-CIO the ETA case number = $8.66
(rounded).
\257\ Calculation: $50.94 + $8.66 = $59.60.
---------------------------------------------------------------------------
Additionally, the form requires that petitioners assess, prepare a
detailed written statement, and document supporting evidence for
meeting the irreparable harm standard, and retain those documents and
records, which we assume will require the resources of a financial
analyst (or another equivalent occupation). Using the same methodology
previously described for wages, the mean hourly wage for a financial
analyst is $52.30,\258\ and the estimated hourly total compensation for
a financial analyst is $75.84.\259\ DOL estimates the time burden for
these tasks is at least 4 hours, and 1 hour for gathering and retaining
documents and records, for a total time burden of 5 hours. Therefore,
the total opportunity cost of time for a financial analyst to assess,
document, and retain supporting evidence is approximately $379.20.\260\
---------------------------------------------------------------------------
\258\ See U.S. Department of Labor, Bureau of Labor Statistics,
``May 2022 National Occupational Employment and Wage Statistics''
Financial and Investment Analysts (13-2051), https://www.bls.gov/oes/2022/may/oes132051.htm (accessed September 13, 2023).
\259\ Calculation: $52.30 mean hourly wage for a financial
analyst * 1.45 benefits-to-wage multiplier = $75.84 (rounded).
\260\ Calculation: $75.84 estimated total compensation for a
financial analyst * 5 hours to meet the requirements of the
irreparable harm standard = $379.20.
---------------------------------------------------------------------------
As discussed previously, DHS believes that the 4,358 Form I-129
petitions required to exhaust the number of supplemental visas made
available in this rule represents the number of potential employers
that will request to employ H-2B workers under this rule. This number
of petitions is a reasonable proxy for the number of employers that may
need to review and sign the attestation. Using this estimate for the
total number of certifications, we estimate the opportunity cost of
time for completing the attestation and sending the ETA case number to
OFLC and AFL-CIO for HR specialists is approximately $259,737 (rounded)
and for financial analysts is about $1,652,554 (rounded).\261\
---------------------------------------------------------------------------
\261\ Calculations, HR specialists: $59.60 opportunity cost of
time to comply with attestation requirements and to send the ETA
case number to OFLC and AFL-CIO * 4,358 estimated additional
petitions = $259,737 (rounded) total cost to comply with attestation
requirements.
Calculation, Financial Analysts: $379.20 opportunity cost of
time to comply with attestation requirements * 4,358 estimated
additional petitions = $1,652,554 (rounded) to comply with
attestation requirements.
---------------------------------------------------------------------------
The estimated total cost to file Form ETA-9142-B-CAA-8 and comply
with the attestation is approximately 1,912,291.\262\
---------------------------------------------------------------------------
\262\ Calculation: $259,737 total cost for HR specialist to
comply with attestation requirement and to send the ETA case number
to OFLC and AFL-CIO + $1,652,554 total cost for financial analysts
to comply with attestation requirements = $1,912,291 total cost to
comply with attestation requirements.
---------------------------------------------------------------------------
[[Page 80450]]
v. Cost To Conduct Recruitment
An employer that files Form ETA-9142B-CAA-8 and the I-129 petition
30 or more days after the certified start date of work must conduct
additional recruitment of U.S. workers. This consists of: (1) placing a
new job order with the State Workforce Agency (SWA), (2) contacting the
relevant American Job Center (AJC), (3) contacting the AFL-CIO if
applicable, (4) contacting former U.S. workers, (5) recruiting U.S.
workers as provided in Sec. 655.45(a) and (b), (6) contacting current
employees for referrals, and (7) placing the available job opportunity
on the employer's website if the employer maintains a website for its
business and.
Specifically, the employer must place a new job order for the job
opportunity with the SWA serving the area of intended employment.
During the period the SWA is actively circulating the job order,
employers must also contact, by email or other available electronic
means, the nearest local AJC to request staff assistance advertising
and recruiting qualified U.S. workers for the job opportunity, and to
provide to the AJC the unique identification number associated with the
job order placed with the SWA.
If the occupation is traditionally or customarily unionized,
employers must provide written notification of the job opportunity to
the nearest American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) office covering the area of intended
employment, by providing a copy of the job order, and request
assistance in recruiting qualified U.S. workers for the job
opportunity.
Employers are required to make reasonable efforts to contact, by
mail or other effective means, their former U.S. workers, including
those workers who were furloughed and laid off, beginning January 1,
2022. Employers must disclose the terms of the job order to these
workers as required by the rule.
The employer must provide a copy of the job order to the bargaining
representative for its employees in the occupation and area of intended
employment, consistent with 20 CFR 655.45(a), or if there is no
bargaining representative, post the job order in the places and manner
described in 20 CFR 655.45(b).
Employers are also required to contact current employees regarding
available job opportunities for referrals.
Finally, employers are required to post the available job
opportunity on the employer's website if the employer maintains a
website for its business.
DOL estimates the average expected time burden for activities
related to conducting recruitment is 4 hours.\263\ Assuming this work
will be done by an HR specialist or an equivalent occupation, the
estimated cost to each petitioner is approximately $203.76.\264\ Using
1,395 as the estimated number of petitioners required to undergo
additional recruitment activities, the estimated total cost of this
provision is approximately $284,245 (rounded).\265\
---------------------------------------------------------------------------
\263\ This is the average expected time burden across all
employers; not all employers will need to notify the AFL-CIO,
because not all occupation are traditionally or customarily
unionized. DOL estimates the time burden for placing a new job order
for the job opportunity with SWA is 1 hour, 0.5 hours for contacting
the nearest AJC, 1 hour for contacting former U.S. workers, 0.5
hours for contacting current employees for referrals, 0.5 hours for
placing the available job opportunity on the employer's website, and
0.5 hours to provide a copy of job order to the bargaining
representative and written notification of job opportunity to
nearest AFL-CIO if the occupation is traditionally or customarily
unionized, for a total time burden of 4 hours.
\264\ Calculation: $50.94 hourly opportunity cost of time for an
HR specialist * 4 hours to conduct additional recruitment = $203.76
per petitioner cost to conduct additional recruitment.
\265\ Calculation: 1,395 estimated number of petitioners subject
to additional recruitment requirements * $203.76 per petitioner cost
to conduct additional recruitment = $284,245 (rounded) total cost to
conduct additional recruitment.
---------------------------------------------------------------------------
It is possible that if U.S. employees apply for these positions, H-
2B employers may incur some costs associated with reviewing
applications, interviewing, vetting, and hiring applicants who are
referred to H-2B employers by the recruiting activities required by
this rule. However, DOL is unable to quantify the impact.
vi. Cost of the Portability Provision
Petitioners seeking to hire H-2B nonimmigrants who are currently
present in the United States with a valid H-2B visa would need to file
a Form I-129, which includes paying the associated fee as discussed
above. Also previously discussed, we estimate that approximately 292
additional Form I-129 H-2B petitions will be filed as a result of this
provision.
As discussed previously, if a petitioner is represented by a
lawyer, the lawyer must file Form G-28. In addition, if a petitioner
desires premium processing, the petitioner must file Form I-907 and pay
the associated fee. We expect an HR specialist, in-house lawyer, or an
outsourced lawyer will perform these actions. Moreover, as previously
estimated, we expect that an in-house or outsourced lawyer will file
about 47.21 percent of these Form I-129 petitions. Therefore, we expect
that a lawyer will file 138 of these petitions and an HR specialist or
equivalent occupation will file the remaining 154. As previously
discussed, the opportunity cost of time to file a Form I-129 H-2B
petition is $221.08 for an HR specialist; and the opportunity cost of
time to file a Form I-129 H-2B petition with accompanying Form G-28 is
$590.26 for an in-house lawyer and $1,017.71 for an outsourced lawyer.
Therefore, we estimate the cost of the additional Forms I-129 from the
portability provision for HR specialists is $34,046.\266\ The estimated
cost of the additional Forms I-129 accompanied by Forms G-28 from the
portability provision for lawyers is $81,456 if filed by in-house
lawyers and $140,444 if filed by outsourced lawyers.\267\
---------------------------------------------------------------------------
\266\ Calculation, HR specialist: $221.08 estimated cost to file
a Form I-129 H-2B petition * 154 petitions = $34,046 (rounded).
\267\ Calculation, In-house Lawyer: $590.26 estimated cost to
file a Form I-129 H-2B petition and accompanying Form G-28 * 138
petitions = $81,456 (rounded).
Calculation, Outsourced Lawyer: $1,017.71 estimated cost to file
a Form I-129 H-2B petition and accompanying Form G-28 * 138
petitions = $140,444 (rounded).
---------------------------------------------------------------------------
Previously in this analysis, we estimated that about 91.43 percent
of Form I-129 H-2B petitions are filed with Form I-907 for premium
processing. As a result of this provision, we expect that an additional
267 Forms I-907 will be filed.\268\ We expect a lawyer will file 126 of
those Forms I-907 and an HR specialist or equivalent occupation will
file the remaining 141.\269\ As previously discussed, the estimated
opportunity cost of time to file a Form I-907 is $29.55 for an HR
specialist; and the estimated opportunity cost of time to file a Form
I-907 is approximately $66.22 for an in-house lawyer and $114.17 for an
outsourced lawyer. The estimated total cost of the additional Forms I-
907 if HR specialists file is $4,167.\270\ The estimated total cost of
the additional Forms I-907 is $8,344 if filed by in-house lawyers and
$14,385 if filed by outsourced lawyers.\271\
---------------------------------------------------------------------------
\268\ Calculation: 292 estimated additional Form I-129 H-2B
petitions * 91.43 percent accompanied by Form I-907 = 267 (rounded)
additional Form I-907.
\269\ Calculation, Lawyers: 267 additional Form I-907 * 47.21
percent = 126 (rounded) Form I-907 filed by a lawyer. Calculation,
HR specialists: 267 Form I-907-126 Form I-907 filed by a lawyer =
141 Form I-907 filed by an HR specialist.
\270\ Calculation, HR specialist: $29.55 to file a Form I-907 *
141 forms = $4,167 (rounded).
\271\ Calculation, In-house lawyer: $66.22 to file a Form I-907
* 126 forms = $8,344 (rounded).
Calculation for an outsourced lawyer: $114.17 to file a Form I-
907 * 126 forms = $14,385 (rounded).
---------------------------------------------------------------------------
[[Page 80451]]
The estimated total cost of this provision ranges from $128,013 to
$193,042 depending on what share of the forms are filed by in-house or
outsourced lawyers.\272\
---------------------------------------------------------------------------
\272\ Calculation for HR specialists and in-house lawyers:
$34,046 for HR specialists to file Form I-129 H-2B petitions +
$81,456 for in-house lawyers to file Form I-129 and the accompanying
Form G-28 + $4,167 for HR specialists to file Form I-907 + $8,344
for in-house lawyers to file Form I-907 = $128,013.
Calculation for HR specialists and outsourced lawyers: $34,046
for HR specialists to file Form I-129 H-2B petitions + $140,444 for
outsourced lawyers to file Form I-129 and the accompanying Form G-28
+ $4,167 for HR specialists to file Form I-907 + $14,385 for
outsourced lawyers to file Form I-907 = $193,042.
---------------------------------------------------------------------------
vii. Cost of Audits to Petitioners
As discussed above, DHS intends to conduct 250 audits of employers
hiring H-2B workers, and DOL intends to conduct 100 audits of employers
hiring H-2B workers, for a total of 350 employers. Employers will need
to provide requested information to comply with the audit. We estimate
that the expected time burden to comply with audits conducted by DHS
and DOL's Office of Foreign Labor Certification is 12 hours.\273\ We
expect that an HR specialist or equivalent occupation will provide
these documents. Given an hourly opportunity cost of time of $50.94,
the estimated cost of complying with audits is $611.28 per audited
employer.\274\ Therefore, the total estimated cost to employers to
comply with audits is $213,948.\275\
---------------------------------------------------------------------------
\273\ The number in hours for audits was provided by the USCIS,
Service Center Operations.
\274\ Calculation: $50.94 hourly opportunity cost of time for an
HR specialist * 12 hours to comply with an audit = $611.28 per
audited employer.
\275\ Calculation: 350 audited employers * $611.28 opportunity
cost of time to comply with an audit = $213,948.
---------------------------------------------------------------------------
viii. Cost of Additional Scrutiny
The Departments expect that petitioners undergoing additional
scrutiny will need to submit additional evidence to USCIS. The costs
associated with additional scrutiny include the opportunity cost of
time to assess, document, and compile evidence and the costs (both
explicit costs and opportunity costs of time) of submitting the
compiled evidence.
The opportunity costs of time associated with compiling such
evidence are unavailable due to the unique fact pattern in each
instance and a lack of data at this time regarding the time to comply.
To estimate the explicit costs of additional scrutiny, we assume 154
petitioners will need to print 500 pages of documents and mail this to
USCIS. We expect these documents to be able to fit in a Priority Mail
Medium Flat Rate box, which costs $17.10.\276\ We estimate the costs of
printing at $0.15 per page and the cost of printing 500 at $75.00.\277\
The estimated cost for an employer to print and ship evidence to USCIS
is $92.10.\278\ With an estimated 154 petitioners expected to print and
ship evidence, the total estimated costs for printing and shipping
evidence is $14,183.\279\
---------------------------------------------------------------------------
\276\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed September 23, 2023).
\277\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed September 20, 2023). Cost to make black
and white copies. Calculation: 500 pages * $0.15 per page = $75.00
in printing costs.
\278\ Calculation: $75.00 in printing costs + $17.10 in shipping
costs = $92.10 to print and ship evidence.
\279\ Calculation: 154 petitioners * $92.10 to print and ship
evidence = $14,183 total printing and shipping costs.
---------------------------------------------------------------------------
We also expect petitioners to incur a time burden associated with
printing and shipping evidence to USCIS. We estimate it will take an HR
specialist or equivalent employee 1 hour to print and ship evidence.
Using the $50.94 hourly opportunity cost of time for HR specialist, we
estimate the opportunity cost of time for each petitioner is
$50.94.\280\ With an estimated 154 petitioners expected to print and
ship evidence, the total estimated opportunity cost of time to print
and ship evidence is $7,845.\281\
---------------------------------------------------------------------------
\280\ Calculation: $50.94 hourly opportunity cost of time for HR
specialist * 1 hour to print and ship evidence = $50.94 opportunity
cost of time per petitioner.
\281\ Calculation: 154 petitioners * $50.94 opportunity cost of
time per petitioner = $7,845 total estimated opportunity cost of
time to print and ship evidence.
---------------------------------------------------------------------------
We do not expect this provision to impose new costs on to USCIS.
The costs to request and review evidence from petitioners is included
in the fees paid to the agency.
The total estimated cost of additional scrutiny is $22,028.\282\
---------------------------------------------------------------------------
\282\ Calculation: $14,183 total printing and shipping costs +
$7,845 total opportunity cost of time = $22,028 total estimated cost
of additional scrutiny.
---------------------------------------------------------------------------
ix. Familiarization Costs
We expect that petitioners or their representatives will need to
read and understand this rule if they seek to take advantage of the
supplemental cap. As a result, we expect this rule will impose one-time
familiarization costs associated with reading and understanding this
rule. As shown previously, we estimate that approximately 7,739
petitioners may take advantage of the provisions of this rule, and that
a lawyer will represent 3,654 of these petitioners and an HR specialist
or equivalent occupation will represent 4,085.
To estimate the costs of rule familiarization, we estimate the time
it will take to read and understand the rule by assuming a reading
speed of 238 words per minute.\283\ This rule has approximately 69,000
words.\284\ Using a reading speed of 238 words per minute, DHS
estimates it will take approximately 4.8 hours to read and understand
this rule.\285\
---------------------------------------------------------------------------
\283\ Brysbaert, Marc (2019, April 12). `How many words do we
read per minute? A review and meta-analysis of reading rate.'
https://doi.org/10.31234/osf.io/xynwg (accessed September 22, 2023).
We use the average speed for silent reading of English nonfiction by
adults.
\284\ Please note that this number represents that Departments'
best estimate of the final word count, given that the actual word
may change during the promulgation of the Rule.
\285\ Calculation, Step 1: roughly 69,000 words/238 words per
minute = 290 (rounded) minutes.
Calculation, Step 2: 290 minutes/60 minutes per hour = 4.8
(rounded) hours.
---------------------------------------------------------------------------
The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $50.94, $114.17, and $196.85,
respectively. The estimated opportunity cost of time for each of these
filers to read and understand the rule are $244.51, $548.02, and
$944.88, respectively.\286\ The estimated total opportunity cost of
time for 4,085 HR specialists to familiarize themselves with this rule
is approximately $998,823.\287\ The estimated total opportunity cost of
time for 3,654 lawyers to familiarize themselves with this rule is
approximately $2,002,465 if they are all in-house lawyers and
$3,452,592 if they are all outsourced lawyers.\288\ Accordingly, the
estimated total opportunity costs of time for petitioners'
representatives to familiarize themselves with this rule
[[Page 80452]]
ranges from $3,001,288 to $4,451,415.\289\
---------------------------------------------------------------------------
\286\ Calculation, HR Specialists: $50.94 estimated hourly total
compensation for an HR specialist * 4.8 hours to read and become
familiar with the rule = $244.51 opportunity cost of time for an HR
specialist to read and understand the rule.
Calculation, In-house lawyer: 114.17 estimated hourly total
compensation for an in-house lawyer * 4.8 hours to read and become
familiar with the rule = 548.02 (rounded) opportunity cost of time
for an in-house lawyer to read and understand the rule.
Calculation, Outsourced lawyer: $196.85 estimated hourly total
compensation for an outsourced lawyer * 4.8 hours to read and become
familiar with the rule = $944.88 (rounded) opportunity cost of time
for an outsourced lawyer to read and understand the rule.
\287\ Calculation, HR specialists: $244.51 opportunity cost of
time * 4,085 = $998,823 (rounded).
\288\ Calculation for in-house lawyers: $548.02 opportunity cost
of * 3,654 = $2,002,465 (rounded).
Calculation for outsourced lawyers: 944.88 opportunity cost of
time * 3,654 = $3,452,592 (rounded).
\289\ Calculation: $998,823 + $2,002,465 = $3,001,288.
Calculation: $998,823 + $3,452,592 = $4,451,415.
---------------------------------------------------------------------------
x. Estimated Total Costs to Petitioners
In sum, the monetized costs of this rule come from time spent
filing and complying with Form I-129, Form G-28, Form I-907, and Form
ETA-9142-B-CAA-8, as well as contacting and refreshing recruitment
efforts, posting notifications, time spent filing to obtain a porting
worker, and complying with audits. The estimated total cost to file
Form I-129 and an accompanying Form G-28 ranges from $1,722,870 to
$2,602,134, depending on the filer. The estimated total cost of filing
Form I-907 ranges from $186,733 to $276,927, depending on the filer.
The estimated cost for late season employers to file Form ETA-9142B
ranges from $59,068 to $87,595 depending on the filer. The estimated
total cost of filing and complying with Form ETA-9142-B-CAA-8 is
$1,912,291. The estimated total cost of conducting additional
recruitment is $284,245. The estimated cost of the portability
provision ranges from $128,013 to $193,042, depending on the filer. The
estimated total cost for employers to comply with audits is $213,948.
The estimated total costs for petitioners or their representatives to
familiarize themselves with this rule ranges from $3,001,288 to
$4,451,415, depending on the filer. The estimated total cost of
additional scrutiny is $22,028. The total estimated cost to petitioners
ranges from $7,530,484 to $10,043,625, depending on the filer.\290\
---------------------------------------------------------------------------
\290\ Calculation of lower range: $1,722,870 + $186,733 +
$59,068 + $1,912,291 + $284,245 + $128,013 + $213,948 + $3,001,288 +
$22,028 = $7,530,484.
Calculation of upper range: $2,602,134 + $276,927 + $87,595 +
$1,912,291 + $284,245 + $$193,042 + $213,948 + $4,451,415 + $22,028
= $10,043,625.
---------------------------------------------------------------------------
c. Cost to the Federal Government
USCIS will incur costs related to the adjudication of petitions as
a result of this TFR. DHS expects USCIS to recover these costs by the
fees associated with the forms, which have been accounted for as a
transfer from petitioners to USCIS and serve as a proxy for the costs
to the agency. The total filing fees associated with Form I-129 H-2B
petitions are $2,836,500,\291\ and the total filing fees associated
with premium processing are $6,378,000.\292\ Total transfers from
petitioners to the Government are $9,214,500.\293\
---------------------------------------------------------------------------
\291\ Calculation: (4,358 + 292 Form I-129 petitions) * $610 per
petition = $2,836,500.
\292\ Calculation: (3,985 + 267 Forms I-907) * $1,500 per form =
$6,378,000.
\293\ Calculation: $2,836,500 + $6,378,000 = $9,214,500.
---------------------------------------------------------------------------
The INA provides USCIS with the authority to collect fees at a
level that will ensure recovery of the full costs of providing
adjudication and naturalization services, including administrative
costs, and services provided without charge to certain applicants and
petitioners.\294\ DHS notes USCIS establishes its fees by assigning
costs to an adjudication based on its relative adjudication burden and
use of USCIS resources. USCIS establishes fees at an amount that is
necessary to recover these assigned costs, such as clerical, officers,
and managerial salaries and benefits, plus an amount to recover
unassigned overhead (for example, facility rent, IT equipment and
systems among other expenses) and immigration benefits provided without
a fee charged. Consequently, since USCIS immigration fees are primarily
based on resource expenditures related to the benefit in question,
USCIS uses the fee associated with an information collection as a
reasonable measure of the collection's costs to USCIS. DHS anticipates
some additional costs in adjudicating the additional petitions
submitted because of the increase in cap limitation for H-2B visas.
---------------------------------------------------------------------------
\294\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------
Both DOL and DHS intend to conduct a significant number of audits
during the period of temporary need to verify compliance with H-2B
program requirements, including the irreparable harm standard as well
as other key worker protection provisions implemented through this
rule.\295\ While fees fund most USCIS activities and appropriations
fund DOL, we expect both agencies will be able to shift resources to
conduct these audits without incurring additional costs. As previously
mentioned, the agencies will conduct a total of 350 audits, and we
expect each audit to take 12 hours. This results in a total time burden
of 4,200 hours.\296\ USCIS anticipates that a Federal employee at a GS-
13 Step 5 salary will typically conduct these audits for each agency.
The base hourly pay for a GS-13 Step 5 in the Washington, DC locality
area is $60.83.\297\ To estimate the total hourly compensation for
these positions, we multiply the hourly wage ($60.83) by the Federal
benefits to wage multiplier of 1.37.\298\ This results in an hourly
opportunity cost of time of $83.34 for GS-13 Step 5 Federal employees
in the Washington, DC locality pay area.\299\ The total opportunity
costs of time for Federal workers to conduct audits is estimated to be
$350,028.\300\
---------------------------------------------------------------------------
\295\ These audits are distinct from the WHD's authority to
perform investigations regarding employers' compliance with the
requirements of the H-2B program.
\296\ Calculation: 12 hours to conduct an audit * 350 audits =
4,200 total hours to conduct audits.
\297\ See U.S. Office of Personnel Management, Pay and Leave,
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA, 2023, Hourly Basic Rate,
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf (last accessed September 14, 2023).
\298\ Calculation, Step 1: $2,342,954 Full-time Permanent
Salaries + $860,318 Civilian Personnel Benefits = $3,203,272
Compensation.
Calculation, Step 2: $3,203,272 Compensation/$2,342,954 Full-
time Permanent Salaries = 1.37 (rounded) Federal employee benefits
to wage ratio. See https://www.uscis.gov/sites/default/files/document/reports/USCIS_FY_2021_Budget_Overview.pdf (accessed
September 13, 2023).
\299\ Calculation: $60.83 hourly wage for a GS 13-5 in the
Washington, DC locality area * 1.37 Federal employee benefits to
wage ratio = $83.34 hourly opportunity cost of time for a GS 13-5
federal employee in the Washington, DC locality area.
\300\ Calculation: 4,200 hours to conduct audits * $83.34 hourly
opportunity cost of time = $350,028 total opportunity costs of time
for Federal employees to conduct audits.
---------------------------------------------------------------------------
This final rule implements changes to the DOL's mechanisms to
receive complaints from advocates, unions, and other stakeholders about
jobs posted on seasonaljobs.gov. DOL expects that the changes to the
DOL's mechanisms to receive complaints may result in some additional
costs to DOL. However, DOL is unable to quantify such costs due to lack
of data.
d. Benefits to Petitioners
The Departments assume that employers will incur the costs of this
rule and other costs associated with hiring H-2B workers if the
expected benefits of those workers exceed the expected costs. We assume
that employers expect some level of net benefit from being able to hire
additional H-2B workers. However, the Departments do not collect or
require data from H-2B employers on the profits from hiring these
additional workers to estimate this increase in net benefits.
The inability to access H-2B workers for some entities is currently
causing irreparable harm or will cause their businesses to suffer
irreparable harm in the near future. Temporarily increasing the number
of available H-2B visas for this fiscal year may result in a benefit,
because it will allow some businesses to hire the additional labor
resources necessary to avoid such harm. Preventing such harm may also
result in cost savings by ultimately preserve the jobs of other
employees (including U.S. workers) at that establishment.
[[Page 80453]]
Additionally, returning workers are likely to be very familiar with the
H-2B process and requirements, and may be positioned to begin work more
expeditiously with these employers. Moreover, employers may already be
familiar with returning workers as they have trained, vetted, and
worked with some of these returning workers in past years. As such,
limiting the supplemental visas to returning workers will assist
employers that are suffering irreparable harm or will suffer impending
irreparable harm.
e. Benefits to Workers
The Departments assume that workers will only incur the costs of
this rule and other costs associated with obtaining a H-2B position if
the expected benefits of that position exceed the expected costs. We
assume that H-2B workers expect some level of net benefit from being
able to work for H-2B employers. However, the Departments do not have
sufficient data to estimate this increase in net benefits and lack the
necessary resources to investigate this in a timely manner. This rule
is not expected to impact wages because DOL prevailing wage regulations
apply to all H-2B workers covered by this rule. Additionally, the RIA
shows that employers incur costs in conducting additional recruitment
of U.S. workers and attesting to irreparable harm from current labor
shortfall. These costs suggest employers are not taking advantage of a
large supply of foreign labor at the expense of domestic workers.
The existence of this rule will benefit the workers who receive H-
2B visas. See Arnold Brodbeck et al., Seasonal Migrant Labor in the
Forest Industry of the United States: The Impact of H-2B Employment on
Guatemalan Livelihoods, 31 Society & Natural Resources 1012 (2018), and
in particular this finding: ``Participation in the H-2B guest worker
program has become a vital part of the livelihood strategies of rural
Guatemalan families and has had a positive impact on the quality of
life in the communities where they live. Migrant workers who were
landless, lived in isolated rural areas, had few economic
opportunities, and who had limited access to education or adequate
health care, now are investing in small trucks, building roads,
schools, and homes, and providing employment for others in their home
communities. . . . The impact has been transformative and positive.''
Some provisions of this rule will benefit such workers in
particular ways. The portability provision of this rule will allow
nonimmigrants with valid H-2B visas who are present in the United
States to transfer to a new employer more quickly and potentially
extend their stay in the United States and, therefore, earn additional
wages.
DHS recognizes that some of the effects of these provisions may
occur beyond the borders of the United States. The current analysis
does not seek to quantify or monetize costs or benefits that occur
outside of the United States.
U.S. workers will also benefit from this rule in multiple ways. For
example, the additional round of recruitment and U.S. worker referrals
required by the provisions of this rule will ensure that a nonimmigrant
worker does not displace a U.S. worker who is willing and able to fill
the position and may result in some U.S. workers being hired. As noted,
the avoidance of current or impending irreparable harm made possible
through the granting of supplemental visas in this rule could ensure
that U.S. workers--who otherwise may be vulnerable if H-2B workers were
not given visas--do not lose their jobs.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency rules that are subject to the
notice and comment requirements of the APA. See 5 U.S.C. 603(a),
604(a). This temporary final rule is exempt from notice and comment
requirements for the reasons stated above. Therefore, the requirements
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to
this temporary final rule. Accordingly, the Departments are not
required to either certify that the temporary final rule would not have
a significant economic impact on a substantial number of small entities
nor conduct a regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule, or final rule
for which the agency published a proposed rule that includes any
Federal mandate that may result in $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
tribal governments, in the aggregate, or by the private sector.\301\
This rule is exempt from the written statement requirement because DHS
did not publish a notice of proposed rulemaking for this rule.
---------------------------------------------------------------------------
\301\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------
In addition, this rule does not exceed the $100 million in 1995
expenditure in any 1 year when adjusted for inflation ($192 million in
2022 dollars based on the Consumer Price Index for All Urban Consumers
(CPI-U)),\302\ and this rulemaking does not contain such a Federal
mandate as the term is defined under UMRA.\303\ The requirements of
Title II of the Act, therefore, do not apply, and the Departments have
not prepared a statement under the Act.
---------------------------------------------------------------------------
\302\ See U.S. Department of Labor, BLS, ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. city average, all
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202308.pdf (last visited
September 27, 2023). Calculation of inflation: (1) Calculate the
average monthly CPI-U for the reference year (1995) and the current
year (2022); (2) Subtract reference year CPI-U from current year
CPI-U; (3) Divide the difference of the reference year CPI-U and
current year CPI-U by the reference year CPI-U; (4) Multiply by 100
= [(Average monthly CPI-U for 2022-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(292.655-152.4)/152.4] *
100 = (140.255/152.4) * 100 = 0.9203 (rounded) * 100 = 92.03 percent
= 92 percent (rounded). Calculation of inflation-adjusted value:
$100 million in 1995 dollars * 1.92 = $192 million in 2022 dollars.
\303\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------
E. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, 61 FR 4729 (Feb. 5, 1996).
G. National Environmental Policy Act
DHS and its components analyze their proposed actions to determine
whether the National Environmental Policy Act (NEPA) applies to them
and, if so, what degree of analysis is required. DHS Directive (Dir)
023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01
(Instruction Manual) establish the procedures that DHS and its
components use to comply with NEPA
[[Page 80454]]
and the Council on Environmental Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500 through 1508.
NEPA and the CEQ regulations allow Federal agencies to establish
categories of actions (``categorical exclusions'') that normally do not
significantly affect the quality of the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS). 42 U.S.C. 4336e(1), 42 U.S.C.
4336(a)(2); 40 CFR 1501.4, 40 CFR 1508.1(d). The Instruction Manual,
Appendix A, Table 1 lists Categorical Exclusions that DHS has found to
have no such effect. Under DHS NEPA implementing procedures, for an
action to be categorically excluded, it must satisfy each of the
following three conditions: (1) The entire action clearly fits within
one or more of the categorical exclusions; (2) the action is not a
piece of a larger action; and (3) no extraordinary circumstances exist
that create the potential for a significant environmental effect.
Instruction Manual, section V.B.2(a-c).
This rule temporarily amends the regulations implementing the H-2B
nonimmigrant visa program to increase the numerical limitation on H-2B
nonimmigrant visas for FY 2024, based on the Secretary of Homeland
Security's determination, in consultation with the Secretary of Labor,
consistent with the FY 2023 Omnibus and Public Law 118-15. It also
allows H-2B beneficiaries who are in the United States to change
employers upon the filing of a new H-2B petition and begin to work for
the new employer for a period generally not to exceed 60 days before
the H-2B petition is approved by USCIS.
DHS has considered in accordance with its NEPA implementing
procedures and has determined that this temporary final rule clearly
fits within categorical exclusion A3(d) because it interprets or amends
a regulation without changing its environmental effect. The amendments
to 8 CFR part 214 would authorize up to an additional 64,716 visas for
noncitizens who may receive H-2B nonimmigrant visas, of which 44,716
are for returning workers (persons issued H-2B visas or were otherwise
granted H-2B status in Fiscal Years 2021, 2022, or 2023). The proposed
amendments would also facilitate H-2B nonimmigrants to move to new
employment faster than they could if they had to wait for a petition to
be approved. The amendment's operative provisions approving H-2B
petitions under the supplemental allocation would effectively terminate
after September 30, 2024 for the cap increase, and at the end of
January 24, 2025 for the portability provision. DHS believes amending
applicable regulations to authorize up to an additional 64,716 H-2B
nonimmigrant visas will not result in reasonably foreseeable effects
that would necessitate an environmental assessment or environmental
impact statement with respect to the current H-2B limit or in the
context of a current U.S. population exceeding 333,287,557 (maximum
temporary increase of 0.0194 percent).\304\ DHS has also considered and
determined that this action would not have extraordinary circumstances
that would require the preparation of an environmental assessment or
environmental impact statement.
---------------------------------------------------------------------------
\304\ See U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed September 28, 2023).
Calculation: 64,716 additional visas/333,287,557 million people
in the United States = 0.0194 (rounded) percent temporary increase
in the population.
---------------------------------------------------------------------------
The amendment to applicable regulations is a stand-alone temporary
authorization and not a part of any larger action, and presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this action is categorically excluded
and no further NEPA analysis is required.
H. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this temporary final rule is a ``major rule'' as defined by the
Congressional Review Act (``CRA'') in 5 U.S.C. 804(2)(a) and is subject
to both the CRA's reporting requirement and the delayed effective date
requirement, pursuant to 5 U.S.C. 801. However, as stated in section
IV.A of this rule, the Departments have good cause to forgo APA's
requirements for notice and public comment (and a delayed effective
date), pursuant to 5 U.S.C. 553. Therefore, the Departments also have
good cause to forgo the CRA's 60-day delayed effective date
requirement, pursuant to 5 U.S.C. 808(2). This rule is effective upon
publication. DHS has complied with the CRA's reporting requirements and
has sent this rule to Congress and to the Comptroller General as
required by 5 U.S.C. 801(a)(1).
I. Paperwork Reduction Act
Attestation for Employers Seeking To Employ H-2B Nonimmigrants Workers
Under Section 303 of Division O of the Consolidated Appropriations Act,
2023, Public Law 117-328, as Extended by Sections 101(6) and 106 of
Division A of the Continuing Appropriations Act, 2024 and Other
Extensions Act, Public Law 118-15, Form ETA-9142-B-CAA-8
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has submitted the Information Collection
Request (ICR) contained in this rule to OMB and obtained approval of a
new form, Form ETA-9142B-CAA-8, using emergency clearance procedures
outlined at 5 CFR 1320.13. The Departments note that while DOL
submitted the ICR, both DHS and DOL will use the information provided
by employers in response to this information collection.
Petitioners will use the new Form ETA-9142B-CAA-8 to make
attestations regarding, for example, irreparable harm and the returning
worker requirement (unless exempt because the H-2B worker is a national
of one of the countries included in the country-specific allocation who
is counted against the 20,000 returning worker exemption cap) described
above. Petitioners will need to file the attestation with DHS until it
announces that the supplemental H-2B cap has been reached. In addition,
the petitioner will need to retain all documentation demonstrating
compliance with this implementing rule, and must provide it to DHS or
DOL in the event of an audit or investigation.
In addition to obtaining immediate emergency approval pursuant to 5
CFR 1320.13, DOL is seeking comments on this information collection
pursuant to 44 U.S.C. 3506(c)(2)(A). Comments on the information
collection must be received by January 16, 2024. This process of
engaging the public and other Federal agencies helps ensure that
requested data can be provided in the desired format, reporting burden
(time
[[Page 80455]]
and financial resources) is minimized, collection instruments are
clearly understood, and the impact of collection requirements on
respondents can be properly assessed. The PRA provides that a Federal
agency generally cannot conduct or sponsor a collection of information,
and the public is generally not required to respond to an information
collection, unless it is approved by OMB under the PRA and displays a
currently valid OMB Control Number. See 44 U.S.C. 3501 et seq. In
addition, notwithstanding any other provisions of law, no person must
generally be subject to a penalty for failing to comply with a
collection of information that does not display a valid OMB Control
Number. See 5 CFR 1320.5(a) and 1320.6.
In accordance with the PRA, DOL is affording the public with notice
and an opportunity to comment on the new information collection, which
is necessary to implement the requirements of this rule. The
information collection activities covered under a newly granted OMB
Control Number 1205-NEW are required under Section 303 of Division O of
the FY 2023 Omnibus as extended by Public Law 118-15, which provides
that ``the Secretary of Homeland Security, after consultation with the
Secretary of Labor, and upon the determination that the needs of
American businesses cannot be satisfied . . . with U.S. workers who are
willing, qualified, and able to perform temporary nonagricultural
labor,'' may increase the total number of noncitizens who may receive
an H-2B visa by not more than the highest number of H-2B nonimmigrants
who participated in the H-2B returning worker program in any fiscal
year in which returning workers were exempt from the H-2B numerical
limitation. As previously discussed in the preamble of this rule, the
Secretary of Homeland Security, in consultation with the Secretary of
Labor, has decided to increase the numerical limitation on H-2B
nonimmigrant visas to authorize the issuance of up to, but not more
than, an additional 64,716 visas for FY 2024 for certain H-2B workers,
for U.S. businesses that attest that they are suffering irreparable
harm or will suffer impending irreparable harm. As with the previous
supplemental rules, the Secretary has determined that the additional
visas will only be available for returning workers, that is workers who
were issued H-2B visas or otherwise granted H-2B status in FY 2021,
2022, or 2023, unless the worker is one of the 20,000 nationals of one
of the countries included in the country-specific allocation who are
exempt from the returning worker requirement.
Commenters are encouraged to discuss the following:
Whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
The quality, utility, and clarity of the information to be
collected; and
The burden of the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, for example, permitting
electronic submission of responses.
The aforementioned information collection requirements are
summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: Extension of an existing
information collection.
Title of the Collection: Attestation for Employers Seeking to
Employ H-2B Nonimmigrants Workers Under Section 303 of Division O of
the Consolidated Appropriations Act, 2023, Public Law 117-328, as
extended by sections 101(6) and 106 of Division A of the Continuing
Appropriations Act, 2024 and Other Extensions Act, Public Law 118-15.
Agency Form Number: Form ETA-9142-B-CAA-8.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 4,358.
Average Responses per Year per Respondent: 1.
Total Estimated Number of Responses: 4,358.
Average Time per Response: 10.17 hours per application.
Total Estimated Annual Time Burden: 32,469 hours.
Total Estimated Other Costs Burden: $2,195,689.
Request for Premium Processing Service, Form I-907
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides
that a Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by OMB under the PRA
and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6. Form I-907, Request for Premium Processing
Service, has been approved by OMB and assigned OMB control number 1615-
0048. DHS is making no changes to the Form I-907 in connection with
this temporary rule implementing the time-limited authority pursuant to
Section 303 of Division O of the Consolidated Appropriations Act, 2023,
Public Law 117-328 as extended by Public Law 118-15 (which expires on
November 17, 2023). However, USCIS estimates that this temporary rule
may result in approximately 4,325 additional filings of Form I-907 in
fiscal year 2024. The current OMB-approved estimate of the number of
annual respondents filing a Form I-907 is 815,773. USCIS has determined
that the OMB-approved estimate is sufficient to fully encompass the
additional respondents who will be filing Form I-907 in connection with
this temporary rule, which represents a small fraction of the overall
Form I-907 population. Therefore, DHS is not changing the collection
instrument or increasing its burden estimates in connection with this
temporary rule and is not publishing a notice under the PRA or making
revisions to the currently approved burden for OMB control number 1615-
0048.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Penalties, Reporting and recordkeeping
requirements, Students.
20 CFR Part 655
Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
[[Page 80456]]
For the reasons discussed in the joint preamble, chapter I of title
8 of the Code of Federal Regulations is amended as follows:
DEPARTMENT OF HOMELAND SECURITY
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec.
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat.
1477-1480; section 141 of the Compacts of Free Association with the
Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).
0
2. Effective November 17, 2023, through November 17, 2026, amend Sec.
214.2 by adding entries for ``(30)'' and ``(31)'' to table 3 to
paragraph (h) and adding paragraph (h)(6)(xiv), a reserved paragraph
(h)(30), and paragraph (h)(31) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(h) * * *
Table 3 to Paragraph (h)--Paragraph Contents
------------------------------------------------------------------------
-------------------------------------------------------------------------
* * * * * * *
(30) [Reserved]
(31) Change of employers and portability for H-2B workers (January 25,
2024 through January 24, 2025).
------------------------------------------------------------------------
* * * * *
(6) * * *
(xiv) Special requirements for additional cap allocations under
Public Laws 117-328 and 118-15--(A) Public Law 117-328 and section
101(6) of Division A of Public Law 118-15, Continuing Appropriations
Act, 2024 and Other Extensions Act--(1) Supplemental allocation for
returning workers. Notwithstanding the numerical limitations set forth
in paragraph (h)(8)(i)(C) of this section, for fiscal year 2024 only,
the Secretary has authorized up to an additional 64,716 visas for
aliens who may receive H-2B nonimmigrant visas pursuant to section 303
of Division O of Public Law 117-328, the Consolidated Appropriations
Act, 2023, and section 101(6) of Division A of Public Law 118-15,
Continuing Appropriations Act, 2024 and Other Extensions Act. An alien
may be eligible to receive an H-2B nonimmigrant visa under this
paragraph (h)(6)(xiv)(A)(1) if she or he is a returning worker. The
term ``returning worker'' under this paragraph (h)(6)(xiv)(A)(1) means
a person who was issued an H-2B visa or was otherwise granted H-2B
status in fiscal year 2021, 2022, or 2023. Notwithstanding Sec. 248.2
of this chapter, an alien may not change status to H-2B nonimmigrant
under this paragraph (h)(6)(xiv)(A)(1). The additional H-2B visas
authorized under this paragraph will be made available to returning
workers as follows:
(i) Up to an additional 20,716 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2024 employment
start dates on or before March 31, 2024.
(ii) Up to an additional 19,000 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2024 employment
start dates from April 1, 2024 to May 14, 2024.
(iii) Up to an additional 5,000 visas available for aliens with
employment start dates from May 15, 2024 to September 30, 2024.
(2) Supplemental allocation for nationals of Guatemala, El
Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.
Notwithstanding the numerical limitations set forth in paragraph
(h)(8)(i)(C) of this section, for fiscal year 2024 only, and in
addition to the allocation described in paragraph (h)(6)(xiv)(A)(1) of
this section, the Secretary has authorized up to an additional 20,000
visas for aliens who are nationals of Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica, who may receive H-2B
nonimmigrant visas pursuant section 303 of Division O of the
Consolidated Appropriations Act, 2023, Public Law 117-328, and section
101(6) of Division A of Public Law 118-15 Continuing Appropriations
Act, 2024 and Other Extensions Act, based on petitions with FY 2024
employment start dates. Such workers are not subject to the returning
worker requirement in paragraph (h)(6)(xiv)(A)(1). Petitioners must
request such workers in an H-2B petition that is separate from H-2B
petitions that request returning workers under paragraph
(h)(6)(xiv)(A)(1) and must declare that they are requesting these
workers in the attestation Form ETA-9142-B-CAA-8 required under 20 CFR
655.65(a)(1). A petition requesting returning workers under paragraph
(h)(6)(xiv)(A)(1), which is accompanied by an attestation indicating
that the petitioner is requesting nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica, will be rejected,
denied or, in the case of a non-frivolous petition, approved solely for
the number of beneficiaries that are from the Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. Notwithstanding
Sec. 248.2 of this chapter, an alien may not change status to H-2B
nonimmigrant under this paragraph (h)(6)(xiv)(A)(2).
(B) Eligibility. In order to file a petition with USCIS under this
paragraph (h)(6)(xiv), the petitioner must:
(1) Comply with all other statutory and regulatory requirements for
H-2B classification, including, but not limited to, requirements in
this section, under part 103 of this chapter, and under 20 CFR part 655
and 29 CFR part 503; and
(2) Submit to USCIS, at the time the employer files its petition, a
U.S. Department of Labor attestation, in compliance with this section
and 20 CFR 655.64, evidencing that:
(i) Its business is suffering irreparable harm or will suffer
impending irreparable harm (that is, permanent and severe financial
loss) without the ability to employ all of the H-2B workers requested
on the petition filed pursuant to this paragraph (h)(6)(xiv);
(ii) All workers requested and/or instructed to apply for a visa
have been issued an H-2B visa or otherwise granted H-2B status in
fiscal year 2021, 2022, or 2023, unless the H-2B worker is a national
of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa
Rica who is counted towards the 20,000 cap described in paragraph
(h)(6)(xiv)(A)(2) of this section;
[[Page 80457]]
(iii) The employer will comply with obligations and additional
recruitment requirements outlined in 20 CFR 655.64(a)(3) through (5);
(iv) The employer will provide documentary evidence of the facts in
paragraphs (h)(6)(xiv)(B)(2)(i) through (iii) of this section to DHS
and/or DOL upon request; and
(v) The employer will agree to fully cooperate with any compliance
review, evaluation, verification, or inspection conducted by DHS,
including an on-site inspection of the employer's facilities, interview
of the employer's employees and any other individuals possessing
pertinent information, and review of the employer's records related to
the compliance with immigration laws and regulations, including but not
limited to evidence pertaining to or supporting the eligibility
criteria for the FY 2024 supplemental allocations outlined in paragraph
(h)(6)(xiv)(B) of this section, as a condition for the approval of the
petition.
(vi) The employer will fully cooperate with any audit,
investigation, compliance review, evaluation, verification or
inspection conducted by DOL, including an on-site inspection of the
employer's facilities, interview of the employer's employees and any
other individuals possessing pertinent information, and review of the
employer's records related to the compliance with applicable laws and
regulations, including but not limited to evidence pertaining to or
supporting the eligibility criteria for the FY 2024 supplemental
allocations outlined in 20 CFR 655.64(a) and 655.65(a), as a condition
for the approval of the H-2B petition. The employer must attest to this
on Form ETA-9142-B-CAA-8 and must further attest on Form ETA-9142-B-
CAA-8 that it will not impede, interfere, or refuse to cooperate with
an employee of the Secretary of the U.S. Department of Labor who is
exercising or attempting to exercise DOL's audit or investigative
authority pursuant to 20 CFR part 655, subpart A, and 29 CFR 503.25.
(C) Processing--(1) Petitions filed pursuant to paragraph
(h)(6)(xiv)(A)(1)(a) requesting FY 2024 employment start dates on or
before March 31, 2024. USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(a) of this section requesting employment
start dates on or before March 31, 2024 that are received after the
applicable numerical limitation has been reached or after September 16,
2024.
(2) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii) of
this section requesting FY 2024 employment start dates from April 1,
2024 to May 14, 2024. USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xiv)(A)(1)(ii) of this section requesting employment
start dates from April 1, 2024 to May 14, 2024 that are received
earlier than 15 days after the INA section 214(g) cap for the second
half FY 2024 has been met, or after the applicable numerical limitation
has been reached or after September 16, 2024.
(3) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii) of
this section requesting FY 2024 employment start dates from May 15,
2024 and September 30, 2024. USCIS will reject petitions filed pursuant
to paragraph (h)(6)(xiv)(A)(1)(iii) of this section requesting
employment start dates from May 15, 2024 to September 30, 2024 that are
received earlier than 45 days after the INA section 214(g) cap for the
second half FY 2024 has been met, or after the applicable numerical
limitation has been reached or after September 16, 2024.
(4) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2)
requesting nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica with FY 2024 employment start dates.
USCIS will reject petitions filed pursuant to paragraph
(h)(6)(xiv)(A)(2) of this section that have a date of need on or after
April 1, 2024 and are received earlier than 15 days after the INA
section 214(g) cap for the second half of FY 2024 is met, or after the
applicable numerical limitation has been reached or after September 16,
2024.
(5) USCIS will not approve a petition filed pursuant to this
paragraph (h)(6)(xiv) on or after October 1, 2024.
(D) Numerical limitations under paragraphs (h)(6)(xiv)(A)(1) and
(2) of this section. When calculating the numerical limitations under
paragraphs (h)(6)(xiv)(A)(1) and (2) of this section as authorized
under Public Law 117-328, as extended by Public Law 118-15, USCIS will
make numbers for each allocation available to petitions in the order in
which the petitions subject to the respective limitation are received.
USCIS will make projections of the number of petitions necessary to
achieve the numerical limit of approvals, taking into account
historical data related to approvals, denials, revocations, and other
relevant factors. USCIS will monitor the number of petitions received
(including the number of workers requested when necessary) and will
notify the public of the dates that USCIS has received the necessary
number of petitions (the ``final receipt dates'') under paragraph
(h)(6)(xiv)(A)(1) or (2). The day the public is notified will not
control the final receipt dates. When necessary to ensure the fair and
orderly allocation of numbers subject to the numerical limitations in
paragraphs (h)(6)(xiv)(A)(1) and (2), USCIS may randomly select from
among the petitions received on the final receipt dates the remaining
number of petitions deemed necessary to generate the numerical limit of
approvals. This random selection will be made via computer-generated
selection. Petitions subject to a numerical limitation not randomly
selected or that were received after the final receipt dates that may
be applicable under paragraph (h)(6)(xiv)(A)(1) or (2) will be
rejected. If the final receipt date is any of the first 5 business days
on which petitions subject to the applicable numerical limits described
in paragraph (h)(6)(xiv)(A)(1) or (2) may be received (in other words,
if either of the numerical limits described in paragraph
(h)(6)(xiv)(A)(1) or (2) is reached on any one of the first 5 business
days that filings can be made), USCIS will randomly apply all of the
numbers among the petitions received on any of those 5 business days.
(E) Sunset. This paragraph (h)(6)(xiv) expires on October 1, 2024.
(F) Non-severability. The requirement to file an attestation under
paragraph (h)(6)(xiv)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xiv), including,
but not limited to, the numerical allocation provisions at paragraphs
(h)(6)(xiv)(A)(1) and (2) of this section in their entirety. In the
event that any part of this paragraph (h)(6)(xiv) is enjoined or held
to be invalid by any court of competent jurisdiction, the remainder of
this paragraph (h)(6)(xiv) is also intended to be enjoined or held to
be invalid in such jurisdiction, without prejudice to workers already
present in the United States under this paragraph (h)(6)(xiv), as
consistent with law.
* * * * *
(30) [Reserved]
(31) Change of employers and portability for H-2B workers. (i) This
paragraph (h)(31) relates to H-2B workers seeking to change employers
during the time period specified in paragraph (h)(31)(iv) of this
section. Notwithstanding paragraph (h)(2)(i)(D) of this section:
(A) An alien in valid H-2B nonimmigrant status whose new petitioner
files a non-frivolous H-2B petition requesting an extension of the
alien's stay on or after January 25, 2024,
[[Page 80458]]
is authorized to begin employment with the new petitioner after the
petition described in this paragraph (h)(31) is received by USCIS and
before the new H-2B petition is approved, but no earlier than the start
date indicated in the new H-2B petition; or
(B) An alien whose new petitioner filed a non-frivolous H-2B
petition requesting an extension of the alien's stay before January 25,
2024, that remains pending on January 25, 2024, is authorized to begin
employment with the new petitioner before the new H-2B petition is
approved, but no earlier than the start date of employment indicated on
the new H-2B petition.
(ii)(A) With respect to a new petition described in paragraph
(h)(31)(i)(A) of this section, and subject to the requirements of 8 CFR
274a.12(b)(34), the new period of employment described in paragraph
(h)(31)(i) of this section may last for up to 60 days beginning on the
Received Date on Form I-797 (Notice of Action) or, if the start date of
employment occurs after the I-797 Received Date, for a period of up to
60 days beginning on the start date of employment indicated in the H-2B
petition.
(B) With respect to a new petition described in paragraph
(h)(31)(i)(B) of this section, the new period of employment described
in paragraph (h)(31)(i) of this section may last for up to 60 days
beginning on the later of either January 25, 2024, or the start date of
employment indicated in the H-2B petition.
(C) With respect to either type of new petition, if USCIS
adjudicates the new petition before the expiration of this 60-day
period and denies the petition, or if the new petition is withdrawn by
the petitioner before the expiration of the 60-day period, the
employment authorization associated with the filing of that petition
under 8 CFR 274a.12(b)(34) will automatically terminate 15 days after
the date of the denial decision or 15 days after the date on which the
new petition is withdrawn. Nothing in this paragraph (h)(31) is
intended to alter the availability of employment authorization related
to professional H-2B athletes who are traded between organizations
pursuant to paragraph (h)(6)(vii) of this section and 8 CFR
274a.12(b)(9).
(iii) In addition to meeting all other requirements in paragraph
(h)(6) of this section for the H-2B classification, to commence
employment under this paragraph (h)(31):
(A) The alien must either:
(1) Have been in valid H-2B nonimmigrant status on or after January
25, 2024 and be the beneficiary of a non-frivolous H-2B petition
requesting an extension of the alien's stay that is received on or
after January 25, 2024, but no later than January 24, 2025; or
(2) Be the beneficiary of a non-frivolous H-2B petition requesting
an extension of the alien's stay that is pending as of January 25,
2024; and
(B) The petitioner may not impede, interfere, or refuse to
cooperate with an employee of the Secretary of the U.S. Department of
Labor who is exercising or attempting to exercise DOL's audit or
investigative authority under 20 CFR part 655, subpart A, and 29 CFR
503.25.
(iv) Authorization to initiate employment changes pursuant to this
paragraph (h)(31) begins at 12 a.m. on January 25, 2024, and ends at
the end of January 24, 2025.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
3. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L.
114-74, 129 Stat. 599.
0
4. Effective November 17, 2023, through November 17, 2026, amend Sec.
274a.12 by adding paragraph (b)(34) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(34)(i) Pursuant to 8 CFR 214.2(h)(31) and notwithstanding 8 CFR
214.2(h)(2)(i)(D), an alien is authorized to be employed no earlier
than the start date of employment indicated in the H-2B petition and no
earlier than January 25, 2024, by a new employer that has filed an H-2B
petition naming the alien as a beneficiary and requesting an extension
of stay for the alien, for a period not to exceed 60 days beginning on:
(A) The later of the ``Received Date'' on Form I-797 (Notice of
Action) acknowledging receipt of the petition, or the start date of
employment indicated on the new H-2B petition, for petitions filed on
or after January 25, 2024; or
(B) The later of January 25, 2024, or the start date of employment
indicated on the new H-2B petition, for petitions that are pending as
of January 25, 2024.
(ii) If USCIS adjudicates the new petition prior to the expiration
of the 60-day period in paragraph (b)(34)(i) of this section and denies
the new petition for extension of stay, or if the petitioner withdraws
the new petition before the expiration of the 60-day period, the
employment authorization under this paragraph (b)(34) will
automatically terminate upon 15 days after the date of the denial
decision or the date on which the new petition is withdrawn. Nothing in
this section is intended to alter the availability of employment
authorization related to professional H-2B athletes who are traded
between organizations pursuant to paragraph (b)(9) of this section and
8 CFR 214.2(h)(6)(vii).
(iii) Authorization to initiate employment changes pursuant to 8
CFR 214.2(h)(31) and paragraph (b)(34)(i) of this section begins at 12
a.m. on January 25, 2024, and ends at the end of January 24, 2025.
* * * * *
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Chapter V
Accordingly, for the reasons stated in the joint preamble, 20 CFR
part 655 is amended as follows:
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
5. The authority citation for part 655 continues to read as follows:
Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d),
[[Page 80459]]
Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L.
109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
6. Effective November 17, 2023, through September 30, 2024, add Sec.
655.64 to read as follows:
Sec. 655.64 Special application filing and eligibility provisions for
Fiscal Year 2024 under the November 17, 2023 supplemental cap increase.
(a) An employer filing a petition with USCIS under 8 CFR
214.2(h)(6)(xiv) to request H-2B workers with FY 2024 employment start
dates on or before September 30, 2024, must meet the following
requirements:
(1) The employer must attest on the Form ETA-9142-B-CAA-8 that its
business is suffering irreparable harm or will suffer impending
irreparable harm (that is, permanent and severe financial loss) without
the ability to employ all of the H-2B workers requested on the petition
filed pursuant to 8 CFR 214.2(h)(6)(xiv). Additionally, the employer's
attestation must identify the types of evidence the employer is relying
on and will retain to meet the irreparable harm standard, attest that
the employer has created a detailed written statement describing how it
is suffering irreparable harm or will suffer impending irreparable harm
and describing how such evidence demonstrates irreparable harm, and
attest that the employer will provide all documentary evidence of the
applicable irreparable harm and the written statement describing how
such evidence demonstrates irreparable harm to DHS and/or DOL upon
request.
(2) The employer must attest on Form ETA-9142-B-CAA-8 that each of
the workers requested and/or instructed to apply for a visa, whether
named or unnamed, on a petition filed pursuant to 8 CFR
214.2(h)(6)(xiv), have been issued an H-2B visa or otherwise granted H-
2B status during one of the last three (3) fiscal years (fiscal year
2021, 2022, or 2023), unless the H-2B worker is a national of
Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa
Rica and is counted towards the 20,000 cap described in 8 CFR
214.2(h)(6)(xiv)(A)(2).
(3) The employer must attest on Form ETA-9142-B-CAA-8 that the
employer will comply with all the assurances, obligations, and
conditions of employment set forth on its approved Application for
Temporary Employment Certification.
(4) An employer that submits Form ETA-9142B-CAA-8 and the I-129
petition 30 or more days after the certified start date of work, as
shown on its approved Form ETA-9142B, Final Determination: H-2B
Temporary Labor Certification Approval, must conduct additional
recruitment of U.S. workers as follows:
(i) Not later than the next business day after submitting the I-129
petition for H-2B worker(s), the employer must place a new job order
for the job opportunity with the State Workforce Agency (SWA), serving
the area of intended employment. The employer must follow all
applicable SWA instructions for posting job orders, concurrently inform
the SWA and NPC that the job order is being placed in connection with a
previously certified Application for Temporary Employment Certification
for H-2B workers by providing the unique temporary labor certification
(TLC) identification number, and receive applications in all forms
allowed by the SWA, including online applications (sometimes known as
``self-referrals''). The job order must contain the job assurances and
contents set forth in Sec. 655.18 for recruitment of U.S. workers at
the place of employment, and remain posted for at least 15 calendar
days;
(ii) During the period of time the SWA is actively circulating the
job order described in paragraph (a)(4)(i) of this section for
intrastate clearance, the employer must contact, by email or other
available electronic means, the nearest comprehensive American Job
Center (AJC) serving the area of intended employment where work will
commence, request staff assistance advertising and recruiting qualified
U.S. workers for the job opportunity, and provide the unique
identification number associated with the job order placed with the SWA
or, if unavailable, a copy of the job order. If a comprehensive AJC is
not available, the employer must contact the nearest affiliate AJC
serving the area of intended employment where work will commence to
satisfy the requirements of this paragraph (a)(4)(ii);
(iii) Where the occupation or industry is traditionally or
customarily unionized, during the period of time the SWA is actively
circulating the job order described in paragraph (a)(4)(i) of this
section for intrastate clearance, the employer must contact (by mail,
email or other effective means) the nearest American Federation of
Labor and Congress of Industrial Organizations office covering the area
of intended employment and provide written notice of the job
opportunity, by providing a copy of the job order placed pursuant to
(a)(4)(i) of this section, and request assistance in recruiting
qualified U.S. workers for the job;
(iv) During the period of time the SWA is actively circulating the
job order described in paragraph (a)(4)(i) of this section for
intrastate clearance, the employer must contact (by mail or other
effective means) its former U.S. workers, including those who have been
furloughed or laid off, during the period beginning January 1, 2022,
until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xiv)
is submitted, who were employed by the employer in the occupation at
the place of employment (except those who were dismissed for cause or
who abandoned the worksite), disclose the terms of the job order placed
pursuant to (a)(4)(i) of this section, and solicit their return to the
job. The contact and disclosures required by this paragraph (a)(4)(iv)
must be provided in a language understood by the worker, as necessary
or reasonable, and in writing;
(v) During the period of time the SWA is actively circulating the
job order described in paragraph (a)(4)(i) of this section for
intrastate clearance, the employer must engage in the recruitment of
U.S. workers as provided in Sec. 655.45(a) and (b). The contact and
disclosures required by this paragraph (a)(4)(v) must be provided in a
language understood by the worker, as necessary or reasonable, in
writing; and
(vi) During the period of time the SWA is actively circulating the
job order described in paragraph (a)(4)(i) of this section for
intrastate clearance, the employer must contact (by mail or other
effective written means) all U.S. workers currently employed at the
place of employment, disclose the terms of the job order placed
pursuant to (a)(4)(i) of this section, and request assistance in
recruiting qualified U.S. workers for the job. The contact, disclosure,
and request for assistance required by this paragraph (a)(4)(vi) must
be provided in a language understood by the worker, as necessary or
reasonable, and in writing;
(vii) Where the employer maintains a website for its business
operations, during the period of time the SWA is actively circulating
the job order described in paragraph (a)(4)(i) of this section for
intrastate clearance, the employer must post the job opportunity in a
conspicuous location on the website. The job opportunity posted on the
website must disclose the terms of the job order placed pursuant to
(a)(4)(i) of this section, and remain posted for at least 15 calendar
days;
(viii) The employer must hire any qualified U.S. worker who applies
or is referred for the job opportunity until the date on which the last
H-2B worker departs for the place of employment, or 30 days after the
last date on which the
[[Page 80460]]
SWA job order is posted, whichever is later. Consistent with Sec.
655.40(a), applicants can be rejected only for lawful job-related
reasons.
(5) The employer must attest on Form ETA-9142-B-CAA-8 that it will
fully cooperate with any audit, investigation, compliance review,
evaluation, verification, or inspection conducted by DOL, including an
on-site inspection of the employer's facilities, interview of the
employer's employees and any other individuals possessing pertinent
information, and review of the employer's records related to the
compliance with applicable laws and regulations, including but not
limited to evidence pertaining to or supporting the eligibility
criteria for the FY 2024 supplemental allocations outlined in this
paragraph (a) and Sec. 655.65(a), as a condition for the approval of
the H-2B petition. Pursuant to this subpart and 29 CFR 503.25, the
employer will not impede, interfere, or refuse to cooperate with an
employee of the Secretary who is exercising or attempting to exercise
DOL's audit or investigative authority.
(b) This section expires on October 1, 2024.
(c) The requirements under paragraph (a) of this section are
intended to be non-severable from the remainder of this section; in the
event that paragraph (a)(1), (2), (3), (4), or (5) of this section is
enjoined or held to be invalid by any court of competent jurisdiction,
the remainder of this section is also intended to be enjoined or held
to be invalid in such jurisdiction, without prejudice to workers
already present in the United States under this part, as consistent
with law.
0
7. Effective November 17, 2023, through September 30, 2027, add Sec.
655.65 to read as follows:
Sec. 655.65 Special document retention provisions for Fiscal Years
2024 through 2027 under the Consolidated Appropriations Act, 2023, as
extended by Public Law 118-15.
(a) An employer that files a petition with USCIS to employ H-2B
workers in fiscal year 2024 under authority of the temporary increase
in the numerical limitation under section 303 of Division O, Public Law
117-328, as extended by Public Law 118-15 must maintain for a period of
three (3) years from the date of certification, consistent with 20 CFR
655.56 and 29 CFR 503.17, the following:
(1) A copy of the attestation filed pursuant to the regulations in
8 CFR 214.2 governing that temporary increase;
(2) Evidence establishing, at the time of filing the I-129
petition, that the employer's business is suffering irreparable harm or
will suffer impending irreparable harm (that is, permanent and severe
financial loss) without the ability to employ all of the H-2B workers
requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xiv),
including a detailed written statement describing the irreparable harm
and how such evidence shows irreparable harm;
(3) Documentary evidence establishing that each of the workers the
employer requested and/or instructed to apply for a visa, whether named
or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xiv), have
been issued an H-2B visa or otherwise granted H-2B status during one of
the last three (3) fiscal years (fiscal year 2021, 2022, or 2023),
unless the H-2B worker(s) is a national of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted
towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xiv)(A)(2).
Alternatively, if applicable, employers must maintain documentary
evidence that the workers the employer requested and/or instructed to
apply for visas are eligible nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica as defined in 8 CFR
214.2(h)(6)(xiv)(A)(2); and
(4) If applicable, proof of recruitment efforts set forth in Sec.
655.64(a)(4)(i) through (vii) and a recruitment report that meets the
requirements set forth in Sec. 655.48(a)(1) through (4) and (7), and
maintained throughout the recruitment period set forth in Sec.
655.64(a)(4)(viii).
(b) DOL and/or DHS may inspect the documents in paragraphs (a)(1)
through (4) of this section upon request.
(c) This section expires on October 1, 2027.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
[FR Doc. 2023-25493 Filed 11-16-23; 8:45 am]
BILLING CODE 9111-97-P; 4510-FP-P
