Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 95626-95685 [2024-28017]

Download as PDF 95626 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 214 and 274a [CIS No. 2788–25] RIN 1615–AC95 DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [DOL Docket No. ETA–2024–0002] RIN 1205–AC20 Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 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) 2025 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 2025. These supplemental visas will be distributed in four allocations throughout the fiscal year. This rule reserves 20,000 of these visas 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 December 2, 2024; instructions 2 and 4 amending 8 CFR 214.2 and 274a.12, respectively, are effective from December 2, 2024, through December 2, 2027; instruction 6, adding 20 CFR 655.64, is effective from December 2, 2024, through September 30, 2025; and instruction 7, adding 20 CFR 655.68, is effective from December 2, 2024, through September 30, 2028. Petition dates: DHS will not accept any H–2B petitions under provisions related to the FY 2025 supplemental numerical allocations after September ddrumheller on DSK120RN23PROD with RULES2 SUMMARY: VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 15, 2025, and will not approve any such H–2B petitions after September 30, 2025. The provisions related to portability are only available to petitioners and H–2B nonimmigrant workers initiating employment through the end of January 24, 2026. 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–9 associated with this rule until January 31, 2025. 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–9, identified by Regulatory Information Number (RIN) 1205–AC20, 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–AC20 in your submission. All comments received will become a matter of public record and may be posted without change to https://www.regulations.gov. Comments submitted after the deadline for submission will not be considered. Please do not submit comments containing trade secrets, confidential or proprietary commercial or financial information, personal health information, sensitive personally identifiable information (for example, social security numbers, driver’s license or state identification numbers, passport numbers, or financial account numbers), or other information that you do not want to be made available to the public. The agency reserves the right to redact or refrain from posting such information and libelous or otherwise inappropriate comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; or that contain hate speech directed at race, color, sex, sexual orientation, national origin, ethnicity, age, religion, or disability. Please note that depending on how information is submitted through regulations.gov, the agency may not be able to redact the information and instead reserves the right to refrain from posting the information or comment in such situations. FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a: Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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–9: 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 2025 Public Law 118–83 D. Joint Issuance of the Final Rule III. Discussion A. Statutory Determination B. Numerical Increase and Allocations for Fiscal Year 2025 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 2025 Attestation F. Portability G. DHS Petition Procedures H. 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 2025 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 2025, subject to certain conditions. The 64,716 visas are divided into the following allocations: • For the first half of FY 2025: 20,716 immediately available visas limited to E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations returning workers, in other words, those workers who were issued H–2B visas or held H–2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These petitions must request employment start dates on or before March 31, 2025; • For the early second half of FY 2025 (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 2022, 2023, or 2024 regardless of country of nationality. These early second half of FY 2025 petitions must request employment start dates from April 1, 2025, to May 14, 2025. Furthermore, employers must file these petitions no earlier than 15 days after the second half statutory cap 1 is reached; • For the late second half of FY 2025 (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 2022, 2023, or 2024 regardless of country of nationality. These late second half of FY 2025 petitions must request employment start dates from May 15, 2025, to September 30, 2025. 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 2025: 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 2025 may file such petitions immediately after the publication of this TFR. Employers requesting an employment start date in the second half of FY 2025 must file such petitions no earlier than 15 days after the second half statutory cap is reached. To qualify for the FY 2025 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 the current filing 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 location, on or before September 15, 2025; • 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 is 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 who left employment with the employer on or after January, 1, 2023, including those the employer furloughed or laid off, 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 95627 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 2025 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, failure to cooperate with the audit or investigation process, 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. An employer’s failure to cooperate with or respond to an audit or investigation severely hinders the Departments’ ability to assess whether it has complied with the H–2B program requirements and to determine if any temporary foreign or U.S. workers were affected by program violations. In recognition of the substantial impact that non-compliance can have on both U.S. workers and H– 2B workers, DHS and DOL intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. And as it E:\FR\FM\02DER2.SGM 02DER2 95628 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations did as part of the supplemental cap TFRs in recent years, 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 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 2025 supplemental cap authority on or after October 1, 2025. ddrumheller on DSK120RN23PROD with RULES2 H–2B Portability In addition to exercising its timelimited authority to make additional FY 2025 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, 2025, or who are the beneficiaries of non-frivolous H–2B petitions that are pending as of January 25, 2025, 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 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); 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, 88 FR 80394 (Nov. 17, 2023). 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 portability ends one year after the provision’s effective date of January 25, 2025, in other words, at the end of January 24, 2026.4 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 in such form and containing such information as the Secretary prescribes 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 4 On September 20, 2023, DHS issued Modernizing H–2 Program Requirements, Oversight, and Worker Protections, Notice of Proposed Rulemaking (NPRM), 88 FR 65040, 65066. 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. 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. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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). INA section 291, 8 U.S.C. 1361, establishes that the petitioner or applicant for a visa or other immigration document bears the burden of proof with respect to eligibility and inadmissibility, including that the noncitizen is entitled to the immigration status being sought. 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). 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. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 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. 7 For instance, the FY 2023 and FY 2024 H–2B supplemental cap TFRs both included a portability provision at 8 CFR 214.2(h)(29) and (31), respectively. Portability under 8 CFR 214.2(h)(31) remains in effect through January 24, 2025. 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); 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, 88 FR 80394 (Nov. 17, 2023). 8 See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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. 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 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 2025 is from October 1, 2024, through September 30, 2025. 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). PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 95629 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 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 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:// 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/uscis- E:\FR\FM\02DER2.SGM Continued 02DER2 95630 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 For FY 2025, USCIS received sufficient H–2B petitions to reach the first half of the fiscal year statutory cap on September 18, 2024.19 This trend in recent years of increased demand for H– 2B workers is even more apparent in the second half of the fiscal year.20 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/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). 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. 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). 19 On September 19, 2024, 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 2025, and that September 18, 2024, was the final receipt date for new cap-subject H– 2B worker petitions requesting an employment start date before April 1, 2025. See USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024). While this date was slightly later than in fiscal year 2023, the Departments note that DOL received 2,158 applications for the first half of the FY 2025 statutory cap during the initial threeday filing window of July 3–5, 2024, covering 44,238 worker positions; a 59% increase in TLC workload and 48% increase in requested worker positions when compared to the same time period for fiscal year 2023. See DOL, OFLC Publishes List of Randomized H–2B Applications Submitted July 3–5, 2024, for Employers Seeking H–2B Workers Starting October 1, 2024, https://www.dol.gov/ agencies/eta/foreign-labor/news (July 9, 2024). 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; VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118–83 (Sept. 26, 2024) (FY 2025 authority), which extended the authorization previously provided in section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47 (Mar. 23, 2024) (‘‘FY 2024 Omnibus’’), as discussed below. C. FY 2025 Public Law 118–83 On March 23, 2024, President Joseph Biden signed the FY 2024 Omnibus, which contains a provision, section 105 of Division G, Title I, 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 otherwiseDOL 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 4, 2022, covering 136,555 worker positions; DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions; and DOL received 8,817 H–2B applications by January 8, 2024, covering 138,847 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); section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117–103 (FY 2022 Omnibus); section 303 of Division O of the Consolidated Appropriations Act, 2023, Public Law 117–328 (FY 2023 Omnibus); Division A of Public Law 118–15, Continuing Appropriations Act, 2024 and Other Extensions Act, through November 17, 2023, as well as section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47 (FY 2024 Omnibus), signed into law on March 23, 2024, and the Continuing Appropriations and Extensions Act, 2025, sections 101(6) and 106 of Division A, Title I of Public Law 118–83 (Sept. 26, 2024). PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 established statutory numerical limitation set forth in the INA.22 Specifically, section 105 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] 2024 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 2024 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 25, 2024, Congress passed the FY 2025 authority, Public Law 118–83, which the President signed the next day. This law extends authorization under the same terms and conditions provided in section 105 of Division G, Title I of the FY 2024 Omnibus permitting the Secretary of Homeland Security to increase the number of H–2B visas available to U.S. employers in FY 2025, and expires on December 20, 2024.23 In other words, Public Law 118–83 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 2025, notwithstanding the otherwiseestablished statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2025 cannot be met.24 Under the Public Law 118–83 authority, DHS and DOL are jointly publishing this 22 Further Consolidated Appropriations Act, 2024, Public Law 118–47 (Mar. 23, 2024). 23 See secs. 101(6) and 106, Div. A, Title I, Pub. L. 118–83 (Sept. 26, 2024), and section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47 (Mar. 23, 2024) (FY 2024 Omnibus). 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 2025 subject to the same terms and conditions as the FY 2024 authority at any time before the continuing resolution expires, notwithstanding the reference to FY 2024 in the FY 2024 Omnibus. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 temporary final rule to authorize the issuance of no more than 64,716 additional visas for FY 2025 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 2025 supplemental cap expires at the end of that fiscal year. Therefore, USCIS will not approve H– 2B petitions filed in connection with this FY 2025 supplemental cap authority on or after October 1, 2025. 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 105 of the FY 2024 Omnibus, which is the same authority provided for FY 2025 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, and FY 2021 through FY 2024, 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 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. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 toward the FY 2018 supplemental cap increase was 15,788.27 The vast majority 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 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). 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. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 95631 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 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 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/ 1245745116528156673. 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). E:\FR\FM\02DER2.SGM 02DER2 95632 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 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 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. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 cap for FY 2022 positions with start dates beginning on April 1, 2022 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 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 2023.45 As in the FY 2022 TFRs, 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. 45 See Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. 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 On November 17, 2023, 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 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) (correction). 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. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 FY 2024.48 As in the FY 2023 TFR, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2021, 2022, or 2023), which were distributed in several allocations based on date of employer need: 20,716 for employers with requested employment start dates on or before March 31, 2024; 19,000 for employers with requested employment start dates from April 1, 2024, to May 14, 2024 (early second half allocation); and 5,000 for employers with requested employment start dates from May 15, 2024, to September 30, 2024 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2024, and were set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt from the returning worker requirement. By January 9, 2024, USCIS received enough petitions to reach the cap for the additional 20,716 H–2B visas made available for returning workers for the first half of fiscal year, and by April 17, 2024, USCIS received enough petitions to reach the cap for the additional 19,000 H–2B visas made available for returning workers for the early second half of fiscal year.49 USCIS data show that the total number of H–2B workers approved towards the FY 2024 supplemental cap increase was 85,577, including 61,102 workers under the returning worker allocation, as well as 24,475 workers approved towards the country-specific allocation.50 Once again, DHS, in consultation with DOL, believes that it is appropriate to increase the H–2B cap for FY 2025 based on the demand for H–2B workers 48 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, 88 FR 80394 (Nov. 17, 2023). 49 See USCIS, Cap Reached for Additional Returning Worker H–2B Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/ cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for Additional Returning Worker H–2B Visas for the Early Second Half of FY 2024, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2024 (Apr. 18, 2024). 50 The number of approved workers exceeded the number of additional visas authorized for FY 2024 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, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 in the first half of FY 2025, anticipated demand for the second half of FY 2025, recent economic growth, and strong labor demand.51 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 prior years, DHS and DOL (the Departments) have determined that it is appropriate to jointly issue this temporary final rule.52 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.53 Although DHS and DOL each have authority to independently issue rules implementing their respective 51 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. 52 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); 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, 88 FR 80394 (Nov. 17, 2023). 53 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). PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 95633 duties under the H–2B program,54 the Departments are implementing the numerical increase in this manner to ensure there can be no question about the authority underlying the 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).55 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 2025 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with the FY 2025 continuing resolution extending the authority provided in section 105 of the FY 2024 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 2025 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 H–2B supplemental visa temporary final rules in recent years, 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 54 See Outdoor Amusement Bus. Ass’n, 983 F.3d at 684–89. 55 See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A). E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95634 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations evidence demonstrating irreparable harm or comply with the audit process, the Departments may consider it to be a willful violation resulting in an adverse agency action against the employer, including revocation of the TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under past supplemental caps revealed concerns surrounding payment of the promised wage, employment of returning workers, documentation of irreparable harm, need for all requested workers, employment for the reported number of hours and employment at the listed location, recruitment of U.S. workers, and cooperation with the audit process, which may warrant further review and action. Based on the insufficient responses and evidence generally provided in response to these audits, which indicate a lack of compliance with the audit process and program requirements, DOL has added clarifying language to the regulatory text at 20 CFR 655.64(a)(1) and (a)(5) to provide more information on how employers can provide sufficient evidence to establish irreparable harm in response to an audit or investigation and further explain how failing to respond to audits or failing to establish compliance with H–2B program requirements can result in debarment from the program and all programs administered by OFLC, consistent with the Department’s regulations at 20 CFR 655.70 and 20 CFR 655.73. While the requirements remain the same, DOL believes adding these clarifications would benefit the public and regulated community at large. As he did in recent years, 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, similar to FY 2024, will be reserved for H–2B workers who are nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.56 DHS is reserving these 56 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– VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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),57 joining the United States to ramp up efforts to address the irregular migration flows through the Darien,58 and hosting Safe Mobility Offices (SMOs) so that migrants do not trek north to the U.S. Southwest Border.59 The 20,000 set-aside will also 2B allocations) because noncitizens covered by the special allocation under section 105 of the FY 2024 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, 2025, div. A, sec. 101(6) (extending the authority provided in FY 2024 Omnibus div. G, sec. 3105 (‘‘Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the [INA] . . . .’’)). 57 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/. On May 7, 2024, Guatemala hosted the third Los Angeles Declaration Ministerial with foreign ministers and senior representatives from 21 endorsing countries, including U.S. Secretary of State Antony Blinken. The White House, Fact Sheet: Third Ministerial Meeting on the Los Angeles Declaration Migration and Protection in Guatemala (May 7, 2024), available at https://www.whitehouse.gov/briefingroom/statements-releases/2024/05/07/fact-sheetthird-ministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala/. On September 25, the United States hosted the fourth Los Angeles Declaration Ministerial with foreign ministers and senior representatives from the other 21 endorsing countries. The White House, Fact Sheet: Fourth Ministerial Meeting on the Los Angeles Declaration Migration and Protection (September 26, 2024), available at https://www.whitehouse.gov/briefingroom/statements-releases/2024/09/26/fact-sheetfourth-ministerial-meeting-on-the-los-angelesdeclaration-on-migration-and-protection/. 58 Trilateral Joint Statement, April 11, 2023, https://www.dhs.gov/news/2023/04/11/trilateraljoint-statement. 59 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/statementsreleases/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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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.60 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.61 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 approving petitions on behalf of 6,805 beneficiaries under the FY 2021 allocation,62 3,231 beneficiaries under 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%20is%20 pleased,authorized%20channels%20of %20lawful%20migration. 60 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. 61 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’ 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). 62 While USCIS approved a greater number of beneficiaries from the Northern Central American E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 the FY 2022 first half supplemental allocation,63 12,318 beneficiaries for the second half of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023 allocation.64 DHS also observed robust employer interest in response to the FY 2024 H–2B supplemental visa allocation for Salvadoran, Guatemalan, Honduran, Haitian, Colombian, Ecuadoran, and Costa Rican nationals. For FY 2024, USCIS approved 24,475 beneficiaries under the country-specific allocation.65 In addition, the BidenHarris administration has conducted outreach efforts to ensure U.S. businesses are able to address their labor needs by utilizing this country specific allocation for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica while at the same time promoting the availability of this lawful pathway for nationals of these countries seeking economic opportunity in the United States.66 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. 63 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. 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. 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. 65 See Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. While USCIS approved a greater number of beneficiaries under the country-specific allocation than the 20,000 visas allocated, the Department of State issued approximately 17,695 visas under this allocation. Id. 66 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 (June 9, 2022) (‘‘Our combined efforts [with the labor ministries in Honduras and Guatemala, and the Foreign Ministry in El Salvador] . . . resulted in a VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 DHS will not accept and will reject petitions submitted for the countryspecific allocation with a date of need on or after April 1, 2025, that are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2025 is met or are received after the applicable numerical limitation has been reached or after September 15, 2025. Requiring petitioners to wait to submit H–2B supplemental cap petitions with start dates of need on or after April 1, 2025, is consistent with the supplemental cap authority in section 105 of the FY 2024 Omnibus, as extended to FY 2025 by Public Law 118–83 (September 26, 2024), 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, 2025. Similar to previous temporary final rules, the Secretary of Homeland Security has also determined to limit the supplemental visas to H–2B returning workers,67 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 2022, 2023, or 2024.68 Like the 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.’’); USCIS, H–2B Visa Program: Overview and Country Specific Allocations Recruitment Webinar, https://www.uscis.gov/ outreach/upcoming-national-engagements/h-2bvisa-program-overview-and-country-specificallocations-recruitment-webinar (March 7, 2024). 67 For purposes of this rule, these returning workers could have been H–2B cap exempt or extended H–2B status in FY 2022, 2023, or 2024. Additionally, they may have been previously counted against the annual H–2B cap of 66,000 visas during FY 2022, 2023, or 2024, or the supplemental caps in FY 2022, 2023, or 2024. 68 The returning worker allocations are for workers who were issued H–2B visas or held H–2B PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 95635 temporary final rules in recent years, 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. 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. As stated in prior TFRs, in the past, 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.69 U.S. businesses, chambers of commerce, employer organizations, and state and local elected officials have also previously expressed concerns to the DHS and Labor Secretaries regarding the unavailability of H–2B visas after the statutory cap was reached.70 In addition, while DHS did not request comments for the FY 2024 TFR, several commenters on the FY 2023 TFR supported the Departments’ decision to publish one rule covering the entire status in fiscal years 2022, 2023, or 2024, 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. 69 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). 70 These letters were retained in the administrative record for those rules. E:\FR\FM\02DER2.SGM 02DER2 95636 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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.71 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 workers under the statutory cap, including potential wage and job losses by their U.S. workers, as well as other adverse downstream economic effects.72 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 105 of the FY 2024 Omnibus, as extended by Public 71 See the docket for 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) for access to these comments. 72 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), https://mda.maryland.gov/documents/2020-H2BImpact-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/hotelemployment-labor-shortage-increased-wage/ 652308/ (last visited Oct. 2, 2023); Feds Double Seasonal Worker Visas Ahead of 2024 Crab Season, Chesapeake Bay Magazine (Nov. 7, 2023, https:// www.chesapeakebaymagazine.com/feds-doubleseasonal-worker-visas-ahead-of-2024-crab-season/; Senator Chris Van Hollen, Van Hollen Meets with Eastern Shore Crab Houses, Highlights Efforts to Support Seafood Industry’s Employment Needs (March 21, 2024), https:// www.vanhollen.senate.gov/news/press-releases/ van-hollen-meets-with-eastern-shore-crab-houseshighlights-efforts-to-support-seafood-industrysemployment-needs; HotelDive, Hotel Employment Rose in May, But Owners’ Labor Woes Remained (June 11, 2024), https://www.hoteldive.com/news/ hotel-employment-labor-challenges/718560/. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 Law 118–83, 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.73 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.74 First, as explained in earlier TFRs, DHS has long interpreted the reference to ‘‘the needs of American businesses’’ reiterated in section 105 of the FY 2024 Omnibus, as extended by Public Law 118–83, 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 73 Congress has delegated to DHS the broad authority to administer and enforce the immigration laws in title 8 of the U.S.C. as well as other immigration and naturalization laws. See, e.g., INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1); see Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024) (‘‘In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes ‘expressly delegate’ to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to fill up the details of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as ‘appropriate’ or ‘reasonable.’ ’’) (cleaned up and internal citations omitted). 74 The statute explicitly provides that the Secretary of Homeland Security, after consulting with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during fiscal year 2025 with U.S. workers to perform temporary nonagricultural labor, may determine the appropriate number of H–2B supplemental visas to be issued in fiscal year 2025, limited to the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program. Consistent with the discretion afforded thereunder by Congress, and commensurate with authorities including those afforded under section 103 and 214 of the INA, 8 U.S.C. 1103 and1184, DHS, in consultation with DOL, is making available additional H–2B temporary nonagricultural worker visas for fiscal year 2025, as in past years, to employers who are suffering irreparable harm or will suffer impending irreparable harm. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. at 2263 (2024). PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 Security in allocating additional H–2B visas under section 105 of the FY 2024 Omnibus, as extended by Public Law 118–83, 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 2025, 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 2025 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 2025.75 The 75 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. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 determination to make available 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 2025 and expected demand for the second half of FY 2025; current labor market conditions; the general trend of increased demand for H–2B visas from FY 2017 to FY 2024; 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 the Biden-Harris Administration to address the root causes of irregular migration as outlined in 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 105 of the FY 2024 Omnibus, as extended by Public Law 118–83, 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 2025.76 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 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 105 of the FY 2024 Omnibus 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 105 of the FY 2024 Omnibus 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. 76 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 additional H–2B visas to be made available for FY 2025, 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 2025 supplemental cap authority. The Secretary further considered the objectives the BidenHarris Administration to address the root causes of irregular migration consistent with the E.O. 14010 and the L.A. Declaration, and managing migration through expansion of lawful pathways while increasing the consequences for those who do not use these pathways and unlawfully enter the United States.77 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.78 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 77 See Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 2023); Securing the Border, 89 FR 81156, (Oct. 7, 2025). 78 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. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 95637 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.79 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.80 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.81 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.82 Of the 79 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/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). 80 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. 81 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. 82 See USCIS, Cap Reached for Additional Returning Worker H–2B Visas for Second Half of FY E:\FR\FM\02DER2.SGM Continued 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95638 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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.83 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, 2023.84 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.85 In FY 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, 2023.86 USCIS received enough petitions to reach the cap for the additional 20,716 H–2B visas made available for returning workers for the first half of fiscal year by January 9, 2024, and USCIS received enough petitions to reach the cap for the additional 19,000 H–2B visas made available for returning workers for the early second half of fiscal year by April 17, 2024.87 Of the petitions for supplemental H–2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries, including 6,314 beneficiaries under the allocation of 5,000 visas made available for returning workers for the late second half of the fiscal year and 24,475 beneficiaries under the allocation of 20,000 visas reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.88 Data for the first half of FY 2025 clearly indicate an immediate need for additional supplemental H–2B visas for employers with start dates on or before March 31, 2025. USCIS received a sufficient number of H–2B petitions to reach the first half of the FY 2025 fiscal year statutory cap on September 18, 2024.89 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 2025, 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, October 11, 2023, and September 18, 2024, respectively.90 Through the third quarter of FY 2024, approximately 90 percent of H–2B filings were for positions within just six sectors.91 NAICS 56 (Administrative and Support and Waste Management and Remediation Services) accounted for 38.57% of filings, NAICS 71 (Arts, Entertainment, and Recreation) accounted for 11.73%, NAICS 72 (Accommodation and Food Services) accounted for 23.14%, NAICS 23, (Construction) accounted for 11.91%, NAICS 31 (Animal Food Manufacturing) accounted for 2.01% of filings, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) accounted for 2.39% of filings. Relevant unemployment data also supports the need for additional supplemental H–2B visas. 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 for most of these industries (except for NAICS 11, which accounts for the lowest percentage of filings among these industries) is lower than the long term (10-year) average.92 2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022). 83 See Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122, FY 2023 H–2B Northern Central American Cap Approvals by Validity Start Date Month. 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. 84 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). 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. 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. 86 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). 87 See USCIS, Cap Reached for Additional Returning Worker H–2B Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/ cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for Additional Returning Worker H–2B Visas for the Early Second Half of FY 2024, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2024 (Apr. 18, 2023). 88 See Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. The number of approved workers exceeded the number of additional visas authorized for FY 2024 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. 89 See USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/ newsroom/alerts/uscis-reaches-h-2b-cap-for-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 90 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; USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https:// www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024). 91 USCIS analysis of DOL OLFC Performance data. 92 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, https:// www.bls.gov/iag/tgs/iag311.htm. All data accessed September 23, 2024. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95639 10-YEAR AVERAGE OF INDUSTRY UNEMPLOYMENT RATE NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31 7.61 ...................................................................................... 6.13 4.82 7.96 7.90 5.22 * Supersector is used as a proxy, see footnote 94. AUGUST 2024 INDUSTRY UNEMPLOYMENT RATE NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31 11.3 ...................................................................................... 3.2 4.2 4.1 5.9 3.7 * Supersector is used as a proxy, see footnote 94. In August 2024, the industry unemployment for NAICS 56 93 was 4.2 percent, which is 0.62 points lower than its 10-year average of 4.82 percent, while the industry unemployment rate for NAICS 71 was 4.1 percent which is 3.86 points lower than its 10-year average of 7.96 percent. The August 2024 industry unemployment rate for NAICS 72 (5.9 percent) was 2 points lower than its 10-year average of 7.9 percent while the rate for NAICS 23 (3.2 percent) was 2.93 points lower than its 10-year average of 6.13 percent. The industry unemployment rate for NAICS 11 (11.3 percent) was 3.69 points higher than its 10-year average of 7.61 percent, making it the only industry among the top 5 H–2B industries that has a higher industry unemployment rate relative to its historical average. The relatively low unemployment rate across most of 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. 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 4.2 percent in August 2024.94 Historically, the availability of H–2B visas addressed a need in the labor market during periods of lower unemployment. Chart 1 95 shows that the H–2B visa allocations for Fiscal Year 2024 96 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. Chart 1: ~28 Visa Issuance vs National Unemployment Rate 40,000 0 ..__ _ _ _ _ _ _ _ _ _ _ _ _ _ _..__ _ _ _......._ _ _ _ _ _ _ _ _ _--'-_____________~ 4.00 3Jl0 5.00 1.00 8.00 !1.00 10.00 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. 93 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 23, 2024. 94 See DOL, BLS, The Employment Situation— August 2024, https://www.bls.gov/news.release/ archives/empsit_10042024.pdf (Sept. 6, 2024). 95 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 2024 are for October 2023–August 2024. Unemployment rate for 2024 is based on median Federal Reserve projections. See https://www.federalreserve.gov/monetarypolicy/ files/fomcprojtabl20240918.pdf (accessed September 23, 2024). 96 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. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 ER02DE24.003</GPH> ddrumheller on DSK120RN23PROD with RULES2 2.00 95640 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 Making allocations for all of FY 2025 in a single rule. As in FY 2023 and FY 2024, DHS believes that it is appropriate to issue a single rule for the entire fiscal year for multiple reasons.97 First, DHS expects that there is demand for supplemental visas in the first half of FY 2025. 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 2025.98 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 2025, 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, October 11, 2023, and September 18, 2024, respectively.99 Second, based on relevant data, DHS expects that USCIS will reach the statutory cap for the second half of FY 2025 and that there will accordingly be demand for supplemental visas in the second half of FY 2025. For example, in fiscal years 2017 through 2023, USCIS received a sufficient number of H–2B petitions to reach or exceed the relevant 97 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 2025. 98 USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/ newsroom/alerts/uscis-reaches-h-2b-cap-for-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 99 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); USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/ uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year2025 (Sept. 19, 2024). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, February 25, 2022, February 27, 2023, and March 7, 2024.100 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 4, 2022, covering 136,555 worker positions; DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions; and DOL received 8,817 H–2B applications by January 8, 2024, covering 138,847 worker positions.101 Finally, publishing one rule that addresses all the visas available for FY 2025 benefits the regulated public by giving more notice and certainty of what will become available for the second half. As noted in comments received in response to the FY 2023 TFR, this 100 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:// 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); USCIS, USCIS Reaches H–2B Cap for Second Half of FY 2024 and Announces Filing Dates for the Second Half of FY 2024 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-second-half-of-fy-2024-andannounces-filing-dates-for-the-second-half-of (Mar. 8, 2024). 101 See DOL, Announcements, https:// www.dol.gov/agencies/eta/foreign-labor/news. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 approach allows businesses to better plan ahead for their seasonal workforce needs.102 Filing Deadline of September 15, 2025 for All Petitions The authority to approve H–2B petitions under this FY 2025 supplemental cap expires at the end of the fiscal year, i.e., the end of September 30, 2025. 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 15, 2025. USCIS will reject any cases that are received after September 15, 2025. See new 8 CFR 214.2(h)(6)(xv)(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, DHS has set September 15, 2025 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 15, 2025 if the applicable numerical limit for the relevant supplemental visa allocation is reached before that date. See new 8 CFR 214.2(h)(6)(xv)(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 2025 (October 1, 2024 Through March 31, 2025) For the first half of FY 2025, 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 2022, 2023, or 2024, regardless of country of nationality. These petitions must request a date of need starting on or before March 31, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). DHS anticipates that employers will use all of the first half allocation for returning workers, given how quickly USCIS reached the FY 2025 first half statutory cap and the first half supplemental allocation for FY 2024. As noted previously, USCIS received enough H–2B petitions to reach the FY 2025 first half statutory cap on 102 See the docket for 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) for access to these comments. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 September 18, 2024.103 Under the FY 2024 TFR, which published on November 17, 2023, USCIS received enough petitions to reach the 20,716 first half allocation by January 9, 2024.104 Similarly, as with the FY 2024 TFR, 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.105 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 2025. As in previous years, 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. As explained in the FY 2024 TFR, 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 15, 2025 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 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 103 See USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/ newsroom/alerts/uscis-reaches-h-2b-cap-for-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 104 USCIS, Cap Reached for Additional Returning Worker H–2B Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-first-half-of-fy-2024 (Jan. 12, 2023). 105 Compare the publication dates of the FY 2024 TFR and 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. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 filing cutoff date prior to September 15, 2025 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, as occurred in FY 2024, 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, 2025, Through May 14, 2025) For the second half of FY 2025, 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 2022, 2023, or 2024, regardless of country of nationality. These petitions must request a date of need starting on or after April 1, 2025, through and including May 14, 2025. Limiting this allocation to employers with employment start dates on or before May 14, 2025 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.106 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 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 106 Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(2), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting employment start dates from April 1, 2025 to May 14, 2025 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2025 has been met. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 95641 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 2025 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 2025 second half supplemental visas. In the event that the statutory second half FY 2025 cap is not reached, the supplemental allocation for returning workers for the second half of FY 2025 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 as occurred in FY 2024 on April 17, 2024. 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, 2025. DHS chose to limit these 19,000 visas to start dates on or before May 14, 2025, 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 2025 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 2025 petitions and prior to September 15, 2025, 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 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 E:\FR\FM\02DER2.SGM 02DER2 95642 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations (and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 15, 2025, 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. As anticipated in the FY 2024 TFR, employers did, in fact, use the entire early second half of FY 2024 allocation.107 Additional Returning Worker Allocation for the Late Second Half (on or After May 15, 2025, Through September 30, 2025) ddrumheller on DSK120RN23PROD with RULES2 For the late second half of FY 2025, 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 2022, 2023, or 2024, 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, 2025. 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.108 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 is reached) 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 107 USCIS, Temporary Increase in H–2B Nonimmigrant Visas for FY 2024, https:// www.uscis.gov/working-in-the-united-states/ temporary-workers/h-2b-non-agricultural-workers/ temporary-increase-in-h-2b-nonimmigrant-visas-forfy-2024 (last visited Aug. 20, 2024). 108 Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(3), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting employment start dates from May 15, 2025 to September 30, 2025, that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2025 has been met. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 is reached.109 By allowing USCIS to manage its workload in this way, the 45day 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 third supplemental cap reserved for late season employers that need workers to begin work during the late spring and summer seasons in the fiscal year.110 By regulation, employers may only apply for a TLC 75 to 90 days before the start date of need,111 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 and FY 2024 TFRs, in past years, because of this requirement and the strong demand for H–2B 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,112 USCIS has typically received sufficient H–2B petitions to meet the statutory cap for the second half of the fiscal year around mid-February to early March, 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 2024, the full 109 While petitioners may continue to submit petitions under the early second half supplemental cap through September 15, 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. 110 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); 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, 88 FR 2023 (Nov. 17, 2023). 111 See 20 CFR 655.15(b). 112 As noted above, in fiscal years 2017 through 2024, 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, February 27, 2023, and March 7, 2024, respectively. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 allocation of 5,000 visas was not reached. As of September 30, 2024, DOS has issued 3,906 towards the late second half allocation, while USCIS approved 6,314 beneficiaries towards the late second half allocation.113 Therefore, in order to meet the employer demand in the late second half of FY 2025, while still maximizing the overall usage of supplemental visas, DHS has determined it is appropriate to again limit the late second half allocation for FY 2025 to up to 5,000 visas. DHS, in consultation with DOL, has determined that authorizing two allocations for the second half of FY 2025 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,114 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 cap, it will also announce the earliest possible filing date (45 days after the second half statutory cap is reached) for this allocation. In the event that the statutory second half FY 2025 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 113 Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. 114 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’’). E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 ddrumheller on DSK120RN23PROD with RULES2 As in FY 2024, 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 2025, up to and including September 30, 2025. As discussed in the Legal Framework section as well as in the section addressing the irreparable harm standard, DHS has a broad delegation from Congress to administer and enforce U.S. immigration laws and issue regulations regarding the same, as well as broad discretion over the admission of nonimmigrants, and the adjudication of nonimmigrant petitions, after consultation with other agencies, including DOL. See INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary enactment authorizing the Secretary of DHS to increase the number of H–2B visas,115 Congress delegated to the Secretary of DHS, after 115 Public Law 118–47, Division G, Title I, sec. 105 states: ‘‘Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during fiscal year 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year 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 such numerical limitation.’’ VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 consultation with the Secretary of Labor, the discretion to establish a framework for determining that the needs of American businesses cannot be satisfied with the existing workforce and the conditions under which to authorize additional visas to further the purpose of the enactment. In the most recent, as well as each prior annual enactment, Congress consistently used the word ‘‘may’’ when describing the Secretary’s authority, and the use of the word ‘‘may’’ indicates a grant of discretion, absent contrary legislative intent, structure and purpose of the statute.116 As in prior years, the Departments have determined that the temporary enactment together with DHS’s broad authority over immigration provide the Secretary of DHS with discretion to implement the temporary enactment in a manner that addresses two complimentary policy objectives: the need to provide access to H–2B workers to American businesses, and the objective to provide lawful pathways for able, willing, and qualified workers from designated countries to come temporarily to the United States and perform nonagricultural labor. In issuing this TFR, and as in prior years, the Departments are implementing appropriate policy choices in exercising the discretionary authority provided by Congress.117 This policy choice was previously ratified by Congress 118— legislative history of the FY2023 Omnibus indicates that Congress was aware of and approved of the countryspecific allocations.119 While prior fiscal years’ country-specific allocations have not been reached, the number has been trending upwards, and 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 116 See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983) (The word ‘‘may,’’ when used in a statute, usually implies some degree of discretion unless there is indication of contrary legislative intent, or an obvious contrary inference from the structure and purpose of the statute.). 117 See Loper Bright Enterprises, 144 S. Ct. at 2263 (2024). 118 Lorillard v. Pons, 434 U.S. 575, 581 (1978) (‘‘Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.’’). 119 See S. Rep. No. 118–85, at p. 104 (Jul. 27, 2023) (‘‘Further, the Committee supports the Departments efforts to set aside visas for certain nationalities, including nationals from El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers.’’). PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 95643 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 120 In FY 2024, the inclusion of nationals from the additional countries of Colombia, Ecuador, and Costa Rica increased the likelihood that the 20,000 visas would be used and the data show a continued trend of increased usage of the country-specific allocation.121 Employers requesting workers under the country-specific allocation with an employment start date in the first half of FY 2025 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 2025 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’ longstanding interpretation of their authority to make available supplemental (or in other words, additional) visas contingent upon the exhaustion of visas under the statutory cap.122 As in FY 2023 and FY 2024, 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 2025 to encourage U.S. employers that are suffering irreparable harm or will suffer impending 120 As previously noted, USCIS approved petitions on behalf of 6,805 beneficiaries under the FY 2021 country-specific allocation, 3,231 beneficiaries under the FY 2022 first half countryspecific supplemental allocation, 12,318 beneficiaries for the second half country-specific allocation of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023 country-specific 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. 121 As of October 28, 2024, USCIS approved petitions on behalf of 24,475 beneficiaries under the FY 2024 country-specific allocation. See Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. 122 Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(4), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of this section that have a date of need on or after April 1, 2025 and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2025 is met. E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95644 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 2025 using all 20,000 visas for nationals of the specified countries, and consequently, employers with start dates in the second half of FY 2025 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 2025 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 2025, 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 2025. 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. 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 allocations provided in this rule will be reached prior to September 15, 2025. 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, 2024, through March 31, 2025, will be reached before September 15, 2025; • 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, 2025, through May 14, 2025, will be reached before September 15, 2025; • 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, 2025, through September 30, 2025, will be reached before September 15, 2025; 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 15, 2025. Under this rule, new 8 CFR 214.2(h)(6)(xv)(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,123 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 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, 2024, through March 31, 2025, is reached before September 15, 2025; the 19,000 supplemental cap visas limited to returning workers that will be available for employers with dates of 123 See PO 00000 8 CFR 214.2(h)(8)(vii). Frm 00020 Fmt 4701 Sfmt 4700 need on or after April 1, 2025, through May 14, 2025, is reached before September 15, 2025; 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, 2025, through September 30, 2025, is reached before September 15, 2025; or the 20,000 visas limited to certain nationals is reached before September 15, 2025. 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 2022, 2023, or 2024. This temporal limitation mirrors prior fiscal years’ temporal limitation in the returning worker definition 124 and the temporal limitation Congress imposed in previous returning worker statutes.125 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.126 DOS 124 See e.g., 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, 88 FR 80394 (Nov. 17, 2023) (defining ‘‘returning workers’’ as those who were issued H–2B visas or held H–2B status in fiscal years 2021, 2022, or 2023). 125 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. 126 The previous review of an applicant’s qualifications and current evidence of lawful travel E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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).127 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 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 2025 supplemental cap was to the United States will generally lead to a shorter processing time of a renewal application. 127 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; the authority for these interview waivers is in place until further notice. See DOS, Important Update on Waivers of the Interview Requirement for Certain Nonimmigrant Visa Applicants, https:// travel.state.gov/content/travel/en/News/visas-news/ important-update-on-waivers-of-the-interviewrequirement-for-certaing-nonimmigrant-visaapplicants.html (last updated Dec. 21, 2023). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 issued an H–2B visa or otherwise granted H–2B status in FY 2022, 2023, or 2024, 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 2022, 2023, or 2024, 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 2022, 2023, or 2024. 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 2022, 2023, or 2024. While DHS reiterates the benefits of allocating visas under the supplemental PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 95645 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 participating in the Safe Mobility Initiative to increase migrant integration in host countries and, where appropriate, facilitate access to lawful pathways to the United States and other countries, including expedited refugee processing. 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.128 For example, as part of a comprehensive program to manage irregular migration, Guatemala agreed to participate in the Safe Mobility Initiative, hosting SMOs since June 12, 2023.129 On June 4, 2023, the United States and Colombia announced the impending establishment of SMOs that would provide information about the wide range of existing services and support available for refugees and other migrants in Colombia, with the goal of reaching migrants on the move, or even before they begin irregular migration journey.130 The Safe Mobility initiative launched in Colombia on June 28, 2023, with SMOs currently operational in three cities. Furthermore, on June 12, 128 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/jointstatement-from-the-united-states-and-guatemalaon-migration/. 129 Id. 130 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 also 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/. E:\FR\FM\02DER2.SGM 02DER2 95646 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 2023, the United States and the Government of Costa Rica launched SMOs in Costa Rica, in furtherance of bilateral partnership and addressing hemispheric challenge of irregular migration.131 On October 19, 2023, the United States and Ecuador announced their partnership in establishing SMOs in Ecuador.132 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.133 Second, in addition to the allocation for returning workers, the countryspecific allocation will also address the needs of certain H–2B employers that 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 of El Salvador, Guatemala, and Honduras 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.134 131 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/. 132 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/. 133 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.’’). 134 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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, including from Haiti.135 As in prior years, DOS will work with the relevant countries to facilitate consular interviews, if required,136 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 continuing to include these countries is reasonable given the progressively increasing use of H–2B visas among the Northern Central American countries of Guatemala, Honduras and El Salvador, and the other three countries—Colombia, Costa Rica and Ecuador—added to this allocation in fiscal year 2024. 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 135 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’’). 136 As noted previously, some consular officers 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 in place until further notice and is reviewed annually. 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 Update on Waivers of the Interview Requirement for Certain Nonimmigrant Visa Applicants, https://travel.state.gov/content/travel/ en/News/visas-news/important-update-on-waiversof-the-interview-requirement-for-certaingnonimmigrant-visa-applicants.html (last updated Dec. 21, 2023). PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 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,137 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 17 days in Guatemala, and 24 days to 8 days in Honduras.138 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.139 In FY 137 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. 138 See USAID, H–2 Visa Opportunities in Guatemala, Honduras, and El Salvador, https:// www.usaid.gov/sites/default/files/2024-06/ USAID%20H-2%20Fact%20Sheet%20%283_7_ 24%29.pdf (Mar. 7, 2024). 139 The ‘‘combined total’’ includes all H–2B visas and are not limited to visas issued under E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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.140 In FY 2022, DOS issued a combined total of 15,058 H–2B visas to nationals of Haiti and the Northern Central American countries.141 In FY 2023, DOS issued a combined total of 23,816 H–2B visas to nationals of Haiti and the Northern Central American countries.142 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 H–2B programs.143 In FY 2024, DOS issued a combined total of 17,879 H–2B supplemental visas to nationals of Haiti, the North Central American countries, and Colombia, Ecuador, and Costa Rica.144 Therefore, as previously stated, DHS has determined that the additional increase in FY 2025 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 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. 140 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. 141 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. 142 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. 143 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). 144 See DHS, USCIS, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 Rica,145 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 15, 2025. 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 2025 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 145 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). PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 95647 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.146 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 of the types of documentary evidence it selected in the attestation form that support 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,147 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.148 The irreparable harm standard is the same as in the temporary final rule for recent years. 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 146 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 an H–2B petition must not exceed the number of workers approved by the Department of Labor on the temporary labor certification.’’ 147 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). 148 The attestation requirement does not apply to workers who have already been counted under the H–2B statutory caps for fiscal year 2025. Further, the attestation requirement does not apply to noncitizens who are exempt from the fiscal year 2025 H–2B statutory cap, including those who are extending their stay in H–2B status. Accordingly, petitioners that are filing only on behalf of such workers are not subject to the attestation requirement. E:\FR\FM\02DER2.SGM 02DER2 95648 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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.149 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, as in prior years, the Departments think, as a policy matter, that it is reasonable to require 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. This requirement falls within the broad discretion Congress gave to the Secretary to, in consultation with the Secretary of Labor, increase the number of H–2B workers in order to meet the needs of American businesses.150 As discussed in the Legal Framework section as well as in the section addressing the country-specific allocation, DHS has broad delegation to administer and enforce U.S. immigration laws and issue regulations regarding the same, as well as broad discretion to establish conditions on the admission of nonimmigrants, and over the adjudication of nonimmigrant petitions, after consultation with other agencies, including DOL. See INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary enactment authorizing the Secretary of DHS to increase the number of H–2B visas,151 149 See section 105 of Pub. L. 118–47, as extended by Public Law 118–83. 150 See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2263 (2024). 151 Public Law 118–47, Division G, Title I, sec. 105, states: ‘‘Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during fiscal VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 Congress delegated to the Secretary of DHS, after consultation with the Secretary of Labor, the discretion to establish a framework for determining that the needs of American businesses cannot be satisfied with the existing workforce and the conditions under which to authorize additional visas to further the purpose of the enactment. In the most recent, as well as each prior annual enactment,152 Congress has consistently used the word ‘‘may’’ when describing the Secretary’s authority, and the use of the word ‘‘may’’ indicates a grant of discretion, absent contrary legislative intent, structure and purpose of the statute.153 As in prior years, the Departments have determined that the irreparable harm standard falls within the discretionary authority of the Secretary of DHS and furthers the legislative purpose behind the temporary enactment by making visas available to those American businesses that are most likely to be severely impacted by a lack of an able, willing, and qualified workforce. 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 selected in the attestation form and 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 year 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year 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 such numerical limitation.’’ 152 Lorillard v. Pons, 434 U.S. 575, 581 (1978). (‘‘Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.’’). 153 See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983) (The word ‘‘may,’’ when used in a statute, usually implies some degree of discretion unless there is indication of contrary legislative intent, or an obvious inference from the structure and purpose of the statute.). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 clarity informed by the Departments’ experiences in assessing the irreparable harm standard in previous years. 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 E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 executed 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 2022, 2023, and 2024) 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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. It has been DOL’s experience when reviewing documentation submitted to establish irreparable harm that employers commonly provide unexecuted contracts or letters of intent; contracts with redacted financial terms or dates of performance; or written statements memorializing verbal agreements that are not signed by all parties and thus may be insufficient evidence of the terms of such agreements and may call into question their credibility. In addition, DOL has encountered contracts among related entities that are owned, operated, or otherwise controlled by the employer or an individual with ownership interest in the employer. Such contracts may lack credibility as evidence of irreparable harm because the employer and related parties may share the same interest in obtaining H–2B workers even in situations where the employer is not suffering irreparable harm or will not suffer impending irreparable harm. In those instances, DOL may request that an employer provide additional credible evidence to demonstrate that it has met the legal standard. In other situations, the only documentation offered by the employer is a declaration, without any supporting documentary evidence. Given that the employer must establish 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, an employer’s irreparable harm cannot be properly assessed without evidence of its financial business needs. As such, DOL is clarifying that merely asserting irreparable harm, or providing documentation that lacks sufficient facts PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 95649 or indicia of validity (e.g., signatures) for DOL to determine that the employer was suffering or would suffer impending irreparable harm without the ability to employ all of the H–2B workers requested under the supplemental cap at the time of filing their petition, will be insufficient to make an irreparable harm determination. In such instances where the evidence is insufficient or the petitioner merely submits a declaration without supporting documentation, DOL may require the employer to provide additional credible evidence. This is because mere assertions or the absence of key financial terms or dates of performance in a contract due to redaction, for example, hinder the Department’s ability to evaluate whether the employer was in fact suffering irreparable harm or would have suffered impending irreparable harm without the ability to employ all of the H–2B workers it requested for a given period. Factors that can demonstrate the credibility of a contract or similar commitment or obligation may include evidence of an agreement, preferably in writing, that includes the financial terms, dates of performance, and evidence it was signed and/or agreed upon before the petition was filed. 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 and that it will keep it as part of its records, to be provided to the Departments, upon request. As the burden rests with the petitioner to prove eligibility for supplemental H–2B visas under the time-limited authority implemented with this temporary final rule by a preponderance of the evidence, it is the petitioner’s burden to establish that it meets the irreparable harm standard. INA sec. 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N Dec. 369, 375–76 (AAO 2010). The attestation form will serve as prima facie initial evidence to DHS that the petitioner’s business is E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95650 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations suffering irreparable harm or will suffer impending irreparable harm. USCIS will reject in accordance with 8 CFR 103.2(a)(7)(ii) or may deny in accordance with 8 CFR 103.2(b)(8)(ii), as applicable, any petition requesting H– 2B workers under this FY 2025 supplemental cap that is lacking the requisite attestation form. Although this rule does not require submission of the evidence selected in the attestation and/ or a detailed written statement at the time of filing of the petition, other than an attestation, the employer must have the evidence selected in the attestation 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 supplemental TFRs in recent years, 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 willful violation resulting in an adverse agency action on the employer, including revocation of the 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)(xv)(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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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, PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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); and (3) a recruitment report for any additional recruitment required under this rule for a period of 3 years from the date of certification. See 20 CFR 655.68. 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 655.68, 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. As mentioned above, the employer bears the burden of establishing that they are suffering or will suffer impending irreparable harm. 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 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 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, 503.24.154 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 154 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 for purposes of DOL enforcement actions in 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. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 refer potential discrimination to IER pursuant to applicable interagency agreements. See IER, Partnerships, https://www.justice.gov/crt/partnerships (last visited Aug. 20, 2024). In addition, if members of the public have information that a participating employer may be abusing this program, DHS invites them to notify U.S. Immigration and Customs Enforcement (ICE) by completing the online ICE Tip Form, https://www.ice.gov/webform/icetip-form (last visited Aug. 20, 2024), or alternately, via the toll-free ICE Tip Line, (866) 347–2423.155 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 105 of the FY 2024 Omnibus, as extended by Public Law 118–83, 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 will, as applicable, reject the petition in accordance with 8 CFR 103.2(a)(7)(ii) or may 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 2024 Omnibus, as extended by Public Law 118–83, 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 155 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. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 95651 increase in the numerical allocations.156 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 655.68, to cease operation in the relevant jurisdiction, without prejudice to workers already present in the United States under this regulation, as consistent with law. 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, 2025,157 but no later than 1 year after that date.158 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, 2025 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 156 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. 157 This rule uses January 25, 2025 as the starting date because the similar provision in the FY 2024 TFR expires January 24, 2025. As January 25, 2025 is a Saturday, however, the earliest a petition might be received after the expiration of 8 CFR 214.2(h)(31) is January 27, 2025. See 8 CFR 1.2 (definition of day) (explaining that when the last day of a period computed falls on a Saturday, Sunday, or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday). 158 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)(32). E:\FR\FM\02DER2.SGM 02DER2 95652 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 greater certainty for H–2B employers and workers.159 The portability provision at new 8 CFR 214.2(h)(32) is substantively the same as the portability provision offered in the FY 2023 and FY 2024 H–2B supplemental visa temporary final rules, which were codified at 8 CFR 214.2(h)(29) and (h)(31), respectively, and will begin upon the expiration of 8 CFR 214.2(h)(31). See new 8 CFR 214.2(h)(32). Additionally, the provision is similar to temporary flexibilities that DHS has used previously to improve employer access to noncitizen workers during the COVID–19 pandemic.160 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. 159 On September 20, 2023, DHS issued Modernizing H–2 Program Requirements, Oversight, and Worker Protections, Notice of Proposed Rulemaking (NPRM), 88 FR 65040, 65066. 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. 160 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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.161 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 (Public Law 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.162 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.163 This flexibility also provides an alternative to H–2B petitioners who have not been 161 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). 162 The Joint Explanatory Statement accompanying the Fiscal Year (FY) 2020 Department of Homeland Security (DHS) Further Consolidated Appropriations Act (Public Law 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.’’ 163 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. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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. 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 current filing location in accordance with applicable regulations and form instructions, along with an unexpired TLC and the attestation Form ETA–9142–B–CAA–9. Petitions filed for supplemental allocations under this rule at any location other than the current filing location will be rejected and the filing fees will be returned. 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, 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 E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 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. In addition, the USCIS Fee Schedule Final Rule, 89 FR 6194 (January 31, 2024), which took effect on April 1, 2024, imposed a limit of 25 named beneficiaries per petition.164 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)(xv). In this regard, a petition must be filed with a single Form ETA–9142–B–CAA–9 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–9, 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–9, Attestation for Employers Seeking to Employ H–2B Nonimmigrant Workers Under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by 164 See 8 CFR 214.2(h)(2)(ii). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118–83. 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 655.68. Petitions submitted to DHS pursuant to Public Law 118–83, which extended the FY 2024 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). USCIS will reject petitions filed under the supplemental allocations in this rule at any location other than the current filing location 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, 2025, as well as H–2B petitions for workers under the country-specific allocation with dates of need in the first half of FY 2025. 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, 2025, through May 14, 2025, as well as H–2B petitions for workers under the country-specific allocation with dates of need on or after April 1, 2025, through September 30, 2025. 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, 2025. USCIS will reject any returning worker petition that is received after September 15, 2025, 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 15, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Such petitions will be rejected and the filing fees will be returned. Petitioners may PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 95653 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 sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118– 83, on the same terms as section 105 of the FY 2024 Omnibus, DHS is notifying the public that USCIS cannot approve petitions seeking H–2B workers under this rule on or after October 1, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Petitions pending with USCIS that are not approved before October 1, 2025 will be denied and any fees will not be refunded. See new 8 CFR 214.2(h)(6)(xv)(C). H. 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 E:\FR\FM\02DER2.SGM 02DER2 95654 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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)(xv), 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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, 2024, for example, likely conducted their positive recruitment beginning around late-July and ending around mid-August 2024 and continued to consider U.S. worker applicants and referrals only until September 10, 2024. 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, 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 and FY 2024 H–2B supplemental cap TFRs based on the rationale provided in the FY 2022 second half H–2B supplemental cap TFR. See 87 FR 76816, 76842–76843; 88 FR 80394, 80426. 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)(xv) 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–9 but is not required to conduct additional recruitment for U.S. workers beyond the recruitment already conducted as a condition of PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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. 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 2025 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 E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 95655 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 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,165 employers should 165 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 September 20, 2024). The H–2B job opportunities in E:\FR\FM\02DER2.SGM Continued 02DER2 95656 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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.166 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. 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 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-bnymellon-expand-retirement-planning-options (last visited September 20, 2024) (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. 166 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. 23, 2024), https://www.bls.gov/ news.release/archives/union2_01232024.pdf. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 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 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, 2023 until the date the I–129 petition required under 8 CFR 214.2(h)(6)(xv) is submitted. Among the employees the employer must contact are those who have been furloughed 167 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 167 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. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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. ddrumheller on DSK120RN23PROD with RULES2 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 2024 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 95657 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 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 2024 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.168 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 168 The U.S. Chamber of Commerce reports that 71% of small businesses have a website. See U.S. Chamber of Commerce, Small Business Statistics, available at https://www.chamberofcommerce.org/ small-business-statistics/#marketing-statistics (accessed September 27, 2024). E:\FR\FM\02DER2.SGM 02DER2 95658 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 655.68, employers must retain documentation that demonstrates placement of a new job order with the SWA, contact with AJCs, contact with E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 655.68, 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 655.68, 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 95659 with the employer, touring the worksite, conducting confidential interviews with employees, reviewing records (including those required by 20 CFR 655.68 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. E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95660 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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, 214, and 235(d) (8 U.S.C. 1103, 1184, and 1225(d)); 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. USCIS will also review information received from individuals who suspect H–2B benefit fraud and abuse and reported their suspicions via the ICE Tip Form, available online at https:// www.ice.gov/webform/ice-tip-form (last visited July 29, 2024) or via the toll-free ICE Tip Line, (866) 347–2423. 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 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– 9, 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)(xv), 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–9 to be an appendix to the Application for Temporary Employment Certification and the attestations contained on the Form ETA–9142B–CAA–9 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–9 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–9 with DOL, consistent with existing authorities. This information sharing between DHS and DOL, along with relevant information that may be obtained from the SWA and WHD, 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 intends to audit a significant number of TLCs used to access the supplemental visa allocation PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 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 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). DOL relies on the employer to adhere to the H–2B regulations and fulfill its attestations as a condition of receiving a temporary labor certification, including attestations to fully cooperate with any audit, investigation, compliance review, evaluation, verification or inspection conducted by DOL. 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. Specifically, when an employer fails to respond to Departmental correspondence issued under 20 CFR 655.70 it may be considered to have failed to comply with the audit process or impeded the audit under 20 CFR 655.73. 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 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 655.68, 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). ddrumheller on DSK120RN23PROD with RULES2 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] VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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.,169 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 105 of the FY 2024 Omnibus by sections 101(6) and 106 Division A, Title I of Public Law 118–83 (Sept. 26, 2024) to FY 2025. The deadline for exercising the FY 2025 supplemental cap authority under the Continuing Appropriations and Extensions Act, 2025, is December 20, 2024 the date on which the FY 2025 continuing resolution expires. This timing concern is critical since the Departments are bypassing advance notice and comment in order to urgently address increased labor demand.170 169 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, 2025. 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, 2026. 170 See Lydia DePillis, Immigration Rebound Eases Shortage of Workers, Up to a Point, The NY Times, https://www.nytimes.com/2023/02/06/ business/economy/immigration-labor.html (Feb. 6, 2023), (‘‘The path of immigration policy will have a substantial bearing on the nation’s supply of workers, which has been expanding more slowly as native-born workers have fewer children.’’). PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 95661 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 received more than enough petitions to meet the H–2B visa statutory cap for the first half of FY 2025 on September 18, 2024.171 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 2025; last year on March 7, 2024, USCIS received sufficient petitions to meet the H–2B visa statutory cap for the second half of FY 2024.172 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 105, Public Law 118–47 as extended to FY 2025 by secs. 101(6) and 106 of Public Law 118– 83. 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 171 See USCIS, USCIS Reaches H–2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/ newsroom/alerts/uscis-reaches-h-2b-cap-for-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 172 See USCIS, USCIS Reaches H–2B Cap for Second Half of FY 2024 and Announces Filing Dates for the Second Half of FY 2024 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/ uscis-reaches-h-2b-cap-for-second-half-of-fy-2024and-announces-filing-dates-for-the-second-half-of (Mar. 8, 2024). E:\FR\FM\02DER2.SGM 02DER2 95662 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 the FY 2023 nearly identical TFR, and discussed those comments in detail in the preamble of the FY 2024 TFR. 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.173 ddrumheller on DSK120RN23PROD with RULES2 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 173 On September 20, 2023, DHS issued Modernizing H–2 Program Requirements, Oversight, and Worker Protections, Notice of Proposed Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to extend portability to H– 2A and H–2B workers on a permanent basis. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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. TABLE 1—ALLOCATION OF SUPPLEMENTAL VISAS—Continued Supplement FY25 Second Half Returning Worker Allocation .............. FY25 Second Half Returning Worker Allocation #2— (Late season Filers) .......... FY25 Country-specific Allocation (available whole FY) FY25 Total Supplemental Visas ................................. Number of visas 19,000 5,000 20,000 64,716 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 2025; (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 2022, 2023, or 2024, 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 certain U.S. businesses by allowing them to hire additional H–2B workers within FY 2025. The estimated total costs to petitioners range from $8,798,321 to $11,964,750. The estimated total cost to the Federal Government is $270,960. Therefore, DHS estimates that the total cost of this rule ranges from $9,069,281 to $12,235,710. Total transfers from filing fees made by petitioners to the Summary Government are $12,088,515. The With this temporary final rule (TFR), benefits of this rule are diverse, though DHS is authorizing the release of up to some of them are difficult to quantify. an additional 64,716 total H–2B visas to Some of these benefits include: be allocated throughout FY 2025. In • Employers benefit from this rule accordance with the FY 2025 continuing significantly through increased access to resolution extending the authority H–2B workers; provided in section 105 of the FY 2024 • Customers and others benefit Omnibus, DHS is allocating the directly or indirectly from increased supplemental visas in the following access; manner: • Some American workers may benefit to the extent that they do not TABLE 1—ALLOCATION OF lose jobs through the reduced or closed SUPPLEMENTAL VISAS business activity that might occur if fewer H–2B workers were available; Number of Supplement • Some American workers may visas benefit from the additional recruitment activities that the rule requires certain FY25 First Half Returning Worker Allocation .............. 20,716 petitioners to complete, to the extent PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 95663 attestations. Table 2 provides a summary of the provisions in this rule and some of their impacts. TABLE 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT Current provision Changes resulting from the provisions of the TFR Expected costs of the provisions of the TFR Expected benefits of the provisions of the TFR —The current statutory cap limits H–2B visa allocations to 66,000 workers a year. —The amended provisions will allow for an additional 64,716 H–2B 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. —The total estimated opportunity cost of time to file Form I–129 (Petition for a Nonimmigrant Worker) by human resource specialists is approximately $552,801. The total estimated opportunity cost of time to file Form I–129 and Form G–28 will range from approximately $1,383,848 if filed by in-house lawyers to approximately $2,385,900 if filed by outsourced lawyers. The total estimated opportunity cost of time associated with filing additional petitions ranges from $1,936,649 to $2,938,701 depending on the filer. —Form I–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. n/a .................................... ddrumheller on DSK120RN23PROD with RULES2 n/a .................................... VerDate Sep<11>2014 —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. —Petitioners will be required to fill out the newly created Form ETA– 9142–B–CAA–9, Attestation for Employers Seeking to Employ H– 2B Nonimmigrant Workers Under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118–83. 20:50 Nov 29, 2024 Jkt 265001 PO 00000 Frm 00039 —The total estimated opportunity cost of time associated with filing Form I–907 (Request for Premium Processing Service) if it is filed with Form I–129 is $40,908 if filed by human resource specialists. The total estimated costs associated with filing Form I–907 would range from approximately $86,625 if filed by an in-house lawyer to approximately $149,347 if filed by an outsourced lawyer. The total estimated opportunity cost of time associated with requesting premium processing ranges from approximately $127,533 to approximately $190,255. —The total estimated costs of this provision to petitioners range from $2,064,183 to $3,128,957, depending on the filer. —The estimated cost for late season petitioners to file Form ETA– 9142B ranges from $63,347 to $94,469 depending on the filer. —The total estimated cost to petitioners to complete and file Form ETA–9142–B–CAA–9 is approximately $1,992,995. Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM —An approved Form ETA–9142B is required before filing a Form I–129 to request H–2B workers. —Form ETA–9142–B–CAA–9 will serve as initial evidence to DHS that the petitioner meets the irreparable harm standard and returning worker requirements. 02DER2 95664 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 TABLE 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued Current provision Changes resulting from the provisions of the TFR Expected costs of the provisions of the TFR Expected benefits of the provisions of the TFR n/a .................................... —Certain Petitioners will be required to conduct an additional round of recruitment. —The total estimated cost to petitioners to conduct an additional round of recruitment is approximately $296,968. Temporary Portability ....... —An H–2B nonimmigrant who is physically present in the United States may port to another employer. 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. —The total estimated opportunity cost of time to file Form I–129 by human resource specialists is approximately $45,462. The total estimated opportunity cost of time to file Form I–129 and Form G–28 will range from approximately $113,387 if filed by in-house lawyers to approximately $195,491 if filed by outsourced lawyers. —The total estimated costs associated with filing Form I–907 if it is filed with Form I–129 is $3,355 if filed by human resource specialists. The total estimated costs associated with filing Form I–907 would range from approximately $7,101 if filed by an in-house lawyer to approximately $12,243 if filed by an outsourced lawyer. —The total estimated costs associated with the portability provision ranges from $169,305 to $256,551, depending on the filer. —DHS may incur some additional adjudication costs as more petitioners file Form I–129. However, these additional costs to USCIS are expected to be covered by the fees paid for filing the form, which have been accounted for in costs to petitioners. —Employers will have to comply with audits for an estimated total opportunity cost of time of $159,090. —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 3,000 hours and cost approximately $270,960. —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. —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. Additional Scrutiny ........... —Some petitioners will provide additional evidence. Familiarization Cost ......... —Petitioners or their representatives will familiarize themselves with the rule. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 PO 00000 Frm 00040 —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 estimated cost to submit additional evidentiary requirements is $20,740. —Petitioners or their representatives will need to read and understand the rule at an estimated total opportunity cost of time that ranges from $4,031,694 to $6,014,981. Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM —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. —Conducting a significant number of audits will ensure that increasing the number of H–2B employers through the supplemental cap does not undermine the integrity of the H–2B program. —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. —Petitioners will have the necessary information to take advantage of and comply with the provisions of this rule. 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95665 TABLE 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued Current provision Changes resulting from the provisions of the TFR Total Costs ....................... Expected costs of the provisions of the TFR ....................................................... Expected benefits of the provisions of the TFR Total cost of the rule to petitioners ranges from $8,798,321 to $11,964,750 depending on the filer. Total costs of the rule to government are $270,960. Total costs of the rule range from $9,069,281 to $12,235,710. Source: USCIS and DOL analysis. 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– 129.174 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).175 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.176 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 25, 2024, the President signed the Continuing Appropriations and Extensions Act, 2025. Sections 101(6) and 106 reauthorize section 105 of Div. G, Title I of the Further Consolidated Appropriations Act, 2024, 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 2025. The total supplemental allocation will be divided into four separate allocations: one for the first half of FY 2025, two for the second half of FY 2025 (a first one for employment from April 1 through May 14, 2025, and a second one for those with start dates on or after May 15, 2025), and a full fiscal year allocation for workers from the countries included in the countryspecific 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. This TFR will cover the entirety of FY 2025. While the Departments cannot predict with certainty what labor market conditions will be during the second half of FY 2025, 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 2025 indicate a continuation of labor market tightness from a historical perspective.177 TABLE 3—DOL CERTIFIED WORKER DEMAND * Number of certifications Fiscal year ddrumheller on DSK120RN23PROD with RULES2 2020 2021 2022 2023 2024 Number of DOL certified workers requested DOL certified workers with requested start dates April 1 or later ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 5,903 7,772 10,674 12,126 13,143 115,116 159,081 205,037 220,552 227,226 88,466 100,522 127,654 128,115 127,324 5-year Average ** .................................................................................................................. 9,924 185,402 114,416 Source: USCIS analysis. Note: 174 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). 175 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). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 176 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). 177 September 2023 Federal Open Market Committee (FOMC) projections for unemployment PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 rate in 2024 ranged from 4.2 to 4.5% with central tendency more tightly clustered between 4.3 and 4.4%. See https://www.federalreserve.gov/ monetarypolicy/fomcprojtabl20240918.htm (last accessed Sept. 25, 2024). E:\FR\FM\02DER2.SGM 02DER2 95666 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations * 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 2024 include data through the end of quarter 3. ** Averages are rounded to the nearest whole number. 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, which demonstrates that, in aggregate, sufficient demand exists for the entire supplementary allocation that the Departments are making available. To that end, the 5-year average of workers requested on certified TLCs, 185,402, 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 114,416 employees with start dates on April 1 or later, which would completely exhaust the 24,000 total supplemental H–2B visas178 explicitly set aside for workers with employment start dates in the second half of FY 2025. Given these conditions, the Departments believe that the decision to authorize a second half supplement is reasonable. For 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 2022, 2023, or 2024. 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, 2024, and March 31, 2025. 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, 2025, and May 14, 2025. 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, 2025, and September 30, 2025. 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 starting on or after May 15 specifically for those petitioners with employment needs is in response to trends in TLC data and conclusions gleaned from the two years that a late season filer allocation has been available to petitioners with late season employment needs. 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.179 Table 4 and Table 5 demonstrate that the 5-year average for these values has moved away from April start dates after the implementation of a late season filer allocation. The decrease in the relative prevalence of April 1 start dates since the implementation of a late season filer allocation supports the rationale for providing such an allocation in response to concerns that, absent such an allocation, employers with late season employment needs could be effectively shut out of the H– 2B program. Under DOL regulations, employers must apply for a TLC 75 to 90 days before the start date of work.180 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.181 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 a subset of petitioners who would employ 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 previous fiscal years that did not include a late-season filer allocation, requested H–2B employment start dates have become less concentrated in April.182 TABLE 4—DOL CERTIFIED WORKER DEMAND FOR APRIL START DATES Certified DOL workers requested ddrumheller on DSK120RN23PROD with RULES2 Fiscal year 2020 2021 2022 2023 ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 179 See Table 4 and Table 5, https:// www.federalregister.gov/documents/2022/12/15/ 2022-27236/exercise-of-time-limited-authority-toincrease-the-numerical-limitation-for-fy-2023-forthe-h-2b (accessed September 20, 2024). 180 See 20 CFR 655.15(b). 181 See USCIS, https://www.uscis.gov/newsroom/ alerts/cap-reached-for-additional-returning-worker- VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 h-2b-visas-for-the-early-second-half-of-fy-2024, for example (accessed October 25, 2024). 182 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.’’ PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 115,116 159,081 205,037 220,552 DOL certified workers with requested start dates in April Percentage of DOL certified workers with requested start dates in April 82,757 94,656 118,381 112,639 71.89 59.50 57.74 51.07 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. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95667 TABLE 4—DOL CERTIFIED WORKER DEMAND FOR APRIL START DATES—Continued Certified DOL workers requested Fiscal year 2024 ............................................................................................................................................. DOL certified workers with requested start dates in April Percentage of DOL certified workers with requested start dates in April 113,760 50.06 227,226 TABLE 5—DOL CERTIFIED WORKER DEMAND FOR POST-APRIL START DATES Certified DOL workers requested Fiscal year ddrumheller on DSK120RN23PROD with RULES2 2020 2021 2022 2023 2024 ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... DOL certified workers with requested start dates after April 115,116 159,081 205,037 220,552 227,226 5,709 5,866 9,273 15,476 13,564 Percentage of DOL certified workers with requested start dates after April 4.96 3.69 4.52 7.02 5.97 As part of the FY 2023 and FY 2024 H–2B TFRs, USCIS made 10,000 and 5,000 visas available to petitioners with start dates later in the season (on or after May 15), respectively. The goal for having a 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. Approximately 72% of the late season filer allocation for FY 2023 was utilized (as defined by the number of beneficiaries of Form I–129 petitions approved for this allocation relative to the total allocation of 10,000 visas).183 However, visa issuance data shows that only slightly more than 5,000 visas were actually issued under the FY 2023 late season filer allocation. This compares to the late season filer allocation for FY 2024, for which USCIS approved more beneficiaries of Form I– 129 petitions than the total number of visas available, although, as of October 2024, still has not received a sufficient number of petitions to achieve issuance of 5,000 visas according to its projections.184 In sum, the data from the last two H–2B TFRs indicate that including another late-season filer allocation of 5,000 visas for FY 2025 is reasonable. The Secretaries have 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 2025 TFR, where time and data allow. 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 rule 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. Population 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.185 183 USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK 12921. Calculation: 7,198 beneficiaries approved under the late-season filer allocation/10,000 visas allocated = 71.98% utilization. 184 Under the late season allocation for FY 2024, USCIS approved 6,314 beneficiaries, while DOS issued 3,906 visas. Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 it is reasonable to assume that the population of eligible PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 a. Population That Will File a Form I– 129, Petition for a Nonimmigrant Worker CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. 185 See, e.g., https://www.uscis.gov/newsroom/ alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy2024-and-announces-filing-dates-for-the-secondhalf-of. E:\FR\FM\02DER2.SGM 02DER2 95668 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations TABLE 6—FORM I–129 PETITIONS PER SUPPLEMENTAL H–2B VISA ALLOCATION 2019 2021 2022 2023 2024 Total form I–129 petitions received Supplement amount Supplement Total form I–129 beneficiaries Beneficiaries per form I–129 petition Supplement ............................................................................................. Supplement * ........................................................................................... Supplement ** ......................................................................................... Supplement ............................................................................................. Supplement ............................................................................................. 30,000 22,000 55,000 64,716 64,716 2,700 2,180 4,045 4,902 5,399 33,239 31,274 61,868 79,057 86,036 12.31 14.35 15.29 16.13 15.94 Average .................................................................................................... ........................ ........................ ........................ 14.80 Source: USCIS Analysis. Notes: * 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-thefiscal-year-2021-numerical-limitation-for-the (accessed September 25, 2024). ** 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-oftime-limited-authority-to-increase-the-fiscal-year-2022-numerical-limitation-for-the; https://www.federalregister.gov/documents/2022/05/18/202210631/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-second-half-of-fy-2022. Table 6 shows the total supplemental H–2B visa allocations issued by the Departments in each fiscal year since FY 2019,186 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 14.80 beneficiaries per petition for supplemental visas derived in Table 6, USCIS anticipates that 4,373 Forms I– 129 will be submitted as a result of this temporary final rule.187 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 338 additional Form ETA–9142B requests 188 to DOL, assuming each late season visa requestor submits a TLC and Form I–129 for the historic average of 14.80 beneficiaries. The number of additional Form ETA–9142B requests and therefore recognizes that the number of petitions may be underestimated. 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 FY25 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. DHS recognizes that some employers will be required to submit two Form I– 129 petitions if they choose to request H–2B workers under both the returning worker and country-specific caps. At this time, DHS cannot predict how many employers will choose to take advantage of more than one allocation, 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.189 Using data from FY 2020 to FY 2024, we estimate that a lawyer or accredited representative will file 47.73 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 2,087 Forms I–129 and Forms G–28, and that human resources (HR) specialists will file 2,286 Forms I–129.190 TABLE 7—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM G–28, FY 2020–2024 ddrumheller on DSK120RN23PROD with RULES2 Fiscal year 2020 2021 2022 2023 2024 Number of Form I–129 H–2B petitions accompanied by a Form G–28 Total number of Form I–129 H–2B petitions received Percent of Form I–129 H–2B petitions accompanied by a Form G–28 2,434 4,228 5,984 6,837 6,048 5,422 9,160 12,392 13,744 12,773 44.89% 46.16 48.29 49.75 47.35 ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. ............................................................................................................................................. 186 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. 187 Calculation for expected petitions. If each Form I–129 petition requests 14.80 workers, we’d expect to see 4,373 petitioners exhausting the VerDate Sep<11>2014 21:22 Nov 29, 2024 Jkt 265001 64,716 supplement allocated this year: 64,716/14.80 = 4,373 (rounded) 188 Calculation for expected late season TLCs: 5,000 visas/14.80 beneficiaries per petition = 338 TLCs (rounded). 189 USCIS, Filing Your Form G–28, https:// www.uscis.gov/forms/filing-your-form-g-28. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 190 Calculation: 4,373 estimated additional petitions * 47.73 percent of petitions filed by a lawyer = 2,087 (rounded) petitions filed by a lawyer. Calculation: 4,373 estimated additional petitions—2,087 petitions filed by a lawyer = 2,286 petitions filed by an HR specialist. E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95669 TABLE 7—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM G–28, FY 2020–2024— Continued Fiscal year Total ...................................................................................................................................... Number of Form I–129 H–2B petitions accompanied by a Form G–28 Total number of Form I–129 H–2B petitions received Percent of Form I–129 H–2B petitions accompanied by a Form G–28 25,531 53,491 47.73 Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749. 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 2020 to FY 2024, DHS estimates that approximately 91.19 percent of Form I–129 H–2B petitioners will file a Form I–907 requesting premium processing. Based on this historical data, DHS estimates that 3,988 Forms I–907 will be filed with the Forms I–129 as a result of this rule.191 Of these 3,988 premium processing requests, we estimate that in-house or outsourced lawyers will file 1,903 Forms I–907 and HR specialists or an equivalent occupation will file 2,085.192 TABLE 8—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM I–907, FY 2020–2024 Fiscal year 2020 ............................................................................................................................................. 2021 ............................................................................................................................................. 2022 ............................................................................................................................................. 2023 ............................................................................................................................................. 2024 ............................................................................................................................................. 5-Year Total ................................................................................................................................. Number of Form I–129 H–2B petitions accompanied by Form I–907 Total number of Form I–129 H–2B petitions received Percent of Form I–129 H–2B petitions accompanied by Form I–907 4,341 8,650 11,773 12,078 11,936 48,778 5,422 9,160 12,392 13,744 12,773 53,491 80.06% 94.43 95.00 87.88 93.45 91.19 Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749. ddrumheller on DSK120RN23PROD with RULES2 d. Population That Files Form ETA– 9142–B–CAA–9, Attestation for Employers Seeking To Employ H–2B Nonimmigrant Workers Under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118–83 Petitioners seeking to take advantage of this FY 2025 H–2B supplemental visa cap will need to file a Form ETA–9142– B–CAA–9 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 4,373 petitions will need to be 191 Calculation: 4,373 estimated additional petitions * 91.19 percent premium processing filing rate = 3,988 (rounded) additional Form I–907. 192 Calculation: 3,988 additional Form I–907 * 47.73 percent of petitioners represented by a lawyer = 1,903 (rounded) additional Form I–907 filed by a lawyer. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 accompanied by Form ETA–9142–B– CAA–9 and petitioners filing these petitions and attestations will incur burdens complying with the evidentiary requirements. of Form I–129 H–2B petitions accompanied by a Form G–28, we estimate that the number of Form ETA– 9142B in-house or outsourced lawyers will file is 161 and that the number of Form ETA–9142B human resources (HR) specialists will file is 177.194 e. Population of Late Season Employers That File Form ETA–9142B, Application for Temporary Employment Certification f. Population That Must Undergo Additional Recruitment Activities As Table 3 above 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 14.80 beneficiaries per I–129 petition holds, 338 petitioners 193 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 An employer that files Form ETA– 9142B–CAA–9 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 Calculation: 3,988 additional Form I–907—1,903 additional Form I–907 filed by a lawyer = 2,085 additional Form I–907 filed by an HR specialist. 193 Calculation for expected late season TLCs: 5,000 late season visas/14.80 beneficiaries per petition = 338 TLCs (rounded). 194 Calculation: 338 estimated additional requests * 47.73 percent of petitions filed by a lawyer (see) = 161 (rounded) ETA–9142–B requests filed by a lawyer. Calculation: 338 estimated additional requests— 161 requests filed by a lawyer = 177 requests filed by an HR specialist. PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 95670 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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. Using 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 1,400.195 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.196 DHS 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 2024. 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. TABLE 9—NUMBERS OF FORM I–129 H–2B PETITIONS FILED FOR EXTENSION OF STAY DUE TO CHANGE OF EMPLOYER AND FORM I–129 H–2B PETITIONS FILED FOR NEW EMPLOYMENT, FY 2016–FY 2020 Form I–129 H–2B petitions filed for extension of stay due to change of employer Fiscal year 2016 2017 2018 2019 2020 Form I–129 H–2B petitions filed for new employment Rate of extension to stay due to change of employer filings relative to new employment filings (%) ......................................................................................................... ......................................................................................................... ......................................................................................................... ......................................................................................................... ......................................................................................................... 427 556 744 812 804 5,750 5,298 5,136 6,252 3,997 7.4 10.5 14.5 13.0 20.1 Total .................................................................................................. 3,343 26,433 12.6 ddrumheller on DSK120RN23PROD with RULES2 Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749. In FY 2021, the first year an H–2B supplemental cap included a portability provision, 1,113 Forms I–129 were filed for extension of stay due to change of employer compared to 7,206 Forms I– 129 filed for new employment.197 In FY 2022, 1,795 Forms I–129 were filed for extension of stay due to change of employer compared to 9,231 Forms I– 129 filed for new employment.198 In FY 2023, 2,277 Forms I–129 were filed for extension of stay due to change of employer compared to 9,895 Forms I– 129 filed for new employment.199 In FY 2024, 2,181 Forms I–129 were filed for extension of stay due to change of employer compared to 9,097 Forms I– 129 filed for new employment.200 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 20.8 percent.201 This is above the 12.6 percent rate expected without a portability provision. We estimate that 20.8 percent is the expected rate in periods with a portability provision in the supplemental visa allocation. Using 4,373 as our estimate for the number of Forms I–129 filed for H–2B new employment in FY 2024, we estimate that 551 Forms I–129 would be filed for extension of stay due to change of employer in absence of this provision.202 With this portability 195 Calculation: 20,716 workers in the 1st half returning working supplemental allocation/14.80 workers per petitioner = 1,400 (rounded) petitioners required to undertake additional recruitment. 196 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 2023, USCIS approved 407 requests for change of status to H–2B, and Customs and Border Protection (CBP) processed 1,053 crossings of visa-exempt H– 2B workers. See Characteristics of H–2B Nonagricultural Temporary Workers FY2023 Report to Congress, https://www.uscis.gov/sites/default/ files/document/reports/H-2B-FY23-CharacteristicsReport.pdf (accessed September 25, 2024). DHS 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. DHS 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. 197 USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749. 198 See Id. 199 See Id. 200 See Id. 201 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 +2,277 Form I–129 petitions for extension of stay due to change of employer FY 2023 + 2,181 Form I–129 petitions for extension of stay due to change of employer FY 2024 = 7,366 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 + 9,895 Form I–129 petitions filed for new employment in FY 2023 + 9,097 Form I–129 petitions filed for new employment in FY 2024 = 35,429 Form I–129 petitions filed for new employment in portability provision years Calculation, Step 3: 7,366 extension of stay due to change of employment petitions/35,429 new employment petitions = 20.8 percent rate of extension of stay due to change of employment to new employment (rounded). 202 Calculation: 4,373 Form I–129 H–2B petitions filed for new employment * 12.6 percent = 551 estimated number of Form I–129 H–2B petitions filed for extension of stay due to change of employer, no portability provision. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations provision, we estimate that 910 Forms I–129 would be filed for extension of stay due to change of employer,203 which results in a difference of 359 additional Forms I–129 as a result of this provision.204 As previously estimated, we expect that about 47.73 percent of Form I–129 petitions will be filed by an in-house or outsourced lawyer. Therefore, we expect that a lawyer will file 171 of these petitions and an HR specialist or equivalent occupation will file the remaining 188.205 Previously in this analysis, we estimated that about 91.19 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 327 Forms I–907 will be filed.206 We expect a lawyer to file 156 of those Forms I–907 and an HR specialist to file the remaining 171.207 h. Population Affected by the Audits ddrumheller on DSK120RN23PROD with RULES2 Under this time-limited FY 2025 H– 2B supplemental cap rule, DHS intends to conduct a minimum of 150 audits of employers hiring H–2B workers under this TFR. While this number of TFRrelated audits is lower than previous years’ TFR-related audits, DHS has increased the number of targeted site visits it conducts on H–2B petitioners under the regular H–2B program. Specifically, in addition to the 150 audits DHS will perform under this TFR, DHS will also routinely conduct at least 150 targeted site visits annually to H–2B petitioners to determine compliance with H–2B program 203 Calculation: 4,373 Form I–129 H–2B petitions filed for new employment * 20.8 percent = 910 estimated number of Form I–129 H–2B petitions filed for extension of stay due to change of employer, with a portability provision. 204 Calculation: 910 estimated number of Form I– 129 H–2B petitions filed for extension of stay due to change of employer, with a portability provision—551 estimated number of Form I–129 H– 2B petitions filed for extension of stay due to change of employer, no portability provision = 359 Form I–129 H–2B petition increase as a result of portability provision. 205 Calculation, Lawyers: 359 additional Form I– 129 due to portability provision * 47.73 percent of Form I–129 for H–2B positions filed by an attorney or accredited representative = 171 (rounded) estimated Form I–129 filed by a lawyer. Calculation, HR specialist: 359 additional Form I– 129 due to portability provision—171 estimated Form I–129 filed by a lawyer = 188 estimated Form I–129 filed by an HR specialist. 206 Calculation: 359 Form I–129 H–2B petitions * 91.19 percent premium processing filing rate = 327 (rounded) Forms I–907. 207 Calculation, Lawyers: 327 Forms I–907 * 47.73 percent filed by an attorney or accredited representative = 156 (rounded) Forms I–907 filed by a lawyer. Calculation, HR specialists: 327 Forms I–907— 156 Forms I–907 filed by a lawyer = 171 Forms I– 907 filed by an HR specialist. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 requirements overall. During site visits, FDNS officers visit the work location, conduct in-person interviews, and review documents. These targeted H–2B site visits are conducted outside of the supplemental cap program, but overlap may exist between petitioners who file under the regular cap and the TFR. These increased targeted site visits, taken together with the audits conducted under this TFR, will increase oversight into the integrity of the H–2B program overall. Separately, DOL intends to conduct 100 audits of employers hiring H–2B workers under this TFR. 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 250 audits on employers that petition for H–2B workers under this TFR.208 i. Population Sffected 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.209 The data available 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 FY 2019–2023. 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 2019–2023, an average of 72 (rounded) employers were cited for H–2B violations with a worker protection violation by the 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 144 petitioners will undergo additional scrutiny from USCIS.210 208 These 250 audits are separate and distinct from WHD’s investigations pursuant to its existing enforcement authority. 209 Available at https://enforcedata.dol.gov/views/ data_catalogs.php (accessed September 5, 2024). 210 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 144 to be a reasonable estimate of the number of petitioners that will undergo additional scrutiny. PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 95671 TABLE 10—EMPLOYERS WITH H–2B VIOLATIONS WITH WORKER PROTECTION VIOLATION END DATE IN FY 2019–2023 Fiscal year 2019 ...................... 2020 ...................... 2021 ...................... 2022 ...................... 2023 ...................... 5-year Average (rounded) ........... Employers cited for H–2B violations with worker protection violation end date in fiscal year 124 89 55 70 22 72 Source: USCIS analysis of DOL Wage and Hour Compliance Action Data. 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 fiscal years is 9,924. We use the TLC population, rather than the estimated 4,373 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 47.73 percent of petitioners are submitted by lawyers. Therefore, we estimate that 4,737 lawyers and 5,187 HR specialists will incur familiarization costs.211 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.212 The estimated time to complete and file Form I–129 for H–2B classification is 4.56 hours.213 A U.S. employer, a U.S. agent, or a foreign employer filing through the U.S. agent 211 Calculation for lawyers: 9,924 estimated applicants * 47.73 percent represents by a lawyer = 4,737 (rounded) represented by a lawyer. Calculation for HR specialists: 9,924 approved, pending, and projected applicants—4,737 represented by a lawyer = 5,187 represented by an HR specialist. 212 Filing fees are not considered costs to society. These fees have been accounted for as a transfer from petitioners to USCIS. 213 The public reporting burden for this form is 2.487 hours for Form I–129 and an additional 2.07 hours for H Classification Supplement, totaling 4.56 hours (rounded). See Form I–129 instructions at https://www.uscis.gov/sites/default/files/document/ forms/i-129instr.pdf (accessed August 13, 2024). E:\FR\FM\02DER2.SGM 02DER2 95672 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations must file the petition. DHS estimates that an in-house or outsourced lawyer will file 47.73 percent of Form I–129 H– 2B petitions, and an HR specialist or equivalent occupation will file the remainder (52.27 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 $36.57 as the base wage rate.214 If petitioners hire an in-house or outsourced lawyer to file Form I–129 on their behalf, DHS uses the mean hourly wage rate $84.84 as the base wage rate.215 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.216 DHS multiplied the average hourly U.S. wage rate for HR specialists and for inhouse lawyers by the benefits-to-wage multiplier of 1.45 to estimate total compensation to employees. The total compensation for an HR specialist is $53.03 per hour, and the total compensation for an in-house lawyer is $123.02 per hour.217 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.218 DHS estimates the total compensation for an outsourced lawyer is $212.10 per hour.219 If a lawyer submits Form I–129 on behalf of the petitioner, Form G–28 must accompany the Form I–129 petition.220 DHS estimates the time burden to complete and submit Form G–28 for a lawyer is 50 minutes (0.83 hour, rounded).221 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 5.39 hours for in-house lawyers and outsourced lawyers to complete Form G–28 and Form I–129.222 Therefore, the total opportunity cost of time per petition for an HR specialist to complete and file Form I–129 is approximately $241.82, for an in-house lawyer to complete and file Forms I–129 and G–28 is about $663.08, and for an outsourced lawyer to complete and file is approximately $1,143.22.223 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. In previous years, all filers of the Form I–129 paid a standard fee. As of April 1, 2024, the fee structure for I–129 H–2B petitions has changed, and now takes into account whether petitioners are named or unnamed, as well as the characteristics of the petitioner based on size. Additionally, petitioners pay a variable Asylum Processing Fee based on the identity of the petitioner based on entity type. All petitioners pay an additional Fraud Prevention and Detection Fee of $150.224 The new fee structure is summarized in Table 11 below. 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 4,373 Forms I–129 due to the rule’s supplemental visa allocation and an additional 359 Forms I–129 due to the rule’s portability provision. TABLE 11—FORM I–129 FILING FEES BY PETITIONER TYPE Petitioner type Base fee ddrumheller on DSK120RN23PROD with RULES2 H–2B Named Non-Small Employer or Nonprofit ........................................... H–2B Named Small Employer ....................................................................... 214 U.S. Department of Labor, Bureau of Labor Statistics, ‘‘May 2023 National Occupational Employment and Wage Statistics’’ Human Resources Specialist (13–1071), Mean Hourly Wage, available at https://www.bls.gov/news.release/ archives/ocwage_04032024.pdf (accessed October 25, 2024). 215 U.S. Department of Labor, Bureau of Labor Statistics. ‘‘May 2023 National Occupational Employment and Wage Estimates’’ Lawyers (23– 1011), Mean Hourly Wage, available at https:// www.bls.gov/news.release/archives/ocwage_ 04032024.pdf(accessed October 25, 2024). 216 Calculation: $46.21 mean Total Employee Compensation per hour for civilian workers/$31.80 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—June 2024 Table 1. Employer Costs for Employee Compensation by ownership, Civilian workers, available at https:// www.bls.gov/news.release/archives/ecec_ 09102024.pdf (accessed October 25, 2024). 217 Calculation, HR specialist: $36.57 mean hourly wage * 1.45 benefits-to-wage multiplier = $53.03 hourly total compensation (hourly opportunity cost of time). Calculation, In-house Lawyer: $84.84 mean hourly wage * 1.45 benefits-to-wage multiplier = VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 Fraud prevention and detection fee $1,080 540 $123.02 hourly total compensation (hourly opportunity cost of time). 218 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 September 25, 2024). 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 25, 2024). 219 Calculation, Outsourced Lawyer: $84.84 mean hourly wage * 2.5 benefits-to-wage multiplier = PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 $150 150 Asylum processing fee $600 300 Total fee $1,830 990 $212.10 hourly total compensation (hourly opportunity cost of time). 220 USCIS, Filing Your Form G–28, https:// www.uscis.gov/forms/filing-your-form-g-28 (accessed September 25, 2024). 221 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). 222 Calculation: 0.83 hour to file Form G–28 + 4.56 hours to file Form I–129 = 5.39 hours to file both forms. 223 Calculation, HR specialist files Form I–129: $53.03 hourly opportunity cost of time * 4.56 hours = $241.82 opportunity cost of time per petition. Calculation, In-house Lawyer files Form I–129 and Form G–28: $123.02 hourly opportunity cost of time * 5.39 hours = $663.08 opportunity cost of time per petition. Calculation, Outsourced Lawyer files Form I–129 and Form G–28: $212.10 hourly opportunity cost of time * 5.39 hours = $1,143.22 opportunity cost of time per petition. 224 See Form I–129 instructions at https:// www.uscis.gov/sites/default/files/document/forms/ i-129instr.pdf (accessed September 4, 2024). See also 8 U.S.C. 1184(c)(13). E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95673 TABLE 11—FORM I–129 FILING FEES BY PETITIONER TYPE—Continued Petitioner type H–2B H–2B H–2B H–2B Base fee Named Nonprofit ................................................................................. Unnamed Non-Small Employer or Nonprofit ....................................... Unnamed Small Employer ................................................................... Unnamed Nonprofit ............................................................................. Fraud prevention and detection fee 540 580 460 460 150 150 150 150 Asylum processing fee 0 600 300 0 Total fee 690 1,330 910 610 Source: USCIS, Form I–129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed September 4, 2024). See also 8 USC 1184(c)(13). ddrumheller on DSK120RN23PROD with RULES2 Using a historical average of petitioners requesting named versus unnamed beneficiaries from FY 2021– FY2024, DHS estimates that 6 percent will request named beneficiaries and 94 percent will request unnamed beneficiaries. Based on analysis conducted as part of the USCIS 2024 Fee Rule, DHS assumes that 30 percent of I–129 H–2B petitioners have 26 or more employees, 55 percent have 25 or fewer employees, and 15 percent have non-profit status.225 This equates to 1,312 petitioners with 26 or more employees,226 2,405 petitioners with 25 or fewer employees,227 and 656 nonprofit petitioners filing Forms I–129 as part of the supplemental allocation.228 USCIS assumes that the percentage of named versus unnamed beneficiaries does not vary by employer size or nonprofit status. Thus, by multiplying the percentages of requests of named versus unnamed beneficiaries by the number of petitioners by characteristic, this equates to 79 petitioners with 26 or more employees requesting named beneficiaries,229 1,233 petitioners with 26 or more employees requesting unnamed beneficiaries,230 144 petitioners with 25 or fewer employees requesting named beneficiaries,231 2,261 petitioners with 25 or fewer employees 225 See Table 25 of the Fee Rule Regulatory Impact Analysis at https://www.regulations.gov/ document/USCIS-2021-0010-8179 (accessed October 28, 2024). 226 Calculation: 4,373 expected additional Forms I–129 * 30 percent petitioners with 26 or more employees = 1,312 (rounded). 227 Calculation: 4,373 expected additional Forms I–129 * 55 percent petitioners with 25 or fewer employees = 2,405 (rounded). 228 Calculation: 4,373 expected additional Forms I–129 * 15 percent non-profit petitioners = 656 (rounded). 229 Calculation: 1,312 petitioners with 26 or more employees * 6 percent unnamed beneficiaries = 79 (rounded). 230 Calculation: 1,312 petitioners with 26 or more employees * 94 percent unnamed beneficiaries = 1,233 (rounded). 231 Calculation: 2,405 petitioners with 25 or fewer employees * 6 percent unnamed beneficiaries = 144 (rounded). VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 requesting unnamed beneficiaries,232 39 non-profit petitioners requesting named beneficiaries,233 and 617 non-profit petitioners requesting unnamed beneficiaries as part of the supplemental allocation.234 Additionally, DHS estimates that 359 additional Forms I– 129 will be filed due to the portability provision of this rule. Petitions filed under the portability provision must request named beneficiaries. Thus, DHS estimates that this population will consist of 108 petitioners with 26 or more employees requesting named beneficiaries,235 197 petitioners with 25 or fewer employees requesting named beneficiaries,236 and 54 non-profit petitioners requesting named beneficiaries.237 The total transfers from petitioners to the government for filing Forms I–129 H–2B petitioners are $4,817,740.238 Transfers from petitioners to the Government related to the filing of Forms I–907 as a result of the rule are $7,270,775.239 Total transfers from petitioners to the Government are $12,088,515.240 232 Calculation: 2,405 petitioners with 25 or fewer employees * 94 percent unnamed beneficiaries = 2,261 (rounded). 233 Calculation: 656 non-profit petitioners * 6 percent unnamed beneficiaries = 39 (rounded). 234 Calculation: 656 non-profit petitioners * 94 percent unnamed beneficiaries = 617 (rounded). 235 Calculation: 359 expected additional Forms I– 129 * 30 percent petitioners with 26 or more employees = 108 (rounded). 236 Calculation: 359 expected additional Forms I– 129 * 55 percent petitioners with 25 or fewer employees = 197 (rounded). 237 Calculation: 359 expected additional Forms I– 129 * 15 percent non-profit petitioners = 54 (rounded). 238 Calculation: 187 petitioners with 26 or more employees requesting named beneficiaries × $1,830 + 1,233 petitioners with 26 or more employees requesting unnamed beneficiaries × $1,330 + 341 petitioners with 25 or fewer employees requesting named beneficiaries × $990 + 2,261 petitioners with 25 or fewer employees requesting unnamed beneficiaries × $910 + 93 non-profits requesting named beneficiaries × $690 + 617 non-profits requesting unnamed beneficiaries × $610 = $4,817,740 239 Calculation: $1,685 per petition * 4,315 Forms I–907 = $7,270,775 240 Calculation: $4,817,740 + $7,270,775 = $12,088,515. PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 b. Cost to Petitioners As mentioned in Section 3, the estimated population impacted by this rule is 4,373 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 2,286 petitions using Form I– 129 and lawyers will file an additional 2,087 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 $552,801 (rounded).241 DHS estimates the total cost to file Form I–129 petitions and Form G–28 if filed by lawyers will range from $1,383,848 (rounded) if only in-house lawyers file these forms, to $2,385,900 (rounded) if only outsourced lawyers file them.242 Therefore, the estimated total cost to file Form I–129 and Form G–28 range from $1,936,649 and $2,938,701.243 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 241 Calculation, HR specialist: $241.82 cost per petition * 2,286 Form I–129 = $552,801 (rounded) total cost. 242 Calculation, In-house Lawyer: $663.08 cost per petition * 2,087 Form I–129 and Form G–28 = $1,383,848 (rounded) total cost. Calculation, Outsourced Lawyer: $1,143.22 cost per petition * 2,087 Form I–129 and Form G–28 = $2,385,900 (rounded) total cost. 243 Calculation: $552,801 total cost of Form I–129 filed by HR specialists + $1,383,848 total cost of Form I–129 and Form G–28 filed by in-house lawyers = $1,936,649 estimated total costs to file Form I–129 and G–28. Calculation: $552,801 total cost of Form I–129 filed by HR specialists + $2,385,900 total cost of Form I–129 and G–28 filed by outsourced lawyers = $2,938,701 estimated total costs to file Form I– 129 and G–28. E:\FR\FM\02DER2.SGM 02DER2 95674 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations $1,685, and the time burden for completing the form is 22 minutes (0.35 hour).244 245 Using the wage rates established previously, the opportunity cost of time to file Form I–907 is approximately $19.62 for an HR specialist, $45.52 for an in-house lawyer, and $78.48 for an outsourced lawyer.246 As discussed above, DHS estimates that HR specialists will file an additional 2,085 Form I–907 and lawyers will file an additional 1,903 Form I–907. DHS estimates the total cost of Form I–907 filed by HR specialists is about $40,908 (rounded).247 DHS estimates the total cost to file Form I– 907 filed by lawyers range from about $86,625 (rounded) for only in-house lawyers, to $149,347 (rounded) for only outsourced lawyers.248 The estimated total cost to file Form I–907 range from $127,533 and $190,255.249 ddrumheller on DSK120RN23PROD with RULES2 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 338 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 2 244 The filing fee is a transfer from the petitioner requesting premium processing and proxy for the total costs to USCIS. 245 See Form I–907 instructions at https:// www.uscis.gov/sites/default/files/document/forms/ i-907instr.pdf (accessed September 25, 2024). Calculation: 22 minutes/60 minutes per hour = 0.37 (rounded) hour. 246 Calculation, HR specialist Form I–907: $53.03 hourly opportunity cost of time * 0.37 hour = $19.62 opportunity cost of time per request. Calculation, In-house Lawyer Form I–907: $123.02 hourly opportunity cost of time * 0.37 hour = $45.52 opportunity cost of time per request. Calculation, Outsourced Lawyer Form I–907: $212.10 hourly opportunity cost of time * 0.37 hour = $78.48 opportunity cost of time per request. 247 Calculation, HR specialist: $19.62 opportunity cost of time per request * 2,085 Form I–907 = $40,908 (rounded) total cost of Form I–907 filed by HR specialists. 248 Calculation, In-house Lawyer Form I–907: $45.52 hourly opportunity cost of time * 1,903 applications = $86,625. Calculation, Outsourced Lawyer Form I–907: $78.48 hourly opportunity cost of time * 1,903 applications = $149,347. 249 Calculation: $40,908 total cost of Form I–907 filed by HR specialists + $86,625 total cost of Form I–907 filed by in-house lawyers = $127,533 estimated total costs to file Form I–907. Calculation: $40,908 total cost of Form I–129 filed by HR specialists + $149,347 total cost of Form I– 907 filed by outsourced lawyers = $190,255 estimated total costs to file Form I–907. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 hours and 10 minutes (2.17 hours).250 DHS estimates the total cost of Form ETA–9142B filed by HR specialists is about $20,368 (rounded).251 DHS estimates the total cost to file Form ETA–9142B by lawyers range from about $42,979 (rounded) for only inhouse lawyers, to $74,101 (rounded) for only outsourced lawyers.252 The estimated total cost to file Form ETA– 9142B range from $63,347 and $94,469.253 iv. Cost To File Form ETA–9142–B– CAA–9 Form ETA–9142–B–CAA–9 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 $53.03 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 $53.03.254 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 250 The time burden estimate of 130 minutes 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/Form-ETA-9142B-Instructions-1205-0509.pdf (accessed August 22, 2024) 251 Calculation, HR specialist: $53.03 per hour * 2.17 hours * 177 Form ETA–9142–B = $20,368 (rounded) total cost of Form ETA–9142–B filed by HR specialists. 252 Calculation, In-house Lawyer Form ETA– 9142–B: $123.02 per hour * 2.17 hours * 161 applications = $42,979 (rounded). Calculation, Outsourced Lawyer Form ETA–9142–B: $212.10 per hour * 2.17 hours * 161 applications = $74,101 (rounded). 253 Calculation: $20,368 total cost of Form ETA– 9142–B filed by HR specialist + $42,979 total cost of Form ETA–9142–B filed by In-house Lawyer = $63,347 estimated total costs to file Form ETA– 9142–B. Calculation: $20,368 total cost of Form ETA– 9142–B filed by HR specialist + $74,101 total cost of Form ETA–9142–B filed by Outsourced Lawyer = $94,469 estimated total costs to file Form ETA– 9142–B. 254 Calculation: $53.03 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 = $53.03. PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 approximately $9.02.255 The total opportunity cost of time for filing Form ETA–9142–B–CAA–9 and emailing the ETA case number to both OFLC and the AFL–CIO is $74.256 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 $54.30,257 and the estimated hourly total compensation for a financial analyst is $78.74.258 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 $393.70.259 As discussed previously, DHS believes that the 4,373 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 $271,345 (rounded) and for financial analysts is about $1,721,650 (rounded).260 255 Calculation: $53.03 hourly opportunity cost of time * 0.17 hours to send OFLC and AFL–CIO the ETA case number = $9.02 (rounded). 256 Calculation: $53.03 + $9.02 = $62.05. 257 See U.S. Department of Labor, Bureau of Labor Statistics, ‘‘May 2023 National Occupational Employment and Wage Statistics’’ Financial and Investment Analysts (13–2051), https:// www.bls.gov/news.release/archives/ocwage_ 04032024.pdf (accessed October 25, 2024). 258 Calculation: $54.30 mean hourly wage for a financial analyst * 1.45 benefits-to-wage multiplier = $78.74 (rounded). 259 Calculation: $78.74 estimated total compensation for a financial analyst * 5 hours to meet the requirements of the irreparable harm standard = $393.70. 260 Calculations, HR specialists: $62.05 opportunity cost of time to comply with attestation requirements and to send the ETA case number to OFLC and AFL–CIO * 4,373 estimated additional petitions = $271,345 (rounded) total cost to comply with attestation requirements. Calculation, Financial Analysts: $393.70 opportunity cost of time to comply with attestation requirements * 4,373 estimated additional petitions E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations The estimated total cost to file Form ETA–9142–B–CAA–9 and comply with the attestation is approximately $1,992,995.261 v. Cost To Conduct Recruitment ddrumheller on DSK120RN23PROD with RULES2 An employer that files Form ETA– 9142B–CAA–99 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. 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, 2023. 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 = $1,721,650 (rounded) to comply with attestation requirements. 261 Calculation: $271,345 total cost for HR specialist to comply with attestation requirement and to send the ETA case number to OFLC and AFL–CIO + $1,721,650 total cost for financial analysts to comply with attestation requirements = $1,992,995 total cost to comply with attestation requirements. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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.262 Assuming this work will be done by an HR specialist or an equivalent occupation, the estimated cost to each petitioner is approximately $212.12.263 Using 1,400 as the estimated number of petitioners required to undergo additional recruitment activities, the estimated total cost of this provision is approximately $296,968 (rounded).264 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 359 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, 262 This is the average expected time burden across all employers; not all employers will need to notify the AFL–CIO, because not all occupations 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. 263 Calculation: $53.03 hourly opportunity cost of time for an HR specialist * 4 hours to conduct additional recruitment = $212.12 per petitioner cost to conduct additional recruitment. 264 Calculation: 1,400 estimated number of petitioners subject to additional recruitment requirements * $212.12 per petitioner cost to conduct additional recruitment = $296,968 (rounded) total cost to conduct additional recruitment. PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 95675 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 47.73 percent of these Form I–129 petitions. Therefore, we expect that a lawyer will file 171 of these petitions and an HR specialist or equivalent occupation will file the remaining 188. As previously discussed, the opportunity cost of time to file a Form I–129 H–2B petition is $241.82 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 $663.08 for an in-house lawyer and $1,143.22 for an outsourced lawyer. Therefore, we estimate the cost of the additional Forms I–129 from the portability provision for HR specialists is $45,462.265 The estimated cost of the additional Forms I–129 accompanied by Forms G–28 from the portability provision for lawyers is $113,387 if filed by in-house lawyers and $195,491 if filed by outsourced lawyers.266 Previously in this analysis, we estimated that about 91.19 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 327 Forms I–907 will be filed.267 We expect a lawyer will file 156 of those Forms I– 907 and an HR specialist or equivalent occupation will file the remaining 171.268 As previously discussed, the estimated opportunity cost of time to file a Form I–907 is $19.62 for an HR specialist; and the estimated opportunity cost of time to file a Form I–907 is approximately $45.52 for an inhouse lawyer and $78.48 for an outsourced lawyer. The estimated total cost of the additional Forms I–907 if HR 265 Calculation, HR specialist: $241.82 estimated cost to file a Form I–129 H–2B petition * 188 petitions = $45,462 (rounded). 266 Calculation, In-house Lawyer: $663.08 estimated cost to file a Form I–129 H–2B petition and accompanying Form G–28 * 171 petitions = $113,387 (rounded). Calculation, Outsourced Lawyer: $1,143.22 estimated cost to file a Form I–129 H–2B petition and accompanying Form G–28 * 171 petitions = $195,491 (rounded). 267 Calculation: 359 estimated additional Form I– 129 H–2B petitions * 91.19 percent accompanied by Form I–907 = 327 (rounded) additional Form I–907. 268 Calculation, Lawyers: 327 additional Form I– 907 * 47.73 percent = 156 (rounded) Form I–907 filed by a lawyer. Calculation, HR specialists: 327 Form I–907—156 Form I–907 filed by a lawyer = 171 Form I–907 filed by an HR specialist. E:\FR\FM\02DER2.SGM 02DER2 95676 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations specialists file is $3,355.269 The estimated total cost of the additional Forms I–907 is $7,101 if filed by inhouse lawyers and $12,243 if filed by outsourced lawyers.270 The estimated total cost of this provision ranges from $169,305 to $256,551 depending on what share of the forms are filed by in-house or outsourced lawyers.271 vii. Cost of Audits to Petitioners As discussed above, DHS intends to conduct 150 audits of employers hiring H–2B workers under this TFR,272 and DOL intends to conduct 100 audits of employers hiring H–2B workers under this TFR, for a total of 250 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 $53.03, the estimated cost of complying with audits is $636.36 per audited employer.274 Therefore, the total estimated cost to employers to comply with audits is $159,090.275 ddrumheller on DSK120RN23PROD with RULES2 viii. Cost of Additional Scrutiny The Departments expect that petitioners undergoing additional scrutiny will need to submit additional evidence to USCIS. The costs associated 269 Calculation, HR specialist: $19.62 to file a Form I–907 * 171 forms = $3,355 (rounded). 270 Calculation, In-house lawyer: $45.52 to file a Form I–907 * 156 forms = $7,101 (rounded). Calculation for an outsourced lawyer: $78.48 to file a Form I–907 * 156 forms = $12,243 (rounded). 271 Calculation for HR specialists and in-house lawyers: $45,462 for HR specialists to file Form I– 129 H–2B petitions + $113,387 for in-house lawyers to file Form I–129 and the accompanying Form G– 28 + $3,355 for HR specialists to file Form I–907 + $7,101 for in-house lawyers to file Form I–907 = $169,305. Calculation for HR specialists and outsourced lawyers: $45,462 for HR specialists to file Form I– 129 H–2B petitions + $195,491 for outsourced lawyers to file Form I–129 and the accompanying Form G–28 + $3,355 for HR specialists to file Form I–907 + $12,243 for outsourced lawyers to file Form I–907 = $256,551. 272 As noted above, in addition to these TFRspecific audits, DHS will also be conducting at least 150 targeted site visits annually related to other H– 2B petitions to determine compliance with H–2B program requirements and provide increased oversight into the integrity of the H–2B program overall. 273 The number in hours for audits was provided by the USCIS, Service Center Operations. 274 Calculation: $53.03 hourly opportunity cost of time for an HR specialist * 12 hours to comply with an audit = $636.36 per audited employer. 275 Calculation: 250 audited employers * $636.36 opportunity cost of time to comply with an audit = $159,090. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 144 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 $16.00.276 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 $91.00.278 With an estimated 144 petitioners expected to print and ship evidence, the total estimated costs for printing and shipping evidence is $13,104.279 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 $53.03 hourly opportunity cost of time for HR specialist, we estimate the opportunity cost of time for each petitioner is $53.03.280 With an estimated 144 petitioners expected to print and ship evidence, the total estimated opportunity cost of time to print and ship evidence is $7,636.281 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 $20,740.282 276 USPS, Priority Mail, https://www.usps.com/ ship/priority-mail.htm (accessed August 22, 2024). 277 See https://www.montgomerycountymd.gov/ Library/services/computerhelp.html (accessed August 22, 2024). 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 + $16.00 in shipping costs = $91.00 to print and ship evidence. 279 Calculation: 144 petitioners * $91.00 to print and ship evidence = $13,104 total printing and shipping costs. 280 Calculation: $53.03 hourly opportunity cost of time for HR specialist * 1 hour to print and ship evidence = $53.03 opportunity cost of time per petitioner. 281 Calculation: 144 petitioners * $53.03 opportunity cost of time per petitioner = $7,636 total estimated opportunity cost of time to print and ship evidence. 282 Calculation: $13,104 total printing and shipping costs + $7,636 total opportunity cost of PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 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 9,924 petitioners may take advantage of the provisions of this rule, and that a lawyer will represent 4,737 of these petitioners and an HR specialist or equivalent occupation will represent 5,187. 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 67,000 words.284 Using a reading speed of 238 words per minute, DHS estimates it will take approximately 4.7 hours to read and understand this rule.285 The estimated hourly total compensation for a HR specialist, inhouse lawyer, and outsourced lawyer are $53.03, $123.02, and $212.10, respectively. The estimated opportunity cost of time for each of these filers to read and understand the rule are $249.24, $578.19, and $996.87, respectively.286 The estimated total opportunity cost of time for 5,187 HR specialists to familiarize themselves with this rule is approximately $1,292,808.287 The estimated total time = $20,740 total estimated cost of additional scrutiny. 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 25, 2024). 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 67,000 words/238 words per minute = 282 (rounded) minutes. Calculation, Step 2: 282 minutes/60 minutes per hour = 4.7 (rounded) hours. 286 Calculation, HR Specialists: $53.03 estimated hourly total compensation for an HR specialist * 4.7 hours to read and become familiar with the rule = $249.24 opportunity cost of time for an HR specialist to read and understand the rule. Calculation, In-house lawyer: $123.02 estimated hourly total compensation for an in-house lawyer * 4.7 hours to read and become familiar with the rule = $578.19 (rounded) opportunity cost of time for an in-house lawyer to read and understand the rule. Calculation, Outsourced lawyer: $212.10 estimated hourly total compensation for an outsourced lawyer * 4.7 hours to read and become familiar with the rule = $996.87 (rounded) opportunity cost of time for an outsourced lawyer to read and understand the rule. 287 Calculation, HR specialists: $249.24 opportunity cost of time * 5,187 = $1,292,808 (rounded). E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations opportunity cost of time for 4,737 lawyers to familiarize themselves with this rule is approximately $2,738,886 if they are all in-house lawyers and $4,722,173 if they are all outsourced lawyers.288 Accordingly, the estimated total opportunity costs of time for petitioners’ representatives to familiarize themselves with this rule ranges from $4,031,694 to $6,014,981.289 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–9, 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 $1,936,649 to $2,938,701, depending on the filer. The estimated total cost of filing Form I–907 ranges from $127,533 to $190,255, depending on the filer. The estimated cost for late season employers to file Form ETA–9142B ranges from $63,347 to $94,469 depending on the filer. The estimated total cost of filing and complying with Form ETA–9142–B– CAA–9 is $1,992,995. The estimated total cost of conducting additional recruitment is $296,968. The estimated cost of the portability provision ranges from $169,305 to $256,551, depending on the filer. The estimated total cost for employers to comply with audits is $159,090. The estimated total costs for petitioners or their representatives to familiarize themselves with this rule ranges from $4,031,694 to $6,014,981, depending on the filer. The estimated total cost of additional scrutiny is $20,740. The total estimated cost to petitioners ranges from $8,798,321 to $11,964,750, depending on the filer.290 ddrumheller on DSK120RN23PROD with RULES2 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 288 Calculation for in-house lawyers: $578.19 opportunity cost of * 4,737 = $2,738,886 (rounded). Calculation for outsourced lawyers: $996.87 opportunity cost of time * 4,737 = $4,722,173 (rounded). 289 Calculation: $1,292,808 + $2,738,886 = $4,031,694. Calculation: $1,292,808 + $4,722,173 = $6,014,981. 290 Calculation of lower range: $1,936,649 + $127,533 + $63,347 + $1,992,995 + $296,968 + $169,305 + $159,090 + $4,031,694 + $20,740 = $8,798,321. Calculation of upper range: $2,938,701 + $190,255 + $94,469 + $1,992,995 + $296,968 + $256,551 + $159,090 + $6,014,981 + $20,740 = $11,964,750. VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 $4,817,740, and the total filing fees associated with premium processing are $7,270,775.291 Total transfers from petitioners to the Government are $12,088,515.292 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.293 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.294 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 intend to conduct a total of 250 audits, and we expect each audit to take 12 hours. This results in a total time 291 Calculation: (3,988 + 327 Forms I–907) * $1,685 per form = $7,270,775. 292 Calculation: $4,817,740 + $7,270,775 = $12,088,515. 293 See INA section 286(m), 8 U.S.C. 1356(m). 294 These audits are distinct from the WHD’s authority to perform investigations regarding employers’ compliance with the requirements of the H–2B program. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 95677 burden of 3,000 hours.295 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 $64.06.296 To estimate the total hourly compensation for these positions, we multiply the hourly wage ($64.06) by the Federal benefits to wage multiplier of 1.41.297 This results in an hourly opportunity cost of time of $90.32 for GS–13 Step 5 Federal employees in the Washington, DC locality pay area.298 The total opportunity costs of time for Federal workers to conduct audits is estimated to be $270,960.299 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 295 Calculation: 12 hours to conduct an audit * 250 audits = 3,000 total hours to conduct audits. 296 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, 2024, Hourly Basic Rate, https:// www.opm.gov/policy-data-oversight/pay-leave/ salaries-wages/salary-tables/pdf/2024/DCB_h.pdf (accessed August 22, 2024). 297 Calculation, Step 1: $2,382,167 Full-time Permanent Salaries + $983,370 Civilian Personnel Benefits = $3,365,537 Compensation. Calculation, Step 2: $3,365,537 Compensation/ $2,382,167 Full-time Permanent Salaries = 1.41 (rounded) Federal employee benefits to wage ratio. See https://www.dhs.gov/sites/default/files/202404/2024_0325_us_citizenship_and_immigration_ services.pdf (accessed August 22, 2024). 298 Calculation: $64.06 hourly wage for a GS 13– 5 in the Washington, DC locality area * 1.41 Federal employee benefits to wage ratio = $90.32 hourly opportunity cost of time for a GS 13–5 federal employee in the Washington, DC locality area. 299 Calculation: 3,000 hours to conduct audits * $90.32 hourly opportunity cost of time = $270,960 total opportunity costs of time for Federal employees to conduct audits. E:\FR\FM\02DER2.SGM 02DER2 95678 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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. 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 ddrumheller on DSK120RN23PROD with RULES2 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, this analysis 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. According to Brodbeck et al. (2018): 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 home communities. . . .The impact has been transformative and positive.300 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 300 See Arnold Brodbeck et al. (2018), 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. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 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. In addition, this rule does not exceed the $100 million in 1995 expenditure in any 1 year when adjusted for inflation ($200 million in 2023 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). 301 See 2 U.S.C. 1532(a) 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-202402.pdf, last accessed September 3, 2024). 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 2023¥Average monthly CPI–U for 1995)/(Average monthly CPI–U for 1995)] * 100 = [(304.702¥152.4)/152.4] * 100 = (152.302/152.4) * 100 = 0.9994 (rounded) * 100 = 99.94 percent = 100 percent (rounded). Calculation of inflation-adjusted value: $100 million in 1995 dollars * 2.00 = $200 million in 2023 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). 302 See E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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 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 2025, based on the Secretary of Homeland Security’s determination, in consultation with the Secretary of Labor, consistent with the FY 2024 Omnibus and Public Law 118– 83. 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 (persons issued H–2B visas or were otherwise granted H–2B status in Fiscal Years 2022, 2023, or 2024). 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, 2025 for the cap increase, and at the end of January 24, 2026 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 334,914,895 (maximum temporary increase of 0.0193 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 304 See U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed September 9, 2024). Calculation: 64,716 additional visas/334,914,895 million people in the United States = 0.0193 (rounded) percent temporary increase in the population. PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 95679 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 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118– 83, Form ETA–9142–B–CAA–9 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–9, 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–9 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 31, 2025. This process of engaging the public and other E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95680 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations Federal agencies helps ensure that requested data can be provided in the desired format, reporting burden (time 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 105 of Division G of the FY 2024 Omnibus as extended by Public Law 118–83, 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 2025 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 VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 2022, 2023, or 2024, unless the worker is one of the 20,000 nationals of one of the countries included in the countryspecific 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 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118–83. Agency Form Number: Form ETA– 9142–B–CAA–9. Affected Public: Private Sector— businesses or other for-profits. Total Estimated Number of Respondents: 4,373. Average Responses per Year per Respondent: 1. Total Estimated Number of Responses: 4,373. Average Time per Response: 10.17 hours per application. Total Estimated Annual Time Burden: 32,581 hours. Total Estimated Other Costs Burden: $2,289,811. 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 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 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 timelimited authority pursuant to Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118–47, as extended by Public Law 118–83 (which expires on December 20, 2024). However, DHS estimates that this temporary rule may result in approximately 4,325 additional filings of Form I–907 in fiscal year 2025. The current OMB-approved estimate of the number of annual respondents filing a Form I–907 is 815,773. DHS 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, E:\FR\FM\02DER2.SGM 02DER2 95681 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions. 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). a. In table 3 to paragraph (h), adding an entry for ‘‘32’’; and ■ b. Adding paragraphs (h)(6)(xv) and (h)(32). The additions read as follows: ■ § 214.2 Special requirements for admission, extension, and maintenance of status. * * * (h) * * * * * 2. Effective December 2, 2024, through December 2, 2027, amend § 214.2 by: ■ ■ TABLE 3 TO PARAGRAPH (h)—PARAGRAPH CONTENTS * * * * * (32) Change of employers and portability for H–2B workers (January 25, 2025 through January 24, 2026). ddrumheller on DSK120RN23PROD with RULES2 * * * * * (6) * * * (xv) Special requirements for additional cap allocations under Public Laws 118–47 and 118–83—(A) Public Law 118–47 and sections 101(6) and 106, Division A, Title I of Public Law 118–83—(1) Supplemental allocation for returning workers. Notwithstanding the numerical limitations set forth in paragraph (h)(8)(i)(C) of this section, for fiscal year 2025 only, the Secretary has authorized up to an additional 64,716 visas for aliens who may receive H–2B nonimmigrant visas pursuant to section 105 of Division G, Title I of Public Law 118–47, the Further Consolidated Appropriations Act, 2024, and sections 101(6) and 106, Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118– 83. An alien may be eligible to receive an H–2B nonimmigrant visa under this paragraph (h)(6)(xv)(A)(1) if she or he is a returning worker. The term ‘‘returning worker’’ under this paragraph (h)(6)(xv)(A)(1) means a person who was issued an H–2B visa or was otherwise granted H–2B status in fiscal year 2022, 2023, or 2024. Notwithstanding § 248.2 of this chapter, an alien may not change status to H–2B nonimmigrant under this paragraph (h)(6)(xv)(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 2025 employment start dates on or before March 31, 2025. (ii) Up to an additional 19,000 visas for aliens who may receive H–2B nonimmigrant visas based on petitions requesting FY 2025 employment start VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 dates from April 1, 2025 to May 14, 2025. (iii) Up to an additional 5,000 visas available for aliens with employment start dates from May 15, 2025 to September 30, 2025. (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 2025 only, and in addition to the allocation described in paragraph (h)(6)(xv)(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 to section 105 of Division G, Title I of Public Law 118–47, the Further Consolidated Appropriations Act, 2024, and sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118– 83, based on petitions with FY 2025 employment start dates. Such workers are not subject to the returning worker requirement in paragraph (h)(6)(xv)(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)(xv)(A)(1) and must declare that they are requesting these workers in the attestation Form ETA– 9142–B–CAA–9 required under 20 CFR 655.68(a)(1). A petition requesting returning workers under paragraph (h)(6)(xv)(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, PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 * * will be rejected, denied or, in the case of a non-frivolous petition, approved solely for the number of beneficiaries that are from 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)(xv)(A)(2). (B) Eligibility. In order to file a petition with USCIS under this paragraph (h)(6)(xv), 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)(xv); (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 2022, 2023, or 2024, 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)(xv)(A)(2) of this section; (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)(xv)(B)(2)(i) through E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 95682 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations (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 2025 supplemental allocations outlined in paragraph (h)(6)(xv)(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 2025 supplemental allocations outlined in 20 CFR 655.64(a) and 655.68(a), as a condition for the approval of the H–2B petition. The employer must attest to this on Form ETA–9142–B–CAA–9 and must further attest on Form ETA–9142– B–CAA–9 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)(xv)(A)(1)(i) of this section requesting FY 2025 employment start dates on or before March 31, 2025. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(i) of this section requesting employment start dates on or before March 31, 2025 that are received after the applicable numerical limitation has been reached or after September 15, 2025. (2) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting FY 2025 employment start dates from April 1, 2025 to May 14, 2025. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting employment start dates from April 1, 2025 to May 14, 2025 that are received earlier than 15 days after the INA section 214(g) cap for VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 the second half FY 2024 has been met, or after the applicable numerical limitation has been reached or after September 15, 2025. (3) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting FY 2025 employment start dates from May 15, 2025 and September 30, 2025. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting employment start dates from May 15, 2025 to September 30, 2025 that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2025 has been met, or after the applicable numerical limitation has been reached or after September 15, 2025. (4) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) requesting nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica with FY 2025 employment start dates. USCIS will reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of this section that have a date of need on or after April 1, 2025, and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2025 is met, or after the applicable numerical limitation has been reached or after September 15, 2025. (5) USCIS will not approve a petition filed pursuant to this paragraph (h)(6)(xv) on or after October 1, 2025. (D) Numerical limitations under paragraphs (h)(6)(xv)(A)(1) and (2) of this section. When calculating the numerical limitations under paragraphs (h)(6)(xv)(A)(1) and (2) of this section as authorized under section 105 of Division G, Title I of Public Law 118– 47, the Further Consolidated Appropriations Act, 2024, and sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118– 83, 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)(xv)(A)(1) or (2). The day the public is notified will not control the final receipt dates. When necessary to PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 ensure the fair and orderly allocation of numbers subject to the numerical limitations in paragraphs (h)(6)(xv)(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)(xv)(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)(xv)(A)(1) or (2) may be received (in other words, if either of the numerical limits described in paragraph (h)(6)(xv)(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)(xv) expires on October 1, 2025. (F) Non-severability. The requirement to file an attestation under paragraph (h)(6)(xv)(B)(2) of this section is intended to be non-severable from the remainder of this paragraph (h)(6)(xv), including, but not limited to, the entirety of the numerical allocation provisions at paragraphs (h)(6)(xv)(A)(1) and (2) of this section. In the event that any part of this paragraph (h)(6)(xv) is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this paragraph (h)(6)(xv) 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)(xv), as consistent with law. * * * * * (32) Change of employers and portability for H–2B workers. (i) This paragraph (h)(32) relates to H–2B workers seeking to change employers during the time period specified in paragraph (h)(32)(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, 2025, is authorized to begin employment with the new petitioner after the petition described in this paragraph (h)(32) is received by USCIS and before the new H–2B petition is approved, but no E:\FR\FM\02DER2.SGM 02DER2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 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, 2025, that remains pending on January 25, 2025, 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)(32)(i)(A) of this section, and subject to the requirements of 8 CFR 274a.12(b)(35), the new period of employment described in paragraph (h)(32)(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)(32)(i)(B) of this section, the new period of employment described in paragraph (h)(32)(i) of this section may last for up to 60 days beginning on the later of either January 25, 2025, 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)(35) 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)(32) 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)(32): (A) The alien must either: (1) Have been in valid H–2B nonimmigrant status on or after January 25, 2025 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, 2025, but no later than January 24, 2026; or VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 (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, 2025; 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)(32) begins at 12 a.m. on January 25, 2025, and ends at the end of January 24, 2026. * * * * * PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 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 December 2, 2024, through December 2, 2027, amend § 274a.12 by adding paragraph (b)(35) to read as follows: ■ § 274a.12 Classes of aliens authorized to accept employment. * * * * * (b) * * * (35)(i) Pursuant to 8 CFR 214.2(h)(32) 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, 2025, 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, 2025; or (B) The later of January 25, 2025, or the start date of employment indicated on the new H–2B petition, for petitions that are pending as of January 25, 2025. (ii) If USCIS adjudicates the new petition prior to the expiration of the 60day period in paragraph (b)(35)(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)(35) will automatically terminate upon 15 days after the date of the denial decision or the date on which PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 95683 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)(32) and paragraph (b)(35)(i) of this section begins at 12 a.m. on January 25, 2025, and ends at the end of January 24, 2026. * * * * * 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 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), 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 December 2, 2024, through September 30, 2025, add § 655.64 to read as follows: ■ E:\FR\FM\02DER2.SGM 02DER2 95684 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 § 655.64 Special application filing and eligibility provisions for Fiscal Year 2025 under the December 2, 2024, supplemental cap increase. (a) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xv) to request H–2B workers with FY 2025 employment start dates on or before September 30, 2025, must meet the following requirements: (1) The employer must attest on the Form ETA–9142–B–CAA–9 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)(xv). The employer’s attestation must identify the types of evidence the employer is relying on and will retain to meet the irreparable harm standard. The employer must attest that it 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. In addition, the employer must attest that it will provide to DHS and/or DOL upon request all of the documentation it relied upon and retained as evidence that it meets the irreparable harm standard, including all of the supporting documentation the employer committed to retain at the time of filing on the employer’s attestation form by selecting a checkbox next to the applicable type of documentation in section C, and the written statement describing how such evidence demonstrates irreparable harm. (2) The employer must attest on Form ETA–9142–B–CAA–9 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)(xv), have been issued an H–2B visa or otherwise granted H– 2B status during one of the last three (3) fiscal years (fiscal year 2022, 2023, or 2024), 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)(xv)(A)(2). (3) The employer must attest on Form ETA–9142–B–CAA–9 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–9 and the I–129 petition 30 or more days after the certified start date of work, as shown on VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 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 § 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 AJC with 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; PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 (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, 2023, until the date the I–129 petition required under 8 CFR 214.2(h)(6)(xv) 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 E:\FR\FM\02DER2.SGM 02DER2 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD 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–9 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 2025 supplemental allocations outlined in this paragraph (a) and § 655.68(a), as a condition for the approval of the H–2B petition. Pursuant to this subpart A at § 655.73 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. DOL may consider the failure to respond to and/ or comply with an investigation or audit to be a willful misrepresentation of material fact or a substantial failure to meet the terms and conditions of the H– 2B Application for Prevailing Wage Determination, or Application for Temporary Employment Certification, resulting in an adverse agency action on the employer, agent, or attorney, including assessment of a civil money penalty, revocation of the temporary labor certification, and/or program debarment for not less than 1 year or more than 5 years from the date of the final agency decision under 20 CFR 655.70, 655.72, 655.73 or 29 CFR part 503. A debarred party will be disqualified from filing any labor certification applications or labor condition applications with the VerDate Sep<11>2014 20:50 Nov 29, 2024 Jkt 265001 Department of Labor by, or on behalf of, the debarred party for the same period of time set forth in the final debarment decision. (b) This section expires on October 1, 2025. (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. ■ 7. Effective December 2, 2024, through September 30, 2028, add § 655.68 to read as follows: § 655.68 Special document retention provisions for Fiscal Years 2025 through 2028 under the Further Consolidated Appropriations Act, 2024, as extended by Public Law 118–83. (a) An employer that files a petition with USCIS to employ H–2B workers in fiscal year 2025 under authority of the temporary increase in the numerical limitation under section 105 of Division G, Public Law 118–47, as extended by Public Law 118–83 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 and as attested to in the attestation form, 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 PO 00000 Frm 00061 Fmt 4701 Sfmt 9990 95685 H–2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xv), 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)(xv), have been issued an H–2B visa or otherwise granted H– 2B status during one of the last three (3) fiscal years (fiscal year 2022, 2023, or 2024), 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)(xv)(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)(xv)(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, 2028. Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security. Julie A. Su, Acting Secretary, U.S. Department of Labor. [FR Doc. 2024–28017 Filed 11–27–24; 8:45 am] BILLING CODE 9111–97–P; 4510–FP–P E:\FR\FM\02DER2.SGM 02DER2

Agencies

[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Rules and Regulations]
[Pages 95626-95685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28017]

[[Page 95625]]

Vol. 89

Monday,

No. 231

December 2, 2024

Part V

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 2025 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change Employers;
Final Rule

Federal Register / Vol. 89 , No. 231 / Monday, December 2, 2024 /
Rules and Regulations

[[Page 95626]]

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2788-25]
RIN 1615-AC95

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2024-0002]
RIN 1205-AC20

Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2025 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) 2025 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 2025. These supplemental visas will be
distributed in four allocations throughout the fiscal year. This rule
reserves 20,000 of these visas 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 December 2, 2024; instructions 2 and 4 amending 8 CFR 214.2
and 274a.12, respectively, are effective from December 2, 2024, through
December 2, 2027; instruction 6, adding 20 CFR 655.64, is effective
from December 2, 2024, through September 30, 2025; and instruction 7,
adding 20 CFR 655.68, is effective from December 2, 2024, through
September 30, 2028.
Petition dates: DHS will not accept any H-2B petitions under
provisions related to the FY 2025 supplemental numerical allocations
after September 15, 2025, and will not approve any such H-2B petitions
after September 30, 2025. The provisions related to portability are
only available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2026.
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-9
associated with this rule until January 31, 2025. 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-9, identified by Regulatory Information
Number (RIN) 1205-AC20, 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-AC20 in
your submission. All comments received will become a matter of public
record and may be posted without change to https://www.regulations.gov.
Comments submitted after the deadline for submission will not be
considered. Please do not submit comments containing trade secrets,
confidential or proprietary commercial or financial information,
personal health information, sensitive personally identifiable
information (for example, social security numbers, driver's license or
state identification numbers, passport numbers, or financial account
numbers), or other information that you do not want to be made
available to the public. The agency reserves the right to redact or
refrain from posting such information and libelous or otherwise
inappropriate comments, including those that contain obscene, indecent,
or profane language; that contain threats or defamatory statements; or
that contain hate speech directed at race, color, sex, sexual
orientation, national origin, ethnicity, age, religion, or disability.
Please note that depending on how information is submitted through
regulations.gov, the agency may not be able to redact the information
and instead reserves the right to refrain from posting the information
or comment in such situations.

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-9: 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 2025 Public Law 118-83
D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for Fiscal Year 2025
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 2025
Attestation
F. Portability
G. DHS Petition Procedures
H. 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 2025 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 2025,
subject to certain conditions. The 64,716 visas are divided into the
following allocations:
For the first half of FY 2025: 20,716 immediately
available visas limited to

[[Page 95627]]

returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2022, 2023, or 2024,
regardless of country of nationality. These petitions must request
employment start dates on or before March 31, 2025;
For the early second half of FY 2025 (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
2022, 2023, or 2024 regardless of country of nationality. These early
second half of FY 2025 petitions must request employment start dates
from April 1, 2025, to May 14, 2025. Furthermore, employers must file
these petitions no earlier than 15 days after the second half statutory
cap \1\ is reached;
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\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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For the late second half of FY 2025 (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
2022, 2023, or 2024 regardless of country of nationality. These late
second half of FY 2025 petitions must request employment start dates
from May 15, 2025, to September 30, 2025. 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 2025: 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 2025 may file such petitions immediately after the
publication of this TFR. Employers requesting an employment start date
in the second half of FY 2025 must file such petitions no earlier than
15 days after the second half statutory cap is reached.
To qualify for the FY 2025 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 the current filing location, on or before
September 15, 2025;
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 is 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 who left
employment with the employer on or after January, 1, 2023, including
those the employer furloughed or laid off, 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 2025 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, failure to cooperate with the audit or investigation
process, 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. An employer's
failure to cooperate with or respond to an audit or investigation
severely hinders the Departments' ability to assess whether it has
complied with the H-2B program requirements and to determine if any
temporary foreign or U.S. workers were affected by program violations.
In recognition of the substantial impact that non-compliance can have
on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a
significant number of audits focusing on irreparable harm and other
worker protection provisions. And as it

[[Page 95628]]

did as part of the supplemental cap TFRs in recent years, 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); 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, 88 FR 80394 (Nov. 17, 2023).
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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 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
2025 supplemental cap authority on or after October 1, 2025.

H-2B Portability

In addition to exercising its time-limited authority to make
additional FY 2025 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, 2025, or who
are the beneficiaries of non-frivolous H-2B petitions that are pending
as of January 25, 2025, 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, 2025, in other
words, at the end of January 24, 2026.\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 Modernizing H-2 Program
Requirements, Oversight, and Worker Protections, Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066. 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 in such form and
containing such information as the Secretary prescribes 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). INA section 291, 8 U.S.C. 1361, establishes that the
petitioner or applicant for a visa or other immigration document bears
the burden of proof with respect to eligibility and inadmissibility,
including that the noncitizen is entitled to the immigration status
being sought.
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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).

[[Page 95629]]

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 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 and FY 2024 H-2B supplemental cap
TFRs both included a portability provision at 8 CFR 214.2(h)(29) and
(31), respectively. Portability under 8 CFR 214.2(h)(31) remains in
effect through January 24, 2025. 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); 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, 88 FR 80394 (Nov. 17, 2023).
\8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
---------------------------------------------------------------------------

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 2025 is from October 1, 2024, through September
30, 2025.
---------------------------------------------------------------------------

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

[[Page 95630]]

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\ For FY 2025, USCIS received sufficient H-2B petitions to
reach the first half of the fiscal year statutory cap on September 18,
2024.\19\ This trend in recent years of increased demand for H-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). 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. 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).
\19\ On September 19, 2024, 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 2025, and that September 18, 2024, was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2025. See USCIS, USCIS Reaches
H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024). While this date was slightly later than
in fiscal year 2023, the Departments note that DOL received 2,158
applications for the first half of the FY 2025 statutory cap during
the initial three-day filing window of July 3-5, 2024, covering
44,238 worker positions; a 59% increase in TLC workload and 48%
increase in requested worker positions when compared to the same
time period for fiscal year 2023. See DOL, OFLC Publishes List of
Randomized H-2B Applications Submitted July 3-5, 2024, for Employers
Seeking H-2B Workers Starting October 1, 2024, https://www.dol.gov/agencies/eta/foreign-labor/news (July 9, 2024).
\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 4, 2022, covering 136,555 worker positions;
DOL received 8,693 applications during the initial three-day filing
window in 2023, covering 142,796 worker positions; and DOL received
8,817 H-2B applications by January 8, 2024, covering 138,847 worker
positions. See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
---------------------------------------------------------------------------

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, Title I of the Continuing Appropriations and
Extensions Act, 2025, Public Law 118-83 (Sept. 26, 2024) (FY 2025
authority), which extended the authorization previously provided in
section 105 of Division G, Title I of the Further Consolidated
Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (``FY 2024
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); section 204
of Division O of the Consolidated Appropriations Act, 2022, Public
Law 117-103 (FY 2022 Omnibus); section 303 of Division O of the
Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023
Omnibus); Division A of Public Law 118-15, Continuing Appropriations
Act, 2024 and Other Extensions Act, through November 17, 2023, as
well as section 105 of Division G, Title I of the Further
Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024
Omnibus), signed into law on March 23, 2024, and the Continuing
Appropriations and Extensions Act, 2025, sections 101(6) and 106 of
Division A, Title I of Public Law 118-83 (Sept. 26, 2024).
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C. FY 2025 Public Law 118-83

On March 23, 2024, President Joseph Biden signed the FY 2024
Omnibus, which contains a provision, section 105 of Division G, Title
I, 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 105 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] 2024 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 2024 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.
---------------------------------------------------------------------------

\22\ Further Consolidated Appropriations Act, 2024, Public Law
118-47 (Mar. 23, 2024).
---------------------------------------------------------------------------

On September 25, 2024, Congress passed the FY 2025 authority,
Public Law 118-83, which the President signed the next day. This law
extends authorization under the same terms and conditions provided in
section 105 of Division G, Title I of the FY 2024 Omnibus permitting
the Secretary of Homeland Security to increase the number of H-2B visas
available to U.S. employers in FY 2025, and expires on December 20,
2024.\23\ In other words, Public Law 118-83 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 2025, notwithstanding
the otherwise-established statutory numerical limitation set forth in
the INA, for eligible employers whose employment needs for FY 2025
cannot be met.\24\ Under the Public Law 118-83 authority, DHS and DOL
are jointly publishing this

[[Page 95631]]

temporary final rule to authorize the issuance of no more than 64,716
additional visas for FY 2025 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 2025 supplemental cap expires at the end of
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with this FY 2025 supplemental cap authority on or
after October 1, 2025.
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\23\ See secs. 101(6) and 106, Div. A, Title I, Pub. L. 118-83
(Sept. 26, 2024), and section 105 of Division G, Title I of the
Further Consolidated Appropriations Act, 2024, Public Law 118-47
(Mar. 23, 2024) (FY 2024 Omnibus).
\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 2025 subject to the same terms and
conditions as the FY 2024 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2024 in the FY 2024 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 105 of the FY
2024 Omnibus, which is the same authority provided for FY 2025 by the
recent continuing resolution. During each fiscal year from FY 2017
through FY 2019, and FY 2021 through FY 2024, 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 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

[[Page 95632]]

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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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 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\
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.\45\ 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. 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\
---------------------------------------------------------------------------

\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) (correction).
\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.
---------------------------------------------------------------------------

On November 17, 2023, 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

[[Page 95633]]

FY 2024.\48\ As in the FY 2023 TFR, the additional visas were available
only to employers that attested they were suffering or would suffer
impending irreparable harm without the additional workers. The 64,716
additional visas included 44,716 reserved for returning workers from
one of the last three fiscal years (FY 2021, 2022, or 2023), which were
distributed in several allocations based on date of employer need:
20,716 for employers with requested employment start dates on or before
March 31, 2024; 19,000 for employers with requested employment start
dates from April 1, 2024, to May 14, 2024 (early second half
allocation); and 5,000 for employers with requested employment start
dates from May 15, 2024, to September 30, 2024 (late second half
allocation). The remaining 20,000 visas were available for the entirety
of FY 2024, and were set aside for nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt
from the returning worker requirement. By January 9, 2024, USCIS
received enough petitions to reach the cap for the additional 20,716 H-
2B visas made available for returning workers for the first half of
fiscal year, and by April 17, 2024, USCIS received enough petitions to
reach the cap for the additional 19,000 H-2B visas made available for
returning workers for the early second half of fiscal year.\49\ USCIS
data show that the total number of H-2B workers approved towards the FY
2024 supplemental cap increase was 85,577, including 61,102 workers
under the returning worker allocation, as well as 24,475 workers
approved towards the country-specific allocation.\50\
---------------------------------------------------------------------------

\48\ 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, 88 FR 80394 (Nov. 17, 2023).
\49\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024 (Apr. 18, 2024).
\50\ The number of approved workers exceeded the number of
additional visas authorized for FY 2024 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, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/
2024, PAER0016221.
---------------------------------------------------------------------------

Once again, DHS, in consultation with DOL, believes that it is
appropriate to increase the H-2B cap for FY 2025 based on the demand
for H-2B workers in the first half of FY 2025, anticipated demand for
the second half of FY 2025, recent economic growth, and strong labor
demand.\51\ 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.
---------------------------------------------------------------------------

\51\ 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.
---------------------------------------------------------------------------

D. Joint Issuance of the Final Rule

As in prior years, DHS and DOL (the Departments) have determined
that it is appropriate to jointly issue this temporary final rule.\52\
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.\53\ Although
DHS and DOL each have authority to independently issue rules
implementing their respective duties under the H-2B program,\54\ the
Departments are implementing the numerical increase in this manner to
ensure there can be no question about the authority underlying the
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).\55\
---------------------------------------------------------------------------

\52\ 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); 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, 88 FR
80394 (Nov. 17, 2023).
\53\ 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).
\54\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\55\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
---------------------------------------------------------------------------

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 2025 with U.S. workers who are willing,
qualified, and able to perform temporary nonagricultural labor. In
accordance with the FY 2025 continuing resolution extending the
authority provided in section 105 of the FY 2024 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 2025 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 H-2B supplemental visa temporary final rules
in recent years, 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

[[Page 95634]]

evidence demonstrating irreparable harm or comply with the audit
process, the Departments may consider it to be a willful violation
resulting in an adverse agency action against the employer, including
revocation of the TLC or program debarment. Of the audits completed so
far, some audits conducted of employers that received visas under past
supplemental caps revealed concerns surrounding payment of the promised
wage, employment of returning workers, documentation of irreparable
harm, need for all requested workers, employment for the reported
number of hours and employment at the listed location, recruitment of
U.S. workers, and cooperation with the audit process, which may warrant
further review and action.
Based on the insufficient responses and evidence generally provided
in response to these audits, which indicate a lack of compliance with
the audit process and program requirements, DOL has added clarifying
language to the regulatory text at 20 CFR 655.64(a)(1) and (a)(5) to
provide more information on how employers can provide sufficient
evidence to establish irreparable harm in response to an audit or
investigation and further explain how failing to respond to audits or
failing to establish compliance with H-2B program requirements can
result in debarment from the program and all programs administered by
OFLC, consistent with the Department's regulations at 20 CFR 655.70 and
20 CFR 655.73. While the requirements remain the same, DOL believes
adding these clarifications would benefit the public and regulated
community at large.
As he did in recent years, 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, similar to FY 2024, will be reserved
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras,
Haiti, Colombia, Ecuador, and Costa Rica.\56\ 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),\57\ joining the United
States to ramp up efforts to address the irregular migration flows
through the Darien,\58\ and hosting Safe Mobility Offices (SMOs) so
that migrants do not trek north to the U.S. Southwest Border.\59\ 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.\60\ 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.\61\
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\56\ 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 105 of the FY 2024 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, 2025, div. A, sec. 101(6)
(extending the authority provided in FY 2024 Omnibus div. G, sec.
3105 (``Notwithstanding the numerical limitation set forth in
section 214(g)(1)(B) of the [INA] . . . .'')).
\57\ 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/. On May 7, 2024, Guatemala hosted the third Los
Angeles Declaration Ministerial with foreign ministers and senior
representatives from 21 endorsing countries, including U.S.
Secretary of State Antony Blinken. The White House, Fact Sheet:
Third Ministerial Meeting on the Los Angeles Declaration Migration
and Protection in Guatemala (May 7, 2024), available at https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/. On September
25, the United States hosted the fourth Los Angeles Declaration
Ministerial with foreign ministers and senior representatives from
the other 21 endorsing countries. The White House, Fact Sheet:
Fourth Ministerial Meeting on the Los Angeles Declaration Migration
and Protection (September 26, 2024), available at https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/26/fact-sheet-fourth-ministerial-meeting-on-the-los-angeles-declaration-on-migration-and-protection/.
\58\ Trilateral Joint Statement, April 11, 2023, https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
\59\ 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.
\60\ 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.
\61\ 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' 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).
---------------------------------------------------------------------------

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 approving petitions on behalf of 6,805
beneficiaries under the FY 2021 allocation,\62\ 3,231 beneficiaries
under

[[Page 95635]]

the FY 2022 first half supplemental allocation,\63\ 12,318
beneficiaries for the second half of the fiscal year FY 2022, and
23,832 beneficiaries under the FY 2023 allocation.\64\ DHS also
observed robust employer interest in response to the FY 2024 H-2B
supplemental visa allocation for Salvadoran, Guatemalan, Honduran,
Haitian, Colombian, Ecuadoran, and Costa Rican nationals. For FY 2024,
USCIS approved 24,475 beneficiaries under the country-specific
allocation.\65\ In addition, the Biden-Harris administration has
conducted outreach efforts to ensure U.S. businesses are able to
address their labor needs by utilizing this country specific allocation
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica while at the same time promoting the
availability of this lawful pathway for nationals of these countries
seeking economic opportunity in the United States.\66\
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\62\ 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.
\63\ 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.
\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. 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.
\65\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
While USCIS approved a greater number of beneficiaries under the
country-specific allocation than the 20,000 visas allocated, the
Department of State issued approximately 17,695 visas under this
allocation. Id.
\66\ 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.'');
USCIS, H-2B Visa Program: Overview and Country Specific Allocations
Recruitment Webinar, https://www.uscis.gov/outreach/upcoming-national-engagements/h-2b-visa-program-overview-and-country-specific-allocations-recruitment-webinar (March 7, 2024).
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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,
2025, that are received earlier than 15 days after the INA section
214(g) cap for the second half of FY 2025 is met or are received after
the applicable numerical limitation has been reached or after September
15, 2025. Requiring petitioners to wait to submit H-2B supplemental cap
petitions with start dates of need on or after April 1, 2025, is
consistent with the supplemental cap authority in section 105 of the FY
2024 Omnibus, as extended to FY 2025 by Public Law 118-83 (September
26, 2024), 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, 2025.
Similar to previous temporary final rules, the Secretary of
Homeland Security has also determined to limit the supplemental visas
to H-2B returning workers,\67\ 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 2022, 2023, or 2024.\68\ Like the
temporary final rules in recent years, 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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\67\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2022, 2023,
or 2024. Additionally, they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2022, 2023, or 2024,
or the supplemental caps in FY 2022, 2023, or 2024.
\68\ The returning worker allocations are for workers who were
issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or
2024, 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. As stated in prior TFRs, in the past,
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.\69\ U.S. businesses,
chambers of commerce, employer organizations, and state and local
elected officials have also previously expressed concerns to the DHS
and Labor Secretaries regarding the unavailability of H-2B visas after
the statutory cap was reached.\70\ In addition, while DHS did not
request comments for the FY 2024 TFR, several commenters on the FY 2023
TFR supported the Departments' decision to publish one rule covering
the entire

[[Page 95636]]

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.\71\
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\69\ 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).
\70\ These letters were retained in the administrative record
for those rules.
\71\ See the docket for 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) 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
workers under the statutory cap, including potential wage and job
losses by their U.S. workers, as well as other adverse downstream
economic effects.\72\ 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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\72\ 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), 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); Feds Double Seasonal
Worker Visas Ahead of 2024 Crab Season, Chesapeake Bay Magazine
(Nov. 7, 2023, https://www.chesapeakebaymagazine.com/feds-double-seasonal-worker-visas-ahead-of-2024-crab-season/; Senator Chris Van
Hollen, Van Hollen Meets with Eastern Shore Crab Houses, Highlights
Efforts to Support Seafood Industry's Employment Needs (March 21,
2024), https://www.vanhollen.senate.gov/news/press-releases/van-hollen-meets-with-eastern-shore-crab-houses-highlights-efforts-to-support-seafood-industrys-employment-needs; HotelDive, Hotel
Employment Rose in May, But Owners' Labor Woes Remained (June 11,
2024), https://www.hoteldive.com/news/hotel-employment-labor-challenges/718560/.
---------------------------------------------------------------------------

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 105 of the FY 2024 Omnibus, as extended by Public
Law 118-83, 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.\73\ 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.\74\
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\73\ Congress has delegated to DHS the broad authority to
administer and enforce the immigration laws in title 8 of the U.S.C.
as well as other immigration and naturalization laws. See, e.g., INA
sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1),
(c)(1); see Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244,
2263 (2024) (``In a case involving an agency, of course, the
statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes `expressly delegate' to an
agency the authority to give meaning to a particular statutory term.
Others empower an agency to prescribe rules to fill up the details
of a statutory scheme, or to regulate subject to the limits imposed
by a term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (cleaned up and internal
citations omitted).
\74\ The statute explicitly provides that the Secretary of
Homeland Security, after consulting with the Secretary of Labor, and
upon the determination that the needs of United States businesses
cannot be satisfied during fiscal year 2025 with U.S. workers to
perform temporary nonagricultural labor, may determine the
appropriate number of H-2B supplemental visas to be issued in fiscal
year 2025, limited to the highest number of H-2B nonimmigrants who
participated in the H-2B returning worker program. Consistent with
the discretion afforded thereunder by Congress, and commensurate
with authorities including those afforded under section 103 and 214
of the INA, 8 U.S.C. 1103 and1184, DHS, in consultation with DOL, is
making available additional H-2B temporary nonagricultural worker
visas for fiscal year 2025, as in past years, to employers who are
suffering irreparable harm or will suffer impending irreparable
harm. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. at 2263
(2024).
---------------------------------------------------------------------------

First, as explained in earlier TFRs, DHS has long interpreted the
reference to ``the needs of American businesses'' reiterated in section
105 of the FY 2024 Omnibus, as extended by Public Law 118-83, 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 105 of the FY 2024 Omnibus, as
extended by Public Law 118-83, 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 2025, 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 2025

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 2025.\75\ The

[[Page 95637]]

determination to make available 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 2025 and expected demand for the
second half of FY 2025; current labor market conditions; the general
trend of increased demand for H-2B visas from FY 2017 to FY 2024; 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 the
Biden-Harris Administration to address the root causes of irregular
migration as outlined in 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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\75\ 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 105 of the FY
2024 Omnibus 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
105 of the FY 2024 Omnibus 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.
---------------------------------------------------------------------------

Section 105 of the FY 2024 Omnibus, as extended by Public Law 118-
83, 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 2025.\76\ 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 additional H-
2B visas to be made available for FY 2025, 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 2025
supplemental cap authority. The Secretary further considered the
objectives the Biden-Harris Administration to address the root causes
of irregular migration consistent with the E.O. 14010 and the L.A.
Declaration, and managing migration through expansion of lawful
pathways while increasing the consequences for those who do not use
these pathways and unlawfully enter the United States.\77\ 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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\76\ 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).
\77\ See Circumvention of Lawful Pathways, 88 FR 31314 (May 16,
2023); Securing the Border, 89 FR 81156, (Oct. 7, 2025).
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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.\78\ 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.\79\ 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.\80\
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\78\ 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.
\79\ 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).
\80\ 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.\81\ 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.\82\ Of the

[[Page 95638]]

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.\83\
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\81\ 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.
\82\ 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).
\83\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2023, TRK 13122, FY 2023 H-2B Northern
Central American Cap Approvals by Validity Start Date Month. 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.
---------------------------------------------------------------------------

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.\84\ 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.\85\
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\84\ 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).
\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. 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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In FY 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.\86\ USCIS received enough petitions to reach the cap
for the additional 20,716 H-2B visas made available for returning
workers for the first half of fiscal year by January 9, 2024, and USCIS
received enough petitions to reach the cap for the additional 19,000 H-
2B visas made available for returning workers for the early second half
of fiscal year by April 17, 2024.\87\ Of the petitions for supplemental
H-2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries,
including 6,314 beneficiaries under the allocation of 5,000 visas made
available for returning workers for the late second half of the fiscal
year and 24,475 beneficiaries under the allocation of 20,000 visas
reserved for nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica.\88\
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\86\ 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).
\87\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024 (Apr. 18, 2023).
\88\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
The number of approved workers exceeded the number of additional
visas authorized for FY 2024 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.
---------------------------------------------------------------------------

Data for the first half of FY 2025 clearly indicate an immediate
need for additional supplemental H-2B visas for employers with start
dates on or before March 31, 2025. USCIS received a sufficient number
of H-2B petitions to reach the first half of the FY 2025 fiscal year
statutory cap on September 18, 2024.\89\ 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 2025, 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,
October 11, 2023, and September 18, 2024, respectively.\90\
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\89\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
\90\ 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; USCIS, USCIS Reaches H-
2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
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Through the third quarter of FY 2024, approximately 90 percent of
H-2B filings were for positions within just six sectors.\91\ NAICS 56
(Administrative and Support and Waste Management and Remediation
Services) accounted for 38.57% of filings, NAICS 71 (Arts,
Entertainment, and Recreation) accounted for 11.73%, NAICS 72
(Accommodation and Food Services) accounted for 23.14%, NAICS 23,
(Construction) accounted for 11.91%, NAICS 31 (Animal Food
Manufacturing) accounted for 2.01% of filings, and NAICS 11
(Agriculture, Forestry, Fishing and Hunting) accounted for 2.39% of
filings.
---------------------------------------------------------------------------

\91\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

Relevant unemployment data also supports the need for additional
supplemental H-2B visas. 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 for most of these industries (except for
NAICS 11, which accounts for the lowest percentage of filings among
these industries) is lower than the long term (10-year) average.\92\
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\92\ 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, https://www.bls.gov/iag/tgs/iag311.htm. All data accessed
September 23, 2024.

[[Page 95639]]

10-Year Average of Industry Unemployment Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.61............................................................... 6.13 4.82 7.96 7.90 5.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.

August 2024 Industry Unemployment Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.3............................................................... 3.2 4.2 4.1 5.9 3.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.

In August 2024, the industry unemployment for NAICS 56 \93\ was 4.2
percent, which is 0.62 points lower than its 10-year average of 4.82
percent, while the industry unemployment rate for NAICS 71 was 4.1
percent which is 3.86 points lower than its 10-year average of 7.96
percent. The August 2024 industry unemployment rate for NAICS 72 (5.9
percent) was 2 points lower than its 10-year average of 7.9 percent
while the rate for NAICS 23 (3.2 percent) was 2.93 points lower than
its 10-year average of 6.13 percent. The industry unemployment rate for
NAICS 11 (11.3 percent) was 3.69 points higher than its 10-year average
of 7.61 percent, making it the only industry among the top 5 H-2B
industries that has a higher industry unemployment rate relative to its
historical average. The relatively low unemployment rate across most of
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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\93\ 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 23, 2024.
---------------------------------------------------------------------------

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 4.2 percent in August 2024.\94\ Historically, the availability of
H-2B visas addressed a need in the labor market during periods of lower
unemployment. Chart 1 \95\ shows that the H-2B visa allocations for
Fiscal Year 2024 \96\ 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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\94\ See DOL, BLS, The Employment Situation--August 2024,
https://www.bls.gov/news.release/archives/empsit_10042024.pdf (Sept.
6, 2024).
\95\ 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 2024 are for October
2023-August 2024. Unemployment rate for 2024 is based on median
Federal Reserve projections. See https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20240918.pdf (accessed September
23, 2024).
\96\ 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.
[GRAPHIC] [TIFF OMITTED] TR02DE24.003

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.

[[Page 95640]]

Making allocations for all of FY 2025 in a single rule.
As in FY 2023 and FY 2024, DHS believes that it is appropriate to
issue a single rule for the entire fiscal year for multiple
reasons.\97\ First, DHS expects that there is demand for supplemental
visas in the first half of FY 2025. 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 2025.\98\ 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 2025, 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, October 11, 2023, and
September 18, 2024, respectively.\99\
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\97\ 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 2025.
\98\ USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year
2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
\99\ 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); USCIS,
USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
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Second, based on relevant data, DHS expects that USCIS will reach
the statutory cap for the second half of FY 2025 and that there will
accordingly be demand for supplemental visas in the second half of FY
2025. 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, February 27, 2023, and March 7, 2024.\100\ 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 4, 2022, covering 136,555 worker
positions; DOL received 8,693 applications during the initial three-day
filing window in 2023, covering 142,796 worker positions; and DOL
received 8,817 H-2B applications by January 8, 2024, covering 138,847
worker positions.\101\
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\100\ 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);
USCIS, USCIS Reaches H-2B Cap for Second Half of FY 2024 and
Announces Filing Dates for the Second Half of FY 2024 Supplemental
Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of (Mar. 8, 2024).
\101\ See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
---------------------------------------------------------------------------

Finally, publishing one rule that addresses all the visas available
for FY 2025 benefits the regulated public by giving more notice and
certainty of what will become available for the second 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.\102\
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\102\ See the docket for 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) for
access to these comments.
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Filing Deadline of September 15, 2025 for All Petitions
The authority to approve H-2B petitions under this FY 2025
supplemental cap expires at the end of the fiscal year, i.e., the end
of September 30, 2025. 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 15, 2025. USCIS will reject any cases that are received
after September 15, 2025. See new 8 CFR 214.2(h)(6)(xv)(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, DHS has set
September 15, 2025 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 15,
2025 if the applicable numerical limit for the relevant supplemental
visa allocation is reached before that date. See new 8 CFR
214.2(h)(6)(xv)(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 2025 (October 1,
2024 Through March 31, 2025)
For the first half of FY 2025, 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 2022, 2023, or 2024,
regardless of country of nationality. These petitions must request a
date of need starting on or before March 31, 2025. See new 8 CFR
214.2(h)(6)(xv)(C).
DHS anticipates that employers will use all of the first half
allocation for returning workers, given how quickly USCIS reached the
FY 2025 first half statutory cap and the first half supplemental
allocation for FY 2024. As noted previously, USCIS received enough H-2B
petitions to reach the FY 2025 first half statutory cap on

[[Page 95641]]

September 18, 2024.\103\ Under the FY 2024 TFR, which published on
November 17, 2023, USCIS received enough petitions to reach the 20,716
first half allocation by January 9, 2024.\104\ Similarly, as with the
FY 2024 TFR, 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.\105\ 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
2025.
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\103\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
\104\ USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2023).
\105\ Compare the publication dates of the FY 2024 TFR and 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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As in previous years, 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. As
explained in the FY 2024 TFR, 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 15, 2025 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 15,
2025 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, as occurred in FY
2024, 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,
2025, Through May 14, 2025)
For the second half of FY 2025, 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
2022, 2023, or 2024, regardless of country of nationality. These
petitions must request a date of need starting on or after April 1,
2025, through and including May 14, 2025. Limiting this allocation to
employers with employment start dates on or before May 14, 2025
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.\106\ 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 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 2025 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 2025
second half supplemental visas. In the event that the statutory second
half FY 2025 cap is not reached, the supplemental allocation for
returning workers for the second half of FY 2025 will not become
available.
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\106\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(2), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of
this section requesting employment start dates from April 1, 2025 to
May 14, 2025 that are received earlier than 15 days after the INA
section 214(g) cap for the second half FY 2025 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 as
occurred in FY 2024 on April 17, 2024. 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, 2025. DHS chose to limit these
19,000 visas to start dates on or before May 14, 2025, 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 2025 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 2025 petitions and prior to
September 15, 2025, 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

[[Page 95642]]

(and/or other cap allocations) could cause confusion for the public and
adjudicators. Furthermore, not setting a filing cutoff date prior to
September 15, 2025, 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. As anticipated in the FY 2024 TFR, employers
did, in fact, use the entire early second half of FY 2024
allocation.\107\
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\107\ USCIS, Temporary Increase in H-2B Nonimmigrant Visas for
FY 2024, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2024 (last visited Aug. 20, 2024).
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Additional Returning Worker Allocation for the Late Second Half (on or
After May 15, 2025, Through September 30, 2025)
For the late second half of FY 2025, 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 2022, 2023, or 2024, 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, 2025. 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.\108\ 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 is reached) 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.\109\
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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\108\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(3), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii)
of this section requesting employment start dates from May 15, 2025
to September 30, 2025, that are received earlier than 45 days after
the INA section 214(g) cap for the second half FY 2025 has been met.
\109\ While petitioners may continue to submit petitions under
the early second half supplemental cap through September 15, 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 third supplemental cap reserved for late season
employers that need workers to begin work during the late spring and
summer seasons in the fiscal year.\110\ By regulation, employers may
only apply for a TLC 75 to 90 days before the start date of need,\111\
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 and FY 2024 TFRs, in past years, because of
this requirement and the strong demand for H-2B 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,\112\ USCIS has typically
received sufficient H-2B petitions to meet the statutory cap for the
second half of the fiscal year around mid-February to early March, many
of these late season employers may have decided to not file a TLC
application.
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\110\ 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);
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, 88 FR 2023 (Nov. 17, 2023).
\111\ See 20 CFR 655.15(b).
\112\ As noted above, in fiscal years 2017 through 2024, 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, February 27, 2023, and March 7, 2024,
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 2024, the
full allocation of 5,000 visas was not reached. As of September 30,
2024, DOS has issued 3,906 towards the late second half allocation,
while USCIS approved 6,314 beneficiaries towards the late second half
allocation.\113\ Therefore, in order to meet the employer demand in the
late second half of FY 2025, while still maximizing the overall usage
of supplemental visas, DHS has determined it is appropriate to again
limit the late second half allocation for FY 2025 to up to 5,000 visas.
DHS, in consultation with DOL, has determined that authorizing two
allocations for the second half of FY 2025 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,\114\ 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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\113\ Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
\114\ 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 cap, it will also
announce the earliest possible filing date (45 days after the second
half statutory cap is reached) for this allocation. In the event that
the statutory second half FY 2025 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

[[Page 95643]]

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
As in FY 2024, 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 2025, up to and including September 30,
2025. As discussed in the Legal Framework section as well as in the
section addressing the irreparable harm standard, DHS has a broad
delegation from Congress to administer and enforce U.S. immigration
laws and issue regulations regarding the same, as well as broad
discretion over the admission of nonimmigrants, and the adjudication of
nonimmigrant petitions, after consultation with other agencies,
including DOL. See INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C.
1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary
enactment authorizing the Secretary of DHS to increase the number of H-
2B visas,\115\ Congress delegated to the Secretary of DHS, after
consultation with the Secretary of Labor, the discretion to establish a
framework for determining that the needs of American businesses cannot
be satisfied with the existing workforce and the conditions under which
to authorize additional visas to further the purpose of the enactment.
In the most recent, as well as each prior annual enactment, Congress
consistently used the word ``may'' when describing the Secretary's
authority, and the use of the word ``may'' indicates a grant of
discretion, absent contrary legislative intent, structure and purpose
of the statute.\116\ As in prior years, the Departments have determined
that the temporary enactment together with DHS's broad authority over
immigration provide the Secretary of DHS with discretion to implement
the temporary enactment in a manner that addresses two complimentary
policy objectives: the need to provide access to H-2B workers to
American businesses, and the objective to provide lawful pathways for
able, willing, and qualified workers from designated countries to come
temporarily to the United States and perform nonagricultural labor. In
issuing this TFR, and as in prior years, the Departments are
implementing appropriate policy choices in exercising the discretionary
authority provided by Congress.\117\ This policy choice was previously
ratified by Congress \118\--legislative history of the FY2023 Omnibus
indicates that Congress was aware of and approved of the country-
specific allocations.\119\ While prior fiscal years' country-specific
allocations have not been reached, the number has been trending
upwards, and 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 \120\ In FY 2024, the inclusion of nationals from
the additional countries of Colombia, Ecuador, and Costa Rica increased
the likelihood that the 20,000 visas would be used and the data show a
continued trend of increased usage of the country-specific
allocation.\121\
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\115\ Public Law 118-47, Division G, Title I, sec. 105 states:
``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(1)(B)), the Secretary of Homeland Security, after
consultation with the Secretary of Labor, and upon the determination
that the needs of United States businesses cannot be satisfied
during fiscal year 2024 with United States workers who are willing,
qualified, and able to perform temporary nonagricultural labor, may
increase the total number of aliens who may receive a visa under
section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)) in such fiscal year 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 such numerical limitation.''
\116\ See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983)
(The word ``may,'' when used in a statute, usually implies some
degree of discretion unless there is indication of contrary
legislative intent, or an obvious contrary inference from the
structure and purpose of the statute.).
\117\ See Loper Bright Enterprises, 144 S. Ct. at 2263 (2024).
\118\ Lorillard v. Pons, 434 U.S. 575, 581 (1978) (``Congress is
presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it reenacts a
statute without change.'').
\119\ See S. Rep. No. 118-85, at p. 104 (Jul. 27, 2023)
(``Further, the Committee supports the Departments efforts to set
aside visas for certain nationalities, including nationals from El
Salvador, Guatemala, Honduras, and Haiti, regardless of whether they
are returning workers.'').
\120\ As previously noted, USCIS approved petitions on behalf of
6,805 beneficiaries under the FY 2021 country-specific allocation,
3,231 beneficiaries under the FY 2022 first half country-specific
supplemental allocation, 12,318 beneficiaries for the second half
country-specific allocation of the fiscal year FY 2022, and 23,832
beneficiaries under the FY 2023 country-specific 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.
\121\ As of October 28, 2024, USCIS approved petitions on behalf
of 24,475 beneficiaries under the FY 2024 country-specific
allocation. See Department of Homeland Security, U.S. Citizenship
and Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
---------------------------------------------------------------------------

Employers requesting workers under the country-specific allocation
with an employment start date in the first half of FY 2025 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 2025 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' longstanding interpretation of their authority to make
available supplemental (or in other words, additional) visas contingent
upon the exhaustion of visas under the statutory cap.\122\
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\122\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(4), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of
this section that have a date of need on or after April 1, 2025 and
are received earlier than 15 days after the INA section 214(g) cap
for the second half of FY 2025 is met.
---------------------------------------------------------------------------

As in FY 2023 and FY 2024, 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 2025 to encourage U.S.
employers that are suffering irreparable harm or will suffer impending

[[Page 95644]]

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 2025 using all 20,000 visas for nationals of the
specified countries, and consequently, employers with start dates in
the second half of FY 2025 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 2025 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 2025, 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 2025. 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. 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 15, 2025. 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, 2024, through March 31, 2025, will be
reached before September 15, 2025;
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, 2025, through May 14, 2025, will be
reached before September 15, 2025;
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, 2025, through September 30, 2025, will be
reached before September 15, 2025; 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 15, 2025.
Under this rule, new 8 CFR 214.2(h)(6)(xv)(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,\123\ 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, 2024, through March 31, 2025, is reached before September
15, 2025; 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, 2025, through May 14, 2025, is reached before September
15, 2025; 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, 2025, through September 30, 2025, is reached before
September 15, 2025; or the 20,000 visas limited to certain nationals is
reached before September 15, 2025. 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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\123\ 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 2022, 2023, or 2024. This temporal limitation
mirrors prior fiscal years' temporal limitation in the returning worker
definition \124\ and the temporal limitation Congress imposed in
previous returning worker statutes.\125\ 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.\126\ DOS

[[Page 95645]]

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).\127\ 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 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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\124\ See e.g., 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, 88 FR 80394 (Nov. 17, 2023)
(defining ``returning workers'' as those who were issued H-2B visas
or held H-2B status in fiscal years 2021, 2022, or 2023).
\125\ 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.
\126\ 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.
\127\ 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; the authority for these interview
waivers is in place until further notice. See DOS, Important Update
on Waivers of the Interview Requirement for Certain Nonimmigrant
Visa Applicants, https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html (last updated Dec.
21, 2023).
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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 2025 supplemental cap was issued an H-2B visa or otherwise
granted H-2B status in FY 2022, 2023, or 2024, 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 2022, 2023, or 2024, 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 2022, 2023, or 2024.

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 2022, 2023, or
2024.
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
participating in the Safe Mobility Initiative to increase migrant
integration in host countries and, where appropriate, facilitate access
to lawful pathways to the United States and other countries, including
expedited refugee processing. 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.\128\
For example, as part of a comprehensive program to manage irregular
migration, Guatemala agreed to participate in the Safe Mobility
Initiative, hosting SMOs since June 12, 2023.\129\ On June 4, 2023, the
United States and Colombia announced the impending establishment of
SMOs that would provide information about the wide range of existing
services and support available for refugees and other migrants in
Colombia, with the goal of reaching migrants on the move, or even
before they begin irregular migration journey.\130\ The Safe Mobility
initiative launched in Colombia on June 28, 2023, with SMOs currently
operational in three cities. Furthermore, on June 12,

[[Page 95646]]

2023, the United States and the Government of Costa Rica launched SMOs
in Costa Rica, in furtherance of bilateral partnership and addressing
hemispheric challenge of irregular migration.\131\ On October 19, 2023,
the United States and Ecuador announced their partnership in
establishing SMOs in Ecuador.\132\ 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.\133\
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\128\ 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/.
\129\ Id.
\130\ 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 also 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/.
\131\ 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/.
\132\ 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/.
\133\ 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 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
of El Salvador, Guatemala, and Honduras 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.\134\
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\134\ 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).
---------------------------------------------------------------------------

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,
including from Haiti.\135\
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\135\ 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,\136\ 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 continuing to include these
countries is reasonable given the progressively increasing use of H-2B
visas among the Northern Central American countries of Guatemala,
Honduras and El Salvador, and the other three countries--Colombia,
Costa Rica and Ecuador--added to this allocation in fiscal year 2024.
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 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,\137\ 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 17 days in
Guatemala, and 24 days to 8 days in Honduras.\138\ 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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\136\ As noted previously, some consular officers 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 in place until further notice and is reviewed annually. 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 Update on Waivers of the Interview
Requirement for Certain Nonimmigrant Visa Applicants, https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html (last updated Dec. 21, 2023).
\137\ 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.
\138\ See USAID, H-2 Visa Opportunities in Guatemala, Honduras,
and El Salvador, https://www.usaid.gov/sites/default/files/2024-06/USAID%20H-2%20Fact%20Sheet%20%283_7_24%29.pdf (Mar. 7, 2024).
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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.\139\
In FY

[[Page 95647]]

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.\140\ In FY
2022, DOS issued a combined total of 15,058 H-2B visas to nationals of
Haiti and the Northern Central American countries.\141\ In FY 2023, DOS
issued a combined total of 23,816 H-2B visas to nationals of Haiti and
the Northern Central American countries.\142\ 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 H-2B
programs.\143\ In FY 2024, DOS issued a combined total of 17,879 H-2B
supplemental visas to nationals of Haiti, the North Central American
countries, and Colombia, Ecuador, and Costa Rica.\144\ Therefore, as
previously stated, DHS has determined that the additional increase in
FY 2025 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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\139\ 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.
\140\ 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.
\141\ 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.
\142\ 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.
\143\ 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).
\144\ See DHS, USCIS, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
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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,\145\ 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.
---------------------------------------------------------------------------

\145\ 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).
---------------------------------------------------------------------------

USCIS will stop accepting petitions received under the country-
specific allocation after September 15, 2025. 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 2025 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.\146\ 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 of the types of documentary evidence it
selected in the attestation form that support 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,\147\ 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.\148\
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\146\ 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 an H-2B petition must not exceed the
number of workers approved by the Department of Labor on the
temporary labor certification.''
\147\ 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).
\148\ The attestation requirement does not apply to workers who
have already been counted under the H-2B statutory caps for fiscal
year 2025. Further, the attestation requirement does not apply to
noncitizens who are exempt from the fiscal year 2025 H-2B statutory
cap, including those who are extending their stay in H-2B status.
Accordingly, petitioners that are filing only on behalf of such
workers are not subject to the attestation requirement.
---------------------------------------------------------------------------

The irreparable harm standard is the same as in the temporary final
rule for recent years. 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

[[Page 95648]]

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.\149\ 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, as in prior years, the Departments
think, as a policy matter, that it is reasonable to require 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. This requirement falls within the broad discretion
Congress gave to the Secretary to, in consultation with the Secretary
of Labor, increase the number of H-2B workers in order to meet the
needs of American businesses.\150\ As discussed in the Legal Framework
section as well as in the section addressing the country-specific
allocation, DHS has broad delegation to administer and enforce U.S.
immigration laws and issue regulations regarding the same, as well as
broad discretion to establish conditions on the admission of
nonimmigrants, and over the adjudication of nonimmigrant petitions,
after consultation with other agencies, including DOL. See INA sec.
103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1).
In addition, through the temporary enactment authorizing the Secretary
of DHS to increase the number of H-2B visas,\151\ Congress delegated to
the Secretary of DHS, after consultation with the Secretary of Labor,
the discretion to establish a framework for determining that the needs
of American businesses cannot be satisfied with the existing workforce
and the conditions under which to authorize additional visas to further
the purpose of the enactment. In the most recent, as well as each prior
annual enactment,\152\ Congress has consistently used the word ``may''
when describing the Secretary's authority, and the use of the word
``may'' indicates a grant of discretion, absent contrary legislative
intent, structure and purpose of the statute.\153\ As in prior years,
the Departments have determined that the irreparable harm standard
falls within the discretionary authority of the Secretary of DHS and
furthers the legislative purpose behind the temporary enactment by
making visas available to those American businesses that are most
likely to be severely impacted by a lack of an able, willing, and
qualified workforce.
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\149\ See section 105 of Pub. L. 118-47, as extended by Public
Law 118-83.
\150\ See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244,
2263 (2024).
\151\ Public Law 118-47, Division G, Title I, sec. 105, states:
``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(1)(B)), the Secretary of Homeland Security, after
consultation with the Secretary of Labor, and upon the determination
that the needs of United States businesses cannot be satisfied
during fiscal year 2024 with United States workers who are willing,
qualified, and able to perform temporary nonagricultural labor, may
increase the total number of aliens who may receive a visa under
section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)) in such fiscal year 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 such numerical limitation.''
\152\ Lorillard v. Pons, 434 U.S. 575, 581 (1978). (``Congress
is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it
reenacts a statute without change.'').
\153\ See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983)
(The word ``may,'' when used in a statute, usually implies some
degree of discretion unless there is indication of contrary
legislative intent, or an obvious inference from the structure and
purpose of the statute.).
---------------------------------------------------------------------------

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 selected in the
attestation form and 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.
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

[[Page 95649]]

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 executed
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 2022, 2023, and 2024) 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. It has been
DOL's experience when reviewing documentation submitted to establish
irreparable harm that employers commonly provide unexecuted contracts
or letters of intent; contracts with redacted financial terms or dates
of performance; or written statements memorializing verbal agreements
that are not signed by all parties and thus may be insufficient
evidence of the terms of such agreements and may call into question
their credibility. In addition, DOL has encountered contracts among
related entities that are owned, operated, or otherwise controlled by
the employer or an individual with ownership interest in the employer.
Such contracts may lack credibility as evidence of irreparable harm
because the employer and related parties may share the same interest in
obtaining H-2B workers even in situations where the employer is not
suffering irreparable harm or will not suffer impending irreparable
harm. In those instances, DOL may request that an employer provide
additional credible evidence to demonstrate that it has met the legal
standard. In other situations, the only documentation offered by the
employer is a declaration, without any supporting documentary evidence.
Given that the employer must establish 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, an
employer's irreparable harm cannot be properly assessed without
evidence of its financial business needs. As such, DOL is clarifying
that merely asserting irreparable harm, or providing documentation that
lacks sufficient facts or indicia of validity (e.g., signatures) for
DOL to determine that the employer was suffering or would suffer
impending irreparable harm without the ability to employ all of the H-
2B workers requested under the supplemental cap at the time of filing
their petition, will be insufficient to make an irreparable harm
determination. In such instances where the evidence is insufficient or
the petitioner merely submits a declaration without supporting
documentation, DOL may require the employer to provide additional
credible evidence. This is because mere assertions or the absence of
key financial terms or dates of performance in a contract due to
redaction, for example, hinder the Department's ability to evaluate
whether the employer was in fact suffering irreparable harm or would
have suffered impending irreparable harm without the ability to employ
all of the H-2B workers it requested for a given period. Factors that
can demonstrate the credibility of a contract or similar commitment or
obligation may include evidence of an agreement, preferably in writing,
that includes the financial terms, dates of performance, and evidence
it was signed and/or agreed upon before the petition was filed.
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 and that it will keep it as part of its records, to
be provided to the Departments, upon request.
As the burden rests with the petitioner to prove eligibility for
supplemental H-2B visas under the time-limited authority implemented
with this temporary final rule by a preponderance of the evidence, it
is the petitioner's burden to establish that it meets the irreparable
harm standard. INA sec. 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N
Dec. 369, 375-76 (AAO 2010). The attestation form will serve as prima
facie initial evidence to DHS that the petitioner's business is

[[Page 95650]]

suffering irreparable harm or will suffer impending irreparable harm.
USCIS will reject in accordance with 8 CFR 103.2(a)(7)(ii) or may deny
in accordance with 8 CFR 103.2(b)(8)(ii), as applicable, any petition
requesting H-2B workers under this FY 2025 supplemental cap that is
lacking the requisite attestation form. Although this rule does not
require submission of the evidence selected in the attestation and/or a
detailed written statement at the time of filing of the petition, other
than an attestation, the employer must have the evidence selected in
the attestation 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 supplemental TFRs in recent
years, 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 willful violation resulting
in an adverse agency action on the employer, including revocation of
the 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)(xv)(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 from the date of certification. See 20 CFR
655.68. 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 655.68, 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.
As mentioned above, the employer bears the burden of establishing that
they are suffering or will suffer impending irreparable harm. 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

[[Page 95651]]

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 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.\154\
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\154\ 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 for purposes of DOL enforcement actions in 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
Aug. 20, 2024). In addition, if members of the public have information
that a participating employer may be abusing this program, DHS invites
them to notify U.S. Immigration and Customs Enforcement (ICE) by
completing the online ICE Tip Form, https://www.ice.gov/webform/ice-tip-form (last visited Aug. 20, 2024), or alternately, via the toll-
free ICE Tip Line, (866) 347-2423.\155\
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\155\ 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 105
of the FY 2024 Omnibus, as extended by Public Law 118-83, 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 will, as applicable,
reject the petition in accordance with 8 CFR 103.2(a)(7)(ii) or may
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 2024 Omnibus, as extended by Public Law 118-83, 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.\156\ 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 655.68, 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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\156\ 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, 2025,\157\ but no
later than 1 year after that date.\158\ 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, 2025 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

[[Page 95652]]

greater certainty for H-2B employers and workers.\159\
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\157\ This rule uses January 25, 2025 as the starting date
because the similar provision in the FY 2024 TFR expires January 24,
2025. As January 25, 2025 is a Saturday, however, the earliest a
petition might be received after the expiration of 8 CFR
214.2(h)(31) is January 27, 2025. See 8 CFR 1.2 (definition of day)
(explaining that when the last day of a period computed falls on a
Saturday, Sunday, or a legal holiday, the period shall run until the
end of the next day which is not a Saturday, Sunday, or legal
holiday).
\158\ 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)(32).
\159\ On September 20, 2023, DHS issued Modernizing H-2 Program
Requirements, Oversight, and Worker Protections, Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066. 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)(32) is
substantively the same as the portability provision offered in the FY
2023 and FY 2024 H-2B supplemental visa temporary final rules, which
were codified at 8 CFR 214.2(h)(29) and (h)(31), respectively, and will
begin upon the expiration of 8 CFR 214.2(h)(31). See new 8 CFR
214.2(h)(32). Additionally, the provision is similar to temporary
flexibilities that DHS has used previously to improve employer access
to noncitizen workers during the COVID-19 pandemic.\160\
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\160\ 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.\161\
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\161\ 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 (Public Law 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.\162\ 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.\163\ 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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\162\ The Joint Explanatory Statement accompanying the Fiscal
Year (FY) 2020 Department of Homeland Security (DHS) Further
Consolidated Appropriations Act (Public Law 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.''
\163\ 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. 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 current filing
location in accordance with applicable regulations and form
instructions, along with an unexpired TLC and the attestation Form ETA-
9142-B-CAA-9. Petitions filed for supplemental allocations under this
rule at any location other than the current filing location will be
rejected and the filing fees will be returned. 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, 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

[[Page 95653]]

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. In addition, the USCIS Fee Schedule
Final Rule, 89 FR 6194 (January 31, 2024), which took effect on April
1, 2024, imposed a limit of 25 named beneficiaries per petition.\164\
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\164\ See 8 CFR 214.2(h)(2)(ii).
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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)(xv). In this regard, a
petition must be filed with a single Form ETA-9142-B-CAA-9 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-9, 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-9,
Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers
Under Section 105 of Division G, Title I of the Further Consolidated
Appropriations Act, 2024, Public Law 118-47, as extended by sections
101(6) and 106 of Division A, Title I of the Continuing Appropriations
and Extensions Act, 2025, Public Law 118-83. 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
655.68. Petitions submitted to DHS pursuant to Public Law 118-83, which
extended the FY 2024 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).
USCIS will reject petitions filed under the supplemental
allocations in this rule at any location other than the current filing
location 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, 2025, as well
as H-2B petitions for workers under the country-specific allocation
with dates of need in the first half of FY 2025. 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, 2025, through May 14, 2025, as well as H-2B
petitions for workers under the country-specific allocation with dates
of need on or after April 1, 2025, through September 30, 2025. 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, 2025.
USCIS will reject any returning worker petition that is received
after September 15, 2025, 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 15, 2025. See new 8 CFR
214.2(h)(6)(xv)(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 sections
101(6) and 106 of Division A, Title I of the Continuing Appropriations
and Extensions Act, 2025, Public Law 118-83, on the same terms as
section 105 of the FY 2024 Omnibus, DHS is notifying the public that
USCIS cannot approve petitions seeking H-2B workers under this rule on
or after October 1, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Petitions
pending with USCIS that are not approved before October 1, 2025 will be
denied and any fees will not be refunded. See new 8 CFR
214.2(h)(6)(xv)(C).

H. 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

[[Page 95654]]

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)(xv), 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, 2024, for
example, likely conducted their positive recruitment beginning around
late-July and ending around mid-August 2024 and continued to consider
U.S. worker applicants and referrals only until September 10, 2024.
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,
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 and FY 2024 H-2B
supplemental cap TFRs based on the rationale provided in the FY 2022
second half H-2B supplemental cap TFR. See 87 FR 76816, 76842-76843; 88
FR 80394, 80426. 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)(xv) 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-
9 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.
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 2025
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

[[Page 95655]]

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 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,\165\ employers should

[[Page 95656]]

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.\166\
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.
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\165\ 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 September 20, 2024). 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 September 20, 2024) (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.
\166\ 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.
23, 2024), https://www.bls.gov/news.release/archives/union2_01232024.pdf.
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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 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, 2023 until the date the I-129 petition
required under 8 CFR 214.2(h)(6)(xv) is submitted. Among the employees
the employer must contact are those who have been furloughed \167\ 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

[[Page 95657]]

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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\167\ 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 2024 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 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 2024 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.\168\ 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

[[Page 95658]]

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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\168\ The U.S. Chamber of Commerce reports that 71% of small
businesses have a website. See U.S. Chamber of Commerce, Small
Business Statistics, available at https://www.chamberofcommerce.org/small-business-statistics/#marketing-statistics (accessed September
27, 2024).
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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 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 655.68, employers must
retain documentation that demonstrates placement of a new job order
with the SWA, contact with AJCs, contact with

[[Page 95659]]

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 655.68, 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 655.68, 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 with the employer, touring the
worksite, conducting confidential interviews with employees, reviewing
records (including those required by 20 CFR 655.68 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.

[[Page 95660]]

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, 214, and 235(d)
(8 U.S.C. 1103, 1184, and 1225(d)); 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. USCIS will also review information received from
individuals who suspect H-2B benefit fraud and abuse and reported their
suspicions via the ICE Tip Form, available online at https://www.ice.gov/webform/ice-tip-form (last visited July 29, 2024) or via
the toll-free ICE Tip Line, (866) 347-2423. 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-9, 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)(xv), 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-9 to be an appendix to the Application for Temporary
Employment Certification and the attestations contained on the Form
ETA-9142B-CAA-9 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-9 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-9
with DOL, consistent with existing authorities. This information
sharing between DHS and DOL, along with relevant information that may
be obtained from the SWA and WHD, 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 intends to 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 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).
DOL relies on the employer to adhere to the H-2B regulations and
fulfill its attestations as a condition of receiving a temporary labor
certification, including attestations to fully cooperate with any
audit, investigation, compliance review, evaluation, verification or
inspection conducted by DOL. 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. Specifically, when an employer fails to respond to Departmental
correspondence issued under 20 CFR 655.70 it may be considered to have
failed to comply with the audit process or impeded the audit under 20
CFR 655.73. 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

[[Page 95661]]

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 655.68, 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.,\169\ and limits eligibility for H-2B supplemental
visas to only those businesses most in need, and also protects H-2B and
U.S. workers.
---------------------------------------------------------------------------

\169\ 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, 2025. 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, 2026.
---------------------------------------------------------------------------

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 105 of the FY 2024 Omnibus by sections 101(6) and
106 Division A, Title I of Public Law 118-83 (Sept. 26, 2024) to FY
2025. The deadline for exercising the FY 2025 supplemental cap
authority under the Continuing Appropriations and Extensions Act, 2025,
is December 20, 2024 the date on which the FY 2025 continuing
resolution expires. This timing concern is critical since the
Departments are bypassing advance notice and comment in order to
urgently address increased labor demand.\170\ 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 received
more than enough petitions to meet the H-2B visa statutory cap for the
first half of FY 2025 on September 18, 2024.\171\ 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
2025; last year on March 7, 2024, USCIS received sufficient petitions
to meet the H-2B visa statutory cap for the second half of FY
2024.\172\ 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 105, Public
Law 118-47 as extended to FY 2025 by secs. 101(6) and 106 of Public Law
118-83. If the Departments are precluded from exercising this
authority, substantial economic harm will result for the reasons stated
above.
---------------------------------------------------------------------------

\170\ See Lydia DePillis, Immigration Rebound Eases Shortage of
Workers, Up to a Point, The NY Times, https://www.nytimes.com/2023/02/06/business/economy/immigration-labor.html (Feb. 6, 2023), (``The
path of immigration policy will have a substantial bearing on the
nation's supply of workers, which has been expanding more slowly as
native-born workers have fewer children.'').
\171\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
\172\ See USCIS, USCIS Reaches H-2B Cap for Second Half of FY
2024 and Announces Filing Dates for the Second Half of FY 2024
Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of (Mar. 8, 2024).
---------------------------------------------------------------------------

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

[[Page 95662]]

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 the FY 2023 nearly identical TFR, and discussed those
comments in detail in the preamble of the FY 2024 TFR. 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.\173\
---------------------------------------------------------------------------

\173\ On September 20, 2023, DHS issued Modernizing H-2 Program
Requirements, Oversight, and Worker Protections, Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to
extend portability to H-2A and H-2B workers on a permanent basis.
---------------------------------------------------------------------------

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.
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 2025. In accordance with the FY 2025 continuing
resolution extending the authority provided in section 105 of the FY
2024 Omnibus, DHS is allocating the supplemental visas in the following
manner:

Table 1--Allocation of Supplemental Visas
------------------------------------------------------------------------
Number of
Supplement visas
------------------------------------------------------------------------
FY25 First Half Returning Worker Allocation............. 20,716
FY25 Second Half Returning Worker Allocation............ 19,000
FY25 Second Half Returning Worker Allocation #2--(Late 5,000
season Filers).........................................
FY25 Country-specific Allocation (available whole FY)... 20,000
FY25 Total Supplemental Visas........................... 64,716
------------------------------------------------------------------------

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 2025; (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 2022, 2023, or 2024, 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 2025.
The estimated total costs to petitioners range from $8,798,321 to
$11,964,750. The estimated total cost to the Federal Government is
$270,960. Therefore, DHS estimates that the total cost of this rule
ranges from $9,069,281 to $12,235,710. Total transfers from filing fees
made by petitioners to the Government are $12,088,515. 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

[[Page 95663]]

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.

Table 2--Summary of the TFR's Provisions and Economic Impact
----------------------------------------------------------------------------------------------------------------
Changes resulting from Expected benefits of
Current provision the provisions of the Expected costs of the the provisions of the
TFR provisions of the TFR TFR
----------------------------------------------------------------------------------------------------------------
--The current statutory cap limits H- --The amended --The total estimated --Form I-129
2B visa allocations to 66,000 provisions will allow opportunity cost of petitioners would be
workers a year. for an additional time to file Form I- able to hire temporary
64,716 H-2B temporary 129 (Petition for a workers needed to
workers. Up to 20,000 Nonimmigrant Worker) prevent their
of the 64,716 by human resource businesses from
additional visas will specialists is suffering irreparable
be reserved for approximately harm.
workers who are $552,801. The total --Businesses that are
nationals of the estimated opportunity dependent on the
countries included in cost of time to file success of other
the country-specific Form I-129 and Form G- businesses that are
allocation and will be 28 will range from dependent on H-2B
exempt from the approximately workers would be
returning worker $1,383,848 if filed by protected from the
requirement. in-house lawyers to repercussions of local
approximately business failures.
$2,385,900 if filed by --Some American workers
outsourced lawyers. may benefit to the
The total estimated extent that they do
opportunity cost of not lose jobs through
time associated with the reduced or closed
filing additional business activity that
petitions ranges from might occur if
$1,936,649 to additional H-2B
$2,938,701 depending workers were not
on the filer. available.
--Additional
recruitment activities
may result in some
U.S. workers being
hired.
--The total estimated
opportunity cost of
time associated with
filing Form I-907
(Request for Premium
Processing Service) if
it is filed with Form
I-129 is $40,908 if
filed by human
resource specialists.
The total estimated
costs associated with
filing Form I-907
would range from
approximately $86,625
if filed by an in-
house lawyer to
approximately $149,347
if filed by an
outsourced lawyer. The
total estimated
opportunity cost of
time associated with
requesting premium
processing ranges from
approximately $127,533
to approximately
$190,255.
--The total estimated
costs of this
provision to
petitioners range from
$2,064,183 to
$3,128,957, depending
on the filer.
n/a.................................. --Petitioners will be --The estimated cost --An approved Form ETA-
required to fill out for late season 9142B is required
Form ETA-9142B in petitioners to file before filing a Form I-
order to utilize the Form ETA-9142B ranges 129 to request H-2B
5,000 late season H-2B from $63,347 to workers.
visas allocated under $94,469 depending on
the rule. the filer.
n/a.................................. --Petitioners will be --The total estimated --Form ETA-9142-B-CAA-9
required to fill out cost to petitioners to will serve as initial
the newly created Form complete and file Form evidence to DHS that
ETA-9142-B-CAA-9, ETA-9142-B-CAA-9 is the petitioner meets
Attestation for approximately the irreparable harm
Employers Seeking to $1,992,995. standard and returning
Employ H-2B worker requirements.
Nonimmigrant Workers
Under Section 105 of
Division G, Title I of
the Further
Consolidated
Appropriations Act,
2024, Public Law 118-
47, as extended by
sections 101(6) and
106 of Division A,
Title I of the
Continuing
Appropriations and
Extensions Act, 2025,
Public Law 118-83.

[[Page 95664]]

n/a.................................. --Certain Petitioners --The total estimated --The additional round
will be required to cost to petitioners to of recruitment will
conduct an additional conduct an additional ensure that a U.S.
round of recruitment. round of recruitment worker who is willing
is approximately and able to fill the
$296,968. position is not
replaced by a
nonimmigrant worker.
Furthermore,
additional recruitment
activities may result
in some U.S. workers
being hired.
Temporary Portability................ --An H-2B nonimmigrant --The total estimated --H-2B workers present
who is physically opportunity cost of in the United States
present in the United time to file Form I- will be able to port
States may port to 129 by human resource to another employer
another employer. specialists is and potentially extend
approximately $45,462. their stay and,
The total estimated therefore, earn
opportunity cost of additional wages.
time to file Form I- --An H-2B worker with
129 and Form G-28 will an employer that is
range from not complying with H-
approximately $113,387 2B program
if filed by in-house requirements would
lawyers to have additional
approximately $195,491 flexibility in porting
if filed by outsourced to another employer's
lawyers. certified position.
--The total estimated --This provision would
costs associated with ensure employers will
filing Form I-907 if be able to hire the H-
it is filed with Form 2B workers they need.
I-129 is $3,355 if
filed by human
resource specialists.
The total estimated
costs associated with
filing Form I-907
would range from
approximately $7,101
if filed by an in-
house lawyer to
approximately $12,243
if filed by an
outsourced lawyer.
--The total estimated
costs associated with
the portability
provision ranges from
$169,305 to $256,551,
depending on the filer.
--DHS may incur some
additional
adjudication costs as
more petitioners file
Form I-129. However,
these additional costs
to USCIS are expected
to be covered by the
fees paid for filing
the form, which have
been accounted for in
costs to petitioners.
n/a.................................. --DHS and DOL intend to --Employers will have --DOL and DHS audits
conduct several audits to comply with audits will yield evidence of
during the period of for an estimated total the efficacy of
temporary need to opportunity cost of attestations in
verify compliance with time of $159,090. enforcing compliance
H-2B program --It is expected both with H-2B supplemental
requirements, DHS and DOL will be cap requirements.
including the able to shift --Conducting a
irreparable harm resources to be able significant number of
standard as well as to conduct these audits will discourage
other key worker audits without uncorroborated
protection provisions incurring additional attestations.
implemented through costs. However, the --Conducting a
this rule. Departments will incur significant number of
opportunity costs of audits will ensure
time. The audits are that increasing the
expected to take a number of H-2B
total of approximately employers through the
3,000 hours and cost supplemental cap does
approximately $270,960. not undermine the
integrity of the H-2B
program.
Additional Scrutiny.................. --Some petitioners will --Some employers will --Additional scrutiny
provide additional need to print and ship of employers with past
evidence. additional evidence to H-2B program
USCIS. Opportunity violations are aimed
costs of time at ensuring compliance
associated with with program
compiling such requirements, reducing
evidence are harms to both U.S.
unavailable due to the workers and H-2B
unique fact pattern in workers.
each instance and a
lack of data regarding
the time to comply.
The estimated cost to
submit additional
evidentiary
requirements is
$20,740.
Familiarization Cost................. --Petitioners or their --Petitioners or their --Petitioners will have
representatives will representatives will the necessary
familiarize themselves need to read and information to take
with the rule. understand the rule at advantage of and
an estimated total comply with the
opportunity cost of provisions of this
time that ranges from rule.
$4,031,694 to
$6,014,981.

[[Page 95665]]

Total Costs.......................... ....................... Total cost of the rule
to petitioners ranges
from $8,798,321 to
$11,964,750 depending
on the filer. Total
costs of the rule to
government are
$270,960. Total costs
of the rule range from
$9,069,281 to
$12,235,710.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.

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.\174\ 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).\175\ 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.\176\ 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.
---------------------------------------------------------------------------

\174\ 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).
\175\ 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).
\176\ 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).
---------------------------------------------------------------------------

On September 25, 2024, the President signed the Continuing
Appropriations and Extensions Act, 2025. Sections 101(6) and 106
reauthorize section 105 of Div. G, Title I of the Further Consolidated
Appropriations Act, 2024, 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 2025. The total supplemental allocation
will be divided into four separate allocations: one for the first half
of FY 2025, two for the second half of FY 2025 (a first one for
employment from April 1 through May 14, 2025, and a second one for
those with start dates on or after May 15, 2025), 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.
This TFR will cover the entirety of FY 2025. While the Departments
cannot predict with certainty what labor market conditions will be
during the second half of FY 2025, 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 2025
indicate a continuation of labor market tightness from a historical
perspective.\177\
---------------------------------------------------------------------------

\177\ September 2023 Federal Open Market Committee (FOMC)
projections for unemployment rate in 2024 ranged from 4.2 to 4.5%
with central tendency more tightly clustered between 4.3 and 4.4%.
See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20240918.htm (last accessed Sept. 25, 2024).

Table 3--DOL Certified Worker Demand *
----------------------------------------------------------------------------------------------------------------
DOL certified
Number of DOL workers with
Number of certified requested
Fiscal year certifications workers start dates
requested April 1 or
later
----------------------------------------------------------------------------------------------------------------
2020............................................................ 5,903 115,116 88,466
2021............................................................ 7,772 159,081 100,522
2022............................................................ 10,674 205,037 127,654
2023............................................................ 12,126 220,552 128,115
2024............................................................ 13,143 227,226 127,324
----------------------------------------------------------------------------------------------------------------
5-year Average **........................................... 9,924 185,402 114,416
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note:

[[Page 95666]]

* 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 2024 include data through the end of quarter 3.
** Averages are rounded to the nearest whole number.

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, which demonstrates that, in aggregate,
sufficient demand exists for the entire supplementary allocation that
the Departments are making available. To that end, the 5-year average
of workers requested on certified TLCs, 185,402, 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 114,416 employees with start dates on April 1 or later,
which would completely exhaust the 24,000 total supplemental H-2B
visas178 explicitly set aside for workers with employment start dates
in the second half of FY 2025. Given these conditions, the Departments
believe that the decision to authorize a second half supplement is
reasonable.
For 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 2022, 2023, or
2024. 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, 2024,
and March 31, 2025. 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, 2025, and May 14, 2025. 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, 2025, and September 30, 2025. 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 starting on or after May 15
specifically for those petitioners with employment needs is in response
to trends in TLC data and conclusions gleaned from the two years that a
late season filer allocation has been available to petitioners with
late season employment needs. 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.\179\
Table 4 and Table 5 demonstrate that the 5-year average for these
values has moved away from April start dates after the implementation
of a late season filer allocation. The decrease in the relative
prevalence of April 1 start dates since the implementation of a late
season filer allocation supports the rationale for providing such an
allocation in response to concerns that, absent such an allocation,
employers with late season employment needs could be effectively shut
out of the H-2B program. Under DOL regulations, employers must apply
for a TLC 75 to 90 days before the start date of work.\180\ 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.\181\ 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 a subset of petitioners who would
employ 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.
---------------------------------------------------------------------------

\179\ See Table 4 and Table 5, 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 20, 2024).
\180\ See 20 CFR 655.15(b).
\181\ See USCIS, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024, for example (accessed October 25, 2024).
---------------------------------------------------------------------------

Using OFLC TLC data, Table 4 illustrates that relative to previous
fiscal years that did not include a late-season filer allocation,
requested H-2B employment start dates have become less concentrated in
April.\182\
---------------------------------------------------------------------------

\182\ 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.

Table 4--DOL Certified Worker Demand for April Start Dates
----------------------------------------------------------------------------------------------------------------
Percentage of
DOL certified DOL certified
Certified DOL workers with workers with
Fiscal year workers requested requested
requested start dates in start dates in
April April
----------------------------------------------------------------------------------------------------------------
2020............................................................ 115,116 82,757 71.89
2021............................................................ 159,081 94,656 59.50
2022............................................................ 205,037 118,381 57.74
2023............................................................ 220,552 112,639 51.07

[[Page 95667]]

2024............................................................ 227,226 113,760 50.06
----------------------------------------------------------------------------------------------------------------

Table 5--DOL Certified Worker Demand for Post-April Start Dates
----------------------------------------------------------------------------------------------------------------
Percentage of DOL
DOL certified certified workers
Fiscal year Certified DOL workers with with requested
workers requested requested start start dates after
dates after April April
----------------------------------------------------------------------------------------------------------------
2020................................................... 115,116 5,709 4.96
2021................................................... 159,081 5,866 3.69
2022................................................... 205,037 9,273 4.52
2023................................................... 220,552 15,476 7.02
2024................................................... 227,226 13,564 5.97
----------------------------------------------------------------------------------------------------------------

As part of the FY 2023 and FY 2024 H-2B TFRs, USCIS made 10,000 and
5,000 visas available to petitioners with start dates later in the
season (on or after May 15), respectively. The goal for having a
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.
Approximately 72% of the late season filer allocation for FY 2023 was
utilized (as defined by the number of beneficiaries of Form I-129
petitions approved for this allocation relative to the total allocation
of 10,000 visas).\183\ However, visa issuance data shows that only
slightly more than 5,000 visas were actually issued under the FY 2023
late season filer allocation. This compares to the late season filer
allocation for FY 2024, for which USCIS approved more beneficiaries of
Form I-129 petitions than the total number of visas available,
although, as of October 2024, still has not received a sufficient
number of petitions to achieve issuance of 5,000 visas according to its
projections.\184\ In sum, the data from the last two H-2B TFRs indicate
that including another late-season filer allocation of 5,000 visas for
FY 2025 is reasonable.
---------------------------------------------------------------------------

\183\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, Data queried 09/2023, TRK 12921.
Calculation: 7,198 beneficiaries approved under the late-season
filer allocation/10,000 visas allocated = 71.98% utilization.
\184\ Under the late season allocation for FY 2024, USCIS
approved 6,314 beneficiaries, while DOS issued 3,906 visas.
Department of Homeland Security, U.S. Citizenship and Immigration
Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE,
DOS Visa Issuance Data queried 10/2024, PAER0016221.
---------------------------------------------------------------------------

The Secretaries have 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 2025 TFR, where time and data allow.
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 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 rule 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.\185\
---------------------------------------------------------------------------

\185\ See, e.g., https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of.

[[Page 95668]]

Table 6--Form I-129 Petitions per Supplemental H-2B Visa Allocation
----------------------------------------------------------------------------------------------------------------
Total form I-
Supplement 129 petitions Total form I- Beneficiaries
Supplement amount received 129 per form I-129
beneficiaries petition
----------------------------------------------------------------------------------------------------------------
2019 Supplement................................. 30,000 2,700 33,239 12.31
2021 Supplement *............................... 22,000 2,180 31,274 14.35
2022 Supplement **.............................. 55,000 4,045 61,868 15.29
2023 Supplement................................. 64,716 4,902 79,057 16.13
2024 Supplement................................. 64,716 5,399 86,036 15.94
---------------------------------------------------------------
Average..................................... .............. .............. .............. 14.80
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
Notes:
* 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 September 25, 2024).
** 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.

Table 6 shows the total supplemental H-2B visa allocations issued
by the Departments in each fiscal year since FY 2019,\186\ 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 14.80 beneficiaries per petition for supplemental visas
derived in Table 6, USCIS anticipates that 4,373 Forms I-129 will be
submitted as a result of this temporary final rule.\187\
---------------------------------------------------------------------------

\186\ 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.
\187\ Calculation for expected petitions. If each Form I-129
petition requests 14.80 workers, we'd expect to see 4,373
petitioners exhausting the 64,716 supplement allocated this year:
64,716/14.80 = 4,373 (rounded)
---------------------------------------------------------------------------

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 338 additional Form ETA-9142B
requests \188\ to DOL, assuming each late season visa requestor submits
a TLC and Form I-129 for the historic average of 14.80 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 FY25 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.
---------------------------------------------------------------------------

\188\ Calculation for expected late season TLCs: 5,000 visas/
14.80 beneficiaries per petition = 338 TLCs (rounded).
---------------------------------------------------------------------------

DHS recognizes that some employers will be required to submit two
Form I-129 petitions if they choose to request H-2B workers under both
the returning worker and country-specific caps. At this time, DHS
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.\189\ Using data from FY 2020 to FY 2024, we estimate that a
lawyer or accredited representative will file 47.73 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 2,087 Forms I-129 and
Forms G-28, and that human resources (HR) specialists will file 2,286
Forms I-129.\190\
---------------------------------------------------------------------------

\189\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
\190\ Calculation: 4,373 estimated additional petitions * 47.73
percent of petitions filed by a lawyer = 2,087 (rounded) petitions
filed by a lawyer.
Calculation: 4,373 estimated additional petitions--2,087
petitions filed by a lawyer = 2,286 petitions filed by an HR
specialist.

Table 7--Form I-129 H-2B Petition Receipts that Were Accompanied by Form G-28, FY 2020-2024
----------------------------------------------------------------------------------------------------------------
Number of Form Percent of
I-129 H-2B Total number Form I-129 H-
Fiscal year petitions of Form I-129 2B petitions
accompanied by H-2B petitions accompanied by
a Form G-28 received a Form G-28
----------------------------------------------------------------------------------------------------------------
2020............................................................ 2,434 5,422 44.89%
2021............................................................ 4,228 9,160 46.16
2022............................................................ 5,984 12,392 48.29
2023............................................................ 6,837 13,744 49.75
2024............................................................ 6,048 12,773 47.35
-----------------------------------------------

[[Page 95669]]

Total....................................................... 25,531 53,491 47.73
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

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 2020 to FY 2024,
DHS estimates that approximately 91.19 percent of Form I-129 H-2B
petitioners will file a Form I-907 requesting premium processing. Based
on this historical data, DHS estimates that 3,988 Forms I-907 will be
filed with the Forms I-129 as a result of this rule.\191\ Of these
3,988 premium processing requests, we estimate that in-house or
outsourced lawyers will file 1,903 Forms I-907 and HR specialists or an
equivalent occupation will file 2,085.\192\
---------------------------------------------------------------------------

\191\ Calculation: 4,373 estimated additional petitions * 91.19
percent premium processing filing rate = 3,988 (rounded) additional
Form I-907.
\192\ Calculation: 3,988 additional Form I-907 * 47.73 percent
of petitioners represented by a lawyer = 1,903 (rounded) additional
Form I-907 filed by a lawyer.
Calculation: 3,988 additional Form I-907--1,903 additional Form
I-907 filed by a lawyer = 2,085 additional Form I-907 filed by an HR
specialist.

Table 8--Form I-129 H-2B Petition Receipts that Were Accompanied by Form I-907, FY 2020-2024
----------------------------------------------------------------------------------------------------------------
Number of Form Percent of
I-129 H-2B Total number Form I-129 H-
Fiscal year petitions of Form I-129 2B petitions
accompanied by H-2B petitions accompanied by
Form I-907 received Form I-907
----------------------------------------------------------------------------------------------------------------
2020............................................................ 4,341 5,422 80.06%
2021............................................................ 8,650 9,160 94.43
2022............................................................ 11,773 12,392 95.00
2023............................................................ 12,078 13,744 87.88
2024............................................................ 11,936 12,773 93.45
5-Year Total.................................................... 48,778 53,491 91.19
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

d. Population That Files Form ETA-9142-B-CAA-9, Attestation for
Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 105
of Division G, Title I of the Further Consolidated Appropriations Act,
2024, Public Law 118-47, as extended by sections 101(6) and 106 of
Division A, Title I of the Continuing Appropriations and Extensions
Act, 2025, Public Law 118-83
Petitioners seeking to take advantage of this FY 2025 H-2B
supplemental visa cap will need to file a Form ETA-9142-B-CAA-9
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 4,373 petitions will need to be
accompanied by Form ETA-9142-B-CAA-9 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 above 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 14.80 beneficiaries per I-129 petition holds, 338
petitioners \193\ 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 the number
of Form ETA-9142B in-house or outsourced lawyers will file is 161 and
that the number of Form ETA-9142B human resources (HR) specialists will
file is 177.\194\
---------------------------------------------------------------------------

\193\ Calculation for expected late season TLCs: 5,000 late
season visas/14.80 beneficiaries per petition = 338 TLCs (rounded).
\194\ Calculation: 338 estimated additional requests * 47.73
percent of petitions filed by a lawyer (see) = 161 (rounded) ETA-
9142-B requests filed by a lawyer.
Calculation: 338 estimated additional requests--161 requests
filed by a lawyer = 177 requests filed by an HR specialist.
---------------------------------------------------------------------------

f. Population That Must Undergo Additional Recruitment Activities
An employer that files Form ETA-9142B-CAA-9 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

[[Page 95670]]

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. Using 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 1,400.\195\
---------------------------------------------------------------------------

\195\ Calculation: 20,716 workers in the 1st half returning
working supplemental allocation/14.80 workers per petitioner = 1,400
(rounded) petitioners required to undertake additional recruitment.
---------------------------------------------------------------------------

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.\196\ DHS 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 2024. 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.
---------------------------------------------------------------------------

\196\ 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 2023, USCIS approved 407 requests for change of status to H-
2B, and Customs and Border Protection (CBP) processed 1,053
crossings of visa-exempt H-2B workers. See Characteristics of H-2B
Nonagricultural Temporary Workers FY2023 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY23-Characteristics-Report.pdf (accessed September 25, 2024). DHS
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. DHS 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.

Table 9--Numbers of Form I-129 H-2B Petitions Filed for Extension of Stay Due to Change of Employer and Form I-
129 H-2B Petitions Filed for New Employment, FY 2016-FY 2020
----------------------------------------------------------------------------------------------------------------
Rate of extension to
Form I-129 H-2B stay due to change
petitions filed for Form I-129 H-2B of employer filings
Fiscal year extension of stay petitions filed for relative to new
due to change of new employment employment filings
employer (%)
----------------------------------------------------------------------------------------------------------------
2016.......................................... 427 5,750 7.4
2017.......................................... 556 5,298 10.5
2018.......................................... 744 5,136 14.5
2019.......................................... 812 6,252 13.0
2020.......................................... 804 3,997 20.1
-----------------------------------------------------------------
Total..................................... 3,343 26,433 12.6
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

In FY 2021, the first year an H-2B supplemental cap included a
portability provision, 1,113 Forms I-129 were filed for extension of
stay due to change of employer compared to 7,206 Forms I-129 filed for
new employment.\197\ In FY 2022, 1,795 Forms I-129 were filed for
extension of stay due to change of employer compared to 9,231 Forms I-
129 filed for new employment.\198\ In FY 2023, 2,277 Forms I-129 were
filed for extension of stay due to change of employer compared to 9,895
Forms I-129 filed for new employment.\199\ In FY 2024, 2,181 Forms I-
129 were filed for extension of stay due to change of employer compared
to 9,097 Forms I-129 filed for new employment.\200\ 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 20.8 percent.\201\ This is above the 12.6 percent
rate expected without a portability provision. We estimate that 20.8
percent is the expected rate in periods with a portability provision in
the supplemental visa allocation. Using 4,373 as our estimate for the
number of Forms I-129 filed for H-2B new employment in FY 2024, we
estimate that 551 Forms I-129 would be filed for extension of stay due
to change of employer in absence of this provision.\202\ With this
portability
---------------------------------------------------------------------------

\197\ USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, Data queried 08/2024, TRK 15749.
\198\ See Id.
\199\ See Id.
\200\ See Id.
\201\ 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 +2,277 Form I-129 petitions for extension of stay due to change
of employer FY 2023 + 2,181 Form I-129 petitions for extension of
stay due to change of employer FY 2024 = 7,366 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 + 9,895 Form I-129 petitions filed for new
employment in FY 2023 + 9,097 Form I-129 petitions filed for new
employment in FY 2024 = 35,429 Form I-129 petitions filed for new
employment in portability provision years
Calculation, Step 3: 7,366 extension of stay due to change of
employment petitions/35,429 new employment petitions = 20.8 percent
rate of extension of stay due to change of employment to new
employment (rounded).
\202\ Calculation: 4,373 Form I-129 H-2B petitions filed for new
employment * 12.6 percent = 551 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer, no
portability provision.

---------------------------------------------------------------------------

[[Page 95671]]

provision, we estimate that 910 Forms I-129 would be filed for
extension of stay due to change of employer,\203\ which results in a
difference of 359 additional Forms I-129 as a result of this
provision.\204\ As previously estimated, we expect that about 47.73
percent of Form I-129 petitions will be filed by an in-house or
outsourced lawyer. Therefore, we expect that a lawyer will file 171 of
these petitions and an HR specialist or equivalent occupation will file
the remaining 188.\205\ Previously in this analysis, we estimated that
about 91.19 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 327 Forms I-907 will be filed.\206\ We
expect a lawyer to file 156 of those Forms I-907 and an HR specialist
to file the remaining 171.\207\
---------------------------------------------------------------------------

\203\ Calculation: 4,373 Form I-129 H-2B petitions filed for new
employment * 20.8 percent = 910 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision.
\204\ Calculation: 910 estimated number of Form I-129 H-2B
petitions filed for extension of stay due to change of employer,
with a portability provision--551 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer,
no portability provision = 359 Form I-129 H-2B petition increase as
a result of portability provision.
\205\ Calculation, Lawyers: 359 additional Form I-129 due to
portability provision * 47.73 percent of Form I-129 for H-2B
positions filed by an attorney or accredited representative = 171
(rounded) estimated Form I-129 filed by a lawyer.
Calculation, HR specialist: 359 additional Form I-129 due to
portability provision--171 estimated Form I-129 filed by a lawyer =
188 estimated Form I-129 filed by an HR specialist.
\206\ Calculation: 359 Form I-129 H-2B petitions * 91.19 percent
premium processing filing rate = 327 (rounded) Forms I-907.
\207\ Calculation, Lawyers: 327 Forms I-907 * 47.73 percent
filed by an attorney or accredited representative = 156 (rounded)
Forms I-907 filed by a lawyer.
Calculation, HR specialists: 327 Forms I-907--156 Forms I-907
filed by a lawyer = 171 Forms I-907 filed by an HR specialist.
---------------------------------------------------------------------------

h. Population Affected by the Audits
Under this time-limited FY 2025 H-2B supplemental cap rule, DHS
intends to conduct a minimum of 150 audits of employers hiring H-2B
workers under this TFR. While this number of TFR-related audits is
lower than previous years' TFR-related audits, DHS has increased the
number of targeted site visits it conducts on H-2B petitioners under
the regular H-2B program. Specifically, in addition to the 150 audits
DHS will perform under this TFR, DHS will also routinely conduct at
least 150 targeted site visits annually to H-2B petitioners to
determine compliance with H-2B program requirements overall. During
site visits, FDNS officers visit the work location, conduct in-person
interviews, and review documents. These targeted H-2B site visits are
conducted outside of the supplemental cap program, but overlap may
exist between petitioners who file under the regular cap and the TFR.
These increased targeted site visits, taken together with the audits
conducted under this TFR, will increase oversight into the integrity of
the H-2B program overall. Separately, DOL intends to conduct 100 audits
of employers hiring H-2B workers under this TFR. 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 250 audits on employers that petition for H-2B
workers under this TFR.\208\
---------------------------------------------------------------------------

\208\ These 250 audits are separate and distinct from WHD's
investigations pursuant to its existing enforcement authority.
---------------------------------------------------------------------------

i. Population Sffected 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.\209\ The data
available 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 FY 2019-2023. 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 2019-2023, an average of 72
(rounded) employers were cited for H-2B violations with a worker
protection violation by the 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 144 petitioners will undergo
additional scrutiny from USCIS.\210\
---------------------------------------------------------------------------

\209\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed September 5, 2024).
\210\ 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 144 to be a reasonable estimate of the number of
petitioners that will undergo additional scrutiny.

Table 10--Employers With H-2B Violations With Worker Protection
Violation End Date in FY 2019-2023
------------------------------------------------------------------------
Employers cited for H-
2B violations with
Fiscal year worker protection
violation end date in
fiscal year
------------------------------------------------------------------------
2019........................................... 124
2020........................................... 89
2021........................................... 55
2022........................................... 70
2023........................................... 22
5-year Average (rounded)....................... 72
------------------------------------------------------------------------
Source: USCIS analysis of DOL Wage and Hour Compliance Action Data.

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 fiscal years is 9,924. We use the TLC
population, rather than the estimated 4,373 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
47.73 percent of petitioners are submitted by lawyers. Therefore, we
estimate that 4,737 lawyers and 5,187 HR specialists will incur
familiarization costs.\211\
---------------------------------------------------------------------------

\211\ Calculation for lawyers: 9,924 estimated applicants *
47.73 percent represents by a lawyer = 4,737 (rounded) represented
by a lawyer.
Calculation for HR specialists: 9,924 approved, pending, and
projected applicants--4,737 represented by a lawyer = 5,187
represented by an HR specialist.
---------------------------------------------------------------------------

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.\212\ The estimated time to
complete and file Form I-129 for H-2B classification is 4.56
hours.\213\ A U.S. employer, a U.S. agent, or a foreign employer filing
through the U.S. agent

[[Page 95672]]

must file the petition. DHS estimates that an in-house or outsourced
lawyer will file 47.73 percent of Form I-129 H-2B petitions, and an HR
specialist or equivalent occupation will file the remainder (52.27
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.
---------------------------------------------------------------------------

\212\ Filing fees are not considered costs to society. These
fees have been accounted for as a transfer from petitioners to
USCIS.
\213\ The public reporting burden for this form is 2.487 hours
for Form I-129 and an additional 2.07 hours for H Classification
Supplement, totaling 4.56 hours (rounded). See Form I-129
instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed August 13, 2024).
---------------------------------------------------------------------------

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 $36.57 as the base wage rate.\214\ If petitioners
hire an in-house or outsourced lawyer to file Form I-129 on their
behalf, DHS uses the mean hourly wage rate $84.84 as the base wage
rate.\215\ 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.\216\ DHS
multiplied the average hourly U.S. wage rate for HR specialists and for
in-house lawyers by the benefits-to-wage multiplier of 1.45 to estimate
total compensation to employees. The total compensation for an HR
specialist is $53.03 per hour, and the total compensation for an in-
house lawyer is $123.02 per hour.\217\ 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.\218\ DHS
estimates the total compensation for an outsourced lawyer is $212.10
per hour.\219\ If a lawyer submits Form I-129 on behalf of the
petitioner, Form G-28 must accompany the Form I-129 petition.\220\ DHS
estimates the time burden to complete and submit Form G-28 for a lawyer
is 50 minutes (0.83 hour, rounded).\221\ 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 5.39 hours for in-house lawyers and outsourced
lawyers to complete Form G-28 and Form I-129.\222\ Therefore, the total
opportunity cost of time per petition for an HR specialist to complete
and file Form I-129 is approximately $241.82, for an in-house lawyer to
complete and file Forms I-129 and G-28 is about $663.08, and for an
outsourced lawyer to complete and file is approximately $1,143.22.\223\
---------------------------------------------------------------------------

\214\ U.S. Department of Labor, Bureau of Labor Statistics,
``May 2023 National Occupational Employment and Wage Statistics''
Human Resources Specialist (13-1071), Mean Hourly Wage, available at
https://www.bls.gov/news.release/archives/ocwage_04032024.pdf
(accessed October 25, 2024).
\215\ U.S. Department of Labor, Bureau of Labor Statistics.
``May 2023 National Occupational Employment and Wage Estimates''
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/news.release/archives/ocwage_04032024.pdf(accessed
October 25, 2024).
\216\ Calculation: $46.21 mean Total Employee Compensation per
hour for civilian workers/$31.80 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--June 2024 Table
1. Employer Costs for Employee Compensation by ownership, Civilian
workers, available at https://www.bls.gov/news.release/archives/ecec_09102024.pdf (accessed October 25, 2024).
\217\ Calculation, HR specialist: $36.57 mean hourly wage * 1.45
benefits-to-wage multiplier = $53.03 hourly total compensation
(hourly opportunity cost of time).
Calculation, In-house Lawyer: $84.84 mean hourly wage * 1.45
benefits-to-wage multiplier = $123.02 hourly total compensation
(hourly opportunity cost of time).
\218\ 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
September 25, 2024). 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 25, 2024).
\219\ Calculation, Outsourced Lawyer: $84.84 mean hourly wage *
2.5 benefits-to-wage multiplier = $212.10 hourly total compensation
(hourly opportunity cost of time).
\220\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed September 25, 2024).
\221\ 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).
\222\ Calculation: 0.83 hour to file Form G-28 + 4.56 hours to
file Form I-129 = 5.39 hours to file both forms.
\223\ Calculation, HR specialist files Form I-129: $53.03 hourly
opportunity cost of time * 4.56 hours = $241.82 opportunity cost of
time per petition.
Calculation, In-house Lawyer files Form I-129 and Form G-28:
$123.02 hourly opportunity cost of time * 5.39 hours = $663.08
opportunity cost of time per petition.
Calculation, Outsourced Lawyer files Form I-129 and Form G-28:
$212.10 hourly opportunity cost of time * 5.39 hours = $1,143.22
opportunity cost of time per petition.
---------------------------------------------------------------------------

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. In previous years, all filers of the Form I-129 paid a
standard fee. As of April 1, 2024, the fee structure for I-129 H-2B
petitions has changed, and now takes into account whether petitioners
are named or unnamed, as well as the characteristics of the petitioner
based on size. Additionally, petitioners pay a variable Asylum
Processing Fee based on the identity of the petitioner based on entity
type. All petitioners pay an additional Fraud Prevention and Detection
Fee of $150.\224\ The new fee structure is summarized in Table 11
below. 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 4,373
Forms I-129 due to the rule's supplemental visa allocation and an
additional 359 Forms I-129 due to the rule's portability provision.
---------------------------------------------------------------------------

\224\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed
September 4, 2024). See also 8 U.S.C. 1184(c)(13).

Table 11--Form I-129 Filing Fees by Petitioner Type
----------------------------------------------------------------------------------------------------------------
Fraud
Petitioner type Base fee prevention and Asylum Total fee
detection fee processing fee
----------------------------------------------------------------------------------------------------------------
H-2B Named Non-Small Employer or Nonprofit..... $1,080 $150 $600 $1,830
H-2B Named Small Employer...................... 540 150 300 990

[[Page 95673]]

H-2B Named Nonprofit........................... 540 150 0 690
H-2B Unnamed Non-Small Employer or Nonprofit... 580 150 600 1,330
H-2B Unnamed Small Employer.................... 460 150 300 910
H-2B Unnamed Nonprofit......................... 460 150 0 610
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed September 4, 2024). See also 8 USC 1184(c)(13).

Using a historical average of petitioners requesting named versus
unnamed beneficiaries from FY 2021-FY2024, DHS estimates that 6 percent
will request named beneficiaries and 94 percent will request unnamed
beneficiaries. Based on analysis conducted as part of the USCIS 2024
Fee Rule, DHS assumes that 30 percent of I-129 H-2B petitioners have 26
or more employees, 55 percent have 25 or fewer employees, and 15
percent have non-profit status.\225\ This equates to 1,312 petitioners
with 26 or more employees,\226\ 2,405 petitioners with 25 or fewer
employees,\227\ and 656 non-profit petitioners filing Forms I-129 as
part of the supplemental allocation.\228\ USCIS assumes that the
percentage of named versus unnamed beneficiaries does not vary by
employer size or nonprofit status. Thus, by multiplying the percentages
of requests of named versus unnamed beneficiaries by the number of
petitioners by characteristic, this equates to 79 petitioners with 26
or more employees requesting named beneficiaries,\229\ 1,233
petitioners with 26 or more employees requesting unnamed
beneficiaries,\230\ 144 petitioners with 25 or fewer employees
requesting named beneficiaries,\231\ 2,261 petitioners with 25 or fewer
employees requesting unnamed beneficiaries,\232\ 39 non-profit
petitioners requesting named beneficiaries,\233\ and 617 non-profit
petitioners requesting unnamed beneficiaries as part of the
supplemental allocation.\234\ Additionally, DHS estimates that 359
additional Forms I-129 will be filed due to the portability provision
of this rule. Petitions filed under the portability provision must
request named beneficiaries. Thus, DHS estimates that this population
will consist of 108 petitioners with 26 or more employees requesting
named beneficiaries,\235\ 197 petitioners with 25 or fewer employees
requesting named beneficiaries,\236\ and 54 non-profit petitioners
requesting named beneficiaries.\237\
---------------------------------------------------------------------------

\225\ See Table 25 of the Fee Rule Regulatory Impact Analysis at
https://www.regulations.gov/document/USCIS-2021-0010-8179 (accessed
October 28, 2024).
\226\ Calculation: 4,373 expected additional Forms I-129 * 30
percent petitioners with 26 or more employees = 1,312 (rounded).
\227\ Calculation: 4,373 expected additional Forms I-129 * 55
percent petitioners with 25 or fewer employees = 2,405 (rounded).
\228\ Calculation: 4,373 expected additional Forms I-129 * 15
percent non-profit petitioners = 656 (rounded).
\229\ Calculation: 1,312 petitioners with 26 or more employees *
6 percent unnamed beneficiaries = 79 (rounded).
\230\ Calculation: 1,312 petitioners with 26 or more employees *
94 percent unnamed beneficiaries = 1,233 (rounded).
\231\ Calculation: 2,405 petitioners with 25 or fewer employees
* 6 percent unnamed beneficiaries = 144 (rounded).
\232\ Calculation: 2,405 petitioners with 25 or fewer employees
* 94 percent unnamed beneficiaries = 2,261 (rounded).
\233\ Calculation: 656 non-profit petitioners * 6 percent
unnamed beneficiaries = 39 (rounded).
\234\ Calculation: 656 non-profit petitioners * 94 percent
unnamed beneficiaries = 617 (rounded).
\235\ Calculation: 359 expected additional Forms I-129 * 30
percent petitioners with 26 or more employees = 108 (rounded).
\236\ Calculation: 359 expected additional Forms I-129 * 55
percent petitioners with 25 or fewer employees = 197 (rounded).
\237\ Calculation: 359 expected additional Forms I-129 * 15
percent non-profit petitioners = 54 (rounded).
---------------------------------------------------------------------------

The total transfers from petitioners to the government for filing
Forms I-129 H-2B petitioners are $4,817,740.\238\ Transfers from
petitioners to the Government related to the filing of Forms I-907 as a
result of the rule are $7,270,775.\239\ Total transfers from
petitioners to the Government are $12,088,515.\240\
---------------------------------------------------------------------------

\238\ Calculation: 187 petitioners with 26 or more employees
requesting named beneficiaries x $1,830 + 1,233 petitioners with 26
or more employees requesting unnamed beneficiaries x $1,330 + 341
petitioners with 25 or fewer employees requesting named
beneficiaries x $990 + 2,261 petitioners with 25 or fewer employees
requesting unnamed beneficiaries x $910 + 93 non-profits requesting
named beneficiaries x $690 + 617 non-profits requesting unnamed
beneficiaries x $610 = $4,817,740
\239\ Calculation: $1,685 per petition * 4,315 Forms I-907 =
$7,270,775
\240\ Calculation: $4,817,740 + $7,270,775 = $12,088,515.
---------------------------------------------------------------------------

b. Cost to Petitioners
As mentioned in Section 3, the estimated population impacted by
this rule is 4,373 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 2,286 petitions using Form I-129 and lawyers will file an
additional 2,087 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 $552,801 (rounded).\241\ DHS estimates the total cost to
file Form I-129 petitions and Form G-28 if filed by lawyers will range
from $1,383,848 (rounded) if only in-house lawyers file these forms, to
$2,385,900 (rounded) if only outsourced lawyers file them.\242\
Therefore, the estimated total cost to file Form I-129 and Form G-28
range from $1,936,649 and $2,938,701.\243\
---------------------------------------------------------------------------

\241\ Calculation, HR specialist: $241.82 cost per petition *
2,286 Form I-129 = $552,801 (rounded) total cost.
\242\ Calculation, In-house Lawyer: $663.08 cost per petition *
2,087 Form I-129 and Form G-28 = $1,383,848 (rounded) total cost.
Calculation, Outsourced Lawyer: $1,143.22 cost per petition *
2,087 Form I-129 and Form G-28 = $2,385,900 (rounded) total cost.
\243\ Calculation: $552,801 total cost of Form I-129 filed by HR
specialists + $1,383,848 total cost of Form I-129 and Form G-28
filed by in-house lawyers = $1,936,649 estimated total costs to file
Form I-129 and G-28.
Calculation: $552,801 total cost of Form I-129 filed by HR
specialists + $2,385,900 total cost of Form I-129 and G-28 filed by
outsourced lawyers = $2,938,701 estimated total costs to file Form
I-129 and G-28.
---------------------------------------------------------------------------

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

[[Page 95674]]

$1,685, and the time burden for completing the form is 22 minutes (0.35
hour).^{244 245} Using the wage rates established previously,
the opportunity cost of time to file Form I-907 is approximately $19.62
for an HR specialist, $45.52 for an in-house lawyer, and $78.48 for an
outsourced lawyer.\246\
---------------------------------------------------------------------------

\244\ The filing fee is a transfer from the petitioner
requesting premium processing and proxy for the total costs to
USCIS.
\245\ See Form I-907 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (accessed
September 25, 2024).
Calculation: 22 minutes/60 minutes per hour = 0.37 (rounded)
hour.
\246\ Calculation, HR specialist Form I-907: $53.03 hourly
opportunity cost of time * 0.37 hour = $19.62 opportunity cost of
time per request.
Calculation, In-house Lawyer Form I-907: $123.02 hourly
opportunity cost of time * 0.37 hour = $45.52 opportunity cost of
time per request.
Calculation, Outsourced Lawyer Form I-907: $212.10 hourly
opportunity cost of time * 0.37 hour = $78.48 opportunity cost of
time per request.
---------------------------------------------------------------------------

As discussed above, DHS estimates that HR specialists will file an
additional 2,085 Form I-907 and lawyers will file an additional 1,903
Form I-907. DHS estimates the total cost of Form I-907 filed by HR
specialists is about $40,908 (rounded).\247\ DHS estimates the total
cost to file Form I-907 filed by lawyers range from about $86,625
(rounded) for only in-house lawyers, to $149,347 (rounded) for only
outsourced lawyers.\248\ The estimated total cost to file Form I-907
range from $127,533 and $190,255.\249\
---------------------------------------------------------------------------

\247\ Calculation, HR specialist: $19.62 opportunity cost of
time per request * 2,085 Form I-907 = $40,908 (rounded) total cost
of Form I-907 filed by HR specialists.
\248\ Calculation, In-house Lawyer Form I-907: $45.52 hourly
opportunity cost of time * 1,903 applications = $86,625.
Calculation, Outsourced Lawyer Form I-907: $78.48 hourly
opportunity cost of time * 1,903 applications = $149,347.
\249\ Calculation: $40,908 total cost of Form I-907 filed by HR
specialists + $86,625 total cost of Form I-907 filed by in-house
lawyers = $127,533 estimated total costs to file Form I-907.
Calculation: $40,908 total cost of Form I-129 filed by HR
specialists + $149,347 total cost of Form I-907 filed by outsourced
lawyers = $190,255 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 338 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).\250\ DHS estimates the total cost of Form ETA-
9142B filed by HR specialists is about $20,368 (rounded).\251\ DHS
estimates the total cost to file Form ETA-9142B by lawyers range from
about $42,979 (rounded) for only in-house lawyers, to $74,101 (rounded)
for only outsourced lawyers.\252\ The estimated total cost to file Form
ETA-9142B range from $63,347 and $94,469.\253\
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\250\ The time burden estimate of 130 minutes 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/Form-ETA-9142B-Instructions-1205-0509.pdf
(accessed August 22, 2024)
\251\ Calculation, HR specialist: $53.03 per hour * 2.17 hours *
177 Form ETA-9142-B = $20,368 (rounded) total cost of Form ETA-9142-
B filed by HR specialists.
\252\ Calculation, In-house Lawyer Form ETA-9142-B: $123.02 per
hour * 2.17 hours * 161 applications = $42,979 (rounded).
Calculation, Outsourced Lawyer Form ETA-9142-B: $212.10 per hour *
2.17 hours * 161 applications = $74,101 (rounded).
\253\ Calculation: $20,368 total cost of Form ETA-9142-B filed
by HR specialist + $42,979 total cost of Form ETA-9142-B filed by
In-house Lawyer = $63,347 estimated total costs to file Form ETA-
9142-B.
Calculation: $20,368 total cost of Form ETA-9142-B filed by HR
specialist + $74,101 total cost of Form ETA-9142-B filed by
Outsourced Lawyer = $94,469 estimated total costs to file Form ETA-
9142-B.
---------------------------------------------------------------------------

iv. Cost To File Form ETA-9142-B-CAA-9
Form ETA-9142-B-CAA-9 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 $53.03 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
$53.03.\254\ 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 $9.02.\255\ The total opportunity
cost of time for filing Form ETA-9142-B-CAA-9 and emailing the ETA case
number to both OFLC and the AFL-CIO is $74.\256\
---------------------------------------------------------------------------

\254\ Calculation: $53.03 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 = $53.03.
\255\ Calculation: $53.03 hourly opportunity cost of time * 0.17
hours to send OFLC and AFL-CIO the ETA case number = $9.02
(rounded).
\256\ Calculation: $53.03 + $9.02 = $62.05.
---------------------------------------------------------------------------

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 $54.30,\257\ and the estimated hourly total compensation for
a financial analyst is $78.74.\258\ 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 $393.70.\259\
---------------------------------------------------------------------------

\257\ See U.S. Department of Labor, Bureau of Labor Statistics,
``May 2023 National Occupational Employment and Wage Statistics''
Financial and Investment Analysts (13-2051), https://www.bls.gov/news.release/archives/ocwage_04032024.pdf (accessed October 25,
2024).
\258\ Calculation: $54.30 mean hourly wage for a financial
analyst * 1.45 benefits-to-wage multiplier = $78.74 (rounded).
\259\ Calculation: $78.74 estimated total compensation for a
financial analyst * 5 hours to meet the requirements of the
irreparable harm standard = $393.70.
---------------------------------------------------------------------------

As discussed previously, DHS believes that the 4,373 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 $271,345 (rounded)
and for financial analysts is about $1,721,650 (rounded).\260\
---------------------------------------------------------------------------

\260\ Calculations, HR specialists: $62.05 opportunity cost of
time to comply with attestation requirements and to send the ETA
case number to OFLC and AFL-CIO * 4,373 estimated additional
petitions = $271,345 (rounded) total cost to comply with attestation
requirements.
Calculation, Financial Analysts: $393.70 opportunity cost of
time to comply with attestation requirements * 4,373 estimated
additional petitions = $1,721,650 (rounded) to comply with
attestation requirements.

---------------------------------------------------------------------------

[[Page 95675]]

The estimated total cost to file Form ETA-9142-B-CAA-9 and comply
with the attestation is approximately $1,992,995.\261\
---------------------------------------------------------------------------

\261\ Calculation: $271,345 total cost for HR specialist to
comply with attestation requirement and to send the ETA case number
to OFLC and AFL-CIO + $1,721,650 total cost for financial analysts
to comply with attestation requirements = $1,992,995 total cost to
comply with attestation requirements.
---------------------------------------------------------------------------

v. Cost To Conduct Recruitment
An employer that files Form ETA-9142B-CAA-99 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.
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,
2023. 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.\262\ Assuming this work
will be done by an HR specialist or an equivalent occupation, the
estimated cost to each petitioner is approximately $212.12.\263\ Using
1,400 as the estimated number of petitioners required to undergo
additional recruitment activities, the estimated total cost of this
provision is approximately $296,968 (rounded).\264\
---------------------------------------------------------------------------

\262\ This is the average expected time burden across all
employers; not all employers will need to notify the AFL-CIO,
because not all occupations 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.
\263\ Calculation: $53.03 hourly opportunity cost of time for an
HR specialist * 4 hours to conduct additional recruitment = $212.12
per petitioner cost to conduct additional recruitment.
\264\ Calculation: 1,400 estimated number of petitioners subject
to additional recruitment requirements * $212.12 per petitioner cost
to conduct additional recruitment = $296,968 (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 359
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 47.73 percent of these Form I-129 petitions. Therefore, we expect
that a lawyer will file 171 of these petitions and an HR specialist or
equivalent occupation will file the remaining 188. As previously
discussed, the opportunity cost of time to file a Form I-129 H-2B
petition is $241.82 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
$663.08 for an in-house lawyer and $1,143.22 for an outsourced lawyer.
Therefore, we estimate the cost of the additional Forms I-129 from the
portability provision for HR specialists is $45,462.\265\ The estimated
cost of the additional Forms I-129 accompanied by Forms G-28 from the
portability provision for lawyers is $113,387 if filed by in-house
lawyers and $195,491 if filed by outsourced lawyers.\266\
---------------------------------------------------------------------------

\265\ Calculation, HR specialist: $241.82 estimated cost to file
a Form I-129 H-2B petition * 188 petitions = $45,462 (rounded).
\266\ Calculation, In-house Lawyer: $663.08 estimated cost to
file a Form I-129 H-2B petition and accompanying Form G-28 * 171
petitions = $113,387 (rounded).
Calculation, Outsourced Lawyer: $1,143.22 estimated cost to file
a Form I-129 H-2B petition and accompanying Form G-28 * 171
petitions = $195,491 (rounded).
---------------------------------------------------------------------------

Previously in this analysis, we estimated that about 91.19 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
327 Forms I-907 will be filed.\267\ We expect a lawyer will file 156 of
those Forms I-907 and an HR specialist or equivalent occupation will
file the remaining 171.\268\ As previously discussed, the estimated
opportunity cost of time to file a Form I-907 is $19.62 for an HR
specialist; and the estimated opportunity cost of time to file a Form
I-907 is approximately $45.52 for an in-house lawyer and $78.48 for an
outsourced lawyer. The estimated total cost of the additional Forms I-
907 if HR

[[Page 95676]]

specialists file is $3,355.\269\ The estimated total cost of the
additional Forms I-907 is $7,101 if filed by in-house lawyers and
$12,243 if filed by outsourced lawyers.\270\
---------------------------------------------------------------------------

\267\ Calculation: 359 estimated additional Form I-129 H-2B
petitions * 91.19 percent accompanied by Form I-907 = 327 (rounded)
additional Form I-907.
\268\ Calculation, Lawyers: 327 additional Form I-907 * 47.73
percent = 156 (rounded) Form I-907 filed by a lawyer. Calculation,
HR specialists: 327 Form I-907--156 Form I-907 filed by a lawyer =
171 Form I-907 filed by an HR specialist.
\269\ Calculation, HR specialist: $19.62 to file a Form I-907 *
171 forms = $3,355 (rounded).
\270\ Calculation, In-house lawyer: $45.52 to file a Form I-907
* 156 forms = $7,101 (rounded).
Calculation for an outsourced lawyer: $78.48 to file a Form I-
907 * 156 forms = $12,243 (rounded).
---------------------------------------------------------------------------

The estimated total cost of this provision ranges from $169,305 to
$256,551 depending on what share of the forms are filed by in-house or
outsourced lawyers.\271\
---------------------------------------------------------------------------

\271\ Calculation for HR specialists and in-house lawyers:
$45,462 for HR specialists to file Form I-129 H-2B petitions +
$113,387 for in-house lawyers to file Form I-129 and the
accompanying Form G-28 + $3,355 for HR specialists to file Form I-
907 + $7,101 for in-house lawyers to file Form I-907 = $169,305.
Calculation for HR specialists and outsourced lawyers: $45,462
for HR specialists to file Form I-129 H-2B petitions + $195,491 for
outsourced lawyers to file Form I-129 and the accompanying Form G-28
+ $3,355 for HR specialists to file Form I-907 + $12,243 for
outsourced lawyers to file Form I-907 = $256,551.
---------------------------------------------------------------------------

vii. Cost of Audits to Petitioners
As discussed above, DHS intends to conduct 150 audits of employers
hiring H-2B workers under this TFR,\272\ and DOL intends to conduct 100
audits of employers hiring H-2B workers under this TFR, for a total of
250 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 $53.03, the estimated cost of complying
with audits is $636.36 per audited employer.\274\ Therefore, the total
estimated cost to employers to comply with audits is $159,090.\275\
---------------------------------------------------------------------------

\272\ As noted above, in addition to these TFR-specific audits,
DHS will also be conducting at least 150 targeted site visits
annually related to other H-2B petitions to determine compliance
with H-2B program requirements and provide increased oversight into
the integrity of the H-2B program overall.
\273\ The number in hours for audits was provided by the USCIS,
Service Center Operations.
\274\ Calculation: $53.03 hourly opportunity cost of time for an
HR specialist * 12 hours to comply with an audit = $636.36 per
audited employer.
\275\ Calculation: 250 audited employers * $636.36 opportunity
cost of time to comply with an audit = $159,090.
---------------------------------------------------------------------------

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 144
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 $16.00.\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 $91.00.\278\ With an estimated 144 petitioners expected to print and
ship evidence, the total estimated costs for printing and shipping
evidence is $13,104.\279\
---------------------------------------------------------------------------

\276\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed August 22, 2024).
\277\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed August 22, 2024). 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 + $16.00 in shipping
costs = $91.00 to print and ship evidence.
\279\ Calculation: 144 petitioners * $91.00 to print and ship
evidence = $13,104 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 $53.03 hourly opportunity cost of time for HR specialist, we
estimate the opportunity cost of time for each petitioner is
$53.03.\280\ With an estimated 144 petitioners expected to print and
ship evidence, the total estimated opportunity cost of time to print
and ship evidence is $7,636.\281\
---------------------------------------------------------------------------

\280\ Calculation: $53.03 hourly opportunity cost of time for HR
specialist * 1 hour to print and ship evidence = $53.03 opportunity
cost of time per petitioner.
\281\ Calculation: 144 petitioners * $53.03 opportunity cost of
time per petitioner = $7,636 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 $20,740.\282\
---------------------------------------------------------------------------

\282\ Calculation: $13,104 total printing and shipping costs +
$7,636 total opportunity cost of time = $20,740 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 9,924
petitioners may take advantage of the provisions of this rule, and that
a lawyer will represent 4,737 of these petitioners and an HR specialist
or equivalent occupation will represent 5,187.
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 67,000
words.\284\ Using a reading speed of 238 words per minute, DHS
estimates it will take approximately 4.7 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 25, 2024).
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 67,000 words/238 words per
minute = 282 (rounded) minutes.
Calculation, Step 2: 282 minutes/60 minutes per hour = 4.7
(rounded) hours.
---------------------------------------------------------------------------

The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $53.03, $123.02, and $212.10,
respectively. The estimated opportunity cost of time for each of these
filers to read and understand the rule are $249.24, $578.19, and
$996.87, respectively.\286\ The estimated total opportunity cost of
time for 5,187 HR specialists to familiarize themselves with this rule
is approximately $1,292,808.\287\ The estimated total

[[Page 95677]]

opportunity cost of time for 4,737 lawyers to familiarize themselves
with this rule is approximately $2,738,886 if they are all in-house
lawyers and $4,722,173 if they are all outsourced lawyers.\288\
Accordingly, the estimated total opportunity costs of time for
petitioners' representatives to familiarize themselves with this rule
ranges from $4,031,694 to $6,014,981.\289\
---------------------------------------------------------------------------

\286\ Calculation, HR Specialists: $53.03 estimated hourly total
compensation for an HR specialist * 4.7 hours to read and become
familiar with the rule = $249.24 opportunity cost of time for an HR
specialist to read and understand the rule.
Calculation, In-house lawyer: $123.02 estimated hourly total
compensation for an in-house lawyer * 4.7 hours to read and become
familiar with the rule = $578.19 (rounded) opportunity cost of time
for an in-house lawyer to read and understand the rule.
Calculation, Outsourced lawyer: $212.10 estimated hourly total
compensation for an outsourced lawyer * 4.7 hours to read and become
familiar with the rule = $996.87 (rounded) opportunity cost of time
for an outsourced lawyer to read and understand the rule.
\287\ Calculation, HR specialists: $249.24 opportunity cost of
time * 5,187 = $1,292,808 (rounded).
\288\ Calculation for in-house lawyers: $578.19 opportunity cost
of * 4,737 = $2,738,886 (rounded).
Calculation for outsourced lawyers: $996.87 opportunity cost of
time * 4,737 = $4,722,173 (rounded).
\289\ Calculation: $1,292,808 + $2,738,886 = $4,031,694.
Calculation: $1,292,808 + $4,722,173 = $6,014,981.
---------------------------------------------------------------------------

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-9, 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 $1,936,649 to
$2,938,701, depending on the filer. The estimated total cost of filing
Form I-907 ranges from $127,533 to $190,255, depending on the filer.
The estimated cost for late season employers to file Form ETA-9142B
ranges from $63,347 to $94,469 depending on the filer. The estimated
total cost of filing and complying with Form ETA-9142-B-CAA-9 is
$1,992,995. The estimated total cost of conducting additional
recruitment is $296,968. The estimated cost of the portability
provision ranges from $169,305 to $256,551, depending on the filer. The
estimated total cost for employers to comply with audits is $159,090.
The estimated total costs for petitioners or their representatives to
familiarize themselves with this rule ranges from $4,031,694 to
$6,014,981, depending on the filer. The estimated total cost of
additional scrutiny is $20,740. The total estimated cost to petitioners
ranges from $8,798,321 to $11,964,750, depending on the filer.\290\
---------------------------------------------------------------------------

\290\ Calculation of lower range: $1,936,649 + $127,533 +
$63,347 + $1,992,995 + $296,968 + $169,305 + $159,090 + $4,031,694 +
$20,740 = $8,798,321.
Calculation of upper range: $2,938,701 + $190,255 + $94,469 +
$1,992,995 + $296,968 + $256,551 + $159,090 + $6,014,981 + $20,740 =
$11,964,750.
---------------------------------------------------------------------------

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 $4,817,740, and the total filing fees associated with
premium processing are $7,270,775.\291\ Total transfers from
petitioners to the Government are $12,088,515.\292\
---------------------------------------------------------------------------

\291\ Calculation: (3,988 + 327 Forms I-907) * $1,685 per form =
$7,270,775.
\292\ Calculation: $4,817,740 + $7,270,775 = $12,088,515.
---------------------------------------------------------------------------

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.\293\ 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.
---------------------------------------------------------------------------

\293\ 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.\294\ 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 intend to conduct a total of 250 audits, and we
expect each audit to take 12 hours. This results in a total time burden
of 3,000 hours.\295\ 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 $64.06.\296\ To estimate the total hourly compensation for
these positions, we multiply the hourly wage ($64.06) by the Federal
benefits to wage multiplier of 1.41.\297\ This results in an hourly
opportunity cost of time of $90.32 for GS-13 Step 5 Federal employees
in the Washington, DC locality pay area.\298\ The total opportunity
costs of time for Federal workers to conduct audits is estimated to be
$270,960.\299\
---------------------------------------------------------------------------

\294\ These audits are distinct from the WHD's authority to
perform investigations regarding employers' compliance with the
requirements of the H-2B program.
\295\ Calculation: 12 hours to conduct an audit * 250 audits =
3,000 total hours to conduct audits.
\296\ 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, 2024, Hourly Basic Rate,
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2024/DCB_h.pdf (accessed August 22, 2024).
\297\ Calculation, Step 1: $2,382,167 Full-time Permanent
Salaries + $983,370 Civilian Personnel Benefits = $3,365,537
Compensation.
Calculation, Step 2: $3,365,537 Compensation/$2,382,167 Full-
time Permanent Salaries = 1.41 (rounded) Federal employee benefits
to wage ratio. See https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf (accessed
August 22, 2024).
\298\ Calculation: $64.06 hourly wage for a GS 13-5 in the
Washington, DC locality area * 1.41 Federal employee benefits to
wage ratio = $90.32 hourly opportunity cost of time for a GS 13-5
federal employee in the Washington, DC locality area.
\299\ Calculation: 3,000 hours to conduct audits * $90.32 hourly
opportunity cost of time = $270,960 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

[[Page 95678]]

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.
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, this
analysis 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. According to Brodbeck et al. (2018):

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.\300\
---------------------------------------------------------------------------

\300\ See Arnold Brodbeck et al. (2018), 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.

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 ($200 million in
2023 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-202402.pdf, last accessed
September 3, 2024). 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 2023-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(304.702-152.4)/152.4] *
100 = (152.302/152.4) * 100 = 0.9994 (rounded) * 100 = 99.94 percent
= 100 percent (rounded). Calculation of inflation-adjusted value:
$100 million in 1995 dollars * 2.00 = $200 million in 2023 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).

[[Page 95679]]

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 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 2025, based on the Secretary of Homeland
Security's determination, in consultation with the Secretary of Labor,
consistent with the FY 2024 Omnibus and Public Law 118-83. 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 2022, 2023, or 2024). 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, 2025 for the cap increase, and at the end of
January 24, 2026 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 334,914,895 (maximum
temporary increase of 0.0193 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 9, 2024).
Calculation: 64,716 additional visas/334,914,895 million people
in the United States = 0.0193 (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 105 of Division G, Title I of the Further
Consolidated Appropriations Act, 2024, Public Law 118-47, as extended
by sections 101(6) and 106 of Division A, Title I of the Continuing
Appropriations and Extensions Act, 2025, Public Law 118-83, Form ETA-
9142-B-CAA-9
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-9, 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-9 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 31, 2025. This process of
engaging the public and other

[[Page 95680]]

Federal agencies helps ensure that requested data can be provided in
the desired format, reporting burden (time 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 105 of Division G of
the FY 2024 Omnibus as extended by Public Law 118-83, 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 2025 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 2022,
2023, or 2024, 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 105 of Division G,
Title I of the Further Consolidated Appropriations Act, 2024, Public
Law 118-47, as extended by sections 101(6) and 106 of Division A, Title
I of the Continuing Appropriations and Extensions Act, 2025, Public Law
118-83.
Agency Form Number: Form ETA-9142-B-CAA-9.
Affected Public: Private Sector--businesses or other for-profits.
Total Estimated Number of Respondents: 4,373.
Average Responses per Year per Respondent: 1.
Total Estimated Number of Responses: 4,373.
Average Time per Response: 10.17 hours per application.
Total Estimated Annual Time Burden: 32,581 hours.
Total Estimated Other Costs Burden: $2,289,811.
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 105 of Division G, Title I of the Further Consolidated
Appropriations Act, 2024, Public Law 118-47, as extended by Public Law
118-83 (which expires on December 20, 2024). However, DHS estimates
that this temporary rule may result in approximately 4,325 additional
filings of Form I-907 in fiscal year 2025. The current OMB-approved
estimate of the number of annual respondents filing a Form I-907 is
815,773. DHS 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,

[[Page 95681]]

Reporting and recordkeeping requirements, Unemployment, Wages, Working
conditions.

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 December 2, 2024, through December 2, 2027, amend Sec.
214.2 by:
0
a. In table 3 to paragraph (h), adding an entry for ``32''; and
0
b. Adding paragraphs (h)(6)(xv) and (h)(32).
The additions read as follows:

Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.

* * * * *
(h) * * *

Table 3 to Paragraph (h)--Paragraph Contents
------------------------------------------------------------------------

-------------------------------------------------------------------------

* * * * * * *
(32) Change of employers and portability for H-2B workers (January 25,
2025 through January 24, 2026).
------------------------------------------------------------------------

* * * * *
(6) * * *
(xv) Special requirements for additional cap allocations under
Public Laws 118-47 and 118-83--(A) Public Law 118-47 and sections
101(6) and 106, Division A, Title I of Public Law 118-83--(1)
Supplemental allocation for returning workers. Notwithstanding the
numerical limitations set forth in paragraph (h)(8)(i)(C) of this
section, for fiscal year 2025 only, the Secretary has authorized up to
an additional 64,716 visas for aliens who may receive H-2B nonimmigrant
visas pursuant to section 105 of Division G, Title I of Public Law 118-
47, the Further Consolidated Appropriations Act, 2024, and sections
101(6) and 106, Division A, Title I of the Continuing Appropriations
and Extensions Act, 2025, Public Law 118-83. An alien may be eligible
to receive an H-2B nonimmigrant visa under this paragraph
(h)(6)(xv)(A)(1) if she or he is a returning worker. The term
``returning worker'' under this paragraph (h)(6)(xv)(A)(1) means a
person who was issued an H-2B visa or was otherwise granted H-2B status
in fiscal year 2022, 2023, or 2024. Notwithstanding Sec. 248.2 of this
chapter, an alien may not change status to H-2B nonimmigrant under this
paragraph (h)(6)(xv)(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 2025 employment
start dates on or before March 31, 2025.
(ii) Up to an additional 19,000 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2025 employment
start dates from April 1, 2025 to May 14, 2025.
(iii) Up to an additional 5,000 visas available for aliens with
employment start dates from May 15, 2025 to September 30, 2025.
(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 2025 only, and in
addition to the allocation described in paragraph (h)(6)(xv)(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 to section 105 of Division G, Title I of
Public Law 118-47, the Further Consolidated Appropriations Act, 2024,
and sections 101(6) and 106 of Division A, Title I of the Continuing
Appropriations and Extensions Act, 2025, Public Law 118-83, based on
petitions with FY 2025 employment start dates. Such workers are not
subject to the returning worker requirement in paragraph
(h)(6)(xv)(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)(xv)(A)(1) and must declare that they are
requesting these workers in the attestation Form ETA-9142-B-CAA-9
required under 20 CFR 655.68(a)(1). A petition requesting returning
workers under paragraph (h)(6)(xv)(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
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)(xv)(A)(2).
(B) Eligibility. In order to file a petition with USCIS under this
paragraph (h)(6)(xv), 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)(xv);
(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 2022, 2023, or 2024, 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)(xv)(A)(2) of this section;
(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)(xv)(B)(2)(i) through

[[Page 95682]]

(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 2025 supplemental allocations outlined in paragraph
(h)(6)(xv)(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 2025 supplemental
allocations outlined in 20 CFR 655.64(a) and 655.68(a), as a condition
for the approval of the H-2B petition. The employer must attest to this
on Form ETA-9142-B-CAA-9 and must further attest on Form ETA-9142-B-
CAA-9 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)(xv)(A)(1)(i) of this section requesting FY 2025 employment start
dates on or before March 31, 2025. USCIS will reject petitions filed
pursuant to paragraph (h)(6)(xv)(A)(1)(i) of this section requesting
employment start dates on or before March 31, 2025 that are received
after the applicable numerical limitation has been reached or after
September 15, 2025.
(2) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of
this section requesting FY 2025 employment start dates from April 1,
2025 to May 14, 2025. USCIS will reject petitions filed pursuant to
paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting employment
start dates from April 1, 2025 to May 14, 2025 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 15, 2025.
(3) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of
this section requesting FY 2025 employment start dates from May 15,
2025 and September 30, 2025. USCIS will reject petitions filed pursuant
to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting
employment start dates from May 15, 2025 to September 30, 2025 that are
received earlier than 45 days after the INA section 214(g) cap for the
second half FY 2025 has been met, or after the applicable numerical
limitation has been reached or after September 15, 2025.
(4) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(2)
requesting nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica with FY 2025 employment start dates.
USCIS will reject petitions filed pursuant to paragraph
(h)(6)(xv)(A)(2) of this section that have a date of need on or after
April 1, 2025, and are received earlier than 15 days after the INA
section 214(g) cap for the second half of FY 2025 is met, or after the
applicable numerical limitation has been reached or after September 15,
2025.
(5) USCIS will not approve a petition filed pursuant to this
paragraph (h)(6)(xv) on or after October 1, 2025.
(D) Numerical limitations under paragraphs (h)(6)(xv)(A)(1) and (2)
of this section. When calculating the numerical limitations under
paragraphs (h)(6)(xv)(A)(1) and (2) of this section as authorized under
section 105 of Division G, Title I of Public Law 118-47, the Further
Consolidated Appropriations Act, 2024, and sections 101(6) and 106 of
Division A, Title I of the Continuing Appropriations and Extensions
Act, 2025, Public Law 118-83, 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)(xv)(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)(xv)(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)(xv)(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)(xv)(A)(1) or (2) may be received (in other words, if
either of the numerical limits described in paragraph (h)(6)(xv)(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)(xv) expires on October 1, 2025.
(F) Non-severability. The requirement to file an attestation under
paragraph (h)(6)(xv)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xv), including,
but not limited to, the entirety of the numerical allocation provisions
at paragraphs (h)(6)(xv)(A)(1) and (2) of this section. In the event
that any part of this paragraph (h)(6)(xv) is enjoined or held to be
invalid by any court of competent jurisdiction, the remainder of this
paragraph (h)(6)(xv) 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)(xv), as
consistent with law.
* * * * *
(32) Change of employers and portability for H-2B workers. (i) This
paragraph (h)(32) relates to H-2B workers seeking to change employers
during the time period specified in paragraph (h)(32)(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, 2025, is authorized to begin
employment with the new petitioner after the petition described in this
paragraph (h)(32) is received by USCIS and before the new H-2B petition
is approved, but no

[[Page 95683]]

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,
2025, that remains pending on January 25, 2025, 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)(32)(i)(A) of this section, and subject to the requirements of 8 CFR
274a.12(b)(35), the new period of employment described in paragraph
(h)(32)(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)(32)(i)(B) of this section, the new period of employment described
in paragraph (h)(32)(i) of this section may last for up to 60 days
beginning on the later of either January 25, 2025, 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)(35) 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)(32) 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)(32):
(A) The alien must either:
(1) Have been in valid H-2B nonimmigrant status on or after January
25, 2025 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, 2025, but no later than January 24, 2026; 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,
2025; 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)(32) begins at 12 a.m. on January 25, 2025, and ends at
the end of January 24, 2026.
* * * * *

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 December 2, 2024, through December 2, 2027, amend Sec.
274a.12 by adding paragraph (b)(35) to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *
(b) * * *
(35)(i) Pursuant to 8 CFR 214.2(h)(32) 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, 2025, 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, 2025; or
(B) The later of January 25, 2025, or the start date of employment
indicated on the new H-2B petition, for petitions that are pending as
of January 25, 2025.
(ii) If USCIS adjudicates the new petition prior to the expiration
of the 60-day period in paragraph (b)(35)(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)(35) 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)(32) and paragraph (b)(35)(i) of this section begins at 12
a.m. on January 25, 2025, and ends at the end of January 24, 2026.
* * * * *

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), 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 December 2, 2024, through September 30, 2025, add Sec.
655.64 to read as follows:

[[Page 95684]]

Sec. 655.64 Special application filing and eligibility provisions for
Fiscal Year 2025 under the December 2, 2024, supplemental cap increase.

(a) An employer filing a petition with USCIS under 8 CFR
214.2(h)(6)(xv) to request H-2B workers with FY 2025 employment start
dates on or before September 30, 2025, must meet the following
requirements:
(1) The employer must attest on the Form ETA-9142-B-CAA-9 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)(xv). The employer's attestation
must identify the types of evidence the employer is relying on and will
retain to meet the irreparable harm standard. The employer must attest
that it 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. In
addition, the employer must attest that it will provide to DHS and/or
DOL upon request all of the documentation it relied upon and retained
as evidence that it meets the irreparable harm standard, including all
of the supporting documentation the employer committed to retain at the
time of filing on the employer's attestation form by selecting a
checkbox next to the applicable type of documentation in section C, and
the written statement describing how such evidence demonstrates
irreparable harm.
(2) The employer must attest on Form ETA-9142-B-CAA-9 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)(xv), have been issued an H-2B visa or otherwise granted H-
2B status during one of the last three (3) fiscal years (fiscal year
2022, 2023, or 2024), 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)(xv)(A)(2).
(3) The employer must attest on Form ETA-9142-B-CAA-9 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-9 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 AJC with 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, 2023,
until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xv)
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 95685]]

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-9 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 2025 supplemental allocations outlined in this
paragraph (a) and Sec. 655.68(a), as a condition for the approval of
the H-2B petition. Pursuant to this subpart A at Sec. 655.73 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. DOL may
consider the failure to respond to and/or comply with an investigation
or audit to be a willful misrepresentation of material fact or a
substantial failure to meet the terms and conditions of the H-2B
Application for Prevailing Wage Determination, or Application for
Temporary Employment Certification, resulting in an adverse agency
action on the employer, agent, or attorney, including assessment of a
civil money penalty, revocation of the temporary labor certification,
and/or program debarment for not less than 1 year or more than 5 years
from the date of the final agency decision under 20 CFR 655.70, 655.72,
655.73 or 29 CFR part 503. A debarred party will be disqualified from
filing any labor certification applications or labor condition
applications with the Department of Labor by, or on behalf of, the
debarred party for the same period of time set forth in the final
debarment decision.
(b) This section expires on October 1, 2025.
(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 December 2, 2024, through September 30, 2028, add Sec.
655.68 to read as follows:

Sec. 655.68 Special document retention provisions for Fiscal Years
2025 through 2028 under the Further Consolidated Appropriations Act,
2024, as extended by Public Law 118-83.

(a) An employer that files a petition with USCIS to employ H-2B
workers in fiscal year 2025 under authority of the temporary increase
in the numerical limitation under section 105 of Division G, Public Law
118-47, as extended by Public Law 118-83 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
and as attested to in the attestation form, 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)(xv), 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)(xv), have
been issued an H-2B visa or otherwise granted H-2B status during one of
the last three (3) fiscal years (fiscal year 2022, 2023, or 2024),
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)(xv)(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)(xv)(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, 2028.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
[FR Doc. 2024-28017 Filed 11-27-24; 8:45 am]
BILLING CODE 9111-97-P; 4510-FP-P

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