Rule2022-01866
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 28, 2022
Effective
January 28, 2022
Issuing agencies
Homeland Security DepartmentLabor DepartmentEmployment and Training Administration
Abstract
The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2022 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by authorizing the issuance of no more than 20,000 additional visas during FY 2022 for positions with start dates on or before March 31, 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. In addition to making additional visas available under the FY 2022 time-limited authority, DHS is exercising its general H-2B regulatory authority to again provide temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved.
Full Text
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<title>Federal Register, Volume 87 Issue 19 (Friday, January 28, 2022)</title>
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[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Rules and Regulations]
[Pages 4722-4762]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01866]
[[Page 4721]]
Vol. 87
Friday,
No. 19
January 28, 2022
Part II
Department of Homeland Security
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8 CFR Parts 214 and 274a
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To Change
Employers; Temporary Rule
Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Rules
and Regulations
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2708-21]
RIN 1615-AC77
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2022-0001]
RIN 1205-AC09
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
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: The Secretary of Homeland Security, in consultation with the
Secretary of Labor, is exercising his time-limited Fiscal Year (FY)
2022 authority and increasing the total number of noncitizens who may
receive an H-2B nonimmigrant visa by authorizing the issuance of no
more than 20,000 additional visas during FY 2022 for positions with
start dates on or before March 31, 2022, to those businesses that are
suffering irreparable harm or will suffer impending irreparable harm,
as attested by the employer on a new attestation form. In addition to
making additional visas available under the FY 2022 time-limited
authority, DHS is exercising its general H-2B regulatory authority to
again provide temporary portability flexibility by allowing H-2B
workers who are already in the United States to begin work immediately
after an H-2B petition (supported by a valid temporary labor
certification) is received by USCIS, and before it is approved.
DATES:
Effective dates: The amendments to title 8 of the Code of Federal
Regulations in this rule are effective from January 28, 2022 through
January 28, 2025. The amendments to title 20 of the Code of Federal
Regulations in this rule are effective from January 28, 2022 through
September 30, 2022, except for 20 CFR 655.69 which is effective from
January 28, 2022 through September 30, 2025.
Petition dates: DHS will not accept any H-2B petition under the
provisions related to the supplemental numerical allocation after March
31, 2022, and the provisions related to portability are only available
to petitioners and H-2B nonimmigrant workers initiating employment
through the end of July 27, 2022.
Comment dates: The Office of Foreign Labor Certification within the
U.S. Department of Labor will be accepting comments in connection with
the new information collection Form ETA-9142B-CAA-5 associated with
this rule until March 29, 2022.
ADDRESSES: You may submit written comments on the new information
collection Form ETA-9142B-CAA-5, identified by Regulatory Information
Number (RIN) 1205-AC09 electronically by the following method:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions on the website for submitting comments.
Instructions: Include the agency's name and the RIN 1205-AC09 in
your submission. All comments received will become a matter of public
record and will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Please do not include any personally identifiable
information or confidential business information you do not want
publicly disclosed.
FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a:
Charles L. Nimick, Chief, Business and Foreign Workers Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free
number).
Regarding 20 CFR part 655 and Form ETA-9142B-CAA-5: 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 2021 Omnibus and FY 2022 Public Laws 117-43 and 117-70
D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocation of Up to 20,000 Visas
C. Returning Workers
D. Returning Worker Exemption for Up to 6,500 Visas for
Nationals of Guatemala, El Salvador, and Honduras (Northern Triangle
Countries) and Haiti
E. Business Need Standard--Irreparable Harm and FY 2022
Attestation
F. Portability
G. COVID-19 Worker Protections
H. DHS Petition Procedures
I. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory Planning and Review) and
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. Congressional Review Act
H. National Environmental Policy Act
I. Paperwork Reduction Act
I. Executive Summary
FY 2022 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 immediate release of an additional 20,000 H-2B visas
for FY 2022 positions with start dates on or before March 31, 2022,
subject to certain conditions. The 20,000 visas are divided into two
allocations, as follows:
<bullet> 13,500 visas limited to returning workers, regardless of
country of nationality, in other words, those workers who were issued
H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021; and
<bullet> 6,500 visas reserved for nationals of El Salvador,
Guatemala, and Honduras (Northern Triangle countries) and Haiti as
attested by the petitioner (regardless of whether such nationals are
returning workers).
To qualify for the FY 2022 supplemental cap provided by this
temporary final rule, eligible petitioners must:
<bullet> Meet all existing H-2B eligibility requirements, including
obtaining an approved temporary labor certification (TLC) from DOL
before filing the Form
[[Page 4723]]
I-129, Petition for Nonimmigrant Worker, with USCIS;
<bullet> Properly file the Form I-129, Petition for Nonimmigrant
Worker, with USCIS on or before March 31, 2022, requesting an
employment start date on or before March 31, 2022;
<bullet> 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, or Haitian national and counted towards the 6,500
cap; and
<bullet> Agree to comply with all applicable labor and employment
laws, including health and safety laws pertaining to COVID-19, as well
as any rights to time off or paid time off to stay up-to-date with
COVID-19 vaccinations,\1\ or to reimbursement for travel to and from
the nearest available vaccination site, and notify the workers in a
language understood by the worker as necessary or reasonable, of equal
access of nonimmigrants to COVID-19 vaccines and vaccination
distribution sites.
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\1\ The term ``COVID-19 vaccinations'' also includes COVID-19
booster shots.
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Employers filing an H-2B petition 45 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:
<bullet> 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;
<bullet> Contact the nearest American Job Center serving the
geographic area where work will commence and request staff assistance
in recruiting qualified U.S. workers;
<bullet> Contact the employer's former U.S. workers, including
those the employer furloughed or laid off beginning on January 1, 2020,
and until the date the H-2B petition is filed, disclose the terms of
the job order and solicit their return to the job;
<bullet> 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; and
<bullet> 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 2022 supplemental
cap must retain documentation of compliance with the attestation
requirements for 3 years from the date the TLC was approved, 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.
Both DHS and DOL intend to conduct a significant number of post-
adjudication audits to ascertain compliance with the attestation
requirements of this TFR.
Falsifying information in attestation(s) can result not only in
penalties relating to perjury, but can also result 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-2 program. Falsifying information
also may subject a petitioner/employer to other criminal penalties.
DHS will not approve H-2B petitions filed in connection with the FY
2022 supplemental cap authority on or after October 1, 2022, but DHS
does not anticipate that petitions filed in connection with this rule
will remain pending until the end of FY 2022, given the March 31, 2022
filing deadline.
H-2B Portability
In addition to exercising time-limited authority to make additional
FY 2022 H-2B visas available for positions with start dates on or
before March 31, 2022, DHS is providing additional flexibilities to H-
2B petitioners under its general programmatic authority by allowing
nonimmigrant workers in the United States \2\ in valid H-2B status and
who are beneficiaries of non-frivolous H-2B petitions received on or
after January 28, 2022, or who are the beneficiaries of non-frivolous
H-2B petitions that are pending as of January 28, 2022, 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 180 days after the effective date of this
rule, in other words, after the date this rule is published in the
Federal Register. This provision clarifies portability eligibility for
beneficiaries of pending petitions.
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\2\ 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).
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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 the Department of
Homeland Security (DHS) for classification of prospective temporary
workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C.
1184(c)(1). Generally, DHS must approve this petition before the
beneficiary can be considered eligible for an H-2B visa. In addition,
the INA requires that ``[t]he question of importing any alien as [an H-
2B] nonimmigrant . . . in any specific case or specific cases shall be
determined by [DHS],\3\ 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
[[Page 4724]]
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 noncitizen \4\
not authorized for employment). The Secretary may designate officers or
employees to take and consider evidence concerning any matter which is
material or relevant to the enforcement of the INA. INA sections
287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8
U.S.C. 1225(d)(3).
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\3\ 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.
\4\ 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 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 H-2B petition for temporary
employment in the United States must be accompanied by 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. 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).
In order 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 this rule, and
except for certain professional athletes being traded among
organizations,\5\ 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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\5\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8
U.S.C. 1184(c)(14)(A)(i) to DOL. See DHS, Delegation of Authority to
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL
to the Wage and Hour Division (WHD), and is governed by regulations at
29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The INA sets the annual number of noncitizens who may be issued H-
2B visas or otherwise provided H-2B nonimmigrant status to perform
temporary nonagricultural work at 66,000, to be distributed semi-
annually 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). With certain
exceptions, 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, will be
available for employers seeking to hire H-2B workers during the second
half of the fiscal year.\6\ If insufficient petitions are approved to
use all H-2B numbers in a given fiscal year, the unused numbers cannot
be carried over for petition approvals for employment start dates
beginning on or after the start of the next fiscal year.
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\6\ 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 2022 is from October 1, 2021, through September
30, 2022.
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In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers
identified as returning workers from the annual H-2B cap of 66,000.\7\
A returning worker is defined by statute as an H-2B worker who was
previously counted against the annual H-2B cap during a designated
period of time. For example, Congress designated that returning workers
for FY 2016 needed to have been counted against the cap during FY 2013,
2014, or 2015.\8\ 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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\7\ 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.
\8\ 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 semi-annual visa allocation, the DOL regulatory
requirement that employers apply for a TLC 75 to 90 days before the
start date of work,\9\ and the DHS regulatory requirement that all H-2B
petitions be accompanied by an approved TLC,\10\ employers that wish to
obtain visas for their workers under the semi-annual 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
received sufficient H-2B petitions to reach the first half of the
fiscal year statutory cap has been
[[Page 4725]]
trending earlier in recent years.\11\ As of December 1, 2021, DOL's
Office of Foreign Labor Certification (OFLC) reports having certified
TLC applications for 65,717 H-2B workers with expected start dates
between October 1, 2021, and March 1, 2022.\12\ In addition, for fiscal
year 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--this year the last
receipt date for the first half of the fiscal year was September 30,
2021, and last year it was November 16, 2020--a month and a half
earlier.\13\ This early date continues to reflect an ongoing trend of
higher H-2B demand in the first half of the fiscal year compared to the
statutorily authorized level. Congress, in recognition of historical
and current demand: (1) Allowed for additional H-2B workers through the
FY 2016 reauthorization of the returning worker cap exemption; \14\ and
(2) for the last 6 fiscal years authorized supplemental caps under
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); \15\ section 105 of Division O of the
Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021),
and section 105 of Division O of the Consolidated Appropriations Act,
2021, Public Law 116-260 (FY 2021 Omnibus), and 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), which is discussed below.
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\9\ 20 CFR 655.15(b).
\10\ See 8 CFR 214.2(h)(5)(i)(A).
\11\ 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 <a href="https://www.uscis.gov/archive/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</a> (Jan. 13, 2017);
<a href="https://www.uscis.gov/archive/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</a> (Dec. 21, 2017); <a href="https://www.uscis.gov/news/news-releases/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</a> (Dec. 12,
2018); <a href="https://www.uscis.gov/news/news-releases/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</a> (Nov. 20, 2019); <a href="https://www.uscis.gov/news/alerts/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</a> (Nov. 18, 2020).
\12\ Information provided by DOL OFLC via email sent December 2,
2021.
\13\ 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 <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Oct 12, 2021). November 16, 2020 was the last receipt
date for the first half of FY 2020. See <a href="https://www.uscis.gov/news/alerts/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</a> (Nov. 18,
2020).
\14\ INA section 214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as
revised by the Consolidated Appropriations Act of 2016 (Pub. L. 114-
113). This program expired on September 30, 2016.
\15\ DHS, after consulting with DOL, did not publish a temporary
final rule supplementing the H-2B cap for FY 2020 pursuant to the
Further Consolidated Appropriations Act, 2020, Public Law 116-94.
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C. FY 2021 Omnibus and FY 2022 Public Laws 117-43 and 117-70
On December 27, 2020, then-President Donald Trump signed the FY
2021 Omnibus which contains a provision, section 105 of Division O
(section 105), 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. Specifically, section 105
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 in [FY] 2021 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 in FY 2021 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.\16\ The Secretary of
Homeland Security consulted with the Secretary of Labor and, on May 25,
2021, published a temporary final rule implementing the authority
contained in section 105.\17\
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\16\ The highest number of returning workers in any such fiscal
year was 64,716, which represents the number of beneficiaries
covered by H-2B returning worker petitions that were approved for FY
2007. DHS also considered using an alternative approach, under which
DHS measured the number of H-2B returning workers admitted at the
ports of entry (66,792 for FY 2007).
\17\ Temporary Rule, Exercise of Time-Limited Authority To
Increase the Fiscal Year 2021 Numerical Limitation for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking To Change Employers, 86 FR 28198 (May 25,
2021).
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On December 3, 2021, Congress passed Public Law 117-70,\18\ which
authorizes the Secretary of Homeland Security to increase the number of
H-2B visas available to U.S. employers in FY 2022 under the same terms
and conditions authorized in section 105 of Division O of the FY 2021
Omnibus. The authority in Public Law 117-70 permits the Secretary of
Homeland Security, after consultation with the Secretary of Labor, to
provide additional H-2B visas for FY 2022, notwithstanding the
otherwise-established statutory numerical limitation set forth in the
INA, for eligible employers whose employment needs for FY 2022 cannot
be met under the general fiscal year statutory cap.\19\ Under the
Public Law 117-70 authority, DHS and DOL are jointly publishing this
temporary final rule to authorize the issuance of no more than 20,000
additional visas during FY 2022 for positions with start dates on or
before March 31, 2022, 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 2022 supplemental cap expires at the end of
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with the FY 2022
[[Page 4726]]
supplemental cap authority on or after October 1, 2022. Given the March
31, 2022 filing cutoff, USCIS will process H-2B petitions filed under
this rule that request premium processing in line with the USCIS
premium processing rules,\20\ and all other H-2B petitions filed under
this rule in the normal manner. Accordingly, DHS does not anticipate
that petitions filed in connection with this rule will remain pending
until the end of FY 2022.
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\18\ Public Law 117-70 Further Extending Government Funding Act,
Division A ``Further Continuing Appropriations Act, 2022'', section
101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in
section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law
117-43 Extending Government Funding and Delivering Emergency
Assistance Act, Division A ``Continuing Appropriations Act, 2022'',
Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and
authorities, including authority under section 105 of title I of
Division O of Public Law 116-260, through December 3, 2021.
\19\ 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 2022 subject to the same terms and
conditions as the FY 2021 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2021 in the FY 2021 Omnibus.
\20\ See 8 CFR 103.7(e) (Oct. 1, 2020). This section was amended
by a DHS rule published in the Federal Register on August 3, 2020 at
85 FR 46788 titled U.S. Citizenship and Immigration Services Fee
Schedule and Changes to Certain Other Immigration Benefit Request
Requirements with an effective date of October 2, 2021. That rule
was preliminarily enjoined. DHS is complying with the terms of the
preliminary injunctions and is not enforcing it. See U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements; Notification
of Preliminary Injunction, 86 FR 7493 (Jan. 18, 2021).
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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 that set forth
in section 214 of the INA. The previous four statutory provisions were
materially identical to section 105 of the FY 2021 Omnibus, which is
the same authority provided for FY 2022 by the recent continuing
resolutions. During each fiscal year from FY 2017 through FY 2019, the
Secretary of Homeland Security, after consulting with the Secretary of
Labor, determined that the needs of some American businesses could not
be satisfied 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.\21\ A total of 12,294 H-2B workers were approved for H-
2B classification under petitions filed pursuant to the FY 2017
supplemental cap increase.\22\ 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.\23\ The vast majority of the H-2B
petitions received under the FY 2017 and FY 2018 supplemental caps
requested premium processing \24\ and were adjudicated within 15
calendar days.
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\21\ Temporary Rule, 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); Temporary Rule, 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).
\22\ USCIS data pulled from the Computer Linked Application
Information Management System (CLAIMS3) database on Mar. 15, 2021.
General information about CLAIMS 3 is available at <a href="https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-system-claims-3-and">https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-system-claims-3-and</a>.
\23\ 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. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
\24\ 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. 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 3 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.\25\ 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 32,666.\26\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\25\ Temporary Rule, 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).
\26\ 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. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
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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
fiscal year.\27\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\28\ On April 2, 2020, DHS announced that
the rule to increase the H-2B cap was on hold due to economic
circumstances, and no additional H-2B visas would be released until
further notice.\29\ DHS also noted that the Department of State had
suspended routine visa services.\30\
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\27\ DHS to Improve Integrity of Visa Program for Foreign
Workers, March 5, 2020, <a href="https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers">https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers</a>.
\28\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\29\ <a href="https://twitter.com/DHSgov/status/1245745115458568192?s=20">https://twitter.com/DHSgov/status/1245745115458568192?s=20</a>.
\30\ Id.
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In FY 2021, although the COVID-19 public health emergency remained
in effect, DHS in consultation with DOL determined it was appropriate
to increase the H-2B cap coupled with additional protections (for
example, post-adjudication audits, investigations, and compliance
checks), for FY 2021 based on the demand for H-2B workers in the second
half of FY 2021, as well as other factors that were occurring at that
time, including the 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.\31\ 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 Salvadoran, Guatemalan, and
[[Page 4727]]
Honduran nationals, who were exempt from the returning worker
requirement. As of August 13, 2021, USCIS received enough petitions for
returning workers to reach the additional 22,000 H-2B visas made
available under the FY 2021 H-2B supplemental visa temporary final
rule.\32\
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\31\ 86 FR 28198 (May 25, 2021).
\32\ <a href="https://www.uscis.gov/news/alerts/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</a> (Aug. 19,
2021).
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Similarly, although the COVID-19 public health emergency is still
in effect, DHS in consultation with DOL believes that it is appropriate
to increase the H-2B cap for FY 2022 positions with start dates on or
before March 31, 2022, based on the demand for H-2B workers in the
first half of FY 2022, recent and continuing economic growth, increased
labor demand,\33\ and increased visa processing capacity by the
Department of State. DHS believes it is appropriate to limit the
increase for the FY 2022 H-2B cap provided in this temporary final rule
to those petitions with start dates on or before March 31, 2022, as
data clearly indicates an immediate need for supplemental H-2B visas in
FY 2022 for positions with start dates in the first half of the fiscal
year, as demonstrated by the FY 2022 first half cap being met even
prior to the start of the fiscal year, the earliest the first half H-2B
cap has been reached in more than a decade. DHS and DOL also believe
that it is appropriate to couple this cap increase with additional
workers protections, as described below.
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\33\ The term ``increased labor demand'' in this context relies
on the most recently released figure from the Bureau of Labor
Statistics (BLS) survey at the time this TFR was written. The BLS
Job Openings and Labor Turnover Survey (JOLTS) reports 11 million
job openings in October 2021 (compared to 6.8 million job openings
in October 2020). See Bureau of Labor Statistics, Job Openings and
Labor Turnover Survey released on December 8, 2021 at <a href="https://www.bls.gov/news.release/archives/jolts_12082021.htm">https://www.bls.gov/news.release/archives/jolts_12082021.htm</a>.
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D. Joint Issuance of the Final Rule
As they did in FY 2017, FY 2018, FY 2019, and FY 2021, DHS and DOL
(the Departments) have determined that it is appropriate to jointly
issue this temporary final rule.\34\ 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.\35\ Although DHS and DOL each have authority
to independently issue rules implementing their respective duties under
the H-2B program,\36\ 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).\37\
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\34\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84
FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021).
\35\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
983 F.3d 671 (4th Cir. 2020), cert. denied, ---- S. Ct. ----, 2021
WL 5043596 (2021); see also Temporary Non-Agricultural Employment of
H-2B Aliens in the United States, 80 FR 24041, 24045 (Apr. 29,
2015).
\36\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\37\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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III. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that the needs of some U.S.
employers cannot be satisfied in the first half of FY 2022 with U.S.
workers who are willing, qualified, and able to perform temporary
nonagricultural labor. In accordance with the FY 2022 continuing
resolution extending the authority provided in section 105 of the FY
2021 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 for positions with start dates on
or before March 31, 2022 up to 20,000 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 they did in connection with the FY 2021 H-2B supplemental visa
temporary final rule, and consistent with their existing authority, DHS
and DOL intend to conduct a significant number of audits with respect
to petitions filed under this, and previous TFRs, requesting
supplemental H-2B visas, which may be selected at the discretion of the
Departments, 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. If an employer's documentation does not meet the irreparable
harm standard, or if the employer fails to provide evidence
demonstrating irreparable harm or comply with the audit process, this
may be considered a substantial violation resulting in an adverse
agency action on the employer, including revocation of the petition
and/or TLC or program debarment. Some audits conducted of employers
that received visas under the supplemental cap in FY 2021 have revealed
concerns surrounding their documentation of irreparable harm,
recruitment efforts, and compliance with the audit process, which may
warrant further review and action.
The Secretary of Homeland Security has also again determined, as in
FY 2021, 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 that the supplemental visas will be limited to returning
workers, with the exception that up to 6,500 of the 20,000 visas will
be exempt from the returning worker requirement and will be reserved
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras,
and Haiti.\38\ As in FY 2021, these H-2B visas are being reserved for
nationals of El Salvador, Guatemala, and Honduras to once again further
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 individuals
from the Northern Triangle countries.\39\ DHS observed robust employer
interest in response to the FY 2021 H-2B supplemental visa allocation
for Salvadoran, Guatemalan, and Honduran nationals, with USCIS
approving petitions on behalf of 6,805 beneficiaries
[[Page 4728]]
under this allocation.\40\ In addition, DHS and the Biden
administration have continued to conduct outreach efforts promoting the
H-2B program, among others, as a lawful pathway for nationals of El
Salvador, Guatemala, and Honduras to work in the United States. The
decision to again reserve an allocation of supplemental H-2B visas for
these nationals, while providing an exemption from the returning worker
requirement, will provide ongoing support for the President's vision of
expanding access to lawful pathways for protection and opportunity for
individuals from the Northern Triangle countries.\41\
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\38\ 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 2021 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); FY 2021 Omnibus div. O, sec. 105 (``Notwithstanding the
numerical limitation set forth in section 214(g)(1)(B) of the [INA]
. . . .'').
\39\ 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, <a href="https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf">https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf</a>.
\40\ While USCIS approved a greater number of beneficiaries from
the Northern Triangle countries than the 6,000 visas allocated under
the FY 2021 supplemental cap for those countries, the Department of
State approved 3,065 visas on behalf of nationals from those
countries. See DHS, USCIS, Office of Performance and Quality, SAS
PME C3 Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021,
TRK 8598. 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 Norther Triangle countries with U.S.
recruiters/employers on an expedited timeline. DHS anticipates that
the normalization of consular services, easing of travel
restrictions, the issuance of this rule earlier in the fiscal year,
as well as the fact that this is the second year that DHS will make
a specific allocation available for workers from the Northern
Triangle countries, will contribute to greater utilization of
available visas under this allocation during FY 2022.
\41\ Id.
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Additionally, with this temporary final rule, the 6,500
supplemental cap allocation exempted from the returning worker
requirement is now also available to nationals of Haiti. In also
providing this supplemental cap reservation to nationals of Haiti, DHS
recognizes the recent challenges, such as political instability,
increasing gang-related violence, and a 7.2 magnitude earthquake that
have occurred in that country, and believes that the H-2B program will
provide a stabilizing lawful channel for Haitian nationals seeking to
enter the United States for economic opportunities. As DHS emphasized
in its recent notice adding Haiti to the list of countries whose
nationals are eligible to participate in the H-2A and H-2B programs,
sustainable development and the stability of Haiti is vital to the
interests of the United States as a close partner and neighbor.\42\
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\42\ 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, <a href="https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf">https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf</a> (Nov. 10, 2021).
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Similar to the temporary final rules for the FY 2019 and FY 2021
supplemental caps, the Secretary of Homeland Security has also
determined to limit the supplemental visas to H-2B returning workers,
in other words, workers who were issued H-2B visas or were otherwise
granted H-2B status in FY 2019, 2020, or 2021,\43\ unless the employer
indicates on the new attestation form that it is requesting workers who
are nationals of one of the Northern Triangle countries or Haiti and
who are therefore counted towards the 6,500 allotment regardless of
whether they are new or returning workers. If the 6,500 returning
worker exemption cap for Salvadoran, Guatemalan, Honduran, and Haitian
nationals has been reached and visas remain available under the
returning worker cap, the petition would be rejected and any fees
submitted returned to the petitioner. In such a case, a petitioner may
continue to request workers who are nationals of one of the Northern
Triangle countries or Haiti, 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 2019, 2020, or 2021. Unlike
the temporary final rule for the FY 2021 supplemental cap, if the 6,500
returning worker exemption cap for nationals of the Northern Triangle
countries and Haiti remains unfilled, DHS will not make unfilled visas
reserved for Northern Triangle countries and Haiti available to the
general returning worker cap.
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\43\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2019, 2020,
or 2021. Additionally they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2019, 2020, or 2021,
or the supplemental caps in FY 2019 or FY 2021.
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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. 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.\44\ U.S. businesses, chambers of commerce, employer
organizations, and state and local elected officials have also
expressed concerns to the DHS and Labor Secretaries regarding the
unavailability of H-2B visas after the statutory cap was reached.\45\
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\44\ See the docket for this rulemaking for access to these
letters.
\45\ Id.
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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.\46\ While the previous standard focused on avoidance
of irreparable harm in the future, this rule recognizes that some
employers may already be suffering irreparable harm, that is severe and
permanent financial loss, and so the aim of the revised irreparable
harm standard with respect to those employers that will benefit from
this TFR is to prevent further severe and permanent financial loss by
allowing these employers to also obtain H-2B workers. 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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\46\ See, e.g., Impacts of the H-2B Visa Program for Seasonal
Workers on Maryland's Seafood Industry and Economy, Maryland
Department of Agriculture Seafood Marketing Program and Chesapeake
Bay Seafood Industry Association (March 2, 2020), available at
<a href="https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf">https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf</a> (last
visited Dec. 1, 2021).
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The decision to afford the benefits of this temporary cap increase
to U.S. businesses that need H-2B workers because they are suffering
irreparable harm already or will suffer impending irreparable harm, and
that will comply with additional worker protections, rather than
applying the cap increase to any and all businesses seeking temporary
workers, is consistent with DHS's time-limited authority to increase
the cap, as explained below. The Secretary of Homeland Security, in
implementing section 105 and determining the scope of any such
increase, has broad discretion, following consultation with the
Secretary of Labor, to identify the business needs that are most
relevant, while bearing in mind the need to protect U.S. workers.
Within that context, for the below reasons, the Secretary of Homeland
Security has determined to allow an overall increase of up to 20,000
additional visas, for positions with start dates on or before March 31,
2022, solely for the businesses facing
[[Page 4729]]
permanent, severe financial loss or those who will face such loss in
the near future.
First, DHS interprets section 105's reference to ``the needs of
American businesses'' 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 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
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.
Second, the approach set forth in this rule limits the increase in
a way that is similar to the implementation of the supplemental caps in
fiscal years 2017, 2018, 2019, and 2021, and provides protections
against adverse effects on U.S. workers that may result from a cap
increase. Although there is not enough time to conduct a more full and
formal quantitative analysis of such adverse effects, the Secretary has
determined that in the particular circumstances presented here, 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.
As noted above, to address the increased and, in some cases,
impending need for H-2B workers in positions with start dates on or
before March 31, 2022, the Secretary of Homeland Security has
determined that employers may petition for supplemental visas on behalf
of up to 13,500 workers who were issued an H-2B visa or were otherwise
granted H-2B status in FY 2019, 2020, or 2021.\47\ The last 3 fiscal
years' temporal limitation in the returning worker definition in this
temporary rule mirrors the temporal limitation Congress imposed in
previous returning worker statutes.\48\ Such workers (in other words,
those who recently participated in the H-2B program) have previously
obtained H-2B visas and therefore have been vetted by DOS, would have
departed the United States after their authorized period of stay as
generally required by the terms of their nonimmigrant admission, and
therefore may obtain their new visas through DOS and begin work more
expeditiously.\49\ DOS has informed DHS that, in general, H-2B visa
applicants who are able to demonstrate clearly that they have
previously abided by the terms of their status granted by DHS have a
higher visa issuance rate when applying to renew their H-2B visas, as
compared with the overall visa applicant pool from a given country.
Furthermore, consular officers are authorized to waive the in-person
interview requirement for certain H-2B applicants seeking to renew
their visa within a specific timeframe of that visa's expiration, and
who otherwise meet the strict limitations set out under INA section
222(h), 8 U.S.C. 1202(h). We note that DOS has, in response to the
COVID-19 pandemic, expanded interview waiver eligibility to certain
first-time H-2 applicants \50\ potentially allowing such applicants to
be processed with increased efficiency. However, there is no indication
that this temporary measure will necessarily affect the overall visa
issuance rates of applicants, which DOS has indicated is higher for
returning workers who can demonstrate prior compliance with the
program.
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\47\ DHS believes that this temporal limitation is appropriate
even though H-2B visa issuances and admissions were lower in FY 2020
than in previous years, likely due to the impacts of COVID-19, as
DHS believes that there will still be a sufficient number of
returning workers available to U.S. employers to use the 13,500
additional visas authorized by this rule.
\48\ 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.
\49\ 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. In addition, U.S. Department of State consular officers
temporarily have flexibility to waive the personal appearance of
certain nonimmigrant visa applicants. See, e.g., 86 FR 70735 (Dec.
13, 2021); see also DOS website, Important Announcement on Waivers
of the Interview Requirement for Certain Nonimmigrant Visas, <a href="https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html">https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html</a> (last updated Dec. 23, 2021).
\50\ Some consular sections waive the in-person interview
requirement for certain H-2B applicants and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The authority allowing for waiver of interview of certain
H-2 (temporary agricultural and non-agricultural workers) applicants
is extended through the end of 2022. DOS, Important Announcement on
Waivers of the Interview Requirement for Certain Nonimmigrant Visas,
<a href="https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html">https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html</a> (last updated Dec. 23, 2021).
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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 after 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 nonimmgrant 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.
In allocating up to 6,500 H-2B visas to nationals of the Northern
Triangle countries and Haiti while making the remaining allocation of
up to 13,500 H-2B visas available to qualified returning workers,
irrespective of their country of nationality, this rule strikes a
balance between furthering the U.S. foreign policy interests of
creating a comprehensive, whole-of-government framework--of which this
allocation is one piece--to address and manage migration from the
Northern Triangle countries and Haiti and addressing the needs of
certain H-2B employers that are suffering irreparable harm or will
suffer impending irreparable harm. The United States has strong foreign
policy interests in allocating up to 6,500 supplemental visas only to
nationals of the Northern Triangle countries or Haiti and exempting
such persons from the returning worker requirement. The Secretary of
Homeland Security has determined that both the 6,500 limitation and the
exemption from the returning worker requirement for nationals of the
Northern Triangle countries is again beneficial in light of
[[Page 4730]]
President Biden's February 2, 2021 E.O. 14010, which instructed the
Secretary of Homeland Security and the Secretary of State to implement
measures to enhance access for individuals of the Northern Triangle
countries to visa programs, as appropriate and consistent with
applicable law, and to work toward addressing some of the causes of and
managing migration throughout North and Central America. In response to
this executive order, DHS seeks to promote and improve safety,
security, and economic stability throughout the North and Central
American region, and work with these countries to stem the flow of
irregular migration in the region and enhance access to visa programs.
DHS believes that including nationals of Haiti in this allocation of up
to 6,500 supplemental visas will further promote and improve safety,
security, and economic stability throughout this region, and is in the
interests of the United States as a close partner and neighbor.
The exemption from the returning worker requirement recognizes the
small numbers of individuals, approximately 4,400 per year, from the
three Northern Triangle countries and Haiti who were previously granted
H-2B visas in recent years.\51\ Absent this exemption, there may be
insufficient workers from these countries, which means that the rule
might thereby fail to achieve its intended policy objective to provide
additional temporary foreign workers for U.S. employers that are
suffering irreparable harm or will suffer impending irreparable harm,
while also enhancing access to the H-2B visa classification for
individuals from the Northern Triangle countries and Haiti.
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\51\ DOS issued a combined total of approximately 26,630 H-2B
visas to nationals of the Northern Triangle countries and Haiti from
FY 2015 through FY 2020, or approximately 4,400 per year. DOS
Monthly NIV Issuances by Nationality and Visa Class; <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html</a> (last visited Dec. 03, 2021).
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Finally, unlike the temporary final rule for the FY 2021
supplemental cap, this rule does not make available unfilled visas from
the allocation for nationals of the Northern Triangle countries and
Haiti to the general supplemental cap for returning workers. As with
the supplemental cap for returning workers, USCIS will stop accepting
petitions received under the allocation for the Northern Triangle
countries and Haiti after March 31, 2022. This end date is intended to
provide H-2B employers ample time, should they choose, to petition for,
and bring in, workers under the allocation for the Northern Triangle
countries and Haiti. 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.
For all petitions filed under this rule and the H-2B program,
generally, employers must establish, among other requirements, that
insufficient qualified U.S. workers are available to fill the
petitioning H-2B employer's job opportunity and that the foreign
worker's employment in the job opportunity will not adversely affect
the wages or working conditions of similarly-employed U.S. workers. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D); 20 CFR 655.1. To meet this standard of protection for U.S. workers
and, in order to be eligible for additional visas under this rule,
employers must have applied for and received a valid TLC in accordance
with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20 CFR part 655, subpart A.
Under DOL's H-2B regulations, TLCs are valid only for the period of
employment certified by DOL and expire on the last day of authorized
employment. 20 CFR 655.55(a).
In order to have a valid TLC, therefore, the employment start date
on the employer's H-2B petition must not be different from the
employment start date certified by DOL on the TLC. See 8 CFR
214.2(h)(6)(iv)(D). Under generally applicable DHS regulations, the
only exception to this requirement applies when an employer files an
amended visa 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.
In sum, this rule increases the FY 2022 numerical limitation by up
to 20,000 visas for positions with start dates on or before March 31,
2022, 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 Northern Triangle countries or Haiti counted towards the
6,500 allocation that are exempt from the returning worker limitation.
These provisions are each described in turn below.
B. Numerical Increase and Allocation of Up to 20,000 Visas
The increase of up to 20,000 visas will help address the urgent
needs of eligible employers for additional H-2B workers for those
employers with employment needs for start dates on or before March 31,
2022.\52\ As noted above, DHS is limiting the numerical increase to
those petitions with start dates on or before March 31, 2022, because
current data supports the need for additional H-2B workers with start
dates during that timeframe.\53\ The determination to allow up to
20,000 additional H-2B visas reflects a balancing of a number of
factors including the demand for H-2B visas for the first half of FY
2022; current economic conditions; the general trend of increased
demand for H-2B visas from FY 2017 to FY 2021; H-2B returning worker
data; the amount of time remaining for employers to hire and obtain H-
2B workers with start dates on or before March 31, 2022; concerns from
Congress, state and local elected officials, U.S. businesses, chambers
of commerce, and employer organizations expressing a need for
additional H-2B workers; and the objectives of E.O. 14010. 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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\52\ 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 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 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.
\53\ On January 4, 2022, DOL's Office of Foreign Labor
Certification announced it had received a total of 7,875 H-2B
temporary labor certification applications requesting 136,555
workers with the start date of work of April 1, 2022. See <a href="https://www.dol.gov/agencies/eta/foreign-labor">https://www.dol.gov/agencies/eta/foreign-labor</a>. DHS is limiting the
supplemental H-2B visas provided by this TFR to those employers with
start dates of need on or before March 31, 2022, for the reasons
described in this TFR.
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Section 105 of the FY 2021 Omnibus 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
[[Page 4731]]
2021.\54\ 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 in this temporary final rule
for those petitioners with start dates on or before March 31, 2022
during FY 2022, 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
would be appropriate to make available up to 20,000 additional visas
under the FY2022 supplemental cap authority. The Secretary further
considered 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
individuals from the Northern Triangle countries, as well as to address
some of the root causes of and manage migration throughout both North
and Central America, including Haiti, and determined that reserving up
to 6,500 of the up to 20,000 additional visas and exempting this number
from the returning worker requirement for nationals from the Northern
Triangle countries or Haiti would be appropriate.
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\54\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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In past years, the number of beneficiaries covered by H-2B
petitions filed exceeded the number of additional visas allocated under
the three most 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 would be accepted under the supplemental cap. Of the
petitions that were selected, USCIS issued approvals for 15,672
beneficiaries.\55\ 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 would be accepted 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 of workers from Northern Triangle countries.\56\
Of the petitions received, USCIS issued approvals for 30,211
beneficiaries, including approvals for 6,805 beneficiaries under the
allocation for the nationals of the Northern Triangle.\57\
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\55\ 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.
\56\ On June 3, 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 Triangle countries. See <a href="https://www.uscis.gov/news/alerts/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</a> (June 3, 2021). On July 23, 2021,
USCIS announced that, because it did not receive enough petitions to
reach the allocation for the Northern Triangle countries by the July
8 filing deadline, the few remaining visas were available to H-2B
returning workers regardless of their country of origin. See <a href="https://www.uscis.gov/news/alerts/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</a> (July 23, 2021).
\57\ 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.
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Data for the first half of FY 2022 clearly indicate an immediate
need for supplemental H-2B visas in FY 2022 for positions with start
dates between October 1, 2021 through March 31, 2022. As of December 1,
2021, DOL's Office of Foreign Labor Certification (OFLC) reports having
certified 2,469 TLC applications with requested dates of need in the
first half of FY 2022 for 65,717 H-2B visas.\58\ Furthermore, as noted
above, USCIS received a sufficient number of H-2B petitions to reach
the first half of the FY 2022 fiscal year statutory cap prior to the
start of the fiscal year.\59\
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\58\ Processing Times, <a href="https://flag.dol.gov/processingtimes">https://flag.dol.gov/processingtimes</a>
(last visited Dec. 2, 2021).
\59\ 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 Sept. 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 First Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/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</a> (Oct 12, 2021).
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In addition, although the public health emergency due to COVID-19
still exists,\60\ DHS believes that issuing additional H-2B visas for
positions with start dates on or before March 31, 2022 is appropriate
in the context of the nation's economic recovery from the ongoing
pandemic. In March 2020, the U.S. labor market was severely affected by
the onset of the COVID-19 pandemic, pushing the national unemployment
rate to near record levels and resulting in millions of U.S. workers
being displaced from work. In fiscal year 2021, approximately 88
percent of H-2B filings were for positions within just 5 sectors.\61\
NAICS 56 (Administrative and Support and Waste Management and
Remediation Services) accounted for 41.7% of filings, NAICS 71
(Accommodation and Food Services) accounted for 17.1%, NAICS 72 (Arts,
Entertainment, and Recreation) accounted for 14.5%, NAICS 23
(Construction) accounted for 9.5%, and NAICS 11 (Agriculture, Forestry,
Fishing and Hunting) accounted for 5% of filings.
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\60\ See HHS Renewal of Determination That A Public Health
Emergency Exists, <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx</a> (Oct. 15, 2021).
\61\ USCIS analysis of DOL OLFC Performance data.
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Within these industries, DOL data show increased labor demand over
the last year. More specifically, DOL data from the Job Openings and
Labor Turnover Survey (JOLTS) show that the rate of job openings \62\
increased for all 5 industries between October 2020 and October 2021.
The job opening rate for NAICS 56 \63\ increased from 5.7 to 7.9
[[Page 4732]]
while the job opening rate for NAICS 71 went from 5.2 to 7.6. The job
opening rate for NAICS 72 went from 6.3 to 10.7 while the rate for
NAICS 23 went from 3.3 to 5.2. The job opening rate for NAICS 11 \64\
increased from 3.4 to 5.3.
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\62\ The JOLTS News Release states that the job openings rate is
calculated by dividing the number of job openings by the sum of
employment and job openings and multiplying that quotient by 100.
See <a href="https://www.bls.gov/news.release/jolts.htm">https://www.bls.gov/news.release/jolts.htm</a>.
\63\ JOLTS data presented here are for the Professional and
Business Services Supersector, which is comprised of NAICS 54, NAICS
55 and NAICS 56. See <a href="https://www.bls.gov/iag/tgs/iag60.htm">https://www.bls.gov/iag/tgs/iag60.htm</a>. 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 November 2021, 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 December 22, 2021.
\64\ JOLTS data presented here are for Mining and Logging, which
is part of the Natural Resources and Mining Supersector. This
supersector is comprised of NAICS 11 (Agriculture, Forestry, Fishing
and Hunting) and NAICS 21 (Mining, Quarrying, and Oil and Gas
Extraction). See <a href="https://www.bls.gov/iag/tgs/iag10.htm">https://www.bls.gov/iag/tgs/iag10.htm</a>. As such, the
data presented here should be understood to be the best possible
proxy for changes in NAICS 11 and not a direct measurement of any
specific change in the actual underlying sectors. The latest data
available, for November 2021, from the Department of Labor's Current
Employment Statistics program indicates that NAICS 11 accounted for
just under 7% of employment in Mining and Logging.
Year-Over-Year Change in Job Opening Rate \65\
----------------------------------------------------------------------------------------------------------------
NAICS 11 NAICS 23 NAICS 56 NAICS 71 NAICS 72
----------------------------------------------------------------------------------------------------------------
1.9 1.9 2.2 2.4 4.4
----------------------------------------------------------------------------------------------------------------
The increase in the job openings rate across these industries is a
clear indication of increased 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 increased job
openings in these industries.
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\65\ Year-over-year change was calculated as the difference
between the October 2021 value for the respective industry and the
October 2020 value. See <a href="https://www.bls.gov/jlt/#data">https://www.bls.gov/jlt/#data</a>. All data
accessed December 22, 2021.
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In addition, DOS recently announced that, as worldwide restrictions
due to the COVID-19 pandemic begin to ease, and in line with the
President's proclamation regarding the safe resumption of international
travel,\66\ the Bureau of Consular Affairs is focusing on reducing wait
times for all consular services at embassies and consulates overseas
while also protecting health and safety of staff and applicants.\67\ We
note, however, that amid growing concern about the COVID Omicron
variant, a highly mutated form of the COVID virus that is now
documented in dozens of countries and numerous states within the U.S.,
the Centers for Disease Control and Prevention (CDC) recently tightened
testing requirements for international air travel to the United States,
which may have an impact on such travel.\68\ Given the level of demand
for H-2B workers, the continued and projected economic recovery, the
continued and projected job growth, and the resumption of visa
processing services, DHS believes it is appropriate at this time to
release additional visas for positions with start dates on or before
March 31, 2022. Further, DHS believes that 20,000 is an appropriate
number of visas for the reasons discussed above.
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\66\ Proclamation 10294 of Oct. 25, 2021, Advancing the Safe
Resumption of Global Travel During the COVID-19 Pandemic, 86 FR
59603 (Oct. 28, 2021).
\67\ DOS, Visa Services Operating Status Update, <a href="https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html">https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html</a> (Nov. 19, 2021).
\68\ See CDC, Requirement for Proof of Negative COVID-19 Test or
Documentation of Recovery from COVID-19, Requirement for Proof of
Negative COVID-19 Test or Documentation of Recovery from COVID-19
(Dec. 2, 2021). Changes made prior to the emergence of Omicron also
reflect the evolving nature of the pandemic and potential impacts on
international air travel by H-2B workers. See 86 FR 59603 (Oct. 28,
2021) (Presidential Proclamation); see also 86 FR 61224 (Nov. 5,
2021) (implementing CDC Order).
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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 before March 31, 2022. Specifically, the
following scenarios may still occur:
<bullet> The 13,500 supplemental cap visas limited to returning
workers that will be immediately available for employers will be
reached before March 31, 2022.
<bullet> The 6,500 supplemental cap visas limited to nationals of
the Northern Triangle countries and Haiti will be reached before March
31, 2022.
DHS regulation, 8 CFR 214.2(h)(6)(xi)(E), reaffirms the use of the
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, 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 13,500 supplemental cap
visas for returning workers is reached before March 31, 2022; or the
6,500 visas limited to nationals of the Northern Triangle countries and
Haiti is reached before March 31, 2022. Finally, similar to the
processes applicable to the H-2B semi-annual 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
Similar to the temporary increases in FY 2019 and FY 2021, the
Secretary of Homeland Security has determined that the supplemental
visas should be granted to returning workers from the past 3 fiscal
years, in order to meet the immediate need for H-2B workers, unless the
H-2B worker is a national of one of the Northern Triangle countries or
Haiti and is counted towards the separate 6,500 cap for such workers.
The Secretary has determined that, for purposes of this program, H-2B
returning workers include those individuals who were issued an H-2B
visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021.
As discussed above, the Secretary determined that limiting returning
workers to those who were issued an H-2B visa or granted H-2B status in
the past three fiscal years is appropriate as it mirrors the standard
that Congress designated in previous returning worker provisions.
Returning workers have previously obtained H-2B visas and therefore
been vetted by DOS, would have departed the United States after their
authorized period of stay as generally required by the terms of their
[[Page 4733]]
nonimmigrant admission, and therefore may have a higher likelihood of
success in obtaining their new visas through DOS, possibly without a
required interview, and begin work more expeditiously.
To ensure compliance with the requirement that additional visas
only be made available to returning workers, petitioners seeking H-2B
workers under the supplemental cap will be required to attest that each
employee requested or instructed to apply for a visa under the FY 2022
supplemental cap was issued an H-2B visa or otherwise granted H-2B
status in FY 2019, 2020, or 2021, unless the H-2B worker is a national
of one of the Northern Triangle countries or Haiti and is counted
towards the 6,500 cap. This attestation will serve as prima facie
initial evidence to DHS that each worker, unless a national of one of
the Northern Triangle countries or Haiti who is counted against the
6,500 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.
D. Returning Worker Exemption for Up to 6,500 Visas for Nationals of
Guatemala, El Salvador, and Honduras (Northern Triangle Countries) and
Haiti
As described above, the Secretary of Homeland Security has
determined that up to 6,500 additional H-2B visas will be limited to
workers who are nationals of one of the Northern Triangle countries or
Haiti. These 6,500 visas will be exempt from the returning worker
requirement. If the 6,500 visa limit has been reached and the 13,500
cap has not, petitioners may continue to request workers who are
nationals of one of the Northern Triangle countries or Haiti, but these
noncitizens must be specifically requested as returning workers who
were issued H-2B visas or were otherwise granted H-2B status in FY
2019, 2020, or 2021.
DHS has determined that reserving 6,500 supplemental H-2B visas for
nationals of the Northern Triangle countries or Haiti--a number higher
than the average annual number of visas issued to such persons in the
past 7 fiscal years--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 nationals of the Northern Triangle countries and Haiti seeking a
legal pathway for temporary employment in the United States. DOS issued
a combined total of approximately 26,630 H-2B visas to nationals of the
Northern Triangle countries or Haiti from FY 2015 through FY 2020, an
average of approximately 4,400 per year.\69\ In FY 2021, DOS issued a
combined total of more than 6,600 visas to nationals of Northern
Triangle countries. This increase is likely due in large part to the
additional H-2B visas made available to nationals of these countries by
the FY 2021 H-2B supplemental visa temporary final rule.\70\ In
addition, based in part on the vital U.S. interest of promoting
sustainable development and the stability of Haiti, DHS recently added
Haiti to the list of countries whose nationals are eligible to
participate in the H-2A and H-2B programs.\71\ Therefore, as previously
stated, DHS has determined that the additional increase in FY 2022 will
not only provide U.S. businesses who 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 Northern Triangle countries and Haiti.
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\69\ DOS Monthly NIV Issuances by Nationality and Visa Class;
<a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html</a> (last visited December
1, 2021).
\70\ Id.
\71\ 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, <a href="https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf">https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf</a> (Nov. 10, 2021).
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While DHS reiterates the importance of limiting the general
supplemental cap exclusively to returning workers, for the reasons
stated previously, the Secretary has determined that the exemption from
the returning worker requirement for nationals of the Northern Triangle
countries or Haiti is beneficial for the following reasons. It strikes
a balance between furthering the U.S. foreign policy interests of
expanding access to lawful pathways to nationals of the Northern
Triangle countries and Haiti seeking economic opportunity in the United
States and addressing the needs of certain H-2B employers that are
suffering irreparable harm or will suffer impending irreparable harm.
This policy initiative would also support the strategies for the region
described in E.O. 14010, which directs DHS to implement efforts to
expand access to lawful pathways to the United States, including visa
programs, as appropriate and consistent with the law through both
protection-related and non-protection related programs. E.O. 14010
further 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.\72\ The availability of
workers from the Northern Triangle countries and Haiti may help provide
U.S. employers with additional labor from neighboring countries who are
committed to working with the United States and also promote safe and
lawful immigration to the United States.
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\72\ See also National Security Council, Collaborative Migration
Management Strategy, <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf</a> (July 2021)
(stating that ``The United States has strong national security,
economic, and humanitarian interests in reducing irregular migration
and promoting safe, orderly, and humane migration'' within North and
Central America).
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Similar to the discussion above regarding returning workers, DOS
will work with the relevant countries to facilitate consular
interviews, as required,\73\ 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.
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\73\ As noted previously, some consular sections waive the in-
person interview requirement for H-2B applicants whose prior visa
expired within a specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The authority allowing for waiver of interview of certain
H-2 (temporary agricultural and non-agricultural workers) applicants
is extended through the end of 2022. Applicants renewing any visa
within 48 months of expiration are also eligible for interview
waiver. DOS, Important Announcement on Waivers of the Interview
Requirement for Certain Nonimmigrant Visas, <a href="https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html">https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html</a> (last updated Dec. 23, 2021).
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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 2022 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. In addition, the petitioner must submit an
attestation to USCIS in which the petitioner affirms, under penalty of
[[Page 4734]]
perjury, that it meets the business need standard. Petitioners must be
able to establish 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.\74\ 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. The attestation
must be submitted directly to USCIS, together with Form I-129, the
approved and valid TLC,\75\ and any other necessary documentation. As
in the rules implementing the FY 2017, FY 2018, FY 2019, and FY 2021
temporary cap increases, employers will be required to complete the new
attestation form which can be found at: <a href="https://www.foreignlaborcert.doleta.gov/form.cfm">https://www.foreignlaborcert.doleta.gov/form.cfm</a>.\76\
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\74\ An employer may request fewer workers on the H-2B petition
than the number of workers listed on the TLC. See Instructions for
Petition for Nonimmigrant Worker, providing that ``the total number
of workers you request on the petition must not exceed the number of
workers approved by the Department of Labor or Guam Department of
Labor, if required, on the temporary labor certification.''
\75\ 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).
\76\ This portion of the temporary rule does not apply to
workers who have already been counted under the H-2B statutory cap
for the first half of fiscal year 2022 (33,000). Further, this
portion of the rule does not apply to noncitizens who are exempt
from the fiscal year 2022 H-2B statutory cap, including those who
are extending their stay in H-2B status. Accordingly, petitioners
who are filing on behalf of such workers are not subject to the
attestation requirement.
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In previous years petitioners have only been required to attest
that they were likely to suffer irreparable harm if they were unable to
employ all of the H-2B workers requested on their I-129 petition
submitted under H-2B cap increase rules. The Departments have decided
to change this standard. Employers must instead 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. This change is designed to focus more
directly on the actual irreparable harm employers are suffering or the
impending irreparable harm they will suffer as a result of their
inability to employ H-2B workers, rather than on just the possibility
of such harm.
As noted above, Congress authorized the Secretary of Homeland
Security, in consultation with the Secretary of Labor, to increase the
total number of H-2B visas available ``upon the determination that the
needs of American businesses cannot be satisfied'' with U.S. workers
under the statutory visa cap.\77\ The new irreparable harm standard in
this rule aligns with the 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. The prior standard, on the other hand, required only
that the employer attest that harm was likely to occur at some point in
the future, which created uncertainty as to whether that employer's
needs were truly unmet or would not be met without being able to employ
the requested H-2B workers. Because the authority to increase the
statutory cap is tied to the needs of businesses, the Departments think
it is reasonable for employers to attest that they are suffering
irreparable harm or that they will suffer impending irreparable harm
without the ability to employ all of the H-2B workers requested on
their petition. If such employers are unable to attest to such harm and
retain and produce documentation of that harm, it calls into question
whether their needs cannot in fact be satisfied without the ability to
employ H-2B workers. As with employers with a current need, an
employer's inability to attest to impending harm calls into question
their actual need for the requested H-2B workers.
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\77\ Public Law 117-70 Further Extending Government Funding Act,
Division A ``Further Continuing Appropriations Act, 2022'', section
101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in
section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law
117-43 Extending Government Funding and Delivering Emergency
Assistance Act, Division A ``Continuing Appropriations Act, 2022'',
Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and
authorities, including authority under section 105 of title I of
Division O of Public Law 116-260, through December 3, 2021.
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The change to the irreparable harm standard is also informed by the
Departments' experiences in implementing the business need standard. In
the Departments' experience, the ``likely to suffer irreparable harm''
standard has been difficult to assess and administer in the context of
prior supplemental cap rules. For example, employers have reported
confusion with the standard, including some employers that were not
able to provide adequate evidence of the prospective ``likelihood of
irreparable harm'' when selected for a random audit. The Departments
therefore believe that asking employers to provide evidence of harm
that is occurring or is impending without the ability to employ all of
the H-2B workers requested on their petition is a better means of
ensuring compliance.
The attestation form will serve as prima facie initial evidence to
DHS that the petitioner's business is suffering irreparable harm or
will suffer impending irreparable harm. Any petition requesting H-2B
workers under this FY 2022 supplemental cap that is lacking the
requisite attestation form may be rejected in accordance with 8 CFR
103.2(a)(7)(ii) or denied in accordance with 8 CFR 103.2(b)(8)(ii), as
applicable. Although this regulation does not require submission of
evidence at the time of filing of the petition, other than an
attestation, the employer must have such evidence on hand and ready to
present to DHS or DOL at any time starting with the date of filing the
I-129 petition, through the prescribed document retention period
discussed below. In fact, as with petitions filed under the FY 2021
Supplemental TFR, the Departments intend to select a significant number
of petitions approved for audit examination to verify compliance with
program requirements, including the irreparable harm standard and
recruitment provisions implemented through this rule. Failure to
provide evidence demonstrating irreparable harm or to comply with the
audit process may be considered a substantial violation resulting in an
adverse agency action on the employer, including revocation of the
petition and/or TLC or program debarment. Similarly, failure to
cooperate with any compliance review, evaluation, verification, or
inspection conducted by DHS or DOL as required by 8 CFR
214.2(h)(6)(xi)(B)(2)(vi) and (vii), respectively, 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).
In addition to the statement regarding the irreparable harm
standard, the attestation submitted to USCIS will also state that the
employer meets all other eligibility criteria for the available visas,
[[Page 4735]]
including the returning worker requirement, unless exempt because the
H-2B worker is a national of one of the Northern Triangle countries or
Haiti who is counted against the 6,500 visas reserved for such workers;
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); will conduct additional
recruitment of U.S. workers in accordance with the requirements of this
rule and discussed further below; and will document and retain evidence
of such compliance. Because the attestation will be submitted 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, a petition may be
denied or revoked, as applicable, based on or related to statements
made in the attestation, including but not limited to the following
grounds: (1) Because the employer failed to demonstrate employment of
all of the requested workers is necessary under the appropriate
business need standard; and (2) the employer failed to demonstrate that
it requested and/or instructed that each worker petitioned for was a
returning worker, or a national of one of the Northern Triangle
countries or Haiti, as required by this rule. Any denial or revocation
on such basis, however, would be appealable 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, given the time remaining in the first half of FY 2022 and the
need to assemble the necessary documentation. In addition, the employer
is required to retain documentation, which must be provided upon
request by DHS 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 Northern Triangle countries or
Haiti who is counted against the 6,500 cap (which may be satisfied by
the separate Form I-129 that employers are required to file for such
workers in accordance with this rule) and (3) a recruitment report for
any additional recruitment required under this rule for a period of 3
years. See new 20 CFR 655.69. Although the employer must have such
documentation on hand at the time it files the petition, the
Departments have determined that, if employers were required to submit
the attestation form to DOL before filing a petition with DHS, the
attendant delays would render any visas unlikely to satisfy the needs
of American businesses given processing timeframes and the time
remaining in this fiscal year. However, as noted above, the Departments
will be conducting 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, 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. See 8 CFR 103.2(b) or 8 CFR
214.2(h)(11).
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 they meet the document retention requirements at
new 20 CFR 655.69, the petitioner must retain documents and records
fulfilling their responsibility to demonstrate compliance with this
rule for 3 years from the date of the attestation, and must provide the
documents and records upon the request of DHS or DOL. With regard to
the irreparable harm standard, employers attesting that they are
suffering irreparable harm must be able to provide concrete evidence
establishing severe and permanent financial loss that is occurring; the
scope and severity of the harm must be clearly articulable. Employers
attesting that they will suffer impending irreparable harm must be able
to demonstrate that severe and permanent financial loss will occur in
the near future without access to the supplemental visas; it will not
be enough to provide evidence suggesting that such harm may or is
likely to occur; rather, the documentary evidence must show that
impending harm will occur and document the form of such harm.
Supporting evidence may include, but is not limited to, the following
types of documentation:
(1) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss due to the inability to
meet financial or existing contractual obligations because they were
unable to employ H-2B workers, including evidence of contracts,
reservations, orders, or other business arrangements that have been or
would be cancelled, and evidence demonstrating an inability to pay
debts/bills;
(2) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss, as compared to prior
years, such as financial statements (including profit/loss statements)
comparing the employer's period of need to prior years; bank
statements, tax returns, or other documents showing evidence of current
and past financial condition; and relevant tax records, employment
records, or other similar documents showing hours worked and payroll
comparisons from prior years to the current year;
(3) Evidence showing the number of workers needed in the previous
three seasons (FY 2019, 2020, and 2021) 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;
(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; and/or
(5) With respect to satisfying the returning worker requirement,
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
2019, 2020, or 2021, unless the H-2B worker is a national of one of the
Northern Triangle countries or Haiti counted towards the 6,500 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 2019, 2020, or 2021.
[[Page 4736]]
These examples are not exhaustive, nor will they necessarily
establish that the business meets the irreparable harm or returning
worker standards; petitioners may retain other types of evidence they
believe will satisfy these standards. When an approved petition is
selected for audit examination or investigation, DHS 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
Northern Triangle countries or Haiti counted towards the 6,500 cap. 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, notify DOL. 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 1 year or more than 5 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.\78\
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\78\ Pursuant to the statutory provisions governing enforcement
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a
violation exists under the H-2B program where there has been a
willful misrepresentation of a material fact in the petition or a
substantial failure to meet any of the terms and conditions of the
petition. A substantial failure is a willful failure to comply that
constitutes a significant deviation from the terms and conditions.
See, e.g., 29 CFR 503.19.
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To the extent that evidence reflects a preference for hiring H-2B
workers over U.S. workers, 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, may also be warranted. 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, <a href="https://www.justice.gov/crt/partnerships">https://www.justice.gov/crt/partnerships</a> (last visited Nov. 30, 2021). In addition, if members of
the public have information that a participating employer may be
abusing this program, DHS invites them to notify USCIS by completing
the online fraud tip form, <a href="https://www.uscis.gov/report-fraud/uscis-tip-form">https://www.uscis.gov/report-fraud/uscis-tip-form</a> (last visited Nov. 30, 2021).\79\
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\79\ 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 <a href="https://www.dhs.gov/system-records-notices-sorns">https://www.dhs.gov/system-records-notices-sorns</a>. Additional general information about DHS privacy policy
generally can be accessed at <a href="https://www.dhs.gov/policy">https://www.dhs.gov/policy</a>.
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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 2021 Omnibus as extended by Public Law 117-70, 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, DHS may, as applicable, reject the petition in
accordance with 8 CFR 103.2(a)(7)(ii) or deny the petition in
accordance with 8 CFR 103.2(b)(8)(ii). Further, where the initial
evidence submitted with the petition contains inconsistencies or is
inconsistent with other evidence in the petition and the underlying
TLC, DHS 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 2021 Omnibus
as extended by Public Law 117-70 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.\80\ Thus, in the event the
attestation requirement or any other part of this rule is enjoined or
held invalid, the remainder of the rule, with the exception of the
retention requirements being codified in 20 CFR 655.69, is also
intended 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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\80\ 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, 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. Such workers must be
beneficiaries of a non-frivolous H-2B petition requesting an extension
of stay received on or after the effective date of this temporary final
rule but no later than 180 days after that date.\81\ 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 the effective date of this temporary final
rule without waiting for approval of the H-2B petition. Specifically,
the rule allows H-2B nonimmigrant workers to begin employment with a
new H-2B employer or agent upon USCIS's receipt of a timely filed, non-
frivolous H-2B petition, provided the worker was lawfully admitted to
the United States and has not worked without authorization subsequent
to such lawful admission. Since every H-2B petition must be accompanied
by an approved TLC, all H-2B petitioners must have completed a test of
the U.S. labor market, as a result of which DOL determined that there
were no qualified U.S. workers available to fill these temporary
positions.
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\81\ Aliens 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)(27).
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This provision is similar to the portability provision in the FY
2021 H-2B supplemental visa temporary final rule. In addition, the
provision is similar to temporary flexibilities that DHS has used
previously to improve employer access to noncitizen workers during the
COVID-19 pandemic.\82\ DHS
[[Page 4737]]
recognizes the possibility that some beneficiaries were lawfully
admitted and were in valid H-2B status at the time of the petition
submission but such status may have lapsed during the pendency of the
petition. Accordingly, DHS added the provision extending portability
flexibility to petitioners to immediately employ beneficiaries of
pending non-frivolous H-2B extension of stay petitions as of the
effective date of this temporary final rule. See new 8 CFR
214.2(h)(27)(iii)(B). This provision is intended to mitigate the harm
that petitioners may experience resulting from the COVID-19 pandemic by
allowing petitioners to employ such H-2B workers so long as they were
lawfully admitted to the United States and if they have not worked
unlawfully after their admission. In the context of this rule, DHS
believes this flexibility will help some U.S. employers address the
challenges related to the limitations imposed by the cap, as well as
due to the ongoing disruptions caused by the COVID-19 pandemic. The
pandemic has resulted in a variety of travel restrictions and visa
processing limitations to mitigate the spread of COVID-19.
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\82\ 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. 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. 85 FR 21739. 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. 85 FR 51304
and 85 FR 82291.
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In addition to resulting in a devastating loss of life, the
worldwide pandemic of COVID-19 has impacted the United States in myriad
ways, disrupting daily life, travel, and the operation of individual
businesses and the economy at large. On January 31, 2020, the Secretary
of the U.S. Department of Health and Human Services (HHS) declared a
public health emergency dating back to January 27, 2020, under section
319 of the Public Health Service Act (42 U.S.C. 247d).\83\ This
determination that a public health emergency exists due to COVID-19 has
subsequently been renewed seven times: On April 21, 2020, on July 23,
2020, on October 2, 2020, on January 7, 2021, on April 15, 2021, on
July 19, 2021 and most recently on October 15, 2021, effective October
18, 2021.\84\ On March 13, 2020, then-President Trump declared a
National Emergency concerning the COVID-19 outbreak to control the
spread of the virus in the United States.\85\ The proclamation declared
that the emergency began on March 1, 2020. DOS temporarily suspended
routine immigrant and nonimmigrant visa services at all U.S. Embassies
and Consulates on March 20, 2020, and subsequently announced a phased
resumption of visa services in which it would continue to provide
emergency and mission critical visa services and resume routine visa
services as local conditions and resources allowed.\86\ Based on the
importance of the H-2A temporary agricultural worker and H-2B temporary
nonagricultural worker programs, DOS indicated it would continue
processing H-2A and H-2B cases to the extent possible, as permitted by
post resources and local government restrictions, and expanded the
categories of H-2 visa applicants whose applications can be adjudicated
without an in-person interview.\87\ Although routine visa services have
resumed \88\ subject to local conditions and restrictions, and DOS has
expanded visa interview waiver eligibility,\89\ the COVID-19 pandemic
continues to have a significant impact on visa processing at embassies
and consulates around the world.\90\ And as noted above, growing
concern about the COVID Omicron variant recently prompted tightened
testing requirements for international air travel to the United States,
which may have an impact on such travel.
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\83\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\84\ See HHS Renewal of Determination That A Public Health
Emergency Exists, <a href="https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx">https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx</a> (Oct. 15, 2021).
\85\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\86\ DOS, Suspension of Routine Visa Services, <a href="https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html">https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html</a> (last updated July 22, 2020).
\87\ DOS, Important Announcement on Waivers of the Interview
Requirement for Certain Nonimmigrant Visas, <a href="https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html">https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html</a> (last updated Dec. 23, 2021).
\88\ DOS, Visa Services Operating Status Update, <a href="https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html">https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html</a> (last updated Nov. 19, 2021).
\89\ DOS, Expansion of Interview Waiver Eligibility, <a href="https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html">https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html</a> (last updated Mar. 11, 2021).
\90\ Celia Belin, Travel is resuming, but not for everyone,
Brookings, <a href="https://www.brookings.edu/blog/order-from-chaos/2021/11/08/travel-is-resuming-but-not-for-everyone/">https://www.brookings.edu/blog/order-from-chaos/2021/11/08/travel-is-resuming-but-not-for-everyone/</a> (Nov. 8, 2021).
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Further, due to the possibility that some H-2B workers may be
unavailable due to travel restrictions, to include those intended to
limit the spread of COVID-19, or visa processing delays or may become
unavailable due to COVID-19 related illness, U.S. employers that have
approved H-2B petitions or who will be filing H-2B petitions in
accordance with this rule might not receive all of the workers
requested to fill the temporary positions.
DHS is strongly committed not only to protecting U.S. workers and
helping U.S. businesses receive the documented workers authorized to
perform temporary nonagricultural services or labor that they need, but
also to protecting the rights and interests of H-2B workers (consistent
with Executive Order 13563 and in particular its reference to
``equity,'' ``fairness,'' and ``human dignity''). In the FY 2020 DHS
Further Consolidated Appropriations Act (Pub. L. 116-94), Congress
directed DHS to provide options to improve the H-2A and H-2B visa
programs, to include options that would protect worker rights.\91\ 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.\92\ Providing that flexibility is also equitable and fair.
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\91\ The Joint Explanatory Statement accompanying the Fiscal
Year (FY) 2020 Department of Homeland Security (DHS) Further
Consolidated Appropriations Act (Pub. L. 116-94) states, ``Not later
than 120 days after the date of enactment of this Act, DHS, the
Department of Labor, the Department of State, and the United States
Digital Service are directed to report on options to improve the
execution of the H-2A and H-2B visa programs, including: Processing
efficiencies; combatting human trafficking; protecting worker
rights; and reducing employer burden, to include the disadvantages
imposed on such employers due to the current semiannual distribution
of H-2B visas on October 1 and April 1 of each fiscal year. USCIS is
encouraged to leverage prior year materials relating to the issuance
of additional H-2B visas, to include previous temporary final rules,
to improve processing efficiencies.''
\92\ 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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Portability for H-2B workers provides these noncitizens with the
option of not having to worry about job loss or loss of income between
the time they leave a current employer and while they await approved
employment with a new U.S. employer or agent. DHS believes this
flexibility (job portability) not only protects H-2B workers but 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
[[Page 4738]]
supplemental caps who have the skills to perform the job duties. In
that sense as well, it is equitable and fair.
DHS is making this flexibility available for a 180-day period in
order to provide stability for H-2B employers amidst continuing
uncertainties surrounding the COVID-19 pandemic. This period is
justified especially given the possible future impacts of COVID-19
variants and uncertainty regarding the duration of vaccine-gained
immunity and how effective currently approved vaccines will be in
responding to future COVID-19 variants.\93\ DHS will continue to
monitor the evolving health crisis caused by COVID-19 and may address
it in future rules.
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\93\ See CDC, What You Need to Know about Variants, <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html</a> (last
updated Dec. 13, 2021); CDC, Key Things to Know About COVID-19
Vaccines, <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html</a> (last updated Jan. 12, 2022).
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G. COVID-19 Worker Protections
It is the policy of DHS and its Federal partners to support equal
access to the COVID-19 vaccines and vaccine distribution sites,
irrespective of an individuals' immigration status.\94\ This policy
promotes fairness and equity (see Executive Order 13563). Accordingly,
DHS and DOL encourage all individuals, regardless of their immigration
status, to receive the COVID-19 vaccine. U.S. Immigration and Customs
Enforcement (ICE) and U.S. Customs and Border Protection do not conduct
enforcement operations at or near vaccine distribution sites or
clinics. Consistent with ICE's protected areas policy, ICE does not and
will not carry out enforcement operations in or near a medical or
mental healthcare facility, such as a hospital, doctor's office, health
clinic, vaccination or testing site, urgent care center, site that
serves pregnant individuals, or community health center.\95\
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\94\ See DHS, Statement on Equal Access to COVID-19 Vaccines and
Vaccine Distribution Sites, <a href="https://www.dhs.gov/news/2021/02/01/dhs-statement-equal-access-covid-19-vaccines-and-vaccine-distribution-sites">https://www.dhs.gov/news/2021/02/01/dhs-statement-equal-access-covid-19-vaccines-and-vaccine-distribution-sites</a> (Feb. 1, 2021) (last accessed Nov. 30, 2021).
\95\ See ICE, FAQs: Protected Areas and Courthouse Arrests,
<a href="https://www.ice.gov/about-ice/ero/protected-areas">https://www.ice.gov/about-ice/ero/protected-areas</a> (last visited Jan.
11, 2022).
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This TFR reflects that policy by providing as follows:
Supplemental H-2B Visas: With respect to petitioners who wish to
qualify to receive supplemental H-2B visas pursuant to the FY 2021
Omnibus as extended by Public Law 117-70, the Departments are using the
DOL Form ETA-9142-B-CAA-5 to support equal access to vaccines in two
ways. First, the Departments are requiring such petitioners to attest
on the DOL Form ETA-9142-B-CAA-5 that, consistent with such
petitioners' obligations under generally applicable H-2B regulations,
they will comply with all Federal, State, and local employment-related
laws and regulations, including, where applicable, health and safety
laws and laws related to COVID-19 worker protections; any right to time
off or paid time off for COVID-19 vaccination, or to reimbursement for
travel to and from the nearest available vaccination site See new 8 CFR
214.2(h)(6)(xi)(B)(2)(iv) and 20 CFR 655.64(a)(4). Second, the
Departments are requiring such petitioners to also attest that they
will notify any H-2B workers approved under the supplemental cap, in a
language understood by the worker as necessary or reasonable, that all
persons in the United States, including nonimmigrants, have equal
access to COVID-19 vaccines and vaccine distribution sites. WHD has
published a poster for employers' optional use for this
notification.\96\ Because the attestation will be submitted 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, a petition may be
denied or revoked, as applicable, based on or related to statements
made in the attestation, including, but not limited to, because the
employer violated an applicable employment-related law or regulation,
or failed to notify workers regarding equal access to COVID-19 vaccines
and vaccine distribution sites.
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\96\ See, Employee Rights--H-2B Workers and COVID-19 <a href="https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf">https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf</a> (English);
<a href="https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf">https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf</a>
(Spanish) (Last visited Dec. 22, 2021).
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Other H-2B Employers: While there is no additional attestation with
respect to H-2B petitioners that do not avail themselves of the
supplemental H-2B visas made available under this rule, the Departments
remind all H-2B employers that they must comply with all Federal,
State, and local employment-related laws and regulations, including,
where applicable, health and safety laws and laws related to COVID-19
worker protections; any right to time off or paid time off for COVID-19
vaccination, or to reimbursement for travel to and from the nearest
available vaccination site. Failure to comply with such laws and
regulations would be contrary to the attestation 7 on ETA 9142B--
Appendix B, and therefore may be a basis for DHS to revoke the petition
under 8 CFR 214.2(h)(11)(iii)(A)(3) for violating terms and conditions
of the approved petition.\97\ This obligation is also reflected as a
condition of H-2B portability under this rule. See new 8 CFR
214.2(h)(27)(iii)(C).
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\97\ During the period of employment specified on the Temporary
Labor Certification, the employer must comply with all applicable
Federal, State and local employment-related laws and regulations,
including health and safety laws. 20 CFR 655.20(z). By submitting
the Temporary Labor Certification as evidence supporting the
petition, it is incorporated into and considered part of the benefit
request under 8 CFR 103.2(b)(1).
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President Biden, in his speech to Joint Session of Congress on
April 21, 2021, made the following statement: ``[T]oday, I'm announcing
a program to address [the issue of COVID vaccinations] . . .
nationwide. I'm calling on every employer, large and small, in every
state, to give employees the time off they need, with pay, to get
vaccinated and any time they need, with pay, to recover if they are
feeling under the weather after the shot.'' \98\ More recently,
President Biden reiterated his call on employers to provide paid time
off to their employees to get booster shots.\99\ Consistent with the
President's statements, the Departments strongly urge, but do not
require, that all employers seeking H-2B workers under either the
Supplemental Cap or portability sections of the TFR, make every effort
to ensure that all their workers, including nonimmigrant workers, be
afforded an opportunity to take the time off needed to receive their
COVID-19 vaccinations, as well as time off, with pay, to recover from
any temporary side effect. In Proclamation 10294 of October 25, 2021,
the President barred the entry of nonimmigrants into the United States
via air transportation unless they are fully vaccinated against COVID-
19, with certain exceptions.\100\ On January 22, 2022, similar
requirements entered into force at land ports of entry and ferry
terminals.\101\ The Departments therefore expect that H-2B
nonimmigrants who enter the United States via air transportation under
this rule will generally be fully vaccinated against COVID-19. The
[[Page 4739]]
Departments note, however, that some H-2B nonimmigrants (such as
nonimmigrants who are already in the United States) may not yet be
vaccinated or may nonetheless be eligible for booster shots.
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\98\ See <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/21/remarks-by-president-biden-on-the-covid-19-response-and-the-state-of-vaccinations-2/">https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/21/remarks-by-president-biden-on-the-covid-19-response-and-the-state-of-vaccinations-2/</a> (April 21, 2021).
\99\ See <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-winter/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-winter/</a> (December 2, 2021).
\100\ See 86 FR 59603 (Oct. 28, 2021) (Presidential
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC
Order).
\101\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United
States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at
United States-Canada border).
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As noted, Executive Order 13563 refers to fairness, equity, and
human dignity, and such efforts, on the part of employers, would be
consistent with those commitments.
Petitioners otherwise are strongly encouraged to facilitate and
provide flexibilities, to the greatest extent possible, to all workers
who wish to receive COVID-19 vaccinations.
H. DHS Petition Procedures
To petition for H-2B workers under this rule, the petitioner must
file a Form I-129 in accordance with applicable regulations and form
instructions, an unexpired TLC, and the attestation form described
above. All H-2B petitions must state the nationality of all the
requested H-2B workers, whether named or unnamed, even if there are
beneficiaries from more than one country. See 8 CFR 214.2(h)(2)(iii).
If filing multiple Forms I-129 based on the same TLC (for instance, one
requesting returning workers and another requesting workers who are
nationals of one of the Northern Triangle countries or Haiti), each H-
2B petition must include a copy of the TLC and reference all
previously-filed or concurrently filed petitions associated with the
same TLC. The total number of requested workers may not exceed the
total number of workers indicated on the approved TLC. Petitioners
seeking H-2B classification for nationals of the Northern Triangle
countries or Haiti under the 6,500 visa allocation that are exempt from
the returning worker provision must file a separate Form I-129 for
those nationals of the Northern Triangle countries and Haiti only. See
new 8 CFR 214.2(h)(6)(xi). In this regard, a petition must be filed
with a single Form ETA-9142-B-CAA-5 that clearly indicates that the
petitioner is only requesting nationals from a Northern Triangle
country or Haiti who are exempt from the returning worker requirement.
Specifically, if the petitioner checks Box #5 of Form ETA-9142-B-CAA-5,
then the petition accompanying that form must be filed only on behalf
of nationals of one or more of the Northern Triangle countries or
Haiti, and not other countries. In such a case if the Form I-129
petition is requesting beneficiaries from countries other than Northern
Triangle countries or Haiti, then USCIS may reject, 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 one of the Northern Triangle
countries or Haiti. Requiring the filing of separate petitions to
request returning workers and to request workers who are nationals of
the Northern Triangle countries or Haiti 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-5, Attestation for Employers Seeking to Employ H-2B Nonimmigrant
Workers Under Section 105 of Division O of the Further Consolidated
Appropriations Act, 2021 Public Law 116-260, and Public Laws 117-43 and
117-70. 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 new 20 CFR 655.69. Petitions submitted to DHS pursuant
to the FY 2021 Omnibus, as extended by Public Law 117-43 and Public Law
117-70, will be processed in the order in which they were received, and
pursuant to processes 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).
Consistent with the intent of this rule to address urgent demand
from employers for H-2B workers with start dates in the first half of
the fiscal year, USCIS will not accept petitions received after March
31, 2022. See new 8 CFR 214.2(h)(6)(xi)(C). Such petitions will be
rejected and the filing fees will be returned. DHS believes it is
appropriate to set a final filing date that aligns with the final
employment start date allowed under this rule, as petitioners under the
supplemental allocation will attest to a need for H-2B workers to start
on or before March 31, 2022, without whom they are suffering
irreparable harm or will suffer impending irreparable harm.\102\
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\102\ Conversely, DHS believes that allowing petitioners to file
these petitions during the second half of the fiscal year would be
inconsistent with the intent to address the already-exceeded first
half demand for H-2B workers without whom employers would be
suffering irreparable harm. Allowing petitioners to file so far
after their start date of need could call into question the
petitioner's period of temporary need for the services or labor to
be performed, as well as petitioners' attestations regarding the
irreparable harm they are suffering or the impending irreparable
harm they stand to suffer without the ability to employ all of the
requested workers for that period of need.
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Based on the time-limited authority granted to DHS by Public Law
117-43 and Public Law 117-70, on the same terms as section 105 of the
under the FY 2021 Omnibus, DHS is notifying the public that petitions
seeking a visa under this rule filed on or before March 31, 2022, may
not be approved by USCIS on or after October 1, 2022. See new 8 CFR
214.2(h)(6)(xi). Petitions pending with USCIS that are not approved
before October 1, 2022 will be denied and any fees will not be
refunded. See new 8 CFR 214.2(h)(6)(xi).
Petitioners may choose to request premium processing of their
petitions under 8 CFR 103.7(e), which allows for expedited processing
for an additional fee.
I. DOL Procedures
As noted above, all employers are required to have an approved and
valid TLC from DOL in order to file a Form I-129 petition with DHS. See
8 CFR 214.2(h)(6)(iv)(A) and (D). The standards and procedures
governing the submission and processing of Applications for Temporary
Employment Certification for employers seeking to hire H-2B workers are
set forth in 20 CFR part 655, subpart A. An employer that seeks to hire
H-2B workers must request a TLC in compliance with the application
filing requirements set forth in 20 CFR 655.15 and meet all the
requirements of 20 CFR part 655, subpart A, to obtain a valid TLC,
including the criteria for certification set forth in 20 CFR 655.51.
See 20 CFR 655.64(a) and 655.50(b). Employers with an approved TLC have
conducted recruitment, as set forth in 20 CFR 655.40 through 655.48, to
determine whether U.S. workers are qualified and available to perform
the work for which H-2B workers are sought.
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.
Under 20 CFR 655.17, an employer may request a waiver of the time
period(s) for filing an Application for
[[Page 4740]]
Temporary Employment Certification based on ``good and substantial''
cause, provided that the employer has sufficient time to thoroughly
test the domestic labor market on an expedited basis and the OFLC
certifying officer (CO) has sufficient time to make a final
determination as required by the regulation. To rely on this provision,
as the Departments explained in the 2015 H-2B Interim Final Rule,\103\
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.\104\ 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.
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\103\ Interim Final Rule, Temporary Non-Agricultural Employment
of H-2B Aliens in the United States, 80 FR 24041 (Apr. 29, 2015)
(2015 H-2B Interim Final Rule).
\104\ See U.S. Department of Labor, Employment and Training
Administration, Office of Foreign Labor Certification, 2015 H-2B
Interim Final Rule FAQs, Round 12: Job Order and Application Filing
and Processing, Emergency Procedures and Post-Certification
Amendments. Retrieved December 18, 2021, from <a href="https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_2015_IFR_FAQs_Round12.pdf">https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_2015_IFR_FAQs_Round12.pdf</a>.
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In addition to the recruitment already conducted in connection with
a valid TLC, in order to ensure the recruitment has not become stale,
employers that wish to obtain visas for their workers under 8 CFR
214.2(h)(6)(xi), and who file an I-129 petition 45 or more days after
the certified start date of work on the TLC must conduct additional
recruitment for U.S. workers. This is particularly important as U.S.
workers continue to reenter the workforce as they become vaccinated. As
noted in the 2015 H-2B Interim Final Rule, U.S. workers seeking
employment in temporary or seasonal 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, 2021, likely
conducted their positive recruitment beginning around late-July and
ending around mid-August 2021, and continued to consider U.S. worker
applicants and referrals only until September 10, 2021.
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 45 or more days after their dates of need, 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. The 45-day
threshold for additional recruitment identified in this rule reflects a
timeframe between the end of the employer's recruitment and filing of
the petition similar to that provided under the FY 2018, FY 2019, and
FY 2021 H-2B supplemental cap rules.
An employer that files an I-129 petition under 8 CFR
214.2(h)(6)(xi) fewer than 45 days after the certified start date of
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
5, but is not required to conduct recruitment for U.S. workers beyond
the recruitment already conducted as a condition of certification. Only
those employers with still-valid TLCs with a start date of work that is
45 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 labor certification and attest that the recruitment will be
conducted, as follows.
Employers that are required to engage in new 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.
The job order must contain the job assurances and contents set
forth in 20 CFR 655.18 for recruitment of U.S. workers at the place of
employment, and remain posted for at least 15 calendar days. The
employer must also follow all applicable SWA instructions for posting
job orders and receive applications in all forms allowed by the SWA,
including online applications. The Departments have concluded that
keeping the job order posted for a period of 15 calendar days, during
the period the employer is conducting the additional recruitment steps
explained below, 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 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).
Common H-2B occupations or industries that are traditionally or
customarily unionized include, but are not limited to, those covering
construction and extraction, manufacturing, food and hospitality,
transportation and distribution, and other production related services.
To facilitate an effective dissemination of
[[Page 4741]]
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 <a href="https://www.dol.gov/agencies/eta/foreign-labor/contact">https://www.dol.gov/agencies/eta/foreign-labor/contact</a>.
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 <a href="https://www.careeronestop.org/">https://www.careeronestop.org/</a> 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. As explained on the locator website, some AJCs may continue
to offer virtual or remote services due to the pandemic with physical
office locations temporarily closed for in-person and mail processing
services. Therefore, this rule requires that employers utilize
available electronic methods for the nearest AJC to meet the contact
and disclosure requirements in this rule.
Second, during the period of time the SWA is actively circulating
the job order described in paragraph (a)(5)(i) for intrastate
clearance, the employer must make reasonable efforts to contact (by
mail or other 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, 2020, until the date the I-129 petition required
under 8 CFR 214.2(h)(6)(xi) is submitted. Among the employees the
employer must contact are those who have been furloughed or laid off
during this period. The employer must disclose to its former employees
the terms of the job order, and solicit their return to the job. The
contact and disclosures required by this paragraph must be provided in
a language understood by the worker, as necessary or reasonable.
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. This recruitment step
will help ensure notice of the job opportunity is disseminated broadly
to U.S. workers who were laid off or furloughed during the COVID-19
outbreak and who may be seeking employment as the economy continues to
recover and as more people are vaccinated. While this requirement goes
beyond the requirement at 20 CFR 655.43, the Departments believe it is
appropriate given the evolving conditions of the U.S. labor market, as
described above, and the increased likelihood that qualified U.S.
workers will make themselves available for these job opportunities.
Third, 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).
The requirements to contact 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
[[Page 4742]]
and not significantly disadvantage the employee.
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 45 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 a longer 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 of the requirement to
engage in non-discriminatory hiring practices and that the job
opportunity is, and through the recruitment period set forth in this
rule must continue to be, 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 materials 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 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. In other circumstances, such as allegations involving
discriminatory hiring practices, the SWA may need to 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,\105\ 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.\106\ 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)(27). 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 who may be seeking employment as the economy continues to
recover in 2022 have sufficient time to apply for these jobs.
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\105\ Final Rule, Temporary Agricultural Employment of H-2A
Aliens in the United States, 75 FR 6884, 6921 (Feb. 12, 2010).
\106\ NPRM, Temporary Agricultural Employment of H-2A Aliens in
the United States, 74 FR 45906, 45917 (Sept. 4, 2009); 75 FR at
6922.
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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, including placement of a new job order with the SWA, contact
with AJCs, contact with former U.S. workers, and compliance with Sec.
655.45(a) or (b). 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)(5)(v) of new 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 655.56. 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).
DOL's 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;
[[Page 4743]]
recovery of wages due; 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 new 20 CFR
655.69, 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. In addition to the complaint process under
20 CFR part 658, subpart E, which is described above, workers who
believe their rights under the H-2B program have been violated may file
confidential 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
<a href="https://www.dol.gov/agencies/whd">https://www.dol.gov/agencies/whd</a> to locate the nearest WHD office for
assistance. Note that an employer is prohibited from intimidating,
threatening, restraining, coercing, blacklisting, discharging, or in
any manner discriminating against an employee 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).
DHS has the authority to verify any information submitted to
establish H-2B eligibility at any time before or after the petition has
been adjudicated by USCIS. See, e.g., INA sections 103 and 214 (8
U.S.C. 1103, 1184); see also 8 CFR part 103 and section 214.2(h). DHS'
verification methods may include, but are not limited to, review of
public records and information, contact via written correspondence or
telephone, unannounced physical site inspections, and interviews. USCIS
will use information obtained through verification to determine H-2B
eligibility and assess compliance with the requirements of the H-2B
program. Subject to the exceptions described in 8 CFR 103.2(b)(16),
USCIS will provide petitioners with an opportunity to address adverse
information that may result from a USCIS compliance review,
verification, or site visit 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-5, 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)(xi), 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-5 to be an appendix to the Application for Temporary
Employment Certification and the attestations contained on the Form
ETA-9142B-CAA-5 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-5 and
documentation supporting the attestations. However, DOL's audit
authority is independently authorized, and is not limited by the
expiration date of this rule. In order to make certain that the
supplemental visa allocation is not subject to fraud or abuse, DHS will
share information regarding Forms ETA-9142B-CAA-5 with DOL, consistent
with existing authorities. This information sharing between DHS and
DOL, along with relevant information that may be obtained through the
separate SWA and WHD complaint systems, are expected to support DOL's
identification of TLCs used to access the supplemental visa allocation
for closer examination of TLCs through the audit process.
In accordance with the documentation retention requirements in this
rule, the petitioner must retain documents and records proving
compliance with this rule, and must provide the documents and records
upon request by DHS or DOL. Under this rule, DOL will audit a
significant number of TLCs used to access the supplemental visa
allocation to ensure employer compliance with attestations, including
those regarding the irreparable harm standard and additional employer
conducted recruitment, required under this rule. In the event of an
audit, the OFLC CO will send a letter to the employer and, if
appropriate, a copy of the letter to the employer's attorney or agent,
listing the documentation the employer must submit and the date by
which the documentation must be sent to the CO. During audits under
this rule, the CO will request documentation necessary to demonstrate
the employer conducted all recruitment steps required under this rule
and truthfully attested to the irreparable harm the employer was
suffering or would suffer in the near future without the ability to
employ all of the H-2B workers requested under the cap increase,
including documentation the employer is required to retain under this
rule. If necessary to complete the audit, the CO may request
supplemental information and/or documentation from the employer during
the course of the audit process. 20 CFR 655.70(c).
Failure to comply in the audit process may result in the revocation
of the employer's certification or in debarment, under 20 CFR 655.72
and 655.73, respectively, or require the employer to undergo assisted
recruitment in future filings of an Application for Temporary
Employment Certification, under 20 CFR 655.71. Where an audit
examination or review of information from DHS or other appropriate
agencies determines that there has been fraud or willful
misrepresentation of a material fact or a substantial failure to meet
the required terms and conditions of the attestations or failure to
comply with the audit examination process, OFLC may institute
appropriate administrative proceedings to impose sanctions on the
employer. Those sanctions may result in revocation of an approved TLC,
the requirement that the employer undergo assisted recruitment in
future filings of
[[Page 4744]]
an Application for Temporary Employment Certification for a period of
up to 2 years, and/or debarment from the H-2B program and any other
foreign labor certification program administered by DOL for 1 to 5
years. See 29 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 new 20 CFR 655.69, 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). 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, for the reasons set
forth below.
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 to give effect to the extension of the
supplemental cap authority in section 105 of Div. O of the FY 2021
Omnibus, which was extended by Congress and expires on February 18,
2022 but extends the supplemental cap authority to FY 2022.\107\ The
Departments are bypassing advance notice and comment because of the
exigency created by this short timeframe for action, as well as to
urgently address increased labor demand and other conditions stemming
from the rapidly unfolding pandemic. In recent months, the ``Great
Resignation'' has resulted in an adverse impact on many employers in
industries that frequently use the H-2B program,\108\ and the emergence
of the Omicron variant has uncertain implications for public health
\109\ as well as on inflation \110\ and supply chains.\111\ USCIS
received more than enough petitions to meet the H-2B visa statutory cap
for the first half of FY 2022 on September 30, 2021,\112\ which is a
month and a half earlier than when the statutory cap for the first half
of FY 2020 was reached.\113\ USCIS rejected and returned the petitions
and associated filing fees to petitioners for all cap-subject petitions
received after September 30, 2021. Given high demand by American
businesses for H-2B workers, rapidly evolving economic conditions and
labor demand, and the very short time remaining to authorize additional
visa numbers to help prevent further irreparable harm currently
experienced by some U.S. employers or avoid impending economic harm for
others,\114\ a decision to undertake notice and comment rulemaking
would likely delay final action on this matter by weeks or months, and
would, therefore, greatly complicate and potentially preclude the
Departments from successfully exercising the authority created by
section 105, Public Law 117-43, and Public Law 117-70.
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\107\ See Public Law 117-70 Further Extending Government Funding
Act, Division A ``Further Continuing Appropriations Act, 2022'',
section 101 (Dec. 3, 2021) changing the Public Law 117-43 expiration
date in section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and
Public Law 117-43 Extending Government Funding and Delivering
Emergency Assistance Act, Division A ``Continuing Appropriations
Act, 2022'', Section 101 and 106(3) (Oct. 3, 2021) extending DHS
funding, including authority under section 105 of title I of
Division O of Public Law 116-260 through December 3, 2021.
\108\ See Megan Leonhardt, The Great Resignation is hitting
these industries hardest, Fortune, <a href="https://fortune.com/2021/11/16/great-resignation-hitting-these-industries-hardest/">https://fortune.com/2021/11/16/great-resignation-hitting-these-industries-hardest/</a> (Nov. 16, 2021)
(``The industries hit hardest by quits in September are leisure and
hospitality--including those who work in the arts and entertainment,
as well as in restaurants and hotels--trade, transportation and
utilities, professional services and retail.''). These observations
made in the preceding source align with USCIS analysis of labor
demand in industry sectors that are most represented in the H-2B
program, as discussed in the E.O. 12866 analysis. See also, e.g.,
Paul Krugman, Wonking Out: Is the Great Resignation a Great
Rethink?, N.Y. Times, <a href="https://www.nytimes.com/2021/11/05/opinion/great-resignation-quit-job.html">https://www.nytimes.com/2021/11/05/opinion/great-resignation-quit-job.html</a> (Nov. 5, 2021) (``. . . there's
considerable evidence that `workers at low-wage jobs [have]
historically underestimated how bad their jobs are.' When
something--like, say, a deadly pandemic--forces them out of their
rut, they realize what they've been putting up with. And because
they can learn from the experience of other workers, there may be a
`quits multiplier' in which the decision of some workers to quit
ends up inducing other workers to follow suit.'').
\109\ See Annika Kim Constantino, Omicron detected in Florida
and Texas as it takes root in 25 U.S. states, CNBC, <a href="https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html">https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html</a> (Dec. 10, 2021).
\110\ On December 10, 2021, BLS reported that the CPI-U
increased 0.8 percent in November on a seasonally adjusted basis
after rising 0.9 percent in October. Over the previous 12 months,
the all items index increased 6.8 percent before seasonal
adjustment. See BLS, Economic News Release, Consumer Price Index
Summary (Dec. 20, 2021), <a href="https://www.bls.gov/news.release/cpi.nr0.htm">https://www.bls.gov/news.release/cpi.nr0.htm</a>.
\111\ See, e.g., Mitchell Hartman, Omicron's impact on inflation
and supply chains is uncertain, Marketplace, <a href="https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/">https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/</a> (Dec. 1, 2021) (``People have trouble
getting to work through lockdowns and what have you, and labor gets
scarcer -- particularly for those jobs where being present at work
matters. Supply goes down and has an upward pressure on pricing . .
.''); Alyssa Fowers & Rachel Siegel, Five charts explaining why
inflation is at a near 40-year high, Wash. Post, <a href="https://www.washingtonpost.com/business/2021/10/14/inflation-prices-supply-chain/">https://www.washingtonpost.com/business/2021/10/14/inflation-prices-su
[…truncated; see source link]Indexed from Federal Register on January 28, 2022.
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