Rule2022-10631
Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers
Primary source
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Published
May 18, 2022
Effective
May 18, 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 again increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by authorizing the issuance of no more than 35,000 additional visas during the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 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. This number is in addition to the 20,000 H-2B visas authorized by the Secretary in consultation with the Secretary of Labor in January of 2022 for petitions with start dates on or before March 31, 2022. In addition to making the additional 35,000 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 96 (Wednesday, May 18, 2022)</title>
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[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Rules and Regulations]
[Pages 30334-30379]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10631]
[[Page 30333]]
Vol. 87
Wednesday,
No. 96
May 18, 2022
Part II
Department of Homeland Security
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8 CFR Part 214, 274a
Department of Labor
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Employment and Training Administration and Wage and Hour Division
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Numerical Limitation
for Second Half of FY 2022 for the H-2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers; Final Rule
Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules
and Regulations
[[Page 30334]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2719-22]
RIN 1615-AC79
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2022-0004]
RIN 1205-AC10
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for Second Half of FY 2022 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers
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 again increasing the total number of noncitizens who
may receive an H-2B nonimmigrant visa by authorizing the issuance of no
more than 35,000 additional visas during the second half of FY 2022 for
positions with start dates on or after April 1, 2022 through September
30, 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. This number is in addition to the 20,000 H-2B
visas authorized by the Secretary in consultation with the Secretary of
Labor in January of 2022 for petitions with start dates on or before
March 31, 2022. In addition to making the additional 35,000 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 May 18, 2022 through May
18, 2025. The amendments to title 20 of the Code of Federal Regulations
in this rule are effective from May 18, 2022 through September 30,
2022, except for 20 CFR 655.66 which is effective from May 18, 2022
through September 30, 2025.
Petition dates: DHS will stop accepting petitions received after
September 15, 2022. DHS will not approve any H-2B petition under the
provisions related to the supplemental numerical allocation after
September 30, 2022. The provisions related to portability are only
available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2023.
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-6 associated with
this rule until July 18, 2022.
ADDRESSES: You may submit written comments on the new information
collection Form ETA-9142B-CAA-6, 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-6: 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 2022 Omnibus
D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocation of up to 35,000 Visas
C. Returning Workers
D. Returning Worker Exemption for up to 11,500 Visas for
Nationals of Guatemala, El Salvador, and Honduras (Northern Central
American 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 35,000 H-2B visas
for the second half of FY 2022 positions with start dates on or after
April 1, 2022 through September 30, 2022, subject to certain
conditions. The 35,000 visas are divided into two allocations, as
follows:
<bullet> 23,500 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> 11,500 visas reserved for nationals of El Salvador,
Guatemala, and Honduras (Northern Central American 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
[[Page 30335]]
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 I-129, Petition for Nonimmigrant Worker, with
USCIS;
<bullet> Properly file the Form I-129, Petition for Nonimmigrant
Worker, with USCIS on or before September 15, 2022, requesting an
employment start date on or after April 1, 2022 through September 30,
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
11,500 cap exempt from the returning worker requirement; 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 obtain 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 30 or more days after the
certified start date on the TLC, must attest to engaging in the
following additional steps to recruit U.S. workers:
<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;
<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; and
<bullet> Where the occupation is traditionally or customarily
unionized, provide written notification of the job opportunity to the
nearest American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) office covering the area of intended
employment, by providing a copy of the job order and requesting
assistance in recruiting qualified U.S. workers for the job
opportunity.
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.
Through audits and investigations, both Departments have received
evidence of employer non-compliance with the terms and conditions of
the H-2B program, as well as violations of other labor and employment
laws. USCIS Fraud Detection and National Security (FDNS) Headquarters
found that instances of non-compliance encountered by field USCIS FDNS
personnel could be parsed into four areas: (1) Failure to pay the
promised wage; (2) failure to demonstrate irreparable harm; (3) failure
to employ returning workers; and (4) failure to work at the listed
location.
Such non-compliance can harm U.S. workers by undermining wages and
working conditions. It also directly harms H-2B workers. Further, H-2B
workers depend on ongoing employment with the petitioning employer to
maintain status in the United States. This dependence creates a power
imbalance between the employer and H-2B worker, making the H-2B worker
particularly vulnerable to violations. Recognizing the substantial
impact that non-compliance can have on both U.S. workers and H-2B
workers, DHS and DOL intend to conduct a significant number of audits
focusing on irreparable harm and other worker protection provisions.
DHS will also subject employers that have committed labor law
violations in the H-2B program to additional scrutiny in the
supplemental cap petition process. This additional scrutiny is aimed at
ensuring compliance with H-2B program requirements and obligations.
Specifically, falsifying information in H-2B program attestation(s)
can result not only in penalties relating to perjury, but 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-2B
program and any other foreign labor programs administered by DOL.
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.
H-2B Portability
In addition to exercising its time-limited authority to make
additional FY 2022 H-2B visas available, DHS is again providing
additional flexibilities to H-2B petitioners under its general
programmatic authority by allowing nonimmigrant workers in the United
States \2\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after July 28, 2022, or who are
the beneficiaries of non-frivolous H-2B petitions that are pending as
of July 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 provision's effective date of July 28, 2022, in other
words, after January 24, 2023.
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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
[[Page 30336]]
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 the [Secretary] may by regulations
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA
section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3)
(prohibiting employment of noncitizens \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
[[Page 30337]]
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, DOL typically sees a
significant spike in TLC applications from employers seeking to hire H-
2B temporary or seasonal workers prior to the United States' warm
weather months. For example, in FY 2022, based on TLC applications
filed during the 3-day filing window of January 1 through 3, 2022,
DOL's Office of Foreign Labor Certification (OFLC) received a total of
7,875 H-2B applications requesting 136,555 worker positions with an
April 1, 2022, or later, work start date.\11\ USCIS, in turn, received
sufficient H-2B petitions to reach the second half of the fiscal year
statutory cap by February 25, 2022.\12\ Though not as early as recent
years, this date continues to reflect an ongoing trend of higher H-2B
demand in the second 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; \13\ and
(2) for the last several 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); \14\ section 105 of Division O of the
Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021
Omnibus); and section 105 of Division O of the Consolidated
Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of
Division A of Public Law 117-43, Continuing Appropriations Act, 2022,
and section 101 of Division A of Public Law 117-70, Further Continuing
Appropriations Act, 2022 through February 18, 2022 (together, previous
FY 2022 authority). The authorization for the current supplemental cap
is under section 204 of Division O of the Consolidated Appropriations
Act, 2022, Public Law 117-103 (FY 2022 Omnibus), 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\ DOL, Announcements, OFLC Conducts Randomization Process on
H-2B Applications Submitted Requesting an April 1, 2022, Work Start
Date, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (Jan. 4,
2022). For historical context, with the FY 2021 statutory cap, DOL
announced on January 5, 2021 that it received requests to certify
96,641 worker positions for start dates of work on April 1, 2021.
DOL, Announcements, OFLC Conducts Randomization Process on H-2B
Applications Submitted Requesting an April 1, 2021, Work Start Date,
<a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (Jan. 5, 2021).
On February 24, 2021, USCIS announced that it had received a
sufficient number of petitions to reach the congressionally mandated
H-2B cap for FY 2021. On February 12, 2021, the number of
beneficiaries listed on petitions received by USCIS surpassed the
total number of remaining H-2B visas available against the H-2B cap
for the second half of FY 2021. In accordance with regulations,
USCIS determined it was necessary to use a computer generated
process, commonly known as a lottery, to ensure the fair and orderly
allocation of H-2B visa numbers to meet, but not exceed, the
remainder of the FY 2021 cap. 8 CFR 214.2(h)(8)(vii). On February
17, 2021, USCIS conducted a lottery to randomly select petitions
from those received on February 12, 2021. USCIS, H-2B Cap Reached
for Second Half of FY2021, <a href="https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021">https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021</a> (Feb. 24, 2021).
\12\ USCIS, H-2B Cap Reached for Second Half of FY2022, <a href="https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022</a> (Mar. 1, 2022).
\13\ 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 authority expired on September 30, 2016.
\14\ 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 2022 Omnibus
On March 15, 2022, President Joseph Biden signed the FY 2022
Omnibus which contains a provision, section 204 of Division O, Title
II, 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 204 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] 2022 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 2022 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.\15\ The Secretary of
Homeland Security has consulted with the Secretary of Labor, and this
rule implements the authority contained in section 204.
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\15\ 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).
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Under the authority contained in section 204, DHS and DOL are
jointly publishing this temporary final rule to authorize the issuance
of no more than 35,000 additional visas through the end of the second
half of FY 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 this FY 2022 supplemental cap authority on or
after October 1, 2022.
As noted above, since FY 2017, Congress has enacted a series of
public
[[Page 30338]]
laws providing the Secretary of Homeland Security with the
discretionary authority to increase the H-2B cap beyond the annual
numerical limitation set forth in section 214 of the INA. The previous
statutory provisions were materially identical to section 204 of the FY
2022 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, as well as during FY 2021 and in the first half of FY
2022, 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.\16\ 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.\17\ 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.\18\ The vast majority of the H-2B petitions
received under the FY 2017 and FY 2018 supplemental caps requested
premium processing \19\ and were adjudicated within 15 calendar days.
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\16\ 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).
\17\ 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>.
\18\ 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.
\19\ 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.\20\ 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.\21\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\20\ 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).
\21\ 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.\22\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\23\ 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.\24\ DHS also noted that the Department of State had
suspended routine visa services.\25\
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\22\ 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>.
\23\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\24\ <a href="https://twitter.com/DHSgov/status/1245745115458568192?s=20">https://twitter.com/DHSgov/status/1245745115458568192?s=20</a>.
\25\ <a href="https://twitter.com/DHSgov/status/1245745116528156673">https://twitter.com/DHSgov/status/1245745116528156673</a>.
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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 for FY 2021 coupled with additional
protections (for example, post-adjudication audits, investigations, and
compliance checks), based on the demand for H-2B workers in the second
half of FY 2021, 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.\26\ 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 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.\27\ The total number of H-2B
workers approved towards the FY 2021 supplemental cap increase was
30,681.\28\ This total number included approved H-2B petitions for
23,876
[[Page 30339]]
returning workers, as well as 6,805 beneficiaries from the Northern
Central American countries.\29\
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\26\ 86 FR 28198 (May 25, 2021).
\27\ <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).
\28\ The number of approved workers exceeded the number of
additional visas authorized for FY 2021 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. USCIS H-2B petition approval data pulled from
CLAIMS3 on March 16, 2022.
\29\ USCIS H-2B petition approval data pulled from CLAIMS3 on
March 16, 2022.
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Similarly, earlier in FY 2022, DHS in consultation with DOL
determined it was 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, continuing
economic growth, increased labor demand, and increased visa processing
capacity by the Department of State. Accordingly, on January 28, 2022,
DHS and DOL jointly published a temporary final rule authorizing an
increase of up to 20,000 additional H-2B visas for the first half of FY
2022.\30\ These supplemental visas were available only to employers
that attested they were suffering or would suffer impending irreparable
harm without the additional workers. The allocation of 20,000
additional H-2B visas under that rule consisted of 13,500 visas
available only to H-2B returning workers from one of the last three
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were
exempted from the returning worker requirement. As of March 31, 2022,
the total number of H-2B workers approved towards the first half FY
2022 supplemental cap increase was 17,185, including 14,069 workers
under the returning worker allocation, as well as 3,116 workers
approved towards the Haitian/Northern Central American allocation.\31\
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\30\ 87 FR 4722 (Jan. 28, 2022); 87 FR 6017 (Feb. 3, 2022)
(correction).
\31\ USCIS H-2B petition approval data pulled from CLAIMS3 on
March 31, 2022.
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DHS in consultation with DOL believes that it is appropriate to
further increase the H-2B cap through the end of the second half of FY
2022 based on the demand for H-2B workers in the second half of FY
2022, recent and continuing economic growth, increased labor
demand,\32\ and increased visa processing capacity by the Department of
State. DHS and DOL also believe that it is appropriate to couple this
cap increase with additional worker protections, as described below.
---------------------------------------------------------------------------
\32\ The term ``increased labor demand'' in this context relies
on the most recently released figure from a Bureau of Labor
Statistics (BLS) survey at the time this TFR was written. The BLS
Job Openings and Labor Turnover Survey (JOLTS) reports 11.3 million
job openings in February 2022 (compared to 7.4 million job openings
in February 2021). See Bureau of Labor Statistics, Job Openings and
Labor Turnover Survey released on March 29, 2022 at <a href="https://www.bls.gov/news.release/archives/jolts_03292022.pdf">https://www.bls.gov/news.release/archives/jolts_03292022.pdf</a>, and the
February 2021 survey released on April 6, 2021 at <a href="https://www.bls.gov/news.release/archives/jolts_04062021.pdf">https://www.bls.gov/news.release/archives/jolts_04062021.pdf</a>.
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D. Joint Issuance of the Final Rule
As we did in FY 2017, FY 2018, FY 2019, FY 2021, and for the first
half of FY 2022, DHS and DOL (the Departments) have determined that it
is appropriate to jointly issue this temporary final rule.\33\ 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.\34\ Although
DHS and DOL each have authority to independently issue rules
implementing their respective duties under the H-2B program,\35\ 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).\36\
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\33\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84
FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021); 87 FR 4722 (Jan.
28, 2022).
\34\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021);
see also Temporary Non-Agricultural Employment of H-2B Aliens in the
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
\35\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\36\ 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 for the remainder of FY 2022 with U.S.
workers who are willing, qualified, and able to perform temporary
nonagricultural labor. In accordance with section 204 of the FY 2022
Omnibus, the Secretary of Homeland Security has determined that it is
appropriate, for the reasons stated below, to raise the numerical
limitation on H-2B nonimmigrant visas through the end of the second
half of FY 2022 for positions with start dates on or after April 1,
2022 through September 30, 2022 up to 35,000 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 we did in connection with the FY 2021 and prior FY2022 H-2B
supplemental visa temporary final rules, and consistent with existing
authority, DHS and DOL intend to conduct a significant number of audits
with respect to petitions filed under this TFR requesting supplemental
H-2B visas, 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. Of the audits completed so far, some audits
conducted of employers that received visas under the supplemental caps
in FY 2021 and the first half of FY 2022 revealed concerns surrounding
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 he
did in FY 2021 and earlier in FY 2022, 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 11,500 of the 35,000 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.\37\ These H-2B visas are
being
[[Page 30340]]
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 nationals of the Northern Central American countries.\38\
DHS observed robust employer interest in response to the FY 2021 H-2B
supplemental visa allocation for Salvadoran, Guatemalan, and Honduran
nationals and the previous FY 2022 supplemental visa allocation for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, with USCIS
approving petitions on behalf of 6,805 beneficiaries under the FY 2021
allocation,\39\ and 3,116 beneficiaries as of March 31, 2022, under the
FY 2022 allocation for the first half of the fiscal year.\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, Honduras, and Haiti 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 these
countries.\41\
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\37\ 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 204 of the FY 2022 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 2022 Omnibus div. O, sec. 204 (``Notwithstanding the
numerical limitation set forth in section 214(g)(1)(B) of the [INA]
. . . .'').
\38\ 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>. E.O. 14010 referred to the
three countries of El Salvador, Guatemala, and Honduras as the
``Northern Triangle'', but this rule refers to these countries
collectively as the Northern Central American countries.
\39\ While USCIS approved a greater number of beneficiaries from
the Northern Central American countries than the 6,000 visas
allocated under the FY 2021 supplemental cap for those countries,
the Department of State issued 3,065 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 Northern Central
American 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 Central American countries, will
contribute to greater utilization of available visas under this
allocation during FY 2022.
\40\ USCIS H-2B petition approval data pulled from CLAIMS3 on
March 31, 2022.
\41\ Id.
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Similar to the temporary final rules for the FY 2019, FY 2021 and
previous FY 2022 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,\42\ unless the
employer indicates on the new attestation form that it is requesting
workers who are nationals of one of the Northern Central American
countries or Haiti and who are therefore counted towards the 11,500
allotment regardless of whether they are new or returning workers. If
the 11,500 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 Central American 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. Like the temporary final rule for the
first half of FY 2022, if the 11,500 returning worker exemption cap for
nationals of the Northern Central American countries and Haiti remains
unfilled, DHS will not make unfilled visas reserved for Northern
Central American countries and Haiti available to the general returning
worker cap.
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\42\ 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.\43\ 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.\44\
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\43\ See the docket for this rulemaking for access to these
letters.
\44\ 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.\45\ 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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\45\ 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 Apr. 5, 2022).
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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 204 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 35,000
additional visas, for positions with start dates on or after April 1,
2022 through September 30, 2022, solely for the businesses facing
permanent, severe financial loss or those who will face such loss in
the near future.
First, DHS interprets section 204's reference to ``the needs of
American
[[Page 30341]]
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 204 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
previous fiscal years, and provides protections against adverse effects
on U.S. workers that may result from a cap increase, including, as in
previous rules, requiring employers seeking H-2B workers under the
supplemental cap to engage in additional recruitment efforts for U.S.
workers. Additionally, 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
after April 1, 2022 through September 30, 2022, the Secretary of
Homeland Security has determined that employers may petition for
supplemental visas on behalf of up to 23,500 workers who were issued an
H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or
2021. 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.\46\
Such workers (in other words, those who recently participated in the H-
2B program and who now seek a new H-2B visa from DOS) have previously
obtained H-2B visas and therefore have been vetted by DOS, would have
departed the United States as generally required by the terms of their
nonimmigrant admission, and therefore may obtain their new visas
through DOS and begin work more expeditiously.\47\ DOS has informed DHS
that, in general, H-2B visa applicants who are able to demonstrate
clearly that they have previously abided by the terms of their status
granted by DHS have a higher visa issuance rate when applying to renew
their H-2B visas, as compared with the overall visa applicant pool from
a given country. Furthermore, consular officers are authorized to waive
the in-person interview requirement for certain nonimmigrant visa
applicants, including certain H-2B applicants, who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h).\48\ We note that DOS has, in response to the COVID-19
pandemic, expanded interview waiver eligibility to certain first-time
H-2 applicants,\49\ 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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\46\ 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.
\47\ 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 in-person interview
requirementof certain nonimmigrant visa applicants. See, e.g., 86 FR
70735 (Dec. 13, 2021); see also 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).
\48\ Some consular sections waive the in-person interview
requirement for certain H-2B applicants who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). Through December 31, 2022, certain first-time H-2B visa
applicants, and certain H-2B visa applicants previously issued any
type of visa within the last 48 months may be eligible for interview
waiver. Additionally, certain H-2B applicants renewing visas in the
same classification within 48 months of the prior visa's expiration
are eligible for interview waiver. This waiver authorityvisa
expiring has no sunset date. 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).
\49\ The authority allowing for waiver of interview of certain
first-time 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 when they have
completed their temporary labor or services or their period of
authorized stay, which is a condition of H-2B status. The returning
worker condition therefore provides a basis to believe that H-2B
workers under this cap increase will again abide by the terms and
conditions of their visa or nonimmigrant status. The returning worker
condition also benefits employers that seek to re-hire known and
trusted workers who have a proven positive employment track record
while previously employed as workers in this country. While the
Departments recognize that the returning worker requirement may limit
to an extent the flexibility of employers that might wish to hire non-
returning workers, the requirement provides an important safeguard
against H-2B abuse, which DHS considers to be a significant
consideration.
In allocating up to 11,500 H-2B visas to nationals of the Northern
Central American countries and Haiti while making the remaining
allocation of up to 23,500 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 Central American 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 11,500 supplemental visas only to
nationals of the Northern Central American countries or Haiti and
exempting such persons from the returning worker requirement. The
[[Page 30342]]
Secretary of Homeland Security has determined that both the 11,500
limitation and the exemption from the returning worker requirement for
nationals of the Northern Central American countries is again
beneficial in light of 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 nationals of the
Northern Central American 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. Like the temporary final rule for the first half of FY 2022,
DHS believes that including nationals of Haiti in this allocation of up
to 11,500 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.\50\ As
DHS emphasized in its November 10, 2021 Federal Register 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.\51\
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\50\ We note Congress' recent statement, in a separate provision
within the FY 2022 Omnibus, that it is the policy of the United
States to support the sustainable rebuilding and development of
Haiti. See Section 102 of Division V of the Consolidated
Appropriations Act, 2022, Public Law 117-103. See also 86 FR 62562
(sustainable development and the stability of Haiti is vital to the
interests of the United States as a close partner and neighbor).
\51\ 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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The exemption from the returning worker requirement recognizes the
small numbers of individuals, approximately 4,750 per year, from the
three Northern Central American countries and Haiti who were previously
granted H-2B visas in recent years.\52\ 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
nationals of the Northern Central American countries and Haiti.
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\52\ DOS issued a combined total of approximately 33,275 H-2B
visas to nationals of the Northern Central American countries and
Haiti from FY 2015 through FY 2021, or approximately 4,750 per year.
See DOS, Monthly NIV Issuances, <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 Mar. 15, 2022); Monthly Nonimmigrant
Visa Issuance Statistics by Nationality and Visa Class, <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html</a> (last visited Mar. 15, 2022).
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Finally, like the temporary final rule for the first half of FY
2022 supplemental cap, this rule does not make available unfilled visas
from the allocation for nationals of the Northern Central American
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
Central American countries and Haiti after September 15, 2022. This end
date should provide H-2B employers ample time, should they choose, to
petition for, and bring in, workers under the allocation for the
Northern Central American 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 35,000 visas for positions with start dates on or before September
30, 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 Central American countries or Haiti counted
towards the 11,500 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 35,000 Visas
The increase of up to 35,000 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 September
30, 2022.\53\ The determination to allow up to 35,000 additional H-2B
visas reflects a balancing of a number of factors including the demand
for H-2B visas for the second half of FY 2022; current economic
conditions; the general trend
[[Page 30343]]
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 in the fiscal year; 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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\53\ 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 204 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 204 to
change to H-2B status from another nonimmigrant status. See INA
section 248, 8 U.S.C. 1258; see also 8 CFR part 248. If a petitioner
files a petition seeking H-2B workers in accordance with this rule
and requests a change of status on behalf of someone in the United
States, the change of status request will be denied, but the
petition will be adjudicated in accordance with applicable DHS
regulations. Any noncitizen authorized for H-2B status under the
approved petition would need to obtain the necessary H-2B visa at a
consular post abroad and then seek admission to the United States in
H-2B status at a port of entry.
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Section 204 of the FY 2022 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 2022.\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 during the second
half of 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 35,000 additional visas
under the FY 2022 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 nationals
of the Northern Central American 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
11,500 of the up to 35,000 additional visas and exempting this number
from the returning worker requirement for nationals from the Northern
Central American 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
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 Central American countries.\56\ Of the petitions
received, USCIS issued approvals for 30,681 beneficiaries, including
approvals for 6,805 beneficiaries under the allocation for the
nationals of the Northern Central American countries.\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 Central American 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 Central American countries by
the July 8 filing deadline, the remaining visas were available to H-
2B returning workers regardless of their country of origin. See
<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. Unlike these past
supplemental cap TFRs, petitions filed under the first half FY 2022
TFR did not exceed the additional allocation of 20,000 H-2B visas
provided by that rule. Under the previous FY 2022 supplemental cap
for petitions with start dates in the first half of FY 2022, as of
March 31, 2022, USCIS had issued approvals for 17,185 beneficiaries,
including approvals for 3,116 beneficiaries under the allocation for
nationals of the Northern Central American countries and Haiti.
USCIS H-2B petition approval data pulled from CLAIMS3 on March 31,
2022.
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Data for the second half of FY 2022 clearly indicate an immediate
need for additional supplemental H-2B visas through the end of FY 2022.
As of March 31, 2022, DOL's Office of Foreign Labor Certification
(OFLC) reports having approved 4,771 TLC applications with requested
dates of need in the second half of FY 2022 for 79,947 H-2B
workers.\58\ Furthermore, USCIS received a sufficient number of H-2B
petitions to reach the second half of the FY 2022 fiscal year statutory
cap on February 25, 2022.\59\
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\58\ DOL OFLC memo to USCIS Office of Policy and Strategy March
31, 2022.
\59\ On March 1, 2022, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the second half
of fiscal year 2022, and that February 25, 2022 was the final
receipt date for new cap-subject H-2B worker petitions requesting an
employment start date on or after April 1, 2022, and before October
1, 2022. See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2022, <a href="https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022</a> (Mar. 1, 2022).
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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 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.
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\60\ See HHS, Renewal of Determination That A Public Health
Emergency Exists, <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx</a> (Apr. 12, 2022).
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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
[[Page 30344]]
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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\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 March 29, 2022 Job
Openings and Labor Turnover Survey (JOLTS) show that the rate of job
openings \62\ increased for all 5 industries between February 2021 and
February 2022. The job opening rate for NAICS 56 \63\ increased from
6.7 to 8.7 while the job opening rate for NAICS 71 went from 8.0 to
8.5. The job opening rate for NAICS 72 went from 6.7 to 10.2 while the
rate for NAICS 23 went from 3.4 to 4.8. The job opening rate for NAICS
11 \64\ increased from 3.5 to 5.4.
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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/archives/jolts_03292022.htm">https://www.bls.gov/news.release/archives/jolts_03292022.htm</a>
(last visited April 4, 2022).
\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 March 2022, from the Department of Labor's Current
Employment Statistics program indicates that NAICS 56 accounted for
just under 43% of employment in Professional Business Services. All
data accessed April 28, 2022.
\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 March 2022, from the Department of Labor's Current
Employment Statistics program indicates that NAICS 11 accounted for
just over 7% of employment in Natural Resources and Mining. All data
accessed April 28, 2022.
Year-Over-Year Change in Job Opening Rate \65\
----------------------------------------------------------------------------------------------------------------
NAICS 11 NAICS 23 NAICS 56 NAICS 71 NAICS 72
----------------------------------------------------------------------------------------------------------------
1.9 1.4 2.0 0.5 3.5
----------------------------------------------------------------------------------------------------------------
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 February 2022 value for the respective industry and the
February 2021 value. See <a href="https://www.bls.gov/jlt/#data">https://www.bls.gov/jlt/#data</a>. All data
accessed March 29, 2022.
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Other economy-wide data also indicate that labor-market tightness
exists. The most recent Employment Situation released by the Bureau of
Labor Statistics stated that the unemployment rate decreased to 3.6% in
March 2022.\66\ Historically, the availability of H-2B visas addressed
a need in the labor market during periods of lower unemployment,
additionally, when the unemployment rate is below 6% there is greater
variance of H-2B visas. Chart 1 \67\ shows that the estimated total H-
2B visa issuance for Fiscal Year 2022 \68\ is within past allocations
of this program. The data presented here is meant to provide additional
context and to demonstrate that the total allocation of H-2B visas is
reasonable given labor market conditions.
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\66\ <a href="https://www.bls.gov/news.release/archives/empsit_04012022.htm">https://www.bls.gov/news.release/archives/empsit_04012022.htm</a>.
\67\ Annual data presented here is on a fiscal year basis.
Fiscal year averages were calculated by taking the average of the
monthly unemployment rate for the months in each respective fiscal
year (October-September). Data for 2022 are based on data for
October 2021-March 2022.
\68\ Estimated visas issued for Fiscal Year 2022 is based on the
sum of the fiscal year statutory cap for H-2B workers (66,000), the
supplemental allocation for the first half of Fiscal Year 2022
(20,000), and the supplemental allocation described in this Rule
(35,000). Additionally, because H-2B visa issuance numbers generally
exceed the number of allocated H-2B visas due to the cap exemptions
USCIS estimated total FY2022 visa issuance by first calculating the
ratio of visas issued to visas allocated over the last 5 fiscal
years (XXX/YYY=Z) and then applying that ratio to the H-2B visa
allocations for Fiscal Year 2022.
[GRAPHIC] [TIFF OMITTED] TN18MY22.004
[[Page 30345]]
In addition, DOS announced in November 2021 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,\69\ 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.\70\ To further streamline nonimmigrant visa processing,
the Bureau of Consular Affairs used its authority to waive in-person
visa interviews for certain H-2 applicants through December 31, 2022,
and beyond 2022 for applicants renewing a visa in the same
classification within 48 months of the visa's expiration.\71\ We note,
however, that in response to continued concerns about COVID variants,
including the highly contagious Omicron variant and its most common
lineages,\72\ the Centers for Disease Control and Prevention (CDC)
updated testing requirements for international air travel to the United
States, which may have an impact on such travel.\73\ Given the level of
demand for H-2B workers, the continued economic recovery, the continued
and projected job growth, and the resumption of visa processing
services, DHS believes it is appropriate to release additional visas at
this time. Further, DHS believes that 35,000 is an appropriate number
of visas for the reasons discussed above.
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\69\ Proclamation 10294 of Oct. 25, 2021, Advancing the Safe
Resumption of Global Travel During the COVID-19 Pandemic, 86 FR
59603 (Oct. 28, 2021).
\70\ See 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).
\71\ See 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).
\72\ See CDC, Omicron Variant: What You Need to Know, <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html</a>
(last updated Mar. 29. 2022).
\73\ See CDC, Requirement for Proof of Negative COVID-19 Test or
Documentation of Recovery from COVID-19, <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html">https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html</a> (updated Jan. 27, 2022). The amended updates state,
``All air passengers 2 years or older with a flight departing to the
U.S. from a foreign country at or after 12:01a.m. EST (5:01a.m. GMT)
on December 6, 2021, are required [to] show a negative COVID-19
viral test result taken no more than 1 day before travel, or
documentation of having recovered from COVID-19 in the past 90 days,
before they board their flight.'' 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 prior to the end of the fiscal year.
Specifically, the following scenarios may still occur:
<bullet> The 23,500 supplemental cap visas limited to returning
workers that will be immediately available for employers will be
reached before September 15, 2022.
<bullet> The 11,500 supplemental cap visas limited to nationals of
the Northern Central American countries and Haiti will be reached
before September 15, 2022.
DHS regulation, 8 CFR 214.2(h)(6)(xii)(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 23,500 supplemental cap
visas for returning workers is reached before September 15, 2022; or
the 11,500 visas limited to nationals of the Northern Central American
countries and Haiti is reached before September 15, 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, FY 2021, and the
first half of FY 2022 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
Central American countries or Haiti and is counted towards the separate
11,500 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 as generally required by the terms of their
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 Central American countries or Haiti and is
counted towards the 11,500 cap. This attestation will serve as prima
facie initial evidence to DHS that each worker, unless a national of
one of the Northern Central American countries or Haiti who is counted
against the 11,500 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, as
otherwise discussed in this rule.
[[Page 30346]]
D. Returning Worker Exemption for Up to 11,500 Visas for Nationals of
Guatemala, El Salvador, and Honduras (Northern Central American
Countries) and Haiti
As described above, the Secretary of Homeland Security has
determined that up to 11,500 additional H-2B visas will be limited to
workers who are nationals of one of the Northern Central American
countries or Haiti. These 11,500 visas will be exempt from the
returning worker requirement. If the 11,500 visa limit has been reached
and the 23,500 returning worker cap has not, petitioners may continue
to request workers who are nationals of one of the Northern Central
American 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 11,500 supplemental H-2B visas
for nationals of the Northern Central American 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 Central American
countries and Haiti seeking a legal pathway for temporary employment in
the United States. DHS also believes its outreach efforts with the
governments of the Northern Central American countries and Haiti, along
with efforts in some of these countries by the United States Agency for
International Development (USAID) to increase access to the H-2B
program, support the decision to provide a higher reservation of H-2B
visas for these countries than it has in prior recent TFRs. USAID has
worked to build government capacity in Northern Central America to
facilitate access to temporary worker visas under the H-2 program.
These efforts focus on systematic, orderly, and safe recruitment of
workers, engagement with U.S. employers, and strengthening worker
protections. In Fiscal Year 2021, USAID increased funding to expand
capacity building activities in El Salvador, Guatemala, and Honduras in
response to the increased demand generated by the supplemental
allocation of 6,000 H-2B visas for Northern Central American nationals
included in the FY 2021 TFR. The acceleration of USAID's activities in
FY 2021 likely helped increase uptake of H-2B visas issuance under the
FY 2021 TFR, as H-2B visa issuances to Salvadorans, Guatemalans and
Hondurans exceeded pre-pandemic levels by nearly 40 percent in FY
2021,\74\ and USAID's assistance helped reduce the average period of
time to match qualified workers from these three countries to requests
from U.S. employers--most significantly in Honduras, from 24 days to
nine days. USAID's programs also strengthen worker protections by
helping crowd out unethical recruiters and providing labor rights
education and resources to seasonal workers.
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\74\ See 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 Mar.
15, 2022); Monthly Nonimmigrant Visa Issuance Statistics, <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html</a> (last visited Mar. 15, 2022).
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DOS issued a combined total of approximately 26,630 H-2B visas to
nationals of the Northern Central American countries or Haiti from FY
2015 through FY 2020, an average of approximately 4,400 per year.\75\
In FY 2021, DOS issued a combined total of more than 6,600 visas to
nationals of Northern Central American countries. This increase is
likely due in 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.\76\ In addition, based in part on the vital U.S.
interest of promoting sustainable development and the stability of
Haiti, in November 2021, DHS added Haiti to the list of countries whose
nationals are eligible to participate in the H-2A and H-2B
programs.\77\ 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 Central American countries and Haiti.
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\75\ Id.
\76\ Id.
\77\ 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 Central
American 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
Central American 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.\78\ The availability of workers from the Northern Central
American countries and Haiti may promote safe and lawful immigration to
the United States, as well as help provide U.S. employers with
additional labor from neighboring countries with whom the Biden
administration and DHS have engaged in outreach efforts to promote the
H-2B program.
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\78\ 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,\79\ 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
[[Page 30347]]
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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\79\ As noted previously, some consular sections may waive the
in-person interview requirement for H-2B applicants whose prior visa
expired within a specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The authority allowing for waiver of interview of certain
H-2 (temporary agricultural and non-agricultural workers) applicants
is extended through the end of 2022. Certain applicants renewing a
visa in the same classification within 48 months of the prior visa's
expiration are also eligible for interview waiver. DOS, Important
Announcement on Waivers of the Interview Requirement for Certain
Nonimmigrant Visas, <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
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.\80\ 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,\81\ and any other necessary documentation. As
in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and
first half FY 2022 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>.\82\
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\80\ 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.''
\81\ 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).
\82\ The attestation requirement does not apply to workers who
have already been counted under the H-2B statutory cap for the
second half of fiscal year 2022 (33,000). Further, the attestation
requirement 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 that
are filing on behalf of such workers are not subject to the
attestation requirement.
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Prior to the first half FY 2022 temporary final rule, petitioners
were only 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. In the previous FY 2022 temporary final rule, the Departments
changed the standard to require employers to 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 the rule. This change was 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. This standard will be applied to the instant temporary
final rule, and employers will again be required to attest that they
are suffering irreparable harm or will suffer impending irreparable
harm without the ability to employ all of the H-2B workers requested on
the petition filed under this rule.
As noted above, Congress authorized the Secretary of Homeland
Security, in consultation with the Secretary of Labor, to increase the
total number of H-2B visas available ``upon the determination that the
needs of American businesses cannot be satisfied'' with U.S. workers
under the statutory visa cap.\83\ The 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
(upon request) documentation of that harm, it calls into question
whether their needs cannot in fact be satisfied without the ability to
employ H-2B workers.
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\83\ Public Law 117-103 Consolidated Appropriations Act, 2022,
section 204 (Mar. 15, 2022), 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 ``are suffering irreparable harm or will suffer impending
irreparable harm'' standard is also informed by the Departments'
experiences in implementing the prior business need standard. In the
Departments' experiences, the ``likely to suffer irreparable harm''
standard was difficult to assess and administer in the context of prior
supplemental cap rules. For example, employers 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 an audit. The Departments therefore believe that
asking employers to provide evidence of harm, as described in more
detail later, 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
[[Page 30348]]
document retention period discussed below.
As with petitions filed under the FY 2021 and prior FY 2022
Supplemental TFRs, 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)(xii)(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).
The attestation submitted to USCIS will also state that the
employer meets all other eligibility criteria for the available visas,
including the returning worker requirement, unless exempt because the
H-2B worker is a national of one of the Northern Central American
countries or Haiti who is counted against the 11,500 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 is a returning worker, or a national of one of
the Northern Central American 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 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 Central American countries or Haiti who
is counted against the 11,500 (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 655.66. 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 TLC processing timeframes and the time
remaining in this fiscal year. However, as noted above, the Departments
will employ program integrity measures, including additional scrutiny
by DHS of employers that have committed labor law violations in the H-
2B program and continue to conduct audits, investigations, and/or post-
adjudication compliance reviews on a significant number of H-2B
petitions. As part of that process, USCIS may issue a request for
additional evidence, a notice of intent to revoke, or a revocation
notice, based on the review of such documentation, see 8 CFR 103.2(b)
and 8 CFR 214.2(h)(11), and DOL's OFLC and WHD will be able to review
this documentation and enforce the attestations during the course of an
audit examination or investigation.
In accordance with the attestation requirements, under which
petitioners attest that they meet the irreparable harm standard, that
they are seeking to employ only returning workers (unless exempt as
described above), and they meet the document retention requirements at
new 20 CFR 655.66, the petitioner must retain documents and records
fulfilling their responsibility to demonstrate compliance with this
rule for 3 years from the date the TLC was approved, and must provide
the documents and records upon the request of DHS 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 of the attestation 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
[[Page 30349]]
dates of employment and hours worked; and/or
(4) Evidence that the petitioner is reliant on obtaining a certain
number of workers to operate, based on the nature and size of the
business, such as documentation showing the number of workers it has
needed to maintain its operations in the past, or will in the near
future need, including but not limited to: A detailed business plan,
copies of purchase orders or other requests for good and services, or
other reliable forecast of an impending need for workers.
(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 Central American countries or Haiti counted towards the 11,500
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.
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 a 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 Central American countries or Haiti counted towards the 11,500
cap, among other attestations. If DHS subsequently finds that the
evidence does not support the employer's attestations, DHS may deny or,
if the petition has already been approved, revoke the petition at any
time consistent with existing regulatory authorities. DHS may also, or
alternatively, refer to DOL for further investigation. In addition, DOL
may independently take enforcement action, including by, among other
things, debarring the petitioner from the H-2B program for not less
than 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.\84\
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\84\ 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 Mar. 29, 2022). 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 Mar. 29, 2022).\85\
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\85\ 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 204
of the FY 2022 Omnibus, 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 2022 Omnibus 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.\86\ 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 new 20 CFR 655.66, 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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\86\ The Departments' intentions with respect to non-
severability extend to all features of this rule other than the
portability provision, which is described in the section below.
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F. Portability
As an additional option for employers that cannot find U.S.
workers, and as an additional flexibility for H-2B employees seeking to
begin work with a new H-2B employer, this rule allows petitioners to
immediately employ certain H-2B workers who are present in the United
States in H-2B status without waiting for approval of the H-2B
petition, generally for a period of up to 60 days. Such workers must be
beneficiaries of a non-frivolous H-2B petition requesting an extension
of stay received on or after July 28, 2022 but no later than 180 days
after that date.\87\ 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 July
28, 2022 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
[[Page 30350]]
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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\87\ Individuals who are the beneficiaries of petitions filed on
the basis of 8 CFR 214.1(c)(4) are not eligible to port to a new
employer under 8 CFR 214.2(h)(28).
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The portability provision at new 8 CFR 214.2(h)(28)(iii)(A)(1)-(2)
is the same as the portability provision offered in the prior FY2022 H-
2B supplemental visa temporary final rule, which was codified at 8 CFR
214.2(h)(27)(iii)(A)-(B), and will begin upon the expiration of that
provision. See new 8 CFR 214.2(h)(28)(iii)(A)(1)-(2). Additionally, the
provision is similar to temporary flexibilities that DHS has used
previously to improve employer access to noncitizen workers during the
COVID-19 pandemic.\88\ The employment authorization provided under this
provision would end 15 days after USCIS denies the H-2B petition or
such petition is withdrawn. This 15-day period of employment following
an H-2B petition denial or withdrawal is consistent with prior H-2B
supplemental cap temporary final rules, as well as with existing DHS
regulations at 8 CFR 274a.12(b)(21), which allows certain E-Verify
participants to employ H-2A workers immediately upon USCIS receipt of
the H-2A petition without waiting for petition approval. DHS believes
the 15-day period of employment under this rule's portability provision
is appropriate, when a petition that has been filed on behalf of an H-2
worker is denied, given the passage of time between USCIS denial of the
H-2B petition and the petitioner receiving notice of the denial. In
addition, the provision is consistent with this temporary rule's goal
of providing increased protections and flexibility for H-2B workers, as
DHS believes immediate cessation of employment authorization under this
provision for denied or withdrawn petitions may lead to undue hardship
for noncitizens who would have only begun employment for a new H-2B
employer, and who may have relocated to take on that employment
opportunity.
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\88\ 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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The portability provision is in part intended to mitigate the harm
that petitioners may experience resulting from the continuing 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.
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).\89\ This
determination that a public health emergency exists due to COVID-19 has
subsequently been renewed eight 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, on October 15, 2021, and most recently on January 14,
2022.\90\ As well, 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.\91\ The proclamation declared
that the emergency began on March 1, 2020. On February 18, 2022,
President Biden issued a continuation of the National Emergency
concerning the COVID-19 pandemic.\92\ As of May 5, 2022, there have
been over 513 million confirmed cases of COVID-19 identified globally,
resulting in more than 6.2 million deaths.\93\ Approximately 80,758,644
cases have been identified in the United States, with about 422,261 new
cases identified in the 7 days preceding May 5, 2022, and approximately
988,595 reported deaths due to the disease.\94\
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\89\ HHS, Determination of Public Health Emergency, 85 FR 7316
(Feb. 7, 2020).
\90\ HHS, Renewal of Determination That A Public Health
Emergency Exists, <a href="https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx</a> (Jan. 14, 2022).
\91\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337 (Mar. 18, 2020).
\92\ Continuation of the National Emergency Concerning the
Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (Feb. 23,
2022); Proclamation 9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
FR 15337.
\93\ World Health Organization, WHO Coronavirus (COVID-19)
Dashboard, <a href="https://covid19.who.int/">https://covid19.who.int/</a> (last visited May 5, 2022).
\94\ Id.
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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.\95\ 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.\96\
Although routine visa services have resumed \97\ subject to local
conditions and restrictions, and DOS has expanded visa interview waiver
eligibility,\98\ the COVID-19 pandemic continues to have a significant
impact on visa processing at embassies and consulates around the
world.\99\ And as noted above, continued
[[Page 30351]]
concerns about COVID variants prompted updated testing requirements for
international air travel to the United States, which may have an impact
on such travel.
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\95\ 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).
\96\ 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).
\97\ 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).
\98\ DOS, Expanded Interview Waivers for Certain Nonimmigrant
Visa Applicants, <a href="https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/">https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/</a> (last updated Dec. 23,
2021).
\99\ See DOS, U.S. Embassy and Consulates in Mexico, Status of
Visa Processing at the U.S. Embassy and Consulates in Mexico,
<a href="https://mx.usembassy.gov/visas/">https://mx.usembassy.gov/visas/</a> (last updated March 17, 2022). For
nonimmigrant visas, the U.S. Embassy and consulates in Mexico have
resumed limited processing of visas, however, they note that,
``Applicants should expect a longer-than-normal wait time for this
service and plan accordingly.''
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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.\100\ 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.\101\ Providing that flexibility is also equitable and fair.
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\100\ 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.''
\101\ 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. This flexibility (job
portability) seeks to protect H-2B workers and also provide an
alternative to H-2B petitioners who have not been able to find U.S.
workers and who have not been able to obtain H-2B workers subject to
the statutory or supplemental caps who have the skills to perform the
job duties. In that sense as well, it is equitable and fair.
DHS is making this flexibility available for an additional 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.\102\ Evidence suggests some
variants may spread more quickly and easily than others, and while some
variants may emerge and disappear others may persist.\103\ DHS will
continue to monitor the evolving health crisis caused by COVID-19 and
may address it in future rules.
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\102\ 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 Feb. 25, 2022); as well as, CDC, Frequently Asked Questions
About COVID-19 Vaccination, <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 Feb. 28, 2022).
\103\ 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 Apr. 15, 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.\104\ 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.
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\104\ 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 Mar. 23, 2022).
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U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and
Border Protection (CBP) do not conduct enforcement actions at or near
vaccine distribution sites or clinics. Consistent with DHS' protected
areas policy, ICE and CBP generally do not carry out enforcement
actions in or near protected areas, including at medical or mental
healthcare facilities, 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.\105\
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\105\ 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 Mar.
23, 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 2022
Omnibus, the Departments are using the DOL Form ETA-9142-B--CAA-6 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-6 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)(xii)(B)(2)(iv) and 20 CFR 655.65(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.\106\ 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
[[Page 30352]]
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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\106\ See DOL, 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 Mar. 23, 2022).
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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.\107\ This obligation is also reflected as a
condition of H-2B portability under this rule. See new 8 CFR
214.2(h)(28)(iii)(B).
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\107\ 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.'' \108\ More recently,
President Biden reiterated his call on employers to provide paid time
off to their employees to get booster shots.\109\ 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.\110\ On January 22, 2022, similar
requirements entered into force at land ports of entry and ferry
terminals.\111\ The Departments therefore expect that H-2B
nonimmigrants who enter the United States under this rule will
generally be fully vaccinated against COVID-19. The 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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\108\ 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).
\109\ 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).
\110\ See 86 FR 59603 (Oct. 28, 2021) (Presidential
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC
Order).
\111\ 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 Central American 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 Central
American countries or Haiti under the 11,500 visa allocation that are
exempt from the returning worker provision must file a separate Form I-
129 for those nationals of the Northern Central American countries and
Haiti only. See new 8 CFR 214.2(h)(6)(xii). In this regard, a petition
must be filed with a single Form ETA-9142-B-CAA-6 that clearly
indicates that the petitioner is only requesting nationals from a
Northern Central American country or Haiti who are exempt from the
returning worker requirement. Specifically, if the petitioner checks
Box #5 of Form ETA-9142-B-CAA-6, then the petition accompanying that
form must be filed only on behalf of nationals of one or more of the
Northern Central American 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 Central American 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 Central American countries or Haiti.
Requiring the filing of separate petitions to request returning workers
and to request workers who are nationals of the Northern Central
American 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-6, Attestation for Employers Seeking to Employ H-2B Nonimmigrant
Workers Under Section 204 of Division O of the Further Consolidated
Appropriations Act, 2022, Public Law 117-103. See new 20 CFR 655.65.
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 655.66. Petitions submitted to DHS pursuant to the FY 2022 Omnibus
will be processed
[[Page 30353]]
in the order in which they were received within the relevant
supplemental allocation, and pursuant to processes parallel to those in
place for when numerical limitations are reached under INA section
214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10).
Based on the time-limited authority granted to DHS by section 204
of the under the FY 2022 Omnibus, DHS is notifying the public that
petitions seeking a visa under this rule may not be approved by USCIS
on or after October 1, 2022. See new 8 CFR 214.2(h)(6)(xii)(C).
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)(xii)(C).
DHS believes that 15 days from the end of the fiscal year is the
minimum time needed for petitions to be adjudicated, although USCIS
cannot guarantee the time period will be sufficient in all cases.
Therefore, even if the supplemental allocations provided in this rule
have not yet been reached, USCIS will stop accepting petitions received
after September 15, 2022. See new 8 CFR 214.2(h)(6)(xiii)(C). Such
petitions will be rejected and the filing fees will be returned.
Petitioners may choose to request premium processing of their
petitions under 8 CFR 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 new 20 CFR 655.65(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 Temporary Employment
Certification based on ``good and substantial'' cause, provided that
the employer has sufficient time to thoroughly test the domestic labor
market on an expedited basis and the OFLC certifying officer (CO) has
sufficient time to make a final determination as required by the
regulation. To rely on this provision, as the Departments explained in
the 2015 H-2B Interim Final Rule, the employer must provide the OFLC CO
with detailed information describing the ``good and substantial cause''
necessitating the waiver. Such cause may include the substantial loss
of U.S. workers due to Acts of God, or a similar unforeseeable human-
made catastrophic event that is wholly outside the employer's control,
unforeseeable changes in market conditions, or pandemic health issues.
Thus, to ensure an adequate test of the domestic labor market and to
protect the integrity of the H-2B program, the Departments clearly
intended that use of emergency procedures must be narrowly construed
and permitted in extraordinary and unforeseeable catastrophic
circumstances that have a direct impact on the employer's need for the
specific services or labor to be performed. Even under the existing H-
2B statutory visa cap structure, DOL considers USCIS' announcement(s)
that the statutory cap(s) on H-2B visas has been reached, which may
occur with regularity every six months depending on H-2B visa need, as
foreseeable, and therefore not within the meaning of ``good and
substantial cause'' that would justify a request for emergency
procedures. Accordingly, employers cannot rely solely on the
supplemental H-2B visas made available through this rule as good and
substantial cause to use emergency procedures under 20 CFR 655.17.
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)(xii), and who file an I-129 petition 30 or more days after
the certified start date of work on the TLC must conduct additional
recruitment for U.S. workers. This is particularly important as U.S.
workers continue to reenter the workforce as they become vaccinated and
boosted. 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 April 1, 2022, for
example, likely conducted their positive recruitment beginning around
late-January and ending around mid-February 2022, and continued to
consider U.S. worker applicants and referrals only until March 11,
2022.
In order to provide U.S. workers a realistic opportunity to pursue
jobs for which employers will be seeking foreign workers under this
rule, the Departments have determined that if employers file an I-129
petition 30 or more days after their 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. In previous
rules, the Departments had set the point at which new recruitment must
be conducted as being when an I-129 petition was filed 45 or more days
after the approved date of need. Under this 45-day requirement,
recruitment would have concluded 66 or more days prior to the filing of
the I-129 petition as employers do not have an obligation to provide
employment to U.S. workers 21 days before the start date of need and 45
or more days would have transpired after this date of need. After
careful consideration, the Departments have determined that recruitment
which concluded 66 or more days (e.g., several months) prior to the
filing of a visa petition does not adequately afford workers an
opportunity to apply for jobs closer to when they tend to be searching
for temporary jobs. Instead, we believe that
[[Page 30354]]
a shortened 30-day requirement better aligns with this goal and the
2015 H-2B Interim Final Rule, which found that U.S. applicants applying
for temporary positions typically offered by H-2B employers are often
not seeking job opportunities, or making informed decisions about such
work, several months in advance. See 80 FR 24041, 24071.
We also believe this change is in keeping with the intent of the
45-day requirement in the previous TFRs. Those rules have generally
published in late May, meaning all visa petitions with an April 1 start
date were filed with USCIS more than 45 days after the certified start
date of need and additional recruitment would have been required. The
economic analysis for this and the two previous TFRs assumed the number
of employers that would need to conduct additional recruitment would be
equal to the total number of anticipated filers for each TFR. See 86 FR
28223, 28224 and 87 FR 4753. The publication of this TFR in early May
means this recruitment is limited to petitions that are submitted fewer
than 45 days after the certified start date of need. By now requiring
additional recruitment be conducted if the visa petition is submitted
more than 30 days after the certified start date of need, the intent of
the previous rules will be maintained even if the rule is published
earlier than previous years. As such, to provide U.S. workers a better
opportunity to access available job opportunities, we conclude it is
prudent to shorten the time between the certified date of need and the
filing of the I-129 visa petition which triggers the additional
recruitment requirement.
An employer that files an I-129 petition under 8 CFR
214.2(h)(6)(xii) fewer than 30 days after the certified start date of
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
6, 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
30 or more days before the date they file a petition will be required
to conduct recruitment in addition to that conducted prior to being
granted labor certification and attest that the recruitment will be
conducted, as follows.
Employers that are required to engage in additional recruitment
must place a new job order for the job opportunity with the State
Workforce Agency (SWA) serving the area of intended employment no later
than the next business day after submitting an I-129 petition for H-2B
workers to USCIS, and inform the SWA that the job order is being placed
in connection with a previously submitted and certified Application for
Temporary Employment Certification for H-2B workers by providing the
SWA with the unique OFLC TLC case number.
The new 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). To
facilitate an effective dissemination of these job opportunities, DOL
encourages union(s) or hiring halls representing workers in occupations
typically used in the H-2B program to proactively contact and establish
partnerships with SWAs in order to obtain timely information on
available temporary job opportunities. This will aid the SWAs' prompt
and effective outreach under the rule. DOL's OFLC maintains a
comprehensive directory of contact information for each SWA at <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
[[Page 30355]]
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) of new 20 CFR 655.65 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)(xii) 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).
When a job is in a traditionally or customarily unionized
occupation or industry and during the time the SWA is actively
circulating the job order, the employer must affirmatively contact the
nearest American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) office covering the area of intended employment
to provide written notice of the job opportunity and request assistance
in recruiting qualified U.S. workers who may be interested in applying
for the job opportunity. The employer must provide the AFL-CIO office
(by mail, email, or other effective written means) a copy of the job
order placed with the SWA. To determine which occupations are
traditionally or customarily unionized, and to obtain information about
the proper AFL-CIO office to contact,\112\ employers should search the
resources available on the OFLC website, under the ``Customarily
Unionized H-2B Occupations'' tab on the lefthand side of the OFLC
homepage: <a href="https://www.dol.gov/agencies/eta/foreign-labor">https://www.dol.gov/agencies/eta/foreign-labor</a>.\113\
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\112\ The Departments have determined that the requirement for
employers to contact the nearest AFL-CIO office properly balances
the goal of increasing U.S. worker outreach in those H-2B job
opportunities that are in traditionally or customarily unionized
occupations, while still providing employers with necessary guidance
on recruitment requirements. The AFL-CIO is a voluntary federation
of 57 national and international labor unions coverying a
substantial number of union employees. AFL-CIO, About Us, <a href="https://aflcio.org/about-us">https://aflcio.org/about-us</a> (last visited Apr. 21, 2022). The H-2B job
opportunities in traditionally or customarily unionized occupations
most frequentlyfall within those industries most likely to be
organized or represented by AFL-CIO member unions.
\113\ These resources were developed based on recent information
received from stakeholders indicating that collective bargaining
agreements now exist in certain occupations, such as landscaping. In
addition, the occupations or industries listed are ones in which the
Department has typically observed substantial union presence in its
program administration experience, such as occupations involved in
public sector employment, construction and extraction activities,
and service related industries, where historical Bureau of Labor
Statistics data has demonstrated a presence of union affiliated
workers. See BLS, Economic News Release, Table 3. Union Affiliation
of Employed Wage and Salary Workers by Occupation and Industry (Jan.
20, 2022), <a href="https://www.bls.gov/news.release/union2.t03.htm">https://www.bls.gov/news.release/union2.t03.htm</a>.
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When applicable, the employer must include information in its
recruitment report confirming that the AFL-CIO office was contacted and
notified in writing of the job opportunity or opportunities. In the
recruitment report, the employer must state whether the nearest AFL-CIO
office referred qualified U.S. worker(s), including the number of
referrals, or indicate that it was non-responsive to the employer's
requests. The employer must retain all documentation establishing that
it has contacted the AFL-CIO office and submit all such information
upon request from the Departments. Documentation or evidence that would
help employers establish that the appropriate AFL-CIO office was
contacted, may include, but is not limited to: Documentation proving
the job order was shipped and delivered to the AFL-CIO office (e.g.,
copy of the job order along with the certificate of shipment provided
by the U.S. Postal Service or other courier mail or parcel delivery
services and/or any other form of delivery confirmation); evidence
confirming that the job order, along with a request for assistance to
recruit workers, was in fact emailed to the appropriate AFL-CIO office
(e.g., copies of emails); phone records accompanied by proof of a
follow-up email sending the job order to the appropriate AFL-CIO
office; or copies of any correspondence exchanged (e.g., letter, email)
between the employer and the AFL-CIO office regarding worker referrals.
We believe the requirement that employers contact the AFL-CIO in
occupations or industries that are traditionally or customarily
unionized will complement the requirement that SWAs circulate the job
order to the State Federation of Labor and local unions in such
situations, thereby increasing the likelihood that a U.S. worker will
be recruited for the job opportunity. This is because in traditionally
or customarily unionized industries and occupations,
[[Page 30356]]
unions serve as an essential conduit for communications between U.S.
workers and hiring employers and have traditionally been recognized as
a reliable source of referrals of U.S. workers. Unionized applicants
may additionally share information about the job opportunity with
nonunionized applicants, resulting in more referrals of qualified
applicants to the job opportunity. Within this context, the two
requirements complement each other as the State Federations of Labor
and local unions that SWAs would circulate relevant job orders to,
based on their knowledge of the local labor market, are comprised of
various union organizations and may not always include the AFL-CIO.
Since H-2B job opportunities in traditionally or customarily unionized
occupations tend to fall within those industries most likely to be
organized or represented by AFL-CIO member untions, the new requirement
increases outreach to qualified U.S. workers. Moreover, the new
requirement offers a chance for hiring employers to directly contact a
potential pool of U.S. workers who are qualified and interested in the
job opportunity, which can strengthen the probability that employers
will locate U.S. workers suited for the job opportunity. For example,
potential U.S. workers may be more inclined to contact an employer
directly upon learning of the job opportunity rather than utilize the
SWA as an intermediary since the application process could be quicker
and demonstrate a willingness by employers to consider union workers.
Direct contact between employers and unions may also initiate a
dialogue between employers and unions that could lead to a future
working relationship that fulfills the workforce needs of employers.
Therefore, in providing timely and meaningful notice of job
opportunities in traditionally or customarily unionized industries to
the AFL-CIO, employers build on efforts by SWAs to circulate job orders
to state and local unions, which may differ from the AFL-CIO, and thus
broaden the scope of their U.S. worker outreach.
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 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 30 or more days after
their dates of need, they have not conducted recruitment recently
enough for the Departments to reasonably conclude that there are
currently an insufficient number of U.S. workers qualified, willing,
and available to perform the work absent additional recruitment.
Because of the abbreviated timeline for the additional recruitment
required for employers whose initial recruitment has gone stale, the
Departments have determined that 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, which ``enhance[s] protections for U.S. workers,
to the maximum extent possible, while balancing the potential
[[Page 30357]]
costs to employers,'' and is consistent with the Departments'
responsibility to ensure that these job opportunities are available to
U.S. workers. 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)(28).
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.
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 the bargaining representative or AFL-CIO when
required, 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 CF
[…truncated; see source link]Indexed from Federal Register on May 18, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.