Rule2022-27236
Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 15, 2022
Effective
December 15, 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) 2023 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to, but no more than, a total of 64,716 for the entirety of FY 2023. To assist U.S. businesses that need workers to begin work on different start dates, the Departments have decided to distribute the supplemental visas in several allocations, including two separate allocations for the second half of fiscal year 2023. Out of the total 64,716 visas made available in this rule, the Departments have decided to reserve 20,000 visas for nationals of Guatemala, El Salvador, Honduras, or Haiti. The Departments will make all 64,716 visas available only to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. In addition to making the additional 64,716 visas available under the FY 2023 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 240 (Thursday, December 15, 2022)</title>
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[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Rules and Regulations]
[Pages 76816-76879]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27236]
[[Page 76815]]
Vol. 87
Thursday,
No. 240
December 15, 2022
Part IV
Department of Homeland Security
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Department of Labor
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Employment and Training Administration
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8 CFR Parts 214 and 274a
20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Numerical Limitation
for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change Employers;
Temporary Rule
Federal Register / Vol. 87, No. 240 / Thursday, December 15, 2022 /
Rules and Regulations
[[Page 76816]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2731-22, DHS Docket No. USCIS-2022-0015]
RIN 1615-AC82
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-]
RIN 1205-AC14
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To Change
Employers
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; request for comments.
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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)
2023 authority and increasing the total number of noncitizens who may
receive an H-2B nonimmigrant visa by up to, but no more than, a total
of 64,716 for the entirety of FY 2023. To assist U.S. businesses that
need workers to begin work on different start dates, the Departments
have decided to distribute the supplemental visas in several
allocations, including two separate allocations for the second half of
fiscal year 2023. Out of the total 64,716 visas made available in this
rule, the Departments have decided to reserve 20,000 visas for
nationals of Guatemala, El Salvador, Honduras, or Haiti. The
Departments will make all 64,716 visas available only to those
businesses that are suffering irreparable harm or will suffer impending
irreparable harm, as attested by the employer on a new attestation
form. In addition to making the additional 64,716 visas available under
the FY 2023 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 December 15, 2022 through
December 15, 2025. The amendments to title 20 of the Code of Federal
Regulations in this rule are effective from December 15, 2022 through
September 30, 2023, except for 20 CFR 655.67 which is effective from
December 15, 2022 through September 30, 2026.
Petition dates: DHS will not accept any H-2B petitions under
provisions related to the FY 2023 supplemental numerical allocations
after September 15, 2023, and will not approve any such H-2B petitions
after September 30, 2023. The provisions related to portability are
only available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2024.
Submission of public comments: The Departments are accepting
written comments on the temporary final rule and on the new information
collection. Please follow the instructions in the ADDRESSES section to
ensure your comment is submitted to the correct docket.
Comments on the Rule: All public comments on the temporary final
rule, identified by DHS Docket No. USCIS-2022-0015, must be submitted
on or before February 13, 2023. The electronic Federal Docket
Management System will accept comments prior to midnight eastern time
at the end of that day.
Comments on the Information Collection: The Office of Foreign Labor
Certification within the U.S. Department of Labor will accept comments
in connection with the new information collection Form ETA-9142B-CAA-7
associated with this rule until February 13, 2023. The electronic
Federal Docket Management System will accept comments prior to midnight
eastern time at the end of that day.
ADDRESSES: You may submit written comments on the temporary final rule
and/or new information collection. Please follow the instructions
directly below depending on whether you are submitting a comment on the
rule or the DOL Information Collection.
Comments on the rule: You may submit comments on the entirety of
this temporary final rule package, identified by DHS Docket No. USCIS-
2022-0015, through the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions for submitting
comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to USCIS or DHS officials, will not be
considered comments on the temporary final rule and may not receive a
response. Please note that USCIS cannot accept any comments that are
hand-delivered or couriered. In addition, USCIS cannot accept comments
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. USCIS is not accepting mailed comments at this
time. If you cannot submit your comment by using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at 240-721-3000 (not a toll-free call) for alternate
instructions.
Comments on the Information Collection: You may submit written
comments on the new information collection Form ETA-9142B-CAA-7,
identified by Regulatory Information Number (RIN) 1205-AC14,
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-AC14 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-7: 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
[[Page 76817]]
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 and FY 2023 Public Law 117-180
D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for Fiscal Year 2023
C. Returning Workers
D. Returning Worker Exemption for up to 20,000 Visas for
Nationals of Guatemala, El Salvador, and Honduras (Northern Central
American Countries) and Haiti
E. Business Need Standard--Irreparable Harm and FY 2023
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 2023 H-2B Supplemental Cap
With this temporary final rule (TFR), the Secretary of Homeland
Security, following consultation with the Secretary of Labor, is
authorizing the release of an additional 64,716 H-2B visas for FY 2023,
subject to certain conditions. The 64,716 visas are divided into the
following allocations:
<bullet> For the first half of FY 2023: 18,216 immediately
available visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2020, 2021, or 2022, regardless of country of nationality. The-se
petitions must request employment start dates on or before March 31,
2023;
<bullet> For the early second half of FY 2023 (April 1 to May 14):
16,500 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2020, 2021, or 2022, regardless of country of nationality. These early
second half of FY 2023 petitions must request employment start dates
from April 1, 2023, to May 14, 2023. Furthermore, employers must file
these petitions no earlier than 15 days after the second half statutory
cap \1\ is reached;
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\1\ The term ``statutory cap'' refers to the 66,000 cap set
forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at
INA section 214(g)(10).
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<bullet> For the late second half of FY 2023: (May 15 to September
30): 10,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2020, 2021, or 2022, regardless of country of nationality. These late
second half of FY2023 petitions must request employment start dates
from May 15, 2023, to September 30, 2023. Furthermore, employers must
file these petitions no earlier than 45 days after the second half
statutory cap is reached; and
<bullet> For the entirety of FY 2023: 20,000 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). Employers requesting
an employment start date in the first half of FY 2023 may file such
petitions immediately after the publication of this TFR. Employers
requesting an employment start date in the second half of FY 2023 must
file such petitions no earlier than 15 days after the second half
statutory cap is reached.
To qualify for the FY 2023 supplemental caps provided by this
temporary final rule, eligible petitioners must:
<bullet> Meet all existing H-2B eligibility requirements, including
obtaining an approved temporary labor certification (TLC) from DOL
before filing the Form I-129, Petition for a Nonimmigrant Worker, with
USCIS;
<bullet> Properly file the Form I-129, Petition for Nonimmigrant
Worker, with USCIS at its California Service Center on or before
September 15, 2023;
<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
20,000 cap exempt from the returning worker requirement;
<bullet> Prepare and retain a detailed written statement describing
how the employer is suffering irreparable harm or will suffer impending
irreparable harm and how evidence demonstrates irreparable harm and
supports their application; and
<bullet> Agree to comply with all applicable labor and employment
laws, including health and safety laws pertaining to COVID-19, such as
any rights to time off or paid time off to obtain COVID-19 vaccinations
\2\ or rights to reimbursement for travel to and from the nearest
available vaccination site, and to 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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\2\ 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, 2021,
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> 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;
<bullet> Contact in writing and in a language understood by the
worker, all U.S. workers currently employed at the place of employment,
disclose the terms of the job order, and request assistance in
recruiting qualified U.S. workers for the job;
<bullet> Where the employer maintains a website for its business
operations, post
[[Page 76818]]
the job opportunity in a conspicuous location on the employer's
website; and
<bullet> Hire any qualified U.S. worker who applies or is referred
for the job opportunity until the later of either (1) the date on which
the last H-2B worker departs for the place of employment, or (2) 30
days after the last date of the SWA job order posting.
Petitioners filing H-2B petitions under this FY 2023 supplemental
cap must retain documentation of compliance with the attestation
requirements for 3 years from the date DOL approved the TLC, and must
provide the documents and records upon the request of DHS or DOL, as
well as fully cooperate with any compliance reviews such as audits.
Through audits and investigations, both Departments have received
evidence of employer non-compliance with the terms and conditions of
the H-2B program, as well as violations of other labor and employment
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and
Hour Division (WHD), and USCIS Fraud Detection and National Security
(FDNS) personnel have encountered non-compliance issues such as failure
to pay the promised wage, failure to employ returning workers, failure
to demonstrate irreparable harm, failure to conduct the additional
recruitment steps, and failure to accurately disclose the beneficiary's
work location(s).
Such non-compliance can harm U.S. workers by undermining wages and
working conditions. It also directly harms H-2B workers. Further, H-2B
workers depend on ongoing employment with the petitioning employer to
maintain status in the United States. This dependence creates a power
imbalance between the employer and H-2B worker, making the H-2B worker
particularly vulnerable to exploitation and violations. In recognition
of the substantial impact that non-compliance can have on both U.S.
workers and H-2B workers, DHS and DOL again intend to conduct a
significant number of audits focusing on irreparable harm and other
worker protection provisions. And as it did as part of the FY 2022
second half H-2B supplemental cap TFR, DHS will again subject employers
that have committed labor law violations in the H-2B program to
additional scrutiny in the supplemental cap petition process.\3\ DHS
intends for this additional scrutiny to help ensure compliance with H-
2B program requirements and obligations.
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\3\ See Temporary Rule, Exercise of Time-Limited Authority To
Increase the Numerical Limitation for Second Half of FY 2022 for the
H-2B Temporary Nonagricultural Worker Program and Portability
Flexibility for H-2B Workers Seeking to Change Employers, 87 FR
30334, 30335 (May 18, 2022).
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Specifically, falsifying information in H-2B program attestation(s)
can result not only in penalties relating to perjury, but also in,
among other things, a finding of fraud or willful misrepresentation;
denial or revocation of the H-2B petition requesting supplemental
workers; and debarment by DOL and DHS from the H-2B program and any
other foreign labor 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
2023 supplemental cap authority on or after October 1, 2023.
H-2B Portability
In addition to exercising its time-limited authority to make
additional FY 2023 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 \4\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2023, or who
are the beneficiaries of non-frivolous H-2B petitions that are pending
as of January 25, 2023, to begin work with a new employer after an H-2B
petition (supported by a valid TLC) is filed and before the petition is
approved, generally for a period of up to 60 days. However, such
employment authorization would end 15 days after USCIS denies the H-2B
petition or such petition is withdrawn. This H-2B portability ends one
year after the provision's effective date of January 25, 2023, in other
words, at the end of January 24, 2024.
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\4\ The term ``United States'' includes the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the
United States, and the Commonwealth of the Northern Mariana Islands.
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
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II. Background
A. Legal Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this
petition before the beneficiary can be considered eligible for an H-2B
visa. In addition, the INA requires that ``[t]he question of importing
any alien as [an H-2B] nonimmigrant . . . in any specific case or
specific cases shall be determined by [DHS],\5\ after consultation with
appropriate agencies of the Government.'' INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The INA generally charges the Secretary of Homeland
Security with the administration and enforcement of the immigration
laws, and provides that the Secretary ``shall establish such
regulations . . . and perform such other acts as he deems necessary for
carrying out his authority'' under the INA. See INA section 103(a)(1),
(3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 202(4) (charging the
Secretary with ``[e]stablishing and administering rules . . . governing
the granting of visas or other forms of permission . . . to enter the
United States to individuals who are not a citizen or an alien lawfully
admitted for permanent residence in the United States''). With respect
to nonimmigrants in particular, the INA provides that ``[t]he admission
to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the [Secretary] may by regulations
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA
section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3)
(prohibiting employment of noncitizens \6\ not authorized for
employment). The Secretary may designate officers or employees to take
and consider evidence concerning any matter that is material or
relevant to the enforcement of the INA. INA sections 287(a)(1), (b), 8
U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8 U.S.C. 1225(d)(3).
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\5\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
\6\ For purposes of this discussion, the Departments use the
term ``noncitizen'' colloquially to be synonymous with the term
``alien'' as it is used in the Immigration and Nationality Act.
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Finally, under section 101 of the HSA, 6 U.S.C. 111(b)(1)(F), a
primary mission
[[Page 76819]]
of DHS is to ``ensure that the overall economic security of the United
States is not diminished by efforts, activities, and programs aimed at
securing the homeland.''
DHS regulations provide that an approved TLC from the U.S.
Department of Labor (DOL), issued pursuant to regulations established
at 20 CFR part 655, or from the Guam Department of Labor if the workers
will be employed on Guam, must accompany an H-2B petition for temporary
employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C)
through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C.
1103(a)(6). The TLC serves as DHS's consultation with DOL with respect
to whether a qualified U.S. worker is available to fill the petitioning
H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly-employed U.S. workers. See INA section
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
To determine whether to issue a TLC, the Departments have
established regulatory procedures under which DOL certifies whether a
qualified U.S. worker is available to fill the job opportunity
described in the employer's petition for a temporary nonagricultural
worker, and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See 20 CFR part 655, subpart A. The
regulations establish the process by which employers obtain a TLC and
rights and obligations of workers and employers.
Once the petition is approved, under the INA and current DHS
regulations, H-2B workers do not have employment authorization outside
of the validity period listed on the approved petition unless otherwise
authorized, and the workers are limited to employment with the H-2B
petitioner. See 8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer
or U.S. agent generally may submit a new H-2B petition, with a new,
approved TLC, to USCIS to request an extension of H-2B nonimmigrant
status for the validity of the TLC or for a period of up to 1 year. 8
CFR 214.2(h)(15)(ii)(C). Except as provided for in the preceding H-2B
supplemental cap TFR \7\ and in this rule, and except for certain
professional athletes being traded among organizations,\8\ H-2B workers
seeking to extend their status with a new employer may not begin
employment with the new employer until the new H-2B petition is
approved.
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\7\ The FY 2022 second half H-2B supplemental cap TFR included a
portability provision at 8 CFR 214.2(h)(28)(iii)(A)(1)-(2), which
remains in effect through January 24, 2023. See Temporary Rule,
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for Second Half of FY 2022 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 30334 (May 18, 2022).
\8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8
U.S.C. 1184(c)(14)(A)(i), to DOL. See DHS, Delegation of Authority to
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL
to the Wage and Hour Division (WHD), and is governed by regulations at
29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The maximum annual number (``statutory cap'') of noncitizens to
whom DHS may issue H-2B visas or otherwise provide H-2B nonimmigrant
status to perform temporary nonagricultural work is 66,000, distributed
semiannually beginning in October and April. See INA sections
214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10).
Accordingly, with certain exceptions as described below, DHS may issue
H-2B visas or provide H-2B nonimmigrant status to up to 33,000
noncitizens in the first half of a fiscal year, and the remaining
annual allocation, including any unused nonimmigrant H-2B visas from
the first half of a fiscal year, are available for employers seeking to
hire H-2B workers during the second half of the fiscal year.\9\ If the
number of petitions approved by DHS is insufficient to use all H-2B
numbers in a given fiscal year, DHS cannot carry over the unused
numbers for petition approvals for employment start dates beginning on
or after the start of the next fiscal year.
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\9\ The Federal Government's fiscal year runs from October 1 of
the prior year through September 30 of the year being described. For
example, fiscal year 2023 is from October 1, 2022, through September
30, 2023.
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In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers
identified as returning workers from the annual H-2B cap of 66,000.\10\
A returning worker is an H-2B worker who was previously counted against
the annual H-2B cap during a designated period of time.\11\ For
example, Congress designated that returning workers for FY 2016 needed
to have been counted against the cap during FY 2013, 2014, or 2015 to
qualify for the exemption.\12\ DHS and the Department of State (DOS)
worked together to confirm that all workers requested under the
returning worker provision in fact were eligible for exemption from the
annual cap (in other words, were issued an H-2B visa or provided H-2B
status during one of the prior 3 fiscal years) and were otherwise
eligible for H-2B classification.
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\10\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see
also Consolidated Appropriations Act, 2016, Public Law 114-113, div.
F, tit. V, sec 565; John Warner National Defense Authorization Act
for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law 109-13, div. B, tit. IV, sec. 402.
\11\ Cf. INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).
\12\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
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Because of the strong demand for H-2B visas in recent years, the
statutorily-limited semiannual visa allocation, the DOL regulatory
requirement that employers apply for a TLC 75 to 90 days before the
start date of work,\13\ and the DHS regulatory requirement that an
approved TLC accompany all H-2B petitions,\14\ employers that wish to
obtain visas for their workers under the semiannual allotment must act
early to receive a TLC and file a petition with U.S. Citizenship and
Immigration Services (USCIS). As a result, the date on which USCIS has
reached sufficient H-2B petitions to reach the first half of the fiscal
year statutory cap has trended earlier in recent years.\15\ For FY
2022,
[[Page 76820]]
for the first time in more than a decade, USCIS received sufficient H-
2B petitions to reach the first half of the fiscal year statutory cap
before the start of the fiscal year.\16\ This occurred even earlier in
FY 2023, when USCIS received enough H-2B petitions to reach the FY 2023
first-half statutory cap on September 12, 2022.\17\ There has also been
a trend in recent years of increased demand for H-2B workers in the
second half of the fiscal year.\18\
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\13\ See 20 CFR 655.15(b).
\14\ See 8 CFR 214.2(h)(6)(vi)(A).
\15\ In fiscal years 2017 through 2021, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
first half statutory cap on January 10, 2017, December 15, 2017,
December 6, 2018, November 15, 2019, and November 16, 2020,
respectively. See USCIS, USCIS Reaches the H-2B Cap for the First
Half of Fiscal Year 2017, <a href="https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017">https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017</a> (Jan.
13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of
Fiscal Year 2018, <a href="https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018">https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018</a> (Dec. 21, 2017); USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2019, <a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019</a> (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for
the First Half of Fiscal Year 2020, <a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020</a> (Nov. 20,
2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal
Year 2021, <a href="https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021">https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021</a> (Nov. 18, 2020).
\16\ On October 12, 2021, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2022, and that September 30, 2021 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2022. See USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2022, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022</a> (Oct 12, 2021).
\17\ On September 14, 2022, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2023, and that September 12, 2022 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2023. See USCIS, USCIS Reaches
H-2B Cap for the First Half of Fiscal Year 2023, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023</a> (last updated Sept. 14, 2022).
\18\ In recent years, DOL has received an increasing number of
TLC applications for an increasing number of H-2B workers with April
1 start dates: DOL received 4,500 applications on January 1, 2018,
covering more than 81,600 worker positions; DOL received 5,276
applications by January 8, 2019, covering more than 96,400 worker
positions; DOL received 5,677 applications during the initial three-
day filing window in 2020 covering 99,362 worker positions; DOL
received 5,377 applications during the initial three-day filing
window in 2021 covering 96,641 worker positions; DOL received 7,875
applications by January 7, 2022, covering 136,555 worker positions.
See DOL, Announcements, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
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Congress, in recognition of historical and current demand has, for
the last several fiscal years, authorized supplemental caps.\19\ The
authorization for the current supplemental cap is under section 101(6)
of Division A of Public Law 117-180, Continuing Appropriations and
Ukraine Supplemental Appropriations Act, 2023 (FY 2023 authority),
which extended the authorization previously provided in section 204 of
Division O of the Consolidated Appropriations Act, 2022, Public Law
117-103 (FY 2022 Omnibus), as discussed below.
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\19\ See section 543 of Division F of the Consolidated
Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus);
section 205 of Division M of the Consolidated Appropriations Act,
2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division
H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY
2019 Omnibus); section 105 of Division I of the Further Consolidated
Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus);
section 105 of Division O of the Consolidated Appropriations Act,
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus,
sections 101 and 106(3) of Division A of Public Law 117-43,
Continuing Appropriations Act, 2022, and section 101 of Division A
of Public Law 117-70, Further Continuing Appropriations Act, 2022
through February 18, 2022 (together, FY 2022 authority); and section
204 of Division O of the Consolidated Appropriations Act, 2022,
Public Law 117-103 (FY 2022 Omnibus).
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C. FY 2022 Omnibus and FY 2023 Public Law 117-180
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. 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.\20\ The Secretary of Homeland Security
consulted with the Secretary of Labor and, on May 18, 2022, published a
temporary final rule implementing the authority contained in section
204.\21\
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\20\ DHS also considered using an alternative approach of
calculating the highest number of H-2B nonimmigrants who
participated in the H-2B returning worker program, under which DHS
measured the number of H-2B returning workers admitted at the ports
of entry (66,792 for FY 2007). However, DHS considers USCIS petition
data more accurate and verifiable than admission data when measuring
workers approved for a certain fiscal year, as admission data may
not accurately reflect which cap year the worker was approved for.
\21\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022 for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking To Change Employers, 87 FR 30334 (May 18,
2022).
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On September 30, 2022, Congress passed Public Law 117-180, which
authorizes the Secretary of Homeland Security to increase the number of
H-2B visas available to U.S. employers in FY 2023 under the same terms
and conditions provided in section 204 of Division O of the FY 2022
Omnibus.\22\ In other words, Public Law 117-180 permits the Secretary
of Homeland Security, after consultation with the Secretary of Labor,
to provide up to 64,716 additional H-2B visas for FY 2023,
notwithstanding the otherwise-established statutory numerical
limitation set forth in the INA, for eligible employers whose
employment needs for FY 2023 cannot be met under the general fiscal
year statutory cap.\23\ Under the Public Law 117-180 authority, DHS and
DOL are jointly publishing this temporary final rule to authorize the
issuance of no more than 64,716 additional visas for FY 2023 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 2023
supplemental cap expires at the end of
[[Page 76821]]
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with this FY 2023 supplemental cap authority on or
after October 1, 2023.
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\22\ See Public Law 117-180, Continuing Appropriations and
Ukraine Supplemental Appropriations Act, 2023, Division A, section
101(6) (providing DHS funding and other authorities, including the
authority to issue supplemental H-2B visas that was provided under
title II of Division O of Pub. L. 117-103, through December 16,
2022).
\23\ Appropriations and authorities provided by the continuing
resolutions are available for the needs of the entire fiscal year to
which the continuing resolution applies, although DHS's ability to
obligate funds or exercise such authorities may lapse at the sunset
of such resolution. See, e.g., Comments on Due Date and Amount of
District of Columbia's Contributions to Special Employee Retirement
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a
continuing resolution appropriates the full annual amount regardless
of its period of duration. . . . Standard continuing resolution
language makes it clear that the appropriations are available to the
extent and in the manner which would be provided by the pertinent
appropriations act that has yet to be enacted (unless otherwise
provided in the continuing resolution).''). Consistent with this
principle, DHS interprets the current continuing resolution to
provide DHS with the ability to authorize additional H-2B visa
numbers with respect to all of FY 2023 subject to the same terms and
conditions as the FY 2022 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2022 in the FY 2022 Omnibus.
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As noted above, since FY 2017, Congress has enacted a series of
public laws providing the Secretary of Homeland Security with the
discretionary authority to increase the H-2B cap beyond the annual
numerical limitation set forth in section 214 of the INA. The previous
statutory provisions were materially identical to section 204 of the FY
2022 Omnibus, which is the same authority provided for FY 2023 by the
recent continuing resolution. During each fiscal year from FY 2017
through FY 2019, as well as during FY 2021 and FY 2022, the Secretary
of Homeland Security, after consulting with the Secretary of Labor,
determined that some American businesses could not satisfy their needs
in such year with U.S. workers who were willing, qualified, and able to
perform temporary nonagricultural labor. On the basis of these
determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly
published temporary final rules for FY 2017 and FY 2018, respectively,
each of which allowed an increase of up to 15,000 additional H-2B visas
for those businesses that attested that if they did not receive all of
the workers requested on the Petition for a Nonimmigrant Worker (Form
I-129), they were likely to suffer irreparable harm, in other words,
suffer a permanent and severe financial loss.\24\ USCIS approved a
total of 12,294 H-2B for H-2B classification under petitions filed
pursuant to the FY 2017 supplemental cap increase.\25\ 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.\26\ The vast
majority of the H-2B petitions received under the FY 2017 and FY 2018
supplemental caps requested premium processing (Form I-907) \27\ and
were adjudicated within 15 calendar days.
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\24\ See 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).
\25\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\26\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. 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.
\27\ 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.\28\ The additional visas were limited to
returning workers who had been counted against the H-2B cap or were
otherwise granted H-2B status in the previous three fiscal years, and
for those businesses that attested to a level of need such that, if
they did not receive all of the workers requested on the Form I-129,
they were likely to suffer irreparable harm, in other words, suffer a
permanent and severe financial loss.\29\ The Secretary determined that
limiting returning workers to those who were issued an H-2B visa or
granted H-2B status in the past 3 fiscal years was appropriate, as it
mirrored the standard that Congress designated in previous returning
worker provisions. On June 5, 2019, approximately 30 days after the
supplemental visas became available, USCIS announced that it received
sufficient petitions filed pursuant to the FY 2019 supplemental cap
increase. USCIS did not conduct a lottery for the FY 2019 supplemental
cap increase. The total number of H-2B workers approved towards the FY
2019 supplemental cap increase was 32,680.\30\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\28\ See 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).
\29\ See 84 FR at 20021.
\30\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2019 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
---------------------------------------------------------------------------
Although Congress provided the Secretary of Homeland Security with
the discretionary authority to increase the H-2B cap in FY 2020, the
Secretary did not exercise that authority. DHS initially intended to
exercise its authority and, on March 4, 2020, announced that it would
make available 35,000 supplemental H-2B visas for the second half of
the fiscal year.\31\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\32\ On April 2, 2020, DHS announced that
the rule to increase the H-2B cap was on hold due to economic
circumstances, and that DHS would not release additional H-2B visas
until further notice.\33\ DHS also noted that the Department of State
had suspended routine visa services.\34\
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\31\ See DHS, 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>.
\32\ See Proclamation 9994 of Mar. 13, 2020, Declaring a
National Emergency Concerning the Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
\33\ See <a href="https://twitter.com/DHSgov/status/1245745115458568192?s=20">https://twitter.com/DHSgov/status/1245745115458568192?s=20</a>.
\34\ See <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, 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.\35\ 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. By August 13,
2021, USCIS had received enough petitions for returning workers to
reach the additional 22,000 H-2B visas made available under the FY 2021
H-2B supplemental visa temporary final
[[Page 76822]]
rule.\36\ The total number of H-2B workers approved towards the FY 2021
supplemental cap increase was 30,742.\37\ This total number included
approved H-2B petitions for 23,937 returning workers, as well as 6,805
beneficiaries from the Northern Central American countries.\38\
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\35\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).
\36\ See USCIS, Cap Reached for Remaining H-2B Visas for
Returning Workers for FY 2021, <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).
\37\ The number of approved workers exceeded the number of
additional visas authorized for FY 2021 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK
10625.
\38\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
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On January 28, 2022, DHS and DOL jointly published a temporary
final rule authorizing an increase of up to 20,000 additional H-2B
visas for FY 2022 positions with start dates on or before March 31,
2022.\39\ These supplemental visas were available only to employers
that attested they were suffering or would suffer impending irreparable
harm without the additional workers. The allocation of 20,000
additional H-2B visas under that rule consisted of 13,500 visas
available only to H-2B returning workers from one of the last three
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were
exempted from the returning worker requirement. USCIS data show that
the total number of H-2B workers approved towards the first half FY
2022 supplemental cap increase was 17,381, including 14,150 workers
under the returning worker allocation, as well as 3,231 workers
approved towards the Haitian/Northern Central American allocation.\40\
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\39\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2022 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); 87
FR 6017 (Feb. 3, 2022) (correction).
\40\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
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Finally, DHS in consultation with DOL determined it was appropriate
to increase the H-2B cap for FY 2022 positions with start dates
beginning on April 1, 2022 through September 30, 2022, based on the
continued demand for H-2B workers for the remainder of FY 2022,
continuing economic growth, increased labor demand, and increased visa
processing capacity by the Department of State. Accordingly, on May 18,
2022, DHS and DOL jointly published a temporary final rule authorizing
an increase of no more than 35,000 additional H-2B visas for the second
half of FY 2022.\41\ As in the January 2022 TFR, the supplemental visas
were available only to employers that attested they were suffering or
would suffer impending irreparable harm without the additional workers.
The allocation of 35,000 additional H-2B visas under the rule
applicable to the second half of FY 2022 consisted of 23,500 visas
available only to H-2B returning workers from one of the last three
fiscal years (FY 2019, 2020, or 2021) and 11,500 visas reserved for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were
exempted from the returning worker requirement. By May 25, 2022, USCIS
had received enough petitions for returning workers to reach the
additional 23,500 H-2B visas made available under the second half FY
2022 H-2B supplemental visa temporary final rule.\42\ USCIS data show
that the total number of H-2B workers approved towards the second half
FY 2022 supplemental cap increase was 43,798, including 31,480 workers
under the returning worker allocation, as well as 12,318 workers
approved towards the Haitian/Northern Central American allocation.\43\
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\41\ See Temporary Rule, Exercise of Time-Limited Authority To
Increase the Numerical Limitation for Second Half of FY 2022 for the
H-2B Temporary Nonagricultural Worker Program and Portability
Flexibility for H-2B Workers Seeking To Change Employers, 87 FR
30334 (May 18, 2022).
\42\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for Second Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022</a> (May 31, 2022).
\43\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2022, TRK 10710.
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Once again, DHS in consultation with DOL believes that it is
appropriate to increase the H-2B cap for FY 2023 based on the demand
for H-2B workers in the first half of FY 2023, anticipated demand for
the second half of FY 2023, recent economic growth, and strong labor
demand.\44\ DHS and DOL also believe that it is appropriate and
important to couple this cap increase with additional worker
protections, as described below.
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\44\ The term ``strong labor demand'' in this context relies on
the most recently released figure from a Bureau of Labor Statistics
(BLS) survey at the time this TFR was written. The BLS Job Openings
and Labor Turnover Survey (JOLTS) reports 10.7 million job openings
in August 2022. See DOL, BLS, Job Openings and Labor Turnover--
September, <a href="https://www.bls.gov/news.release/archives/jolts_11012022.pdf">https://www.bls.gov/news.release/archives/jolts_11012022.pdf</a> (last visited November 2, 2022).
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D. Joint Issuance of the Final Rule
As in FY 2017, FY 2018, FY 2019, FY 2021, and FY 2022, DHS and DOL
(the Departments) have determined that it is appropriate to jointly
issue this temporary final rule.\45\ 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.\46\ Although DHS and DOL each have authority
to independently issue rules implementing their respective duties under
the H-2B program,\47\ 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).\48\
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\45\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited
Authority To Increase the Fiscal Year 2019 Numerical Limitation for
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May
8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal
Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022).
\46\ 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).
\47\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\48\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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[[Page 76823]]
III. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that some U.S. employers cannot
satisfy their needs in FY 2023 with U.S. workers who are willing,
qualified, and able to perform temporary nonagricultural labor. In
accordance with the FY 2023 continuing resolution extending the
authority provided in 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 FY 2023 by up to 64,716
additional visas for those American businesses that attest that they
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, a permanent and severe financial loss, without
the ability to employ all of the H-2B workers requested on their
petition.\49\ These businesses must retain documentation, as described
below, supporting this attestation.
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\49\ The FY 2023 Continuing resolution extending authority
contained in section 204 of Division O, Title II, of the FY 2022
Omnibus, DHS, under certain circumstances and after consultation
with DOL, may increase the number of H-2B visas available to U.S.
employers. DHS has the authority to establish the irreparable harm
standard in seeking a supplemental H-2B visa. See, e.g., INA
sections 103 and 214 (8 U.S.C. 1103, 1184).
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As in connection with the FY 2021 and FY 2022 H-2B supplemental
visa temporary final rules, and consistent with existing authority, DHS
and DOL intend to conduct a significant number of audits with respect
to petitions filed under this TFR requesting supplemental H-2B visas
during the period of temporary need. The Departments will use their
discretion to select which petitions to audit, and the Departments will
use the audits to verify compliance with H-2B program requirements,
including the irreparable harm standard as well as other key worker
protection provisions implemented through this rule. If the Departments
find that an employer's documentation does not meet the irreparable
harm standard, or that the employer fails to provide evidence
demonstrating irreparable harm or comply with the audit process, the
Departments may consider it to be a substantial violation resulting in
an adverse agency action against the employer, including revocation of
the petition and/or TLC or program debarment. Of the audits completed
so far, some audits conducted of employers that received visas under
the supplemental caps in FY 2021 and FY 2022 revealed concerns
surrounding payment of the promised wage, employment of returning
workers, documentation of irreparable harm, and employment at the
listed location, which may warrant further review and action.
As he did in FY 2021 and in FY 2022, the Secretary of Homeland
Security has also again determined, following consultation with the
Secretary of Labor, that for certain employers, additional recruitment
steps are necessary to confirm that there are no qualified U.S. workers
available for the positions. In addition, the Secretary of Homeland
Security has determined, following consultation with the Secretary of
Labor, that the supplemental visas will be limited to returning
workers, with the exception that up to 20,000 of the 64,716 visas will
be exempt from the returning worker requirement and will be reserved
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras,
and Haiti.\50\ DHS is reserving these 20,000 H-2B visas for nationals
of El Salvador, Guatemala, and Honduras pursuant to INA section
214(a)(1), 8 U.S.C. 1184(a)(1), as well as to 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.\51\ DHS is also including Haiti in this allocation
to further promote and improve safety, security, and economic stability
throughout the region.\52\ DHS observed robust employer interest in
response to the FY 2021 H-2B supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022
supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and
Haitian nationals, with USCIS approving petitions on behalf of 6,805
beneficiaries under the FY 2021 allocation,\53\ 3,231 beneficiaries
under the FY 2022 first half supplemental allocation,\54\ and 12,318
beneficiaries for the second half of the fiscal year FY 2022.\55\ In
addition, DHS and the Biden administration have continued to conduct
outreach efforts promoting the H-2B program as, among other things, a
[[Page 76824]]
lawful pathway for nationals of El Salvador, Guatemala, Honduras, and
Haiti to work in the United States.\56\ 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.\57\ DHS will not accept and will reject petitions
submitted for the Northern Central American and Haiti allocation with a
date of need on or after April 1, 2023 that are received earlier than
15 days after the INA section 214(g) cap for the second half of FY 2023
is met or are received after the applicable numerical limitation has
been reached or after September 15, 2023. Requiring petitioners to wait
to submit H-2B supplemental cap petitions with start dates of need on
or after April 1, 2023 is consistent with the supplemental cap
authority in section 204, as extended to FY 2023 by Public Law 117-180,
Continuing Appropriations and Ukraine Supplemental Appropriations Act,
2023, and will facilitate the orderly intake and processing of
supplemental cap petitions for the Northern Central American countries
and Haiti. As discussed above, similar limitations apply to the intake
and processing of returning worker petitions with start dates of need
on or after April 1, 2023.
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\50\ 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); Continuing Appropriations Act, 2023, div. A, sec. 101(6)
(extending the authority provided in FY 2022 Omnibus div. O, sec.
204 (``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the [INA] . . . .'')).
\51\ 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.
\52\ See <a href="https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw">https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw</a> (this supplemental
allocation to workers from Haiti, Honduras, Guatemala, and El
Salvador ``advances the Biden Administration's pledge, under the Los
Angeles Declaration to expand legal pathways as an alternative to
irregular migration''); The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S, Government and Foreign
Partner Deliverables, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/</a> (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's
commitment to support the people of Haiti.''). We also note
Congress' recent statement, in a provision within the FY 2022
Omnibus, that it is the policy of the United States to support the
sustainable rebuilding and development of Haiti. See Section 102 of
Division V of the Consolidated Appropriations Act, 2022, Public Law
117-103. See also DHS, Identification of Foreign Countries Whose
Nationals Are Eligible To Participate in the H-2A and H-2B
Nonimmigrant Worker Programs, 86 FR 62562 (Nov. 10, 2021)
(sustainable development and the stability of Haiti is vital to the
interests of the United States as a close partner and neighbor).
\53\ 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.
\54\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\55\ See DHS, USCIS, Office of Performance and Quality, C3
Consolidated, queried 10/2022, TRK 10710. While USCIS approved a
greater number of beneficiaries from the Northern Central American
countries and Haiti than the 11,500 visas allocated under the FY
2022 second half supplemental cap for those countries, the
Department of State issued approximately 7,212 visas on behalf of
nationals from those countries. See DHS, USCIS, Office of
Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data
queried 10/2022, TRK 10625. 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 third year that DHS will make a specific allocation available
for workers from the Northern Central American countries, will
contribute to even greater utilization of available visas under this
allocation during FY 2023.
\56\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
<a href="https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa">https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa</a> (June 9, 2022) (``Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the Foreign Ministry in El
Salvador] . . . resulted in a record number of H-2 visas issued in
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
\57\ 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>.
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Similar to the previous temporary final rules for the FY 2019, FY
2021 and FY 2022 supplemental caps, the Secretary of Homeland Security
has also determined to limit the supplemental visas to H-2B returning
workers,\58\ 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 20,000 allotment regardless of whether they are new or
returning workers. If the 20,000 returning worker exemption cap for
Salvadoran, Guatemalan, Honduran, and Haitian nationals is reached and
visas remain available under the returning worker cap, USCIS would
reject a petition seeking workers under the 20,000 allocation and
return any fees submitted to the petitioner. In such a case, a
petitioner may continue to request workers who are nationals of one of
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 2020,
2021, or 2022.\59\ Like the temporary final rules for the first half
and for the second half of FY 2022, if the 20,000 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. The DHS decision not to 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 is consistent with the Biden administration's
goals of providing lawful pathway for nationals of El Salvador,
Guatemala, Honduras, and Haiti to temporarily work in the United
States. To that end, not permitting rollover into the returning worker
allocation provides employers with more time to petition for, and bring
in, workers from these countries and encourages full use of the 20,000
allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti
to meet employer needs. This, in turn, contributes to our country's
efforts to promote and improve safety, security and economic stability
in these countries to help stem the flow of irregular migration to the
United States.
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\58\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2020, 2021,
or 2022. Additionally, they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2020, 2021, or 2022,
or the supplemental caps in FY 2019, 2021, or 2022.
\59\ The returning worker allocations are for workers who were
issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or
2022, regardless of country of nationality. Therefore, a petitioner
may choose to petition for Salvadoran, Guatemalan, Honduran, and
Haitian nationals who meet this requirement under an available
returning worker allocation, regardless of whether the separate
allocation for nationals of the Northern Central American countries
and Haiti has been reached.
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The Secretary of Homeland Security's determination to increase the
numerical limitation is based, in part, on the conclusion that some
businesses are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on their petition. In recent years, members of Congress have
informed the Secretaries of Homeland Security and Labor about the needs
of some U.S. businesses for H-2B workers (after the statutory cap for
the relevant half of the fiscal year has been reached) and about the
potentially negative impact on state and local economies if the cap is
not increased.\60\ U.S. businesses, chambers of commerce, employer
organizations, and state and local elected officials have also
expressed concerns in recent years to the DHS and Labor Secretaries
regarding the unavailability of H-2B visas after the statutory cap was
reached.\61\ In addition, an employer association and a member of
Congress have urged the Departments to publish one rule covering the
entire fiscal year for 2023 in order to save time in the second half of
the fiscal year, conserve limited agency resources, and reduce
uncertainty for employers.\62\
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\60\ See the docket for this rulemaking for access to these
letters.
\61\ See the docket for this rulemaking for access to these
letters.
\62\ See the docket for this rulemaking for access to these
letters.
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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.\63\ 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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\63\ 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); H-2B Seasonal Worker Program Challenges
Threaten Maryland's Crab Industry, Economy and Jobs (February,
2022), available at <a href="https://governor.maryland.gov/wp-content/uploads/2022/02/2022-H-2B-Economic-Impact-Study.pdf">https://governor.maryland.gov/wp-content/uploads/2022/02/2022-H-2B-Economic-Impact-Study.pdf</a> (last visited
Oct. 2, 2022).
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[[Page 76825]]
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, as extended by Public Law 117-180, and
determining the scope of any such increase, has broad discretion,
following consultation with the Secretary of Labor, to identify the
business needs that are most relevant, while bearing in mind the need
to protect U.S. workers. Within that context, for the below reasons,
the Secretary of Homeland Security has determined to allow an overall
increase of up to 64,716 additional visas solely for the businesses
facing permanent, severe financial loss or those who will face such
loss in the near future.
First, DHS interprets the reference to ``the needs of American
businesses'' in section 204, as extended by Public Law 117-180, 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, as extended by Public Law 117-
180, 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.
Accordingly, the Secretaries have determined that it is appropriate,
within the limits discussed below, to tailor the availability of this
temporary cap increase to those businesses that are suffering
irreparable harm or will suffer impending irreparable harm, in other
words, those facing permanent and severe financial loss.
Second, the approach set forth in this rule, which is similar to
the implementation of the supplemental caps in previous fiscal years,
provides protections against adverse effects on U.S. workers that may
result from a cap increase, including, as in previous rules, requiring
employers seeking H-2B workers under the supplemental cap to engage in
additional recruitment efforts for U.S. workers.
In sum, this rule increases the numerical limitation by up to
64,716 additional H-2B visas for the entirety of FY 2023, 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 20,000
allocation that are exempt from the returning worker limitation. This
rule also distributes the supplemental visas in several allocations to
assist U.S. businesses that need workers to begin work on different
start dates. These provisions are each described in turn below.
B. Numerical Increase and Allocations for Fiscal Year 2023
Making the Maximum Number of Visas Available
The increase of up to 64,716 visas will help address the urgent
needs of eligible employers for additional H-2B workers for those
employers with employment needs in fiscal year 2023.\64\ The
determination to allow up to 64,716 additional H-2B visas reflects a
balancing of a number of factors including: the demand for H-2B visas
during the first half of FY 2023 and expected demand for the second
half of FY 2023; current labor market conditions; the general trend of
increased demand for H-2B visas from FY 2017 to FY 2022; H-2B returning
worker data; the amount of time for employers to hire and obtain H-2B
workers in this 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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\64\ 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, as extended by Public Law 117-
180, 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.\65\ Consistent
with the statute's reference to H-2B returning workers, in determining
the appropriate number by which to increase the H-2B numerical
limitation, the Secretary of Homeland Security focused on the number of
visas allocated to such workers in years in which Congress enacted
returning worker exemptions from the H-2B numerical limitation. During
each of the years the returning worker provision was in force, U.S.
employers' standard business needs for H-2B workers exceeded the
statutory 66,000 cap. The highest number of H-2B returning workers
approved was 64,716 in FY 2007. In setting the number of additional H-
2B visas to be made available for FY 2023, DHS considered this number,
overall indications of increased need, and the availability of U.S.
workers, as discussed below. On the basis of these considerations, DHS
determined that it is appropriate to make available up to 64,716
additional visas, which is the maximum allowed, under the FY 2023
supplemental cap authority. The Secretary further considered the
objectives of E.O. 14010, which among other initiatives, instructs the
Secretary of Homeland Security and
[[Page 76826]]
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, which includes migration by
Haitian nationals. Accordingly, the Secretary determined that it is
appropriate to reserve up to 20,000 of the up to 64,716 additional
visas and exempt this number from the returning worker requirement for
nationals of the Northern Central American countries or Haiti.
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\65\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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In past years, the number of beneficiaries covered by H-2B
petitions filed exceeded the number of additional visas allocated under
recent supplemental caps. In FY 2018, USCIS received petitions for
approximately 29,000 beneficiaries during the first 5 business days of
filing for the 15,000 supplemental cap. USCIS therefore conducted a
lottery on June 7, 2018, to randomly select petitions that it would
accept under the supplemental cap. Of the selected petitions, USCIS
issued approvals for 15,672 beneficiaries.\66\ In FY 2019, USCIS
received sufficient petitions for the 30,000 supplemental cap on June
5, 2019, but did not conduct a lottery to randomly select petitions
that it would accept under the supplemental cap. Of the petitions
received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021,
USCIS received a sufficient number of petitions for the 22,000
supplemental cap on August 13, 2021, including a significant number of
workers from Northern Central American countries.\67\ Of the petitions
received, USCIS issued approvals for 30,742 beneficiaries, including
approvals for 6,805 beneficiaries under the allocation for the
nationals of the Northern Central American countries.\68\
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\66\ 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.
\67\ On June 3, 2021, USCIS announced that it had received
enough petitions to reach the cap for the additional 16,000 H-2B
visas made available for returning workers only, but that it would
continue accepting petitions for the additional 6,000 visas allotted
for nationals of the Northern Central American countries. See USCIS,
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021,
<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> (Jun. 3, 2021). On July 23,
2021, USCIS announced that, because it did not receive enough
petitions to reach the allocation for the Northern Central American
countries by the July 8 filing deadline, the remaining visas were
available to H-2B returning workers regardless of their country of
origin. See USCIS, Employers May File H-2B Petitions for Returning
Workers for FY 2021, <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> (Jul. 23,
2021).
\68\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for
the possibility that some approved workers would either not seek a
visa or admission, would not be issued a visa, or would not be
admitted to the United States. Unlike these past supplemental cap
TFRs, petitions filed under the first half FY 2022 TFR did not
exceed the additional allocation of 20,000 H-2B visas provided by
that rule.
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In FY 2022, DHS made the supplemental cap available twice, once in
January 2022 and again in May 2022. Under the earlier FY 2022
supplemental cap for petitions with start dates in the first half of FY
2022, USCIS had issued approvals for 17,381 beneficiaries, including
approvals for 3,231 beneficiaries under the allocation for nationals of
the Northern Central American countries and Haiti.\69\ For the second
half of FY 2022, within the first five business days of filing, USCIS
received petitions for more beneficiaries than the additional 23,500
supplemental visas made available for returning workers, thus
necessitating a random selection of petitions to meet the returning
worker allotment.\70\ Of the petitions received for the second half of
FY 2022, USCIS issued approvals for 43,798 beneficiaries, including
approvals for 12,318 beneficiaries under the allocation for nationals
of the Northern Central American countries and Haiti.\71\
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\69\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\70\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for Second Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022</a> (May 31, 2022).
\71\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2022, TRK 10710.
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Data for the first half of FY 2023 clearly indicate an immediate
need for additional supplemental H-2B visas for employers with start
dates on or before March 31, 2023. USCIS received a sufficient number
of H-2B petitions to reach the first half of the FY 2023 fiscal year
statutory cap on September 12, 2022.\72\ Further, the date on which
USCIS received sufficient H-2B petitions to reach the first half
semiannual statutory cap has trended earlier in recent years. In fiscal
years 2017 through 2023, USCIS received a sufficient number of H-2B
petitions to reach or exceed the relevant first half statutory cap on
January 10, 2017, December 15, 2017, December 6, 2018, November 15,
2019, November 16, 2020, September 30, 2021, and September 12, 2022,
respectively.\73\
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\72\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2023, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023</a> (last updated Sept. 14, 2022).
\73\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2017, <a href="https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017">https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017</a> (Jan. 13, 2017); USCIS, USCIS
Reaches H-2B Cap for First Half of FY 2018, <a href="https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018">https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018</a> (Dec. 21,
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,
<a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019</a> (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap
for First Half of FY 2020, <a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020</a> (Nov. 20, 2019);
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, <a href="https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021">https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021</a> (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022</a> (Oct. 12, 2021); USCIS,
USCIS Reaches H-2B Cap for First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023</a> (Sept. 14, 2022).
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In addition, although the public health emergency due to COVID-19
still exists,\74\ DHS believes that issuing additional H-2B visas is
appropriate in the context of the nation's economic recovery from the
ongoing pandemic. For example, the unemployment rate declined to 3.7%
in October 2022 from a pandemic high of 14.7% in April 2020.\75\ 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.\76\
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\74\ See HHS, Renewal of Determination That A Public Health
Emergency Exists, <a href="https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx">https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx</a> (Oct. 13, 2022).
\75\ See BLS Employment Situation News Release, <a href="https://www.bls.gov/news.release/archives/empsit_11042022.htm">https://www.bls.gov/news.release/archives/empsit_11042022.htm</a> (November 4,
2022); BLS, Labor Force Statistics from the Current Population
Survey, <a href="https://data.bls.gov/timeseries/LNS14000000">https://data.bls.gov/timeseries/LNS14000000</a> (data extracted
November 4, 2022).
\76\ The April 2020 unemployment rate was 14.7%. See <a href="https://www.bls.gov/new.release/archives/empsit_05082020.htm">https://www.bls.gov/new.release/archives/empsit_05082020.htm</a> (Oct. 21,2022).
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In fiscal year 2022, approximately 87.7 percent of H-2B filings
were for positions within just 5 sectors.\77\ NAICS 56 (Administrative
and Support and Waste Management and Remediation Services) accounted
for 40.0% of filings,
[[Page 76827]]
NAICS 71 (Accommodation and Food Services) accounted for 11.0%, NAICS
72 (Arts, Entertainment, and Recreation) accounted for 22.0%, NAICS 23
(Construction) accounted for 12.0%, and NAICS 11 (Agriculture,
Forestry, Fishing and Hunting) accounted for 2.7% of filings.
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\77\ USCIS analysis of DOL OLFC Performance data.
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Within these industries, DOL data show higher labor demand relative
to recent history. More specifically, Bureau of Labor Statistics (BLS)
data from the November 1, 2022 Job Openings and Labor Turnover Survey
(JOLTS) show that the rate of job openings \78\ for all 5 industries
was higher in September 2022 than the average over the last 36 months.
In September 2022 the job opening rate for NAICS 56 \79\ was 7.9
percent, which is 0.92 percentage points higher than its 3-year average
of 6.98 percent, while the job opening rate for NAICS 71 was 8.4
percent which is 3.49 percentage points higher than its 3-year average
of 4.91 percent. The September 2022 job opening rate for NAICS 72 was
3.60 percentage points higher than its 3-year average of 5.90 percent
while the rate for NAICS 23 was 1.09 percentage points higher than its
3-year average of 4.11 percent. The job opening rate for NAICS 11 \80\
was 0.43 percentage points higher than its 3-year average of 3.87
percent. For comparison, the job opening rate for all industries was
6.5 percent in September 2022.\81\
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\78\ 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_11012022.pdf">https://www.bls.gov/news.release/archives/jolts_11012022.pdf</a>
(last visited November 2, 2022).
\79\ 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 October 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 November 16, 2022.
\80\ 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 October 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 November 16, 2022.
\81\ See <a href="https://www.bls.gov/news.release/archives/jolts_11012022.pdf">https://www.bls.gov/news.release/archives/jolts_11012022.pdf</a> (last visited November 2, 2022).
[GRAPHIC] [TIFF OMITTED] TR15DE22.013
The continued strength in the job openings rate across these industries
is a clear indication of a strong labor demand within these industries.
The Departments believe that the supplemental allocation of H-2B visas
described in this temporary final rule will help to meet demand from
job openings in these industries.
Other economy-wide data also indicate that labor-market tightness
exists. The most recent Employment Situation released by the Bureau of
Labor Statistics (BLS) stated that the unemployment rate decreased to
3.7% in October 2022.\82\ Historically, the availability of H-2B visas
addressed a need in the labor market during periods of lower
unemployment. Chart 1 \83\ shows that the H-2B visa allocations for
Fiscal Year 2023 \84\ made by this rule are slightly higher than the
historical trend, but are generally consistent with what the current
unemployment rate alone would predict. Additionally, when the
unemployment rate is below 6%, there is greater variance in the total
number of H-2B visas issued in a given year; for example, in years
2022, 2007 and 2006, when the unemployment rate ranged from
approximately 3.5% to 4.6%, the total number of H-2B visas issued were
comparable to what is planned for 2023. The data presented in chart 1
is meant to provide additional context and to demonstrate that the
total allocation of H-2B visas is reasonable given labor market
conditions.
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\82\ See DOL, BLS, The Employment Situation--October 2022,
<a href="https://www.bls.gov/news.release/archives/empsit_11042022.pdf">https://www.bls.gov/news.release/archives/empsit_11042022.pdf</a> (Nov.
4, 2022).
\83\ 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-September 2022.
\84\ Estimated visas issued for Fiscal Year 2023 is based on the
sum of the fiscal year statutory cap for H-2B workers (66,000) and
the supplemental allocation for this rule (64,716), for a total H-2B
visa allocation of 130,716.
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[[Page 76828]]
[GRAPHIC] [TIFF OMITTED] TR15DE22.014
Given the level of demand for H-2B workers, the continued economic
recovery, and continued job growth, DHS believes it is appropriate to
release the maximum amount of additional visas at this time.
Making Allocations For All of FY 2023 in a Single Rule
This rule is the first time that DHS has made supplemental visas
available for an entire fiscal year in a single rule. DHS believes that
it is appropriate to issue a single rule for the entire fiscal year for
multiple reasons.\85\ First, DHS expects that there is demand for
supplemental visas in the first half of FY 2023. As previously
discussed, USCIS already received enough petitions to reach the
congressionally mandated cap on H-2B visas for temporary
nonagricultural workers for the first half of FY 2023.\86\ Further, the
date on which USCIS received sufficient H-2B petitions to reach the
first half semiannual statutory caps has trended earlier in recent
years. In fiscal years 2017 through 2023, USCIS received a sufficient
number of H-2B petitions to reach or exceed the relevant first half
statutory cap on January 10, 2017, December 15, 2017, December 6, 2018,
November 15, 2019, November 16, 2020, September 30, 2021, and September
12, 2022, respectively.\87\
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\85\ Further, DHS believes that 64,716 is an appropriate number
of supplemental visas to make available, as this rule will cover
both the first and second half of FY 2023.
\86\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-
for-first-half-of-fy-
2023#:~:text=U.S.%20Citizenship%20and%20Immigration%20Services,fiscal
%20year%20(FY)%202023 (Sep. 14, 2022).
\87\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2017, <a href="https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017">https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017</a> (Jan. 13, 2017); USCIS, USCIS
Reaches H-2B Cap for First Half of FY 2018, <a href="https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018">https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018</a> (Dec. 21,
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019,
<a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019</a> (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap
for First Half of FY 2020, <a href="https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020">https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020</a> (Nov. 20, 2019);
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, <a href="https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021">https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021</a> (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2022, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022</a> (Oct. 12, 2021); USCIS,
USCIS Reaches H-2B Cap for First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023</a> (Sept. 14, 2022).
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Second, based on relevant data, DHS expects that USCIS will reach
the statutory cap for the second half of FY 2023 and that there will
accordingly be demand for supplemental visas in the second half of FY
2023. For example, in fiscal years 2017 through 2022, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
second half statutory cap on March 13, 2017, February 27, 2018,
February 19, 2019, February 18, 2020, February 12, 2021, and February
25, 2022.\88\ In addition, DOL data shows consistently high demand in
recent years, particularly during the second half of the fiscal year.
In recent years, DOL has received an increasing number of TLC
applications for an increasing number of H-2B workers with April 1
start dates: DOL received 4,500 applications on January 1, 2018,
covering more than 81,600 worker positions; DOL received 5,276
applications by January 8, 2019, covering more than 96,400 worker
positions; DOL received 5,677 applications during the initial three-day
filing window in 2020 covering 99,362 worker positions; DOL received
5,377 applications during the initial three-day filing window in 2021
covering 96,641 worker positions; and DOL received 7,875 applications
by January 7, 2022, covering 136,555 worker positions.\89\
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\88\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year 2017,
<a href="https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017">https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017</a> (Mar. 16, 2017); USCIS, USCIS Completes Random
Selection Process for H-2B Visa Cap for Second Half of FY 2018,
<a href="https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018">https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018</a> (Mar. 1, 2018);
USCIS, H-2B Cap Reached for FY 2019, <a href="https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019">https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019</a> (Feb. 22, 2019); USCIS, H-2B Cap
Reached for Second Half of FY 2020, <a href="https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020">https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020</a> (Feb. 26, 2020);
USCIS, H-2B Cap Reached for Second Half of FY 2021, <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); USCIS, H-2B Cap Reached for Second 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).
\89\ See DOL, Announcements, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a>.
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Publishing one rule that addresses all the visas available for FY
2023 benefits the regulated public by giving more notice and certainty
of what will become available for the second half. This allows
businesses to better plan ahead for their seasonal workforce needs.\90\
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\90\ See the letter from the H-2B Workforce Coalition contained
in the docket for this rulemaking.
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Filing Deadline of September 15, 2023 for all Petitions
The authority to approve H-2B petitions under this FY 2023
supplemental cap expires at the end of the fiscal year, i.e., the end
of September 30, 2023. Therefore, DHS is requiring employers requesting
any supplemental visas under this TFR, regardless of the employment
start date(s), to properly file their H-2B petition with USCIS no
[[Page 76829]]
later than September 15, 2023. USCIS will reject any cases that are
received after September 15, 2023. See new 8 CFR 214.2(h)(6)(xiii)(C).
Because DHS believes that 15 days from the end of the fiscal year is
the minimum time needed for petitions to be adjudicated, DHS has set
September 15, 2023 as the latest filing date to provide USCIS with
adequate time for petition processing before the expiration of the
authority at the end of the fiscal year, although USCIS cannot
guarantee that a 15-day period will be sufficient for adjudication of
petitions in all cases.
In addition, the filing deadline will be earlier than September 15,
2023 if the applicable numerical limit for the relevant supplemental
visa allocation is reached before that date. See new 8 CFR
214.2(h)(6)(xiii)(C). In such a case, USCIS will also reject any cases
that are received after the applicable numerical limitation has been
reached.
Returning Worker Allocation for the First Half of FY 2023 (October 1,
2022 Through March 31, 2023)
For the first half of FY 2023, DHS will make 18,216 visas
immediately available upon publication of this TFR that are limited to
returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2020, 2021, or 2022,
regardless of country of nationality. These petitions must request a
date of need starting on or before March 31, 2023. See new 8 CFR
214.2(h)(6)(xiii)(C).
DHS anticipates that employers will use all of the first half
allocation for returning workers, given how quickly USCIS reached the
FY 2023 first half statutory cap. As noted previously, USCIS received
enough H-2B petitions to reach the FY 2023 first half statutory cap on
September 12, 2022, which is several weeks earlier than when USCIS
reached the FY 2022 first half statutory cap on September 30, 2021 \91\
and is the earliest the first half cap has been reached since at least
FY 2017. In addition, the relatively early publication of this rule
will provide interested employers more time to prepare their petitions,
increasing the likelihood that the first half allocation for returning
workers will be used.\92\ To the extent that the first half allocation
for returning workers is used, this TFR may provide affected employers
with some relief by making available a separate allocation of visas for
nationals of El Salvador, Guatemala, Honduras, and Haiti, which will be
available for the entirety of FY 2023.
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\91\ See <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022</a> (Oct 12, 2021); <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023</a> (Sept. 14, 2022).
\92\ Compare the publication date of this rule with January 28,
2022, the date the temporary final rule increasing the supplemental
cap for the first half of FY2022 was first published.
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In the event that USCIS approves insufficient petitions to use all
18,216 visas, the unused numbers will not carry over for the second
half allocation because DHS believes that the operational burdens of
calculating and administering a process to carry over unused visas,
combined with the potential confusion for the public and adjudicators
that could result from having different filing cutoff dates for the
different allocations, would outweigh the benefits. In order to make
any unused first half visas available for employers with second half
start dates, DHS would need to set a filing cutoff date prior to
September 15, 2023 for the first half allocation, upon which it would
stop accepting such petitions and make a calculation of how many visas
should be re-released for second half employers. Calculating visas to
be re-released could also entail an additional cap allocation,
additional announcements to the public, and potentially an additional
lottery, all of which would significantly increase operational burdens.
In addition to increasing operational burdens, DHS believes that the
opening, closing, and potential re-opening of this allocation (and/or
other cap allocations) could cause confusion for the public and
adjudicators. Furthermore, not setting a filing cutoff date prior to
September 15, 2023 will maximize employers' opportunity to avail
themselves of the first half allocation. While DHS acknowledges that
this approach could potentially result in some employers with a
demonstrated business need in the second half of the fiscal year losing
the opportunity to receive a supplemental visa, it is DHS's expectation
that there will be sufficient demand from employers with first half
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1,
2023, Through May 14, 2023)
For the second half of FY 2023, DHS will initially make available
16,500 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2020, 2021, or 2022, regardless of country of nationality. These
petitions must request a date of need starting on or after April 1,
2023, through and including May 14, 2023. Limiting this allocation to
employers with employment start dates on or before May 14, 2023
reflects DHS's intentions to give employers with needs later in the
season a better opportunity to access the H-2B program, and to prevent
employers from petitioning under both of the second-half allocations to
fill the same need.
To mitigate complications from concurrent administration of the
statutory second half cap, these petitions must be filed no earlier
than 15 days after the second half statutory cap is reached, a date
that USCIS will identify in a public announcement.\93\ When USCIS
announces that it has received a sufficient number of petitions to
reach the second half statutory cap, it will also announce the earliest
possible filing date (15 days after the second half statutory cap) for
this allocation. Concurrent administration of the second half statutory
cap with the second half supplemental cap would pose significant
operational challenges, particularly considering the volume of H-2B
petitions USCIS would have to process at the same time. A cushion of 15
days after the second half statutory cap is reached should provide
USCIS with sufficient time to process H-2B petitions filed under the
second half statutory cap and prepare to process petitions under this
supplemental cap, and should also provide petitioners not selected
under the statutory cap with enough time to refile under this
supplemental cap. Furthermore, making this allocation available after
the second half statutory cap has been reached builds in flexibility to
account for variations in the timing of that cap being reached. DHS
cannot predict with certainty when the FY 2023 second half statutory
cap will be reached (or if it will be reached), and therefore, did not
specify a date for when to first allow petitioners to file for FY 2023
second half supplemental visas. In the event that the statutory second
half FY 2023 cap is not reached, the supplemental allocation for
returning workers for the second half of FY 2023 will not become
available.
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\93\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(2), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(1)(b) of
this section requesting employment start dates from April 1, 2023 to
May 14, 2023 that are received earlier than 15 days after the INA
section 214(g) cap for the second half FY 2023 has been met.
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Based on historical data showing increasingly high demand for H-2B
workers with April 1 start dates, DHS expects all 16,500 visas to be
used quickly once the supplemental allocation becomes available.
However, in the event that USCIS approves insufficient petitions to use
all 16,500
[[Page 76830]]
visas, the unused numbers will not carry over for petition approvals
for employment start dates beginning on or after May 15, 2023. DHS
chose to limit these 16,500 visas to start dates on or before May 14,
2023, without the ability for these visas to be carried over into the
next allocation. As previously stated, DHS believes that the
operational burdens of calculating and administering a process to carry
over unused visas, combined with the potential confusion for the public
and adjudicators that could result from having different filing cutoff
dates for the different allocations, would outweigh the benefits. In
order to make any unused visas from this allocation available for late
second half of FY 2023 petitions, DHS would need to set a filing cutoff
date that would be after the cutoff for the first half allocation but
prior to any cutoff for late second half of FY 2023 petitions and prior
to September 15, 2023, upon which it would stop accepting petitions and
make a calculation of how many visas should be re-released for late
second half employers. Calculating visas to be re-released could also
entail an additional cap allocation, additional announcements to the
public, and potentially an additional lottery, all of which would
significantly increase operational burdens. In addition to increasing
operational burdens, DHS believes that the opening, closing, and
potential re-opening of this allocation (and/or other cap allocations)
could cause confusion for the public and adjudicators. Furthermore, not
setting a filing cutoff date prior to September 15, 2023 will maximize
employers' opportunity to avail themselves of the early second half
allocation. While DHS acknowledges that this approach could result in
employers in the late second half losing the opportunity to receive a
supplemental visa, it is DHS's expectation that there will be
sufficient demand from employers to use this entire allocation.
Additional Returning Worker Allocation for the Late Second Half (On or
After May 15, 2023, Through September 30, 2023)
For the late second half of FY 2023, DHS will make available an
additional allocation of 10,000 visas limited to returning workers, in
other words, those workers who were issued H-2B visas or held H-2B
status in fiscal years 2020, 2021, or 2022, regardless of country of
nationality. To assist employers needing workers to begin work during
the late spring and summer seasons in the fiscal year (also referred to
as ``late season employers''), these petitions must request a date of
need starting on or after May 15, 2023. These petitions must be filed
no sooner than 45 days after the second half statutory cap is reached,
a date that USCIS will identify in a public announcement.\94\ When
USCIS announces that it has received a sufficient number of petitions
to reach the second half statutory cap, it will also announce the
earliest possible filing date (45 days after the second half statutory
cap) for this allocation. The cushion of 45 days after the second half
statutory cap is reached is intended to provide USCIS with sufficient
time to process H-2B petitions filed under the second half statutory
cap that remain pending, as well as to process the expected influx of
petitions under the early second half supplemental cap that will begin
15 days after the second half statutory cap is reached.\95\ By allowing
USCIS to manage its workload in this way, the 45-day period will help
USCIS prepare to process petitions under the late second half
supplemental cap and to mitigate the complications from concurrent
administration of these various caps.
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\94\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(3), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(1)(c) of
this section requesting employment start dates from May 15, 2023 to
September 30, 2023, that are received earlier than 45 days after the
INA section 214(g) cap for the second half FY 2023 has been met.
\95\ While petitioners may continue to submit petitions under
the early second half supplemental cap through September 15, DHS
expects the heaviest filing to occur soon after the visas become
available. This expectation is based on historical filing patterns,
as well as an assumption that employers will try act quickly to
secure workers consistent with their dates of need.
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This is the first supplemental cap reserved for late season
employers that need workers to begin work during the late spring and
summer seasons in the fiscal year. By regulation, employers may only
apply for a TLC 75 to 90 days before the start date of need,\96\ and,
as such, employers needing workers to begin work on or after May 15 are
not eligible to file TLC applications until on or after February 15. In
past years, because of this requirement and the strong demand for H-2B
workers in recent years to begin work on the earliest employment start
date (i.e., April 1), late season employers were unable to receive cap-
subject H-2B workers because they did not have an opportunity to file
visa petitions for cap-subject H-2B workers before the second
semiannual statutory cap was reached. Since, based on recent years'
data,\97\ USCIS has typically received sufficient H-2B petitions to
meet the statutory cap for the second half of the fiscal year around
mid-February, many of these late season employers may have decided to
not file a TLC application. Therefore, DHS, in consultation with DOL,
has determined that it is appropriate to make a separate allocation
available for late season employers whose late season labor needs may
have put them at a disadvantage in accessing H-2B workers in recent
years. DHS, in consultation DOL, has determined that authorizing two
allocations for the second half of FY 2023 based on an employer's start
date of need, in addition to requiring that the employer's start date
of need on the Form I-129 match the start date of need on the approved
TLC,\98\ will provide employers with late season needs a better
opportunity to receive H-2B workers to avoid irreparable harm.
Specifically, employers with early season needs that need work to begin
on or after April 1 will have the opportunity to file H-2B petitions
under both the statutory cap and the first allocation of the
supplemental cap, while employers with late season needs do not have
that opportunity.
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\96\ See 20 CFR 655.15(b).
\97\ As noted above, in fiscal years 2017 through 2022, USCIS
received a sufficient number of H-2B petitions to reach or exceed
the relevant second half statutory cap on March 13, 2017, February
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021,
and February 25, 2022, respectively.
\98\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must state
an employment start date that is the same as the date of need stated
on the approved temporary labor certification'').
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A review of TLC requests for employment start dates on or after May
15 through September 30 of FY 2016, which was the last year in which
Congress enacted the returning worker exemption, indicates that OFLC
received approximately 892 applications from late season employers
requesting TLCs for more than 17,650 H-2B positions and, of this,
certified approximately 13,200 H-2B positions. However, for the last
six fiscal years, Congress has not enacted a returning worker
exemption, and the statutory second half semiannual visa allocation was
reached months in advance of May. Accordingly, this has given rise to
the concern that the intense competition for H-2B visas among employers
requesting TLCs for the earliest possible employment start date of
April 1 has resulted in the semiannual allocation of H-2B visas being
effectively unavailable for many employers who need workers to start
late in the season.
To mitigate complications from concurrent administration of the
additional returning worker allocation for the second half of the
fiscal year for late season employers and either the statutory second
half cap or the initial supplemental allocation for returning
[[Page 76831]]
workers for the second half of the fiscal year (or both), these
petitions must be filed no earlier than 45 days after the second half
statutory cap is reached. When USCIS announces that it has received a
sufficient number of petitions to reach the second half statutory cap,
it will also announce the earliest possible filing date (45 days after
the second half statutory cap) for this allocation. In the event that
the statutory second half FY 2023 cap is not reached, this supplemental
allocation for late season filers workers will not become available.
Furthermore, in the event that USCIS does not approve sufficient
petitions to use all 10,000 visas for late season employers, DHS will
not carry over the unused numbers for petition approvals for any other
allocation. For example, any unused numbers would not carry over to
petitions for workers from El Salvador, Guatemala, Honduras, or Haiti.
As noted above, DHS believes the operational burdens of calculating and
administering a process to carry over unused visas would outweigh the
benefits because of the potential confusion for the public and
adjudicators that could result from having different filing cutoff
dates for the different allocations. A process to carry over unused
visas could also entail an additional cap allocation, additional
announcements to the public, and potentially an additional lottery, all
of which significantly increase operational burdens and may add further
confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, and Haiti
DHS will make available 20,000 additional visas that are 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). These 20,000 visas
will be available for petitioners requesting an employment start date
before the end of FY 2023, up to and including September 30, 2023.
While prior years' allocations for nationals of the Northern
Central American countries and Haiti have not been reached, DHS
anticipates a higher likelihood that the 20,000 visas allocated for
these nationals by this rule will be reached by the end of this fiscal
year. As discussed above, DHS observed robust employer interest in
response to the FY 2021 H-2B supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022
supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and
Haitian nationals, and the data show a trend of increased participation
by Haitian, Salvadoran, Guatemalan, and Honduran workers in the H-2B
program.\99\ Furthermore, the publication of this rule relatively early
in the fiscal year, and the availability of this allocation for the
entirety of FY 2023, also increase the likelihood that the 20,000 visas
will be used.
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\99\ As previously noted, USCIS approved petitions on behalf of
6,805 beneficiaries under the FY 2021 allocation, 3,231
beneficiaries under the FY 2022 first half supplemental allocation,
and 12,318 beneficiaries for the second half of the fiscal year FY
2022. See DHS, USCIS, Office of Performance and Quality, SAS PME C3
Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021, TRK
8598; DHS, USCIS, Office of Performance and Quality, C3
Consolidated, queried 10/2022, TRK 10710; DHS, USCIS, Office of
Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data
queried 10/2022, TRK 10625.
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Employers requesting workers from one of the Northern Central
American countries or Haiti with an employment start date in the first
half of FY 2023 may file their petitions immediately after the
publication of this TFR. Employers requesting workers from one of the
Northern Central American countries or Haiti with an employment start
date in the second half of FY 2023 must file their petitions no earlier
than 15 days after the second half statutory cap is reached. The
requirement to file the petition no earlier than 15 days after the
second half statutory cap is reached is consistent with the approach
taken for the initial returning worker allocation for the early second
half of the fiscal year, and is in line with the Departments'
interpretation of their authority to make available supplemental (or in
other words, additional) visas as contingent upon the exhaustion of
visas under the statutory cap.\100\
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\100\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(4), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(2) of
this section that have a date of need on or after April 1, 2023 and
are received earlier than 15 days after the INA section 214(g) cap
for the second half of FY 2023 is met.
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The Departments have decided not to further divide the 20,000 visas
for workers from one of the Northern Central American countries or
Haiti into separate allocations for the first and second half of the
fiscal year. The Departments intend for this additional flexibility of
allowing any employment start date within FY 2023 to encourage U.S.
employers that are suffering irreparable harm or will suffer impending
irreparable harm to seek out workers from such countries, and, at the
same time, increase interest among nationals of the Northern Central
American countries and Haiti seeking a legal pathway for temporary
employment in the United States. While this approach could potentially
result in employers with start dates in the first half of FY 2023 using
all 20,000 visas for nationals of the Northern Central American
countries and Haiti, and consequently, employers with start dates in
the second half of FY 2023 losing the opportunity to utilize this
particular allocation, DHS believes that the benefits of increasing the
flexibility of this allocation outweighs the potential risk. Moreover,
employers with start dates in the second half of FY 2023 seeking to
employ nationals of the Northern Central American countries and Haiti
may request a visa under one of the two second half supplemental
allocations which are available for returning workers regardless of
country of nationality.
In the event that USCIS does not approve sufficient petitions to
use all 20,000 visas limited to nationals of the Northern Central
American countries and Haiti by the end of FY 2023, DHS will not carry
over the unused numbers for petition approvals for any other
allocation. For example, any unused numbers would not carry over to
petitions for returning workers with employment start dates in the
second half of FY 2023. As noted above, DHS believes the operational
burdens of calculating and administering a process to carry over unused
visas would outweigh the benefits because of the potential confusion
for the public and adjudicators that could result from having different
filing cutoff dates for the different allocations. A process to carry
over unused visas could also entail an additional cap allocation,
additional announcements to the public, and potentially an additional
lottery, all of which significantly increase operational burdens and
may add further confusion to the public and adjudicators. Further, this
single filing cutoff approach provides employers with incentive and
more time to petition for, and bring in, workers from El Salvador,
Guatemala, Honduras, and Haiti to meet employer needs, consistent with
the Biden administration's efforts and outreach to promote and improve
safety, security, and economic stability in these countries.
Process if Cap Allocations Are Reached
Finally, recognizing the high demand for H-2B visas, it is
plausible that the additional H-2B supplemental allocations provided in
this rule will be reached prior to September 15, 2023. Specifically,
the following scenarios may still occur:
<bullet> The 18,216 supplemental cap visas limited to returning
workers that will be
[[Page 76832]]
immediately available for employers with dates of need on or after
October 1, 2022, through March 31, 2023, will be reached before
September 15, 2023;
<bullet> The 16,500 supplemental cap visas limited to returning
workers that will be available for employers with dates of need
starting on or after April 1, 2023, through May 14, 2023, will be
reached before September 15, 2023;
<bullet> The 10,000 supplemental cap visas limited to returning
workers that will be available for late season employers with dates of
need on or after May 15, 2023, through September 30, 2023, will be
reached before September 15, 2023; or
<bullet> The 20,000 supplemental cap visas limited to nationals of
the Northern Central American countries and Haiti will be reached
before September 15, 2023.
Under this rule, new 8 CFR 214.2(h)(6)(xiii)(D) reaffirms the
existing processes that are in place when H-2B numerical limitations
under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or
(g)(10), are reached,\101\ 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
18,216 supplemental cap visas limited to returning workers that will be
immediately available for employers with dates of need on or after
October 1, 2022, through March 31, 2023, is reached before September
15, 2023; the 16,500 supplemental cap visas limited to returning
workers that will be available for employers with dates of need on or
after April 1, 2023, through May 14, 2023, is reached before September
15, 2023; the 10,000 supplemental cap visas limited to returning
workers that will be available for late season employers with dates of
need on or after May 15, 2023, through September 30, 2023, is reached
before September 15, 2023; or the 20,000 visas limited to nationals of
the Northern Central American countries and Haiti is reached before
September 15, 2023. Similar to the processes applicable to the H-2B
semiannual statutory cap, if the final receipt date is any of the first
5 business days on which petitions subject to the applicable numerical
limit may be received (in other words, if the numerical limit is
reached on any one of the first 5 business days that filings can be
made), USCIS will randomly apply all of the numbers among the petitions
received on any of those 5 business days.
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\101\ See 8 CFR 214.2(h)(8)(vii).
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C. Returning Workers
As noted above, to address the increased and, in some cases,
impending need for H-2B workers in this fiscal year, the Secretary of
Homeland Security, in consultation with the Secretary of Labor, has
determined that employers may petition for supplemental visas on behalf
of up to 44,716 workers who were issued an H-2B visa or were otherwise
granted H-2B status in FY 2020, 2021, or 2022. This temporal limitation
mirrors the prior fiscal year's temporal limitation in the returning
worker definition \102\ and the temporal limitation Congress imposed in
previous returning worker statutes.\103\ Such workers (in other words,
those who recently participated in the H-2B program and who now seek a
new H-2B visa from DOS) may obtain their new visas through DOS and
begin work more expeditiously because they have previously obtained H-
2B visas and therefore have been vetted by DOS and would have departed
the United States as generally required by the terms of their
nonimmigrant admission.\104\ DOS has informed DHS that, in general, H-
2B visa applicants who are able to demonstrate clearly that they have
previously abided by the terms of their status granted by DHS have a
higher visa issuance rate when applying to renew their H-2B visas, as
compared with the overall visa applicant pool from a given country.
Furthermore, consular officers are authorized to waive the in-person
interview requirement for certain nonimmigrant visa applicants,
including certain H-2B applicants renewing visas in the same
classification within 48 months of the prior visa's expiration, who
otherwise meet the strict limitations set out under INA section 222(h),
8 U.S.C. 1202(h).\105\ Limiting the supplemental cap to returning
workers is beneficial because these workers have generally followed
immigration law in good faith and demonstrated their willingness to
return home when they have completed their temporary labor or services
or their period of authorized stay, which is a condition of H-2B
status. The returning worker condition therefore provides a basis to
believe that H-2B workers under this cap increase will again abide by
the terms and conditions of their visa or nonimmigrant status.
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\102\ See, e.g., 87 FR 30334 (defining ``returning workers'' as
``those who were issued H-2B visas or held H-2B status in fiscal
years 2019, 2020, or 2021'').
\103\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A);
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F,
tit. V, sec 565; John Warner National Defense Authorization Act for
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law. 109-13, div. B, tit. IV, sec. 402.
\104\ 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.
\105\ The interview waiver authority for certain H-2B applicants
renewing visas in the same classification within 48 months of the
prior visa's expiration has no sunset date. Currently, certain
first-time H-2B visa applicants or certain H-2B visa applicants
previously issued any type of visa within the last 48 months may be
eligible for an interview waiver; however, the authority for these
interview waivers are set to expire on December 31, 2022. 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); 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).
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The returning worker condition also benefits employers that seek to
re-hire known and trusted workers who have a proven positive employment
track record while previously employed as workers in this country.
While the Departments recognize that the returning worker requirement
may limit to an extent the flexibility of employers that might wish to
hire non-returning workers, the requirement provides an important
safeguard against H-2B abuse, which DHS considers to be a significant
consideration.
To ensure compliance with the requirement that additional visas
only be made available to returning workers, DHS will require
petitioners seeking H-2B workers under the supplemental cap to attest
that each employee requested or instructed to apply for a visa under
the FY 2023 supplemental cap was issued an H-2B visa or otherwise
granted H-2B status in FY 2020, 2021, or 2022, unless the H-2B worker
is a national of one of the Northern Central American countries or
Haiti and is counted towards the 20,000 cap. This
[[Page 76833]]
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 20,000 cap, meets the
returning worker requirement. DHS and DOS retain the right to review
and verify that each beneficiary is in fact a returning worker any time
before and after approval of the petition or visa. DHS has authority to
review and verify this attestation during the course of an audit or
investigation, as otherwise discussed in this rule.
With respect to satisfying the returning worker requirement,
employers must maintain evidence that the employer requested and/or
instructed that each of the workers petitioned by the employer in
connection with this temporary rule were issued H-2B visas or otherwise
granted H-2B status in FY 2020, 2021, or 2022, unless the H-2B worker
is a national of one of the Northern Central American countries or
Haiti counted towards the 20,000 cap. Such evidence would include, but
is not limited to, a date-stamped written communication from the
employer to its agent(s) and/or recruiter(s) that instructs the
agent(s) and/or recruiter(s) to only recruit and provide instruction
regarding an application for an H-2B visa to those foreign workers who
were previously issued an H-2B visa or granted H-2B status in FY 2020,
2021, or 2022.
D. Returning Worker Exemption for up to 20,000 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 20,000 additional H-2B visas will be limited to
workers who are nationals of one of the Northern Central American
countries or Haiti. These 20,000 visas will be exempt from the
returning worker requirement. Because the returning worker allocations
have no restrictions related to a worker's country of nationality, if
the 20,000 visa limit has been reached and the 44,716 returning worker
cap has not, petitioners may continue to request workers who are
nationals of one of 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 2020, 2021, or 2022.
While DHS reiterates the benefits of allocating visas under the
supplemental cap to returning workers, the Secretary of Homeland
Security has determined that the 20,000 limitation and exemption from
the returning worker requirement for nationals of the Northern Central
American countries or Haiti is beneficial for several reasons. First,
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. The Secretary has determined that both the
20,000 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. Further, E.O. 14010
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.\106\ 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.\107\ DHS believes that including nationals
of Haiti in this allocation of up to 20,000 supplemental visas will
further promote and improve safety, security, and economic stability
throughout this region.\108\
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\106\ 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).
\107\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
<a href="https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa">https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa</a> (Jun. 9, 2022) (``Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the Foreign Ministry in El
Salvador] . . . resulted in a record number of H-2 visas issued in
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
\108\ See, e.g., <a href="https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw">https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw</a> (this supplemental
allocation to workers from Haiti, Honduras, Guatemala, and El
Salvador ``advances the Biden Administration's pledge, under the Los
Angeles Declaration to expand legal pathways as an alternative to
irregular migration''); The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S, Government and Foreign
Partner Deliverables, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/</a> (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's
commitment to support the people of Haiti'').
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Additionally, DOS will work with the relevant countries to
facilitate consular interviews, if required,\109\ and channels for
reporting incidents of fraud and abuse within the H-2 programs.
Further, each country's own consular networks will maintain contact
with the workers while in the United States and ensure the workers know
their rights and responsibilities under the U.S. immigration laws,
which are all valuable protections to the immigration system, U.S.
employers, U.S. workers, and workers entering the country on H-2 visas.
DHS has determined that reserving 20,000 supplemental H-2B visas for
nationals of the Northern Central American countries or Haiti is a
reasonable allocation given the progressively increasing use of H-2B
visas among this population in recent years, as noted above.
Additionally, with the option to apply for visas in this category for
the entire fiscal year, rather than dividing the allocation in two
halves, there will be more time to reach the increased allocation. DHS
believes these aspects will encourage U.S. employers that are suffering
irreparable harm or will suffer impending irreparable harm to seek out
workers from such countries, while, at the same time, increase interest
among 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
[[Page 76834]]
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. Collaborating closely with the governments of El
Salvador, Guatemala, and Honduras, USAID has strengthened the capacity
of relevant government ministries to transparently and efficiently
match qualified workers to temporary labor opportunities in the United
States. In Fiscal Years 2021 and 2022, USAID increased funding to
expand capacity building activities in El Salvador, Guatemala, and
Honduras in response to the increased demand generated by the
supplemental allocations of H-2B visas for Northern Central American
nationals included in the FY 2021 and FY 2022 TFRs. The acceleration of
USAID's activities likely helped increase uptake of H-2B visas issuance
under the FY 2021 and FY 2022 TFRs, as H-2B visa issuances to
Salvadorans, Guatemalans and Hondurans increased significantly over
prior years,\110\ and USAID's assistance helped reduce the average
period of time to match qualified workers from these three countries to
requests from U.S. employers-- from 42 days to 14 days in El Salvador,
55 days to 20 days in Guatemala, and 24 days to 8 days in
Honduras.\111\ 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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\109\ As noted previously, consular officers may waive the in-
person interview requirement for H-2B applicants whose prior visa
expired within a specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The expanded 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).
\110\ 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 Oct.
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 Oct. 15, 2022).
\111\ See USAID, Additional H-2B Visa Allocations for Northern
Central America and Haiti to Address Irregular Migration, https://
www.usaid.gov/news-information/press-releases/oct-12-2022-
additional-h-2b-visa-allocations-northern-central-america-and-
haiti#:~:text=Collaborating%20closely%20with,eight%20in%20Honduras
(Oct. 12, 2022).
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DOS issued a combined total of approximately 26,630 H-2B visas to
nationals of the Northern Central American countries or Haiti from FY
2015 through FY 2020, an average of approximately 4,400 per year.\112\
In FY 2021, the first year in which supplemental H-2B visas were
reserved for nationals of Northern Central American countries, DOS
issued a combined total of 6,277 H-2B visas to nationals of those
countries.\113\ In FY 2022, DOS issued a combined total of 15,058 H-2B
visas to nationals of Haiti and the Northern Central American
countries.\114\ This increase is likely due in part to the additional
H-2B visas made available to nationals of these countries by the FY
2021 and FY 2022 H-2B supplemental visa temporary final rules. In
addition, based in part on the vital U.S. interest of promoting
sustainable development and the stability of Haiti, in November 2021,
DHS added Haiti to the list of countries whose nationals are eligible
to participate in the H-2A and H-2B programs.\115\ Therefore, as
previously stated, DHS has determined that the additional increase in
FY 2023 will not only provide U.S. businesses that have been unable to
find qualified and available U.S. workers with potential workers, but
also promote further expansion of lawful immigration and lawful
employment authorization for nationals of Northern Central American
countries and Haiti.
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\112\ The ``combined total'' includes all H-2B visas and are not
limited to visas issued under supplemental caps. 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); DOS,
Monthly Nonimmigrant Visa Issuance Statistics, <a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visastatistics/monthly-nonimmigrant-visaissuances.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visastatistics/monthly-nonimmigrant-visaissuances.html</a>
(last visited Mar. 15, 2022).
\113\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.
\114\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.
\115\ 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, albeit increasing, number of individuals from the three Northern
Central American countries and Haiti who were previously granted H-2B
visas in recent years. Absent this exemption, there may be an
insufficient number of qualifying workers from these countries to use
the allocated visas. Exempting this population from the returning
worker requirement will increase the ability of workers from these
countries to pursue lawful temporary work in the U.S., encourage
employers to seek out individuals from these countries, and maximize
the chance of meeting the goal of reaching the full allocation.
USCIS will stop accepting petitions received under the allocation
for the Northern Central American countries and Haiti after September
15, 2023. 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. 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 2023 Attestation
To file any H-2B petition under this rule, petitioners must meet
all existing H-2B eligibility requirements, including having an
approved, valid, and unexpired TLC. See 8 CFR 214.2(h)(6) and 20 CFR
part 655, subpart A. The TLC process focuses on establishing whether a
petitioner has a temporary need for workers and whether there are U.S.
workers who are able, willing, qualified, and available to perform the
temporary service or labor, and does not address the harm a petitioner
is facing or will face in the absence of such workers; the attestation
addresses this question. In addition, under this rule, the petitioner
must submit an attestation to USCIS in which the petitioner affirms,
under penalty of perjury, that it meets the business need standard--
that they are suffering irreparable harm or will suffer impending
irreparable harm (that is, permanent and severe financial loss) without
the ability to employ all of the H-2B workers requested on their
petition.\116\ In addition to asserting that it meets the business need
standard, the employer must attest that, by the time of submission of
the petition to USCIS, they have prepared and retained a detailed
written statement describing how the evidence gathered in support of
their application demonstrates that irreparable harm is occurring or
[[Page 76835]]
impending. The employer must also attest that, upon request, it will
provide to DHS and/or DOL all documentary evidence that supports its
claim of irreparable harm, along with the detailed written statement it
prepared by the time of submitting the petition to USCIS, describing
how such evidence demonstrates irreparable harm. The petitioner must
submit the attestation directly to USCIS, together with Form I-129, the
approved and valid TLC,\117\ and any other necessary documentation. As
in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and
the 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>.\118\
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\116\ 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.''
\117\ 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).
\118\ 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 2023 (33,000). Further, the attestation
requirement does not apply to noncitizens who are exempt from the
fiscal year 2023 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 temporary final rule for the first half of FY 2022, 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. The Departments applied this
standard again in the temporary final rule for the second half of FY
2022. The Departments are also applying this standard to the instant
temporary final rule, and are again requiring employers to attest that
they are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on the petition filed under this rule.
As noted above, Congress authorized the Secretary of Homeland
Security, in consultation with the Secretary of Labor, to increase the
total number of H-2B visas available ``upon the determination that the
needs of American businesses cannot be satisfied'' with U.S. workers
under the statutory visa cap.\119\ The irreparable harm standard in
this rule aligns with this determination that Congress requires DHS to
make before increasing the number of H-2B visas available to U.S.
employers. In particular, requiring employers to attest that they are
suffering irreparable harm or will suffer impending irreparable harm
without the ability to employ all of the requested H-2B workers is
directly relevant to the needs of the business--if an employer is
suffering or will suffer irreparable harm, then their needs are not
being satisfied. 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 the need set forth in this rule cannot in fact be
satisfied without the ability to employ H-2B workers.
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\119\ See section 204 of Pulic aw. 117-103, as extended by
Public Law 117-180.
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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.
In contrast to previous rules, this rule also requires an employer
to attest that it has prepared a detailed written statement describing
(i) how the employer's business is suffering irreparable harm or will
suffer impending irreparable harm without the ability to employ all H-
2B workers requested on the I-129 petition, and (ii) how each type of
evidence relied upon by the employer demonstrates the applicable
irreparable harm. The employer will not submit this detailed written
statement to DHS with its petition for supplemental visas, but will
attest on the attestation form to having prepared a detailed written
statement. The detailed written statement must be provided to DHS and/
or DOL upon request in the event of an audit or during the course of an
investigation.
This requirement is informed by the Departments' experiences in
assessing the irreparable harm standard in previous years. When
conducting an audit or investigation under the previous temporary final
rules, DOL has discovered that some employers are unfamiliar with the
irreparable harm standard and recordkeeping requirements, despite their
signed attestation. DOL has found that employers either cannot describe
or explain their irreparable harm (whether it occurred or was impending
at the time of signing the attestation form), or state that irreparable
harm neither occurred nor was impending because the employer ultimately
was able to employ H-2B workers. The latter response reflects a
misunderstanding of the current irreparable harm standard, because
irreparable harm must have been occurring or impending at the time the
employer petitioned for supplemental visas. The attestation that
irreparable harm is occurring or is impending cannot be based on a
speculative analysis that permanent or severe financial loss ``may
occur'' or ``is likely to occur.'' Rather, as of the time of submission
to DHS, employers must have concrete evidence establishing that severe
and permanent financial loss is occurring, with the scope and severity
of harm clearly articulable, or that severe and permanent financial
loss will occur in the near future without access to the supplemental
visas. Even if no irreparable harm ultimately occurs because the
employer is approved for supplemental visas under this rule, the
employer must be able to articulate how permanent and severe financial
loss was
[[Page 76836]]
impending at the time of filing. Additionally, in DOL's experience,
employers sometimes do not retain the documentation they specifically
attested they would retain, or will not or cannot explain how this
documentation demonstrates the relevant irreparable harm to which they
attested, which indicates that some of the employers seeking to benefit
from hiring H-2B workers are not thoughtfully considering, or
considering at all, whether their business needs qualify them for
supplemental H-2B visas under these rules.
Additionally, the Departments believe that the written statement is
necessary in the case of an audit or investigation to explain, in
detail, the employer's reasoning as to why irreparable harm was
occurring or impending without the ability to employ H-2B workers, and
how the evidence supports the employer's reasoning. In audits and
investigations, some employers have provided hundreds of pages of
evidence without any explanation as to how this evidence demonstrates
irreparable harm, leaving DOL or DHS to determine how a voluminous
compilation of complex and seemingly unrelated documents demonstrates
irreparable harm without any understanding of the employer's intent
when providing the documents. A detailed, thoughtful explanation from
the employer will clarify the purpose of these documents and allow the
employer to clearly make their case that the business was experiencing
irreparable harm or would experience impending irreparable harm at the
time of petitioning for supplemental visas.
As such, the Departments believe that it is prudent to require
employers to identify how they are suffering irreparable harm (that is,
permanent or severe financial loss), or will suffer impending
irreparable harm, and how the evidence they will maintain shows that
harm was occurring or impending, at the time they petition for H-2B
visas under this rule. The written statement should identify, in
detail, the severe and permanent financial loss that is occurring or
will occur in the near future without access to the supplemental visas,
and should describe how the information contained in the documentary
evidence demonstrates this severe and permanent financial loss. A
written statement explaining that no irreparable harm occurred because
the employer was approved for supplemental H-2B visas is insufficient;
if no irreparable harm actually occurred, the employer must be able to
show that irreparable harm was impending at the time of the petition's
filing. Supporting evidence of the employer's irreparable harm (either
occurring or impending) maintained and discussed in the detailed
written statement may include, but is not limited to, the following
types of documentation:
(1) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss due to the inability to
meet financial or existing contractual obligations because they were
unable to employ H-2B workers, including evidence of contracts,
reservations, orders, or other business arrangements that have been or
would be cancelled, and evidence demonstrating an inability to pay
debts/bills;
(2) Evidence that the business is suffering or will suffer in the
near future permanent and severe financial loss, as compared to prior
years, such as financial statements (including profit/loss statements)
comparing the employer's period of need to prior years; bank
statements, tax returns, or other documents showing evidence of current
and past financial condition; and relevant tax records, employment
records, or other similar documents showing hours worked and payroll
comparisons from prior years to the current year;
(3) Evidence showing the number of workers needed in the previous
three seasons (FY 2020, 2021, and 2022) to meet the employer's need as
compared to those currently employed or expected to be employed at the
beginning of the start date of need. Such evidence must indicate the
dates of their employment, and their hours worked (for example, payroll
records) and evidence showing the number of H-2B workers it claims are
needed, and the workers' actual dates of employment and hours worked;
and/or
(4) Evidence that the petitioner is reliant on obtaining a certain
number of workers to operate, based on the nature and size of the
business, such as documentation showing the number of workers it has
needed to maintain its operations in the past, or will in the near
future need, including but not limited to: a detailed business plan,
copies of purchase orders or other requests for good and services, or
other reliable forecast of an impending need for workers.
These examples are not exhaustive, nor will they necessarily
establish that the business meets the irreparable harm standard;
petitioners may retain other types of evidence they believe will
satisfy these standards. Such evidence must be maintained and provided,
with the written statement, to DOL or DHS upon request.
While the employer will not submit the detailed written statement
nor the supporting evidence to DHS at the time of filing a petition for
H-2B visas under this rule, the Departments emphasize that the employer
must prepare the detailed written statement and compile the evidence at
the time of filing. The employer must complete the analysis as to
whether the employer is experiencing irreparable harm or will
experience impending irreparable harm at the time the employer
petitions for supplemental visas using evidence available at this time.
In the interest of efficiency, the Departments do not require the
submission of this statement to DHS at the time of filing the petition.
Instead, the employer must attest that it has prepared the detailed
written statement.
The attestation form will serve as prima facie initial evidence to
DHS that the petitioner's business is suffering irreparable harm or
will suffer impending irreparable harm. USCIS may reject in accordance
with 8 CFR 103.2(a)(7)(ii) or deny in accordance with 8 CFR
103.2(b)(8)(ii), as applicable, any petition requesting H-2B workers
under this FY 2023 supplemental cap that is lacking the requisite
attestation form. Although this regulation does not require submission
of evidence and/or a detailed written statement at the time of filing
of the petition, other than an attestation, the employer must have such
evidence and the accompanying detailed written statement on hand and
ready to present to DHS or DOL at any time starting with the date of
filing the I-129 petition, through the prescribed document retention
period discussed below.
As with petitions filed under the FY 2021 and 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. The Departments
may consider failure to provide evidence demonstrating irreparable
harm, to prepare or provide the detailed written statement explaining
irreparable harm, or to comply with the audit process to be a
substantial violation resulting in an adverse agency action on the
employer, including assessment of a civil money penalty, revocation of
the petition and/or TLC, or program debarment. Similarly, failure to
cooperate with any compliance review, evaluation, verification, or
inspection conducted by DHS or DOL as required by 8 CFR
214.2(h)(6)(xiii)(B)(2)(vi) and (vii) may constitute a violation of the
terms and
[[Page 76837]]
conditions of an approved petition and lead to petition revocation
under 8 CFR 214.2(h)(11)(iii)(A)(3).
The attestation submitted to USCIS will also state that the
employer:
(1) meets all other eligibility criteria for the available visas,
including the returning worker requirement, unless exempt because the
H-2B worker is a national of one of the Northern Central American
countries or Haiti who is counted against the 20,000 visas reserved for
such workers;
(2) will comply with all assurances, obligations, and conditions of
employment set forth in the Application for Temporary Employment
Certification (Form ETA 9142B and appendices) certified by DOL for the
job opportunity (which serves as the TLC);
(3) will conduct additional recruitment of U.S. workers in
accordance with the requirements of this rule and discussed further
below; and
(4) will document and retain evidence of such compliance.
Because petitioners will submit the attestation to USCIS as initial
evidence with Form I-129, DHS considers the attestation to be evidence
that is incorporated into and a part of the petition consistent with 8
CFR 103.2(b)(1). Accordingly, USCIS may deny or revoke, as applicable,
a petition based on or related to statements made in the attestation,
including but not limited to the following grounds: (1) the employer
failed to demonstrate employment of all of the requested workers is
necessary under the appropriate business need standard; or (2) the
employer failed to demonstrate that it requested and/or instructed that
each worker petitioned for is a returning worker, or a national of one
of the Northern Central American countries or Haiti, as required by
this rule. The petitioner may appeal any denial or revocation on such
basis, however, under 8 CFR part 103, consistent with DHS regulations
and existing USCIS procedures.
It is the view of the Secretaries of Homeland Security and Labor
that requiring a post-TLC attestation to USCIS is the most practical
approach to applying the eligibility requirements of this rule without
causing undue delays in the filing or adjudication processes for those
employers with start dates in the first half of the fiscal year, many
of whom will have already begun or completed the TLC application
process. The Departments have determined that, if such employers were
required to submit the attestation form to DOL before filing a petition
with DHS, the attendant delays would negatively impact the ability of
American businesses to timely get the help that they need given TLC
processing timeframes. For consistency and to avoid confusion, the
Departments will also maintain the post-TLC attestation process for
employers with start dates in the second half of the fiscal year that
seek supplemental H-2B visas under this rule. This approach, in
conjunction with additional integrity safeguards, has been used
consistently in prior supplemental H-2B temporary final rules, and the
Departments will continue to monitor its effectiveness and sufficiency.
As in prior years, all employers under this rule are required to retain
documentation, which the employer must provide upon request by DHS 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 20,000 (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 655.67. Although the employer must have such
documentation on hand at the time it files the petition, the
Departments do not believe it is necessary or efficient for all
employers to submit such documentation to USCIS at the time of filing
the petition. However, as noted above, the Departments will employ
program integrity measures, including additional scrutiny by DHS of
employers that have committed labor law violations in the H-2B program
and continue to conduct audits, investigations, and/or post-
adjudication compliance reviews on a significant number of H-2B
petitions. As part of that process, USCIS may issue a request for
additional evidence, a notice of intent to revoke, or a revocation
notice, based on the review of such documentation, see 8 CFR 103.2(b)
and 8 CFR 214.2(h)(11), and DOL's OFLC and WHD will be able to review
this documentation and enforce the attestations during the course of an
audit examination or investigation.
In accordance with the attestation requirements, under which
petitioners attest that they meet the irreparable harm standard, that
they are seeking to employ only returning workers (unless exempt as
described above), and that they meet the document retention
requirements at new 20 CFR 655.67, petitioners must retain documents
and records fulfilling their responsibility to demonstrate compliance
with this rule for 3 years from the date the TLC was approved, and must
provide the documents and records upon the request of DHS or DOL. With
regard to the irreparable harm standard, employers attesting that they
are suffering irreparable harm must be able to provide concrete
evidence establishing severe and permanent financial loss that is
occurring; the scope and severity of the harm must be clearly
articulable. Employers attesting that they will suffer impending
irreparable harm must be able to demonstrate that severe and permanent
financial loss will occur in the near future without access to the
supplemental visas. It will not be enough to provide evidence
suggesting that such harm may or is likely to occur; rather, the
documentary evidence must show that impending harm is occurring or will
occur and document the form of such harm. Examples of possible types of
evidence to be maintained are listed earlier in this section.
When a petition is selected for audit examination, or
investigation, DHS 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 20,000 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 the
petitioner to DOL for further investigation. In addition, DOL may
independently take enforcement action, including by, among other
things, debarring the petitioner from the H-2B program for not less
than one year or more than five years from the date of the final agency
decision, which also disqualifies the debarred party from filing any
labor certification applications or labor condition applications with
DOL for the same period set forth in the final debarment decision. See,
e.g., 20 CFR 655.73; 29 CFR 503.20, 503.24.\120\
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\120\ 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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[[Page 76838]]
Evidence reflecting a preference for hiring H-2B workers over U.S.
workers may warrant an investigation by additional agencies enforcing
employment and labor laws, such as the Immigrant and Employee Rights
Section (IER) of the Department of Justice's Civil Rights Division. See
INA section 274B, 8 U.S.C. 1324b (prohibiting certain types of
employment discrimination based on citizenship status or national
origin). Moreover, DHS and DOL may refer potential discrimination to
IER pursuant to applicable interagency agreements. See IER,
Partnerships, <a href="https://www.justice.gov/crt/partnerships">https://www.justice.gov/crt/partnerships</a> (last visited
Oct. 25, 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 Oct. 25,
2022).\121\
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\121\ 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 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, as extended by Public Law 117-180, 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, as extended by Public Law 117-180, 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.\122\ Thus, if the
attestation requirement or any other part of this rule is enjoined or
held invalid, the Departments intend for the remainder of the rule,
with the exception of the retention requirements being codified in new
20 CFR 655.67, 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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\122\ The Departments' intentions with respect to non-
severability extend to all features of this rule other than the
portability provision, which is described in the section below.
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F. Portability
As an additional option for employers that cannot find U.S.
workers, and as an additional flexibility for H-2B employees seeking to
begin work with a new H-2B employer, this rule allows petitioners to
immediately employ certain H-2B workers who are present in the United
States in H-2B status without waiting for approval of the H-2B
petition, generally for a period of up to 60 days. Such workers must be
beneficiaries of a timely, non-frivolous H-2B petition requesting an
extension of stay received on or after January 25, 2023, but no later
than 1 year after that date.\123\ In addition, such workers must have
been lawfully admitted to the United States and have not worked without
authorization subsequent to such lawful admission. Additionally,
petitioners may immediately employ individuals who are beneficiaries of
a non-frivolous H-2B petition requesting an extension of the worker's
stay that is pending as of January 25, 2023 without waiting for
approval of the H-2B petition. To be eligible for portability,
employers must have received an approved TLC demonstrating that they
have completed a test of the U.S. labor market, and that DOL determined
that there were no qualified U.S. workers available to fill these
temporary positions. DHS is making this portability available for an
additional one-year period in order to provide greater certainty for H-
2B employers and workers, as well as to provide stability for H-2B
employers amidst continuing uncertainties surrounding the COVID-19
pandemic including possible future impacts of COVID-19 variants.\124\
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\123\ 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)(29).
\124\ See Carolyn Y. Johnson, XBB, BQ.1.1, BA.2.75.2--a variant
swarm could fuel a winter surge, Washington Post, <a href="https://www.washingtonpost.com/health/2022/10/18/covid-variants-xbb-bq1-bq11/">https://www.washingtonpost.com/health/2022/10/18/covid-variants-xbb-bq1-bq11/</a> (Oct. 18, 2022). See also, CDC, Variants of the Virus, <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 Aug. 11, 2021); 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 Oct. 13, 2022).
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The portability provision at new 8 CFR 214.2(h)(29)(iii)(A)(1)-(2)
is substantively the same as the portability provision offered in the
prior second half FY 2022 H-2B supplemental visa temporary final rule,
which was codified at 8 CFR 214.2(h)(28)(iii)(A)(1)-(2), and will begin
upon the expiration of that provision. See new 8 CFR
214.2(h)(29)(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
pa
[…truncated; see source link]Indexed from Federal Register on December 15, 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.