Rule2023-25493
Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers
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
November 17, 2023
Effective
November 17, 2023
Issuing agencies
Homeland Security DepartmentLabor DepartmentEmployment and Training Administration
Abstract
DHS, in consultation with DOL, is exercising time-limited Fiscal Year (FY) 2024 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for the entirety of FY 2024. These supplemental visas will be distributed in several allocations. 20,000 visas made available in this rule will be reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be available only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer. In addition, DHS is again providing temporary portability flexibility.
Full Text
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<title>Federal Register, Volume 88 Issue 221 (Friday, November 17, 2023)</title>
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[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80394-80460]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25493]
[[Page 80393]]
Vol. 88
Friday,
No. 221
November 17, 2023
Part II
Department of Homeland Security
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8 CFR Parts 214 and 274a
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Numerical Limitation
for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change Employers;
Temporary Rule
Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 /
Rules and Regulations
[[Page 80394]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2764-24]
RIN 1615-AC89
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2023-0005]
RIN 1205-AC18
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To Change
Employers
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS), and Employment and Training Administration
and Wage and Hour Division, U.S. Department of Labor (DOL).
ACTION: Temporary rule.
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SUMMARY: DHS, in consultation with DOL, is exercising time-limited
Fiscal Year (FY) 2024 authority and increasing the total number of
noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716
for the entirety of FY 2024. These supplemental visas will be
distributed in several allocations. 20,000 visas made available in this
rule will be reserved for nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be
available only to businesses that are suffering or will suffer
impending irreparable harm, as attested by the employer. In addition,
DHS is again providing temporary portability flexibility.
DATES: Effective dates: The amendments at instructions 1, 3, and 5 are
effective November 17, 2023; at instructions 2 and 4 amending 8 CFR
214.2 and 274a.12, respectively, are effective from November 17, 2023,
through November 17, 2026; at instruction 6, adding 20 CFR 655.64, is
effective from November 17, 2023, through September 30, 2024; and at
instruction 7, adding 20 CFR 655.65, is effective from November 17,
2023, through September 30, 2027.
Petition dates: DHS will not accept any H-2B petitions under
provisions related to the FY 2024 supplemental numerical allocations
after September 16, 2024, and will not approve any such H-2B petitions
after September 30, 2024. The provisions related to portability are
only available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2025.
Comments on the Information Collection: The Office of Foreign Labor
Certification within the U.S. Department of Labor will accept comments
in connection with the new information collection Form ETA-9142B-CAA-8
associated with this rule until January 16, 2024. The electronic
Federal Docket Management System will accept comments prior to midnight
eastern time at the end of that day.
ADDRESSES: You may submit written comments on the new information
collection Form ETA-9142B-CAA-8, identified by Regulatory Information
Number (RIN) 1205-AC18, electronically by the following method:
Federal eRulemaking Portal: <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-AC18 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-8: Brian D.
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202)
693-8200 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2023 Omnibus and FY 2024 Public Law 118-15
D. Joint Issuance of the Final Rule
E. Comments and Responses to Comments on the FY 2023 TFR
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for Fiscal Year 2024
C. Returning Workers
D. 20,000 Allocation for Nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica
E. Business Need Standard--Irreparable Harm and FY 2024
Attestation
F. Portability
G. Compliance With Employment-Related Laws
H. DHS Petition Procedures
I. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. National Environmental Policy Act
H. Congressional Review Act
I. Paperwork Reduction Act
I. Executive Summary
FY 2024 H-2B Supplemental Cap
With this temporary final rule (TFR), the Secretary of Homeland
Security, following consultation with the Secretary of Labor, is
authorizing the release of an additional 64,716 H-2B visas for FY 2024,
subject to certain conditions. The 64,716 visas are divided into the
following allocations:
<bullet> For the first half of FY 2024: 20,716 immediately
available visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023, regardless of country of nationality. These
petitions must request employment start dates on or before March 31,
2024;
<bullet> For the early second half of FY 2024 (April 1 to May 14):
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023 regardless of country of nationality. These early
second half of FY 2024 petitions must request employment start dates
from April 1, 2024, to May 14, 2024. Furthermore, employers must file
these petitions no earlier than 15 days after
[[Page 80395]]
the second half statutory cap \1\ is reached;
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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 2024: (May 15 to September
30): 5,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023 regardless of country of nationality. These late
second half of FY 2024 petitions must request employment start dates
from May 15, 2024, to September 30, 2024. Furthermore, employers must
file these petitions no earlier than 45 days after the second half
statutory cap is reached; and
<bullet> For the entirety of FY 2024: 20,000 visas reserved for
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica (country-specific allocation) as attested by
the petitioner (regardless of whether such nationals are returning
workers). Employers requesting an employment start date in the first
half of FY 2024 may file such petitions immediately after the
publication of this TFR. Employers requesting an employment start date
in the second half of FY 2024 must file such petitions no earlier than
15 days after the second half statutory cap is reached.
To qualify for the FY 2024 supplemental caps provided by this
temporary final rule, eligible petitioners must:
<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 a Nonimmigrant
Worker, with USCIS at its Texas Service Center on or before September
16, 2024;
<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, Haitian, Colombian, Ecuadorian, or Costa Rican
national and counted towards the 20,000 cap exempt from the returning
worker requirement; and
<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.
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, 2022,
and until the date the H-2B petition is filed, disclose the terms of
the job order and solicit their return to the job;
<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 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 2024 supplemental
cap must retain documentation of compliance with the attestation
requirements for 3 years from the date DOL approved the TLC, and must
provide the documents and records upon the request of DHS or DOL, as
well as fully cooperate with any compliance reviews such as audits.
Through audits and investigations, both Departments have received
evidence of employer non-compliance with the terms and conditions of
the H-2B program, as well as violations of other labor and employment
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and
Hour Division (WHD), and USCIS Fraud Detection and National Security
(FDNS) personnel have encountered non-compliance issues such as failure
to pay the promised wage, failure to employ returning workers, failure
to demonstrate irreparable harm, failure to conduct the additional
recruitment steps, and failure to accurately disclose the beneficiary's
work location(s).
Such non-compliance can harm U.S. workers by undermining wages and
working conditions. It also directly harms H-2B workers. Further, H-2B
workers depend on ongoing employment with the petitioning employer to
maintain status in the United States. This dependence creates a power
imbalance between the employer and H-2B worker, making the H-2B worker
particularly vulnerable to exploitation and violations. In recognition
of the substantial impact that non-compliance can have on both U.S.
workers and H-2B workers, DHS and DOL again intend to conduct a
significant number of audits focusing on irreparable harm and other
worker protection provisions. And as it did as part of the FY 2022
second half H-2B supplemental cap TFR and the FY 2023 H-2B supplemental
cap TFR, DHS will again subject employers that have committed labor law
violations in the H-2B program to additional scrutiny in the
supplemental cap petition process.\2\ DHS intends for this additional
scrutiny to help ensure compliance with H-2B program requirements and
obligations.
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\2\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022 for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking to Change Employers, 87 FR 30334, 30335
(May 18, 2022); Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76818 (Dec. 15,
2022).
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Specifically, falsifying information in H-2B program attestation(s)
can result not only in penalties relating to perjury, but also in,
among other things, a finding of fraud or willful misrepresentation;
denial or revocation of the H-2B petition requesting supplemental
workers; and debarment by DOL and DHS from the H-2B program and any
other foreign labor
[[Page 80396]]
programs administered by DOL. Falsifying information also may subject a
petitioner/employer to other criminal and/or civil penalties.
DHS will not approve H-2B petitions filed in connection with the FY
2024 supplemental cap authority on or after October 1, 2024.
H-2B Portability
In addition to exercising its time-limited authority to make
additional FY 2024 H-2B visas available, DHS is again providing
additional flexibilities to H-2B petitioners under its general
programmatic authority by allowing nonimmigrant workers in the United
States \3\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2024, or who
are the beneficiaries of non-frivolous H-2B petitions that are pending
as of January 25, 2024, to begin work with a new employer after an H-2B
petition (supported by a valid TLC) is filed and before the petition is
approved, generally for a period of up to 60 days. However, such
employment authorization would end 15 days after USCIS denies the H-2B
petition or such petition is withdrawn. This H-2B portability ends one
year after the provision's effective date of January 25, 2024, in other
words, at the end of January 24, 2025.\4\
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\3\ The term ``United States'' includes the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the
United States, and the Commonwealth of the Northern Mariana Islands.
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
\4\ On September 20, 2023, DHS issued a Modernizing H-2 Program
Requirements, Oversight, and Worker Protections Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public comment
period that ends on November 20, 2023. In that NPRM, DHS proposed to
extend portability to H-2A and H-2B workers on a permanent basis.
The Department's proposal does not interfere with the portability
provision of this rule, however, should DHS publish a final rule
making H-2 portability permanent, any such provision would not
expire on a specific date, unlike the portability provision made
effective by this temporary final rule.
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II. Background
A. Legal Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS for classification
of prospective temporary workers as H-2B nonimmigrants. INA section
214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this
petition before the beneficiary can be considered eligible for an H-2B
visa. In addition, the INA requires that ``[t]he question of importing
any alien as [an H-2B] nonimmigrant . . . in any specific case or
specific cases shall be determined by [DHS],\5\ after consultation with
appropriate agencies of the Government.'' INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The INA generally charges the Secretary of Homeland
Security with the administration and enforcement of the immigration
laws, and provides that the Secretary ``shall establish such
regulations . . . and perform such other acts as he deems necessary for
carrying out his authority'' under the INA. See INA section 103(a)(1),
(3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C. 202(4) (charging the
Secretary with ``[e]stablishing and administering rules . . . governing
the granting of visas or other forms of permission . . . to enter the
United States to individuals who are not a citizen or an alien lawfully
admitted for permanent residence in the United States''). With respect
to nonimmigrants in particular, the INA provides that ``[t]he admission
to the United States of any alien as a nonimmigrant shall be for such
time and under such conditions as the [Secretary] may by regulations
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA
section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3)
(prohibiting employment of noncitizens \6\ not authorized for
employment). The Secretary may designate officers or employees to take
and consider evidence concerning any matter that is material or
relevant to the enforcement of the INA. INA sections 287(a)(1), (b), 8
U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8 U.S.C. 1225(d)(3).
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\5\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
\6\ For purposes of this discussion, the Departments use the
term ``noncitizen'' colloquially to be synonymous with the term
``alien'' as it is used in the Immigration and Nationality Act.
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Finally, under section 101 of the HSA, 6 U.S.C. 111(b)(1)(F), a
primary mission of DHS is to ``ensure that the overall economic
security of the United States is not diminished by efforts, activities,
and programs aimed at securing the homeland.''
DHS regulations provide that an approved TLC from the U.S.
Department of Labor (DOL), issued pursuant to regulations established
at 20 CFR part 655, or from the Guam Department of Labor if the workers
will be employed on Guam, must accompany an H-2B petition for temporary
employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C)
through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C.
1103(a)(6). The TLC serves as DHS's consultation with DOL with respect
to whether a qualified U.S. worker is available to fill the petitioning
H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly-employed U.S. workers. See INA section
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
To determine whether to issue a TLC, the Departments have
established regulatory procedures under which DOL certifies whether a
qualified U.S. worker is available to fill the job opportunity
described in the employer's petition for a temporary nonagricultural
worker, and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See 20 CFR part 655, subpart A. The
regulations establish the process by which employers obtain a TLC and
rights and obligations of workers and employers.
Once the petition is approved, under the INA and current DHS
regulations, H-2B workers do not have employment authorization outside
of the validity period listed on the approved petition unless otherwise
authorized, and the workers are limited to employment with the H-2B
petitioner. See 8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer
or U.S. agent generally may submit a new H-2B petition, with a new,
approved TLC, to USCIS to request an extension of H-2B nonimmigrant
status for the validity of the TLC or for a period of up to 1 year. 8
CFR 214.2(h)(15)(ii)(C). Except as provided for in the preceding H-2B
supplemental cap TFRs \7\ and in this rule, and except
[[Page 80397]]
for certain professional athletes being traded among organizations,\8\
H-2B workers seeking to extend their status with a new employer may not
begin employment with the new employer until the new H-2B petition is
approved.
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\7\ For instance, the FY 2023 H-2B supplemental cap TFR included
a portability provision at 8 CFR 214.2(h)(29)(iii)(A)(1)-(2), which
remains in effect through January 24, 2024. See e.g., Exercise of
Time-Limited Authority To Increase the Numerical Limitation for FY
2023 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
\8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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The INA also authorizes DHS to impose appropriate remedies against
an employer for a substantial failure to meet the terms and conditions
of employing an H-2B nonimmigrant worker, or for a willful
misrepresentation of a material fact in a petition for an H-2B
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6).
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8
U.S.C. 1184(c)(14)(A)(i), to DOL. See DHS, Delegation of Authority to
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL
to the Wage and Hour Division (WHD), and is governed by regulations at
29 CFR part 503.
B. H-2B Numerical Limitations Under the INA
The maximum annual number (``statutory cap'') of noncitizens who
may be issued H-2B visas or otherwise provided H-2B nonimmigrant status
to perform temporary nonagricultural work is 66,000, distributed
semiannually beginning in October and April. See INA sections
214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10).
Accordingly, with certain exceptions as described below, up to 33,000
noncitizens may be issued H-2B visas or provided H-2B nonimmigrant
status in the first half of a fiscal year, and the remaining annual
allocation, including any unused nonimmigrant H-2B visas from the first
half of a fiscal year, are available for employers seeking to hire H-2B
workers during the second half of the fiscal year.\9\ If the number of
petitions approved by DHS is insufficient to use all H-2B numbers in a
given fiscal year, DHS cannot carry over the unused numbers for
petition approvals for employment start dates beginning on or after the
start of the next fiscal year.
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\9\ The Federal Government's fiscal year runs from October 1 of
the prior year through September 30 of the year being described. For
example, fiscal year 2024 is from October 1, 2023, through September
30, 2024.
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In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers
identified as returning workers from the annual H-2B cap of 66,000.\10\
A returning worker is an H-2B worker who was previously counted against
the annual H-2B cap during a designated period of time.\11\ For
example, Congress designated that returning workers for FY 2016 needed
to have been counted against the cap during FY 2013, 2014, or 2015 to
qualify for the exemption.\12\ DHS and the Department of State (DOS)
worked together to confirm that all workers requested under the
returning worker provision in fact were eligible for exemption from the
annual cap (in other words, were issued an H-2B visa or provided H-2B
status during one of the prior 3 fiscal years) and were otherwise
eligible for H-2B classification.
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\10\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see
also Consolidated Appropriations Act, 2016, Public Law 114-113, div.
F, tit. V, sec 565; John Warner National Defense Authorization Act
for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law 109-13, div. B, tit. IV, sec. 402.
\11\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).
\12\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
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Because of the strong demand for H-2B visas in recent years, the
statutorily-limited semiannual visa allocation, the DOL regulatory
requirement that employers apply for a TLC 75 to 90 days before the
start date of work,\13\ and the DHS regulatory requirement that an
approved TLC accompany all H-2B petitions,\14\ employers that wish to
obtain visas for their workers under the semiannual allotment must act
early to receive a TLC and file a petition with U.S. Citizenship and
Immigration Services (USCIS). As a result, the date on which USCIS has
reached sufficient H-2B petitions to reach the first half of the fiscal
year statutory cap has generally trended earlier in recent years.\15\
For FY 2022, for the first time in more than a decade, USCIS received
sufficient H-2B petitions to reach the first half of the fiscal year
statutory cap before the start of the fiscal year.\16\ This occurred
even earlier in FY 2023, when USCIS received enough H-2B petitions to
reach the FY 2023 first-half statutory cap on September 12, 2022.\17\
For FY 2024, USCIS received sufficient H-2B petitions to reach the
first half of the fiscal year statutory cap on October 11, 2023.\18\
While this date was slightly later than the prior two years, the
Departments note that DOL received 2,157 applications for the first
half of the FY 2024 statutory cap during the initial three-day filing
window of July 3-5, 2023, covering 40,947 worker positions; a 59%
increase in TLC workload when compared to the same time period in
2022.\19\ This trend in recent years of increased demand for H-
[[Page 80398]]
2B workers is even more apparent in the second half of the fiscal
year.\20\
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\13\ See 20 CFR 655.15(b).
\14\ See 8 CFR 214.2(h)(6)(vi)(A).
\15\ In fiscal years 2017 through 2021, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
first half statutory cap on January 10, 2017, December 15, 2017,
December 6, 2018, November 15, 2019, and November 16, 2020,
respectively. See USCIS, USCIS Reaches the H-2B Cap for the First
Half of Fiscal Year 2017, <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> (Sept. 14, 2022).
\18\ On October 13, 2023, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2024, and that October 11, 2023 was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2024. See USCIS, USCIS Reaches
H-2B Cap for First Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (October 13,
2023).
\19\ See DOL, OFLC Publishes List of Randomized H-2B
Applications Submitted July 3-5, 2023, for Employers Seeking H-2B
Workers Starting October 1, 2023, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (July 10, 2023).
\20\ In recent years, DOL has received an increasing number of
TLC applications for an increasing number of H-2B workers with April
1 start dates: DOL received 4,500 applications on January 1, 2018,
covering more than 81,600 worker positions; DOL received 5,276
applications by January 8, 2019, covering more than 96,400 worker
positions; DOL received 5,677 applications during the initial three-
day filing window in 2020 covering 99,362 worker positions; DOL
received 5,377 applications during the initial three-day filing
window in 2021 covering 96,641 worker positions; DOL received 7,875
applications by January 7, 2022, covering 136,555 worker positions;
and DOL received 8,693 applications during the initial three-day
filing window in 2023, covering 142,796 worker positions. See DOL,
Announcements, <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.\21\ The
authorization for the current supplemental cap is under sections 101(6)
and 106 of Division A of Public Law 118-15, Continuing Appropriations
Act, 2024 and Other Extensions Act (FY 2024 authority), which extended
the authorization previously provided in section 303 of Division O of
the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023
Omnibus), as discussed below.
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\21\ See section 543 of Division F of the Consolidated
Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus);
section 205 of Division M of the Consolidated Appropriations Act,
2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division
H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY
2019 Omnibus); section 105 of Division I of the Further Consolidated
Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus);
section 105 of Division O of the Consolidated Appropriations Act,
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus,
sections 101 and 106(3) of Division A of Public Law 117-43,
Continuing Appropriations Act, 2022, and section 101 of Division A
of Public Law 117-70, Further Continuing Appropriations Act, 2022
through February 18, 2022 (together, FY 2022 authority); and section
204 of Division O of the Consolidated Appropriations Act, 2022,
Public Law 117-103 (FY 2022 Omnibus).
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C. FY 2023 Omnibus and FY 2024 Public Law 118-15
On December 29, 2022, President Joseph Biden signed the FY 2023
Omnibus, which contains a provision, section 303 of Division O, Title
III, permitting the Secretary of Homeland Security, under certain
circumstances and after consultation with the Secretary of Labor, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the otherwise-established statutory numerical
limitation set forth in the INA.\22\ Specifically, section 303 provides
that ``the Secretary of Homeland Security, after consultation with the
Secretary of Labor, and upon determining that the needs of American
businesses cannot be satisfied in [FY] 2023 with United States workers
who are willing, qualified, and able to perform temporary
nonagricultural labor,'' may increase the total number of noncitizens
who may receive an H-2B visa in FY 2023 by the highest number of H-2B
nonimmigrants who participated in the H-2B returning worker program in
any fiscal year in which returning workers were exempt from the H-2B
numerical limitation.
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\22\ The Department of Homeland Security Appropriations Act,
2023, Public Law 117-328 (Dec. 29, 2022).
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On September 30, 2023, Congress passed Public Law 118-15, which
extends authorization under the same terms and conditions provided in
section 303 of Division O of the FY 2023 Omnibus permitting the
Secretary of Homeland Security to increase the number of H-2B visas
available to U.S. employers in FY 2024.\23\ In other words, Public Law
118-15 permits the Secretary of Homeland Security, after consultation
with the Secretary of Labor, to provide up to 64,716 additional H-2B
visas for FY 2024, notwithstanding the otherwise-established statutory
numerical limitation set forth in the INA, for eligible employers whose
employment needs for FY 2024 cannot be met.\24\ Under the Public Law
118-15 authority, DHS and DOL are jointly publishing this temporary
final rule to authorize the issuance of no more than 64,716 additional
visas for FY 2024 to those businesses that are suffering irreparable
harm or will suffer impending irreparable harm, as attested by the
employer on a new attestation form. The authority to approve H-2B
petitions under this FY 2024 supplemental cap expires at the end of
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with this FY 2024 supplemental cap authority on or
after October 1, 2024.
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\23\ See Public Law 118-15, Continuing Appropriations Act, 2024
and Other Extensions Act, Division A, sections 101(6) and 106
(extending into 2024 DHS funding and other authorities, including
the authority to issue supplemental H-2B visas that was provided
under title III of Division O of Pub. L. 117-328, through November
17, 2023).
\24\ Appropriations and authorities provided by the continuing
resolutions are available for the needs of the entire fiscal year to
which the continuing resolution applies, although DHS's ability to
obligate funds or exercise such authorities may lapse at the sunset
of such resolution. See, e.g., Comments on Due Date and Amount of
District of Columbia's Contributions to Special Employee Retirement
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a
continuing resolution appropriates the full annual amount regardless
of its period of duration . . . . Standard continuing resolution
language makes it clear that the appropriations are available to the
extent and in the manner which would be provided by the pertinent
appropriations act that has yet to be enacted (unless otherwise
provided in the continuing resolution).''). Consistent with this
principle, DHS interprets the current continuing resolution to
provide DHS with the ability to authorize additional H-2B visa
numbers with respect to all of FY 2024 subject to the same terms and
conditions as the FY 2023 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2023 in the FY 2023 Omnibus.
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As noted above, since FY 2017, Congress has enacted a series of
public laws providing the Secretary of Homeland Security with the
discretionary authority to increase the H-2B cap beyond the annual
numerical limitation set forth in section 214 of the INA. The previous
statutory provisions were materially identical to section 303 of the FY
2023 Omnibus, which is the same authority provided for FY 2024 by the
recent continuing resolution. During each fiscal year from FY 2017
through FY 2019, and FY 2021 through FY 2023, the Secretary of Homeland
Security, after consulting with the Secretary of Labor, determined that
some American businesses could not satisfy their needs in such year
with U.S. workers who were willing, qualified, and able to perform
temporary nonagricultural labor. On the basis of these determinations,
on July 19, 2017, and May 31, 2018, DHS and DOL jointly published
temporary final rules for FY 2017 and FY 2018, respectively, each of
which allowed an increase of up to 15,000 additional H-2B visas for
those businesses that attested that if they did not receive all of the
workers requested on the Petition for a Nonimmigrant Worker (Form I-
129), they were likely to suffer irreparable harm, in other words,
suffer a permanent and severe financial loss.\25\ USCIS approved a
total of 12,294 workers for H-2B classification under petitions filed
pursuant to the FY 2017 supplemental cap increase.\26\ In FY 2018,
USCIS received petitions for more than 15,000 beneficiaries during the
first 5 business days of filing for the supplemental cap and held a
lottery on June 7, 2018. The total number of H-2B workers approved
toward the FY 2018 supplemental cap increase was 15,788.\27\ The vast
majority
[[Page 80399]]
of the H-2B petitions received under the FY 2017 and FY 2018
supplemental caps requested premium processing (Form I-907) \28\ and
were adjudicated within 15 calendar days.
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\25\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905, 24917 (May 31, 2018).
\26\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\27\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
\28\ Premium processing allows for expedited processing for an
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
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On May 8, 2019, DHS and DOL jointly published a temporary final
rule authorizing an increase of up to 30,000 additional H-2B visas for
the remainder of FY 2019.\29\ The additional visas were limited to
returning workers who had been counted against the H-2B cap or were
otherwise granted H-2B status in the previous three fiscal years, and
for those businesses that attested to a level of need such that, if
they did not receive all of the workers requested on the Form I-129,
they were likely to suffer irreparable harm, in other words, suffer a
permanent and severe financial loss.\30\ The Secretary determined that
limiting returning workers to those who were issued an H-2B visa or
granted H-2B status in the past 3 fiscal years was appropriate, as it
mirrored the standard that Congress designated in previous returning
worker provisions. On June 5, 2019, approximately 30 days after the
supplemental visas became available, USCIS announced that it received
sufficient petitions filed pursuant to the FY 2019 supplemental cap
increase. USCIS did not conduct a lottery for the FY 2019 supplemental
cap increase. The total number of H-2B workers approved towards the FY
2019 supplemental cap increase was 32,680.\31\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\29\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2019 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).
\30\ See 84 FR at 20021.
\31\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2019 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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Although Congress provided the Secretary of Homeland Security with
the discretionary authority to increase the H-2B cap in FY 2020, the
Secretary did not exercise that authority. DHS initially intended to
exercise its authority and, on March 4, 2020, announced that it would
make available 35,000 supplemental H-2B visas for the second half of
the fiscal year.\32\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\33\ On April 2, 2020, DHS announced that
the rule to increase the H-2B cap was on hold due to economic
circumstances, and that DHS would not release additional H-2B visas
until further notice.\34\ DHS also noted that the Department of State
had suspended routine visa services.\35\
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\32\ See DHS, DHS to Improve Integrity of Visa Program for
Foreign Workers (March 5, 2020), <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>.
\33\ See Proclamation 9994 of Mar. 13, 2020, Declaring a
National Emergency Concerning the Coronavirus Disease (COVID-19)
Outbreak, 85 FR 15337 (Mar. 18, 2020).
\34\ See <a href="https://twitter.com/DHSgov/status/1245745115458568192?s=20">https://twitter.com/DHSgov/status/1245745115458568192?s=20</a>.
\35\ See <a href="https://twitter.com/DHSgov/status/1245745116528156673">https://twitter.com/DHSgov/status/1245745116528156673</a>.
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In FY 2021, DHS in consultation with DOL determined it was
appropriate to increase the H-2B cap for FY 2021 coupled with
additional protections (for example, post-adjudication audits,
investigations, and compliance checks), based on the demand for H-2B
workers in the second half of FY 2021, continuing economic growth, the
improving job market, and increased visa processing capacity by the
Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly
published a temporary final rule authorizing an increase of up to
22,000 additional H-2B visas for the remainder of FY 2021.\36\ The
supplemental visas were available only to employers that attested they
were likely to suffer irreparable harm without the additional workers.
The allocation of 22,000 additional H-2B visas under that rule
consisted of 16,000 visas available only to H-2B returning workers from
one of the last three fiscal years (FY 2018, 2019, or 2020) and 6,000
visas that were initially reserved for nationals of the Northern
Central American countries of El Salvador, Guatemala, and Honduras, who
were exempt from the returning worker requirement. By August 13, 2021,
USCIS had received enough petitions for returning workers to reach the
additional 22,000 H-2B visas made available under the FY 2021 H-2B
supplemental visa temporary final rule.\37\ The total number of H-2B
workers approved towards the FY 2021 supplemental cap increase was
30,707.\38\ This total number included approved H-2B petitions for
23,937 returning workers, as well as 6,805 beneficiaries from the
Northern Central American countries.\39\
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\36\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).
\37\ See USCIS, Cap Reached for Remaining H-2B Visas for
Returning Workers for FY 2021, <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).
\38\ The number of approved workers exceeded the number of
additional visas authorized for FY 2021 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See Department of Homeland Security, U.S.
Citizenship and Immigration Services, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK
13122, H-2B Visa Issuance Report September 30, 2023.
\39\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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On January 28, 2022, DHS and DOL jointly published a temporary
final rule authorizing an increase of up to 20,000 additional H-2B
visas for FY 2022 positions with start dates on or before March 31,
2022.\40\ These supplemental visas were available only to employers
that attested they were suffering or would suffer impending irreparable
harm without the additional workers. The allocation of 20,000
additional H-2B visas under that rule consisted of 13,500 visas
available only to H-2B returning workers from one of the last three
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were
exempted from the returning worker requirement. USCIS data show that
the total number of H-2B workers approved towards the first half FY
2022 supplemental cap increase was 17,381, including 14,150 workers
under the returning worker allocation, as well as 3,231 workers
approved towards the Haitian/Northern Central American allocation.\41\
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\40\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2022 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); 87
FR 6017 (Feb. 3, 2022) (correction).
\41\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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For the second half of FY 2022, DHS in consultation with DOL
determined it was appropriate to increase the H-2B cap for FY 2022
positions with start dates beginning on April 1, 2022
[[Page 80400]]
through September 30, 2022, based on the continued demand for H-2B
workers for the remainder of FY 2022, continuing economic growth,
increased labor demand, and increased visa processing capacity by the
Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly
published a temporary final rule authorizing an increase of no more
than 35,000 additional H-2B visas for the second half of FY 2022.\42\
As in the January 2022 TFR, the supplemental visas were available only
to employers that attested they were suffering or would suffer
impending irreparable harm without the additional workers. The
allocation of 35,000 additional H-2B visas under the rule applicable to
the second half of FY 2022 consisted of 23,500 visas available only to
H-2B returning workers from one of the last three fiscal years (FY
2019, 2020, or 2021) and 11,500 visas reserved for Salvadoran,
Guatemalan, Honduran, and Haitian nationals, who were exempted from the
returning worker requirement. By May 25, 2022, USCIS had received
enough petitions for returning workers to reach the additional 23,500
H-2B visas made available under the second half FY 2022 H-2B
supplemental visa temporary final rule.\43\ USCIS data show that the
total number of H-2B workers approved towards the second half FY 2022
supplemental cap increase was 43,798, including 31,480 workers under
the returning worker allocation, as well as 12,318 workers approved
towards the Haitian/Northern Central American allocation.\44\
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\42\ See Temporary Final Rule, Exercise of Time-Limited
Authority To Increase the Numerical Limitation for Second Half of FY
2022 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 30334 (May 18, 2022).
\43\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for Second Half of FY 2022, <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).
\44\ The number of approved workers exceeded the number of
additional visas authorized for the second half of FY 2022 to allow
for the possibility that some approved workers would either not seek
a visa or admission, would not be issued a visa, or would not be
admitted to the United States. See Department of Homeland Security,
U.S. Citizenship and Immigration Services, Office of Performance and
Quality, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
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Finally, on December 15, 2022, DHS and DOL jointly published a
temporary final rule authorizing an increase of up to 64,716 additional
H-2B visas for the entirety of FY 2023. As in the FY 2022 TFRs, the
additional visas were available only to employers that attested they
were suffering or would suffer impending irreparable harm without the
additional workers.\45\ The 64,716 additional visas included 44,716
reserved for returning workers from one of the last three fiscal years
(FY 2020, 2021, or 2022), which were distributed in several allocations
based on date of employer need: 18,216 for employers with requested
employment start dates on or before March 31, 2023; 16,500 for
employers with requested employment start dates from April 1, 2023, to
May 14, 2023 (early second half allocation); and 10,000 for employers
with requested employment start dates from May 15, 2023, to Sept. 30,
2023 (late second half allocation). The remaining 20,000 visas were
available for the entirety of FY 2023, and were set aside for nationals
of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from
the returning worker requirement. By January 30, 2023, USCIS received
enough petitions to reach the cap for the additional 18,216 H-2B visas
made available for returning workers for the first half of fiscal year,
and by March 30, 2023, USCIS received enough petitions to reach the cap
for the additional 16,500 H-2B visas made available for returning
workers for the early second half of fiscal year.\46\ USCIS data show
that the total number of H-2B workers approved towards the FY 2023
supplemental cap increase was 78,302, including 54,470 workers under
the returning worker allocation, as well as 23,832 workers approved
towards the Haitian/Northern Central American allocation.\47\
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\45\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); 87
FR 77979 (Dec. 21, 2022).
\46\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023</a> (Jan. 31, 2023); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023</a> (Mar. 31, 2023).
\47\ The number of approved workers exceeded the number of
additional visas authorized for FY 2023 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See DHS, USCIS, Office of Performance and
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK
13122, H-2B Visa Issuance Report September 30, 2023.
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Once again, DHS in consultation with DOL believes that it is
appropriate to increase the H-2B cap for FY 2024 based on the demand
for H-2B workers in the first half of FY 2024, anticipated demand for
the second half of FY 2024, recent economic growth, and strong labor
demand.\48\ Similar to the preceding temporary rule, DHS and DOL also
believe that it is appropriate and important to couple this cap
increase with additional worker protections, as described below.
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\48\ The term ``strong labor demand'' in this context relies on
the most recently released figure from a Bureau of Labor Statistics
(BLS) survey at the time this TFR was written. The BLS Job Openings
and Labor Turnover Survey (JOLTS) reports 9.6 million job openings
in August 2023. See DOL, BLS, Job Openings and Labor Turnover--
August 2023, <a href="https://www.bls.gov/news.release/archives/jolts_10032023.htm">https://www.bls.gov/news.release/archives/jolts_10032023.htm</a>.
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D. Joint Issuance of the Final Rule
As in FY 2017, FY 2018, FY 2019, FY 2021, FY 2022, and FY 2023, DHS
and DOL (the Departments) have determined that it is appropriate to
jointly issue this temporary final rule.\49\ The determination to issue
the temporary final rule jointly follows conflicting court decisions
concerning DOL's authority to independently issue legislative rules to
carry out its consultative and delegated functions pertaining to the H-
2B program under the INA.\50\ Although DHS and DOL each have authority
to independently issue rules implementing their respective duties under
the H-2B program,\51\ the Departments are implementing the numerical
increase in this manner to ensure there can be no question about the
authority underlying the
[[Page 80401]]
administration and enforcement of the temporary cap increase. This
approach is consistent with rules implementing DOL's general
consultative role under INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and
delegated functions under INA sections 103(a)(6) and 214(c)(14)(B), 8
U.S.C. 1103(a)(6), 1184(c)(14)(B).\52\
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\49\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited
Authority To Increase the Fiscal Year 2019 Numerical Limitation for
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May
8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal
Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for FY 2023
for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
\50\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021);
see also Temporary Non-Agricultural Employment of H-2B Aliens in the
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
\51\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\52\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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E. Comments and Responses to Comments on the FY 2023 TFR
In connection with the FY 2023 TFR, the Departments solicited
public comments for 60 days. During that comment period, the
Departments received 10 substantive comments. In the following
discussion, the Departments discuss and respond to those comments by
topic.
Timing and Distribution of Visas
Comment: Several commenters expressed support for the Departments'
release of the maximum number of visas authorized by Congress. In
addition, these commenters indicated appreciation for the earlier
release of supplemental visas in 2023 than in prior years, noting that
the FY 2023 TFR offered certainty that was beneficial to employers. The
commenters encouraged the Departments to similarly make future
supplemental visas available early in the relevant fiscal year.
Response: The Departments thank the commenters for their feedback.
The Departments are again making the maximum number of visas available
for FY 2024 and worked diligently to release these visas as early as
possible.
Comment: One commenter stated that the number of supplemental visas
was not sufficiently justified by labor market conditions. The
commenter asserted that the United States is not experiencing a labor
shortage and disagreed with the Departments' usage of official
unemployment rate data to justify the decision to release 64,716
supplemental visas for FY 2023. The comment centers on a critique of
official government statistics produced by the Department of Labor.
More specifically, the comment noted the long-term decline in the labor
force participation rate and, further, alleges that the official
unemployment rate is flawed because it excludes persons who are
considered to no longer be in the labor force.
Response: The Departments appreciate the comment regarding
justification for the number of supplemental visas. However, the
Departments disagree that the rule did not sufficiently justify the
number of supplemental visas. Specifically, the Departments disagree
with the assertion that official government statistics are incorrect or
inadequate. Furthermore, the Departments (as branches of the Federal
Government) believe that it is reasonable to rely on official labor
market statistics produced by subject-matter experts within the U.S.
Government when assessing the labor market. Additionally, the
Departments note that did they not rely on any single statistic to
determine either the general need for supplemental visas or the
specific number of supplemental visas, but rather considered a number
of factors including demand for H-2B workers (in the form of TLC data)
and labor market conditions (in the form of multiple labor market
statistics). Finally, the Departments believe that aspects of this
comment, specifically the discussion regarding long-term labor force
trends that (by the commenter's description) are impacted by multiple
variables other than short-term labor needs, are out of the scope of
the FY 2023 Temporary Final Rule.
Comment: Some commenters expressed support for the Departments' FY
2023 distribution of the supplemental H-2B visas in multiple seasonal
allocations including two allocations for the second half of the fiscal
year. These commenters noted that this distribution was beneficial to
employers who hire later in the fiscal year.
Response: The Departments thank the commenters for their feedback
and will again make multiple allocations available including two
allocations for the second half of FY 2024.
Comment: One commenter requested that the Departments consider
combining the supplemental allocations for the second half of the
fiscal year into a single allocation in future TFRs. The commenter
stated that administering multiple allocations creates more work for
the Departments when they are already struggling to process
applications and petitions in a timely manner. The commenter also
stated that the allocations for the second half of the fiscal year were
``woefully insufficient'' to meet employer demand.
Response: The Departments have again decided to reserve
supplemental visas for the late second half of FY 2024. As noted by the
commenter, administering multiple allocations involves some level of
additional work. This includes both the work performed by USCIS in the
actual administration of each allocation cap, as well as a potential
increase in DOL workload as TLC requests may increase. However, the
Departments have attempted to balance such workload challenges with the
importance of addressing the needs of U.S. employers, including those
late season employers who otherwise may not have the opportunity to
file for cap-subject H-2B workers. As explained in last year's TFR and
again in this TFR, the intense competition for employers requesting an
April 1 start date has resulted in H-2B visas being effectively
unavailable for many employers who need workers to start late in the
season, and thus the late season allocation is intended to directly
assist those employers.\53\ For FY 2024, as in FY 2023, the Departments
believe that there is sufficient demand and need for the late second
half to justify the additional work and potential impact on processing
times.
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\53\ Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76830 (Dec. 15,
2022).
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Regarding the claim that the total allocation for the second half
of FY 2023 was inadequate, the Departments reiterate that the 33,000
cap was statutory, and the second half's total returning worker
supplemental allocation of 26,500 visas was more than the first half's
returning worker allocation of 18,216. In addition, while the 20,000
allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti
was available for start dates throughout FY 2023, the majority of visas
issued under that allocation went to workers with second half start
dates.\54\ As with the FY 2023 TFR, the Departments will continue to
make more total visas available for the second half of FY 2024 than the
first half.
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\54\ Under the FY 2023 TFR allocation for nationals of Northern
Central America and Haiti, a total of over 16,700 visas were issued,
with around 5,000 of those visas issued to workers with first half
start dates and the remainder issued to workers with second half
start dates. See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
FY 2023 H-2B Northern Central American Cap Approvals by Validity
Start Date Month.
---------------------------------------------------------------------------
Comment: One commenter recommended reallocating unused visas from
one sub-allocation to another if there were unused visas, such as
unused visas from the allocation for nationals of El Salvador,
Guatemala, Honduras, and Haiti, to the returning worker allocation.
Another commenter more specifically suggested that the Departments
coordinate with DOS to verify all visas under the first half allocation
are actually used and roll over any supplemental visas that were
``used'' (counted on a petition) but not issued (by DOS) from the first
half cap to the second half cap, or from the early
[[Page 80402]]
second half cap to the late second half cap.
Response: The Departments again decline to roll over any unused
visas. As explained in this and the prior TFR, calculating and
administering a process to carry over unused visas would significantly
increase operational burdens. Also, not permitting rollover from the
allocation for nationals of certain countries into the returning worker
allocation provides employers seeking to hire workers from these
countries with more time to petition for, and bring in those workers
and encourages full use of the 20,000 allocation.\55\ This, in turn,
contributes to the United States Government's efforts to promote and
improve safety, security and economic stability in these countries to
help stem the flow of irregular migration to the United States.
Further, DHS anticipates that the issuance of this rule early in the
fiscal year, the fact that this is the fourth year that DHS will make a
specific allocation available for workers from the Northern Central
American countries and Haiti, as well as the inclusion of nationals
from Ecuador, Colombia, and Costa Rica, will contribute to even greater
utilization of available visas under this allocation during FY 2024
such that a rollover would not be beneficial or necessary. Similarly,
it is the Departments' expectation that there will be sufficient demand
from employers with first half and early second half start dates to use
the entirety of these allocations in FY 2024, rendering rollover
unnecessary.
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\55\ In FY 2021, 3,079 visas out of 6,000 authorized were issued
under the allocation for nationals of Northern Central America in
the FY 2021 TFR, which published on May 25, 2021--to use a visa
under this allocation the petition had to have been received by July
8, 20211. In FY 2022, 2,481 visas out of 6,500 authorized were
issued under the allocation for nationals of Northern Central
America and Haiti in the first half FY 2022 TFR, which published on
January 22, 2022; 7,405 visas out of 11,500 authorized were issued
under the allocation for nationals of Northern Central America and
Haiti in the second half FY 2022 TFR, which published on May 18,
2022; and 16,713 visas were issued out of 20,000 authorized under
the allocation for nationals of Northern Central America and Haiti
in the FY 2023 TFR, which published on December 15, 2022. See DHS,
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report
September 30, 2023.
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With respect to the suggestion to roll over any supplemental visas
that were ``used'' but not issued by DOS, the Departments note that DHS
already accounts for visa usage rates (among other factors) in its
administration of the caps by using projections of the number of
petitions necessary to achieve the numerical limit of approvals. See
new 8 CFR 214.2(h)(6)(xiv)(D). Further, any rollover process would be
operationally burdensome as noted above.
Comment: A commenter requested the Departments to prioritize the
allocation of late second half visas to essential and critical
infrastructure employers, including seafood processors, as designated
by DHS. Another commenter similarly requested the Departments to
prioritize critical and essential infrastructure seafood industry jobs.
Response: The Departments decline the suggestion to prioritize
certain industries or jobs in the allocation of supplemental cap visas.
As noted in the FY 2023 TFR and this TFR, the Departments interpret the
use of the phrase ``the needs of American businesses'' in the relevant
statutory authority for the supplemental caps as providing discretion
to identify the business needs that are most relevant, while bearing in
mind the need to protect U.S. workers. The Departments have implemented
the irreparable harm standard in order to prioritize the most pressing
business needs. Prioritizing certain industries as ``essential and
critical,'' separate from the irreparable harm consideration already in
use, could also harm industries DHS does not designate as such. The
Departments believe considering the irreparable harm to individual
employers better addresses the needs of employers than designating
entire industries for prioritization. In addition, the Departments do
not believe such prioritization is necessary as the decision to provide
a late second half allocation again for FY 2024 should provide some
relief to seafood processors (one of the industries highlighted in the
comments) and other similar companies facing a need for additional
workers in the late second half.
FY 23 Allocation for Nationals of El Salvador, Guatemala, Honduras, and
Haiti
Comment: Two commenters expressed general opposition to the
allocation of supplemental visas for nationals of El Salvador,
Guatemala, Honduras, and Haiti. These commenters opined that the H-2B
program is not an appropriate strategy for addressing humanitarian
needs and that the H-2B program would not provide permanent, durable
solutions for these countries' nationals.
Response: The country-specific allocation within the H-2B program
is an important part of the administration's overall strategy to expand
access to lawful pathways for individuals from these countries to stem
irregular migration. These allocations are just one of the additional
lawful pathways offered to these nationals and others, including new
family reunification parole processes for certain nationals of El
Salvador,\56\ Guatemala,\57\ Honduras,\58\ Colombia,\59\ and
Ecuador,\60\ and modernized family reunification parole processes for
certain nationals of Haiti \61\ and Cuba.\62\
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\56\ Implementation of a Family Reunification Parole Process for
Salvadorans, 88 FR 43611 (July 10, 2023).
\57\ Implementation of a Family Reunification Parole Process for
Guatemalans, 88 FR 43581 (July 10, 2023).
\58\ Implementation of a Family Reunification Parole Process for
Hondurans, 88 FR 43601 (July 10, 2023).
\59\ Implementation of a Family Reunification Parole Process for
Colombians, 88 FR 43591 (July 10, 2023).
\60\ DHS announced a forthcoming family reunification parole
program for Ecuador on October 18, 2023. DHS, DHS Announces Family
Reunification Parole Process for Ecuador (Oct. 18, 2023), <a href="https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-process-for-ecuador">https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-process-for-ecuador</a> (announcing that the
Federal Register notice for this process will be published soon). As
of October 27, 2023, the program is not yet active.
\61\ Implementation of Changes to the Haitian Family
Reunification Parole Process, 88 FR 54635 (Aug. 11, 2023).
\62\ Implementation of Changes to the Cuban Family Reunification
Parole Process, 88 FR 54639 (Aug. 11, 2023).
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The root causes of migration from these regions are multifold.
Political instability and insecurity, poverty and economic inequality,
pervasive crime and corruption, and other factors all contribute to
irregular migration.\63\ The diversity of the root causes of irregular
migration requires a multi-pronged strategy, as employed by this
administration, to address them. As such, this rule and the allocation
for certain countries provide an additional lawful pathway for
individuals seeking an economic opportunity in the United States who
would eventually return to contribute to the development of their own
community and country. However, the Departments recognize other
programs and efforts are also needed to
[[Page 80403]]
address other drivers to irregular migration.
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\63\ See National Security Council, U.S. Strategy for Addressing
the Root Causes of Migration in Central America, at 4 (Jul. 2021),
<a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf</a> (Poverty and economic inequality, among other factors,
contribute to irregular migration). See also The White House, Fact
Sheet: Update on the U.S. Strategy for Addressing the Root Causes of
Migration in Central America (Feb. 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/06/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-2/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/06/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-2/</a> (economic challenges is
one of the drivers of irregular migration); Diana Roy and Amelia
Cheatham, Central America's Turbulent Northern Triangle (July 13,
2023), Council on Foreign Relations, <a href="https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle">https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle</a> (``Many
interrelated factors drive people from the Northern Triangle,
including lack of economic opportunity. . . .'').
---------------------------------------------------------------------------
Comment: A commenter stated that the allocation of supplemental
visas for nationals of El Salvador, Guatemala, Honduras, and Haiti was
too high for H-2B employers to take full advantage of this set aside.
The commenter stated that visa processing times in those countries
cause employers to fear that they will not be able to obtain H-2B
workers from these countries efficiently.
Response: The Departments disagree that the 20,000 allocation for
nationals of El Salvador, Guatemala, Honduras, and Haiti was too high.
The Departments have again decided to set aside 20,000 supplemental
visas for nationals of certain countries and believe all 20,000 visas
will be utilized in FY 2024 for the following reasons. First, H-2B visa
issuance growth data for nationals of these countries for the past
several years supports the Departments' decision. Under the dedicated
allocations in prior TFRs, H-2B visas were issued to 3,079 out of 6,000
authorized for nationals of Northern Central America under the FY 2021
TFR; 9,886 out of 11,500 authorized for nationals of Northern Central
America and Haiti under the two FY 2022 TFRs; and 16,713 out of 20,000
authorized for nationals of Northern Central America and Haiti under
the FY 2023 TFR.\64\ These numbers show a steady increase in
utilization over time. In addition, the issuance of this rule early in
the fiscal year and the fact that this is the fourth year that DHS will
make a specific allocation available for workers from the Northern
Central American countries and Haiti, as well as the inclusion of
nationals from Colombia, Ecuador, and Costa Rica, will increase the
likelihood that all 20,000 set-aside visas for FY 2024 will be used.
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\64\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
---------------------------------------------------------------------------
Comment: A commenter requested including nationals of Ukraine in
the same priority allocation as nationals of El Salvador, Guatemala,
Honduras, and Haiti.
Response: The Departments thank the commenter but will decline this
suggestion. While DHS is committed to providing support to Ukrainian
nationals, the allocation for Northern Central American/Haitian
nationals was intended to support the administration's efforts to
reduce irregular migration and expand lawful pathways from across the
Western Hemisphere, and the Departments are making a similar separate
allocation for nationals of specified countries this year for the same
reasons. DHS continues to support Ukrainian nationals through other
processes, such as Uniting for Ukraine.\65\ The Departments further
note that, historically, Ukrainian nationals have received relatively
high numbers of H-2B visas compared to nationals of other
countries.\66\ Including Ukrainian nationals in the 20,000 allocation
would take away from the number of supplemental visas available to help
achieve the administration's overall goal of expanding lawful pathways
from the Americas.
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\65\ USCIS, Uniting for Ukraine, <a href="https://www.uscis.gov/ukraine">https://www.uscis.gov/ukraine</a>;
DHS, Fact Sheet: DHS Efforts to Assist Ukrainian Nationals, <a href="https://www.dhs.gov/news/2022/03/31/fact-sheet-dhs-efforts-assist-ukrainian-nationals">https://www.dhs.gov/news/2022/03/31/fact-sheet-dhs-efforts-assist-ukrainian-nationals</a> (last visited Oct. 31, 2023).
\66\ Ukraine was among the top ten H-2B visa issuance countries
in FY 2022 and among the top five H-2B visa issuance countries in FY
2021 and FY 2020. See USCIS, Characteristics of H-2B Nonagricultural
Temporary Workers Fiscal Year 2022 Report to Congress, <a href="https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf">https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf</a> (Feb. 14, 2023) (Ukrainian
nationals were issued 1,085 H-2B visas in FY22); Characteristics of
H-2B Nonagricultural Temporary Workers Fiscal Year 2021 Report to
Congress, <a href="https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf">https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf</a> (Mar. 10, 2022)
(Ukrainian nationals were issued 2,222 H-2B visas in FY21);
Characteristics of H-2B Nonagricultural Temporary Workers Fiscal
Year 2020 Report to Congress, <a href="https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf">https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf</a> (Feb.
22, 2021) (Ukrainian nationals were issued 1,585 H-2B visas in
FY20).
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Data Transparency
Comment: Several commenters requested the Departments disclose more
data about the H-2B program. Specifically, commenters requested that
DHS post ``close to real time'' data about jobs for which employers are
seeking H-2B workers including the employer name, wages and working
conditions and dates of need; provide more information through the
USCIS H-2B Employer Data Hub including information on cap-exempt
petitions; and provide additional information on usage of the
allocation for Northern Central American and Haitian nationals,
including the number of visas that were issued to nationals from each
country, as well as which industries, employers and recruiters were
involved. With regard to suggestions for DOL, commenters recommended
enhancing the <a href="http://seasonaljobs.gov">seasonaljobs.gov</a> website's utility, including by ensuring
that workers know in real time when an employer is actively hiring.
Response: The Departments appreciate these comments and note that
transparency and access to data and information continue to be among
our priorities.\67\ DHS/USCIS has sought to increase transparency in
employment-based visa programs, including through the USCIS H-2B
Employer Data Hub which provides detailed information on H-2B petitions
including employer name, state, worksite state, industry, occupation,
and wage levels.\68\ Notably, the goal of improving data transparency
is among the objectives included in a recently published report by the
H-2B Worker Protection Taskforce.\69\ Specifically, one of the action
items described in the report is the leveraging of existing data to
increase transparency and reduce the vulnerability of H-2B and H-2A
workers, including by improving interagency data sharing; improving
publicly available data to inform outreach and advocacy efforts,
including through new anonymized quarterly data reports and on DHS's H-
2B Data Hub; and by publishing anonymized, aggregated data by gender,
sector, and occupation to provide an additional transparency to the H-2
programs and aid efforts to prevent gender discrimination.
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\67\ USCIS, Annual Statistical Report FY 2022, <a href="https://www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf">https://www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf</a>. Since FY 2008, DOL continues
to publish selected statistical factsheets and individual TLC case
record data cumulated on a quarterly and annual basis useful to a
wide range of stakeholders and the general public at <a href="https://www.dol.gov/agencies/eta/foreign-labor/performance">https://www.dol.gov/agencies/eta/foreign-labor/performance</a>.
\68\ USCIS, H-2B Employer Data Hub, <a href="https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub">https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub</a> (last visited Oct. 17,
2023). The data in the H-2B Employer Data Hub comes from fields on
an employer's Form I-129, from USCIS' adjudicative decisions, and
from the DOL H-2B Application for Temporary Employment Certification
(Form ETA-9142B). USCIS, Understanding our H-2B Employer Data Hub,
<a href="https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub/understanding-our-h-2b-employer-data-hub">https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub/understanding-our-h-2b-employer-data-hub</a> (last visited Oct. 17,
2023).
\69\ See The White House, Strengthening Protections for H-2B
Temporary Workers, Report of the H-2B Worker Protection Taskforce,
<a href="https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf</a> (Oct. 19, 2023).
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In addition, USCIS included some data about visas allocated under
the FY 2022 allocation for nationals of Northern Central American
countries and Haiti in its most recent report to Congress (which is
available to the public) about characteristics of the H-2B program.\70\
The Departments will consider the suggestions provided by these
commenters as they seek to improve clarity and transparency of data for
the public. However, the Departments believe that many of the
[[Page 80404]]
suggestions, as well as other data enhancements, can be accomplished
outside of the regulatory process. Therefore, DHS declines to adopt
these suggestions as part of this temporary final rule.
---------------------------------------------------------------------------
\70\ USCIS, Characteristics of H-2B Nonagricultural Temporary
Workers Fiscal Year 2022 Report to Congress, <a href="https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf">https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf</a> (Feb. 14, 2023).
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Irreparable Harm Standard
Comment: Two commenters expressed concerns related to the
irreparable harm standard as articulated. One commenter stated that the
standard is unclear, overly burdensome, applied inconsistently by the
Departments, and disruptive to business operations. The commenter felt
that, if the standard is retained, the Departments should provide
clearer guidance on what specific documents are required and
sufficient, and recommended that the Departments issue step-by-step
instructions for participating in the program to assist employers with
understanding their obligations and reducing the risk of noncompliance.
Response: As discussed in greater detail below, because the
authority to increase the statutory cap is tied to the needs of
businesses, the Departments think it is reasonable for employers to
attest that they are suffering irreparable harm or that they will
suffer impending irreparable harm without the ability to employ all of
the H-2B workers requested on their petition and to retain and be able
to produce (upon request) documentation of that harm as well as a
statement describing the harm and explaining the relevance of the
documentation. The Departments also think that the standard is
sufficiently clear to allow compliance, and that listing out specific
documents that must be provided in each case is not an appropriate
approach. Each determination of irreparable harm is made on a case-by-
case basis. This inherently means that some documentation presented in
one case may not be sufficient in another case presenting a different
set of facts. In addition, not listing specific documents provides more
flexibility for employers across occupations and industries to provide
documentation that is relevant to their types of businesses.
Recruitment Requirements
Comment: One commenter stated that the additional recruitment
requirements included in the TFR create an undue burden for
participating employers. Specifically, the commenter stated that the
requirement to provide a copy of the job notice to the AFL-CIO is
unnecessary, and ``purely duplicative, given the steps already required
of petitioners to recruit U.S. workers.'' The commenter also asserted
that the requirement failed to acknowledge the rate at which workers
are unionized, noting the low rate of unionization in the residential
construction industry, and suggested that in some areas alternative
organizations--such as state and local trade associations or workforce
boards--may be better positioned to conduct recruitment efforts in
place of the AFL-CIO.
Response: As discussed in the FY 2023 TFR and below, while the
Departments recognize that the recruitment requirements create some
burden on employers, the Departments believe they are necessary to
ensure that the employer's recruitment has not become stale and that
there are no U.S. workers available for the relevant job opportunity.
The Departments reiterate that the additional recruitment requirements
are only applicable if an employer files their I-129 petition 30 or
more days after their certified start dates of work. The Departments,
as discussed in the FY 2023 TFR and below, believe that the requirement
to provide a copy of the job notice to the AFL-CIO is complementary to,
rather than duplicative of, the other recruitment requirements for
several reasons. For example, the Departments explained in the prior
TFR that the State Federations of Labor and local unions to which SWAs
would circulate relevant job orders, based on their knowledge of the
local labor market, are composed of various union organizations and may
not always include the AFL-CIO. At the same time, the requirement to
contact the AFL-CIO increases outreach to qualified U.S. workers as H-
2B job opportunities in traditionally or customarily unionized
occupations tend to fall within those industries most likely to be
organized or represented by AFL-CIO member unions. See 87 FR 76816,
76844-45. The Departments disagree that they have not taken the rate of
unionization into account as the Departments previously provided, and
will continue to provide, a list of occupations that they believe are
typically or customarily unionized. See, e.g., 87 FR 76816, 76844 n.145
(noting the occupations or industries listed are ones in which the
Department has typically observed substantial union presence). Finally,
the Departments agree that other organizations in addition to the AFL-
CIO are well positioned to assist employers with recruitment activities
as demonstrated by the requirement to post a new job order with the SWA
and to engage with the local AJC to assist with recruitment.
Attestation Form
Comment: One commenter stated that the attestation form that is
required ``to demonstrate irreparable harm'' under the TFR is ``overly
burdensome and may discourage employer participation when noncitizen
workers are needed to address labor shortages,'' and urged the
Departments to exclude the attestation form from subsequent
rulemakings. The commenter indicated the Departments should recognize
that a petitioner's investment of resources into seeking a TLC and
filing Form I-129 with accompanying documentation shows ``the implied
need for H-2B workers.''
Response: The Departments disagree with this comment. The
attestation form contains information needed to establish eligibility
for supplemental H-2B visas that is not captured on other forms. It
also contains information that the Departments need to properly
administer the allocations under this rule. For example, among other
things, the petitioner must indicate which allocation they are
requesting workers under, attest that they are suffering or will suffer
impending irreparable harm and indicate the types of evidence that they
have retained to demonstrate irreparable harm. The Departments believe
that the additional attestation is the least burdensome way to collect
information needed to establish eligibility and to properly administer
the supplemental visa allocations. The Departments also disagree that
the attestation form is overly burdensome as DOL estimated that the
total time burden for the ETA-9142-B-CAA-7 is 1 hour.\71\ It is
unlikely that an employer would be discouraged from seeking H-2B
workers because of this 1 hour burden, especially if the employer is
suffering irreparable harm or will suffer impending irreparable harm
without the ability to employ those workers.
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\71\ The Departments are retaining the attestation form
requirement, and the total time burden for the FY 2024 attestation
form, ETA-9142-B-CAA-8, remains 1 hour.
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Legal Issues
Comment: One commenter stated that DHS violated the National
Environmental Policy Act (NEPA) by failing to provide any analysis to
justify its assertion that adding up to 64,716 visas would not result
in ``meaningful, calculable change in environment effect,'' or to
justify its conclusion that the FY 2023 TFR therefore fits within a
categorical exclusion.
Response: The Departments disagree with the commenter regarding the
sufficiency of the NEPA analysis in the FY 2023 TFR. As explained in
the FY
[[Page 80405]]
2023 TFR, an additional 64,716 H-2B nonimmigrant visas will not result
in any meaningful, calculable change in environmental effect with
respect to the current H-2B limit or in the context of a current U.S.
population exceeding 331,893,745, which represents a maximum temporary
increase of 0.0195 percent. As further explained, the FY 2023 TFR is a
stand-alone temporary authorization and not a part of any larger action
and presents no extraordinary circumstances creating the potential for
significant environmental effects.
Comment: While a commenter agreed with DHS that there was good
cause to immediately increase the cap, the commenter opined that there
was not good cause for the other ``ancillary policy provisions,''
particularly the requirement to ``affirmatively contact'' the nearest
AFL-CIO office and provide written notice of the job order placed with
the SWA when the employment is in a traditionally or customarily
unionized occupation or industry. Accordingly, the commenter urged the
Departments to reissue the FY 2023 TFR as two separate rules, a final
rule to release the supplemental visas and a proposed rule that
contains the other provisions.
Response: The Departments maintain there was good cause to couple
the release of supplemental visas with additional provisions, such as
the additional recruitment requirements, in a temporary final rule. The
Departments provided their rationale for the recruitment requirements
in the FY 2023 TFR \72\ and articulated sufficient good cause to forgo
notice and comment rulemaking for all aspects of the temporary final
rule. As indicated in the FY 2023 temporary final rule, the duration of
the authorization to make supplemental cap visas available, combined
with the urgent need of American businesses for H-2B workers did not
provide sufficient time to conduct pre-promulgation notice and comment
rulemaking on any aspect of the TFRs, including additional recruitment
requirements.
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\72\ Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76842-47 (Dec. 15,
2022).
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Suggestions Outside the Departments' Authority
Comment: Two commenters urged the administration to consider an
``Alternative Model for Labor Migration'' that would give workers in
the H-2B visa program, and more broadly in all work visa programs, more
control over their visas by allowing them to self-petition and be
matched with employers via a government database, and would enable
workers to petition for citizenship. The commenters set forth a
detailed plan regarding how the model would function, including
specific DOL and USCIS procedures, and they provided an analysis of the
benefits of the alternative model relative to the current program.
The commenters asserted that the supplemental cap TFR represents an
opportunity for the Departments to ``partially implement'' the model
described. Specifically, the commenters suggested that the Departments
could implement a lottery open to all returning workers by which they
could apply to be assigned a priority ranking. Employers approved
through the TLC and petition processes would be required to post the
number of open H-2B positions and procedures for applying publicly on
<a href="http://seasonaljobs.dol.gov">seasonaljobs.dol.gov</a>, and any returning H-2B worker would be eligible
to apply directly to the employer or the employer's designated agent.
If the applications from returning H-2B workers exceeded the vacancies,
workers' priority would be based on their assigned lottery rank.
Response: As implicitly acknowledged by the commenters in their
suggestions that the proposed model could be ``partially'' implemented
by regulation, many aspects of the commenters' proposed ``Alternative
Model for Labor Migration,'' such as enabling workers to self-petition
and to pursue citizenship, are clearly outside the Departments
authority under the current statutory scheme. It is unclear whether the
Departments have authority to otherwise ``partially implement'' the
model as suggested. Regardless, even assuming such authority, the
Departments note that the proposal would not be feasible in the context
of a temporary and time-limited statutory authority and rule such as
the current TFR, due to the level of changes to existing processes and
the development of new systems and processes that would be required for
implementation.
Broader Program Reforms
Some commenters made suggestions for broader program reforms that
would require Congressional action. For example, commenters made
suggestions relating to permanently increasing the H-2B annual
statutory cap, exempting certain workers from that cap, and increasing
funding for DOL's H-2B enforcement. However, the Departments decline to
further detail and respond to these comments, as the recommendations
are all outside of the Departments' authority to accomplish.
In addition to the issues discussed above, the public comments
included numerous suggestions for the Departments to make permanent
changes to the H-2B program, with several commenters expressing that
the Departments should not exercise their authority to increase the
number of H-2B visas unless and until the program is more broadly
reformed. The recommendations for permanent program reforms included
suggestions for both DHS and DOL regarding ways to increase protections
for both foreign and U.S. workers, and to improve the overall integrity
and efficiency of the program. Specifically, commenters suggested that
one or both Departments should implement the following changes to the
H-2B program before or instead of authorizing supplemental visas:
<bullet> Provide a grace period with employment authorization so
workers can leave employers for any reason;
<bullet> Notify beneficiaries about their own immigration status;
<bullet> Provide workers access to information about their rights
and about available resources to enforce those rights;
<bullet> Improve access to deferred action for H-2 workers who
experience or witness labor rights violations, including an expedited
process for issuance of statements of interest from government
entities;
<bullet> Fully implement the existing provision at 8 CFR
214.2(h)(17)(iii) to protect workers who leave abusive employers from
accruing unlawful presence;
<bullet> Do more to prevent discrimination and discriminatory
hiring practices in the H-2B program;
<bullet> Collect and release more and better data about the H-2B
program; \73\
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\73\ See above comment and response under the heading ``Data
Transparency'' for further discussion on this topic.
---------------------------------------------------------------------------
<bullet> Provide increased real-time information about available
job opportunities;
<bullet> Require employers to give priority to anyone in the U.S.
with employment authorization (including ``individuals with unexpired
valid H-2B visas'') for any open unfilled position for which an
employer sought or obtained H-2B labor certification;
<bullet> Prioritize petitions for industries with the lowest
unemployment rate(s) instead of using a lottery system;
[[Page 80406]]
<bullet> Allocate visas to employers who pay the highest wages
instead of using a random lottery system;
<bullet> Do not issue H-2B visas to employers who are engaged in
labor disputes, and only issue visas to direct employers and end
outsourcing and labor contractors; \74\
---------------------------------------------------------------------------
\74\ These recommendations were specifically for USCIS, however,
the Departments note that visas are issued by the Department of
State.
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<bullet> Grant work authorization to spouses of H-2 nonimmigrants;
<bullet> Impose greater employer accountability for actions of
contractors, recruiters, and agents;
<bullet> Seek ways to enforce the ban on recruitment fees without
penalizing workers;
<bullet> Allow H-2B workers to pursue permanent labor certification
or ``other applications for permanent residence;''
<bullet> Prohibit the imposition of unnecessary requirements for
entry-level positions;
<bullet> Improve health and safety standards at H-2B workplaces;
<bullet> Require employers to undertake both local and national
recruitment efforts before looking abroad;
<bullet> Require employers to pay for housing and daily
transportation to and from the worksite for both U.S. and H-2B workers;
<bullet> Require full contract compliance, including all hours
promised;
<bullet> Cease issuance of H-2B labor certifications for work in
certain areas, such as ``labor surplus areas or occupations'' or ``high
unemployment regions and industries;''
<bullet> Create a streamlined process for reporting program
violations;
<bullet> Create an avenue for stakeholders, including U.S. workers,
to raise concerns about job orders and labor certifications;
<bullet> Reinstate the Interagency Working Group for the Consistent
Enforcement of Federal Labor, Employment and Immigration Laws to
strengthen deconfliction efforts between key agencies and support
affirmative protections for immigrant and nonimmigrant workers;
<bullet> Create a civil society advisory group to promote decent
work in the Central American regional strategy;
<bullet> Update the H-2B prevailing wage methodology in various
ways;
<bullet> Implement the additional U.S. recruitment requirements;
<bullet> Improve language access for workers;
<bullet> Keep job postings active until all positions are actually
filled, and require employers to update the job postings with new
information;
<bullet> Keep labor violators out of the program, including by
creating an employer screening and/or registration program;
<bullet> Establish a formal registration process for international
recruiters, as well as U.S. agents;
<bullet> Require employers to disclose every person authorized to
engage in recruitment on their behalf;
<bullet> Work with Department of State to enhance consulates' H-2B
job verification services by verifying recruiters associated with the
job order;
<bullet> Increase enforcement in various ways, such as by debarring
all recruiters that engage in any prohibited practice, creating stiffer
penalties for employer violations, and/or instituting processing fees
at sufficient levels to fund robust enforcement;
<bullet> Change the visa allocation procedures for the statutory
66,000 cap, including allocation in 4 different increments, and using
less than 33,000 visas during the first half of the fiscal year;
<bullet> Modify the current process for randomizing H-2B TLC
applications in such a manner as to give H-2B employers opportunities
to participate without regard to the date specified as the first date
for employment;
<bullet> Reduce the period a worker is required to be outside the
United States following 3 years in H-2B status to 60 days;
<bullet> Provide notice of seasonal job openings to unions
representing workers in relevant occupations so that they may dispatch
members in response;
<bullet> Limit the duration of H-2B eligible job orders to 7
months;
<bullet> Cap at 100 the number of visas that any single employer
can receive;
The permanent changes to the H-2B program that commenters have
suggested are not appropriate for inclusion in a rule of temporary
duration such as the current TFR, and the Departments therefore decline
to discuss each of these suggestions with further specificity. The
Departments appreciate the thoughtful recommendations for permanent
program reforms, however, and note that they are actively engaged in
reform efforts outside of this rulemaking, including efforts to address
some of the issues discussed in the suggestions.
Notably, on September 20, 2023, DHS published a notice of proposed
rulemaking (NPRM) to modernize and improve both the H-2B and H-2A
programs by providing greater flexibility and protections for
participating workers, and improving the program's efficiency.\75\ The
NPRM contains discussions and proposals related to some of the reform
concepts included in the commenters' suggestions including, for
example, providing grace periods during which an H-2 worker can leave
work to seek new employment, ensuring greater accountability for
employers and recruiters with past violations, reducing the required
amount of time to be spent outside the United States after reaching 3
years in H-2B status, and allowing workers to take steps toward
permanent residence without violating their nonimmigrant status on that
basis. DHS is currently accepting public comments specific to the NPRM
through November 20, 2023, and will consider all such comments in
developing a subsequent final rule. In addition, both Departments are
involved in an H-2B Worker Protection Taskforce, convened by the White
House, which focuses on threats to H-2B program integrity, H-2B
workers' fundamental vulnerabilities, and the impermissible use of the
program to avoid hiring U.S. workers.\76\ On October 19, 2023, the H-2B
Worker Protection Taskforce published a report announcing new actions
to be taken by four federal agencies--DHS, DOL, DOS, and the U.S.
Agency for International Development (USAID)-- to strengthen
protections for vulnerable workers.\77\
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\75\ Modernizing H-2 Program Requirements, Oversight, and Worker
Protections, 88 FR 65040 (Sep. 20, 2023).
\76\ See DHS, DHS to Supplement H-2B Cap with Nearly 65,000
Additional Visas for Fiscal Year 2023 (Oct. 12, 2022), <a href="https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023">https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023</a> (announcing the creation of the H-
2B Worker Protection Taskforce).
\77\ See The White House, Strengthening Protections for H-2B
Temporary Workers, Report of the H-2B Worker Protection Taskforce,
<a href="https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf</a> (Oct. 19, 2023).
---------------------------------------------------------------------------
With regard to commenters' specific recommendation that the
Departments decline to provide supplemental H-2B visas unless and until
the program is broadly reformed, the Departments disagree with that
recommendation. While permanent reforms to the relevant DHS regulations
are being considered outside of this rulemaking as noted above, the
Departments have determined, as discussed in greater detail below, that
an increase in H-2B visas for businesses facing irreparable harm is
warranted and justified under the authority provided in section 303 of
the FY 2023 Omnibus, as extended by Public Law 118-15.
[[Page 80407]]
III. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that some U.S. employers cannot
satisfy their needs in FY 2024 with U.S. workers who are willing,
qualified, and able to perform temporary nonagricultural labor. In
accordance with the FY 2024 continuing resolution extending the
authority provided in section 303 of the FY 2023 Omnibus, the Secretary
of Homeland Security has determined that it is appropriate, for the
reasons stated below, to raise the numerical limitation on H-2B
nonimmigrant visas through the end of FY 2024 by up to 64,716
additional visas for those American businesses that attest that they
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, a permanent and severe financial loss, without
the ability to employ all of the H-2B workers requested on their
petition. These businesses must retain documentation, as described
below, supporting this attestation.
As in connection with the FY 2021, FY 2022, and FY 2023 H-2B
supplemental visa temporary final rules, and consistent with existing
authority, DHS and DOL intend to conduct a significant number of audits
with respect to petitions filed under this TFR requesting supplemental
H-2B visas during the period of temporary need. The Departments will
use their discretion to select which petitions to audit, and the
Departments will use the audits to verify compliance with H-2B program
requirements, including the irreparable harm standard as well as other
key worker protection provisions implemented through this rule. If the
Departments find that an employer's documentation does not meet the
irreparable harm standard, or that the employer fails to provide
evidence demonstrating irreparable harm or comply with the audit
process, the Departments may consider it to be a substantial violation
resulting in an adverse agency action against the employer, including
revocation of the petition and/or TLC or program debarment. Of the
audits completed so far, some audits conducted of employers that
received visas under the supplemental caps in FY 2021, FY 2022, and FY
2023 revealed concerns surrounding payment of the promised wage,
employment of returning workers, documentation of irreparable harm, and
employment at the listed location, which may warrant further review and
action.
As he did in FY 2021, FY 2022, and FY 2023, the Secretary of
Homeland Security has also again determined, following consultation
with the Secretary of Labor, that for certain employers, additional
recruitment steps are necessary to confirm that there are no qualified
U.S. workers available for the positions. In addition, the Secretary of
Homeland Security has determined, following consultation with the
Secretary of Labor, that the supplemental visas will be limited to
returning workers, with the exception that up to 20,000 of the 64,716
visas will be exempt from the returning worker requirement and will be
reserved for H-2B workers who are nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica.\78\ DHS is
reserving these 20,000 H-2B visas for nationals of these countries to
further the United States' objectives in the Western Hemisphere to
manage irregular migration through various lines of efforts including
increasing and expanding access to lawful pathways for nationals of
countries that have extensively collaborated with the United States on
migration issues, such as through endorsing the Los Angeles Declaration
on Migration and Protection (L.A. Declaration),\79\ joining the United
States to ramp up efforts to address the irregular migration flows
through the Darien,\80\ and hosting Safe Mobility Offices so that
migrants do not trek north to the U.S. Southwest Border.\81\ The 20,000
set-aside will also deliver on the objectives of E.O. 14010, which,
among other initiatives, instructs the Secretary of Homeland Security
and the Secretary of State to implement measures to enhance access to
visa programs for nationals of the Northern Central American
countries.\82\ DHS is also allocating these visas to specific countries
to further promote development and economic stability of these
countries to reduce irregular migration throughout the Western
Hemisphere.\83\
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\78\ These conditions and limitations are not inconsistent with
sections 214(g)(3) (``first in, first out'' H-2B processing) and
(g)(10) (fiscal year H-2B allocations) because noncitizens covered
by the special allocation under section 303 of the FY 2023 Omnibus
are not ``subject to the numerical limitations of [section
214(g)(1)].'' See, e.g., INA section 214(g)(3); INA section
214(g)(10); Continuing Appropriations Act, 2024, div. A, sec. 101(6)
(extending the authority provided in FY 2023 Omnibus div. O, sec.
303 (``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the [INA] . . . .'')).
\79\ The White House, Los Angeles Declaration on Migration and
Protection, June 10, 2022, <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/">https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/</a>.
\80\ Trilateral Joint Statement, April 11, 2023, <a href="https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement">https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement</a>.
\81\ The White House, Joint Statement from the United States and
Guatemala on Migration (June 1, 2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/</a>; United States
Department of State, U.S.-Colombia Joint Commitment to Address the
Hemispheric Challenge of Irregular Migration (June 4, 2023), <a href="https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/">https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/</a>; The White House,
Readout of Principal Deputy National Security Advisor Jon Finer's
Meeting with Colombian Foreign Minister Alvaro Leyva (June 11,
2023), <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/</a>;
United States Department of State, U.S.-Costa Rica Joint Commitment
to Address the Hemispheric Challenge of Irregular Migration (June
12, 2023), <a href="https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/">https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/</a>; United
States Department of State, Announcement of Safe Mobility Office in
Ecuador (October 19, 2023), https://www.state.gov/announcement-of-
safe-mobility-office-in-ecuador/
#:~:text=The%20United%20States%20is%20pleased,authorized%20channels%2
0of%20lawful%20migration.
\82\ See Section 3(c) of E.O. 14010, Creating a Comprehensive
Regional Framework To Address the Causes of Migration, To Manage
Migration Throughout North and Central America, and To Provide Safe
and Orderly Processing of Asylum Seekers at the United States
Border, signed February 2, 2021, <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.
\83\ 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
L.A. Declaration to expand legal pathways as an alternative to
irregular migration''); The White House, Fact Sheet: The Los Angeles
Declaration on Migration and Protection U.S, Government and Foreign
Partner Deliverables, <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).
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DHS observed robust employer interest in response to the FY 2021 H-
2B supplemental visa allocation for Salvadoran, Guatemalan, and
Honduran nationals and the FY 2022 and FY 2023 supplemental visa
allocations for Salvadoran, Guatemalan, Honduran, and Haitian
nationals, with USCIS
[[Page 80408]]
approving petitions on behalf of 6,805 beneficiaries under the FY 2021
allocation,\84\ 3,231 beneficiaries under the FY 2022 first half
supplemental allocation,\85\ 12,318 beneficiaries for the second half
of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023
allocation.\86\ In addition, DHS and the Biden administration have
continued to conduct outreach efforts promoting the H-2B program as,
among other things, a lawful pathway for nationals of El Salvador,
Guatemala, Honduras, and Haiti to work in the United States.\87\
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\84\ While USCIS approved a greater number of beneficiaries from
the Northern Central American countries than the 6,000 visas
allocated under the FY 2021 supplemental cap for those countries,
the Department of State issued 3,079 visas to nationals from those
countries. See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
H-2B Visa Issuance Report September 30, 2023. This discrepancy can
be attributed to adverse impacts on consular processing caused by
the COVID-19 pandemic, travel restrictions, as well as lack of
readily available processes to efficiently match workers from
Northern Central American countries with U.S. recruiters/employers
on an expedited timeline.
\85\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
\86\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023. While USCIS approved a greater
number of beneficiaries from the Northern Central American countries
and Haiti than the 11,500 visas allocated under the FY 2022 second
half supplemental cap for those countries, the Department of State
issued approximately 7,405 visas to nationals from those countries.
Similarly, while USCIS approved a greater number of beneficiaries
from the Northern Central American countries and Haiti than the
20,000 visas allocated under the FY 2023 supplemental cap for those
countries, the Department of State issued approximately 16,713 visas
to nationals from those countries. DHS anticipates that the issuance
of this rule early in the fiscal year, the fact that this is the
fourth year that DHS will make a specific allocation available for
workers from the Northern Central American countries, as well as the
inclusion of nationals from several additional countries, will
contribute to even greater utilization of available visas under this
allocation during FY 2024.
\87\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
<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.'').
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DHS will not accept and will reject petitions submitted for the
country-specific allocation with a date of need on or after April 1,
2024 that are received earlier than 15 days after the INA section
214(g) cap for the second half of FY 2024 is met or are received after
the applicable numerical limitation has been reached or after September
16, 2024. Requiring petitioners to wait to submit H-2B supplemental cap
petitions with start dates of need on or after April 1, 2024 is
consistent with the supplemental cap authority in section 303, as
extended to FY 2024 by Public Law 118-15, Continuing Appropriations
Act, 2023 and Other Extensions Act, and will facilitate the orderly
intake and processing of supplemental cap petitions for the country-
specific allocation. As discussed above, similar limitations apply to
the intake and processing of returning worker petitions with start
dates of need on or after April 1, 2024.
Similar to the previous temporary final rules for the FY 2019, FY
2021, FY 2022, and FY 2023 supplemental caps, the Secretary of Homeland
Security has also determined to limit the supplemental visas to H-2B
returning workers,\88\ unless the employer indicates on the new
attestation form that it is requesting workers who are nationals of one
of the specified countries and who are therefore counted towards the
20,000 country-specific allocation regardless of whether they are new
or returning workers. If the 20,000 country-specific allocation is
reached and visas remain available under the returning worker cap,
USCIS would reject a petition seeking workers under the 20,000
allocation and return any fees submitted to the petitioner. In such a
case, a petitioner may continue to request workers who are nationals of
one of these countries, but the petitioner must file a new Form I-129
petition, with fee, and attest that these noncitizens will be returning
workers, in other words, workers who were issued H-2B visas or were
otherwise granted H-2B status in FY 2021, 2022, or 2023.\89\ Like the
temporary final rules for the first half and for the second half of FY
2022 and FY 2023, if the 20,000 returning worker exemption cap for
specific nationals remains unfilled, DHS will not make unfilled visas
reserved for these nationals available to the general returning worker
cap. The DHS decision not to make available unfilled visas from the
country-specific allocation to the general supplemental cap for
returning workers is consistent with the administration's goal of
providing a lawful pathway for such nationals to temporarily work in
the United States. To that end, not permitting rollover into the
returning worker allocation provides employers with more time to
petition for, and bring in, workers from these countries and encourages
full use of the 20,000 country-specific allocation to meet employer
needs. This, in turn, contributes to our country's efforts to promote
and improve safety, security and economic stability in these countries
to help stem the flow of irregular migration to the United States.
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\88\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2021, 2022,
or 2023. Additionally they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2021, 2022, or 2023,
or the supplemental caps in FY 2021, 2022, or 2023.
\89\ The returning worker allocations are for workers who were
issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or
2023, regardless of country of nationality. Therefore, a petitioner
may choose to petition for Salvadoran, Guatemalan, Honduran,
Haitian, Colombian, Ecuadorian, or Costa Rican nationals who meet
this requirement under an available returning worker allocation,
regardless of whether the separate 20,000 allocation for these
nationals has been reached.
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The Secretary of Homeland Security's determination to increase the
numerical limitation is based, in part, on the conclusion that some
businesses are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on their petition. In recent years, members of Congress have
informed the Secretaries of Homeland Security and Labor about the needs
of some U.S. businesses for H-2B workers (after the statutory cap for
the relevant half of the fiscal year has been reached) and about the
potentially negative impact on state and local economies if the cap is
not increased.\90\ U.S. businesses, chambers of commerce, employer
organizations, and state and local elected officials have also
expressed concerns in recent years to the DHS and Labor Secretaries
regarding the unavailability of H-2B visas after the statutory cap was
reached.\91\ In addition, several commenters on the FY 2023 TFR
supported the Departments' decision to publish one rule covering the
entire fiscal year for 2023, and urged the Departments to once again
publish one rule covering the entire fiscal year for 2024 in order to
save time in the second half of the fiscal year, conserve limited
agency resources, and reduce uncertainty for employers.\92\
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\90\ See the docket for this rulemaking for access to these
letters.
\91\ See the docket for this rulemaking for access to these
letters.
\92\ See the docket for this rulemaking for access to these
comments.
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After considering the full range of evidence and diverse points of
view, the Secretary of Homeland Security has deemed it appropriate to
take action to prevent further severe and permanent financial loss for
those employers currently suffering irreparable harm and to avoid
impending irreparable harm for other employers unable to obtain H-2B
[[Page 80409]]
workers under the statutory cap, including potential wage and job
losses by their U.S. workers, as well as other adverse downstream
economic effects.\93\ At the same time, the Secretary of Homeland
Security believes it is appropriate to condition receipt of
supplemental visas on adherence to additional worker protections, as
discussed below.
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\93\ See, e.g., Impacts of the H-2B Visa Program for Seasonal
Workers on Maryland's Seafood Industry and Economy, Maryland
Department of Agriculture Seafood Marketing Program and Chesapeake
Bay Seafood Industry Association (March 2, 2020), available at
<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 Sept. 29, 2023); Hospitality Employment Rose in May, But
Hoteliers Report Lingering Labor Woes, Hotel Dive (Jun. 7, 2023),
<a href="https://www.hoteldive.com/news/hotel-employment-labor-shortage-increased-wage/652308/">https://www.hoteldive.com/news/hotel-employment-labor-shortage-increased-wage/652308/</a>(last visited Oct. 2, 2023).
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The decision to afford the benefits of this temporary cap increase
to U.S. businesses that need H-2B workers because they are suffering
irreparable harm already or will suffer impending irreparable harm, and
that will comply with additional worker protections, rather than
applying the cap increase to any and all businesses seeking temporary
workers, is consistent with DHS's time-limited authority to increase
the cap, as explained below. The Secretary of Homeland Security, in
implementing section 303, as extended by Public Law 118-15, and
determining the scope of any such increase, has broad discretion,
following consultation with the Secretary of Labor, to identify the
business needs that are most relevant, while bearing in mind the need
to protect U.S. workers. Within that context, for the below reasons,
the Secretary of Homeland Security has determined to allow an overall
increase of up to 64,716 additional visas solely for the businesses
facing permanent, severe financial loss or those who will face such
loss in the near future.
First, DHS interprets the reference to ``the needs of American
businesses'' in section 303, as extended by Public Law 118-15, as
describing a need different from the need ordinarily required of
employers in petitioning for an H-2B worker. Under the generally
applicable H-2B program, each individual H-2B employer must demonstrate
that it has a temporary need for the services or labor for which it
seeks to hire H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6.
The use of the phrase ``needs of American businesses,'' which is not
found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B
cap, authorizes the Secretary of Homeland Security in allocating
additional H-2B visas under section 303, as extended by Public Law 118-
15, to require that employers establish a need above and beyond the
normal standard under the H-2B program, that is, an inability to find
sufficient qualified U.S. workers willing and available to perform
temporary services or labor and that the employment of the H-2B worker
will not adversely affect the wages and working conditions of U.S.
workers, see 8 CFR 214.2(h)(6)(i)(A). DOL concurs with this
interpretation. Accordingly, the Secretaries have determined that it is
appropriate, within the limits discussed below, to tailor the
availability of this temporary cap increase to those businesses that
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, those facing permanent and severe financial loss.
Second, the approach set forth in this rule, which is similar to
the implementation of the supplemental caps in previous fiscal years,
provides protections against adverse effects on U.S. workers that may
result from a cap increase, including, as in previous rules, requiring
employers seeking H-2B workers under the supplemental cap to engage in
additional recruitment efforts for U.S. workers.
In sum, this rule increases the numerical limitation by up to
64,716 additional H-2B visas for the entirety of FY 2024, but also
restricts the availability of those additional visas by prioritizing
only the most significant business needs, and limiting eligibility to
H-2B returning workers, unless the worker is a national of one of the
countries included in the 20,000 country-specific allocation that is
exempt from the returning worker limitation. This rule also distributes
the supplemental visas in several allocations to assist U.S. businesses
that need workers to begin work on different start dates. These
provisions are each described in turn below.
B. Numerical Increase and Allocations for Fiscal Year 2024
Making the Maximum Number of Visas Available
The increase of up to 64,716 visas will help address the urgent
needs of eligible employers for additional H-2B workers for those
employers with employment needs in fiscal year 2024.\94\ The
determination to allow up to 64,716 additional H-2B visas reflects a
balancing of a number of factors including: the demand for H-2B visas
during the first half of FY 2024 and expected demand for the second
half of FY 2024; current labor market conditions; the general trend of
increased demand for H-2B visas from FY 2017 to FY 2023; H-2B returning
worker data; the amount of time for employers to hire and obtain H-2B
workers in this fiscal year; and the objectives of E.O. 14010 and the
L.A. Declaration. DHS believes the numerical increase both addresses
the needs of U.S. businesses and, as explained in more detail below,
furthers the foreign policy interests of the United States.
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\94\ In contrast with section 214(g)(1) of the INA, 8 U.S.C.
1184(g)(1), which establishes a cap on the number of individuals who
may be issued visas or otherwise provided H-2B status (emphasis
added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10),
which imposes a first half of the fiscal year cap on H-2B issuance
with respect to the number of individuals who may be issued visas or
are accorded [H-2B] status'' (emphasis added), section 303 only
authorizes DHS to increase the number of available H-2B visas.
Accordingly, DHS will not permit individuals authorized for H-2B
status pursuant to an H-2B petition approved under section 303 to
change to H-2B status from another nonimmigrant status. See INA
section 248, 8 U.S.C. 1258; see also 8 CFR part 248. If a petitioner
files a petition seeking H-2B workers in accordance with this rule
and requests a change of status on behalf of someone in the United
States, the change of status request will be denied, but the
petition will be adjudicated in accordance with applicable DHS
regulations. Any noncitizen authorized for H-2B status under the
approved petition would need to obtain the necessary H-2B visa at a
consular post abroad and then seek admission to the United States in
H-2B status at a port of entry.
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Section 303 of the FY 2023 Omnibus, as extended by Public Law 118-
15, sets the highest number of H-2B returning workers who were exempt
from the cap in certain previous years as the maximum limit for any
increase in the H-2B numerical limitation for FY 2024.\95\ Consistent
with the statute's reference to H-2B returning workers, in determining
the appropriate number by which to increase the H-2B numerical
limitation, the Secretary of Homeland Security focused on the number of
visas allocated to such workers in years in which Congress enacted
returning worker exemptions from the H-2B numerical limitation. During
each of the years the returning worker provision was in force, U.S.
employers' standard business needs for H-2B workers exceeded the
statutory 66,000 cap. The highest number of H-2B returning workers
approved was 64,716 in FY 2007. In setting the number of
[[Page 80410]]
additional H-2B visas to be made available for FY 2024, DHS considered
this number, overall indications of increased need, and the
availability of U.S. workers, as discussed below. On the basis of these
considerations, DHS determined that it is appropriate to make available
up to 64,716 additional visas, which is the maximum allowed, under the
FY 2024 supplemental cap authority. The Secretary further considered
the objectives of E.O. 14010 and the L.A. Declaration, both of which
focus in part on addressing the root causes of irregular migration and
managing migration through lawful pathways. Accordingly, the Secretary
determined that it is appropriate to reserve up to 20,000 of the up to
64,716 additional visas and exempt this number from the returning
worker requirement for nationals of El Salvador, Guatemala, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica.
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\95\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
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In past years, the number of beneficiaries covered by H-2B
petitions filed exceeded the number of additional visas allocated under
recent supplemental caps. In FY 2018, USCIS received petitions for
approximately 29,000 beneficiaries during the first 5 business days of
filing for the 15,000 supplemental cap. USCIS therefore conducted a
lottery on June 7, 2018, to randomly select petitions that it would
accept under the supplemental cap. Of the selected petitions, USCIS
issued approvals for 15,672 beneficiaries.\96\ In FY 2019, USCIS
received sufficient petitions for the 30,000 supplemental cap on June
5, 2019, but did not conduct a lottery to randomly select petitions
that it would accept under the supplemental cap. Of the petitions
received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021,
USCIS received a sufficient number of petitions for the 22,000
supplemental cap on August 13, 2021, including a significant number for
workers from Northern Central American countries.\97\ Of the petitions
received, USCIS issued approvals for 30,707 beneficiaries, including
approvals for 6,805 beneficiaries under the allocation for the
nationals of the Northern Central American countries.\98\
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\96\ USCIS recognizes it may have received petitions for more
than 29,000 supplemental H-2B workers if the cap had not been
exceeded within the first 5 days of opening. However, DHS estimates
that not all of the 29,000 workers requested under the FY 2018
supplemental cap would have been approved and/or issued visas. For
instance, although DHS approved petitions for 15,672 beneficiaries
under the FY 2018 cap increase, the Department of State data shows
that as of January 15, 2019, it issued only 12,243 visas under that
cap increase. Similarly, DHS approved petitions for 12,294
beneficiaries under the FY 2017 cap increase, but the Department of
State data shows that it issued only 9,160 visas.
\97\ On June 3, 2021, USCIS announced that it had received
enough petitions to reach the cap for the additional 16,000 H-2B
visas made available for returning workers only, but that it would
continue accepting petitions for the additional 6,000 visas allotted
for nationals of the Northern Central American countries. See USCIS,
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021,
<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).
\98\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for
the possibility that some approved workers would either not seek a
visa or admission, would not be issued a visa, or would not be
admitted to the United States. Unlike these past supplemental cap
TFRs, petitions filed under the first half FY 2022 TFR did not
exceed the additional allocation of 20,000 H-2B visas provided by
that rule.
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In FY 2022, DHS made the supplemental cap available twice, once in
January 2022 and again in May 2022. Under the earlier FY 2022
supplemental cap for petitions with start dates in the first half of FY
2022, USCIS had issued approvals for 17,381 beneficiaries, including
approvals for 3,231 beneficiaries under the allocation for nationals of
the Northern Central American countries and Haiti.\99\ For the second
half of FY 2022, within the first five business days of filing, USCIS
received petitions for more beneficiaries than the additional 23,500
supplemental visas made available for returning workers, thus
necessitating a random selection of petitions to meet the returning
worker allotment.\100\ Of the petitions received for the second half of
FY 2022, USCIS issued approvals for 43,798 beneficiaries, including
approvals for 12,318 beneficiaries under the allocation for nationals
of the Northern Central American countries and Haiti.\101\
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\99\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.
\100\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for Second Half of FY 2022, <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).
\101\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2023, TRK 13122. The number of approved
workers exceeded the number of additional visas authorized for the
second half of FY 2022 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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In FY 2023, USCIS received enough petitions to reach the cap for
the additional 18,216 H-2B visas made available for returning workers
for the first half of fiscal year by January 30, 2023, and USCIS
received enough petitions to reach the cap for the additional 16,500 H-
2B visas made available for returning workers for the early second half
of fiscal year by March 30, 2023.\102\ Of the petitions for
supplemental H-2B visas in FY 2023, USCIS issued approvals for 78,302
beneficiaries, including 7,157 beneficiaries under the allocation of
10,000 visas made available for returning workers for the late second
half of the fiscal year and 23,832 beneficiaries under the allocation
of 20,000 visas reserved for nationals of the Northern Central American
countries and Haiti.\103\
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\102\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for the First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023</a> (Jan. 31, 2023); USCIS, Cap
Reached for Additional Returning Worker H-2B Visas for the Early
Second Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023</a> (Mar. 31, 2023).
\103\ See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
H-2B Visa Issuance Report September 30, 2023. The number of approved
workers exceeded the number of additional visas authorized for FY
2023 to allow for the possibility that some approved workers would
either not seek a visa or admission, would not be issued a visa, or
would not be admitted to the United States.
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Data for the first half of FY 2024 clearly indicate an immediate
need for additional supplemental H-2B visas for employers with start
dates on or before March 31, 2024. USCIS received a sufficient number
of H-2B petitions to reach the first half of the FY 2024 fiscal year
statutory cap on October 11, 2023.\104\ Further, the date on which
USCIS received sufficient H-2B petitions to reach the first half
semiannual statutory cap has generally trended earlier in recent years.
In fiscal years 2017 through 2024, USCIS received a sufficient number
of H-2B petitions to reach or exceed the relevant first half statutory
cap on January 10, 2017, December 15, 2017, December 6, 2018, November
15, 2019, November 16, 2020, September 30, 2021, September
[[Page 80411]]
12, 2022, and October 11, 2023, respectively.\105\
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\104\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (Oct. 13, 2023).
\105\ 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); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (Oct. 13, 2023).
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Through the third quarter of FY 2023, approximately 85.2 percent of
H-2B filings were for positions within just 5 sectors.\106\ NAICS 56
(Administrative and Support and Waste Management and Remediation
Services) accounted for 39.5% of filings, NAICS 71 (Accommodation and
Food Services) accounted for 11.2%, NAICS 72 (Arts, Entertainment, and
Recreation) accounted for 18.00%, NAICS 23 (Construction) accounted for
12.4%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting)
accounted for 4.1% of filings.
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\106\ USCIS analysis of DOL OLFC Performance data.
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Within these industries, DOL data show higher labor demand relative
to recent history. More specifically, industry unemployment data from
the Bureau of Labor Statistics (BLS) show that the industry
unemployment rate in each of these industries is lower than the long
term (10-year) average.\107\
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\107\ USCIS has elected to use a long-term average as a
reference point so as to minimize the impact that the Covid-19
pandemic has on the comparison of the industry employment rate. All
data are taken from the respective BLS ``Industry at a Glance''
pages. See <a href="https://www.bls.gov/iag/tgs/iag11.htm">https://www.bls.gov/iag/tgs/iag11.htm</a>, <a href="https://www.bls.gov/iag/tgs/iag23.htm">https://www.bls.gov/iag/tgs/iag23.htm</a>, <a href="https://www.bls.gov/iag/tgs/iag60.htm">https://www.bls.gov/iag/tgs/iag60.htm</a>, <a href="https://www.bls.gov/iag/tgs/iag71.htm">https://www.bls.gov/iag/tgs/iag71.htm</a>, <a href="https://www.bls.gov/iag/tgs/iag72.htm">https://www.bls.gov/iag/tgs/iag72.htm</a>. All data accessed September 20, 2023.
[GRAPHIC] [TIFF OMITTED] TR17NO23.020
[GRAPHIC] [TIFF OMITTED] TR17NO23.021
In August 2023, the industry unemployment for NAICS 56 \108\ was
3.7 percent, which is 1.31 points lower than its 10-year average of
5.01 percent, while the industry unemployment rate for NAICS 71 was 4.5
percent which is 3.85 points lower than its 10-year average of 8.35
percent. The August 2023 industry unemployment rate for NAICS 72 (6.10
percent) was 2.13 points lower than its 10-year average of 8.23 percent
while the rate for NAICS 23 (3.9 percent) was 2.53 points lower than
its 10-year average of 6.43 percent. The industry unemployment rate for
NAICS 11 (5.80 percent) was 1.96 points lower than its 10-year average
of 7.76 percent. The relatively low unemployment rate across these
industries is a clear indication of a strong labor demand within these
industries. The Departments believe that the supplemental allocation of
H-2B visas described in this temporary final rule will help to meet
demand in these industries.
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\108\ Data presented here are for the Professional and Business
Services Supersector, which is comprised of NAICS 54, NAICS 55 and
NAICS 56. See <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 July, 2023 from the Department of Labor's Current
Employment Statistics program indicates that NAICS 56 accounted for
just under 42% of employment in Professional Business Services. All
data accessed September 27, 2023.
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Economy-wide data also indicate that labor-market tightness
continues to exist. The most recent Employment Situation released by
the Bureau of Labor Statistics (BLS) stated that the unemployment rate
was 3.8 percent in September 2023.\109\ Historically, the availability
of H-2B visas addressed a need in the labor market during periods of
lower unemployment. Chart 1 \110\ shows that the H-2B visa allocations
for Fiscal Year 2024 \111\ made by this rule are slightly higher than
the historical trend but are generally consistent with what the current
unemployment rate alone would predict. Additionally, when the
unemployment rate is below 6 percent, there is greater variance in the
total number of H-2B visas issued in a given year; for example, in
years 2022, 2007 and 2006, when the unemployment rate ranged from
approximately 3.5 percent to 4.6 percent, the total number of H-2B
visas issued were comparable to what is planned for 2024. The data
presented in chart 1 is meant to provide additional context and to
demonstrate that the total allocation of H-2B visas is reasonable given
labor market conditions.
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\109\ See DOL, BLS, The Employment Situation--September 2023,
<a href="https://www.bls.gov/news.release/archives/empsit_10062023.pdf">https://www.bls.gov/news.release/archives/empsit_10062023.pdf</a> (Oct.
6, 2023).
\110\ Annual data presented here is on a fiscal year basis.
Fiscal year averages were calculated by taking the average of the
monthly unemployment rate for the months in each respective fiscal
year (October-September). Data for fiscal year 2023 are for October
2022-August 2023. Unemployment rate for 2024 is based on median
Federal Reserve projections See <a href="https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm">https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm</a> (accessed September 29,
2023).
\111\ The number of estimated visas issued for Fiscal Year 2024
is based on the sum of the fiscal year statutory cap for H-2B
workers (66,000) and the supplemental allocation for this rule
(64,716), for a total H-2B visa allocation of 130,716.
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[[Page 80412]]
[GRAPHIC] [TIFF OMITTED] TR17NO23.022
Given the level of demand for H-2B workers, the continued economic
recovery, and continued job growth, DHS believes it is appropriate to
release the maximum amount of additional visas at this time.
Making Allocations for All of FY 2024 in a Single Rule
As in FY 2023, DHS believes that it is appropriate to issue a
single rule for the entire fiscal year for multiple reasons.\112\
First, DHS expects that there is demand for supplemental visas in the
first half of FY 2024. As previously discussed, USCIS already received
enough petitions to reach the congressionally mandated cap on H-2B
visas for temporary nonagricultural workers for the first half of FY
2024.\113\ Further, the date on which USCIS received sufficient H-2B
petitions to reach the first half semiannual statutory caps has
generally trended earlier in recent years. In fiscal years 2017 through
2024, USCIS received a sufficient number of H-2B petitions to reach or
exceed the relevant first half statutory cap on January 10, 2017,
December 15, 2017, December 6, 2018, November 15, 2019, November 16,
2020, September 30, 2021, September 12, 2022, and October 11, 2023,
respectively.\114\
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\112\ Further, DHS believes that 64,716 is an appropriate number
of supplemental visas to make available, as this rule will cover
both the first and second half of FY 2024.
\113\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (Oct. 13, 2023).
\114\ 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); USCIS, USCIS Reaches H-2B Cap for First
Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (Oct. 13, 2023).
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Second, based on relevant data, DHS expects that USCIS will reach
the statutory cap for the second half of FY 2024 and that there will
accordingly be demand for supplemental visas in the second half of FY
2024. For example, in fiscal years 2017 through 2023, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
second half statutory cap on March 13, 2017, February 27, 2018,
February 19, 2019, February 18, 2020, February 12, 2021, February 25,
2022, and February 27, 2023.\115\ In addition, DOL data shows
consistently high demand in recent years, particularly during the
second half of the fiscal year. In recent years, DOL has received an
increasing number of TLC applications for an increasing number of H-2B
workers with April 1 start dates: DOL received 4,500 applications on
January 1, 2018, covering more than 81,600 worker positions; DOL
received 5,276 applications by January 8, 2019, covering more than
96,400 worker positions; DOL received 5,677 applications during the
initial three-day filing window in 2020 covering 99,362 worker
positions; DOL received 5,377 applications during the initial three-day
filing window in 2021 covering 96,641 worker positions; DOL received
7,875 applications by January 7, 2022, covering 136,555 worker
positions; and DOL received 8,693 applications during the initial
three-day filing window in 2023, covering 142,796 worker
positions.\116\
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\115\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year
2017, <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); USCIS, USCIS Reaches H-2B
Cap for Second Half of FY 2023 and Announces Filing Dates for the
Second Half of FY 2023 Supplemental Visas, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of</a> (Mar. 2, 2023).
\116\ 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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Finally, publishing one rule that addresses all the visas available
for FY 2024 benefits the regulated public by giving more notice and
certainty of what will become available for the second
[[Page 80413]]
half. As noted in comments received in response to the FY 2023 TFR,
this approach allows businesses to better plan ahead for their seasonal
workforce needs.\117\
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\117\ See the docket for this rulemaking for access to these
comments.
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Filing Deadline of September 16, 2024 for All Petitions
The authority to approve H-2B petitions under this FY 2024
supplemental cap expires at the end of the fiscal year, i.e., the end
of September 30, 2024. Therefore, DHS is requiring employers requesting
any supplemental visas under this TFR, regardless of the employment
start date(s), to properly file their H-2B petition with USCIS no later
than September 16, 2024. USCIS will reject any cases that are received
after September 16, 2024. See new 8 CFR 214.2(h)(6)(xiv)(C). Because
DHS believes that 15 days from the end of the fiscal year is generally
the minimum time needed for petitions to be adjudicated, but also to
account for the fact that September 15, 2024 falls on a Sunday,\118\
DHS has set September 16, 2024 as the last day to file in order to
provide USCIS with adequate time for petition processing before the
expiration of the authority at the end of the fiscal year, although
USCIS cannot guarantee the time period will be sufficient for
adjudication of petitions in all cases.
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\118\ In prior rules, USCIS used September 15th as the cutoff
date for accepting petitions filed under the supplemental cap.
However, in FY 2024, September 15th is on a Sunday when USCIS does
not accept petitions. DHS has revised this date accordingly to avoid
potential confusion and frustration from petitioners who might have
otherwise expected their petitions to be received on the 15th but
would instead face rejection.
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In addition, the filing deadline will be earlier than September 16,
2024 if the applicable numerical limit for the relevant supplemental
visa allocation is reached before that date. See new 8 CFR
214.2(h)(6)(xiv)(C). In such a case, USCIS will also reject any cases
that are received after the applicable numerical limitation has been
reached.
Returning Worker Allocation for the First Half of FY 2024 (October 1,
2023 Through March 31, 2024)
For the first half of FY 2024, DHS will make 20,716 visas
immediately available upon publication of this TFR that are limited to
returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2021, 2022, or 2023,
regardless of country of nationality. These petitions must request a
date of need starting on or before March 31, 2024. See new 8 CFR
214.2(h)(6)(xiv)(C).
DHS anticipates that employers will use all of the first half
allocation for returning workers, given how quickly USCIS reached the
FY 2024 first half statutory cap and the first half supplemental
allocation for FY 2023. As noted previously, USCIS received enough H-2B
petitions to reach the FY 2024 first half statutory cap on October 11,
2023.\119\ Under the FY 2023 TFR, which published on December 15, 2022,
USCIS received enough petitions to reach the 18,216 first half
allocation by January 31, 2023.\120\ Similarly, the relatively early
publication of this rule will provide interested employers more time to
prepare their petitions, increasing the likelihood that the first half
allocation for returning workers will be used.\121\ To the extent that
the first half allocation for returning workers is used, this TFR may
provide affected employers with some relief by making available a
separate allocation of visas for nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica, which will be
available for the entirety of FY 2024.
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\119\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024</a> (Oct. 13, 2023).
\120\ USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023</a> (Jan. 31, 2023).
\121\ Compare the publication date of this rule with December
15, 2022, the date the FY 2023 TFR was first published, and January
28, 2022, the date the temporary final rule making available
additional H-2B visas for the first half of FY 2022 was first
published.
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In the event that USCIS approves insufficient petitions to use all
20,716 visas, the unused numbers will not carry over for the second
half allocation because DHS believes that the operational burdens of
calculating and administering a process to carry over unused visas,
combined with the potential confusion for the public and adjudicators
that could result from having different filing cutoff dates for the
different allocations, would outweigh the benefits. In order to make
any unused first half visas available for employers with second half
start dates, DHS would need to set a filing cutoff date prior to
September 16, 2024 for the first half allocation, upon which it would
stop accepting such petitions and make a calculation of how many visas
should be re-released for second half employers. Calculating visas to
be re-released could also entail an additional cap allocation,
additional announcements to the public, and potentially an additional
lottery, all of which would significantly increase operational burdens.
In addition to increasing operational burdens, DHS believes that the
opening, closing, and potential re-opening of this allocation (and/or
other cap allocations) could cause confusion for the public and
adjudicators. Furthermore, not setting a filing cutoff date prior to
September 16, 2024 will maximize employers' opportunity to avail
themselves of the first half allocation. While DHS acknowledges that
this approach could potentially result in some employers with a
demonstrated business need in the second half of the fiscal year losing
the opportunity to receive a supplemental visa, it is DHS's expectation
that there will be sufficient demand from employers with first half
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1,
2024, Through May 14, 2024)
For the second half of FY 2024, DHS will initially make available
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2021, 2022, or 2023, regardless of country of nationality. These
petitions must request a date of need starting on or after April 1,
2024, through and including May 14, 2024. Limiting this allocation to
employers with employment start dates on or before May 14, 2024
reflects DHS's intentions to give employers with needs later in the
season a better opportunity to access the H-2B program, and to prevent
employers from petitioning under both of the second-half allocations to
fill the same need.
To mitigate complications from concurrent administration of the
statutory second half cap, these petitions must be filed no earlier
than 15 days after the second half statutory cap is reached, a date
that USCIS will identify in a public announcement.\122\ When USCIS
announces that it has received a sufficient number of petitions to
reach the second half statutory cap, it will also announce the earliest
possible filing date (15 days after the second half statutory cap) for
this allocation. Concurrent administration of the second half statutory
cap with the second half supplemental cap would pose significant
operational challenges, particularly considering the volume of H-2B
petitions USCIS would have to
[[Page 80414]]
process at the same time. A cushion of 15 days after the second half
statutory cap is reached should provide USCIS with sufficient time to
process H-2B petitions filed under the second half statutory cap and
prepare to process petitions under this supplemental cap, and should
also provide petitioners not selected under the statutory cap with
enough time to refile under this supplemental cap. Furthermore, making
this allocation available after the second half statutory cap has been
reached builds in flexibility to account for variations in the timing
of that cap being reached. DHS cannot predict with certainty when the
FY 2024 second half statutory cap will be reached (or if it will be
reached), and therefore, did not specify a date for when to first allow
petitioners to file for FY 2024 second half supplemental visas. In the
event that the statutory second half FY 2024 cap is not reached, the
supplemental allocation for returning workers for the second half of FY
2024 will not become available.
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\122\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(2), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii)
of this section requesting employment start dates from April 1, 2024
to May 14, 2024 that are received earlier than 15 days after the INA
section 214(g) cap for the second half FY 2024 has been met.
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Based on historical data showing increasingly high demand for H-2B
workers with April 1 start dates, DHS expects all 19,000 visas to be
used quickly once the supplemental allocation becomes available.
However, in the event that USCIS approves insufficient petitions to use
all 19,000 visas, the unused numbers will not carry over for petition
approvals for employment start dates beginning on or after May 15,
2024. DHS chose to limit these 19,000 visas to start dates on or before
May 14, 2024, without the ability for these visas to be carried over
into the next allocation. As previously stated, DHS believes that the
operational burdens of calculating and administering a process to carry
over unused visas, combined with the potential confusion for the public
and adjudicators that could result from having different filing cutoff
dates for the different allocations, would outweigh the benefits. In
order to make any unused visas from this allocation available for late
second half of FY 2024 petitions, DHS would need to set a filing cutoff
date that would be after the cutoff for the first half allocation but
prior to any cutoff for late second half of FY 2024 petitions and prior
to September 16, 2024, upon which it would stop accepting petitions and
make a calculation of how many visas should be re-released for late
second half employers. Calculating visas to be re-released could also
entail an additional cap allocation, additional announcements to the
public, and potentially an additional lottery, all of which would
significantly increase operational burdens. In addition to increasing
operational burdens, DHS believes that the opening, closing, and
potential re-opening of this allocation (and/or other cap allocations)
could cause confusion for the public and adjudicators. Furthermore, not
setting a filing cutoff date prior to September 16, 2024, will maximize
employers' opportunity to avail themselves of the early second half
allocation. While DHS acknowledges that this approach could result in
employers in the late second half losing the opportunity to receive a
supplemental visa, it is DHS's expectation that there will be
sufficient demand from employers to use this entire allocation.
Additional Returning Worker Allocation for the Late Second Half (on or
After May 15, 2024, Through September 30, 2024)
For the late second half of FY 2024, DHS will make available an
additional allocation of 5,000 visas limited to returning workers, in
other words, those workers who were issued H-2B visas or held H-2B
status in fiscal years 2021, 2022, or 2023, regardless of country of
nationality. To assist employers needing workers to begin work during
the late spring and summer seasons in the fiscal year (also referred to
as ``late season employers''), these petitions must request a date of
need starting on or after May 15, 2024. These petitions must be filed
no sooner than 45 days after the second half statutory cap is reached,
a date that USCIS will identify in a public announcement.\123\ When
USCIS announces that it has received a sufficient number of petitions
to reach the second half statutory cap, it will also announce the
earliest possible filing date (45 days after the second half statutory
cap) for this allocation. The cushion of 45 days after the second half
statutory cap is reached is intended to provide USCIS with sufficient
time to process H-2B petitions filed under the second half statutory
cap that remain pending, as well as to process the expected influx of
petitions under the early second half supplemental cap that will begin
15 days after the second half statutory cap is reached.\124\ By
allowing USCIS to manage its workload in this way, the 45-day period
will help USCIS prepare to process petitions under the late second half
supplemental cap and mitigate the complications from concurrent
administration of these various caps.
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\123\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(3), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii)
of this section requesting employment start dates from May 15, 2024
to September 30, 2024, that are received earlier than 45 days after
the INA section 214(g) cap for the second half FY 2024 has been met.
\124\ While petitioners may continue to submit petitions under
the early second half supplemental cap through September 16, DHS
expects the heaviest filing to occur soon after the visas become
available. This expectation is based on historical filing patterns,
as well as an assumption that employers will try act quickly to
secure workers consistent with their dates of need.
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This is the second supplemental cap reserved for late season
employers that need workers to begin work during the late spring and
summer seasons in the fiscal year.\125\ By regulation, employers may
only apply for a TLC 75 to 90 days before the start date of need,\126\
and, as such, employers needing workers to begin work on or after May
15 are not eligible to file TLC applications until on or after February
15. As noted in the FY 2023 TFR, in past years, because of this
requirement and the strong demand for & workers in recent years to
begin work on the earliest employment start date (i.e., April 1), late
season employers were unable to receive cap-subject H-2B workers
because they did not have an opportunity to file visa petitions for
cap-subject H-2B workers before the second semiannual statutory cap was
reached. Since, based on recent years' data,\127\ USCIS has typically
received sufficient H-2B petitions to meet the statutory cap for the
second half of the fiscal year around mid-February, many of these late
season employers may have decided to not file a TLC application.
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\125\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022).
\126\ See 20 CFR 655.15(b).
\127\ As noted above, in fiscal years 2017 through 2023, USCIS
received a sufficient number of H-2B petitions to reach or exceed
the relevant second half statutory cap on March 13, 2017, February
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021,
February 25, 2022, and February 27, 2023 respectively.
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DHS, in consultation with DOL, has again determined that it is
appropriate to make a separate allocation available for late season
employers whose late season labor needs may have put them at a
disadvantage in accessing H-2B workers in recent years. While there was
significant demand for the late second half allocation in FY 2023, the
full allocation of 10,000 visas was not reached. As of October 6, 2023,
DOS has issued 5,071 visas towards the late second half allocation,
while USCIS approved 7,157 beneficiaries towards the late second half
allocation.\128\
[[Page 80415]]
Therefore, in order to meet the employer demand in the late second half
of FY 2024, while still maximizing the overall usage of supplemental
visas, DHS has determined it is appropriate to limit the late second
half allocation for FY 2024 to up to 5,000 visas. DHS, in consultation
with DOL, has determined that authorizing two allocations for the
second half of FY 2024 based on an employer's start date of need, in
addition to requiring that the employer's start date of need on the
Form I-129 match the start date of need on the approved TLC,\129\ will
provide employers with late season needs a better opportunity to
receive H-2B workers to avoid irreparable harm. Specifically, employers
with early season needs that need work to begin on or after April 1
will have the opportunity to file H-2B petitions under both the
statutory cap and the first allocation of the supplemental cap, while
employers with late season needs do not have that opportunity.
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\128\ Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
\129\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must
state an employment start date that is the same as the date of need
stated on the approved temporary labor certification'').
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To mitigate complications from concurrent administration of the
additional returning worker allocation for the second half of the
fiscal year for late season employers and either the statutory second
half cap or the initial supplemental allocation for returning workers
for the second half of the fiscal year (or both), these petitions must
be filed no earlier than 45 days after the second half statutory cap is
reached. When USCIS announces that it has received a sufficient number
of petitions to reach the second half statutory, it will also announce
the earliest possible filing date (45 days after the second half
statutory cap) for this allocation. In the event that the statutory
second half FY 2024 cap is not reached, this supplemental allocation
for late season filers workers will not become available. Furthermore,
in the event that USCIS does not approve sufficient petitions to use
all 5,000 visas for late season employers, DHS will not carry over the
unused numbers for petition approvals for any other allocation. For
example, any unused numbers would not carry over to petitions under the
country-specific allocation. As noted above, DHS believes the
operational burdens of calculating and administering a process to carry
over unused visas would outweigh the benefits because of the potential
confusion for the public and adjudicators that could result from having
different filing cutoff dates for the different allocations. A process
to carry over unused visas could also entail an additional cap
allocation, additional announcements to the public, and potentially an
additional lottery, all of which significantly increase operational
burdens and may add further confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica
DHS will make available 20,000 additional visas that are reserved
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica, as attested by the petitioner (regardless of
whether such nationals are returning workers). These 20,000 visas will
be available for petitioners requesting an employment start date before
the end of FY 2024, up to and including September 30, 2024.
While prior fiscal years' allocations for nationals of the Northern
Central American countries and Haiti have not been reached, DHS
anticipates a higher likelihood that the 20,000 visas allocated for
certain nationals by this rule will be reached by the end of this
fiscal year. As discussed above, DHS observed robust employer interest
in response to the FY 2021 H-2B supplemental visa allocation for
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 and FY
2023 supplemental visa allocations for Salvadoran, Guatemalan,
Honduran, and Haitian nationals, and the data show a trend of increased
participation by Haitian, Salvadoran, Guatemalan, and Honduran workers
in the H-2B program.\130\ Furthermore, the inclusion of nationals from
the additional countries of Colombia, Ecuador, and Costa Rica also
increases the likelihood that the 20,000 visas will be used.
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\130\ As previously noted, USCIS approved petitions on behalf of
6,805 beneficiaries under the FY 2021 allocation, 3,231
beneficiaries under the FY 2022 first half supplemental allocation,
12,318 beneficiaries for the second half of the fiscal year FY 2022,
and 23,832 beneficiaries under the FY 2023 allocation. See DHS,
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report
September 30, 2023.
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Employers requesting workers under the country-specific allocation
with an employment start date in the first half of FY 2024 may file
their petitions immediately after the publication of this TFR.
Employers requesting workers under the country-specific allocation with
an employment start date in the second half of FY 2024 must file their
petitions no earlier than 15 days after the second half statutory cap
is reached. The requirement to file the petition no earlier than 15
days after the second half statutory cap is reached is consistent with
the approach taken for the initial returning worker allocation for the
early second half of the fiscal year, and is in line with the
Departments' interpretation of their authority to make available
supplemental (or in other words, additional) visas as contingent upon
the exhaustion of visas under the statutory cap.\131\
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\131\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(4), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) of
this section that have a date of need on or after April 1, 2024 and
are received earlier than 15 days after the INA section 214(g) cap
for the second half of FY 2024 is met.
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As in FY 2023, the Departments have decided not to further divide
the 20,000 visas for workers from specific countries into separate
allocations for the first and second half of the fiscal year. The
Departments intend for this additional flexibility of allowing any
employment start date within FY 2024 to encourage U.S. employers that
are suffering irreparable harm or will suffer impending irreparable
harm to seek out workers from such countries, and, at the same time,
increase interest among nationals of the Northern Central American
countries, Haiti, Colombia, Ecuador, and Costa Rica seeking a legal
pathway for temporary employment in the United States. While this
approach could potentially result in employers with start dates in the
first half of FY 2024 using all 20,000 visas for nationals of the
specified countries, and consequently, employers with start dates in
the second half of FY 2024 losing the opportunity to utilize this
particular allocation, DHS believes that the benefits of increasing the
flexibility of this allocation outweighs the potential risk. Moreover,
employers with start dates in the second half of FY 2024 seeking to
employ nationals under the country-specific allocation may request a
visa under one of the two second half supplemental allocations which
are available for returning workers regardless of country of
nationality.
In the event that USCIS does not approve sufficient petitions to
use all 20,000 visas under the country-specific allocation by the end
of FY 2024, DHS will not carry over the unused numbers for petition
approvals for any other allocation. For example, any unused numbers
would not carry over to petitions for returning workers with employment
start dates in the second half of FY 2024. As noted above, DHS believes
the operational burdens of calculating and administering a process to
carry over unused visas would outweigh the benefits because of the
potential confusion for the public and
[[Page 80416]]
adjudicators that could result from having different filing cutoff
dates for the different allocations. A process to carry over unused
visas could also entail an additional cap allocation, additional
announcements to the public, and potentially an additional lottery, all
of which significantly increase operational burdens and may add further
confusion to the public and adjudicators. Further, this single filing
cutoff approach provides employers with incentive and more time to
petition for, and bring in, workers from El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica to meet employer
needs, consistent with the administration's efforts and outreach to
promote and improve safety, security, and economic stability in these
countries.
Process if Cap Allocations Are Reached
Finally, recognizing the high demand for H-2B visas, it is
plausible that the additional H-2B supplemental allocations provided in
this rule will be reached prior to September 16, 2024. Specifically,
the following scenarios may still occur:
<bullet> The 20,716 supplemental cap visas limited to returning
workers that will be immediately available for employers with dates of
need on or after October 1, 2023, through March 31, 2024, will be
reached before September 16, 2024;
<bullet> The 19,000 supplemental cap visas limited to returning
workers that will be available for employers with dates of need
starting on or after April 1, 2024, through May 14, 2024, will be
reached before September 16, 2024;
<bullet> The 5,000 supplemental cap visas limited to returning
workers that will be available for late season employers with dates of
need on or after May 15, 2024, through September 30, 2024, will be
reached before September 16, 2024; or
<bullet> The 20,000 supplemental cap visas limited to nationals of
El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa
Rica will be reached before September 16, 2024.
Under this rule, new 8 CFR 214.2(h)(6)(xiv)(D) reaffirms the
existing processes that are in place when H-2B numerical limitations
under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or
(g)(10), are reached,\132\ as applicable to each of the scenarios
described above that involve numerical limitations of the supplemental
cap. Specifically, for each of the scenarios mentioned above, DHS will
monitor petitions received, and make projections of the number of
petitions necessary to achieve the projected numerical limit of
approvals. USCIS will also notify the public of the dates that USCIS
has received the necessary number of petitions (the ``final receipt
dates'') for each of these scenarios. The day the public is notified
will not control the final receipt dates. Moreover, USCIS may randomly
select, via computer-generated selection, from among the petitio
[…truncated; see source link]Indexed from Federal Register on November 17, 2023.
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.