Rule2024-28017
Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 2, 2024
Effective
December 2, 2024
Issuing agencies
Homeland Security DepartmentLabor DepartmentEmployment and Training Administration
Abstract
DHS, in consultation with DOL, is exercising time-limited Fiscal Year (FY) 2025 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for the entirety of FY 2025. These supplemental visas will be distributed in four allocations throughout the fiscal year. This rule reserves 20,000 of these visas for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be available only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer. In addition, DHS is again providing temporary portability flexibility.
Full Text
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<title>Federal Register, Volume 89 Issue 231 (Monday, December 2, 2024)</title>
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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Rules and Regulations]
[Pages 95626-95685]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28017]
[[Page 95625]]
Vol. 89
Monday,
No. 231
December 2, 2024
Part V
Department of Homeland Security
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8 CFR Parts 214 and 274a
Department of Labor
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Employment and Training Administration
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20 CFR Part 655
Exercise of Time-Limited Authority To Increase the Numerical Limitation
for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change Employers;
Final Rule
Federal Register / Vol. 89 , No. 231 / Monday, December 2, 2024 /
Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2788-25]
RIN 1615-AC95
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2024-0002]
RIN 1205-AC20
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To Change
Employers
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS), and Employment and Training Administration
and Wage and Hour Division, U.S. Department of Labor (DOL).
ACTION: Temporary rule.
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SUMMARY: DHS, in consultation with DOL, is exercising time-limited
Fiscal Year (FY) 2025 authority and increasing the total number of
noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716
for the entirety of FY 2025. These supplemental visas will be
distributed in four allocations throughout the fiscal year. This rule
reserves 20,000 of these visas for nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be
available only to businesses that are suffering or will suffer
impending irreparable harm, as attested by the employer. In addition,
DHS is again providing temporary portability flexibility.
DATES:
Effective dates: The amendments at instructions 1, 3, and 5 are
effective December 2, 2024; instructions 2 and 4 amending 8 CFR 214.2
and 274a.12, respectively, are effective from December 2, 2024, through
December 2, 2027; instruction 6, adding 20 CFR 655.64, is effective
from December 2, 2024, through September 30, 2025; and instruction 7,
adding 20 CFR 655.68, is effective from December 2, 2024, through
September 30, 2028.
Petition dates: DHS will not accept any H-2B petitions under
provisions related to the FY 2025 supplemental numerical allocations
after September 15, 2025, and will not approve any such H-2B petitions
after September 30, 2025. The provisions related to portability are
only available to petitioners and H-2B nonimmigrant workers initiating
employment through the end of January 24, 2026.
Comments on the Information Collection: The Office of Foreign Labor
Certification within the U.S. Department of Labor will accept comments
in connection with the new information collection Form ETA-9142B-CAA-9
associated with this rule until January 31, 2025. The electronic
Federal Docket Management System will accept comments prior to midnight
eastern time at the end of that day.
ADDRESSES: You may submit written comments on the new information
collection Form ETA-9142B-CAA-9, identified by Regulatory Information
Number (RIN) 1205-AC20, electronically by the following method:
Federal eRulemaking Portal: <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-AC20 in
your submission. All comments received will become a matter of public
record and may be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments submitted after the deadline for submission will not be
considered. Please do not submit comments containing trade secrets,
confidential or proprietary commercial or financial information,
personal health information, sensitive personally identifiable
information (for example, social security numbers, driver's license or
state identification numbers, passport numbers, or financial account
numbers), or other information that you do not want to be made
available to the public. The agency reserves the right to redact or
refrain from posting such information and libelous or otherwise
inappropriate comments, including those that contain obscene, indecent,
or profane language; that contain threats or defamatory statements; or
that contain hate speech directed at race, color, sex, sexual
orientation, national origin, ethnicity, age, religion, or disability.
Please note that depending on how information is submitted through
<a href="http://regulations.gov">regulations.gov</a>, the agency may not be able to redact the information
and instead reserves the right to refrain from posting the information
or comment in such situations.
FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a:
Charles L. Nimick, Chief, Business and Foreign Workers Division, Office
of Policy and Strategy, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free
number).
Regarding 20 CFR part 655 and Form ETA-9142B-CAA-9: Brian D.
Pasternak, Administrator, Office of Foreign Labor Certification,
Employment and Training Administration, Department of Labor, 200
Constitution Ave. NW, Room N-5311, Washington, DC 20210, telephone
(202) 693-8200 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone numbers above via TTY by calling the toll-free Federal
Information Relay Service at 1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legal Framework
B. H-2B Numerical Limitations Under the INA
C. FY 2025 Public Law 118-83
D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocations for Fiscal Year 2025
C. Returning Workers
D. 20,000 Allocation for Nationals of Guatemala, El Salvador,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica
E. Business Need Standard--Irreparable Harm and FY 2025
Attestation
F. Portability
G. DHS Petition Procedures
H. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Order 12866: Regulatory Planning and Review;
Executive Order 14094: Modernizing Regulatory Review; and Executive
Order 13563: Improving Regulation and Regulatory Review
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. National Environmental Policy Act
H. Congressional Review Act
I. Paperwork Reduction Act
I. Executive Summary
FY 2025 H-2B Supplemental Cap
With this temporary final rule (TFR), the Secretary of Homeland
Security, following consultation with the Secretary of Labor, is
authorizing the release of an additional 64,716 H-2B visas for FY 2025,
subject to certain conditions. The 64,716 visas are divided into the
following allocations:
<bullet> For the first half of FY 2025: 20,716 immediately
available visas limited to
[[Page 95627]]
returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2022, 2023, or 2024,
regardless of country of nationality. These petitions must request
employment start dates on or before March 31, 2025;
<bullet> For the early second half of FY 2025 (April 1 to May 14):
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2022, 2023, or 2024 regardless of country of nationality. These early
second half of FY 2025 petitions must request employment start dates
from April 1, 2025, to May 14, 2025. Furthermore, employers must file
these petitions no earlier than 15 days after the second half statutory
cap \1\ is reached;
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\1\ The term ``statutory cap'' refers to the 66,000 cap set
forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at
INA section 214(g)(10).
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<bullet> For the late second half of FY 2025 (May 15 to September
30): 5,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2022, 2023, or 2024 regardless of country of nationality. These late
second half of FY 2025 petitions must request employment start dates
from May 15, 2025, to September 30, 2025. Furthermore, employers must
file these petitions no earlier than 45 days after the second half
statutory cap is reached; and
<bullet> For the entirety of FY 2025: 20,000 visas reserved for
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica (country-specific allocation) as attested by
the petitioner (regardless of whether such nationals are returning
workers). Employers requesting an employment start date in the first
half of FY 2025 may file such petitions immediately after the
publication of this TFR. Employers requesting an employment start date
in the second half of FY 2025 must file such petitions no earlier than
15 days after the second half statutory cap is reached.
To qualify for the FY 2025 supplemental caps provided by this
temporary final rule, eligible petitioners must:
<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 the current filing location, on or before
September 15, 2025;
<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 is 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 who left
employment with the employer on or after January, 1, 2023, including
those the employer furloughed or laid off, and until the date the H-2B
petition is filed, disclose the terms of the job order and solicit
their return to the job;
<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 2025 supplemental
cap must retain documentation of compliance with the attestation
requirements for 3 years from the date DOL approved the TLC and must
provide the documents and records upon the request of DHS or DOL, as
well as fully cooperate with any compliance reviews such as audits.
Through audits and investigations, both Departments have received
evidence of employer non-compliance with the terms and conditions of
the H-2B program, as well as violations of other labor and employment
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and
Hour Division (WHD), and USCIS Fraud Detection and National Security
(FDNS) personnel have encountered non-compliance issues such as failure
to pay the promised wage, failure to employ returning workers, failure
to demonstrate irreparable harm, failure to conduct the additional
recruitment steps, failure to cooperate with the audit or investigation
process, and failure to accurately disclose the beneficiary's work
location(s).
Such non-compliance can harm U.S. workers by undermining wages and
working conditions. It also directly harms H-2B workers. Further, H-2B
workers depend on ongoing employment with the petitioning employer to
maintain status in the United States. This dependence creates a power
imbalance between the employer and H-2B worker, making the H-2B worker
particularly vulnerable to exploitation and violations. An employer's
failure to cooperate with or respond to an audit or investigation
severely hinders the Departments' ability to assess whether it has
complied with the H-2B program requirements and to determine if any
temporary foreign or U.S. workers were affected by program violations.
In recognition of the substantial impact that non-compliance can have
on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a
significant number of audits focusing on irreparable harm and other
worker protection provisions. And as it
[[Page 95628]]
did as part of the supplemental cap TFRs in recent years, DHS will
again subject employers that have committed labor law violations in the
H-2B program to additional scrutiny in the supplemental cap petition
process.\2\ DHS intends for this additional scrutiny to help ensure
compliance with H-2B program requirements and obligations.
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\2\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022 for the H-2B
Temporary Nonagricultural Worker Program and Portability Flexibility
for H-2B Workers Seeking to Change Employers, 87 FR 30334, 30335
(May 18, 2022); Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816, 76818 (Dec. 15,
2022); Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 88 FR 80394 (Nov. 17, 2023).
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Specifically, falsifying information in H-2B program attestation(s)
can result not only in penalties relating to perjury, but also in,
among other things, a finding of fraud or willful misrepresentation;
denial or revocation of the H-2B petition requesting supplemental
workers; and debarment by DOL and DHS from the H-2B program and any
other foreign labor programs administered by DOL. Falsifying
information also may subject a petitioner/employer to other criminal
and/or civil penalties.
DHS will not approve H-2B petitions filed in connection with the FY
2025 supplemental cap authority on or after October 1, 2025.
H-2B Portability
In addition to exercising its time-limited authority to make
additional FY 2025 H-2B visas available, DHS is again providing
additional flexibilities to H-2B petitioners under its general
programmatic authority by allowing nonimmigrant workers in the United
States \3\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2025, or who
are the beneficiaries of non-frivolous H-2B petitions that are pending
as of January 25, 2025, to begin work with a new employer after an H-2B
petition (supported by a valid TLC) is filed and before the petition is
approved, generally for a period of up to 60 days. However, such
employment authorization would end 15 days after USCIS denies the H-2B
petition or such petition is withdrawn. This H-2B portability ends one
year after the provision's effective date of January 25, 2025, in other
words, at the end of January 24, 2026.\4\
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\3\ The term ``United States'' includes the continental United
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the
United States, and the Commonwealth of the Northern Mariana Islands.
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
\4\ On September 20, 2023, DHS issued Modernizing H-2 Program
Requirements, Oversight, and Worker Protections, Notice of Proposed
Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to
extend portability to H-2A and H-2B workers on a permanent basis.
The Department's proposal does not interfere with the portability
provision of this rule. However, should DHS publish a final rule
making H-2 portability permanent, any such provision would not
expire on a specific date, unlike the portability provision made
effective by this temporary final rule.
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II. Background
A. Legal Framework
The Immigration and Nationality Act (INA), as amended, establishes
the H-2B nonimmigrant classification for a nonagricultural temporary
worker ``having a residence in a foreign country which he has no
intention of abandoning who is coming temporarily to the United States
to perform . . . temporary [non-agricultural] service or labor if
unemployed persons capable of performing such service or labor cannot
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must petition DHS in such form and
containing such information as the Secretary prescribes for
classification of prospective temporary workers as H-2B nonimmigrants.
INA section 214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve
this petition before the beneficiary can be considered eligible for an
H-2B visa. In addition, the INA requires that ``[t]he question of
importing any alien as [an H-2B] nonimmigrant . . . in any specific
case or specific cases shall be determined by [DHS],\5\ after
consultation with appropriate agencies of the Government.'' INA section
214(c)(1), 8 U.S.C. 1184(c)(1). The INA generally charges the Secretary
of Homeland Security with the administration and enforcement of the
immigration laws, and provides that the Secretary ``shall establish
such regulations . . . and perform such other acts as he deems
necessary for carrying out his authority'' under the INA. See INA
section 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); see also 6 U.S.C.
202(4) (charging the Secretary with ``[e]stablishing and administering
rules . . . governing the granting of visas or other forms of
permission . . . to enter the United States to individuals who are not
a citizen or an alien lawfully admitted for permanent residence in the
United States''). With respect to nonimmigrants in particular, the INA
provides that ``[t]he admission to the United States of any alien as a
nonimmigrant shall be for such time and under such conditions as the
[Secretary] may by regulations prescribe.'' INA section 214(a)(1), 8
U.S.C. 1184(a)(1); see also INA section 274A(a)(1) and (h)(3), 8 U.S.C.
1324a(a)(1) and (h)(3) (prohibiting employment of noncitizens \6\ not
authorized for employment). The Secretary may designate officers or
employees to take and consider evidence concerning any matter that is
material or relevant to the enforcement of the INA. INA sections
287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b), and INA section 235(d)(3), 8
U.S.C. 1225(d)(3). INA section 291, 8 U.S.C. 1361, establishes that the
petitioner or applicant for a visa or other immigration document bears
the burden of proof with respect to eligibility and inadmissibility,
including that the noncitizen is entitled to the immigration status
being sought.
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\5\ As of March 1, 2003, in accordance with section 1517 of
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a
provision of the Immigration and Nationality Act describing
functions which were transferred from the Attorney General or other
Department of Justice official to the Department of Homeland
Security by the HSA ``shall be deemed to refer to the Secretary'' of
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV,
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
\6\ For purposes of this discussion, the Departments use the
term ``noncitizen'' colloquially to be synonymous with the term
``alien'' as it is used in the Immigration and Nationality Act.
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Finally, under section 101 of the HSA, 6 U.S.C. 111(b)(1)(F), a
primary mission of DHS is to ``ensure that the overall economic
security of the United States is not diminished by efforts, activities,
and programs aimed at securing the homeland.''
DHS regulations provide that an approved TLC from the U.S.
Department of Labor (DOL), issued pursuant to regulations established
at 20 CFR part 655, or from the Guam Department of Labor if the workers
will be employed on Guam, must accompany an H-2B petition for temporary
employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C)
through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C.
1103(a)(6). The TLC serves as DHS's consultation with DOL with respect
to whether a qualified U.S. worker is available to fill the petitioning
H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly-employed U.S. workers. See INA section
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
[[Page 95629]]
To determine whether to issue a TLC, the Departments have
established regulatory procedures under which DOL certifies whether a
qualified U.S. worker is available to fill the job opportunity
described in the employer's petition for a temporary nonagricultural
worker, and whether a foreign worker's employment in the job
opportunity will adversely affect the wages or working conditions of
similarly employed U.S. workers. See 20 CFR part 655, subpart A. The
regulations establish the process by which employers obtain a TLC and
rights and obligations of workers and employers.
Once the petition is approved, under the INA and current DHS
regulations, H-2B workers do not have employment authorization outside
of the validity period listed on the approved petition unless otherwise
authorized, and the workers are limited to employment with the H-2B
petitioner. See 8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer
or U.S. agent generally may submit a new H-2B petition, with a new,
approved TLC, to USCIS to request an extension of H-2B nonimmigrant
status for the validity of the TLC or for a period of up to 1 year. 8
CFR 214.2(h)(15)(ii)(C). Except as provided for in the preceding H-2B
supplemental cap TFRs \7\ and in this rule, and except for certain
professional athletes being traded among organizations,\8\ H-2B workers
seeking to extend their status with a new employer may not begin
employment with the new employer until the new H-2B petition is
approved.
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\7\ For instance, the FY 2023 and FY 2024 H-2B supplemental cap
TFRs both included a portability provision at 8 CFR 214.2(h)(29) and
(31), respectively. Portability under 8 CFR 214.2(h)(31) remains in
effect through January 24, 2025. See e.g., Exercise of Time-Limited
Authority To Increase the Numerical Limitation for FY 2023 for the
H-2B Temporary Nonagricultural Worker Program and Portability
Flexibility for H-2B Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022); Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2024 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023).
\8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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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 2025 is from October 1, 2024, through September
30, 2025.
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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
[[Page 95630]]
occurred even earlier in FY 2023, when USCIS received enough H-2B
petitions to reach the FY 2023 first-half statutory cap on September
12, 2022.\17\ For FY 2024, USCIS received sufficient H-2B petitions to
reach the first half of the fiscal year statutory cap on October 11,
2023.\18\ For FY 2025, USCIS received sufficient H-2B petitions to
reach the first half of the fiscal year statutory cap on September 18,
2024.\19\ This trend in recent years of increased demand for H-2B
workers is even more apparent in the second half of the fiscal
year.\20\
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\13\ See 20 CFR 655.15(b).
\14\ See 8 CFR 214.2(h)(6)(vi)(A).
\15\ In fiscal years 2017 through 2021, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
first half statutory cap on January 10, 2017, December 15, 2017,
December 6, 2018, November 15, 2019, and November 16, 2020,
respectively. See USCIS, USCIS Reaches the H-2B Cap for the First
Half of Fiscal Year 2017, <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). While this date was slightly later than the prior two years,
the Departments note that DOL received 2,157 applications for the
first half of the FY 2024 statutory cap during the initial three-day
filing window of July 3-5, 2023, covering 40,947 worker positions; a
59% increase in TLC workload when compared to the same time period
in 2022. See DOL, OFLC Publishes List of Randomized H-2B
Applications Submitted July 3-5, 2023, for Employers Seeking H-2B
Workers Starting October 1, 2023, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (July 10, 2023).
\19\ On September 19, 2024, USCIS announced that it had received
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of
fiscal year 2025, and that September 18, 2024, was the final receipt
date for new cap-subject H-2B worker petitions requesting an
employment start date before April 1, 2025. See USCIS, USCIS Reaches
H-2B Cap for First Half of Fiscal Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024). While this date was slightly later than
in fiscal year 2023, the Departments note that DOL received 2,158
applications for the first half of the FY 2025 statutory cap during
the initial three-day filing window of July 3-5, 2024, covering
44,238 worker positions; a 59% increase in TLC workload and 48%
increase in requested worker positions when compared to the same
time period for fiscal year 2023. See DOL, OFLC Publishes List of
Randomized H-2B Applications Submitted July 3-5, 2024, for Employers
Seeking H-2B Workers Starting October 1, 2024, <a href="https://www.dol.gov/agencies/eta/foreign-labor/news">https://www.dol.gov/agencies/eta/foreign-labor/news</a> (July 9, 2024).
\20\ In recent years, DOL has received an increasing number of
TLC applications for an increasing number of H-2B workers with April
1 start dates: DOL received 4,500 applications on January 1, 2018,
covering more than 81,600 worker positions; DOL received 5,276
applications by January 8, 2019, covering more than 96,400 worker
positions; DOL received 5,677 applications during the initial three-
day filing window in 2020 covering 99,362 worker positions; DOL
received 5,377 applications during the initial three-day filing
window in 2021 covering 96,641 worker positions; DOL received 7,875
applications by January 4, 2022, covering 136,555 worker positions;
DOL received 8,693 applications during the initial three-day filing
window in 2023, covering 142,796 worker positions; and DOL received
8,817 H-2B applications by January 8, 2024, covering 138,847 worker
positions. See DOL, Announcements, <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, Title I of the Continuing Appropriations and
Extensions Act, 2025, Public Law 118-83 (Sept. 26, 2024) (FY 2025
authority), which extended the authorization previously provided in
section 105 of Division G, Title I of the Further Consolidated
Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (``FY 2024
Omnibus''), as discussed below.
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\21\ See section 543 of Division F of the Consolidated
Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus);
section 205 of Division M of the Consolidated Appropriations Act,
2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division
H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY
2019 Omnibus); section 105 of Division I of the Further Consolidated
Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus);
section 105 of Division O of the Consolidated Appropriations Act,
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus,
sections 101 and 106(3) of Division A of Public Law 117-43,
Continuing Appropriations Act, 2022, and section 101 of Division A
of Public Law 117-70, Further Continuing Appropriations Act, 2022
through February 18, 2022 (together, FY 2022 authority); section 204
of Division O of the Consolidated Appropriations Act, 2022, Public
Law 117-103 (FY 2022 Omnibus); section 303 of Division O of the
Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023
Omnibus); Division A of Public Law 118-15, Continuing Appropriations
Act, 2024 and Other Extensions Act, through November 17, 2023, as
well as section 105 of Division G, Title I of the Further
Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024
Omnibus), signed into law on March 23, 2024, and the Continuing
Appropriations and Extensions Act, 2025, sections 101(6) and 106 of
Division A, Title I of Public Law 118-83 (Sept. 26, 2024).
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C. FY 2025 Public Law 118-83
On March 23, 2024, President Joseph Biden signed the FY 2024
Omnibus, which contains a provision, section 105 of Division G, Title
I, permitting the Secretary of Homeland Security, under certain
circumstances and after consultation with the Secretary of Labor, to
increase the number of H-2B visas available to U.S. employers,
notwithstanding the otherwise-established statutory numerical
limitation set forth in the INA.\22\ Specifically, section 105 provides
that ``the Secretary of Homeland Security, after consultation with the
Secretary of Labor, and upon determining that the needs of American
businesses cannot be satisfied in [FY] 2024 with United States workers
who are willing, qualified, and able to perform temporary
nonagricultural labor,'' may increase the total number of noncitizens
who may receive an H-2B visa in FY 2024 by the highest number of H-2B
nonimmigrants who participated in the H-2B returning worker program in
any fiscal year in which returning workers were exempt from the H-2B
numerical limitation.
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\22\ Further Consolidated Appropriations Act, 2024, Public Law
118-47 (Mar. 23, 2024).
---------------------------------------------------------------------------
On September 25, 2024, Congress passed the FY 2025 authority,
Public Law 118-83, which the President signed the next day. This law
extends authorization under the same terms and conditions provided in
section 105 of Division G, Title I of the FY 2024 Omnibus permitting
the Secretary of Homeland Security to increase the number of H-2B visas
available to U.S. employers in FY 2025, and expires on December 20,
2024.\23\ In other words, Public Law 118-83 permits the Secretary of
Homeland Security, after consultation with the Secretary of Labor, to
provide up to 64,716 additional H-2B visas for FY 2025, notwithstanding
the otherwise-established statutory numerical limitation set forth in
the INA, for eligible employers whose employment needs for FY 2025
cannot be met.\24\ Under the Public Law 118-83 authority, DHS and DOL
are jointly publishing this
[[Page 95631]]
temporary final rule to authorize the issuance of no more than 64,716
additional visas for FY 2025 to those businesses that are suffering
irreparable harm or will suffer impending irreparable harm, as attested
by the employer on a new attestation form. The authority to approve H-
2B petitions under this FY 2025 supplemental cap expires at the end of
that fiscal year. Therefore, USCIS will not approve H-2B petitions
filed in connection with this FY 2025 supplemental cap authority on or
after October 1, 2025.
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\23\ See secs. 101(6) and 106, Div. A, Title I, Pub. L. 118-83
(Sept. 26, 2024), and section 105 of Division G, Title I of the
Further Consolidated Appropriations Act, 2024, Public Law 118-47
(Mar. 23, 2024) (FY 2024 Omnibus).
\24\ Appropriations and authorities provided by the continuing
resolutions are available for the needs of the entire fiscal year to
which the continuing resolution applies, although DHS's ability to
obligate funds or exercise such authorities may lapse at the sunset
of such resolution. See, e.g., Comments on Due Date and Amount of
District of Columbia's Contributions to Special Employee Retirement
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a
continuing resolution appropriates the full annual amount regardless
of its period of duration. . . . Standard continuing resolution
language makes it clear that the appropriations are available to the
extent and in the manner which would be provided by the pertinent
appropriations act that has yet to be enacted (unless otherwise
provided in the continuing resolution).''). Consistent with this
principle, DHS interprets the current continuing resolution to
provide DHS with the ability to authorize additional H-2B visa
numbers with respect to all of FY 2025 subject to the same terms and
conditions as the FY 2024 authority at any time before the
continuing resolution expires, notwithstanding the reference to FY
2024 in the FY 2024 Omnibus.
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As noted above, since FY 2017, Congress has enacted a series of
public laws providing the Secretary of Homeland Security with the
discretionary authority to increase the H-2B cap beyond the annual
numerical limitation set forth in section 214 of the INA. The previous
statutory provisions were materially identical to section 105 of the FY
2024 Omnibus, which is the same authority provided for FY 2025 by the
recent continuing resolution. During each fiscal year from FY 2017
through FY 2019, and FY 2021 through FY 2024, the Secretary of Homeland
Security, after consulting with the Secretary of Labor, determined that
some American businesses could not satisfy their needs in such year
with U.S. workers who were willing, qualified, and able to perform
temporary nonagricultural labor. On the basis of these determinations,
on July 19, 2017, and May 31, 2018, DHS and DOL jointly published
temporary final rules for FY 2017 and FY 2018, respectively, each of
which allowed an increase of up to 15,000 additional H-2B visas for
those businesses that attested that if they did not receive all of the
workers requested on the Petition for a Nonimmigrant Worker (Form I-
129), they were likely to suffer irreparable harm, in other words,
suffer a permanent and severe financial loss.\25\ USCIS approved a
total of 12,294 workers for H-2B classification under petitions filed
pursuant to the FY 2017 supplemental cap increase.\26\ In FY 2018,
USCIS received petitions for more than 15,000 beneficiaries during the
first 5 business days of filing for the supplemental cap and held a
lottery on June 7, 2018. The total number of H-2B workers approved
toward the FY 2018 supplemental cap increase was 15,788.\27\ The vast
majority of the H-2B petitions received under the FY 2017 and FY 2018
supplemental caps requested premium processing (Form I-907) \28\ and
were adjudicated within 15 calendar days.
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\25\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905, 24917 (May 31, 2018).
\26\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
\27\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
\28\ Premium processing allows for expedited processing for an
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
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On May 8, 2019, DHS and DOL jointly published a temporary final
rule authorizing an increase of up to 30,000 additional H-2B visas for
the remainder of FY 2019.\29\ The additional visas were limited to
returning workers who had been counted against the H-2B cap or were
otherwise granted H-2B status in the previous three fiscal years, and
for those businesses that attested to a level of need such that, if
they did not receive all of the workers requested on the Form I-129,
they were likely to suffer irreparable harm, in other words, suffer a
permanent and severe financial loss.\30\ The Secretary determined that
limiting returning workers to those who were issued an H-2B visa or
granted H-2B status in the past 3 fiscal years was appropriate, as it
mirrored the standard that Congress designated in previous returning
worker provisions. On June 5, 2019, approximately 30 days after the
supplemental visas became available, USCIS announced that it received
sufficient petitions filed pursuant to the FY 2019 supplemental cap
increase. USCIS did not conduct a lottery for the FY 2019 supplemental
cap increase. The total number of H-2B workers approved towards the FY
2019 supplemental cap increase was 32,680.\31\ The vast majority of
these petitions requested premium processing and were adjudicated
within 15 calendar days.
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\29\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2019 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).
\30\ See 84 FR at 20021.
\31\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number
of approved workers exceeded the number of additional visas
authorized for FY 2019 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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Although Congress provided the Secretary of Homeland Security with
the discretionary authority to increase the H-2B cap in FY 2020, the
Secretary did not exercise that authority. DHS initially intended to
exercise its authority and, on March 4, 2020, announced that it would
make available 35,000 supplemental H-2B visas for the second half of
the fiscal year.\32\ On March 13, 2020, then-President Trump declared a
National Emergency concerning COVID-19, a communicable disease caused
by the coronavirus SARS-CoV-2.\33\ On April 2, 2020, DHS announced that
the rule to increase the H-2B cap was on hold due to economic
circumstances, and that DHS would not release additional H-2B visas
until further notice.\34\ DHS also noted that the Department of State
had suspended routine visa services.\35\
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\32\ See DHS, DHS to Improve Integrity of Visa Program for
Foreign Workers (March 5, 2020), <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
[[Page 95632]]
available under the FY 2021 H-2B supplemental visa temporary final
rule.\37\ The total number of H-2B workers approved towards the FY 2021
supplemental cap increase was 30,707.\38\ This total number included
approved H-2B petitions for 23,937 returning workers, as well as 6,805
beneficiaries from the Northern Central American countries.\39\
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\36\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).
\37\ See USCIS, Cap Reached for Remaining H-2B Visas for
Returning Workers for FY 2021, <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 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.
---------------------------------------------------------------------------
On December 15, 2022, DHS and DOL jointly published a temporary
final rule authorizing an increase of up to 64,716 additional H-2B
visas for the entirety of FY 2023.\45\ As in the FY 2022 TFRs, the
additional visas were available only to employers that attested they
were suffering or would suffer impending irreparable harm without the
additional workers. The 64,716 additional visas included 44,716
reserved for returning workers from one of the last three fiscal years
(FY 2020, 2021, or 2022), which were distributed in several allocations
based on date of employer need: 18,216 for employers with requested
employment start dates on or before March 31, 2023; 16,500 for
employers with requested employment start dates from April 1, 2023, to
May 14, 2023 (early second half allocation); and 10,000 for employers
with requested employment start dates from May 15, 2023, to Sept. 30,
2023 (late second half allocation). The remaining 20,000 visas were
available for the entirety of FY 2023, and were set aside for nationals
of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from
the returning worker requirement. By January 30, 2023, USCIS received
enough petitions to reach the cap for the additional 18,216 H-2B visas
made available for returning workers for the first half of fiscal year,
and by March 30, 2023, USCIS received enough petitions to reach the cap
for the additional 16,500 H-2B visas made available for returning
workers for the early second half of fiscal year.\46\ USCIS data show
that the total number of H-2B workers approved towards the FY 2023
supplemental cap increase was 78,302, including 54,470 workers under
the returning worker allocation, as well as 23,832 workers approved
towards the Haitian/Northern Central American allocation.\47\
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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) (correction).
\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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On November 17, 2023, DHS and DOL jointly published a temporary
final rule authorizing an increase of up to 64,716 additional H-2B
visas for the entirety of
[[Page 95633]]
FY 2024.\48\ As in the FY 2023 TFR, the additional visas were available
only to employers that attested they were suffering or would suffer
impending irreparable harm without the additional workers. The 64,716
additional visas included 44,716 reserved for returning workers from
one of the last three fiscal years (FY 2021, 2022, or 2023), which were
distributed in several allocations based on date of employer need:
20,716 for employers with requested employment start dates on or before
March 31, 2024; 19,000 for employers with requested employment start
dates from April 1, 2024, to May 14, 2024 (early second half
allocation); and 5,000 for employers with requested employment start
dates from May 15, 2024, to September 30, 2024 (late second half
allocation). The remaining 20,000 visas were available for the entirety
of FY 2024, and were set aside for nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt
from the returning worker requirement. By January 9, 2024, USCIS
received enough petitions to reach the cap for the additional 20,716 H-
2B visas made available for returning workers for the first half of
fiscal year, and by April 17, 2024, USCIS received enough petitions to
reach the cap for the additional 19,000 H-2B visas made available for
returning workers for the early second half of fiscal year.\49\ USCIS
data show that the total number of H-2B workers approved towards the FY
2024 supplemental cap increase was 85,577, including 61,102 workers
under the returning worker allocation, as well as 24,475 workers
approved towards the country-specific allocation.\50\
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\48\ Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2024 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023).
\49\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024</a> (Jan. 12, 2024); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024</a> (Apr. 18, 2024).
\50\ The number of approved workers exceeded the number of
additional visas authorized for FY 2024 to allow for the possibility
that some approved workers would either not seek a visa or
admission, would not be issued a visa, or would not be admitted to
the United States. See DHS, USCIS, Office of Performance and
Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/
2024, PAER0016221.
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Once again, DHS, in consultation with DOL, believes that it is
appropriate to increase the H-2B cap for FY 2025 based on the demand
for H-2B workers in the first half of FY 2025, anticipated demand for
the second half of FY 2025, recent economic growth, and strong labor
demand.\51\ Similar to the preceding temporary rule, DHS and DOL also
believe that it is appropriate and important to couple this cap
increase with additional worker protections, as described below.
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\51\ The term ``strong labor demand'' in this context relies on
the most recently released figure from a Bureau of Labor Statistics
(BLS) survey at the time this TFR was written. The BLS Job Openings
and Labor Turnover Survey (JOLTS) reports 9.6 million job openings
in August 2023. See DOL, BLS, Job Openings and Labor Turnover--
August 2023, <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 prior years, DHS and DOL (the Departments) have determined
that it is appropriate to jointly issue this temporary final rule.\52\
The determination to issue the temporary final rule jointly follows
conflicting court decisions concerning DOL's authority to independently
issue legislative rules to carry out its consultative and delegated
functions pertaining to the H-2B program under the INA.\53\ Although
DHS and DOL each have authority to independently issue rules
implementing their respective duties under the H-2B program,\54\ the
Departments are implementing the numerical increase in this manner to
ensure there can be no question about the authority underlying the
administration and enforcement of the temporary cap increase. This
approach is consistent with rules implementing DOL's general
consultative role under INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and
delegated functions under INA sections 103(a)(6) and 214(c)(14)(B), 8
U.S.C. 1103(a)(6), 1184(c)(14)(B).\55\
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\52\ See Exercise of Time-Limited Authority To Increase the
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited
Authority To Increase the Fiscal Year 2019 Numerical Limitation for
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May
8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal
Year 2021 Numerical Limitation for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for FY 2023
for the H-2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H-2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022); Exercise of Time-Limited
Authority To Increase the Numerical Limitation for FY 2024 for the
H-2B Temporary Nonagricultural Worker Program and Portability
Flexibility for H-2B Workers Seeking To Change Employers, 88 FR
80394 (Nov. 17, 2023).
\53\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021);
see also Temporary Non-Agricultural Employment of H-2B Aliens in the
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
\54\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
\55\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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III. Discussion
A. Statutory Determination
Following consultation with the Secretary of Labor, the Secretary
of Homeland Security has determined that some U.S. employers cannot
satisfy their needs in FY 2025 with U.S. workers who are willing,
qualified, and able to perform temporary nonagricultural labor. In
accordance with the FY 2025 continuing resolution extending the
authority provided in section 105 of the FY 2024 Omnibus, the Secretary
of Homeland Security has determined that it is appropriate, for the
reasons stated below, to raise the numerical limitation on H-2B
nonimmigrant visas through the end of FY 2025 by up to 64,716
additional visas for those American businesses that attest that they
are suffering irreparable harm or will suffer impending irreparable
harm, in other words, a permanent and severe financial loss, without
the ability to employ all of the H-2B workers requested on their
petition. These businesses must retain documentation, as described
below, supporting this attestation.
As in connection with H-2B supplemental visa temporary final rules
in recent years, and consistent with existing authority, DHS and DOL
intend to conduct a significant number of audits with respect to
petitions filed under this TFR requesting supplemental H-2B visas
during the period of temporary need. The Departments will use their
discretion to select which petitions to audit, and the Departments will
use the audits to verify compliance with H-2B program requirements,
including the irreparable harm standard as well as other key worker
protection provisions implemented through this rule. If the Departments
find that an employer's documentation does not meet the irreparable
harm standard, or that the employer fails to provide
[[Page 95634]]
evidence demonstrating irreparable harm or comply with the audit
process, the Departments may consider it to be a willful violation
resulting in an adverse agency action against the employer, including
revocation of the TLC or program debarment. Of the audits completed so
far, some audits conducted of employers that received visas under past
supplemental caps revealed concerns surrounding payment of the promised
wage, employment of returning workers, documentation of irreparable
harm, need for all requested workers, employment for the reported
number of hours and employment at the listed location, recruitment of
U.S. workers, and cooperation with the audit process, which may warrant
further review and action.
Based on the insufficient responses and evidence generally provided
in response to these audits, which indicate a lack of compliance with
the audit process and program requirements, DOL has added clarifying
language to the regulatory text at 20 CFR 655.64(a)(1) and (a)(5) to
provide more information on how employers can provide sufficient
evidence to establish irreparable harm in response to an audit or
investigation and further explain how failing to respond to audits or
failing to establish compliance with H-2B program requirements can
result in debarment from the program and all programs administered by
OFLC, consistent with the Department's regulations at 20 CFR 655.70 and
20 CFR 655.73. While the requirements remain the same, DOL believes
adding these clarifications would benefit the public and regulated
community at large.
As he did in recent years, the Secretary of Homeland Security has
also again determined, following consultation with the Secretary of
Labor, that for certain employers, additional recruitment steps are
necessary to confirm that there are no qualified U.S. workers available
for the positions. In addition, the Secretary of Homeland Security has
determined, following consultation with the Secretary of Labor, that
the supplemental visas will be limited to returning workers, with the
exception that up to 20,000 of the 64,716 visas will be exempt from the
returning worker requirement and, similar to FY 2024, will be reserved
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras,
Haiti, Colombia, Ecuador, and Costa Rica.\56\ DHS is reserving these
20,000 H-2B visas for nationals of these countries to further the
United States' objectives in the Western Hemisphere to manage irregular
migration through various lines of efforts including increasing and
expanding access to lawful pathways for nationals of countries that
have extensively collaborated with the United States on migration
issues, such as through endorsing the Los Angeles Declaration on
Migration and Protection (L.A. Declaration),\57\ joining the United
States to ramp up efforts to address the irregular migration flows
through the Darien,\58\ and hosting Safe Mobility Offices (SMOs) so
that migrants do not trek north to the U.S. Southwest Border.\59\ The
20,000 set-aside will also deliver on the objectives of E.O. 14010,
which, among other initiatives, instructs the Secretary of Homeland
Security and the Secretary of State to implement measures to enhance
access to visa programs for nationals of the Northern Central American
countries.\60\ DHS is also allocating these visas to specific countries
to further promote development and economic stability of these
countries to reduce irregular migration throughout the Western
Hemisphere.\61\
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\56\ These conditions and limitations are not inconsistent with
sections 214(g)(3) (``first in, first out'' H-2B processing) and
(g)(10) (fiscal year H-2B allocations) because noncitizens covered
by the special allocation under section 105 of the FY 2024 Omnibus
are not ``subject to the numerical limitations of [section
214(g)(1)].'' See, e.g., INA section 214(g)(3); INA section
214(g)(10); Continuing Appropriations Act, 2025, div. A, sec. 101(6)
(extending the authority provided in FY 2024 Omnibus div. G, sec.
3105 (``Notwithstanding the numerical limitation set forth in
section 214(g)(1)(B) of the [INA] . . . .'')).
\57\ The White House, Los Angeles Declaration on Migration and
Protection, June 10, 2022, <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>. On May 7, 2024, Guatemala hosted the third Los
Angeles Declaration Ministerial with foreign ministers and senior
representatives from 21 endorsing countries, including U.S.
Secretary of State Antony Blinken. The White House, Fact Sheet:
Third Ministerial Meeting on the Los Angeles Declaration Migration
and Protection in Guatemala (May 7, 2024), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/</a>. On September
25, the United States hosted the fourth Los Angeles Declaration
Ministerial with foreign ministers and senior representatives from
the other 21 endorsing countries. The White House, Fact Sheet:
Fourth Ministerial Meeting on the Los Angeles Declaration Migration
and Protection (September 26, 2024), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/26/fact-sheet-fourth-ministerial-meeting-on-the-los-angeles-declaration-on-migration-and-protection/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/26/fact-sheet-fourth-ministerial-meeting-on-the-los-angeles-declaration-on-migration-and-protection/</a>.
\58\ 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>.
\59\ 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.
\60\ See Section 3(c) of E.O. 14010, Creating a Comprehensive
Regional Framework To Address the Causes of Migration, To Manage
Migration Throughout North and Central America, and To Provide Safe
and Orderly Processing of Asylum Seekers at the United States
Border, signed February 2, 2021, <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.
\61\ 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' 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 approving petitions on behalf of 6,805
beneficiaries under the FY 2021 allocation,\62\ 3,231 beneficiaries
under
[[Page 95635]]
the FY 2022 first half supplemental allocation,\63\ 12,318
beneficiaries for the second half of the fiscal year FY 2022, and
23,832 beneficiaries under the FY 2023 allocation.\64\ DHS also
observed robust employer interest in response to the FY 2024 H-2B
supplemental visa allocation for Salvadoran, Guatemalan, Honduran,
Haitian, Colombian, Ecuadoran, and Costa Rican nationals. For FY 2024,
USCIS approved 24,475 beneficiaries under the country-specific
allocation.\65\ In addition, the Biden-Harris administration has
conducted outreach efforts to ensure U.S. businesses are able to
address their labor needs by utilizing this country specific allocation
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica while at the same time promoting the
availability of this lawful pathway for nationals of these countries
seeking economic opportunity in the United States.\66\
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\62\ While USCIS approved a greater number of beneficiaries from
the Northern Central American countries than the 6,000 visas
allocated under the FY 2021 supplemental cap for those countries,
the Department of State issued 3,079 visas to nationals from those
countries. See DHS, USCIS, Office of Performance and Quality,
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122,
H-2B Visa Issuance Report September 30, 2023. This discrepancy can
be attributed to adverse impacts on consular processing caused by
the COVID-19 pandemic, travel restrictions, as well as lack of
readily available processes to efficiently match workers from
Northern Central American countries with U.S. recruiters/employers
on an expedited timeline.
\63\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023.
\64\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023. While USCIS approved a greater
number of beneficiaries from the Northern Central American countries
and Haiti than the 11,500 visas allocated under the FY 2022 second
half supplemental cap for those countries, the Department of State
issued approximately 7,405 visas to nationals from those countries.
Similarly, while USCIS approved a greater number of beneficiaries
from the Northern Central American countries and Haiti than the
20,000 visas allocated under the FY 2023 supplemental cap for those
countries, the Department of State issued approximately 16,713 visas
to nationals from those countries.
\65\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
While USCIS approved a greater number of beneficiaries under the
country-specific allocation than the 20,000 visas allocated, the
Department of State issued approximately 17,695 visas under this
allocation. Id.
\66\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
<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.'');
USCIS, H-2B Visa Program: Overview and Country Specific Allocations
Recruitment Webinar, <a href="https://www.uscis.gov/outreach/upcoming-national-engagements/h-2b-visa-program-overview-and-country-specific-allocations-recruitment-webinar">https://www.uscis.gov/outreach/upcoming-national-engagements/h-2b-visa-program-overview-and-country-specific-allocations-recruitment-webinar</a> (March 7, 2024).
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DHS will not accept and will reject petitions submitted for the
country-specific allocation with a date of need on or after April 1,
2025, that are received earlier than 15 days after the INA section
214(g) cap for the second half of FY 2025 is met or are received after
the applicable numerical limitation has been reached or after September
15, 2025. Requiring petitioners to wait to submit H-2B supplemental cap
petitions with start dates of need on or after April 1, 2025, is
consistent with the supplemental cap authority in section 105 of the FY
2024 Omnibus, as extended to FY 2025 by Public Law 118-83 (September
26, 2024), and will facilitate the orderly intake and processing of
supplemental cap petitions for the country-specific allocation. As
discussed above, similar limitations apply to the intake and processing
of returning worker petitions with start dates of need on or after
April 1, 2025.
Similar to previous temporary final rules, the Secretary of
Homeland Security has also determined to limit the supplemental visas
to H-2B returning workers,\67\ unless the employer indicates on the new
attestation form that it is requesting workers who are nationals of one
of the specified countries and who are therefore counted towards the
20,000 country-specific allocation regardless of whether they are new
or returning workers. If the 20,000 country-specific allocation is
reached and visas remain available under the returning worker cap,
USCIS would reject a petition seeking workers under the 20,000
allocation and return any fees submitted to the petitioner. In such a
case, a petitioner may continue to request workers who are nationals of
one of these countries, but the petitioner must file a new Form I-129
petition, with fee, and attest that these noncitizens will be returning
workers, in other words, workers who were issued H-2B visas or were
otherwise granted H-2B status in FY 2022, 2023, or 2024.\68\ Like the
temporary final rules in recent years, if the 20,000 returning worker
exemption cap for specific nationals remains unfilled, DHS will not
make unfilled visas reserved for these nationals available to the
general returning worker cap. The DHS decision not to make available
unfilled visas from the country-specific allocation to the general
supplemental cap for returning workers is consistent with the
administration's goal of providing a lawful pathway for such nationals
to temporarily work in the United States. To that end, not permitting
rollover into the returning worker allocation provides employers with
more time to petition for, and bring in, workers from these countries
and encourages full use of the 20,000 country-specific allocation to
meet employer needs. This, in turn, contributes to our country's
efforts to promote and improve safety, security and economic stability
in these countries to help stem the flow of irregular migration to the
United States.
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\67\ For purposes of this rule, these returning workers could
have been H-2B cap exempt or extended H-2B status in FY 2022, 2023,
or 2024. Additionally, they may have been previously counted against
the annual H-2B cap of 66,000 visas during FY 2022, 2023, or 2024,
or the supplemental caps in FY 2022, 2023, or 2024.
\68\ The returning worker allocations are for workers who were
issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or
2024, regardless of country of nationality. Therefore, a petitioner
may choose to petition for Salvadoran, Guatemalan, Honduran,
Haitian, Colombian, Ecuadorian, or Costa Rican nationals who meet
this requirement under an available returning worker allocation,
regardless of whether the separate 20,000 allocation for these
nationals has been reached.
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The Secretary of Homeland Security's determination to increase the
numerical limitation is based, in part, on the conclusion that some
businesses are suffering irreparable harm or will suffer impending
irreparable harm without the ability to employ all of the H-2B workers
requested on their petition. As stated in prior TFRs, in the past,
members of Congress have informed the Secretaries of Homeland Security
and Labor about the needs of some U.S. businesses for H-2B workers
(after the statutory cap for the relevant half of the fiscal year has
been reached) and about the potentially negative impact on state and
local economies if the cap is not increased.\69\ U.S. businesses,
chambers of commerce, employer organizations, and state and local
elected officials have also previously expressed concerns to the DHS
and Labor Secretaries regarding the unavailability of H-2B visas after
the statutory cap was reached.\70\ In addition, while DHS did not
request comments for the FY 2024 TFR, several commenters on the FY 2023
TFR supported the Departments' decision to publish one rule covering
the entire
[[Page 95636]]
fiscal year for 2023, and urged the Departments to once again publish
one rule covering the entire fiscal year for 2024 in order to save time
in the second half of the fiscal year, conserve limited agency
resources, and reduce uncertainty for employers.\71\
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\69\ See, e.g., Exercise of Time-Limited Authority To Increase
the Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022).
\70\ These letters were retained in the administrative record
for those rules.
\71\ See the docket for Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022) for
access to these comments.
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After considering the full range of evidence and diverse points of
view, the Secretary of Homeland Security has deemed it appropriate to
take action to prevent further severe and permanent financial loss for
those employers currently suffering irreparable harm and to avoid
impending irreparable harm for other employers unable to obtain H-2B
workers under the statutory cap, including potential wage and job
losses by their U.S. workers, as well as other adverse downstream
economic effects.\72\ At the same time, the Secretary of Homeland
Security believes it is appropriate to condition receipt of
supplemental visas on adherence to additional worker protections, as
discussed below.
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\72\ See, e.g., Impacts of the H-2B Visa Program for Seasonal
Workers on Maryland's Seafood Industry and Economy, Maryland
Department of Agriculture Seafood Marketing Program and Chesapeake
Bay Seafood Industry Association (March 2, 2020), <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); Feds Double Seasonal
Worker Visas Ahead of 2024 Crab Season, Chesapeake Bay Magazine
(Nov. 7, 2023, <a href="https://www.chesapeakebaymagazine.com/feds-double-seasonal-worker-visas-ahead-of-2024-crab-season/">https://www.chesapeakebaymagazine.com/feds-double-seasonal-worker-visas-ahead-of-2024-crab-season/</a>; Senator Chris Van
Hollen, Van Hollen Meets with Eastern Shore Crab Houses, Highlights
Efforts to Support Seafood Industry's Employment Needs (March 21,
2024), <a href="https://www.vanhollen.senate.gov/news/press-releases/van-hollen-meets-with-eastern-shore-crab-houses-highlights-efforts-to-support-seafood-industrys-employment-needs">https://www.vanhollen.senate.gov/news/press-releases/van-hollen-meets-with-eastern-shore-crab-houses-highlights-efforts-to-support-seafood-industrys-employment-needs</a>; HotelDive, Hotel
Employment Rose in May, But Owners' Labor Woes Remained (June 11,
2024), <a href="https://www.hoteldive.com/news/hotel-employment-labor-challenges/718560/">https://www.hoteldive.com/news/hotel-employment-labor-challenges/718560/</a>.
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The decision to afford the benefits of this temporary cap increase
to U.S. businesses that need H-2B workers because they are suffering
irreparable harm already or will suffer impending irreparable harm, and
that will comply with additional worker protections, rather than
applying the cap increase to any and all businesses seeking temporary
workers, is consistent with DHS's time-limited authority to increase
the cap, as explained below. The Secretary of Homeland Security, in
implementing section 105 of the FY 2024 Omnibus, as extended by Public
Law 118-83, and determining the scope of any such increase, has broad
discretion, following consultation with the Secretary of Labor, to
identify the business needs that are most relevant, while bearing in
mind the need to protect U.S. workers.\73\ Within that context, for the
below reasons, the Secretary of Homeland Security has determined to
allow an overall increase of up to 64,716 additional visas solely for
the businesses facing permanent, severe financial loss or those who
will face such loss in the near future.\74\
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\73\ Congress has delegated to DHS the broad authority to
administer and enforce the immigration laws in title 8 of the U.S.C.
as well as other immigration and naturalization laws. See, e.g., INA
sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1),
(c)(1); see Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244,
2263 (2024) (``In a case involving an agency, of course, the
statute's meaning may well be that the agency is authorized to
exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes `expressly delegate' to an
agency the authority to give meaning to a particular statutory term.
Others empower an agency to prescribe rules to fill up the details
of a statutory scheme, or to regulate subject to the limits imposed
by a term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (cleaned up and internal
citations omitted).
\74\ The statute explicitly provides that the Secretary of
Homeland Security, after consulting with the Secretary of Labor, and
upon the determination that the needs of United States businesses
cannot be satisfied during fiscal year 2025 with U.S. workers to
perform temporary nonagricultural labor, may determine the
appropriate number of H-2B supplemental visas to be issued in fiscal
year 2025, limited to the highest number of H-2B nonimmigrants who
participated in the H-2B returning worker program. Consistent with
the discretion afforded thereunder by Congress, and commensurate
with authorities including those afforded under section 103 and 214
of the INA, 8 U.S.C. 1103 and1184, DHS, in consultation with DOL, is
making available additional H-2B temporary nonagricultural worker
visas for fiscal year 2025, as in past years, to employers who are
suffering irreparable harm or will suffer impending irreparable
harm. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. at 2263
(2024).
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First, as explained in earlier TFRs, DHS has long interpreted the
reference to ``the needs of American businesses'' reiterated in section
105 of the FY 2024 Omnibus, as extended by Public Law 118-83, as
describing a need different from the need ordinarily required of
employers in petitioning for an H-2B worker. Under the generally
applicable H-2B program, each individual H-2B employer must demonstrate
that it has a temporary need for the services or labor for which it
seeks to hire H-2B workers. See 8 CFR 214.2(h)(6)(ii); 20 CFR 655.6.
The use of the phrase ``needs of American businesses,'' which is not
found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B
cap, authorizes the Secretary of Homeland Security in allocating
additional H-2B visas under section 105 of the FY 2024 Omnibus, as
extended by Public Law 118-83, to require that employers establish a
need above and beyond the normal standard under the H-2B program, that
is, an inability to find sufficient qualified U.S. workers willing and
available to perform temporary services or labor and that the
employment of the H-2B worker will not adversely affect the wages and
working conditions of U.S. workers, see 8 CFR 214.2(h)(6)(i)(A). DOL
concurs with this interpretation. Accordingly, the Secretaries have
determined that it is appropriate, within the limits discussed below,
to tailor the availability of this temporary cap increase to those
businesses that are suffering irreparable harm or will suffer impending
irreparable harm, in other words, those facing permanent and severe
financial loss.
Second, the approach set forth in this rule, which is similar to
the implementation of the supplemental caps in previous fiscal years,
provides protections against adverse effects on U.S. workers that may
result from a cap increase, including, as in previous rules, requiring
employers seeking H-2B workers under the supplemental cap to engage in
additional recruitment efforts for U.S. workers.
In sum, this rule increases the numerical limitation by up to
64,716 additional H-2B visas for the entirety of FY 2025, but also
restricts the availability of those additional visas by prioritizing
only the most significant business needs, and limiting eligibility to
H-2B returning workers, unless the worker is a national of one of the
countries included in the 20,000 country-specific allocation that is
exempt from the returning worker limitation. This rule also distributes
the supplemental visas in several allocations to assist U.S. businesses
that need workers to begin work on different start dates. These
provisions are each described in turn below.
B. Numerical Increase and Allocations for Fiscal Year 2025
Making the Maximum Number of Visas Available
The increase of up to 64,716 visas will help address the urgent
needs of eligible employers for additional H-2B workers for those
employers with employment needs in fiscal year 2025.\75\ The
[[Page 95637]]
determination to make available up to 64,716 additional H-2B visas
reflects a balancing of a number of factors including: the demand for
H-2B visas during the first half of FY 2025 and expected demand for the
second half of FY 2025; current labor market conditions; the general
trend of increased demand for H-2B visas from FY 2017 to FY 2024; H-2B
returning worker data; the amount of time for employers to hire and
obtain H-2B workers in this fiscal year; and the objectives of the
Biden-Harris Administration to address the root causes of irregular
migration as outlined in E.O. 14010 and the L.A. Declaration. DHS
believes the numerical increase both addresses the needs of U.S.
businesses and, as explained in more detail below, furthers the foreign
policy interests of the United States.
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\75\ In contrast with section 214(g)(1) of the INA, 8 U.S.C.
1184(g)(1), which establishes a cap on the number of individuals who
may be issued visas or otherwise provided H-2B status (emphasis
added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10),
which imposes a first half of the fiscal year cap on H-2B issuance
with respect to the number of individuals who may be issued visas or
are accorded [H-2B] status'' (emphasis added), section 105 of the FY
2024 Omnibus only authorizes DHS to increase the number of available
H-2B visas. Accordingly, DHS will not permit individuals authorized
for H-2B status pursuant to an H-2B petition approved under section
105 of the FY 2024 Omnibus to change to H-2B status from another
nonimmigrant status. See INA section 248, 8 U.S.C. 1258; see also 8
CFR part 248. If a petitioner files a petition seeking H-2B workers
in accordance with this rule and requests a change of status on
behalf of someone in the United States, the change of status request
will be denied, but the petition will be adjudicated in accordance
with applicable DHS regulations. Any noncitizen authorized for H-2B
status under the approved petition would need to obtain the
necessary H-2B visa at a consular post abroad and then seek
admission to the United States in H-2B status at a port of entry.
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Section 105 of the FY 2024 Omnibus, as extended by Public Law 118-
83, sets the highest number of H-2B returning workers who were exempt
from the cap in certain previous years as the maximum limit for any
increase in the H-2B numerical limitation for FY 2025.\76\ Consistent
with the statute's reference to H-2B returning workers, in determining
the appropriate number by which to increase the H-2B numerical
limitation, the Secretary of Homeland Security focused on the number of
visas allocated to such workers in years in which Congress enacted
returning worker exemptions from the H-2B numerical limitation. During
each of the years the returning worker provision was in force, U.S.
employers' standard business needs for H-2B workers exceeded the
statutory 66,000 cap. The highest number of H-2B returning workers
approved was 64,716 in FY 2007. In setting the number of additional H-
2B visas to be made available for FY 2025, DHS considered this number,
overall indications of increased need, and the availability of U.S.
workers, as discussed below. On the basis of these considerations, DHS
determined that it is appropriate to make available up to 64,716
additional visas, which is the maximum allowed, under the FY 2025
supplemental cap authority. The Secretary further considered the
objectives the Biden-Harris Administration to address the root causes
of irregular migration consistent with the E.O. 14010 and the L.A.
Declaration, and managing migration through expansion of lawful
pathways while increasing the consequences for those who do not use
these pathways and unlawfully enter the United States.\77\ Accordingly,
the Secretary determined that it is appropriate to reserve up to 20,000
of the up to 64,716 additional visas and exempt this number from the
returning worker requirement for nationals of El Salvador, Guatemala,
Honduras, Haiti, Colombia, Ecuador, or Costa Rica.
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\76\ During fiscal years 2005 to 2007, and 2016, Congress
enacted ``returning worker'' exemptions to the H-2B visa cap,
allowing workers who were counted against the H-2B cap in one of the
three preceding fiscal years not to be counted against the upcoming
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005,
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17,
2006); Consolidated Appropriations Act of 2016, Public Law 114-113,
Sec. 565 (Dec. 18, 2015).
\77\ See Circumvention of Lawful Pathways, 88 FR 31314 (May 16,
2023); Securing the Border, 89 FR 81156, (Oct. 7, 2025).
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In past years, the number of beneficiaries covered by H-2B
petitions filed exceeded the number of additional visas allocated under
recent supplemental caps. In FY 2018, USCIS received petitions for
approximately 29,000 beneficiaries during the first 5 business days of
filing for the 15,000 supplemental cap. USCIS therefore conducted a
lottery on June 7, 2018, to randomly select petitions that it would
accept under the supplemental cap. Of the selected petitions, USCIS
issued approvals for 15,672 beneficiaries.\78\ In FY 2019, USCIS
received sufficient petitions for the 30,000 supplemental cap on June
5, 2019, but did not conduct a lottery to randomly select petitions
that it would accept under the supplemental cap. Of the petitions
received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021,
USCIS received a sufficient number of petitions for the 22,000
supplemental cap on August 13, 2021, including a significant number for
workers from Northern Central American countries.\79\ Of the petitions
received, USCIS issued approvals for 30,707 beneficiaries, including
approvals for 6,805 beneficiaries under the allocation for the
nationals of the Northern Central American countries.\80\
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\78\ USCIS recognizes it may have received petitions for more
than 29,000 supplemental H-2B workers if the cap had not been
exceeded within the first 5 days of opening. However, DHS estimates
that not all of the 29,000 workers requested under the FY 2018
supplemental cap would have been approved and/or issued visas. For
instance, although DHS approved petitions for 15,672 beneficiaries
under the FY 2018 cap increase, the Department of State data shows
that as of January 15, 2019, it issued only 12,243 visas under that
cap increase. Similarly, DHS approved petitions for 12,294
beneficiaries under the FY 2017 cap increase, but the Department of
State data shows that it issued only 9,160 visas.
\79\ On June 3, 2021, USCIS announced that it had received
enough petitions to reach the cap for the additional 16,000 H-2B
visas made available for returning workers only, but that it would
continue accepting petitions for the additional 6,000 visas allotted
for nationals of the Northern Central American countries. See USCIS,
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021,
<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).
\80\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. The number
of approved workers exceeded the number of additional visas
authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for
the possibility that some approved workers would either not seek a
visa or admission, would not be issued a visa, or would not be
admitted to the United States. Unlike these past supplemental cap
TFRs, petitions filed under the first half FY 2022 TFR did not
exceed the additional allocation of 20,000 H-2B visas provided by
that rule.
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In FY 2022, DHS made the supplemental cap available twice, once in
January 2022 and again in May 2022. Under the earlier FY 2022
supplemental cap for petitions with start dates in the first half of FY
2022, USCIS had issued approvals for 17,381 beneficiaries, including
approvals for 3,231 beneficiaries under the allocation for nationals of
the Northern Central American countries and Haiti.\81\ For the second
half of FY 2022, within the first five business days of filing, USCIS
received petitions for more beneficiaries than the additional 23,500
supplemental visas made available for returning workers, thus
necessitating a random selection of petitions to meet the returning
worker allotment.\82\ Of the
[[Page 95638]]
petitions received for the second half of FY 2022, USCIS issued
approvals for 43,798 beneficiaries, including approvals for 12,318
beneficiaries under the allocation for nationals of the Northern
Central American countries and Haiti.\83\
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\81\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.
\82\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for Second Half of FY 2022, <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).
\83\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, C3
Consolidated, queried 10/2023, TRK 13122, FY 2023 H-2B Northern
Central American Cap Approvals by Validity Start Date Month. The
number of approved workers exceeded the number of additional visas
authorized for the second half of FY 2022 to allow for the
possibility that some approved workers would either not seek a visa
or admission, would not be issued a visa, or would not be admitted
to the United States.
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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.\84\ Of the petitions for supplemental
H-2B visas in FY 2023, USCIS issued approvals for 78,302 beneficiaries,
including 7,157 beneficiaries under the allocation of 10,000 visas made
available for returning workers for the late second half of the fiscal
year and 23,832 beneficiaries under the allocation of 20,000 visas
reserved for nationals of the Northern Central American countries and
Haiti.\85\
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\84\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2023, <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).
\85\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3,
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa
Issuance Report September 30, 2023. The number of approved workers
exceeded the number of additional visas authorized for FY 2023 to
allow for the possibility that some approved workers would either
not seek a visa or admission, would not be issued a visa, or would
not be admitted to the United States.
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In FY 2024, USCIS received a sufficient number of H-2B petitions to
reach the first half of the FY 2024 fiscal year statutory cap on
October 11, 2023.\86\ USCIS received enough petitions to reach the cap
for the additional 20,716 H-2B visas made available for returning
workers for the first half of fiscal year by January 9, 2024, and USCIS
received enough petitions to reach the cap for the additional 19,000 H-
2B visas made available for returning workers for the early second half
of fiscal year by April 17, 2024.\87\ Of the petitions for supplemental
H-2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries,
including 6,314 beneficiaries under the allocation of 5,000 visas made
available for returning workers for the late second half of the fiscal
year and 24,475 beneficiaries under the allocation of 20,000 visas
reserved for nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica.\88\
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\86\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY
2024, <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).
\87\ See USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024</a> (Jan. 12, 2024); USCIS, Cap Reached for
Additional Returning Worker H-2B Visas for the Early Second Half of
FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024</a> (Apr. 18, 2023).
\88\ See Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
The number of approved workers exceeded the number of additional
visas authorized for FY 2024 to allow for the possibility that some
approved workers would either not seek a visa or admission, would
not be issued a visa, or would not be admitted to the United States.
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Data for the first half of FY 2025 clearly indicate an immediate
need for additional supplemental H-2B visas for employers with start
dates on or before March 31, 2025. USCIS received a sufficient number
of H-2B petitions to reach the first half of the FY 2025 fiscal year
statutory cap on September 18, 2024.\89\ Further, the date on which
USCIS received sufficient H-2B petitions to reach the first half
semiannual statutory cap has generally trended earlier in recent years.
In fiscal years 2017 through 2025, USCIS received a sufficient number
of H-2B petitions to reach or exceed the relevant first half statutory
cap on January 10, 2017, December 15, 2017, December 6, 2018, November
15, 2019, November 16, 2020, September 30, 2021, September 12, 2022,
October 11, 2023, and September 18, 2024, respectively.\90\
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\89\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024).
\90\ 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>; USCIS, USCIS Reaches H-
2B Cap for First Half of Fiscal Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024).
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Through the third quarter of FY 2024, approximately 90 percent of
H-2B filings were for positions within just six sectors.\91\ NAICS 56
(Administrative and Support and Waste Management and Remediation
Services) accounted for 38.57% of filings, NAICS 71 (Arts,
Entertainment, and Recreation) accounted for 11.73%, NAICS 72
(Accommodation and Food Services) accounted for 23.14%, NAICS 23,
(Construction) accounted for 11.91%, NAICS 31 (Animal Food
Manufacturing) accounted for 2.01% of filings, and NAICS 11
(Agriculture, Forestry, Fishing and Hunting) accounted for 2.39% of
filings.
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\91\ USCIS analysis of DOL OLFC Performance data.
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Relevant unemployment data also supports the need for additional
supplemental H-2B visas. Within these industries, DOL data show higher
labor demand relative to recent history. More specifically, industry
unemployment data from the Bureau of Labor Statistics (BLS) show that
the industry unemployment rate for most of these industries (except for
NAICS 11, which accounts for the lowest percentage of filings among
these industries) is lower than the long term (10-year) average.\92\
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\92\ USCIS has elected to use a long-term average as a reference
point so as to minimize the impact that the Covid-19 pandemic has on
the comparison of the industry employment rate. All data are taken
from the respective BLS ``Industry at a Glance'' pages. See <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>, <a href="https://www.bls.gov/iag/tgs/iag311.htm">https://www.bls.gov/iag/tgs/iag311.htm</a>. All data accessed
September 23, 2024.
[[Page 95639]]
10-Year Average of Industry Unemployment Rate
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NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.61............................................................... 6.13 4.82 7.96 7.90 5.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.
August 2024 Industry Unemployment Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
NAICS 11 NAICS 23 NAICS 56 * NAICS 71 NAICS 72 NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.3............................................................... 3.2 4.2 4.1 5.9 3.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.
In August 2024, the industry unemployment for NAICS 56 \93\ was 4.2
percent, which is 0.62 points lower than its 10-year average of 4.82
percent, while the industry unemployment rate for NAICS 71 was 4.1
percent which is 3.86 points lower than its 10-year average of 7.96
percent. The August 2024 industry unemployment rate for NAICS 72 (5.9
percent) was 2 points lower than its 10-year average of 7.9 percent
while the rate for NAICS 23 (3.2 percent) was 2.93 points lower than
its 10-year average of 6.13 percent. The industry unemployment rate for
NAICS 11 (11.3 percent) was 3.69 points higher than its 10-year average
of 7.61 percent, making it the only industry among the top 5 H-2B
industries that has a higher industry unemployment rate relative to its
historical average. The relatively low unemployment rate across most of
these industries is a clear indication of a strong labor demand within
these industries. The Departments believe that the supplemental
allocation of H-2B visas described in this temporary final rule will
help to meet demand in these industries.
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\93\ Data presented here are for the Professional and Business
Services Supersector, which is comprised of NAICS 54, NAICS 55 and
NAICS 56. See <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 23, 2024.
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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 4.2 percent in August 2024.\94\ Historically, the availability of
H-2B visas addressed a need in the labor market during periods of lower
unemployment. Chart 1 \95\ shows that the H-2B visa allocations for
Fiscal Year 2024 \96\ made by this rule are slightly higher than the
historical trend but are generally consistent with what the current
unemployment rate alone would predict. Additionally, when the
unemployment rate is below 6 percent, there is greater variance in the
total number of H-2B visas issued in a given year; for example, in
years 2022, 2007 and 2006, when the unemployment rate ranged from
approximately 3.5 percent to 4.6 percent, the total number of H-2B
visas issued were comparable to what is planned for 2024. The data
presented in chart 1 is meant to provide additional context and to
demonstrate that the total allocation of H-2B visas is reasonable given
labor market conditions.
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\94\ See DOL, BLS, The Employment Situation--August 2024,
<a href="https://www.bls.gov/news.release/archives/empsit_10042024.pdf">https://www.bls.gov/news.release/archives/empsit_10042024.pdf</a> (Sept.
6, 2024).
\95\ Annual data presented here is on a fiscal year basis.
Fiscal year averages were calculated by taking the average of the
monthly unemployment rate for the months in each respective fiscal
year (October-September). Data for fiscal year 2024 are for October
2023-August 2024. Unemployment rate for 2024 is based on median
Federal Reserve projections. See <a href="https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20240918.pdf">https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20240918.pdf</a> (accessed September
23, 2024).
\96\ The number of estimated visas issued for Fiscal Year 2024
is based on the sum of the fiscal year statutory cap for H-2B
workers (66,000) and the supplemental allocation for this rule
(64,716), for a total H-2B visa allocation of 130,716.
[GRAPHIC] [TIFF OMITTED] TR02DE24.003
Given the level of demand for H-2B workers, the continued economic
recovery, and continued job growth, DHS believes it is appropriate to
release the maximum amount of additional visas at this time.
[[Page 95640]]
Making allocations for all of FY 2025 in a single rule.
As in FY 2023 and FY 2024, DHS believes that it is appropriate to
issue a single rule for the entire fiscal year for multiple
reasons.\97\ First, DHS expects that there is demand for supplemental
visas in the first half of FY 2025. As previously discussed, USCIS
already received enough petitions to reach the congressionally mandated
cap on H-2B visas for temporary nonagricultural workers for the first
half of FY 2025.\98\ Further, the date on which USCIS received
sufficient H-2B petitions to reach the first half semiannual statutory
caps has generally trended earlier in recent years. In fiscal years
2017 through 2025, USCIS received a sufficient number of H-2B petitions
to reach or exceed the relevant first half statutory cap on January 10,
2017, December 15, 2017, December 6, 2018, November 15, 2019, November
16, 2020, September 30, 2021, September 12, 2022, October 11, 2023, and
September 18, 2024, respectively.\99\
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\97\ Further, DHS believes that 64,716 is an appropriate number
of supplemental visas to make available, as this rule will cover
both the first and second half of FY 2025.
\98\ USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year
2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024).
\99\ 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); USCIS,
USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024).
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Second, based on relevant data, DHS expects that USCIS will reach
the statutory cap for the second half of FY 2025 and that there will
accordingly be demand for supplemental visas in the second half of FY
2025. For example, in fiscal years 2017 through 2023, USCIS received a
sufficient number of H-2B petitions to reach or exceed the relevant
second half statutory cap on March 13, 2017, February 27, 2018,
February 19, 2019, February 18, 2020, February 12, 2021, February 25,
2022, February 27, 2023, and March 7, 2024.\100\ In addition, DOL data
shows consistently high demand in recent years, particularly during the
second half of the fiscal year. In recent years, DOL has received an
increasing number of TLC applications for an increasing number of H-2B
workers with April 1 start dates: DOL received 4,500 applications on
January 1, 2018, covering more than 81,600 worker positions; DOL
received 5,276 applications by January 8, 2019, covering more than
96,400 worker positions; DOL received 5,677 applications during the
initial three-day filing window in 2020 covering 99,362 worker
positions; DOL received 5,377 applications during the initial three-day
filing window in 2021 covering 96,641 worker positions; DOL received
7,875 applications by January 4, 2022, covering 136,555 worker
positions; DOL received 8,693 applications during the initial three-day
filing window in 2023, covering 142,796 worker positions; and DOL
received 8,817 H-2B applications by January 8, 2024, covering 138,847
worker positions.\101\
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\100\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year
2017, <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);
USCIS, USCIS Reaches H-2B Cap for Second Half of FY 2024 and
Announces Filing Dates for the Second Half of FY 2024 Supplemental
Visas, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of</a> (Mar. 8, 2024).
\101\ 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 2025 benefits the regulated public by giving more notice and
certainty of what will become available for the second half. As noted
in comments received in response to the FY 2023 TFR, this approach
allows businesses to better plan ahead for their seasonal workforce
needs.\102\
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\102\ See the docket for Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022) for
access to these comments.
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Filing Deadline of September 15, 2025 for All Petitions
The authority to approve H-2B petitions under this FY 2025
supplemental cap expires at the end of the fiscal year, i.e., the end
of September 30, 2025. Therefore, DHS is requiring employers requesting
any supplemental visas under this TFR, regardless of the employment
start date(s), to properly file their H-2B petition with USCIS no later
than September 15, 2025. USCIS will reject any cases that are received
after September 15, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Because DHS
believes that 15 days from the end of the fiscal year is generally the
minimum time needed for petitions to be adjudicated, DHS has set
September 15, 2025 as the last day to file in order to provide USCIS
with adequate time for petition processing before the expiration of the
authority at the end of the fiscal year, although USCIS cannot
guarantee the time period will be sufficient for adjudication of
petitions in all cases.
In addition, the filing deadline will be earlier than September 15,
2025 if the applicable numerical limit for the relevant supplemental
visa allocation is reached before that date. See new 8 CFR
214.2(h)(6)(xv)(C). In such a case, USCIS will also reject any cases
that are received after the applicable numerical limitation has been
reached.
Returning Worker Allocation for the First Half of FY 2025 (October 1,
2024 Through March 31, 2025)
For the first half of FY 2025, DHS will make 20,716 visas
immediately available upon publication of this TFR that are limited to
returning workers, in other words, those workers who were issued H-2B
visas or held H-2B status in fiscal years 2022, 2023, or 2024,
regardless of country of nationality. These petitions must request a
date of need starting on or before March 31, 2025. See new 8 CFR
214.2(h)(6)(xv)(C).
DHS anticipates that employers will use all of the first half
allocation for returning workers, given how quickly USCIS reached the
FY 2025 first half statutory cap and the first half supplemental
allocation for FY 2024. As noted previously, USCIS received enough H-2B
petitions to reach the FY 2025 first half statutory cap on
[[Page 95641]]
September 18, 2024.\103\ Under the FY 2024 TFR, which published on
November 17, 2023, USCIS received enough petitions to reach the 20,716
first half allocation by January 9, 2024.\104\ Similarly, as with the
FY 2024 TFR, the relatively early publication of this rule will provide
interested employers more time to prepare their petitions, increasing
the likelihood that the first half allocation for returning workers
will be used.\105\ To the extent that the first half allocation for
returning workers is used, this TFR may provide affected employers with
some relief by making available a separate allocation of visas for
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica, which will be available for the entirety of FY
2025.
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\103\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal
Year 2025, <a href="https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025">https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025</a> (Sept. 19, 2024).
\104\ USCIS, Cap Reached for Additional Returning Worker H-2B
Visas for the First Half of FY 2024, <a href="https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024">https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024</a> (Jan. 12, 2023).
\105\ Compare the publication dates of the FY 2024 TFR and this
rule with December 15, 2022, the date the FY 2023 TFR was first
published, and January 28, 2022, the date the temporary final rule
making available additional H-2B visas for the first half of FY 2022
was first published.
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As in previous years, in the event that USCIS approves insufficient
petitions to use all 20,716 visas, the unused numbers will not carry
over for the second half allocation because DHS believes that the
operational burdens of calculating and administering a process to carry
over unused visas, combined with the potential confusion for the public
and adjudicators that could result from having different filing cutoff
dates for the different allocations, would outweigh the benefits. As
explained in the FY 2024 TFR, in order to make any unused first half
visas available for employers with second half start dates, DHS would
need to set a filing cutoff date prior to September 15, 2025 for the
first half allocation, upon which it would stop accepting such
petitions and make a calculation of how many visas should be re-
released for second half employers. Calculating visas to be re-released
could also entail an additional cap allocation, additional
announcements to the public, and potentially an additional lottery, all
of which would significantly increase operational burdens. In addition
to increasing operational burdens, DHS believes that the opening,
closing, and potential re-opening of this allocation (and/or other cap
allocations) could cause confusion for the public and adjudicators.
Furthermore, not setting a filing cutoff date prior to September 15,
2025 will maximize employers' opportunity to avail themselves of the
first half allocation. While DHS acknowledges that this approach could
potentially result in some employers with a demonstrated business need
in the second half of the fiscal year losing the opportunity to receive
a supplemental visa, it is DHS's expectation that, as occurred in FY
2024, there will be sufficient demand from employers with first half
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1,
2025, Through May 14, 2025)
For the second half of FY 2025, DHS will initially make available
19,000 visas limited to returning workers, in other words, those
workers who were issued H-2B visas or held H-2B status in fiscal years
2022, 2023, or 2024, regardless of country of nationality. These
petitions must request a date of need starting on or after April 1,
2025, through and including May 14, 2025. Limiting this allocation to
employers with employment start dates on or before May 14, 2025
reflects DHS's intentions to give employers with needs later in the
season a better opportunity to access the H-2B program, and to prevent
employers from petitioning under both of the second-half allocations to
fill the same need.
To mitigate complications from concurrent administration of the
statutory second half cap, these petitions must be filed no earlier
than 15 days after the second half statutory cap is reached, a date
that USCIS will identify in a public announcement.\106\ When USCIS
announces that it has received a sufficient number of petitions to
reach the second half statutory cap, it will also announce the earliest
possible filing date (15 days after the second half statutory cap) for
this allocation. Concurrent administration of the second half statutory
cap with the second half supplemental cap would pose significant
operational challenges, particularly considering the volume of H-2B
petitions USCIS would have to process at the same time. A cushion of 15
days after the second half statutory cap is reached should provide
USCIS with sufficient time to process H-2B petitions filed under the
second half statutory cap and prepare to process petitions under this
supplemental cap, and should also provide petitioners not selected
under the statutory cap with enough time to refile under this
supplemental cap. Furthermore, making this allocation available after
the second half statutory cap has been reached builds in flexibility to
account for variations in the timing of that cap being reached. DHS
cannot predict with certainty when the FY 2025 second half statutory
cap will be reached (or if it will be reached), and therefore, did not
specify a date for when to first allow petitioners to file for FY 2025
second half supplemental visas. In the event that the statutory second
half FY 2025 cap is not reached, the supplemental allocation for
returning workers for the second half of FY 2025 will not become
available.
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\106\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(2), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of
this section requesting employment start dates from April 1, 2025 to
May 14, 2025 that are received earlier than 15 days after the INA
section 214(g) cap for the second half FY 2025 has been met.
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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 as
occurred in FY 2024 on April 17, 2024. However, in the event that USCIS
approves insufficient petitions to use all 19,000 visas, the unused
numbers will not carry over for petition approvals for employment start
dates beginning on or after May 15, 2025. DHS chose to limit these
19,000 visas to start dates on or before May 14, 2025, without the
ability for these visas to be carried over into the next allocation. As
previously stated, DHS believes that the operational burdens of
calculating and administering a process to carry over unused visas,
combined with the potential confusion for the public and adjudicators
that could result from having different filing cutoff dates for the
different allocations, would outweigh the benefits. In order to make
any unused visas from this allocation available for late second half of
FY 2025 petitions, DHS would need to set a filing cutoff date that
would be after the cutoff for the first half allocation but prior to
any cutoff for late second half of FY 2025 petitions and prior to
September 15, 2025, upon which it would stop accepting petitions and
make a calculation of how many visas should be re-released for late
second half employers. Calculating visas to be re-released could also
entail an additional cap allocation, additional announcements to the
public, and potentially an additional lottery, all of which would
significantly increase operational burdens. In addition to increasing
operational burdens, DHS believes that the opening, closing, and
potential re-opening of this allocation
[[Page 95642]]
(and/or other cap allocations) could cause confusion for the public and
adjudicators. Furthermore, not setting a filing cutoff date prior to
September 15, 2025, will maximize employers' opportunity to avail
themselves of the early second half allocation. While DHS acknowledges
that this approach could result in employers in the late second half
losing the opportunity to receive a supplemental visa, it is DHS's
expectation that there will be sufficient demand from employers to use
this entire allocation. As anticipated in the FY 2024 TFR, employers
did, in fact, use the entire early second half of FY 2024
allocation.\107\
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\107\ USCIS, Temporary Increase in H-2B Nonimmigrant Visas for
FY 2024, <a href="https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2024">https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2024</a> (last visited Aug. 20, 2024).
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Additional Returning Worker Allocation for the Late Second Half (on or
After May 15, 2025, Through September 30, 2025)
For the late second half of FY 2025, DHS will make available an
additional allocation of 5,000 visas limited to returning workers, in
other words, those workers who were issued H-2B visas or held H-2B
status in fiscal years 2022, 2023, or 2024, regardless of country of
nationality. To assist employers needing workers to begin work during
the late spring and summer seasons in the fiscal year (also referred to
as ``late season employers''), these petitions must request a date of
need starting on or after May 15, 2025. These petitions must be filed
no sooner than 45 days after the second half statutory cap is reached,
a date that USCIS will identify in a public announcement.\108\ When
USCIS announces that it has received a sufficient number of petitions
to reach the second half statutory cap, it will also announce the
earliest possible filing date (45 days after the second half statutory
cap is reached) for this allocation. The cushion of 45 days after the
second half statutory cap is reached is intended to provide USCIS with
sufficient time to process H-2B petitions filed under the second half
statutory cap that remain pending, as well as to process the expected
influx of petitions under the early second half supplemental cap that
will begin 15 days after the second half statutory cap is reached.\109\
By allowing USCIS to manage its workload in this way, the 45-day period
will help USCIS prepare to process petitions under the late second half
supplemental cap and mitigate the complications from concurrent
administration of these various caps.
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\108\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(3), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii)
of this section requesting employment start dates from May 15, 2025
to September 30, 2025, that are received earlier than 45 days after
the INA section 214(g) cap for the second half FY 2025 has been met.
\109\ While petitioners may continue to submit petitions under
the early second half supplemental cap through September 15, DHS
expects the heaviest filing to occur soon after the visas become
available. This expectation is based on historical filing patterns,
as well as an assumption that employers will try act quickly to
secure workers consistent with their dates of need.
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This is the third supplemental cap reserved for late season
employers that need workers to begin work during the late spring and
summer seasons in the fiscal year.\110\ By regulation, employers may
only apply for a TLC 75 to 90 days before the start date of need,\111\
and, as such, employers needing workers to begin work on or after May
15 are not eligible to file TLC applications until on or after February
15. As noted in the FY 2023 and FY 2024 TFRs, in past years, because of
this requirement and the strong demand for H-2B workers in recent years
to begin work on the earliest employment start date (i.e., April 1),
late season employers were unable to receive cap-subject H-2B workers
because they did not have an opportunity to file visa petitions for
cap-subject H-2B workers before the second semiannual statutory cap was
reached. Since, based on recent years' data,\112\ USCIS has typically
received sufficient H-2B petitions to meet the statutory cap for the
second half of the fiscal year around mid-February to early March, many
of these late season employers may have decided to not file a TLC
application.
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\110\ See Exercise of Time-Limited Authority To Increase the
Numerical Limitation for FY 2023 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022);
Exercise of Time-Limited Authority To Increase the Numerical
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H-2B Workers Seeking To
Change Employers, 88 FR 2023 (Nov. 17, 2023).
\111\ See 20 CFR 655.15(b).
\112\ As noted above, in fiscal years 2017 through 2024, USCIS
received a sufficient number of H-2B petitions to reach or exceed
the relevant second half statutory cap on March 13, 2017, February
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021,
February 25, 2022, February 27, 2023, and March 7, 2024,
respectively.
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DHS, in consultation with DOL, has again determined that it is
appropriate to make a separate allocation available for late season
employers whose late season labor needs may have put them at a
disadvantage in accessing H-2B workers in recent years. While there was
significant demand for the late second half allocation in FY 2024, the
full allocation of 5,000 visas was not reached. As of September 30,
2024, DOS has issued 3,906 towards the late second half allocation,
while USCIS approved 6,314 beneficiaries towards the late second half
allocation.\113\ Therefore, in order to meet the employer demand in the
late second half of FY 2025, while still maximizing the overall usage
of supplemental visas, DHS has determined it is appropriate to again
limit the late second half allocation for FY 2025 to up to 5,000 visas.
DHS, in consultation with DOL, has determined that authorizing two
allocations for the second half of FY 2025 based on an employer's start
date of need, in addition to requiring that the employer's start date
of need on the Form I-129 match the start date of need on the approved
TLC,\114\ will provide employers with late season needs a better
opportunity to receive H-2B workers to avoid irreparable harm.
Specifically, employers with early season needs that need work to begin
on or after April 1 will have the opportunity to file H-2B petitions
under both the statutory cap and the first allocation of the
supplemental cap, while employers with late season needs do not have
that opportunity.
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\113\ Department of Homeland Security, U.S. Citizenship and
Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
\114\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must
state an employment start date that is the same as the date of need
stated on the approved temporary labor certification'').
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To mitigate complications from concurrent administration of the
additional returning worker allocation for the second half of the
fiscal year for late season employers and either the statutory second
half cap or the initial supplemental allocation for returning workers
for the second half of the fiscal year (or both), these petitions must
be filed no earlier than 45 days after the second half statutory cap is
reached. When USCIS announces that it has received a sufficient number
of petitions to reach the second half statutory cap, it will also
announce the earliest possible filing date (45 days after the second
half statutory cap is reached) for this allocation. In the event that
the statutory second half FY 2025 cap is not reached, this supplemental
allocation for late season filers workers will not become available.
Furthermore, in the event that USCIS does not approve sufficient
petitions to use all 5,000 visas for late season employers, DHS will
not carry over the unused numbers for petition approvals for any other
allocation. For example, any unused
[[Page 95643]]
numbers would not carry over to petitions under the country-specific
allocation. As noted above, DHS believes the operational burdens of
calculating and administering a process to carry over unused visas
would outweigh the benefits because of the potential confusion for the
public and adjudicators that could result from having different filing
cutoff dates for the different allocations. A process to carry over
unused visas could also entail an additional cap allocation, additional
announcements to the public, and potentially an additional lottery, all
of which significantly increase operational burdens and may add further
confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica
As in FY 2024, DHS will make available 20,000 additional visas that
are reserved for nationals of El Salvador, Guatemala, Honduras, Haiti,
Colombia, Ecuador, and Costa Rica, as attested by the petitioner
(regardless of whether such nationals are returning workers). These
20,000 visas will be available for petitioners requesting an employment
start date before the end of FY 2025, up to and including September 30,
2025. As discussed in the Legal Framework section as well as in the
section addressing the irreparable harm standard, DHS has a broad
delegation from Congress to administer and enforce U.S. immigration
laws and issue regulations regarding the same, as well as broad
discretion over the admission of nonimmigrants, and the adjudication of
nonimmigrant petitions, after consultation with other agencies,
including DOL. See INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C.
1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary
enactment authorizing the Secretary of DHS to increase the number of H-
2B visas,\115\ Congress delegated to the Secretary of DHS, after
consultation with the Secretary of Labor, the discretion to establish a
framework for determining that the needs of American businesses cannot
be satisfied with the existing workforce and the conditions under which
to authorize additional visas to further the purpose of the enactment.
In the most recent, as well as each prior annual enactment, Congress
consistently used the word ``may'' when describing the Secretary's
authority, and the use of the word ``may'' indicates a grant of
discretion, absent contrary legislative intent, structure and purpose
of the statute.\116\ As in prior years, the Departments have determined
that the temporary enactment together with DHS's broad authority over
immigration provide the Secretary of DHS with discretion to implement
the temporary enactment in a manner that addresses two complimentary
policy objectives: the need to provide access to H-2B workers to
American businesses, and the objective to provide lawful pathways for
able, willing, and qualified workers from designated countries to come
temporarily to the United States and perform nonagricultural labor. In
issuing this TFR, and as in prior years, the Departments are
implementing appropriate policy choices in exercising the discretionary
authority provided by Congress.\117\ This policy choice was previously
ratified by Congress \118\--legislative history of the FY2023 Omnibus
indicates that Congress was aware of and approved of the country-
specific allocations.\119\ While prior fiscal years' country-specific
allocations have not been reached, the number has been trending
upwards, and DHS anticipates a higher likelihood that the 20,000 visas
allocated for certain nationals by this rule will be reached by the end
of this fiscal year. As discussed above, DHS observed robust employer
interest in response to the FY 2021 H-2B supplemental visa allocation
for Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 and
FY 2023 supplemental visa allocations for Salvadoran, Guatemalan,
Honduran, and Haitian nationals, and the data show a trend of increased
participation by Haitian, Salvadoran, Guatemalan, and Honduran workers
in the H-2B program \120\ In FY 2024, the inclusion of nationals from
the additional countries of Colombia, Ecuador, and Costa Rica increased
the likelihood that the 20,000 visas would be used and the data show a
continued trend of increased usage of the country-specific
allocation.\121\
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\115\ Public Law 118-47, Division G, Title I, sec. 105 states:
``Notwithstanding the numerical limitation set forth in section
214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C.
1184(g)(1)(B)), the Secretary of Homeland Security, after
consultation with the Secretary of Labor, and upon the determination
that the needs of United States businesses cannot be satisfied
during fiscal year 2024 with United States workers who are willing,
qualified, and able to perform temporary nonagricultural labor, may
increase the total number of aliens who may receive a visa under
section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)) in such fiscal year by not more than the
highest number of H-2B nonimmigrants who participated in the H-2B
returning worker program in any fiscal year in which returning
workers were exempt from such numerical limitation.''
\116\ See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983)
(The word ``may,'' when used in a statute, usually implies some
degree of discretion unless there is indication of contrary
legislative intent, or an obvious contrary inference from the
structure and purpose of the statute.).
\117\ See Loper Bright Enterprises, 144 S. Ct. at 2263 (2024).
\118\ Lorillard v. Pons, 434 U.S. 575, 581 (1978) (``Congress is
presumed to be aware of an administrative or judicial interpretation
of a statute and to adopt that interpretation when it reenacts a
statute without change.'').
\119\ See S. Rep. No. 118-85, at p. 104 (Jul. 27, 2023)
(``Further, the Committee supports the Departments efforts to set
aside visas for certain nationalities, including nationals from El
Salvador, Guatemala, Honduras, and Haiti, regardless of whether they
are returning workers.'').
\120\ As previously noted, USCIS approved petitions on behalf of
6,805 beneficiaries under the FY 2021 country-specific allocation,
3,231 beneficiaries under the FY 2022 first half country-specific
supplemental allocation, 12,318 beneficiaries for the second half
country-specific allocation of the fiscal year FY 2022, and 23,832
beneficiaries under the FY 2023 country-specific allocation. See
DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS
Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance
Report September 30, 2023.
\121\ As of October 28, 2024, USCIS approved petitions on behalf
of 24,475 beneficiaries under the FY 2024 country-specific
allocation. See Department of Homeland Security, U.S. Citizenship
and Immigration Services, Office of Performance and Quality, ELIS,
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
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Employers requesting workers under the country-specific allocation
with an employment start date in the first half of FY 2025 may file
their petitions immediately after the publication of this TFR.
Employers requesting workers under the country-specific allocation with
an employment start date in the second half of FY 2025 must file their
petitions no earlier than 15 days after the second half statutory cap
is reached. The requirement to file the petition no earlier than 15
days after the second half statutory cap is reached is consistent with
the approach taken for the initial returning worker allocation for the
early second half of the fiscal year, and is in line with the
Departments' longstanding interpretation of their authority to make
available supplemental (or in other words, additional) visas contingent
upon the exhaustion of visas under the statutory cap.\122\
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\122\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(4), USCIS will
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of
this section that have a date of need on or after April 1, 2025 and
are received earlier than 15 days after the INA section 214(g) cap
for the second half of FY 2025 is met.
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As in FY 2023 and FY 2024, the Departments have decided not to
further divide the 20,000 visas for workers from specific countries
into separate allocations for the first and second half of the fiscal
year. The Departments intend for this additional flexibility of
allowing any employment start date within FY 2025 to encourage U.S.
employers that are suffering irreparable harm or will suffer impending
[[Page 95644]]
irreparable harm to seek out workers from such countries, and, at the
same time, increase interest among nationals of the Northern Central
American countries, Haiti, Colombia, Ecuador, and Costa Rica seeking a
legal pathway for temporary employment in the United States. While this
approach could potentially result in employers with start dates in the
first half of FY 2025 using all 20,000 visas for nationals of the
specified countries, and consequently, employers with start dates in
the second half of FY 2025 losing the opportunity to utilize this
particular allocation, DHS believes that the benefits of increasing the
flexibility of this allocation outweighs the potential risk. Moreover,
employers with start dates in the second half of FY 2025 seeking to
employ nationals under the country-specific allocation may request a
visa under one of the two second half supplemental allocations which
are available for returning workers regardless of country of
nationality.
In the event that USCIS does not approve sufficient petitions to
use all 20,000 visas under the country-specific allocation by the end
of FY 2025, DHS will not carry over the unused numbers for petition
approvals for any other allocation. For example, any unused numbers
would not carry over to petitions for returning workers with employment
start dates in the second half of FY 2025. As noted above, DHS believes
the operational burdens of calculating and administering a process to
carry over unused visas would outweigh the benefits because of the
potential confusion for the public and adjudicators that could result
from having different filing cutoff dates for the different
allocations. A process to carry over unused visas could also entail an
additional cap allocation, additional announcements to the public, and
potentially an additional lottery, all of which significantly increase
operational burdens and may add further confusion to the public and
adjudicators. Further, this single filing cutoff approach provides
employers with incentive and more time to petition for, and bring in,
workers from El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, and Costa Rica to meet employer needs, consistent with the
administration's efforts and outreach to promote and improve safety,
security, and economic stability in these countries.
Process if Cap Allocations Are Reached
Finally, recognizing the high demand for H-2B visas, it is
plausible that the additional H-2B supplemental allocations provided in
this rule will be reached prior to September 15, 2025. Specifically,
the following scenarios may still occur:
<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, 2024, through March 31, 2025, will be
reached before September 15, 2025;
<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, 2025, through May 14, 2025, will be
reached before September 15, 2025;
<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, 2025, through September 30, 2025, will be
reached before September 15, 2025; 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 15, 2025.
Under this rule, new 8 CFR 214.2(h)(6)(xv)(D) reaffirms the
existing processes that are in place when H-2B numerical limitations
under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or
(g)(10), are reached,\123\ as applicable to each of the scenarios
described above that involve numerical limitations of the supplemental
cap. Specifically, for each of the scenarios mentioned above, DHS will
monitor petitions received, and make projections of the number of
petitions necessary to achieve the projected numerical limit of
approvals. USCIS will also notify the public of the dates that USCIS
has received the necessary number of petitions (the ``final receipt
dates'') for each of these scenarios. The day the public is notified
will not control the final receipt dates. Moreover, USCIS may randomly
select, via computer-generated selection, from among the petitions
received on the final receipt date the remaining number of petitions
deemed necessary to generate the numerical limit of approvals for each
of the scenarios involving numerical limitations to the supplemental
cap. USCIS may, but will not necessarily, conduct a lottery if: the
20,716 supplemental cap visas limited to returning workers that will be
immediately available for employers with dates of need on or after
October 1, 2024, through March 31, 2025, is reached before September
15, 2025; the 19,000 supplemental cap visas limited to returning
workers that will be available for employers with dates of need on or
after April 1, 2025, through May 14, 2025, is reached before September
15, 2025; the 5,000 supplemental cap visas limited to returning workers
that will be available for late season employers with dates of need on
or after May 15, 2025, through September 30, 2025, is reached before
September 15, 2025; or the 20,000 visas limited to certain nationals is
reached before September 15, 2025. Similar to the processes applicable
to the H-2B semiannual statutory cap, if the final receipt date is any
of the first 5 business days on which petitions subject to the
applicable numerical limit may be received (in other words, if the
numerical limit is reached on any one of the first 5 business days that
filings can be made), USCIS will randomly apply all of the numbers
among the petitions received on any of those 5 business days.
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\123\ See 8 CFR 214.2(h)(8)(vii).
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C. Returning Workers
As noted above, to address the increased and, in some cases,
impending need for H-2B workers in this fiscal year, the Secretary of
Homeland Security, in consultation with the Secretary of Labor, has
determined that employers may petition for supplemental visas on behalf
of up to 44,716 workers who were issued an H-2B visa or were otherwise
granted H-2B status in FY 2022, 2023, or 2024. This temporal limitation
mirrors prior fiscal years' temporal limitation in the returning worker
definition \124\ and the temporal limitation Congress imposed in
previous returning worker statutes.\125\ Such workers (in other words,
those who recently participated in the H-2B program and who now seek a
new H-2B visa from DOS) may obtain their new visas through DOS and
begin work more expeditiously because they have previously obtained H-
2B visas and therefore have been vetted by DOS and would have departed
the United States as generally required by the terms of their
nonimmigrant admission.\126\ DOS
[[Page 95645]]
has informed DHS that, in general, H-2B visa applicants who are able to
demonstrate clearly that they have previously abided by the terms of
their status granted by DHS have a higher visa issuance rate when
applying to renew their H-2B visas, as compared with the overall visa
applicant pool from a given country. Furthermore, consular officers are
authorized to waive the in-person interview requirement for certain
nonimmigrant visa applicants, including certain H-2B applicants
renewing visas in the same classification within 48 months of the prior
visa's expiration, who otherwise meet the strict limitations set out
under INA section 222(h), 8 U.S.C. 1202(h).\127\ Limiting the
supplemental cap to returning workers is beneficial because these
workers have generally followed immigration law in good faith and
demonstrated their willingness to return home when they have completed
their temporary labor or services or their period of authorized stay,
which is a condition of H-2B status. The returning worker condition
therefore provides a basis to believe that H-2B workers under this cap
increase will again abide by the terms and conditions of their visa or
nonimmigrant status.
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\124\ See e.g., Exercise of Time-Limited Authority To Increase
the Numerical Limitation for FY 2024 for the H-2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H-2B
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023)
(defining ``returning workers'' as those who were issued H-2B visas
or held H-2B status in fiscal years 2021, 2022, or 2023).
\125\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A);
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F,
tit. V, sec 565; John Warner National Defense Authorization Act for
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public
Law 109-13, div. B, tit. IV, sec. 402.
\126\ The previous review of an applicant's qualifications and
current evidence of lawful travel to the United States will
generally lead to a shorter processing time of a renewal
application.
\127\ The interview waiver authority for certain H-2B applicants
renewing visas in the same classification within 48 months of the
prior visa's expiration has no sunset date. Currently, certain
first-time H-2B visa applicants or certain H-2B visa applicants
previously issued any type of visa within the last 48 months may be
eligible for an interview waiver; the authority for these interview
waivers is in place until further notice. See DOS, Important Update
on Waivers of the Interview Requirement for Certain Nonimmigrant
Visa Applicants, <a href="https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html">https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html</a> (last updated Dec.
21, 2023).
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The returning worker condition also benefits employers that seek to
re-hire known and trusted workers who have a proven positive employment
track record while previously employed as workers in this country.
While the Departments recognize that the returning worker requirement
may limit to an extent the flexibility of employers that might wish to
hire non-returning workers, the requirement provides an important
safeguard against H-2B abuse, which DHS considers to be a significant
consideration.
To ensure compliance with the requirement that additional visas
only be made available to returning workers, DHS will require
petitioners seeking H-2B workers under the supplemental cap to attest
that each employee requested or instructed to apply for a visa under
the FY 2025 supplemental cap was issued an H-2B visa or otherwise
granted H-2B status in FY 2022, 2023, or 2024, unless the H-2B worker
is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia,
Ecuador, or Costa Rica and is counted towards the 20,000 cap. This
attestation will serve as prima facie initial evidence to DHS that each
worker, unless a national of one of these countries who is counted
against the 20,000 country-specific cap, meets the returning worker
requirement. DHS and DOS retain the right to review and verify that
each beneficiary is in fact a returning worker any time before and
after approval of the petition or visa. DHS has authority to review and
verify this attestation during the course of an audit or investigation,
as otherwise discussed in this rule.
With respect to satisfying the returning worker requirement,
employers must maintain evidence that the employer requested and/or
instructed that each of the workers petitioned by the employer in
connection with this temporary rule were issued H-2B visas or otherwise
granted H-2B status in FY 2022, 2023, or 2024, unless the H-2B worker
is a national of one of the specific countries counted towards the
20,000 cap. Such evidence would include, but is not limited to, a date-
stamped written communication from the employer to its agent(s) and/or
recruiter(s) that instructs the agent(s) and/or recruiter(s) to only
recruit and provide instruction regarding an application for an H-2B
visa to those foreign workers who were previously issued an H-2B visa
or granted H-2B status in FY 2022, 2023, or 2024.
D. 20,000 Allocation for Nationals of Guatemala, El Salvador, Honduras,
Haiti, Colombia, Ecuador, or Costa Rica
As described above, the Secretary of Homeland Security has
determined that up to 20,000 additional H-2B visas will be limited to
workers who are nationals of Guatemala, El Salvador, Honduras, Haiti,
Colombia, Ecuador, or Costa Rica. These 20,000 visas will be exempt
from the returning worker requirement. Because the returning worker
allocations have no restrictions related to a worker's country of
nationality, if the 20,000 visa limit has been reached and the 44,716
returning worker cap has not, petitioners may continue to request
workers who are nationals of one of these countries, but the workers
must be specifically requested as returning workers who were issued H-
2B visas or were otherwise granted H-2B status in FY 2022, 2023, or
2024.
While DHS reiterates the benefits of allocating visas under the
supplemental cap to returning workers, the Secretary of Homeland
Security has determined that the 20,000 country-specific allocation
which is exempted from the returning worker requirement is beneficial
for following reasons. First, this country-specific allocation furthers
the U.S. foreign policy objective of managing irregular migration with
partner countries through expanding access to lawful pathways to
nationals of these countries seeking economic opportunity in the United
States. Several of these countries have extensively collaborated with
the United States on migration issues such as through endorsing the
L.A. Declaration, joining the United States to ramp up efforts to
address the irregular migration flows through the Darien and
participating in the Safe Mobility Initiative to increase migrant
integration in host countries and, where appropriate, facilitate access
to lawful pathways to the United States and other countries, including
expedited refugee processing. After a series of negotiations, on June
1, 2023, the United States and Guatemala issued a joint statement to
commit to take a series of critical steps to humanely reduce irregular
migration and expand lawful pathways under the L.A. Declaration.\128\
For example, as part of a comprehensive program to manage irregular
migration, Guatemala agreed to participate in the Safe Mobility
Initiative, hosting SMOs since June 12, 2023.\129\ On June 4, 2023, the
United States and Colombia announced the impending establishment of
SMOs that would provide information about the wide range of existing
services and support available for refugees and other migrants in
Colombia, with the goal of reaching migrants on the move, or even
before they begin irregular migration journey.\130\ The Safe Mobility
initiative launched in Colombia on June 28, 2023, with SMOs currently
operational in three cities. Furthermore, on June 12,
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2023, the United States and the Government of Costa Rica launched SMOs
in Costa Rica, in furtherance of bilateral partnership and addressing
hemispheric challenge of irregular migration.\131\ On October 19, 2023,
the United States and Ecuador announced their partnership in
establishing SMOs in Ecuador.\132\ This allocation for nationals of El
Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica
will promote safe, orderly and lawful migration to the United States,
as well as help provide U.S. employers with additional labor from these
countries with whom the United States Government has engaged in
outreach efforts to promote the H-2B program.\133\
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\128\ See The White House, Joint Statement from the United
States and Guatemala on Migration (June 1, 2023), <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>.
\129\ Id.
\130\ See United States Department of State, U.S.-Colombia Joint
Commitment to Address the Hemispheric Challenge of Irregular
Migration (June 4, 2023), <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>. See also The White House, Readout of Principal Deputy
National Security Advisor Jon Finer's Meeting with Colombian Foreign
Minister Alvaro Leyva (June 11, 2023), <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>.
\131\ See 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>.
\132\ See United States Department of State, Announcement of
Safe Mobility Office in Ecuador (Oct. 19, 2023), <a href="https://www.state.gov/announcement-of-safe-mobility-office-in-ecuador/">https://www.state.gov/announcement-of-safe-mobility-office-in-ecuador/</a>.
\133\ See, e.g., USAID, Administrator Samantha Power at the
Summit of the Americas Fair Recruitment and H-2 Visa Side Event,
<a href="https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa">https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa</a> (Jun. 9, 2022) (``Our combined efforts [with the labor
ministries in Honduras and Guatemala, and the Foreign Ministry in El
Salvador] . . . resulted in a record number of H-2 visas issued in
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
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Second, in addition to the allocation for returning workers, the
country-specific allocation will also address the needs of certain H-2B
employers that are suffering irreparable harm or will suffer impending
irreparable harm.
Third, the 20,000 set-aside will deliver on the objectives of E.O.
14010, which, among other initiatives, instructs the Secretary of
Homeland Security and the Secretary of State to implement measures to
enhance access for nationals of the Northern Central American countries
of El Salvador, Guatemala, and Honduras to visa programs, as
appropriate and consistent with applicable law. E.O. 14010 also directs
relevant government agencies to create a comprehensive regional
framework to address the causes of migration, and to manage migration
throughout North and Central America.\134\
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\134\ See also National Security Council, Collaborative
Migration Management Strategy, <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf</a> (July 2021) (stating that ``The United States has
strong national security, economic, and humanitarian interests in
reducing irregular migration and promoting safe, orderly, and humane
migration'' within North and Central America).
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Fourth, DHS is allocating these visas to specific countries to
further promote development and economic stability of these countries
to reduce irregular migration throughout the Western Hemisphere,
including from Haiti.\135\
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\135\ See, e.g., <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'').
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As in prior years, DOS will work with the relevant countries to
facilitate consular interviews, if required,\136\ and channels for
reporting incidents of fraud and abuse within the H-2 programs.
Further, each country's own consular networks will maintain contact
with the workers while in the United States and ensure the workers know
their rights and responsibilities under the U.S. immigration laws,
which are all valuable protections to the immigration system, U.S.
employers, U.S. workers, and workers entering the country on H-2 visas.
DHS has determined that reserving 20,000 supplemental H-2B visas
towards the country-specific allocation and continuing to include these
countries is reasonable given the progressively increasing use of H-2B
visas among the Northern Central American countries of Guatemala,
Honduras and El Salvador, and the other three countries--Colombia,
Costa Rica and Ecuador--added to this allocation in fiscal year 2024.
DHS believes these aspects will encourage U.S. employers that are
suffering irreparable harm or will suffer impending irreparable harm to
seek out workers from such countries, while, at the same time, increase
interest among such nationals seeking a legal pathway for temporary
employment in the United States. DHS also believes its outreach efforts
with the governments of these countries, along with efforts in some of
these countries by USAID to increase access to the H-2B program,
support the decision to provide this allocation of 20,000 visas. USAID
has worked to build capacity in Northern Central America to facilitate
access to temporary worker visas under the H-2 program. Collaborating
closely with the governments of El Salvador, Guatemala, and Honduras,
USAID has strengthened the capacity of relevant government ministries
to transparently and efficiently match qualified workers to temporary
labor opportunities in the United States. In fiscal years 2021, 2022,
and 2023 USAID increased funding to expand capacity building activities
in El Salvador, Guatemala, and Honduras in response to the increased
demand generated by the supplemental allocations of H-2B visas for
Northern Central American nationals included in the FY 2021, FY 2022,
and FY 2023 TFRs. The acceleration of USAID's activities likely helped
increase uptake of H-2B visas issuance under the FY 2021, FY 2022, and
FY 2023 TFRs, as H-2B visa issuances to Salvadorans, Guatemalans and
Hondurans increased significantly over prior years,\137\ and USAID's
assistance helped reduce the average period of time to match qualified
workers from these three countries to requests from U.S. employers--
from 42 days to 14 days in El Salvador, 55 days to 17 days in
Guatemala, and 24 days to 8 days in Honduras.\138\ USAID's programs
also strengthen worker protections by helping crowd out unethical
recruiters and providing labor rights education and resources to
seasonal workers.
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\136\ As noted previously, some consular officers may waive the
in-person interview requirement for H-2B applicants whose prior visa
expired within a specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h), 8 U.S.C.
1202(h). The authority allowing for waiver of interview of certain
H-2 (temporary agricultural and non-agricultural workers) applicants
is in place until further notice and is reviewed annually. Certain
applicants renewing a visa in the same classification within 48
months of the prior visa's expiration are also eligible for
interview waiver. DOS, Important Update on Waivers of the Interview
Requirement for Certain Nonimmigrant Visa Applicants, <a href="https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html">https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html</a> (last updated Dec. 21, 2023).
\137\ See DOS, Nonimmigrant Visa Issuance Statistics,
Nonimmigrant Visa Issuances by Visa Class and by Nationality,
<a href="https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html">https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html</a> (last visited Sept. 26,
2023); U.S. Dep't of Homeland Security, U.S. Citizenship and Immigr.
Servs., Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa
Issuance Data, queried 10/2023, TRK 13122, Issuances for FY 2023 H-
2Bs By Requested Nationality Code.
\138\ See USAID, H-2 Visa Opportunities in Guatemala, Honduras,
and El Salvador, <a href="https://www.usaid.gov/sites/default/files/2024-06/USAID%20H-2%20Fact%20Sheet%20%283_7_24%29.pdf">https://www.usaid.gov/sites/default/files/2024-06/USAID%20H-2%20Fact%20Sheet%20%283_7_24%29.pdf</a> (Mar. 7, 2024).
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DOS issued a combined total of approximately 26,630 H-2B visas to
nationals of the Northern Central American countries and Haiti from FY
2015 through FY 2020, an average of approximately 4,400 per year.\139\
In FY
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2021, the first year in which supplemental H-2B visas were reserved for
nationals of Northern Central American countries, DOS issued a combined
total of 6,277 H-2B visas to nationals of those countries.\140\ In FY
2022, DOS issued a combined total of 15,058 H-2B visas to nationals of
Haiti and the Northern Central American countries.\141\ In FY 2023, DOS
issued a combined total of 23,816 H-2B visas to nationals of Haiti and
the Northern Central American countries.\142\ This increase is likely
due in part to the additional H-2B visas made available to nationals of
these countries by the FY 2021, FY 2022, and FY 2023 H-2B supplemental
visa temporary final rules. In addition, based in part on the vital
U.S. interest of promoting sustainable developm
[…truncated; see source link]Indexed from Federal Register on December 2, 2024.
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.