# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-10631

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 18, 2022
- **Citation:** 87 FR 30334

## Text

DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2719-22]
RIN 1615-AC79
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2022-0004]
RIN 1205-AC10
Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

AGENCY:

U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS), and Employment and Training Administration and Wage and Hour Division, U.S. Department of Labor (DOL).

ACTION:

Temporary rule.

SUMMARY:

The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2022 authority and again increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by authorizing the issuance of no more than 35,000 additional visas during the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. This number is in addition to the 20,000 H-2B visas authorized by the Secretary in consultation with the Secretary of Labor in January of 2022 for petitions with start dates on or before March 31, 2022. In addition to making the additional 35,000 visas available under the FY 2022 time-limited authority, DHS is exercising its general H-2B regulatory authority to again provide temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved.

DATES:

Effective dates:
The amendments to title 8 of the Code of Federal Regulations in this rule are effective from May 18, 2022 through May 18, 2025. The amendments to title 20 of the Code of Federal Regulations in this rule are effective from May 18, 2022 through September 30, 2022, except for 20 CFR 655.66 which is effective from May 18, 2022 through September 30, 2025.

Petition dates:
DHS will stop accepting petitions received after September 15, 2022. DHS will not approve any H-2B petition under the provisions related to the supplemental numerical allocation after September 30, 2022. The provisions related to portability are only available to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2023.

Comment dates:
The Office of Foreign Labor Certification within the U.S. Department of Labor will be accepting comments in connection with the new information collection Form ETA-9142B-CAA-6 associated with this rule until July 18, 2022.

ADDRESSES:

You may submit written comments on the new information collection Form ETA-9142B-CAA-6, identified by Regulatory Information Number (RIN) 1205-AC09 electronically by the following method:

Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions on the website for submitting comments.

Instructions:
Include the agency's name and the RIN 1205-AC09 in your submission. All comments received will become a matter of public record and will be posted without change to
https://www.regulations.gov.
Please do not include any personally identifiable information or confidential business information you do not want publicly disclosed.

FOR FURTHER INFORMATION CONTACT:

Regarding 8 CFR parts 214 and 274a: Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number).

Regarding 20 CFR part 655 and Form ETA-9142B-CAA-6: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free number).

Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Legal Framework

B. H-2B Numerical Limitations Under the INA

C. FY 2022 Omnibus

D. Joint Issuance of the Final Rule

III. Discussion

A. Statutory Determination

B. Numerical Increase and Allocation of up to 35,000 Visas

C. Returning Workers

D. Returning Worker Exemption for up to 11,500 Visas for Nationals of Guatemala, El Salvador, and Honduras (Northern Central American Countries) and Haiti

E. Business Need Standard—Irreparable Harm and FY 2022 Attestation

F. Portability

G. COVID-19 Worker Protections

H. DHS Petition Procedures

I. DOL Procedures

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Congressional Review Act

H. National Environmental Policy Act

I. Paperwork Reduction Act

I. Executive Summary

FY 2022 H-2B Supplemental Cap

With this temporary final rule (TFR), the Secretary of Homeland Security, following consultation with the Secretary of Labor, is authorizing the immediate release of an additional 35,000 H-2B visas for the second half of FY 2022 positions with start dates on or after April 1, 2022 through September 30, 2022, subject to certain conditions. The 35,000 visas are divided into two allocations, as follows:

• 23,500 visas limited to returning workers, regardless of country of nationality, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021; and

• 11,500 visas reserved for nationals of El Salvador, Guatemala, and Honduras (Northern Central American countries) and Haiti as attested by the petitioner (regardless of whether such nationals are returning workers).

To qualify for the FY 2022 supplemental cap provided by this

temporary final rule, eligible petitioners must:

• Meet all existing H-2B eligibility requirements, including obtaining an approved temporary labor certification (TLC) from DOL before filing the Form I-129, Petition for Nonimmigrant Worker, with USCIS;

• Properly file the Form I-129, Petition for Nonimmigrant Worker, with USCIS on or before September 15, 2022, requesting an employment start date on or after April 1, 2022 through September 30, 2022;

• Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H-2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 11,500 cap exempt from the returning worker requirement; and

• Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations,
1

or to reimbursement for travel to and from the nearest available vaccination site, and notify the workers in a language understood by the worker as necessary or reasonable, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

1
The term “COVID-19 vaccinations” also includes COVID-19 booster shots.

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:

• 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;

• Contact the nearest American Job Center serving the geographic area where work will commence and request staff assistance in recruiting qualified U.S. workers;

• Contact the employer's former U.S. workers, including those the employer furloughed or laid off beginning on January 1, 2020, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;

• 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;

• Hire any qualified U.S. worker who applies or is referred for the job opportunity until the later of either (1) the date on which the last H-2B worker departs for the place of employment, or (2) 30 days after the last date of the SWA job order posting; and

• Where the occupation is traditionally or customarily unionized, provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment, by providing a copy of the job order and requesting assistance in recruiting qualified U.S. workers for the job opportunity.

Petitioners filing H-2B petitions under this FY 2022 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits.

Through audits and investigations, both Departments have received evidence of employer non-compliance with the terms and conditions of the H-2B program, as well as violations of other labor and employment laws. USCIS Fraud Detection and National Security (FDNS) Headquarters found that instances of non-compliance encountered by field USCIS FDNS personnel could be parsed into four areas: (1) Failure to pay the promised wage; (2) failure to demonstrate irreparable harm; (3) failure to employ returning workers; and (4) failure to work at the listed location.

Such non-compliance can harm U.S. workers by undermining wages and working conditions. It also directly harms H-2B workers. Further, H-2B workers depend on ongoing employment with the petitioning employer to maintain status in the United States. This dependence creates a power imbalance between the employer and H-2B worker, making the H-2B worker particularly vulnerable to violations. Recognizing the substantial impact that non-compliance can have on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. DHS will also subject employers that have committed labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations.

Specifically, falsifying information in H-2B program attestation(s) can result not only in penalties relating to perjury, but can also result in, among other things, a finding of fraud or willful misrepresentation; denial or revocation of the H-2B petition requesting supplemental workers; and debarment by DOL and DHS from the H-2B program and any other foreign labor programs administered by DOL. Falsifying information also may subject a petitioner/employer to other criminal penalties.

DHS will not approve H-2B petitions filed in connection with the FY 2022 supplemental cap authority on or after October 1, 2022.

H-2B Portability

In addition to exercising its time-limited authority to make additional FY 2022 H-2B visas available, DHS is again providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing nonimmigrant workers in the United States
2

in valid H-2B status and who are beneficiaries of non-frivolous H-2B petitions received on or after July 28, 2022, or who are the beneficiaries of non-frivolous H-2B petitions that are pending as of July 28, 2022, to begin work with a new employer after an H-2B petition (supported by a valid TLC) is filed and before the petition is approved, generally for a period of up to 60 days. However, such employment authorization would end 15 days after USCIS denies the H-2B petition or such petition is withdrawn. This H-2B portability ends 180 days after the provision's effective date of July 28, 2022, in other words, after January 24, 2023.

2
The term “United States” includes the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands. INA section 101(a)(38), 8 U.S.C. 1101(a)(38).

II. Background

A. Legal Framework

The Immigration and Nationality Act (INA), as amended, establishes the H-2B nonimmigrant classification for a nonagricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot

be found in this country.” INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers must petition the Department of Homeland Security (DHS) for classification of prospective temporary workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this petition before the beneficiary can be considered eligible for an H-2B visa. In addition, the INA requires that “[t]he question of importing any alien as [an H-2B] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS],
3

after consultation with appropriate agencies of the Government.” INA section 214(c)(1), 8 U.S.C. 1184(c)(1). The INA generally charges the Secretary of Homeland Security with the administration and enforcement of the immigration laws, and provides that the Secretary “shall establish such regulations . . . and perform such other acts as he deems necessary for carrying out his authority” under the INA.
See
INA section 103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3);
see also
6 U.S.C. 202(4) (charging the Secretary with “[e]stablishing and administering rules . . . governing the granting of visas or other forms of permission . . . to enter the United States to individuals who are not a citizen or an alien lawfully admitted for permanent residence in the United States”). With respect to nonimmigrants in particular, the INA provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the [Secretary] may by regulations prescribe.” INA section 214(a)(1), 8 U.S.C. 1184(a)(1);
see also
INA section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3) (prohibiting employment of noncitizens
4

not authorized for employment). The Secretary may designate officers or employees to take and consider evidence concerning any matter which is material or relevant to the enforcement of the INA. INA sections 287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8 U.S.C. 1225(d)(3).

3
As of March 1, 2003, in accordance with section 1517 of Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Immigration and Nationality Act describing functions which were transferred from the Attorney General or other Department of Justice official to the Department of Homeland Security by the HSA “shall be deemed to refer to the Secretary” of Homeland Security.
See
6 U.S.C. 557 (2003) (codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.

4
For purposes of this discussion, the Departments use the term “noncitizen” colloquially to be synonymous with the term “alien” as it is used in the Immigration and Nationality Act.

Finally, under section 101 of HSA, 6 U.S.C. 111(b)(1)(F), a primary mission of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.”

DHS regulations provide that an H-2B petition for temporary employment in the United States must be accompanied by an approved TLC from the U.S. Department of Labor (DOL), issued pursuant to regulations established at 20 CFR part 655, or from the Guam Department of Labor if the workers will be employed on Guam. 8 CFR 214.2(h)(6)(iii)(A) and (C) through (E), (h)(6)(iv)(A)
; see also
INA section 103(a)(6), 8 U.S.C. 1103(a)(6). The TLC serves as DHS's consultation with DOL with respect to whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages and working conditions of similarly-employed U.S. workers.
See
INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).

In order to determine whether to issue a TLC, the Departments have established regulatory procedures under which DOL certifies whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.
See
20 CFR part 655, subpart A. The regulations establish the process by which employers obtain a TLC and rights and obligations of workers and employers.

Once the petition is approved, under the INA and current DHS regulations, H-2B workers do not have employment authorization outside of the validity period listed on the approved petition unless otherwise authorized, and the workers are limited to employment with the H-2B petitioner.
See
8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer or U.S. agent generally may submit a new H-2B petition, with a new, approved TLC, to USCIS to request an extension of H-2B nonimmigrant status for the validity of the TLC or for a period of up to 1 year. 8 CFR 214.2(h)(15)(ii)(C). Except as provided for in this rule, and except for certain professional athletes being traded among organizations,
5

H-2B workers seeking to extend their status with a new employer may not begin employment with the new employer until the new H-2B petition is approved.

5

See
8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).

The INA also authorizes DHS to impose appropriate remedies against an employer for a substantial failure to meet the terms and conditions of employing an H-2B nonimmigrant worker, or for a willful misrepresentation of a material fact in a petition for an H-2B nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B);
see also
INA section 103(a)(6), 8 U.S.C. 1103(a)(6). DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8 U.S.C. 1184(c)(14)(A)(i) to DOL.
See
DHS, Delegation of Authority to DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009);
see also
8 CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to enforce compliance with the conditions of an H-2B petition and a DOL-approved TLC). This enforcement authority has been delegated within DOL to the Wage and Hour Division (WHD), and is governed by regulations at 29 CFR part 503.

B. H-2B Numerical Limitations Under the INA

The INA sets the annual number of noncitizens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary nonagricultural work at 66,000, to be distributed semi-annually beginning in October and April.
See
INA sections 214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). With certain exceptions, described below, up to 33,000 noncitizens may be issued H-2B visas or provided H-2B nonimmigrant status in the first half of a fiscal year, and the remaining annual allocation, including any unused nonimmigrant H-2B visas from the first half of a fiscal year, will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.
6

If insufficient petitions are approved to use all H-2B numbers in a given fiscal year, the unused numbers cannot be carried over for petition approvals for employment start dates

beginning on or after the start of the next fiscal year.

6
The Federal Government's fiscal year runs from October 1 of the prior year through September 30 of the year being described. For example, fiscal year 2022 is from October 1, 2021, through September 30, 2022.

In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers identified as returning workers from the annual H-2B cap of 66,000.
7

A returning worker is defined by statute as an H-2B worker who was previously counted against the annual H-2B cap during a designated period of time. For example, Congress designated that returning workers for FY 2016 needed to have been counted against the cap during FY 2013, 2014, or 2015.
8

DHS and the Department of State (DOS) worked together to confirm that all workers requested under the returning worker provision in fact were eligible for exemption from the annual cap (in other words, were issued an H-2B visa or provided H-2B status during one of the prior 3 fiscal years) and were otherwise eligible for H-2B classification.

7
INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A),
see also
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. V, sec 565; John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, (2006); Save Our Small and Seasonal Businesses Act of 2005, Public Law 109-13, div. B, tit. IV, sec. 402.

8

See
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. V, sec 565.

Because of the strong demand for H-2B visas in recent years, the statutorily-limited semi-annual visa allocation, the DOL regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work,
9

and the DHS regulatory requirement that all H-2B petitions be accompanied by an approved TLC,
10

employers that wish to obtain visas for their workers under the semi-annual allotment must act early to receive a TLC and file a petition with U.S. Citizenship and Immigration Services (USCIS). As a result, DOL typically sees a significant spike in TLC applications from employers seeking to hire H-2B temporary or seasonal workers prior to the United States' warm weather months. For example, in FY 2022, based on TLC applications filed during the 3-day filing window of January 1 through 3, 2022, DOL's Office of Foreign Labor Certification (OFLC) received a total of 7,875 H-2B applications requesting 136,555 worker positions with an April 1, 2022, or later, work start date.
11

USCIS, in turn, received sufficient H-2B petitions to reach the second half of the fiscal year statutory cap by February 25, 2022.
12

Though not as early as recent years, this date continues to reflect an ongoing trend of higher H-2B demand in the second half of the fiscal year compared to the statutorily authorized level. Congress, in recognition of historical and current demand: (1) Allowed for additional H-2B workers through the FY 2016 reauthorization of the returning worker cap exemption;
13

and (2) for the last several fiscal years authorized supplemental caps under section 543 of Division F of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of the Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus); section 105 of Division I of the Further Consolidated Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus);
14

section 105 of Division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus); and section 105 of Division O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of Division A of Public Law 117-43, Continuing Appropriations Act, 2022, and section 101 of Division A of Public Law 117-70, Further Continuing Appropriations Act, 2022 through February 18, 2022 (together, previous FY 2022 authority). The authorization for the current supplemental cap is under section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus), which is discussed below.

9
20 CFR 655.15(b).

10

See
8 CFR 214.2(h)(5)(i)(A).

11
DOL, Announcements,
OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting an April 1, 2022, Work Start Date, https://www.dol.gov/agencies/eta/foreign-labor/news
(Jan. 4, 2022). For historical context, with the FY 2021 statutory cap, DOL announced on January 5, 2021 that it received requests to certify 96,641 worker positions for start dates of work on April 1, 2021. DOL, Announcements,
OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting an April 1, 2021, Work Start Date, https://www.dol.gov/agencies/eta/foreign-labor/news
(Jan. 5, 2021). On February 24, 2021, USCIS announced that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap for FY 2021. On February 12, 2021, the number of beneficiaries listed on petitions received by USCIS surpassed the total number of remaining H-2B visas available against the H-2B cap for the second half of FY 2021. In accordance with regulations, USCIS determined it was necessary to use a computer generated process, commonly known as a lottery, to ensure the fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the remainder of the FY 2021 cap. 8 CFR 214.2(h)(8)(vii). On February 17, 2021, USCIS conducted a lottery to randomly select petitions from those received on February 12, 2021. USCIS,
H-2B Cap Reached for Second Half of FY2021, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021
(Feb. 24, 2021).

12
USCIS,
H-2B Cap Reached for Second Half of FY2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022
(Mar. 1, 2022).

13
INA section 214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as revised by the Consolidated Appropriations Act of 2016 (Pub. L. 114-113). This authority expired on September 30, 2016.

14
DHS, after consulting with DOL, did not publish a temporary final rule supplementing the H-2B cap for FY 2020 pursuant to the Further Consolidated Appropriations Act, 2020, Public Law 116-94.

C. FY 2022 Omnibus

On March 15, 2022, President Joseph Biden signed the FY 2022 Omnibus which contains a provision, section 204 of Division O, Title II, permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA. Specifically, section 204 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in [FY] 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2022 by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.
15

The Secretary of Homeland Security has consulted with the Secretary of Labor, and this rule implements the authority contained in section 204.

15
The highest number of returning workers in any such fiscal year was 64,716, which represents the number of beneficiaries covered by H-2B returning worker petitions that were approved for FY 2007. DHS also considered using an alternative approach, under which DHS measured the number of H-2B returning workers admitted at the ports of entry (66,792 for FY 2007).

Under the authority contained in section 204, DHS and DOL are jointly publishing this temporary final rule to authorize the issuance of no more than 35,000 additional visas through the end of the second half of FY 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2022 supplemental cap expires at the end of that fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2022 supplemental cap authority on or after October 1, 2022.

As noted above, since FY 2017, Congress has enacted a series of public

laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond the annual numerical limitation set forth in section 214 of the INA. The previous statutory provisions were materially identical to section 204 of the FY 2022 Omnibus, which is the same authority provided for FY 2022 by the recent continuing resolutions. During each fiscal year from FY 2017 through FY 2019, as well as during FY 2021 and in the first half of FY 2022, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that the needs of some American businesses could not be satisfied in such year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. On the basis of these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published temporary final rules for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Petition for a Nonimmigrant Worker (Form I-129), they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.
16

A total of 12,294 H-2B workers were approved for H-2B classification under petitions filed pursuant to the FY 2017 supplemental cap increase.
17

In FY 2018, USCIS received petitions for more than 15,000 beneficiaries during the first 5 business days of filing for the supplemental cap and held a lottery on June 7, 2018. The total number of H-2B workers approved toward the FY 2018 supplemental cap increase was 15,788.
18

The vast majority of the H-2B petitions received under the FY 2017 and FY 2018 supplemental caps requested premium processing
19

and were adjudicated within 15 calendar days.

16
Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017); Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 83 FR 24905, 24917 (May 31, 2018).

17
USCIS data pulled from the Computer Linked Application Information Management System (CLAIMS3) database on Mar. 15, 2021. General information about CLAIMS 3 is available at
https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-system-claims-3-and.

18
The number of approved workers exceeded the number of additional visas authorized for FY 2018 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.

19
Premium processing allows for expedited processing for an additional fee.
See
INA 286(u), 8 U.S.C. 1356(u).

On May 8, 2019, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 30,000 additional H-2B visas for the remainder of FY 2019. The additional visas were limited to returning workers who had been counted against the H-2B cap or were otherwise granted H-2B status in the previous 3 fiscal years, and for those businesses that attested to a level of need such that, if they did not receive all of the workers requested on the Form I-129, they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.
20

The Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past 3 fiscal years was appropriate, as it mirrored the standard that Congress designated in previous returning worker provisions. On June 5, 2019, approximately 30 days after the supplemental visas became available, USCIS announced that it received sufficient petitions filed pursuant to the FY 2019 supplemental cap increase. USCIS did not conduct a lottery for the FY 2019 supplemental cap increase. The total number of H-2B workers approved towards the FY 2019 supplemental cap increase was 32,666.
21

The vast majority of these petitions requested premium processing and were adjudicated within 15 calendar days.

20
Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).

21
The number of approved workers exceeded the number of additional visas authorized for FY 2019 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.

Although Congress provided the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap in FY 2020, the Secretary did not exercise that authority. DHS initially intended to exercise its authority and, on March 4, 2020, announced that it would make available 35,000 supplemental H-2B visas for the second half of fiscal year.
22

On March 13, 2020, then-President Trump declared a National Emergency concerning COVID-19, a communicable disease caused by the coronavirus SARS-CoV-2.
23

On April 2, 2020, DHS announced that the rule to increase the H-2B cap was on hold due to economic circumstances, and no additional H-2B visas would be released until further notice.
24

DHS also noted that the Department of State had suspended routine visa services.
25

22
DHS to Improve Integrity of Visa Program for Foreign Workers, March 5, 2020,
https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.

23
Proclamation 9994 of Mar. 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).

24

https://twitter.com/DHSgov/status/1245745115458568192?s=20.

25

https://twitter.com/DHSgov/status/1245745116528156673.

In FY 2021, although the COVID-19 public health emergency remained in effect, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2021 coupled with additional protections (for example, post-adjudication audits, investigations, and compliance checks), based on the demand for H-2B workers in the second half of FY 2021, as well as other factors that were occurring at that time, including the continuing economic growth, the improving job market, and increased visa processing capacity by the Department of State. Accordingly, on May 25, 2021, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 22,000 additional H-2B visas for the remainder of FY 2021.
26

The supplemental visas were available only to employers that attested they were likely to suffer irreparable harm without the additional workers. The allocation of 22,000 additional H-2B visas under that rule consisted of 16,000 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2018, 2019, or 2020) and 6,000 visas that were initially reserved for Salvadoran, Guatemalan, and Honduran nationals, who were exempt from the returning worker requirement. As of August 13, 2021, USCIS received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.
27

The total number of H-2B workers approved towards the FY 2021 supplemental cap increase was 30,681.
28

This total number included approved H-2B petitions for 23,876

returning workers, as well as 6,805 beneficiaries from the Northern Central American countries.
29

26
86 FR 28198 (May 25, 2021).

27

https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021
(Aug. 19, 2021).

28
The number of approved workers exceeded the number of additional visas authorized for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. USCIS H-2B petition approval data pulled from CLAIMS3 on March 16, 2022.

29
USCIS H-2B petition approval data pulled from CLAIMS3 on March 16, 2022.

Similarly, earlier in FY 2022, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates on or before March 31, 2022, based on the demand for H-2B workers in the first half of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on January 28, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 20,000 additional H-2B visas for the first half of FY 2022.
30

These supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 20,000 additional H-2B visas under that rule consisted of 13,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement. As of March 31, 2022, the total number of H-2B workers approved towards the first half FY 2022 supplemental cap increase was 17,185, including 14,069 workers under the returning worker allocation, as well as 3,116 workers approved towards the Haitian/Northern Central American allocation.
31

30
87 FR 4722 (Jan. 28, 2022); 87 FR 6017 (Feb. 3, 2022) (correction).

31
USCIS H-2B petition approval data pulled from CLAIMS3 on March 31, 2022.

DHS in consultation with DOL believes that it is appropriate to further increase the H-2B cap through the end of the second half of FY 2022 based on the demand for H-2B workers in the second half of FY 2022, recent and continuing economic growth, increased labor demand,
32

and increased visa processing capacity by the Department of State. DHS and DOL also believe that it is appropriate to couple this cap increase with additional worker protections, as described below.

32
The term “increased labor demand” in this context relies on the most recently released figure from a Bureau of Labor Statistics (BLS) survey at the time this TFR was written. The BLS Job Openings and Labor Turnover Survey (JOLTS) reports 11.3 million job openings in February 2022 (compared to 7.4 million job openings in February 2021).
See
Bureau of Labor Statistics, Job Openings and Labor Turnover Survey released on March 29, 2022 at
https://www.bls.gov/news.release/archives/jolts_03292022.pdf
, and the February 2021 survey released on April 6, 2021 at
https://www.bls.gov/news.release/archives/jolts_04062021.pdf.

D. Joint Issuance of the Final Rule

As we did in FY 2017, FY 2018, FY 2019, FY 2021, and for the first half of FY 2022, DHS and DOL (the Departments) have determined that it is appropriate to jointly issue this temporary final rule.
33

The determination to issue the temporary final rule jointly follows conflicting court decisions concerning DOL's authority to independently issue legislative rules to carry out its consultative and delegated functions pertaining to the H-2B program under the INA.
34

Although DHS and DOL each have authority to independently issue rules implementing their respective duties under the H-2B program,
35

the Departments are implementing the numerical increase in this manner to ensure there can be no question about the authority underlying the administration and enforcement of the temporary cap increase. This approach is consistent with rules implementing DOL's general consultative role under INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and delegated functions under INA sections 103(a)(6) and 214(c)(14)(B), 8 U.S.C. 1103(a)(6), 1184(c)(14)(B).
36

33
82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84 FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021); 87 FR 4722 (Jan. 28, 2022).

34
See
Outdoor Amusement Bus. Ass'n
v.
Dep't of Homeland Sec.
, 983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021); see also Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 FR 24041, 24045 (Apr. 29, 2015).

35
See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.

36

See
8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).

III. Discussion

A. Statutory Determination

Following consultation with the Secretary of Labor, the Secretary of Homeland Security has determined that the needs of some U.S. employers cannot be satisfied for the remainder of FY 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with section 204 of the FY 2022 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas through the end of the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022 up to 35,000 additional visas for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition. These businesses must retain documentation, as described below, supporting this attestation.

As we did in connection with the FY 2021 and prior FY2022 H-2B supplemental visa temporary final rules, and consistent with existing authority, DHS and DOL intend to conduct a significant number of audits with respect to petitions filed under this TFR requesting supplemental H-2B visas, which may be selected at the discretion of the Departments, during the period of temporary need to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule. If an employer's documentation does not meet the irreparable harm standard, or if the employer fails to provide evidence demonstrating irreparable harm or comply with the audit process, this may be considered a substantial violation resulting in an adverse agency action on the employer, including revocation of the petition and/or TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under the supplemental caps in FY 2021 and the first half of FY 2022 revealed concerns surrounding documentation of irreparable harm, recruitment efforts, and compliance with the audit process, which may warrant further review and action.

The Secretary of Homeland Security has also again determined, as he did in FY 2021 and earlier in FY 2022, that for certain employers, additional recruitment steps are necessary to confirm that there are no qualified U.S. workers available for the positions. In addition, the Secretary of Homeland Security has determined that the supplemental visas will be limited to returning workers, with the exception that up to 11,500 of the 35,000 visas will be exempt from the returning worker requirement and will be reserved for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, and Haiti.
37

These H-2B visas are being

reserved for nationals of El Salvador, Guatemala, and Honduras to once again further the objectives of E.O. 14010, which among other initiatives, instructs the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access to visa programs for nationals of the Northern Central American countries.
38

DHS observed robust employer interest in response to the FY 2021 H-2B supplemental visa allocation for Salvadoran, Guatemalan, and Honduran nationals and the previous FY 2022 supplemental visa allocation for Salvadoran, Guatemalan, Honduran, and Haitian nationals, with USCIS approving petitions on behalf of 6,805 beneficiaries under the FY 2021 allocation,
39

and 3,116 beneficiaries as of March 31, 2022, under the FY 2022 allocation for the first half of the fiscal year.
40

In addition, DHS and the Biden administration have continued to conduct outreach efforts promoting the H-2B program, among others, as a lawful pathway for nationals of El Salvador, Guatemala, Honduras, and Haiti to work in the United States. The decision to again reserve an allocation of supplemental H-2B visas for these nationals, while providing an exemption from the returning worker requirement, will provide ongoing support for the President's vision of expanding access to lawful pathways for protection and opportunity for individuals from these countries.
41

37
These conditions and limitations are not inconsistent with sections 214(g)(3) (“first in, first out” H-2B processing) and (g)(10) (fiscal year H-2B allocations) because noncitizens covered by the special allocation under section 204 of the FY 2022 Omnibus are not “subject to the numerical limitations of [section 214(g)(1).]”
See, e.g.,
INA section 214(g)(3); INA section 214(g)(10); FY 2022 Omnibus div. O, sec. 204 (“Notwithstanding the

numerical limitation set forth in section 214(g)(1)(B) of the [INA] . . . .”).

38

See
Section 3(c) of E.O. 14010, Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, signed February 2, 2021,
https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf.
E.O. 14010 referred to the three countries of El Salvador, Guatemala, and Honduras as the “Northern Triangle”, but this rule refers to these countries collectively as the Northern Central American countries.

39
While USCIS approved a greater number of beneficiaries from the Northern Central American countries than the 6,000 visas allocated under the FY 2021 supplemental cap for those countries, the Department of State issued 3,065 visas on behalf of nationals from those countries.
See
DHS, USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021, TRK 8598. This discrepancy can be attributed to adverse impacts on consular processing caused by the COVID-19 pandemic, travel restrictions, as well as lack of readily available processes to efficiently match workers from Northern Central American countries with U.S. recruiters/employers on an expedited timeline. DHS anticipates that the normalization of consular services, easing of travel restrictions, the issuance of this rule earlier in the fiscal year, as well as the fact that this is the second year that DHS will make a specific allocation available for workers from the Northern Central American countries, will contribute to greater utilization of available visas under this allocation during FY 2022.

40
USCIS H-2B petition approval data pulled from CLAIMS3 on March 31, 2022.

41

Id.

Similar to the temporary final rules for the FY 2019, FY 2021 and previous FY 2022 supplemental caps, the Secretary of Homeland Security has also determined to limit the supplemental visas to H-2B returning workers, in other words, workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2019, 2020, or 2021,
42

unless the employer indicates on the new attestation form that it is requesting workers who are nationals of one of the Northern Central American countries or Haiti and who are therefore counted towards the 11,500 allotment regardless of whether they are new or returning workers. If the 11,500 returning worker exemption cap for Salvadoran, Guatemalan, Honduran, and Haitian nationals has been reached and visas remain available under the returning worker cap, the petition would be rejected and any fees submitted returned to the petitioner. In such a case, a petitioner may continue to request workers who are nationals of one of the Northern Central American countries or Haiti, but the petitioner must file a new Form I-129 petition, with fee, and attest that these noncitizens will be returning workers, in other words, workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2019, 2020, or 2021. Like the temporary final rule for the first half of FY 2022, if the 11,500 returning worker exemption cap for nationals of the Northern Central American countries and Haiti remains unfilled, DHS will
not
make unfilled visas reserved for Northern Central American countries and Haiti available to the general returning worker cap.

42
For purposes of this rule, these returning workers could have been H-2B cap exempt or extended H-2B status in FY 2019, 2020, or 2021. Additionally they may have been previously counted against the annual H-2B cap of 66,000 visas during FY 2019, 2020, or 2021, or the supplemental caps in FY 2019 or FY 2021.

The Secretary of Homeland Security's determination to increase the numerical limitation is based, in part, on the conclusion that some businesses are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition. Members of Congress have informed the Secretaries of Homeland Security and Labor about the needs of some U.S. businesses for H-2B workers (after the statutory cap for the relevant half of the fiscal year has been reached) and about the potentially negative impact on state and local economies if the cap is not increased.
43

U.S. businesses, chambers of commerce, employer organizations, and state and local elected officials have also expressed concerns to the DHS and Labor Secretaries regarding the unavailability of H-2B visas after the statutory cap was reached.
44

43
See the docket for this rulemaking for access to these letters.

44

Id.

After considering the full range of evidence and diverse points of view, the Secretary of Homeland Security has deemed it appropriate to take action to prevent further severe and permanent financial loss for those employers currently suffering irreparable harm and to avoid impending irreparable harm for other employers unable to obtain H-2B workers under the statutory cap, including potential wage and job losses by their U.S. workers, as well as other adverse downstream economic effects.
45

At the same time, the Secretary of Homeland Security believes it is appropriate to condition receipt of supplemental visas on adherence to additional worker protections, as discussed below.

45

See, e.g.,
Impacts of the H-2B Visa Program for Seasonal Workers on Maryland's Seafood Industry and Economy, Maryland Department of Agriculture Seafood Marketing Program and Chesapeake Bay Seafood Industry Association (March 2, 2020), available at
https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf
(last visited Apr. 5, 2022).

The decision to afford the benefits of this temporary cap increase to U.S. businesses that need H-2B workers because they are suffering irreparable harm already or will suffer impending irreparable harm, and that will comply with additional worker protections, rather than applying the cap increase to any and all businesses seeking temporary workers, is consistent with DHS's time-limited authority to increase the cap, as explained below. The Secretary of Homeland Security, in implementing section 204 and determining the scope of any such increase, has broad discretion, following consultation with the Secretary of Labor, to identify the business needs that are most relevant, while bearing in mind the need to protect U.S. workers. Within that context, for the below reasons, the Secretary of Homeland Security has determined to allow an overall increase of up to 35,000 additional visas, for positions with start dates on or after April 1, 2022 through September 30, 2022, solely for the businesses facing permanent, severe financial loss or those who will face such loss in the near future.

First, DHS interprets section 204's reference to “the needs of American

businesses” as describing a need different from the need ordinarily required of employers in petitioning for an H-2B worker. Under the generally applicable H-2B program, each individual H-2B employer must demonstrate that it has a temporary need for the services or labor for which it seeks to hire H-2B workers.
See
8 CFR 214.2(h)(6)(ii); 20 CFR 655.6. The use of the phrase “needs of American businesses,” which is not found in INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), or the regulations governing the standard H-2B cap, authorizes the Secretary of Homeland Security in allocating additional H-2B visas under section 204 to require that employers establish a need above and beyond the normal standard under the H-2B program, that is, an inability to find sufficient qualified U.S. workers willing and available to perform services or labor and that the employment of the H-2B worker will not adversely affect the wages and working conditions of U.S. workers,
see
8 CFR 214.2(h)(6)(i)(A). DOL concurs with this interpretation.

Second, the approach set forth in this rule limits the increase in a way that is similar to the implementation of the supplemental caps in previous fiscal years, and provides protections against adverse effects on U.S. workers that may result from a cap increase, including, as in previous rules, requiring employers seeking H-2B workers under the supplemental cap to engage in additional recruitment efforts for U.S. workers. Additionally, the Secretary has determined that in the particular circumstances presented here, it is appropriate, within the limits discussed below, to tailor the availability of this temporary cap increase to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, in other words, those facing permanent and severe financial loss.

As noted above, to address the increased and, in some cases, impending need for H-2B workers in positions with start dates on or after April 1, 2022 through September 30, 2022, the Secretary of Homeland Security has determined that employers may petition for supplemental visas on behalf of up to 23,500 workers who were issued an H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021. The last 3 fiscal years' temporal limitation in the returning worker definition in this temporary rule mirrors the temporal limitation Congress imposed in previous returning worker statutes.
46

Such workers (in other words, those who recently participated in the H-2B program and who now seek a new H-2B visa from DOS) have previously obtained H-2B visas and therefore have been vetted by DOS, would have departed the United States as generally required by the terms of their nonimmigrant admission, and therefore may obtain their new visas through DOS and begin work more expeditiously.
47

DOS has informed DHS that, in general, H-2B visa applicants who are able to demonstrate clearly that they have previously abided by the terms of their status granted by DHS have a higher visa issuance rate when applying to renew their H-2B visas, as compared with the overall visa applicant pool from a given country. Furthermore, consular officers are authorized to waive the in-person interview requirement for certain nonimmigrant visa applicants, including certain H-2B applicants, who otherwise meet the strict limitations set out under INA section 222(h), 8 U.S.C. 1202(h).
48

We note that DOS has, in response to the COVID-19 pandemic, expanded interview waiver eligibility to certain first-time H-2 applicants,
49

potentially allowing such applicants to be processed with increased efficiency. However, there is no indication that this temporary measure will necessarily affect the overall visa issuance rates of applicants, which DOS has indicated is higher for returning workers who can demonstrate prior compliance with the program.

46
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, tit. V, sec 565; John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, (2006); Save Our Small and Seasonal Businesses Act of 2005, Public Law. 109-13, div. B, tit. IV, sec. 402.

47
The previous review of an applicant's qualifications and current evidence of lawful travel to the United States will generally lead to a shorter processing time of a renewal application. In addition, U.S. Department of State consular officers temporarily have flexibility to waive the in-person interview requirementof certain nonimmigrant visa applicants.
See, e.g.,
86 FR 70735 (Dec. 13, 2021);
see also
DOS,
Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html
(last updated Dec. 23, 2021).

48
Some consular sections waive the in-person interview requirement for certain H-2B applicants who otherwise meet the strict limitations set out under INA section 222(h), 8 U.S.C. 1202(h). Through December 31, 2022, certain first-time H-2B visa applicants, and certain H-2B visa applicants previously issued any type of visa within the last 48 months may be eligible for interview waiver. Additionally, certain H-2B applicants renewing visas in the same classification within 48 months of the prior visa's expiration are eligible for interview waiver. This waiver authorityvisa expiring has no sunset date. DOS,
Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html
(last updated Dec. 23, 2021).

49
The authority allowing for waiver of interview of certain first-time H-2 (temporary agricultural and non-agricultural workers) applicants is extended through the end of 2022. DOS,
Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html
(last updated Dec. 23, 2021).

Limiting the supplemental cap to returning workers is beneficial because these workers have generally followed immigration law in good faith and demonstrated their willingness to return home when they have completed their temporary labor or services or their period of authorized stay, which is a condition of H-2B status. The returning worker condition therefore provides a basis to believe that H-2B workers under this cap increase will again abide by the terms and conditions of their visa or nonimmigrant status. The returning worker condition also benefits employers that seek to re-hire known and trusted workers who have a proven positive employment track record while previously employed as workers in this country. While the Departments recognize that the returning worker requirement may limit to an extent the flexibility of employers that might wish to hire non-returning workers, the requirement provides an important safeguard against H-2B abuse, which DHS considers to be a significant consideration.

In allocating up to 11,500 H-2B visas to nationals of the Northern Central American countries and Haiti while making the remaining allocation of up to 23,500 H-2B visas available to qualified returning workers, irrespective of their country of nationality, this rule strikes a balance between furthering the U.S. foreign policy interests of creating a comprehensive, whole-of-government framework—of which this allocation is one piece—to address and manage migration from the Northern Central American countries and Haiti and addressing the needs of certain H-2B employers that are suffering irreparable harm or will suffer impending irreparable harm. The United States has strong foreign policy interests in allocating up to 11,500 supplemental visas only to nationals of the Northern Central American countries or Haiti and exempting such persons from the returning worker requirement. The

Secretary of Homeland Security has determined that both the 11,500 limitation and the exemption from the returning worker requirement for nationals of the Northern Central American countries is again beneficial in light of President Biden's February 2, 2021 E.O. 14010, which instructed the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access for nationals of the Northern Central American countries to visa programs, as appropriate and consistent with applicable law, and to work toward addressing some of the causes of and managing migration throughout North and Central America. In response to this executive order, DHS seeks to promote and improve safety, security, and economic stability throughout the North and Central American region, and work with these countries to stem the flow of irregular migration in the region and enhance access to visa programs. Like the temporary final rule for the first half of FY 2022, DHS believes that including nationals of Haiti in this allocation of up to 11,500 supplemental visas will further promote and improve safety, security, and economic stability throughout this region, and is in the interests of the United States as a close partner and neighbor.
50

As DHS emphasized in its November 10, 2021
Federal Register
notice adding Haiti to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs, sustainable development and the stability of Haiti is vital to the interests of the United States as a close partner and neighbor.
51

50
We note Congress' recent statement, in a separate provision within the FY 2022 Omnibus, that it is the policy of the United States to support the sustainable rebuilding and development of Haiti.
See
Section 102 of Division V of the Consolidated Appropriations Act, 2022, Public Law 117-103.
See also
86 FR 62562 (sustainable development and the stability of Haiti is vital to the interests of the United States as a close partner and neighbor).

51

See Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,
86 FR 62559, 62562,
https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf
(Nov. 10, 2021).

The exemption from the returning worker requirement recognizes the small numbers of individuals, approximately 4,750 per year, from the three Northern Central American countries and Haiti who were previously granted H-2B visas in recent years.
52

Absent this exemption, there may be insufficient workers from these countries, which means that the rule might thereby fail to achieve its intended policy objective to provide additional temporary foreign workers for U.S. employers that are suffering irreparable harm or will suffer impending irreparable harm, while also enhancing access to the H-2B visa classification for nationals of the Northern Central American countries and Haiti.

52
DOS issued a combined total of approximately 33,275 H-2B visas to nationals of the Northern Central American countries and Haiti from FY 2015 through FY 2021, or approximately 4,750 per year.
See
DOS,
Monthly NIV Issuances, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html
(last visited Mar. 15, 2022);
Monthly Nonimmigrant Visa Issuance Statistics by Nationality and Visa Class, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html
(last visited Mar. 15, 2022).

Finally, like the temporary final rule for the first half of FY 2022 supplemental cap, this rule does
not
make available unfilled visas from the allocation for nationals of the Northern Central American countries and Haiti to the general supplemental cap for returning workers. As with the supplemental cap for returning workers, USCIS will stop accepting petitions received under the allocation for the Northern Central American countries and Haiti after September 15, 2022. This end date should provide H-2B employers ample time, should they choose, to petition for, and bring in, workers under the allocation for the Northern Central American countries and Haiti. This, in turn, provides an opportunity for employers to contribute to our country's efforts to promote and improve safety, security and economic stability in these countries to help stem the flow of irregular migration to the United States.

For all petitions filed under this rule and the H-2B program, generally, employers must establish, among other requirements, that insufficient qualified U.S. workers are available to fill the petitioning H-2B employer's job opportunity and that the foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly-employed U.S. workers. INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 655.1. To meet this standard of protection for U.S. workers and, in order to be eligible for additional visas under this rule, employers must have applied for and received a valid TLC in accordance with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20 CFR part 655, subpart A. Under DOL's H-2B regulations, TLCs are valid only for the period of employment certified by DOL and expire on the last day of authorized employment. 20 CFR 655.55(a).

In order to have a valid TLC, therefore, the employment start date on the employer's H-2B petition must not be different from the employment start date certified by DOL on the TLC.
See
8 CFR 214.2(h)(6)(iv)(D). Under generally applicable DHS regulations, the only exception to this requirement applies when an employer files an amended visa petition, accompanied by a copy of the previously approved TLC and a copy of the initial visa petition approval notice, at a later date to substitute workers as set forth under 8 CFR 214.2(h)(6)(viii)(B). This rule also requires additional recruitment for certain petitioners, as discussed below.

In sum, this rule increases the FY 2022 numerical limitation by up to 35,000 visas for positions with start dates on or before September 30, 2022, but also restricts the availability of those additional visas by prioritizing only the most significant business needs, and limiting eligibility to H-2B returning workers, unless the worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 allocation that are exempt from the returning worker limitation. These provisions are each described in turn below.

B. Numerical Increase and Allocation of up to 35,000 Visas

The increase of up to 35,000 visas will help address the urgent needs of eligible employers for additional H-2B workers for those employers with employment needs for start dates on or before September 30, 2022.
53

The determination to allow up to 35,000 additional H-2B visas reflects a balancing of a number of factors including the demand for H-2B visas for the second half of FY 2022; current economic conditions; the general trend

of increased demand for H-2B visas from FY 2017 to FY 2021; H-2B returning worker data; the amount of time remaining for employers to hire and obtain H-2B workers in the fiscal year; concerns from Congress, state and local elected officials, U.S. businesses, chambers of commerce, and employer organizations expressing a need for additional H-2B workers; and the objectives of E.O. 14010. DHS believes the numerical increase both addresses the needs of U.S. businesses and, as explained in more detail below, furthers the foreign policy interests of the United States.

53
In contrast with section 214(g)(1) of the INA, 8 U.S.C. 1184(g)(1), which establishes a cap on the number of individuals who may be issued visas
or otherwise provided H-2B status
(emphasis added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), which imposes a first half of the fiscal year cap on H-2B issuance with respect to the number of individuals who may be issued visas
or are accorded [H-2B] status”
(emphasis added), section 204 only authorizes DHS to increase the number of available H-2B
visas.
Accordingly, DHS will not permit individuals authorized for H-2B status pursuant to an H-2B petition approved under section 204 to change to H-2B status from another nonimmigrant status.
See
INA section 248, 8 U.S.C. 1258;
see also
8 CFR part 248. If a petitioner files a petition seeking H-2B workers in accordance with this rule and requests a change of status on behalf of someone in the United States, the change of status request will be denied, but the petition will be adjudicated in accordance with applicable DHS regulations. Any noncitizen authorized for H-2B status under the approved petition would need to obtain the necessary H-2B visa at a consular post abroad and then seek admission to the United States in H-2B status at a port of entry.

Section 204 of the FY 2022 Omnibus sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2022.
54

Consistent with the statute's reference to H-2B returning workers, in determining the appropriate number by which to increase the H-2B numerical limitation, the Secretary of Homeland Security focused on the number of visas allocated to such workers in years in which Congress enacted returning worker exemptions from the H-2B numerical limitation. During each of the years the returning worker provision was in force, U.S. employers' standard business needs for H-2B workers exceeded the statutory 66,000 cap. The highest number of H-2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H-2B visas to be made available during the second half of FY 2022, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it would be appropriate to make available up to 35,000 additional visas under the FY 2022 supplemental cap authority. The Secretary further considered the objectives of E.O. 14010, which among other initiatives, instructs the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access to visa programs for nationals of the Northern Central American countries, as well as to address some of the root causes of and manage migration throughout both North and Central America, including Haiti, and determined that reserving up to 11,500 of the up to 35,000 additional visas and exempting this number from the returning worker requirement for nationals from the Northern Central American countries or Haiti would be appropriate.

54
During fiscal years 2005 to 2007, and 2016, Congress enacted “returning worker” exemptions to the H-2B visa cap, allowing workers who were counted against the H-2B cap in one of the three preceding fiscal years not to be counted against the upcoming fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005, Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17, 2006); Consolidated Appropriations Act of 2016, Public Law 114-113, Sec. 565 (Dec. 18, 2015).

In past years, the number of beneficiaries covered by H-2B petitions filed exceeded the number of additional visas allocated under recent supplemental caps. In FY 2018, USCIS received petitions for approximately 29,000 beneficiaries during the first 5 business days of filing for the 15,000 supplemental cap. USCIS therefore conducted a lottery on June 7, 2018, to randomly select petitions that would be accepted under the supplemental cap. Of the petitions that were selected, USCIS issued approvals for 15,672 beneficiaries.
55

In FY 2019, USCIS received sufficient petitions for the 30,000 supplemental cap on June 5, 2019, but did not conduct a lottery to randomly select petitions that would be accepted under the supplemental cap. Of the petitions received, USCIS issued approvals for 32,717 beneficiaries. In FY 2021, USCIS received a sufficient number of petitions for the 22,000 supplemental cap on August 13, 2021, including a significant number of workers from Northern Central American countries.
56

Of the petitions received, USCIS issued approvals for 30,681 beneficiaries, including approvals for 6,805 beneficiaries under the allocation for the nationals of the Northern Central American countries.
57

55
USCIS recognizes it may have received petitions for more than 29,000 supplemental H-2B workers if the cap had not been exceeded within the first 5 days of opening. However, DHS estimates that not all of the 29,000 workers requested under the FY 2018 supplemental cap would have been approved and/or issued visas. For instance, although DHS approved petitions for 15,672 beneficiaries under the FY 2018 cap increase, the Department of State data shows that as of January 15, 2019, it issued only 12,243 visas under that cap increase. Similarly, DHS approved petitions for 12,294 beneficiaries under the FY 2017 cap increase, but the Department of State data shows that it issued only 9,160 visas.

56
On June 3, USCIS announced that it had received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only, but that it would continue accepting petitions for the additional 6,000 visas allotted for nationals of the Northern Central American countries.
See https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021
(June 3, 2021). On July 23, 2021, USCIS announced that, because it did not receive enough petitions to reach the allocation for the Northern Central American countries by the July 8 filing deadline, the remaining visas were available to H-2B returning workers regardless of their country of origin.
See https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021
(July 23, 2021).

57
The number of approved workers exceeded the number of additional visas authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. Unlike these past supplemental cap TFRs, petitions filed under the first half FY 2022 TFR did not exceed the additional allocation of 20,000 H-2B visas provided by that rule. Under the previous FY 2022 supplemental cap for petitions with start dates in the first half of FY 2022, as of March 31, 2022, USCIS had issued approvals for 17,185 beneficiaries, including approvals for 3,116 beneficiaries under the allocation for nationals of the Northern Central American countries and Haiti. USCIS H-2B petition approval data pulled from CLAIMS3 on March 31, 2022.

Data for the second half of FY 2022 clearly indicate an immediate need for additional supplemental H-2B visas through the end of FY 2022. As of March 31, 2022, DOL's Office of Foreign Labor Certification (OFLC) reports having approved 4,771 TLC applications with requested dates of need in the second half of FY 2022 for 79,947 H-2B workers.
58

Furthermore, USCIS received a sufficient number of H-2B petitions to reach the second half of the FY 2022 fiscal year statutory cap on February 25, 2022.
59

58
DOL OFLC memo to USCIS Office of Policy and Strategy March 31, 2022.

59
On March 1, 2022, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the second half of fiscal year 2022, and that February 25, 2022 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date on or after April 1, 2022, and before October 1, 2022.
See
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2022,
https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022
(Mar. 1, 2022).

In addition, although the public health emergency due to COVID-19 still exists,
60

DHS believes that issuing additional H-2B visas is appropriate in the context of the nation's economic recovery from the ongoing pandemic. In March 2020, the U.S. labor market was severely affected by the onset of the COVID-19 pandemic, pushing the national unemployment rate to near record levels and resulting in millions of U.S. workers being displaced from work.

60

See
HHS,
Renewal of Determination That A Public Health Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx
(Apr. 12, 2022).

In fiscal year 2021, approximately 88 percent of H-2B filings were for positions within just 5 sectors.
61

NAICS 56 (Administrative and Support and Waste Management and Remediation Services) accounted for 41.7% of filings, NAICS 71 (Accommodation and Food Services) accounted for 17.1%, NAICS

72 (Arts, Entertainment, and Recreation) accounted for 14.5%, NAICS 23 (Construction) accounted for 9.5%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) accounted for 5% of filings.

61
USCIS analysis of DOL OLFC Performance data.

Within these industries, DOL data show increased labor demand over the last year. More specifically, DOL data from the March 29, 2022 Job Openings and Labor Turnover Survey (JOLTS) show that the rate of job openings
62

increased for all 5 industries between February 2021 and February 2022. The job opening rate for NAICS 56
63

increased from 6.7 to 8.7 while the job opening rate for NAICS 71 went from 8.0 to 8.5. The job opening rate for NAICS 72 went from 6.7 to 10.2 while the rate for NAICS 23 went from 3.4 to 4.8. The job opening rate for NAICS 11
64

increased from 3.5 to 5.4.

62
The JOLTS News Release states that the job openings rate is calculated by dividing the number of job openings by the sum of employment and job openings and multiplying that quotient by 100.
See https://www.bls.gov/news.release/archives/jolts_03292022.htm
(last visited April 4, 2022).

63
JOLTS data presented here are for the Professional and Business Services Supersector, which is comprised of NAICS 54, NAICS 55 and NAICS 56.
See https://www.bls.gov/iag/tgs/iag60.htm.
As such, the data presented here should be understood to be the best possible proxy for changes in NAICS 56 and not a direct measurement of any specific change in the actual underlying sectors. The latest data available, for March 2022, from the Department of Labor's Current Employment Statistics program indicates that NAICS 56 accounted for just under 43% of employment in Professional Business Services. All data accessed April 28, 2022.

64
JOLTS data presented here are for Mining and Logging, which is part of the Natural Resources and Mining Supersector. This supersector is comprised of NAICS 11 (Agriculture, Forestry, Fishing and Hunting) and NAICS 21 (Mining, Quarrying, and Oil and Gas Extraction).
See https://www.bls.gov/iag/tgs/iag10.htm.
As such, the data presented here should be understood to be the best possible proxy for changes in NAICS 11 and not a direct measurement of any specific change in the actual underlying sectors. The latest data available, for March 2022, from the Department of Labor's Current Employment Statistics program indicates that NAICS 11 accounted for just over 7% of employment in Natural Resources and Mining. All data accessed April 28, 2022.

Year-Over-Year Change in Job Opening Rate
65

NAICS 11
NAICS 23
NAICS 56
NAICS 71
NAICS 72

1.9
1.4
2.0
0.5
3.5

The

increase in the job openings rate across these industries is a clear indication of increased labor demand within these industries. The Departments believe that the supplemental allocation of H-2B visas described in this temporary final rule will help to meet increased job openings in these industries.

65
Year-over-year change was calculated as the difference between the February 2022 value for the respective industry and the February 2021 value.
See https://www.bls.gov/jlt/#data.
All data accessed March 29, 2022.

Other economy-wide data also indicate that labor-market tightness exists. The most recent Employment Situation released by the Bureau of Labor Statistics stated that the unemployment rate decreased to 3.6% in March 2022.
66

Historically, the availability of H-2B visas addressed a need in the labor market during periods of lower unemployment, additionally, when the unemployment rate is below 6% there is greater variance of H-2B visas. Chart 1
67

shows that the estimated total H-2B visa issuance for Fiscal Year 2022
68

is within past allocations of this program. The data presented here is meant to provide additional context and to demonstrate that the total allocation of H-2B visas is reasonable given labor market conditions.

66

https://www.bls.gov/news.release/archives/empsit_04012022.htm.

67
Annual data presented here is on a fiscal year basis. Fiscal year averages were calculated by taking the average of the monthly unemployment rate for the months in each respective fiscal year (October-September). Data for 2022 are based on data for October 2021-March 2022.

68
Estimated visas issued for Fiscal Year 2022 is based on the sum of the fiscal year statutory cap for H-2B workers (66,000), the supplemental allocation for the first half of Fiscal Year 2022 (20,000), and the supplemental allocation described in this Rule (35,000). Additionally, because H-2B visa issuance numbers generally exceed the number of allocated H-2B visas due to the cap exemptions USCIS estimated total FY2022 visa issuance by first calculating the ratio of visas issued to visas allocated over the last 5 fiscal years (XXX/YYY=Z) and then applying that ratio to the H-2B visa allocations for Fiscal Year 2022.

EN18MY22.004

In addition, DOS announced in November 2021 that, as worldwide restrictions due to the COVID-19 pandemic begin to ease, and in line with the President's proclamation regarding the safe resumption of international travel,
69

the Bureau of Consular Affairs is focusing on reducing wait times for all consular services at embassies and consulates overseas while also protecting health and safety of staff and applicants.
70

To further streamline nonimmigrant visa processing, the Bureau of Consular Affairs used its authority to waive in-person visa interviews for certain H-2 applicants through December 31, 2022, and beyond 2022 for applicants renewing a visa in the same classification within 48 months of the visa's expiration.
71

We note, however, that in response to continued concerns about COVID variants, including the highly contagious Omicron variant and its most common lineages,
72

the Centers for Disease Control and Prevention (CDC) updated testing requirements for international air travel to the United States, which may have an impact on such travel.
73

Given the level of demand for H-2B workers, the continued economic recovery, the continued and projected job growth, and the resumption of visa processing services, DHS believes it is appropriate to release additional visas at this time. Further, DHS believes that 35,000 is an appropriate number of visas for the reasons discussed above.

69
Proclamation 10294 of Oct. 25, 2021, Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic, 86 FR 59603 (Oct. 28, 2021).

70

See
DOS,
Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html
(last updated Nov. 19, 2021).

71

See
DOS,
Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html
(last updated Dec. 23, 2021).

72

See
CDC,
Omicron Variant: What You Need to Know, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html
(last updated Mar. 29. 2022).

73

See
CDC,
Requirement for Proof of Negative COVID-19 Test or Documentation of Recovery from COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html
(updated Jan. 27, 2022). The amended updates state, “All air passengers 2 years or older with a flight departing to the U.S. from a foreign country at or after 12:01a.m. EST (5:01a.m. GMT) on December 6, 2021, are required [to] show a negative COVID-19 viral test result taken no more than 1 day before travel, or documentation of having recovered from COVID-19 in the past 90 days, before they board their flight.” Changes made prior to the emergence of Omicron also reflect the evolving nature of the pandemic and potential impacts on international air travel by H-2B workers.
See
86 FR 59603 (Oct. 28, 2021) (Presidential Proclamation);
see also
86 FR 61224 (Nov. 5, 2021) (implementing CDC Order).

Finally, recognizing the high demand for H-2B visas, it is plausible that the additional H-2B supplemental allocations provided in this rule will be reached prior to the end of the fiscal year. Specifically, the following scenarios may still occur:

• The 23,500 supplemental cap visas limited to returning workers that will be immediately available for employers will be reached before September 15, 2022.

• The 11,500 supplemental cap visas limited to nationals of the Northern Central American countries and Haiti will be reached before September 15, 2022.

DHS regulation, 8 CFR 214.2(h)(6)(xii)(E), reaffirms the use of the processes that are in place when H-2B numerical limitations under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10), are reached, as applicable to each of the scenarios described above that involve numerical limitations of the supplemental cap. Specifically, for each of the scenarios mentioned above, DHS will monitor petitions received, and make projections of the number of petitions necessary to achieve the projected numerical limit of approvals. USCIS will also notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt dates”) for each of these scenarios. The day the public is notified will not control the final receipt dates. Moreover, USCIS may randomly select, via computer-generated selection, from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals for each of the scenarios involving numerical limitations to the supplemental cap. USCIS may, but will not necessarily, conduct a lottery if: The 23,500 supplemental cap visas for returning workers is reached before September 15, 2022; or the 11,500 visas limited to nationals of the Northern Central American countries and Haiti is reached before September 15, 2022. Finally, similar to the processes applicable to the H-2B semi-annual statutory cap, if the final receipt date is any of the first 5 business days on which petitions subject to the applicable numerical limit may be received (in other words, if the numerical limit is reached on any one of the first 5 business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those 5 business days.

C. Returning Workers

Similar to the temporary increases in FY 2019, FY 2021, and the first half of FY 2022 the Secretary of Homeland Security has determined that the supplemental visas should be granted to returning workers from the past 3 fiscal years, in order to meet the immediate need for H-2B workers, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti and is counted towards the separate 11,500 cap for such workers. The Secretary has determined that, for purposes of this program, H-2B returning workers include those individuals who were issued an H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021. As discussed above, the Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past three fiscal years is appropriate as it mirrors the standard that Congress designated in previous returning worker provisions. Returning workers have previously obtained H-2B visas and therefore been vetted by DOS, would have departed the United States as generally required by the terms of their nonimmigrant admission, and therefore may have a higher likelihood of success in obtaining their new visas through DOS, possibly without a required interview, and begin work more expeditiously.

To ensure compliance with the requirement that additional visas only be made available to returning workers, petitioners seeking H-2B workers under the supplemental cap will be required to attest that each employee requested or instructed to apply for a visa under the FY 2022 supplemental cap was issued an H-2B visa or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti and is counted towards the 11,500 cap. This attestation will serve as prima facie initial evidence to DHS that each worker, unless a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 cap, meets the returning worker requirement. DHS and DOS retain the right to review and verify that each beneficiary is in fact a returning worker any time before and after approval of the petition or visa. DHS has authority to review and verify this attestation during the course of an audit or investigation, as otherwise discussed in this rule.

D. Returning Worker Exemption for Up to 11,500 Visas for Nationals of Guatemala, El Salvador, and Honduras (Northern Central American Countries) and Haiti

As described above, the Secretary of Homeland Security has determined that up to 11,500 additional H-2B visas will be limited to workers who are nationals of one of the Northern Central American countries or Haiti. These 11,500 visas will be exempt from the returning worker requirement. If the 11,500 visa limit has been reached and the 23,500 returning worker cap has not, petitioners may continue to request workers who are nationals of one of the Northern Central American countries or Haiti, but these noncitizens must be specifically requested as returning workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2019, 2020, or 2021.

DHS has determined that reserving 11,500 supplemental H-2B visas for nationals of the Northern Central American countries or Haiti—a number higher than the average annual number of visas issued to such persons in the past 7 fiscal years—will encourage U.S. employers that are suffering irreparable harm or will suffer impending irreparable harm to seek out workers from such countries, while, at the same time, increase interest among nationals of the Northern Central American countries and Haiti seeking a legal pathway for temporary employment in the United States. DHS also believes its outreach efforts with the governments of the Northern Central American countries and Haiti, along with efforts in some of these countries by the United States Agency for International Development (USAID) to increase access to the H-2B program, support the decision to provide a higher reservation of H-2B visas for these countries than it has in prior recent TFRs. USAID has worked to build government capacity in Northern Central America to facilitate access to temporary worker visas under the H-2 program. These efforts focus on systematic, orderly, and safe recruitment of workers, engagement with U.S. employers, and strengthening worker protections. In Fiscal Year 2021, USAID increased funding to expand capacity building activities in El Salvador, Guatemala, and Honduras in response to the increased demand generated by the supplemental allocation of 6,000 H-2B visas for Northern Central American nationals included in the FY 2021 TFR. The acceleration of USAID's activities in FY 2021 likely helped increase uptake of H-2B visas issuance under the FY 2021 TFR, as H-2B visa issuances to Salvadorans, Guatemalans and Hondurans exceeded pre-pandemic levels by nearly 40 percent in FY 2021,
74

and USAID's assistance helped reduce the average period of time to match qualified workers from these three countries to requests from U.S. employers—most significantly in Honduras, from 24 days to nine days. USAID's programs also strengthen worker protections by helping crowd out unethical recruiters and providing labor rights education and resources to seasonal workers.

74

See
DOS,
Monthly NIV Issuances by Nationality and Visa Class, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html
(last visited Mar. 15, 2022);
Monthly Nonimmigrant Visa Issuance Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html
(last visited Mar. 15, 2022).

DOS issued a combined total of approximately 26,630 H-2B visas to nationals of the Northern Central American countries or Haiti from FY 2015 through FY 2020, an average of approximately 4,400 per year.
75

In FY 2021, DOS issued a combined total of more than 6,600 visas to nationals of Northern Central American countries. This increase is likely due in part to the additional H-2B visas made available to nationals of these countries by the FY 2021 H-2B supplemental visa temporary final rule.
76

In addition, based in part on the vital U.S. interest of promoting sustainable development and the stability of Haiti, in November 2021, DHS added Haiti to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs.
77

Therefore, as previously stated, DHS has determined that the additional increase in FY 2022 will not only provide U.S. businesses who have been unable to find qualified and available U.S. workers with potential workers, but also promote further expansion of lawful immigration and lawful employment authorization for nationals of Northern Central American countries and Haiti.

75

Id.

76

Id.

77

See Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,
86 FR 62559, 62562,
https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).

While DHS reiterates the importance of limiting the general supplemental cap exclusively to returning workers, for the reasons stated previously, the Secretary has determined that the exemption from the returning worker requirement for nationals of the Northern Central American countries or Haiti is beneficial for the following reasons. It strikes a balance between furthering the U.S. foreign policy interests of expanding access to lawful pathways to nationals of the Northern Central American countries and Haiti seeking economic opportunity in the United States and addressing the needs of certain H-2B employers that are suffering irreparable harm or will suffer impending irreparable harm. This policy initiative would also support the strategies for the region described in E.O. 14010, which directs DHS to implement efforts to expand access to lawful pathways to the United States, including visa programs, as appropriate and consistent with the law through both protection-related and non-protection related programs. E.O. 14010 further directs relevant government agencies to create a comprehensive regional framework to address the causes of migration, and to manage migration throughout North and Central America.
78

The availability of workers from the Northern Central American countries and Haiti may promote safe and lawful immigration to the United States, as well as help provide U.S. employers with additional labor from neighboring countries with whom the Biden administration and DHS have engaged in outreach efforts to promote the H-2B program.

78

See also National Security Council, Collaborative Migration Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (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).

Similar to the discussion above regarding returning workers, DOS will work with the relevant countries to facilitate consular interviews, as required,
79

and channels for reporting incidents of fraud and abuse within the H-2 programs. Further, each country's own consular networks will maintain contact with the workers while in the United States and ensure the workers know their rights and responsibilities

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.

79
As noted previously, some consular sections may waive the in-person interview requirement for H-2B applicants whose prior visa expired within a specific timeframe and who otherwise meet the strict limitations set out under INA section 222(h), 8 U.S.C. 1202(h). The authority allowing for waiver of interview of certain H-2 (temporary agricultural and non-agricultural workers) applicants is extended through the end of 2022. Certain applicants renewing a visa in the same classification within 48 months of the prior visa's expiration are also eligible for interview waiver. DOS,
Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html
(last updated Dec. 23, 2021).

Nothing in this rule will limit the authority of DHS or DOS to deny, revoke, or take any other lawful action with respect to an H-2B petition or visa application at any time before or after approval of the H-2B petition or visa application.

E. Business Need Standard—Irreparable Harm and FY 2022 Attestation

To file any H-2B petition under this rule, petitioners must meet all existing H-2B eligibility requirements, including having an approved, valid, and unexpired TLC.
See
8 CFR 214.2(h)(6) and 20 CFR part 655, subpart A. In addition, the petitioner must submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that it meets the business need standard. Petitioners must be able to establish that they are suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petition.
80

The TLC process focuses on establishing whether a petitioner has a temporary need for workers and whether there are U.S. workers who are able, willing, qualified, and available to perform the temporary service or labor, and does not address the harm a petitioner is facing or will face in the absence of such workers; the attestation addresses this question. The attestation must be submitted directly to USCIS, together with Form I-129, the approved and valid TLC,
81

and any other necessary documentation. As in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and first half FY 2022 temporary cap increases, employers will be required to complete the new attestation form which can be found at:
https://www.foreignlaborcert.doleta.gov/form.cfm.
82

80
An employer may request fewer workers on the H-2B petition than the number of workers listed on the TLC.
See
Instructions for Petition for Nonimmigrant Worker, providing that “the total number of workers you request on the petition must not exceed the number of workers approved by the Department of Labor or Guam Department of Labor, if required, on the temporary labor certification.”

81
Since July 26, 2019, USCIS has been accepting a printed copy of the electronic one-page ETA-9142B, Final Determination: H-2B Temporary Labor Certification Approval, as an original, approved TLC.
See Notice of DHS's Requirement of the Temporary Labor Certification Final Determination Under the H-2B Temporary Worker Program,
85 FR 13178, 13179 (Mar. 6, 2020).

82
The attestation requirement does not apply to workers who have already been counted under the H-2B statutory cap for the second half of fiscal year 2022 (33,000). Further, the attestation requirement does not apply to noncitizens who are exempt from the fiscal year 2022 H-2B statutory cap, including those who are extending their stay in H-2B status. Accordingly, petitioners that are filing on behalf of such workers are not subject to the attestation requirement.

Prior to the first half FY 2022 temporary final rule, petitioners were only required to attest that they were likely to suffer irreparable harm if they were unable to employ all of the H-2B workers requested on their I-129 petition submitted under H-2B cap increase rules. In the previous FY 2022 temporary final rule, the Departments changed the standard to require employers to instead attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition filed under the rule. This change was designed to focus more directly on the actual irreparable harm employers are suffering or the impending irreparable harm they will suffer as a result of their inability to employ H-2B workers, rather than on just the possibility of such harm. This standard will be applied to the instant temporary final rule, and employers will again be required to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition filed under this rule.

As noted above, Congress authorized the Secretary of Homeland Security, in consultation with the Secretary of Labor, to increase the total number of H-2B visas available “upon the determination that the needs of American businesses cannot be satisfied” with U.S. workers under the statutory visa cap.
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The irreparable harm standard in this rule aligns with the determination that Congress requires DHS to make before increasing the number of H-2B visas available to U.S. employers. In particular, requiring employers to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the requested H-2B workers is directly relevant to the needs of the business—if an employer is suffering or will suffer irreparable harm, then their needs are not being satisfied. The prior standard, on the other hand, required only that the employer attest that harm was
likely
to occur at some point in the future, which created uncertainty as to whether that employer's needs were truly unmet or would not be met without being able to employ the requested H-2B workers. Because the authority to increase the statutory cap is tied to the needs of businesses, the Departments think it is reasonable for employers to attest that they are suffering irreparable harm or that they will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition. If such employers are unable to attest to such harm and retain and produce (upon request) documentation of that harm, it calls into question whether their needs cannot in fact be satisfied without the ability to employ H-2B workers.

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Public Law 117-103 Consolidated Appropriations Act, 2022, section 204 (Mar. 15, 2022), Public Law 117-70 Further Extending Government Funding Act, Division A “Further Continuing Appropriations Act, 2022”, section 101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law 117-43 Extending Government Funding and Delivering Emergency Assistance Act, Division A “Continuing Appropriations Act, 2022”, Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and authorities, including authority under section 105 of title I of Division O of Public Law 116-260, through December 3, 2021.

The “are suffering irreparable harm or will suffer impending irreparable harm” standard is also informed by the Departments' experiences in implementing the prior business need standard. In the Departments' experiences, the “likely to suffer irreparable harm” standard was difficult to assess and administer in the context of prior supplemental cap rules. For example, employers reported confusion with the standard, including some employers that were not able to provide adequate evidence of the prospective “likelihood of irreparable harm” when selected for an audit. The Departments therefore believe that asking employers to provide evidence of harm, as described in more detail later, that is occurring or is impending without the ability to employ all of the H-2B workers requested on their petition is a better means of ensuring compliance.

The attestation form will serve as prima facie initial evidence to DHS that the petitioner's business is suffering irreparable harm or will suffer impending irreparable harm. Any petition requesting H-2B workers under this FY 2022 supplemental cap that is lacking the requisite attestation form may be rejected in accordance with 8 CFR 103.2(a)(7)(ii) or denied in accordance with 8 CFR 103.2(b)(8)(ii), as applicable. Although this regulation does not require submission of evidence at the time of filing of the petition, other than an attestation, the employer must have such evidence on hand and ready to present to DHS or DOL at any time starting with the date of filing the I-129 petition, through the prescribed

document retention period discussed below.

As with petitions filed under the FY 2021 and prior FY 2022 Supplemental TFRs, the Departments intend to select a significant number of petitions approved for audit examination to verify compliance with program requirements, including the irreparable harm standard and recruitment provisions implemented through this rule. Failure to provide evidence demonstrating irreparable harm or to comply with the audit process may be considered a substantial violation resulting in an adverse agency action on the employer, including revocation of the petition and/or TLC or program debarment. Similarly, failure to cooperate with any compliance review, evaluation, verification, or inspection conducted by DHS or DOL as required by 8 CFR 214.2(h)(6)(xii)(B)(
2
)(
vi
) and (
vii
), respectively, may constitute a violation of the terms and conditions of an approved petition and lead to petition revocation under 8 CFR 214.2(h)(11)(iii)(A)(
3
).

The attestation submitted to USCIS will also state that the employer meets all other eligibility criteria for the available visas, including the returning worker requirement, unless exempt because the H-2B worker is a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 visas reserved for such workers; will comply with all assurances, obligations, and conditions of employment set forth in the
Application for Temporary Employment Certification
(Form ETA 9142B and appendices) certified by DOL for the job opportunity (which serves as the TLC); will conduct additional recruitment of U.S. workers in accordance with the requirements of this rule and discussed further below; and will document and retain evidence of such compliance. Because the attestation will be submitted to USCIS as initial evidence with Form I-129, DHS considers the attestation to be evidence that is incorporated into and a part of the petition consistent with 8 CFR 103.2(b)(1). Accordingly, a petition may be denied or revoked, as applicable, based on or related to statements made in the attestation, including but not limited to the following grounds: (1) Because the employer failed to demonstrate employment of all of the requested workers is necessary under the appropriate business need standard; and (2) the employer failed to demonstrate that it requested and/or instructed that each worker petitioned for is a returning worker, or a national of one of the Northern Central American countries or Haiti, as required by this rule. Any denial or revocation on such basis, however, would be appealable under 8 CFR part 103, consistent with DHS regulations and existing USCIS procedures.

It is the view of the Secretaries of Homeland Security and Labor that requiring a post-TLC attestation to USCIS is the most practical approach, given the time remaining in FY 2022 and the need to assemble the necessary documentation. In addition, the employer is required to retain documentation, which must be provided upon request by DHS or DOL, supporting the new attestations regarding (1) the irreparable harm standard, (2) the returning worker requirement, or, alternatively, documentation supporting that the H-2B worker(s) requested is a national of one of the Northern Central American countries or Haiti who is counted against the 11,500 (which may be satisfied by the separate Form I-129 that employers are required to file for such workers in accordance with this rule), and (3) a recruitment report for any additional recruitment required under this rule for a period of 3 years.
See
new 20 CFR 655.66. Although the employer must have such documentation on hand at the time it files the petition, the Departments have determined that, if employers were required to submit the attestation form to DOL before filing a petition with DHS, the attendant delays would render any visas unlikely to satisfy the needs of American businesses given TLC processing timeframes and the time remaining in this fiscal year. However, as noted above, the Departments will employ program integrity measures, including additional scrutiny by DHS of employers that have committed labor law violations in the H-2B program and continue to conduct audits, investigations, and/or post-adjudication compliance reviews on a significant number of H-2B petitions. As part of that process, USCIS may issue a request for additional evidence, a notice of intent to revoke, or a revocation notice, based on the review of such documentation,
see
8 CFR 103.2(b) and 8 CFR 214.2(h)(11), and DOL's OFLC and WHD will be able to review this documentation and enforce the attestations during the course of an audit examination or investigation.

In accordance with the attestation requirements, under which petitioners attest that they meet the irreparable harm standard, that they are seeking to employ only returning workers (unless exempt as described above), and they meet the document retention requirements at new 20 CFR 655.66, the petitioner must retain documents and records fulfilling their responsibility to demonstrate compliance with this rule for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL. With regard to the irreparable harm standard, employers attesting that they are suffering irreparable harm must be able to provide concrete evidence establishing severe and permanent financial loss that is occurring; the scope and severity of the harm must be clearly articulable. Employers attesting that they will suffer impending irreparable harm must be able to demonstrate that severe and permanent financial loss will occur in the near future without access to the supplemental visas; it will not be enough to provide evidence suggesting that such harm may or is likely to occur; rather, the documentary evidence must show that impending harm will occur and document the form of such harm. Supporting evidence of the attestation may include, but is not limited to, the following types of documentation:

(1) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss due to the inability to meet financial or existing contractual obligations because they were unable to employ H-2B workers, including evidence of contracts, reservations, orders, or other business arrangements that have been or would be cancelled, and evidence demonstrating an inability to pay debts/bills;

(2) Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss, as compared to prior years, such as financial statements (including profit/loss statements) comparing the employer's period of need to prior years; bank statements, tax returns, or other documents showing evidence of current and past financial condition; and relevant tax records, employment records, or other similar documents showing hours worked and payroll comparisons from prior years to the current year;

(3) Evidence showing the number of workers needed in the previous three seasons (FY 2019, 2020, and 2021) to meet the employer's need as compared to those currently employed or expected to be employed at the beginning of the start date of need. Such evidence must indicate the dates of their employment, and their hours worked (for example, payroll records) and evidence showing the number of H-2B workers it claims are needed, and the workers' actual

dates of employment and hours worked; and/or

(4) Evidence that the petitioner is reliant on obtaining a certain number of workers to operate, based on the nature and size of the business, such as documentation showing the number of workers it has needed to maintain its operations in the past, or will in the near future need, including but not limited to: A detailed business plan, copies of purchase orders or other requests for good and services, or other reliable forecast of an impending need for workers.

(5) With respect to satisfying the returning worker requirement, evidence that the employer requested and/or instructed that each of the workers petitioned by the employer in connection with this temporary rule were issued H-2B visas or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap. Such evidence would include, but is not limited to, a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H-2B visa to those foreign workers who were previously issued an H-2B visa or granted H-2B status in FY 2019, 2020, or 2021.

These examples are not exhaustive, nor will they necessarily establish that the business meets the irreparable harm or returning worker standards; petitioners may retain other types of evidence they believe will satisfy these standards. When a petition is selected for audit examination, or investigation, DHS or DOL will review all evidence available to it to confirm that the petitioner properly attested to DHS, at the time of filing the petition, that their business was suffering irreparable harm or would suffer impending irreparable harm, and that they petitioned for and employed only returning workers, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap, among other attestations. If DHS subsequently finds that the evidence does not support the employer's attestations, DHS may deny or, if the petition has already been approved, revoke the petition at any time consistent with existing regulatory authorities. DHS may also, or alternatively, refer to DOL for further investigation. In addition, DOL may independently take enforcement action, including by, among other things, debarring the petitioner from the H-2B program for not less than 1 year or more than 5 years from the date of the final agency decision, which also disqualifies the debarred party from filing any labor certification applications or labor condition applications with DOL for the same period set forth in the final debarment decision.
See, e.g.,
20 CFR 655.73; 29 CFR 503.20, 503.24.
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Pursuant to the statutory provisions governing enforcement of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists under the H-2B program where there has been a willful misrepresentation of a material fact in the petition or a substantial failure to meet any of the terms and conditions of the petition. A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions.
See, e.g.,
29 CFR 503.19.

To the extent that evidence reflects a preference for hiring H-2B workers over U.S. workers, an investigation by additional agencies enforcing employment and labor laws, such as the Immigrant and Employee Rights Section (IER) of the Department of Justice's Civil Rights Division, may also be warranted.
See
INA section 274B, 8 U.S.C. 1324b (prohibiting certain types of employment discrimination based on citizenship status or national origin). Moreover, DHS and DOL may refer potential discrimination to IER pursuant to applicable interagency agreements.
See
IER, Partnerships,
https://www.justice.gov/crt/partnerships
(last visited Mar. 29, 2022). In addition, if members of the public have information that a participating employer may be abusing this program, DHS invites them to notify USCIS by completing the online fraud tip form,
https://www.uscis.gov/report-fraud/uscis-tip-form
(last visited Mar. 29, 2022).
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DHS may publicly disclose information regarding the H-2B program consistent with applicable law and regulations. For information about DHS disclosure of information contained in a system of records,
see https://www.dhs.gov/system-records-notices-sorns.
Additional general information about DHS privacy policy generally can be accessed at
https://www.dhs.gov/policy.

DHS, in exercising its s

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-10631. Public record. Not legal advice.