Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

Federal RegisterDec 15, 2022

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2731-22, DHS Docket No. USCIS-2022-0015]

RIN 1615-AC82

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-]

RIN 1205-AC14

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

AGENCY:

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

ACTION:

Temporary rule; request for comments.

SUMMARY:

The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2023 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to, but no more than, a total of 64,716 for the entirety of FY 2023. To assist U.S. businesses that need workers to begin work on different start dates, the Departments have decided to distribute the supplemental visas in several allocations, including two separate allocations for the second half of fiscal year 2023. Out of the total 64,716 visas made available in this rule, the Departments have decided to reserve 20,000 visas for nationals of Guatemala, El Salvador, Honduras, or Haiti. The Departments will make all 64,716 visas available only to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. In addition to making the additional 64,716 visas available under the FY 2023 time-limited authority, DHS is exercising its general H-2B regulatory authority to again provide temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved.

DATES:

Effective dates:

The amendments to title 8 of the Code of Federal Regulations in this rule are effective from December 15, 2022 through December 15, 2025. The amendments to title 20 of the Code of Federal Regulations in this rule are effective from December 15, 2022 through September 30, 2023, except for 20 CFR 655.67 which is effective from December 15, 2022 through September 30, 2026.

Petition dates:

DHS will not accept any H-2B petitions under provisions related to the FY 2023 supplemental numerical allocations after September 15, 2023, and will not approve any such H-2B petitions after September 30, 2023. The provisions related to portability are only available to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2024.

Submission of public comments:

The Departments are accepting written comments on the temporary final rule and on the new information collection. Please follow the instructions in the

ADDRESSES

section to ensure your comment is submitted to the correct docket.

Comments on the Rule:

All public comments on the temporary final rule, identified by DHS Docket No. USCIS-2022-0015, must be submitted on or before February 13, 2023. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

Comments on the Information Collection:

The Office of Foreign Labor Certification within the U.S. Department of Labor will accept comments in connection with the new information collection Form ETA-9142B-CAA-7 associated with this rule until February 13, 2023. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit written comments on the temporary final rule and/or new information collection. Please follow the instructions directly below depending on whether you are submitting a comment on the rule or the DOL Information Collection.

Comments on the rule:

You may submit comments on the entirety of this temporary final rule package, identified by DHS Docket No. USCIS-2022-0015, through the Federal eRulemaking Portal:

https://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to USCIS or DHS officials, will not be considered comments on the temporary final rule and may not receive a response. Please note that USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is not accepting mailed comments at this time. If you cannot submit your comment by using

https://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at 240-721-3000 (not a toll-free call) for alternate instructions.

Comments on the Information Collection:

You may submit written comments on the new information collection Form ETA-9142B-CAA-7, identified by Regulatory Information Number (RIN) 1205-AC14, electronically by the following method:

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions on the website for submitting comments.

Instructions:

Include the agency's name and the RIN 1205-AC14 in your submission. All comments received will become a matter of public record and will be posted without change to

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-7: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave. NW, Room N-5311, Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free number).

Individuals with hearing or speech impairments may access the telephone

numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Legal Framework

B. H-2B Numerical Limitations Under the INA

C. FY 2022 Omnibus and FY 2023 Public Law 117-180

D. Joint Issuance of the Final Rule

III. Discussion

A. Statutory Determination

B. Numerical Increase and Allocations for Fiscal Year 2023

C. Returning Workers

D. Returning Worker Exemption for up to 20,000 Visas for Nationals of Guatemala, El Salvador, and Honduras (Northern Central American Countries) and Haiti

E. Business Need Standard—Irreparable Harm and FY 2023 Attestation

F. Portability

G. COVID-19 Worker Protections

H. DHS Petition Procedures

I. DOL Procedures

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

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

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Congressional Review Act

H. National Environmental Policy Act

I. Paperwork Reduction Act

I. Executive Summary

FY 2023 H-2B Supplemental Cap

With this temporary final rule (TFR), the Secretary of Homeland Security, following consultation with the Secretary of Labor, is authorizing the release of an additional 64,716 H-2B visas for FY 2023, subject to certain conditions. The 64,716 visas are divided into the following allocations:

• For the first half of FY 2023: 18,216 immediately available visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. The-se petitions must request employment start dates on or before March 31, 2023;

• For the early second half of FY 2023 (April 1 to May 14): 16,500 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These early second half of FY 2023 petitions must request employment start dates from April 1, 2023, to May 14, 2023. Furthermore, employers must file these petitions no earlier than 15 days after the second half statutory cap

is reached;

The term “statutory cap” refers to the 66,000 cap set forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at INA section 214(g)(10).

• For the late second half of FY 2023: (May 15 to September 30): 10,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These late second half of FY2023 petitions must request employment start dates from May 15, 2023, to September 30, 2023. Furthermore, employers must file these petitions no earlier than 45 days after the second half statutory cap is reached; and

• For the entirety of FY 2023: 20,000 visas reserved for nationals of El Salvador, Guatemala, and Honduras (Northern Central American countries) and Haiti as attested by the petitioner (regardless of whether such nationals are returning workers). Employers requesting an employment start date in the first half of FY 2023 may file such petitions immediately after the publication of this TFR. Employers requesting an employment start date in the second half of FY 2023 must file such petitions no earlier than 15 days after the second half statutory cap is reached.

To qualify for the FY 2023 supplemental caps provided by this temporary final rule, eligible petitioners must:

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

• Properly file the Form I-129, Petition for Nonimmigrant Worker, with USCIS at its California Service Center on or before September 15, 2023;

• Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H-2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 20,000 cap exempt from the returning worker requirement;

• Prepare and retain a detailed written statement describing how the employer is suffering irreparable harm or will suffer impending irreparable harm and how evidence demonstrates irreparable harm and supports their application; and

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

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

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, 2021, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;

• 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;

• 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;

• Contact in writing and in a language understood by the worker, all U.S. workers currently employed at the place of employment, disclose the terms of the job order, and request assistance in recruiting qualified U.S. workers for the job;

• Where the employer maintains a website for its business operations, post

the job opportunity in a conspicuous location on the employer's website; and

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

Petitioners filing H-2B petitions under this FY 2023 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date DOL approved the TLC, and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits.

Through audits and investigations, both Departments have received evidence of employer non-compliance with the terms and conditions of the H-2B program, as well as violations of other labor and employment laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and Hour Division (WHD), and USCIS Fraud Detection and National Security (FDNS) personnel have encountered non-compliance issues such as failure to pay the promised wage, failure to employ returning workers, failure to demonstrate irreparable harm, failure to conduct the additional recruitment steps, and failure to accurately disclose the beneficiary's work location(s).

Such non-compliance can harm U.S. workers by undermining wages and working conditions. It also directly harms H-2B workers. Further, H-2B workers depend on ongoing employment with the petitioning employer to maintain status in the United States. This dependence creates a power imbalance between the employer and H-2B worker, making the H-2B worker particularly vulnerable to exploitation and violations. In recognition of the substantial impact that non-compliance can have on both U.S. workers and H-2B workers, DHS and DOL again intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. And as it did as part of the FY 2022 second half H-2B supplemental cap TFR, DHS will again subject employers that have committed labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process.

DHS intends for this additional scrutiny to help ensure compliance with H-2B program requirements and obligations.

See Temporary Rule, Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers,

87 FR 30334, 30335 (May 18, 2022).

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

DHS will not approve H-2B petitions filed in connection with the FY 2023 supplemental cap authority on or after October 1, 2023.

H-2B Portability

In addition to exercising its time-limited authority to make additional FY 2023 H-2B visas available, DHS is again providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing nonimmigrant workers in the United States

in valid H-2B status and who are beneficiaries of non-frivolous H-2B petitions received on or after January 25, 2023, or who are the beneficiaries of non-frivolous H-2B petitions that are pending as of January 25, 2023, to begin work with a new employer after an H-2B petition (supported by a valid TLC) is filed and before the petition is approved, generally for a period of up to 60 days. However, such employment authorization would end 15 days after USCIS denies the H-2B petition or such petition is withdrawn. This H-2B portability ends one year after the provision's effective date of January 25, 2023, in other words, at the end of January 24, 2024.

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 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],

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

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

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.

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 the HSA, 6 U.S.C. 111(b)(1)(F), a primary mission

of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.”

DHS regulations provide that an approved TLC from the U.S. Department of Labor (DOL), issued pursuant to regulations established at 20 CFR part 655, or from the Guam Department of Labor if the workers will be employed on Guam, must accompany an H-2B petition for temporary employment in the United States. 8 CFR 214.2(h)(6)(iii)(A) and (C) through (E), (h)(6)(iv)(A)

; see also

INA section 103(a)(6), 8 U.S.C. 1103(a)(6). The TLC serves as DHS's consultation with DOL with respect to whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages and working conditions of similarly-employed U.S. workers.

See

INA section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).

To determine whether to issue a TLC, the Departments have established regulatory procedures under which DOL certifies whether a qualified U.S. worker is available to fill the job opportunity described in the employer's petition for a temporary nonagricultural worker, and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers.

See

20 CFR part 655, subpart A. The regulations establish the process by which employers obtain a TLC and rights and obligations of workers and employers.

Once the petition is approved, under the INA and current DHS regulations, H-2B workers do not have employment authorization outside of the validity period listed on the approved petition unless otherwise authorized, and the workers are limited to employment with the H-2B petitioner.

See

8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer or U.S. agent generally may submit a new H-2B petition, with a new, approved TLC, to USCIS to request an extension of H-2B nonimmigrant status for the validity of the TLC or for a period of up to 1 year. 8 CFR 214.2(h)(15)(ii)(C). Except as provided for in the preceding H-2B supplemental cap TFR

and in this rule, and except for certain professional athletes being traded among organizations,

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.

The FY 2022 second half H-2B supplemental cap TFR included a portability provision at 8 CFR 214.2(h)(28)(iii)(A)(

)-(

), which remains in effect through January 24, 2023.

87 FR 30334 (May 18, 2022).

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 maximum annual number (“statutory cap”) of noncitizens to whom DHS may issue H-2B visas or otherwise provide H-2B nonimmigrant status to perform temporary nonagricultural work is 66,000, distributed semiannually beginning in October and April.

See

INA sections 214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). Accordingly, with certain exceptions as described below, DHS may issue H-2B visas or provide H-2B nonimmigrant status to up to 33,000 noncitizens in the first half of a fiscal year, and the remaining annual allocation, including any unused nonimmigrant H-2B visas from the first half of a fiscal year, are available for employers seeking to hire H-2B workers during the second half of the fiscal year.

If the number of petitions approved by DHS is insufficient to use all H-2B numbers in a given fiscal year, DHS cannot carry over the unused numbers for petition approvals for employment start dates beginning on or after the start of the next fiscal year.

The Federal Government's fiscal year runs from October 1 of the prior year through September 30 of the year being described. For example, fiscal year 2023 is from October 1, 2022, through September 30, 2023.

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.

A returning worker is 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 to qualify for the exemption.

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.

See

INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A),

see also

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

Cf.

INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).

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 semiannual visa allocation, the DOL regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work,

and the DHS regulatory requirement that an approved TLC accompany all H-2B petitions,

employers that wish to obtain visas for their workers under the semiannual allotment must act early to receive a TLC and file a petition with U.S. Citizenship and Immigration Services (USCIS). As a result, the date on which USCIS has reached sufficient H-2B petitions to reach the first half of the fiscal year statutory cap has trended earlier in recent years.

For FY 2022,

for the first time in more than a decade, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap before the start of the fiscal year.

This occurred even earlier in FY 2023, when USCIS received enough H-2B petitions to reach the FY 2023 first-half statutory cap on September 12, 2022.

There has also been a trend in recent years of increased demand for H-2B workers in the second half of the fiscal year.

See

20 CFR 655.15(b).

See

8 CFR 214.2(h)(6)(vi)(A).

In fiscal years 2017 through 2021, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, and November 16, 2020, respectively.

See

USCIS,

USCIS Reaches the H-2B Cap for the First Half of Fiscal Year 2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017

(Jan. 13,

2017); USCIS,

USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018

(Dec. 21, 2017); USCIS,

USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

(Nov. 18, 2020).

On October 12, 2021, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2022, and that September 30, 2021 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2022.

See

USCIS,

USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(Oct 12, 2021).

On September 14, 2022, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2023, and that September 12, 2022 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2023.

See

USCIS,

USCIS Reaches H-2B Cap for the First Half of Fiscal Year 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(last updated Sept. 14, 2022).

In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 7, 2022, covering 136,555 worker positions.

See

DOL,

Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.

Congress, in recognition of historical and current demand has, for the last several fiscal years, authorized supplemental caps.

The authorization for the current supplemental cap is under section 101(6) of Division A of Public Law 117-180, Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023 (FY 2023 authority), which extended the authorization previously provided in section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus), as discussed below.

See

section 543 of Division F of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of the Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus); section 105 of Division I of the Further Consolidated Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of Division A of Public Law 117-43, Continuing Appropriations Act, 2022, and section 101 of Division A of Public Law 117-70, Further Continuing Appropriations Act, 2022 through February 18, 2022 (together, FY 2022 authority); and section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus).

C. FY 2022 Omnibus and FY 2023 Public Law 117-180

On March 15, 2022, President Joseph Biden signed the FY 2022 Omnibus, which contains a provision, section 204 of Division O, Title II, permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA. Specifically, section 204 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in [FY] 2022 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2022 by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation. The highest number of returning workers in any such fiscal year was 64,716, which represents the number of beneficiaries covered by H-2B returning worker petitions that were approved for FY 2007.

The Secretary of Homeland Security consulted with the Secretary of Labor and, on May 18, 2022, published a temporary final rule implementing the authority contained in section 204.

DHS also considered using an alternative approach of calculating the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program, under which DHS measured the number of H-2B returning workers admitted at the ports of entry (66,792 for FY 2007). However, DHS considers USCIS petition data more accurate and verifiable than admission data when measuring workers approved for a certain fiscal year, as admission data may not accurately reflect which cap year the worker was approved for.

See Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

87 FR 30334 (May 18, 2022).

On September 30, 2022, Congress passed Public Law 117-180, which authorizes the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2023 under the same terms and conditions provided in section 204 of Division O of the FY 2022 Omnibus.

In other words, Public Law 117-180 permits the Secretary of Homeland Security, after consultation with the Secretary of Labor, to provide up to 64,716 additional H-2B visas for FY 2023, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2023 cannot be met under the general fiscal year statutory cap.

Under the Public Law 117-180 authority, DHS and DOL are jointly publishing this temporary final rule to authorize the issuance of no more than 64,716 additional visas for FY 2023 to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2023 supplemental cap expires at the end of

that fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2023 supplemental cap authority on or after October 1, 2023.

See

Public Law 117-180, Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023, Division A, section 101(6) (providing DHS funding and other authorities, including the authority to issue supplemental H-2B visas that was provided under title II of Division O of Pub. L. 117-103, through December 16, 2022).

Appropriations and authorities provided by the continuing resolutions are available for the needs of the entire fiscal year to which the continuing resolution applies, although DHS's ability to obligate funds or exercise such authorities may lapse at the sunset of such resolution.

See, e.g.,

Comments on Due Date and Amount of District of Columbia's Contributions to Special Employee Retirement Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that “a continuing resolution appropriates the full annual amount regardless of its period of duration. . . . Standard continuing resolution language makes it clear that the appropriations are available to the extent and in the manner which would be provided by the pertinent appropriations act that has yet to be enacted (unless otherwise provided in the continuing resolution).”). Consistent with this principle, DHS interprets the current continuing resolution to provide DHS with the ability to authorize additional H-2B visa numbers with respect to all of FY 2023 subject to the same terms and conditions as the FY 2022 authority at any time before the continuing resolution expires, notwithstanding the reference to FY 2022 in the FY 2022 Omnibus.

As noted above, since FY 2017, Congress has enacted a series of public laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond the annual numerical limitation set forth in section 214 of the INA. The previous statutory provisions were materially identical to section 204 of the FY 2022 Omnibus, which is the same authority provided for FY 2023 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, as well as during FY 2021 and FY 2022, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that some American businesses could not satisfy their needs in such year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. On the basis of these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published temporary final rules for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Petition for a Nonimmigrant Worker (Form I-129), they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.

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

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.

The vast majority of the H-2B petitions received under the FY 2017 and FY 2018 supplemental caps requested premium processing (Form I-907)

and were adjudicated within 15 calendar days.

See Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

82 FR 32987, 32998 (July 19, 2017);

Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

83 FR 24905, 24917 (May 31, 2018).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

See

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 three fiscal years, and for those businesses that attested to a level of need such that, if they did not receive all of the workers requested on the Form I-129, they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.

The Secretary determined that limiting returning workers to those who were issued an H-2B visa or granted H-2B status in the past 3 fiscal years was appropriate, as it mirrored the standard that Congress designated in previous returning worker provisions. On June 5, 2019, approximately 30 days after the supplemental visas became available, USCIS announced that it received sufficient petitions filed pursuant to the FY 2019 supplemental cap increase. USCIS did not conduct a lottery for the FY 2019 supplemental cap increase. The total number of H-2B workers approved towards the FY 2019 supplemental cap increase was 32,680.

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

See Temporary Rule, Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

84 FR 20005, 20021 (May 8, 2019).

See

84 FR at 20021.

See

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

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

On April 2, 2020, DHS announced that the rule to increase the H-2B cap was on hold due to economic circumstances, and that DHS would not release additional H-2B visas until further notice.

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

See

DHS,

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.

See Proclamation 9994 of Mar. 13, 2020, Declaring a National Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak,

85 FR 15337 (Mar. 18, 2020).

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

See 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, 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.

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

rule.

The total number of H-2B workers approved towards the FY 2021 supplemental cap increase was 30,742.

This total number included approved H-2B petitions for 23,937 returning workers, as well as 6,805 beneficiaries from the Northern Central American countries.

See Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

86 FR 28198 (May 25, 2021).

See

USCIS,

Cap Reached for Remaining H-2B Visas for Returning Workers for FY 2021, https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021

(Aug. 19, 2021).

The number of approved workers exceeded the number of additional visas authorized for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

On January 28, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 20,000 additional H-2B visas for FY 2022 positions with start dates on or before March 31, 2022.

These supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 20,000 additional H-2B visas under that rule consisted of 13,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement. USCIS data show that the total number of H-2B workers approved towards the first half FY 2022 supplemental cap increase was 17,381, including 14,150 workers under the returning worker allocation, as well as 3,231 workers approved towards the Haitian/Northern Central American allocation.

See Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

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

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

Finally, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates beginning on April 1, 2022 through September 30, 2022, based on the continued demand for H-2B workers for the remainder of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of no more than 35,000 additional H-2B visas for the second half of FY 2022.

As in the January 2022 TFR, the supplemental visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The allocation of 35,000 additional H-2B visas under the rule applicable to the second half of FY 2022 consisted of 23,500 visas available only to H-2B returning workers from one of the last three fiscal years (FY 2019, 2020, or 2021) and 11,500 visas reserved for Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were exempted from the returning worker requirement. By May 25, 2022, USCIS had received enough petitions for returning workers to reach the additional 23,500 H-2B visas made available under the second half FY 2022 H-2B supplemental visa temporary final rule.

USCIS data show that the total number of H-2B workers approved towards the second half FY 2022 supplemental cap increase was 43,798, including 31,480 workers under the returning worker allocation, as well as 12,318 workers approved towards the Haitian/Northern Central American allocation.

87 FR 30334 (May 18, 2022).

See

USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

(May 31, 2022).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2022, TRK 10710.

Once again, DHS in consultation with DOL believes that it is appropriate to increase the H-2B cap for FY 2023 based on the demand for H-2B workers in the first half of FY 2023, anticipated demand for the second half of FY 2023, recent economic growth, and strong labor demand.

DHS and DOL also believe that it is appropriate and important to couple this cap increase with additional worker protections, as described below.

The term “strong labor demand” in this context relies on the most recently released figure from a Bureau of Labor Statistics (BLS) survey at the time this TFR was written. The BLS Job Openings and Labor Turnover Survey (JOLTS) reports 10.7 million job openings in August 2022. See DOL, BLS, Job Openings and Labor Turnover—September,

https://www.bls.gov/news.release/archives/jolts_11012022.pdf

(last visited November 2, 2022).

D. Joint Issuance of the Final Rule

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

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.

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

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).

See Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

82 FR 32987 (Jul. 19, 2017);

Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

83 FR 24905 (May 31, 2018);

Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

84 FR 20005 (May 8, 2019);

Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

86 FR 28198 (May 25, 2021);

Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

87 FR 4722 (Jan. 28, 2022);

Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,

87 FR 30334 (May 18, 2022).

See Outdoor Amusement Bus. Ass'n

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).

See Outdoor Amusement Bus. Ass'n,

983 F.3d at 684-89.

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 some U.S. employers cannot satisfy their needs in FY 2023 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with the FY 2023 continuing resolution extending the authority provided in section 204 of the FY 2022 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas through the end of FY 2023 by up to 64,716 additional visas for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition.

These businesses must retain documentation, as described below, supporting this attestation.

The FY 2023 Continuing resolution extending authority contained in section 204 of Division O, Title II, of the FY 2022 Omnibus, DHS, under certain circumstances and after consultation with DOL, may increase the number of H-2B visas available to U.S. employers. DHS has the authority to establish the irreparable harm standard in seeking a supplemental H-2B visa.

See, e.g.,

INA sections 103 and 214 (8 U.S.C. 1103, 1184).

As in connection with the FY 2021 and FY 2022 H-2B supplemental visa temporary final rules, and consistent with existing authority, DHS and DOL intend to conduct a significant number of audits with respect to petitions filed under this TFR requesting supplemental H-2B visas during the period of temporary need. The Departments will use their discretion to select which petitions to audit, and the Departments will use the audits to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule. If the Departments find that an employer's documentation does not meet the irreparable harm standard, or that the employer fails to provide evidence demonstrating irreparable harm or comply with the audit process, the Departments may consider it to be a substantial violation resulting in an adverse agency action against the employer, including revocation of the petition and/or TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under the supplemental caps in FY 2021 and FY 2022 revealed concerns surrounding payment of the promised wage, employment of returning workers, documentation of irreparable harm, and employment at the listed location, which may warrant further review and action.

As he did in FY 2021 and in FY 2022, the Secretary of Homeland Security has also again determined, following consultation with the Secretary of Labor, that for certain employers, additional recruitment steps are necessary to confirm that there are no qualified U.S. workers available for the positions. In addition, the Secretary of Homeland Security has determined, following consultation with the Secretary of Labor, that the supplemental visas will be limited to returning workers, with the exception that up to 20,000 of the 64,716 visas will be exempt from the returning worker requirement and will be reserved for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, and Haiti.

DHS is reserving these 20,000 H-2B visas for nationals of El Salvador, Guatemala, and Honduras pursuant to INA section 214(a)(1), 8 U.S.C. 1184(a)(1), as well as to further the objectives of E.O. 14010, which, among other initiatives, instructs the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access to visa programs for nationals of the Northern Central American countries.

DHS is also including Haiti in this allocation to further promote and improve safety, security, and economic stability throughout the region.

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

3,231 beneficiaries under the FY 2022 first half supplemental allocation,

and 12,318 beneficiaries for the second half of the fiscal year FY 2022.

In addition, DHS and the Biden administration have continued to conduct outreach efforts promoting the H-2B program as, among other things, a

lawful pathway for nationals of El Salvador, Guatemala, Honduras, and Haiti to work in the United States.

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.

DHS will not accept and will reject petitions submitted for the Northern Central American and Haiti allocation with a date of need on or after April 1, 2023 that are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2023 is met or are received after the applicable numerical limitation has been reached or after September 15, 2023. Requiring petitioners to wait to submit H-2B supplemental cap petitions with start dates of need on or after April 1, 2023 is consistent with the supplemental cap authority in section 204, as extended to FY 2023 by Public Law 117-180, Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023, and will facilitate the orderly intake and processing of supplemental cap petitions for the Northern Central American countries and Haiti. As discussed above, similar limitations apply to the intake and processing of returning worker petitions with start dates of need on or after April 1, 2023.

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

See, e.g.,

INA section 214(g)(3); INA section 214(g)(10); Continuing Appropriations Act, 2023, div. A, sec. 101(6) (extending the authority provided in FY 2022 Omnibus div. O, sec. 204 (“Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the [INA] . . . .”)).

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.

See https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw

(this supplemental allocation to workers from Haiti, Honduras, Guatemala, and El Salvador “advances the Biden Administration's pledge, under the Los Angeles Declaration to expand legal pathways as an alternative to irregular migration”); The White House,

Fact Sheet: The Los Angeles Declaration on Migration and Protection U.S, Government and Foreign Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/

(addressing several measures, including the H-2B allocation for nationals of Haiti, as part of “the President's commitment to support the people of Haiti.”). We also note Congress' recent statement, in a provision within the FY 2022 Omnibus, that it is the policy of the United States to support the sustainable rebuilding and development of Haiti.

See

Section 102 of Division V of the Consolidated Appropriations Act, 2022, Public Law 117-103.

see also

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, as extended by Public Law 117-180, sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2022.

Consistent with the statute's reference to H-2B returning workers, in determining the appropriate number by which to increase the H-2B numerical limitation, the Secretary of Homeland Security focused on the number of visas allocated to such workers in years in which Congress enacted returning worker exemptions from the H-2B numerical limitation. During each of the years the returning worker provision was in force, U.S. employers' standard business needs for H-2B workers exceeded the statutory 66,000 cap. The highest number of H-2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H-2B visas to be made available for FY 2023, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it is appropriate to make available up to 64,716 additional visas, which is the maximum allowed, under the FY 2023 supplemental cap authority. The Secretary further considered the objectives of E.O. 14010, which among other initiatives, instructs the Secretary of Homeland Security and

the Secretary of State to implement measures to enhance access to visa programs for nationals of the Northern Central American countries, as well as to address some of the root causes of and manage migration throughout both North and Central America, which includes migration by Haitian nationals. Accordingly, the Secretary determined that it is appropriate to reserve up to 20,000 of the up to 64,716 additional visas and exempt this number from the returning worker requirement for nationals of the Northern Central American countries or Haiti.

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 it would accept under the supplemental cap. Of the selected petitions, USCIS issued approvals for 15,672 beneficiaries.

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

Of the petitions received, USCIS issued approvals for 30,742 beneficiaries, including approvals for 6,805 beneficiaries under the allocation for the nationals of the Northern Central American countries.

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.

On June 3, 2021, USCIS announced that it had received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers only, but that it would continue accepting petitions for the additional 6,000 visas allotted for nationals of the Northern Central American countries.

See

USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for FY 2021, https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021

(Jun. 3, 2021). On July 23, 2021, USCIS announced that, because it did not receive enough petitions to reach the allocation for the Northern Central American countries by the July 8 filing deadline, the remaining visas were available to H-2B returning workers regardless of their country of origin.

See

USCIS,

Employers May File H-2B Petitions for Returning Workers for FY 2021, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021

(Jul. 23, 2021).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number of approved workers exceeded the number of additional visas authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. Unlike these past supplemental cap TFRs, petitions filed under the first half FY 2022 TFR did not exceed the additional allocation of 20,000 H-2B visas provided by that rule.

In FY 2022, DHS made the supplemental cap available twice, once in January 2022 and again in May 2022. Under the earlier FY 2022 supplemental cap for petitions with start dates in the first half of FY 2022, USCIS had issued approvals for 17,381 beneficiaries, including approvals for 3,231 beneficiaries under the allocation for nationals of the Northern Central American countries and Haiti.

For the second half of FY 2022, within the first five business days of filing, USCIS received petitions for more beneficiaries than the additional 23,500 supplemental visas made available for returning workers, thus necessitating a random selection of petitions to meet the returning worker allotment.

Of the petitions received for the second half of FY 2022, USCIS issued approvals for 43,798 beneficiaries, including approvals for 12,318 beneficiaries under the allocation for nationals of the Northern Central American countries and Haiti.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

See

USCIS,

(May 31, 2022).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2022, TRK 10710.

Data for the first half of FY 2023 clearly indicate an immediate need for additional supplemental H-2B visas for employers with start dates on or before March 31, 2023. USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2023 fiscal year statutory cap on September 12, 2022.

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory cap has trended earlier in recent years. In fiscal years 2017 through 2023, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, and September 12, 2022, respectively.

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(last updated Sept. 14, 2022).

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017

(Jan. 13, 2017); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018

(Dec. 21, 2017); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019

(Dec. 12, 2018); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020

(Nov. 20, 2019); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

(Nov. 18, 2020); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(Oct. 12, 2021); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(Sept. 14, 2022).

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

DHS believes that issuing additional H-2B visas is appropriate in the context of the nation's economic recovery from the ongoing pandemic. For example, the unemployment rate declined to 3.7% in October 2022 from a pandemic high of 14.7% in April 2020.

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.

See

HHS,

Renewal of Determination That A Public Health Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx

(Oct. 13, 2022).

See

BLS Employment Situation News Release,

https://www.bls.gov/news.release/archives/empsit_11042022.htm

(November 4, 2022); BLS,

Labor Force Statistics from the Current Population Survey, https://data.bls.gov/timeseries/LNS14000000

(data extracted November 4, 2022).

The April 2020 unemployment rate was 14.7%.

See https://www.bls.gov/new.release/archives/empsit_05082020.htm

(Oct. 21,2022).

In fiscal year 2022, approximately 87.7 percent of H-2B filings were for positions within just 5 sectors.

NAICS 56 (Administrative and Support and Waste Management and Remediation Services) accounted for 40.0% of filings,

NAICS 71 (Accommodation and Food Services) accounted for 11.0%, NAICS 72 (Arts, Entertainment, and Recreation) accounted for 22.0%, NAICS 23 (Construction) accounted for 12.0%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) accounted for 2.7% of filings.

USCIS analysis of DOL OLFC Performance data.

Within these industries, DOL data show higher labor demand relative to recent history. More specifically, Bureau of Labor Statistics (BLS) data from the November 1, 2022 Job Openings and Labor Turnover Survey (JOLTS) show that the rate of job openings

for all 5 industries was higher in September 2022 than the average over the last 36 months. In September 2022 the job opening rate for NAICS 56

was 7.9 percent, which is 0.92 percentage points higher than its 3-year average of 6.98 percent, while the job opening rate for NAICS 71 was 8.4 percent which is 3.49 percentage points higher than its 3-year average of 4.91 percent. The September 2022 job opening rate for NAICS 72 was 3.60 percentage points higher than its 3-year average of 5.90 percent while the rate for NAICS 23 was 1.09 percentage points higher than its 3-year average of 4.11 percent. The job opening rate for NAICS 11

was 0.43 percentage points higher than its 3-year average of 3.87 percent. For comparison, the job opening rate for all industries was 6.5 percent in September 2022.

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_11012022.pdf

(last visited November 2, 2022).

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 October 2022, from the Department of Labor's Current Employment Statistics program indicates that NAICS 56 accounted for just under 43% of employment in Professional Business Services. All data accessed November 16, 2022.

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 October 2022, from the Department of Labor's Current Employment Statistics program indicates that NAICS 11 accounted for just over 7% of employment in Natural Resources and Mining. All data accessed November 16, 2022.

See https://www.bls.gov/news.release/archives/jolts_11012022.pdf

(last visited November 2, 2022).

ER15DE22.013

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

Other economy-wide data also indicate that labor-market tightness exists. The most recent Employment Situation released by the Bureau of Labor Statistics (BLS) stated that the unemployment rate decreased to 3.7% in October 2022.

Historically, the availability of H-2B visas addressed a need in the labor market during periods of lower unemployment. Chart 1

shows that the H-2B visa allocations for Fiscal Year 2023

made by this rule are slightly higher than the historical trend, but are generally consistent with what the current unemployment rate alone would predict. Additionally, when the unemployment rate is below 6%, there is greater variance in the total number of H-2B visas issued in a given year; for example, in years 2022, 2007 and 2006, when the unemployment rate ranged from approximately 3.5% to 4.6%, the total number of H-2B visas issued were comparable to what is planned for 2023. The data presented in chart 1 is meant to provide additional context and to demonstrate that the total allocation of H-2B visas is reasonable given labor market conditions.

See

DOL, BLS,

The Employment Situation—October 2022, https://www.bls.gov/news.release/archives/empsit_11042022.pdf

(Nov. 4, 2022).

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

Estimated visas issued for Fiscal Year 2023 is based on the sum of the fiscal year statutory cap for H-2B workers (66,000) and the supplemental allocation for this rule (64,716), for a total H-2B visa allocation of 130,716.

ER15DE22.014

Given the level of demand for H-2B workers, the continued economic recovery, and continued job growth, DHS believes it is appropriate to release the maximum amount of additional visas at this time.

Making Allocations For All of FY 2023 in a Single Rule

This rule is the first time that DHS has made supplemental visas available for an entire fiscal year in a single rule. DHS believes that it is appropriate to issue a single rule for the entire fiscal year for multiple reasons.

First, DHS expects that there is demand for supplemental visas in the first half of FY 2023. As previously discussed, USCIS already received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2023.

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory caps has trended earlier in recent years. In fiscal years 2017 through 2023, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, and September 12, 2022, respectively.

Further, DHS believes that 64,716 is an appropriate number of supplemental visas to make available, as this rule will cover both the first and second half of FY 2023.

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023#:~:text=U.S.%20Citizenship%20and%20Immigration%20Services,fiscal%20year%20(FY)%202023

(Sep. 14, 2022).

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017

(Jan. 13, 2017); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018

(Dec. 21, 2017); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019

(Dec. 12, 2018); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020

(Nov. 20, 2019); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021

(Nov. 18, 2020); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(Oct. 12, 2021); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(Sept. 14, 2022).

Second, based on relevant data, DHS expects that USCIS will reach the statutory cap for the second half of FY 2023 and that there will accordingly be demand for supplemental visas in the second half of FY 2023. For example, in fiscal years 2017 through 2022, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, and February 25, 2022.

In addition, DOL data shows consistently high demand in recent years, particularly during the second half of the fiscal year. In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; and DOL received 7,875 applications by January 7, 2022, covering 136,555 worker positions.

See

USCIS,

USCIS Reaches the H-2B Cap for Fiscal Year 2017, https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017

(Mar. 16, 2017); USCIS,

USCIS Completes Random Selection Process for H-2B Visa Cap for Second Half of FY 2018, https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018

(Mar. 1, 2018); USCIS,

H-2B Cap Reached for FY 2019, https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019

(Feb. 22, 2019); USCIS,

H-2B Cap Reached for Second Half of FY 2020, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020

(Feb. 26, 2020); USCIS,

H-2B Cap Reached for Second Half of FY 2021, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021

(Feb. 24, 2021); USCIS,

H-2B Cap Reached for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022

(Mar. 1, 2022).

See

DOL,

Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news

Publishing one rule that addresses all the visas available for FY 2023 benefits the regulated public by giving more notice and certainty of what will become available for the second half. This allows businesses to better plan ahead for their seasonal workforce needs.

See the letter from the H-2B Workforce Coalition contained in the docket for this rulemaking.

Filing Deadline of September 15, 2023 for all Petitions

The authority to approve H-2B petitions under this FY 2023 supplemental cap expires at the end of the fiscal year,

i.e.,

the end of September 30, 2023. Therefore, DHS is requiring employers requesting any supplemental visas under this TFR, regardless of the employment start date(s), to properly file their H-2B petition with USCIS no

later than September 15, 2023. USCIS will reject any cases that are received after September 15, 2023.

See

new 8 CFR 214.2(h)(6)(xiii)(C). Because DHS believes that 15 days from the end of the fiscal year is the minimum time needed for petitions to be adjudicated, DHS has set September 15, 2023 as the latest filing date to provide USCIS with adequate time for petition processing before the expiration of the authority at the end of the fiscal year, although USCIS cannot guarantee that a 15-day period will be sufficient for adjudication of petitions in all cases.

In addition, the filing deadline will be earlier than September 15, 2023 if the applicable numerical limit for the relevant supplemental visa allocation is reached before that date.

See

new 8 CFR 214.2(h)(6)(xiii)(C). In such a case, USCIS will also reject any cases that are received after the applicable numerical limitation has been reached.

Returning Worker Allocation for the First Half of FY 2023 (October 1, 2022 Through March 31, 2023)

For the first half of FY 2023, DHS will make 18,216 visas immediately available upon publication of this TFR that are limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These petitions must request a date of need starting on or before March 31, 2023.

See

new 8 CFR 214.2(h)(6)(xiii)(C).

DHS anticipates that employers will use all of the first half allocation for returning workers, given how quickly USCIS reached the FY 2023 first half statutory cap. As noted previously, USCIS received enough H-2B petitions to reach the FY 2023 first half statutory cap on September 12, 2022, which is several weeks earlier than when USCIS reached the FY 2022 first half statutory cap on September 30, 2021

and is the earliest the first half cap has been reached since at least FY 2017. In addition, the relatively early publication of this rule will provide interested employers more time to prepare their petitions, increasing the likelihood that the first half allocation for returning workers will be used.

To the extent that the first half allocation for returning workers is used, this TFR may provide affected employers with some relief by making available a separate allocation of visas for nationals of El Salvador, Guatemala, Honduras, and Haiti, which will be available for the entirety of FY 2023.

See https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022

(Oct 12, 2021);

https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023

(Sept. 14, 2022).

Compare the publication date of this rule with January 28, 2022, the date the temporary final rule increasing the supplemental cap for the first half of FY2022 was first published.

In the event that USCIS approves insufficient petitions to use all 18,216 visas, the unused numbers will not carry over for the second half allocation because DHS believes that the operational burdens of calculating and administering a process to carry over unused visas, combined with the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations, would outweigh the benefits. In order to make any unused first half visas available for employers with second half start dates, DHS would need to set a filing cutoff date prior to September 15, 2023 for the first half allocation, upon which it would stop accepting such petitions and make a calculation of how many visas should be re-released for second half employers. Calculating visas to be re-released could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which would significantly increase operational burdens. In addition to increasing operational burdens, DHS believes that the opening, closing, and potential re-opening of this allocation (and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 15, 2023 will maximize employers' opportunity to avail themselves of the first half allocation. While DHS acknowledges that this approach could potentially result in some employers with a demonstrated business need in the second half of the fiscal year losing the opportunity to receive a supplemental visa, it is DHS's expectation that there will be sufficient demand from employers with first half start dates to use the entire allocation.

Initial Returning Worker Allocation for the Early Second Half (April 1, 2023, Through May 14, 2023)

For the second half of FY 2023, DHS will initially make available 16,500 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These petitions must request a date of need starting on or after April 1, 2023, through and including May 14, 2023. Limiting this allocation to employers with employment start dates on or before May 14, 2023 reflects DHS's intentions to give employers with needs later in the season a better opportunity to access the H-2B program, and to prevent employers from petitioning under both of the second-half allocations to fill the same need.

To mitigate complications from concurrent administration of the statutory second half cap, these petitions must be filed no earlier than 15 days after the second half statutory cap is reached, a date that USCIS will identify in a public announcement.

When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (15 days after the second half statutory cap) for this allocation. Concurrent administration of the second half statutory cap with the second half supplemental cap would pose significant operational challenges, particularly considering the volume of H-2B petitions USCIS would have to process at the same time. A cushion of 15 days after the second half statutory cap is reached should provide USCIS with sufficient time to process H-2B petitions filed under the second half statutory cap and prepare to process petitions under this supplemental cap, and should also provide petitioners not selected under the statutory cap with enough time to refile under this supplemental cap. Furthermore, making this allocation available

after

the second half statutory cap has been reached builds in flexibility to account for variations in the timing of that cap being reached. DHS cannot predict with certainty when the FY 2023 second half statutory cap will be reached (or if it will be reached), and therefore, did not specify a date for when to first allow petitioners to file for FY 2023 second half supplemental visas. In the event that the statutory second half FY 2023 cap is not reached, the supplemental allocation for returning workers for the second half of FY 2023 will not become available.

Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(

), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(

)(

) of this section requesting employment start dates from April 1, 2023 to May 14, 2023 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2023 has been met.

Based on historical data showing increasingly high demand for H-2B workers with April 1 start dates, DHS expects all 16,500 visas to be used quickly once the supplemental allocation becomes available. However, in the event that USCIS approves insufficient petitions to use all 16,500

visas, the unused numbers will not carry over for petition approvals for employment start dates beginning on or after May 15, 2023. DHS chose to limit these 16,500 visas to start dates on or before May 14, 2023, without the ability for these visas to be carried over into the next allocation. As previously stated, DHS believes that the operational burdens of calculating and administering a process to carry over unused visas, combined with the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations, would outweigh the benefits. In order to make any unused visas from this allocation available for late second half of FY 2023 petitions, DHS would need to set a filing cutoff date that would be after the cutoff for the first half allocation but prior to any cutoff for late second half of FY 2023 petitions and prior to September 15, 2023, upon which it would stop accepting petitions and make a calculation of how many visas should be re-released for late second half employers. Calculating visas to be re-released could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which would significantly increase operational burdens. In addition to increasing operational burdens, DHS believes that the opening, closing, and potential re-opening of this allocation (and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 15, 2023 will maximize employers' opportunity to avail themselves of the early second half allocation. While DHS acknowledges that this approach could result in employers in the late second half losing the opportunity to receive a supplemental visa, it is DHS's expectation that there will be sufficient demand from employers to use this entire allocation.

Additional Returning Worker Allocation for the Late Second Half (On or After May 15, 2023, Through September 30, 2023)

For the late second half of FY 2023, DHS will make available an additional allocation of 10,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. To assist employers needing workers to begin work during the late spring and summer seasons in the fiscal year (also referred to as “late season employers”), these petitions must request a date of need starting on or after May 15, 2023. These petitions must be filed no sooner than 45 days after the second half statutory cap is reached, a date that USCIS will identify in a public announcement.

When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (45 days after the second half statutory cap) for this allocation. The cushion of 45 days after the second half statutory cap is reached is intended to provide USCIS with sufficient time to process H-2B petitions filed under the second half statutory cap that remain pending, as well as to process the expected influx of petitions under the early second half supplemental cap that will begin 15 days after the second half statutory cap is reached.

By allowing USCIS to manage its workload in this way, the 45-day period will help USCIS prepare to process petitions under the late second half supplemental cap and to mitigate the complications from concurrent administration of these various caps.

Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(

), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(

)(

) of this section requesting employment start dates from May 15, 2023 to September 30, 2023, that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2023 has been met.

While petitioners may continue to submit petitions under the early second half supplemental cap through September 15, DHS expects the heaviest filing to occur soon after the visas become available. This expectation is based on historical filing patterns, as well as an assumption that employers will try act quickly to secure workers consistent with their dates of need.

This is the first supplemental cap reserved for late season employers that need workers to begin work during the late spring and summer seasons in the fiscal year. By regulation, employers may only apply for a TLC 75 to 90 days before the start date of need,

and, as such, employers needing workers to begin work on or after May 15 are not eligible to file TLC applications until on or after February 15. In past years, because of this requirement and the strong demand for H-2B workers in recent years to begin work on the earliest employment start date (

i.e.,

April 1), late season employers were unable to receive cap-subject H-2B workers because they did not have an opportunity to file visa petitions for cap-subject H-2B workers before the second semiannual statutory cap was reached. Since, based on recent years' data,

USCIS has typically received sufficient H-2B petitions to meet the statutory cap for the second half of the fiscal year around mid-February, many of these late season employers may have decided to not file a TLC application. Therefore, DHS, in consultation with DOL, has determined that it is appropriate to make a separate allocation available for late season employers whose late season labor needs may have put them at a disadvantage in accessing H-2B workers in recent years. DHS, in consultation DOL, has determined that authorizing two allocations for the second half of FY 2023 based on an employer's start date of need, in addition to requiring that the employer's start date of need on the Form I-129 match the start date of need on the approved TLC,

will provide employers with late season needs a better opportunity to receive H-2B workers to avoid irreparable harm. Specifically, employers with early season needs that need work to begin on or after April 1 will have the opportunity to file H-2B petitions under both the statutory cap and the first allocation of the supplemental cap, while employers with late season needs do not have that opportunity.

See

20 CFR 655.15(b).

As noted above, in fiscal years 2017 through 2022, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, and February 25, 2022, respectively.

See

8 CFR 214.2(h)(6)(iv)(D) (“an H-2B petition must state an employment start date that is the same as the date of need stated on the approved temporary labor certification”).

A review of TLC requests for employment start dates on or after May 15 through September 30 of FY 2016, which was the last year in which Congress enacted the returning worker exemption, indicates that OFLC received approximately 892 applications from late season employers requesting TLCs for more than 17,650 H-2B positions and, of this, certified approximately 13,200 H-2B positions. However, for the last six fiscal years, Congress has not enacted a returning worker exemption, and the statutory second half semiannual visa allocation was reached months in advance of May. Accordingly, this has given rise to the concern that the intense competition for H-2B visas among employers requesting TLCs for the earliest possible employment start date of April 1 has resulted in the semiannual allocation of H-2B visas being effectively unavailable for many employers who need workers to start late in the season.

To mitigate complications from concurrent administration of the additional returning worker allocation for the second half of the fiscal year for late season employers and either the statutory second half cap or the initial supplemental allocation for returning

workers for the second half of the fiscal year (or both), these petitions must be filed no earlier than 45 days after the second half statutory cap is reached. When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (45 days after the second half statutory cap) for this allocation. In the event that the statutory second half FY 2023 cap is not reached, this supplemental allocation for late season filers workers will not become available. Furthermore, in the event that USCIS does not approve sufficient petitions to use all 10,000 visas for late season employers, DHS will not carry over the unused numbers for petition approvals for any other allocation. For example, any unused numbers would not carry over to petitions for workers from El Salvador, Guatemala, Honduras, or Haiti. As noted above, DHS believes the operational burdens of calculating and administering a process to carry over unused visas would outweigh the benefits because of the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations. A process to carry over unused visas could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which significantly increase operational burdens and may add further confusion to the public and adjudicators.

Allocation for Nationals of El Salvador, Guatemala, Honduras, and Haiti

DHS will make available 20,000 additional visas that are reserved for nationals of El Salvador, Guatemala, and Honduras (Northern Central American countries) and Haiti as attested by the petitioner (regardless of whether such nationals are returning workers). These 20,000 visas will be available for petitioners requesting an employment start date before the end of FY 2023, up to and including September 30, 2023.

While prior years' allocations for nationals of the Northern Central American countries and Haiti have not been reached, DHS anticipates a higher likelihood that the 20,000 visas allocated for these nationals by this rule will be reached by the end of this fiscal year. As discussed above, DHS observed robust employer interest in response to the FY 2021 H-2B supplemental visa allocation for Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and Haitian nationals, and the data show a trend of increased participation by Haitian, Salvadoran, Guatemalan, and Honduran workers in the H-2B program.

Furthermore, the publication of this rule relatively early in the fiscal year, and the availability of this allocation for the entirety of FY 2023, also increase the likelihood that the 20,000 visas will be used.

As previously noted, USCIS approved petitions on behalf of 6,805 beneficiaries under the FY 2021 allocation, 3,231 beneficiaries under the FY 2022 first half supplemental allocation, and 12,318 beneficiaries for the second half of the fiscal year FY 2022.

See

DHS, USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021, TRK 8598; DHS, USCIS, Office of Performance and Quality, C3 Consolidated, queried 10/2022, TRK 10710; DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.

Employers requesting workers from one of the Northern Central American countries or Haiti with an employment start date in the first half of FY 2023 may file their petitions immediately after the publication of this TFR. Employers requesting workers from one of the Northern Central American countries or Haiti with an employment start date in the second half of FY 2023 must file their petitions no earlier than 15 days after the second half statutory cap is reached. The requirement to file the petition no earlier than 15 days after the second half statutory cap is reached is consistent with the approach taken for the initial returning worker allocation for the early second half of the fiscal year, and is in line with the Departments' interpretation of their authority to make available supplemental (or in other words, additional) visas as contingent upon the exhaustion of visas under the statutory cap.

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Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(

), USCIS will reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(

) of this section that have a date of need on or after April 1, 2023 and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2023 is met.

The Departments have decided not to further divide the 20,000 visas for workers from one of the Northern Central American countries or Haiti into separate allocations for the first and second half of the fiscal year. The Departments intend for this additional flexibility of allowing any employment start date within FY 2023 to encourage U.S. employers that are suffering irreparable harm or will suffer impending irreparable harm to seek out workers from such countries, and, at the same time, increase interest among nationals of the Northern Central American countries and Haiti seeking a legal pathway for temporary employment in the United States. While this approach could potentially result in employers with start dates in the first half of FY 2023 using all 20,000 visas for nationals of the Northern Central American countries and Haiti, and consequently, employers with start dates in the second half of FY 2023 losing the opportunity to utilize this particular allocation, DHS believes that the benefits of increasing the flexibility of this allocation outweighs the potential risk. Moreover, employers with start dates in the second half of FY 2023 seeking to employ nationals of the Northern Central American countries and Haiti may request a visa under one of the two second half supplemental allocations which are available for returning workers regardless of country of nationality.

In the event that USCIS does not approve sufficient petitions to use all 20,000 visas limited to nationals of the Northern Central American countries and Haiti by the end of FY 2023, DHS will not carry over the unused numbers for petition approvals for any other allocation. For example, any unused numbers would not carry over to petitions for returning workers with employment start dates in the second half of FY 2023. As noted above, DHS believes the operational burdens of calculating and administering a process to carry over unused visas would outweigh the benefits because of the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations. A process to carry over unused visas could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which significantly increase operational burdens and may add further confusion to the public and adjudicators. Further, this single filing cutoff approach provides employers with incentive and more time to petition for, and bring in, workers from El Salvador, Guatemala, Honduras, and Haiti to meet employer needs, consistent with the Biden administration's efforts and outreach to promote and improve safety, security, and economic stability in these countries.

Process if Cap Allocations Are Reached

Finally, recognizing the high demand for H-2B visas, it is plausible that the additional H-2B supplemental allocations provided in this rule will be reached prior to September 15, 2023. Specifically, the following scenarios may still occur:

• The 18,216 supplemental cap visas limited to returning workers that will be

immediately available for employers with dates of need on or after October 1, 2022, through March 31, 2023, will be reached before September 15, 2023;

• The 16,500 supplemental cap visas limited to returning workers that will be available for employers with dates of need starting on or after April 1, 2023, through May 14, 2023, will be reached before September 15, 2023;

• The 10,000 supplemental cap visas limited to returning workers that will be available for late season employers with dates of need on or after May 15, 2023, through September 30, 2023, will be reached before September 15, 2023; or

• The 20,000 supplemental cap visas limited to nationals of the Northern Central American countries and Haiti will be reached before September 15, 2023.

Under this rule, new 8 CFR 214.2(h)(6)(xiii)(D) reaffirms the existing processes that are in place when H-2B numerical limitations under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10), are reached,

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as applicable to each of the scenarios described above that involve numerical limitations of the supplemental cap. Specifically, for each of the scenarios mentioned above, DHS will monitor petitions received, and make projections of the number of petitions necessary to achieve the projected numerical limit of approvals. USCIS will also notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt dates”) for each of these scenarios. The day the public is notified will not control the final receipt dates. Moreover, USCIS may randomly select, via computer-generated selection, from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals for each of the scenarios involving numerical limitations to the supplemental cap. USCIS may, but will not necessarily, conduct a lottery if: the 18,216 supplemental cap visas limited to returning workers that will be immediately available for employers with dates of need on or after October 1, 2022, through March 31, 2023, is reached before September 15, 2023; the 16,500 supplemental cap visas limited to returning workers that will be available for employers with dates of need on or after April 1, 2023, through May 14, 2023, is reached before September 15, 2023; the 10,000 supplemental cap visas limited to returning workers that will be available for late season employers with dates of need on or after May 15, 2023, through September 30, 2023, is reached before September 15, 2023; or the 20,000 visas limited to nationals of the Northern Central American countries and Haiti is reached before September 15, 2023. Similar to the processes applicable to the H-2B semiannual statutory cap, if the final receipt date is any of the first 5 business days on which petitions subject to the applicable numerical limit may be received (in other words, if the numerical limit is reached on any one of the first 5 business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those 5 business days.

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See

8 CFR 214.2(h)(8)(vii).

C. Returning Workers

As noted above, to address the increased and, in some cases, impending need for H-2B workers in this fiscal year, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has determined that employers may petition for supplemental visas on behalf of up to 44,716 workers who were issued an H-2B visa or were otherwise granted H-2B status in FY 2020, 2021, or 2022. This temporal limitation mirrors the prior fiscal year's temporal limitation in the returning worker definition

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and the temporal limitation Congress imposed in previous returning worker statutes.

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

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

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Limiting the supplemental cap to returning workers is beneficial because these workers have generally followed immigration law in good faith and demonstrated their willingness to return home when they have completed their temporary labor or services or their period of authorized stay, which is a condition of H-2B status. The returning worker condition therefore provides a basis to believe that H-2B workers under this cap increase will again abide by the terms and conditions of their visa or nonimmigrant status.

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See, e.g.,

87 FR 30334 (defining “returning workers” as “those who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021”).

103

See

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

104

The previous review of an applicant's qualifications and current evidence of lawful travel to the United States will generally lead to a shorter processing time of a renewal application.

105

The interview waiver authority for certain H-2B applicants renewing visas in the same classification within 48 months of the prior visa's expiration has no sunset date. Currently, certain first-time H-2B visa applicants or certain H-2B visa applicants previously issued any type of visa within the last 48 months may be eligible for an interview waiver; however, the authority for these interview waivers are set to expire on December 31, 2022.

See

DOS,

Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, 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); DOS,

Expanded Interview Waivers for Certain Nonimmigrant Visa Applicants, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/

(last updated Dec. 23, 2021).

The returning worker condition also benefits employers that seek to re-hire known and trusted workers who have a proven positive employment track record while previously employed as workers in this country. While the Departments recognize that the returning worker requirement may limit to an extent the flexibility of employers that might wish to hire non-returning workers, the requirement provides an important safeguard against H-2B abuse, which DHS considers to be a significant consideration.

To ensure compliance with the requirement that additional visas only be made available to returning workers, DHS will require petitioners seeking H-2B workers under the supplemental cap to attest that each employee requested or instructed to apply for a visa under the FY 2023 supplemental cap was issued an H-2B visa or otherwise granted H-2B status in FY 2020, 2021, or 2022, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti and is counted towards the 20,000 cap. This

attestation will serve as prima facie initial evidence to DHS that each worker, unless a national of one of the Northern Central American countries or Haiti who is counted against the 20,000 cap, meets the returning worker requirement. DHS and DOS retain the right to review and verify that each beneficiary is in fact a returning worker any time before and after approval of the petition or visa. DHS has authority to review and verify this attestation during the course of an audit or investigation, as otherwise discussed in this rule.

With respect to satisfying the returning worker requirement, employers must maintain evidence that the employer requested and/or instructed that each of the workers petitioned by the employer in connection with this temporary rule were issued H-2B visas or otherwise granted H-2B status in FY 2020, 2021, or 2022, unless the H-2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 20,000 cap. Such evidence would include, but is not limited to, a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H-2B visa to those foreign workers who were previously issued an H-2B visa or granted H-2B status in FY 2020, 2021, or 2022.

D. Returning Worker Exemption for up to 20,000 Visas for Nationals of Guatemala, El Salvador, and Honduras (Northern Central American Countries) and Haiti

As described above, the Secretary of Homeland Security has determined that up to 20,000 additional H-2B visas will be limited to workers who are nationals of one of the Northern Central American countries or Haiti. These 20,000 visas will be exempt from the returning worker requirement. Because the returning worker allocations have no restrictions related to a worker's country of nationality, if the 20,000 visa limit has been reached and the 44,716 returning worker cap has not, petitioners may continue to request workers who are nationals of one of the Northern Central American countries or Haiti, but these noncitizens must be specifically requested as returning workers who were issued H-2B visas or were otherwise granted H-2B status in FY 2020, 2021, or 2022.

While DHS reiterates the benefits of allocating visas under the supplemental cap to returning workers, the Secretary of Homeland Security has determined that the 20,000 limitation and exemption from the returning worker requirement for nationals of the Northern Central American countries or Haiti is beneficial for several reasons. First, it strikes a balance between furthering the U.S. foreign policy interests of expanding access to lawful pathways to nationals of the Northern Central American countries and Haiti seeking economic opportunity in the United States and addressing the needs of certain H-2B employers that are suffering irreparable harm or will suffer impending irreparable harm. The Secretary has determined that both the 20,000 limitation and the exemption from the returning worker requirement for nationals of the Northern Central American countries is again beneficial in light of President Biden's February 2, 2021 E.O. 14010, which instructed the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access for nationals of the Northern Central American countries to visa programs, as appropriate and consistent with applicable law. Further, E.O. 14010 directs relevant government agencies to create a comprehensive regional framework to address the causes of migration, and to manage migration throughout North and Central America.

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

107

DHS believes that including nationals of Haiti in this allocation of up to 20,000 supplemental visas will further promote and improve safety, security, and economic stability throughout this region.

108

106

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).

107

See, e.g.,

USAID,

(Jun. 9, 2022) (“Our combined efforts [with the labor ministries in Honduras and Guatemala, and the Foreign Ministry in El Salvador] . . . resulted in a record number of H-2 visas issued in 2021, including a nearly forty percent increase over the pre-pandemic levels in H-2B visas issued across all three countries.”).

108

See, e.g., https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw

(addressing several measures, including the H-2B allocation for nationals of Haiti, as part of “the President's commitment to support the people of Haiti”).

Additionally, DOS will work with the relevant countries to facilitate consular interviews, if required,

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and channels for reporting incidents of fraud and abuse within the H-2 programs. Further, each country's own consular networks will maintain contact with the workers while in the United States and ensure the workers know their rights and responsibilities under the U.S. immigration laws, which are all valuable protections to the immigration system, U.S. employers, U.S. workers, and workers entering the country on H-2 visas. DHS has determined that reserving 20,000 supplemental H-2B visas for nationals of the Northern Central American countries or Haiti is a reasonable allocation given the progressively increasing use of H-2B visas among this population in recent years, as noted above. Additionally, with the option to apply for visas in this category for the entire fiscal year, rather than dividing the allocation in two halves, there will be more time to reach the increased allocation. DHS believes these aspects will encourage U.S. employers that are suffering irreparable harm or will suffer impending irreparable harm to seek out workers from such countries, while, at the same time, increase interest among nationals of the Northern Central American countries and Haiti seeking a legal pathway for temporary employment in the United States. DHS also believes its outreach efforts with the governments of the Northern Central American

countries and Haiti, along with efforts in some of these countries by the United States Agency for International Development (USAID) to increase access to the H-2B program, support the decision to provide a higher reservation of H-2B visas for these countries than it has in prior recent TFRs. USAID has worked to build government capacity in Northern Central America to facilitate access to temporary worker visas under the H-2 program. Collaborating closely with the governments of El Salvador, Guatemala, and Honduras, USAID has strengthened the capacity of relevant government ministries to transparently and efficiently match qualified workers to temporary labor opportunities in the United States. In Fiscal Years 2021 and 2022, USAID increased funding to expand capacity building activities in El Salvador, Guatemala, and Honduras in response to the increased demand generated by the supplemental allocations of H-2B visas for Northern Central American nationals included in the FY 2021 and FY 2022 TFRs. The acceleration of USAID's activities likely helped increase uptake of H-2B visas issuance under the FY 2021 and FY 2022 TFRs, as H-2B visa issuances to Salvadorans, Guatemalans and Hondurans increased significantly over prior years,

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and USAID's assistance helped reduce the average period of time to match qualified workers from these three countries to requests from U.S. employers— from 42 days to 14 days in El Salvador, 55 days to 20 days in Guatemala, and 24 days to 8 days in Honduras.

111

USAID's programs also strengthen worker protections by helping crowd out unethical recruiters and providing labor rights education and resources to seasonal workers.

109

As noted previously, consular officers may waive the in-person interview requirement for H-2B applicants whose prior visa expired within a specific timeframe and who otherwise meet the strict limitations set out under INA section 222(h), 8 U.S.C. 1202(h). The expanded authority allowing for waiver of interview of certain H-2 (temporary agricultural and non-agricultural workers) applicants is extended through the end of 2022. Certain applicants renewing a visa in the same classification within 48 months of the prior visa's expiration are also eligible for interview waiver. DOS,

(last updated Dec. 23, 2021).

110

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 Oct. 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 Oct. 15, 2022).

111

See

USAID,

Additional H-2B Visa Allocations for Northern Central America and Haiti to Address Irregular Migration, https://www.usaid.gov/news-information/press-releases/oct-12-2022-additional-h-2b-visa-allocations-northern-central-america-and-haiti#:~:text=Collaborating%20closely%20with,eight%20in%20Honduras

(Oct. 12, 2022).

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

112

In FY 2021, the first year in which supplemental H-2B visas were reserved for nationals of Northern Central American countries, DOS issued a combined total of 6,277 H-2B visas to nationals of those countries.

113

In FY 2022, DOS issued a combined total of 15,058 H-2B visas to nationals of Haiti and the Northern Central American countries.

114

This increase is likely due in part to the additional H-2B visas made available to nationals of these countries by the FY 2021 and FY 2022 H-2B supplemental visa temporary final rules. In addition, based in part on the vital U.S. interest of promoting sustainable development and the stability of Haiti, in November 2021, DHS added Haiti to the list of countries whose nationals are eligible to participate in the H-2A and H-2B programs.

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Therefore, as previously stated, DHS has determined that the additional increase in FY 2023 will not only provide U.S. businesses that have been unable to find qualified and available U.S. workers with potential workers, but also promote further expansion of lawful immigration and lawful employment authorization for nationals of Northern Central American countries and Haiti.

112

The “combined total” includes all H-2B visas and are not limited to visas issued under supplemental caps.

See

DOS,

Monthly NIV Issuances by Nationality and Visa Class, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html

(last visited Mar. 15, 2022); DOS,

Monthly Nonimmigrant Visa Issuance Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visastatistics/monthly-nonimmigrant-visaissuances.html

(last visited Mar. 15, 2022).

113

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.

114

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.

115

See Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs,

86 FR 62559, 62562,

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, albeit increasing, number of individuals from the three Northern Central American countries and Haiti who were previously granted H-2B visas in recent years. Absent this exemption, there may be an insufficient number of qualifying workers from these countries to use the allocated visas. Exempting this population from the returning worker requirement will increase the ability of workers from these countries to pursue lawful temporary work in the U.S., encourage employers to seek out individuals from these countries, and maximize the chance of meeting the goal of reaching the full allocation.

USCIS will stop accepting petitions received under the allocation for the Northern Central American countries and Haiti after September 15, 2023. This end date should provide H-2B employers ample time, should they choose, to petition for, and bring in, workers under the allocation for the Northern Central American countries and Haiti. This, in turn, provides an opportunity for employers to contribute to our country's efforts to promote and improve safety, security and economic stability in these countries to help stem the flow of irregular migration to the United States. Nothing in this rule will limit the authority of DHS or DOS to deny, revoke, or take any other lawful action with respect to an H-2B petition or visa application at any time before or after approval of the H-2B petition or visa application.

E. Business Need Standard—Irreparable Harm and FY 2023 Attestation

To file any H-2B petition under this rule, petitioners must meet all existing H-2B eligibility requirements, including having an approved, valid, and unexpired TLC.

See

8 CFR 214.2(h)(6) and 20 CFR part 655, subpart A. The TLC process focuses on establishing whether a petitioner has a temporary need for workers and whether there are U.S. workers who are able, willing, qualified, and available to perform the temporary service or labor, and does not address the harm a petitioner is facing or will face in the absence of such workers; the attestation addresses this question. In addition, under this rule, the petitioner must submit an attestation to USCIS in which the petitioner affirms, under penalty of perjury, that it meets the business need standard—that they are suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on their petition.

116

In addition to asserting that it meets the business need standard, the employer must attest that, by the time of submission of the petition to USCIS, they have prepared and retained a detailed written statement describing how the evidence gathered in support of their application demonstrates that irreparable harm is occurring or

impending. The employer must also attest that, upon request, it will provide to DHS and/or DOL all documentary evidence that supports its claim of irreparable harm, along with the detailed written statement it prepared by the time of submitting the petition to USCIS, describing how such evidence demonstrates irreparable harm. The petitioner must submit the attestation directly to USCIS, together with Form I-129, the approved and valid TLC,

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and any other necessary documentation. As in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and the FY 2022 temporary cap increases, employers will be required to complete the new attestation form which can be found at:

https://www.foreignlaborcert.doleta.gov/form.cfm.

118

116

An employer may request fewer workers on the H-2B petition than the number of workers listed on the TLC.

See

Instructions for Petition for Nonimmigrant Worker, providing that “the total number of workers you request on the petition must not exceed the number of workers approved by the Department of Labor or Guam Department of Labor, if required, on the temporary labor certification.”

117

Since July 26, 2019, USCIS has been accepting a printed copy of the electronic one-page ETA-9142B, Final Determination: H-2B Temporary Labor Certification Approval, as an original, approved TLC.

See Notice of DHS's Requirement of the Temporary Labor Certification Final Determination Under the H-2B Temporary Worker Program,

85 FR 13178, 13179 (Mar. 6, 2020).

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The attestation requirement does not apply to workers who have already been counted under the H-2B statutory cap for the second half of fiscal year 2023 (33,000). Further, the attestation requirement does not apply to noncitizens who are exempt from the fiscal year 2023 H-2B statutory cap, including those who are extending their stay in H-2B status. Accordingly, petitioners that are filing on behalf of such workers are not subject to the attestation requirement.

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

As noted above, Congress authorized the Secretary of Homeland Security, in consultation with the Secretary of Labor, to increase the total number of H-2B visas available “upon the determination that the needs of American businesses cannot be satisfied” with U.S. workers under the statutory visa cap.

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The irreparable harm standard in this rule aligns with this determination that Congress requires DHS to make before increasing the number of H-2B visas available to U.S. employers. In particular, requiring employers to attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the requested H-2B workers is directly relevant to the needs of the business—if an employer is suffering or will suffer irreparable harm, then their needs are not being satisfied. The prior standard, on the other hand, required only that the employer attest that harm was

likely

to occur at some point in the future, which created uncertainty as to whether that employer's needs were truly unmet or would not be met without being able to employ the requested H-2B workers. Because the authority to increase the statutory cap is tied to the needs of businesses, the Departments think it is reasonable for employers to attest that they are suffering irreparable harm or that they will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition. If such employers are unable to attest to such harm and retain and produce (upon request) documentation of that harm, it calls into question whether the need set forth in this rule cannot in fact be satisfied without the ability to employ H-2B workers.

119

See

section 204 of Pulic aw. 117-103, as extended by Public Law 117-180.

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

In contrast to previous rules, this rule also requires an employer to attest that it has prepared a detailed written statement describing (i) how the employer's business is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all H-2B workers requested on the I-129 petition, and (ii) how each type of evidence relied upon by the employer demonstrates the applicable irreparable harm. The employer will not submit this detailed written statement to DHS with its petition for supplemental visas, but will attest on the attestation form to having prepared a detailed written statement. The detailed written statement must be provided to DHS and/or DOL upon request in the event of an audit or during the course of an investigation.

This requirement is informed by the Departments' experiences in assessing the irreparable harm standard in previous years. When conducting an audit or investigation under the previous temporary final rules, DOL has discovered that some employers are unfamiliar with the irreparable harm standard and recordkeeping requirements, despite their signed attestation. DOL has found that employers either cannot describe or explain their irreparable harm (whether it occurred or was impending at the time of signing the attestation form), or state that irreparable harm neither occurred nor was impending because the employer ultimately was able to employ H-2B workers. The latter response reflects a misunderstanding of the current irreparable harm standard, because irreparable harm must have been occurring or impending at the time the employer petitioned for supplemental visas. The attestation that irreparable harm is occurring or is impending cannot be based on a speculative analysis that permanent or severe financial loss “may occur” or “is likely to occur.” Rather, as of the time of submission to DHS, employers must have concrete evidence establishing that severe and permanent financial loss is occurring, with the scope and severity of harm clearly articulable, or that severe and permanent financial loss will occur in the near future without access to the supplemental visas. Even if no irreparable harm ultimately occurs because the employer is approved for supplemental visas under this rule, the employer must be able to articulate how permanent and severe financial loss was

impending at the time of filing. Additionally, in DOL's experience, employers sometimes do not retain the documentation they specifically attested they would retain, or will not or cannot explain how this documentation demonstrates the relevant irreparable harm to which

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