Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

Federal RegisterNov 17, 2023

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2764-24]

RIN 1615-AC89

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2023-0005]

RIN 1205-AC18

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

AGENCY:

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

ACTION:

Temporary rule.

SUMMARY:

DHS, in consultation with DOL, is exercising time-limited Fiscal Year (FY) 2024 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for the entirety of FY 2024. These supplemental visas will be distributed in several allocations. 20,000 visas made available in this rule will be reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be available only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer. In addition, DHS is again providing temporary portability flexibility.

DATES:

Effective dates:

The amendments at instructions 1, 3, and 5 are effective November 17, 2023; at instructions 2 and 4 amending 8 CFR 214.2 and 274a.12, respectively, are effective from November 17, 2023, through November 17, 2026; at instruction 6, adding 20 CFR 655.64, is effective from November 17, 2023, through September 30, 2024; and at instruction 7, adding 20 CFR 655.65, is effective from November 17, 2023, through September 30, 2027.

Petition dates:

DHS will not accept any H-2B petitions under provisions related to the FY 2024 supplemental numerical allocations after September 16, 2024, and will not approve any such H-2B petitions after September 30, 2024. The provisions related to portability are only available to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2025.

Comments on the Information Collection:

The Office of Foreign Labor Certification within the U.S. Department of Labor will accept comments in connection with the new information collection Form ETA-9142B-CAA-8 associated with this rule until January 16, 2024. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit written comments on the new information collection Form ETA-9142B-CAA-8, identified by Regulatory Information Number (RIN) 1205-AC18, electronically by the following method:

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

Follow the instructions on the website for submitting comments.

Instructions:

Include the agency's name and the RIN 1205-AC18 in your submission. All comments received will become a matter of public record and will be posted without change to

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-8: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free number).

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Legal Framework

B. H-2B Numerical Limitations Under the INA

C. FY 2023 Omnibus and FY 2024 Public Law 118-15

D. Joint Issuance of the Final Rule

E. Comments and Responses to Comments on the FY 2023 TFR

III. Discussion

A. Statutory Determination

B. Numerical Increase and Allocations for Fiscal Year 2024

C. Returning Workers

D. 20,000 Allocation for Nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica

E. Business Need Standard—Irreparable Harm and FY 2024 Attestation

F. Portability

G. Compliance With Employment-Related Laws

H. DHS Petition Procedures

I. DOL Procedures

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

B. Executive Order 12866: Regulatory Planning and Review; Executive Order 14094: Modernizing Regulatory Review; and Executive Order 13563: Improving Regulation and Regulatory Review

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. National Environmental Policy Act

H. Congressional Review Act

I. Paperwork Reduction Act

I. Executive Summary

FY 2024 H-2B Supplemental Cap

With this temporary final rule (TFR), the Secretary of Homeland Security, following consultation with the Secretary of Labor, is authorizing the release of an additional 64,716 H-2B visas for FY 2024, subject to certain conditions. The 64,716 visas are divided into the following allocations:

• For the first half of FY 2024: 20,716 immediately available visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These petitions must request employment start dates on or before March 31, 2024;

• For the early second half of FY 2024 (April 1 to May 14): 19,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023 regardless of country of nationality. These early second half of FY 2024 petitions must request employment start dates from April 1, 2024, to May 14, 2024. Furthermore, employers must file these petitions no earlier than 15 days after

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 2024: (May 15 to September 30): 5,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023 regardless of country of nationality. These late second half of FY 2024 petitions must request employment start dates from May 15, 2024, to September 30, 2024. Furthermore, employers must file these petitions no earlier than 45 days after the second half statutory cap is reached; and

• For the entirety of FY 2024: 20,000 visas reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) as attested by the petitioner (regardless of whether such nationals are returning workers). Employers requesting an employment start date in the first half of FY 2024 may file such petitions immediately after the publication of this TFR. Employers requesting an employment start date in the second half of FY 2024 must file such petitions no earlier than 15 days after the second half statutory cap is reached.

To qualify for the FY 2024 supplemental caps provided by this temporary final rule, eligible petitioners must:

• 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 a Nonimmigrant Worker, with USCIS at its Texas Service Center on or before September 16, 2024;

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

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

Employers filing an H-2B petition 30 or more days after the certified start date on the TLC, must attest to engaging in the following additional steps to recruit U.S. workers:

• 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, 2022, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;

• 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 2024 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date DOL approved the TLC, and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits.

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

Such non-compliance can harm U.S. workers by undermining wages and working conditions. It also directly harms H-2B workers. Further, H-2B workers depend on ongoing employment with the petitioning employer to maintain status in the United States. This dependence creates a power imbalance between the employer and H-2B worker, making the H-2B worker particularly vulnerable to exploitation and violations. In recognition of the substantial impact that non-compliance can have on both U.S. workers and H-2B workers, DHS and DOL again intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. And as it did as part of the FY 2022 second half H-2B supplemental cap TFR and the FY 2023 H-2B supplemental cap TFR, DHS will again subject employers that have committed labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process.

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

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

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

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

87 FR 76816, 76818 (Dec. 15, 2022).

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

programs administered by DOL. Falsifying information also may subject a petitioner/employer to other criminal and/or civil penalties.

DHS will not approve H-2B petitions filed in connection with the FY 2024 supplemental cap authority on or after October 1, 2024.

H-2B Portability

In addition to exercising its time-limited authority to make additional FY 2024 H-2B visas available, DHS is again providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing nonimmigrant workers in the United States

in valid H-2B status and who are beneficiaries of non-frivolous H-2B petitions received on or after January 25, 2024, or who are the beneficiaries of non-frivolous H-2B petitions that are pending as of January 25, 2024, to begin work with a new employer after an H-2B petition (supported by a valid TLC) is filed and before the petition is approved, generally for a period of up to 60 days. However, such employment authorization would end 15 days after USCIS denies the H-2B petition or such petition is withdrawn. This H-2B portability ends one year after the provision's effective date of January 25, 2024, in other words, at the end of January 24, 2025.

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).

On September 20, 2023, DHS issued a Modernizing H-2 Program Requirements, Oversight, and Worker Protections Notice of Proposed Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public comment period that ends on November 20, 2023. In that NPRM, DHS proposed to extend portability to H-2A and H-2B workers on a permanent basis. The Department's proposal does not interfere with the portability provision of this rule, however, should DHS publish a final rule making H-2 portability permanent, any such provision would not expire on a specific date, unlike the portability provision made effective by this temporary final rule.

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 TFRs

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.

For instance, the FY 2023 H-2B supplemental cap TFR included a portability provision at 8 CFR 214.2(h)(29)(iii)(A)(

)-(

), which remains in effect through January 24, 2024.

See e.g., Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability

Flexibility for H-2B Workers Seeking To Change Employers,

87 FR 76816 (Dec. 15, 2022).

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 who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status to perform temporary nonagricultural work is 66,000, distributed semiannually beginning in October and April.

See

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

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 2024 is from October 1, 2023, through September 30, 2024.

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.

See

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 generally 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.

For FY 2024, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap on October 11, 2023.

While this date was slightly later than the prior two years, the Departments note that DOL received 2,157 applications for the first half of the FY 2024 statutory cap during the initial three-day filing window of July 3-5, 2023, covering 40,947 worker positions; a 59% increase in TLC workload when compared to the same time period in 2022.

This trend in recent years of increased demand for H-

2B workers is even more apparent 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

(Sept. 14, 2022).

On October 13, 2023, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2024, and that October 11, 2023 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(October 13, 2023).

See

DOL,

OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2023, for Employers Seeking H-2B Workers Starting October 1, 2023, https://www.dol.gov/agencies/eta/foreign-labor/news

(July 10, 2023).

In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 7, 2022, covering 136,555 worker positions; and DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions.

See

DOL,

Announcements, 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 sections 101(6) and 106 of Division A of Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act (FY 2024 authority), which extended the authorization previously provided in section 303 of Division O of the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023 Omnibus), as discussed below.

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 2023 Omnibus and FY 2024 Public Law 118-15

On December 29, 2022, President Joseph Biden signed the FY 2023 Omnibus, which contains a provision, section 303 of Division O, Title III, permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA.

Specifically, section 303 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon determining that the needs of American businesses cannot be satisfied in [FY] 2023 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2023 by the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.

The Department of Homeland Security Appropriations Act, 2023, Public Law 117-328 (Dec. 29, 2022).

On September 30, 2023, Congress passed Public Law 118-15, which extends authorization under the same terms and conditions provided in section 303 of Division O of the FY 2023 Omnibus permitting the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2024.

In other words, Public Law 118-15 permits the Secretary of Homeland Security, after consultation with the Secretary of Labor, to provide up to 64,716 additional H-2B visas for FY 2024, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2024 cannot be met.

Under the Public Law 118-15 authority, DHS and DOL are jointly publishing this temporary final rule to authorize the issuance of no more than 64,716 additional visas for FY 2024 to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2024 supplemental cap expires at the end of that fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2024 supplemental cap authority on or after October 1, 2024.

See

Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act, Division A, sections 101(6) and 106 (extending into 2024 DHS funding and other authorities, including the authority to issue supplemental H-2B visas that was provided under title III of Division O of Pub. L. 117-328, through November 17, 2023).

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

See, e.g.,

Comments on Due Date and Amount of District of Columbia's Contributions to Special Employee Retirement Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that “a continuing resolution appropriates the full annual amount regardless of its period of duration . . . . Standard continuing resolution language makes it clear that the appropriations are available to the extent and in the manner which would be provided by the pertinent appropriations act that has yet to be enacted (unless otherwise provided in the continuing resolution).”). Consistent with this principle, DHS interprets the current continuing resolution to provide DHS with the ability to authorize additional H-2B visa numbers with respect to all of FY 2024 subject to the same terms and conditions as the FY 2023 authority at any time before the continuing resolution expires, notwithstanding the reference to FY 2023 in the FY 2023 Omnibus.

As noted above, since FY 2017, Congress has enacted a series of public laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond the annual numerical limitation set forth in section 214 of the INA. The previous statutory provisions were materially identical to section 303 of the FY 2023 Omnibus, which is the same authority provided for FY 2024 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, and FY 2021 through FY 2023, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that some American businesses could not satisfy their needs in such year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. On the basis of these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published temporary final rules for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Petition for a Nonimmigrant Worker (Form I-129), they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.

USCIS approved a total of 12,294 workers 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 Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program,

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

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

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

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. The number of approved workers exceeded the number of additional visas authorized for FY 2018 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

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 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

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number of approved workers exceeded the number of additional visas authorized for FY 2019 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

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

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, 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 nationals of the Northern Central American countries of El Salvador, Guatemala, and Honduras, who were exempt from the returning worker requirement. By August 13, 2021, USCIS had received enough petitions for returning workers to reach the additional 22,000 H-2B visas made available under the FY 2021 H-2B supplemental visa temporary final rule.

The total number of H-2B workers approved towards the FY 2021 supplemental cap increase was 30,707.

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

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

For the second half of FY 2022, DHS in consultation with DOL determined it was appropriate to increase the H-2B cap for FY 2022 positions with start dates beginning on April 1, 2022

through September 30, 2022, based on the continued demand for H-2B workers for the remainder of FY 2022, continuing economic growth, increased labor demand, and increased visa processing capacity by the Department of State. Accordingly, on May 18, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of no more than 35,000 additional H-2B visas for the second half of FY 2022.

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.

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

87 FR 30334 (May 18, 2022).

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).

The number of approved workers exceeded the number of additional visas authorized for the second half of FY 2022 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

Finally, on December 15, 2022, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 64,716 additional H-2B visas for the entirety of FY 2023. As in the FY 2022 TFRs, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers.

The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2020, 2021, or 2022), which were distributed in several allocations based on date of employer need: 18,216 for employers with requested employment start dates on or before March 31, 2023; 16,500 for employers with requested employment start dates from April 1, 2023, to May 14, 2023 (early second half allocation); and 10,000 for employers with requested employment start dates from May 15, 2023, to Sept. 30, 2023 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2023, and were set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from the returning worker requirement. By January 30, 2023, USCIS received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of fiscal year, and by March 30, 2023, USCIS received enough petitions to reach the cap for the additional 16,500 H-2B visas made available for returning workers for the early second half of fiscal year.

USCIS data show that the total number of H-2B workers approved towards the FY 2023 supplemental cap increase was 78,302, including 54,470 workers under the returning worker allocation, as well as 23,832 workers approved towards the Haitian/Northern Central American allocation.

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

87 FR 76816 (Dec. 15, 2022); 87 FR 77979 (Dec. 21, 2022).

See

USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023

(Jan. 31, 2023); USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023

(Mar. 31, 2023).

The number of approved workers exceeded the number of additional visas authorized for FY 2023 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

Once again, DHS in consultation with DOL believes that it is appropriate to increase the H-2B cap for FY 2024 based on the demand for H-2B workers in the first half of FY 2024, anticipated demand for the second half of FY 2024, recent economic growth, and strong labor demand.

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

The term “strong labor demand” in this context relies on the most recently released figure from a Bureau of Labor Statistics (BLS) survey at the time this TFR was written. The BLS Job Openings and Labor Turnover Survey (JOLTS) reports 9.6 million job openings in August 2023.

See

DOL, BLS, Job Openings and Labor Turnover—August 2023,

https://www.bls.gov/news.release/archives/jolts_10032023.htm.

D. Joint Issuance of the Final Rule

As in FY 2017, FY 2018, FY 2019, FY 2021, FY 2022, and FY 2023, DHS and DOL (the Departments) have determined that it is appropriate to jointly issue this temporary final rule.

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);

87 FR 76816 (Dec. 15, 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).

E. Comments and Responses to Comments on the FY 2023 TFR

In connection with the FY 2023 TFR, the Departments solicited public comments for 60 days. During that comment period, the Departments received 10 substantive comments. In the following discussion, the Departments discuss and respond to those comments by topic.

Timing and Distribution of Visas

Comment:

Several commenters expressed support for the Departments' release of the maximum number of visas authorized by Congress. In addition, these commenters indicated appreciation for the earlier release of supplemental visas in 2023 than in prior years, noting that the FY 2023 TFR offered certainty that was beneficial to employers. The commenters encouraged the Departments to similarly make future supplemental visas available early in the relevant fiscal year.

Response:

The Departments thank the commenters for their feedback. The Departments are again making the maximum number of visas available for FY 2024 and worked diligently to release these visas as early as possible.

Comment:

One commenter stated that the number of supplemental visas was not sufficiently justified by labor market conditions. The commenter asserted that the United States is not experiencing a labor shortage and disagreed with the Departments' usage of official unemployment rate data to justify the decision to release 64,716 supplemental visas for FY 2023. The comment centers on a critique of official government statistics produced by the Department of Labor. More specifically, the comment noted the long-term decline in the labor force participation rate and, further, alleges that the official unemployment rate is flawed because it excludes persons who are considered to no longer be in the labor force.

Response:

The Departments appreciate the comment regarding justification for the number of supplemental visas. However, the Departments disagree that the rule did not sufficiently justify the number of supplemental visas. Specifically, the Departments disagree with the assertion that official government statistics are incorrect or inadequate. Furthermore, the Departments (as branches of the Federal Government) believe that it is reasonable to rely on official labor market statistics produced by subject-matter experts within the U.S. Government when assessing the labor market. Additionally, the Departments note that did they not rely on any single statistic to determine either the general need for supplemental visas or the specific number of supplemental visas, but rather considered a number of factors including demand for H-2B workers (in the form of TLC data) and labor market conditions (in the form of multiple labor market statistics). Finally, the Departments believe that aspects of this comment, specifically the discussion regarding long-term labor force trends that (by the commenter's description) are impacted by multiple variables other than short-term labor needs, are out of the scope of the FY 2023 Temporary Final Rule.

Comment:

Some commenters expressed support for the Departments' FY 2023 distribution of the supplemental H-2B visas in multiple seasonal allocations including two allocations for the second half of the fiscal year. These commenters noted that this distribution was beneficial to employers who hire later in the fiscal year.

Response:

The Departments thank the commenters for their feedback and will again make multiple allocations available including two allocations for the second half of FY 2024.

Comment:

One commenter requested that the Departments consider combining the supplemental allocations for the second half of the fiscal year into a single allocation in future TFRs. The commenter stated that administering multiple allocations creates more work for the Departments when they are already struggling to process applications and petitions in a timely manner. The commenter also stated that the allocations for the second half of the fiscal year were “woefully insufficient” to meet employer demand.

Response:

The Departments have again decided to reserve supplemental visas for the late second half of FY 2024. As noted by the commenter, administering multiple allocations involves some level of additional work. This includes both the work performed by USCIS in the actual administration of each allocation cap, as well as a potential increase in DOL workload as TLC requests may increase. However, the Departments have attempted to balance such workload challenges with the importance of addressing the needs of U.S. employers, including those late season employers who otherwise may not have the opportunity to file for cap-subject H-2B workers. As explained in last year's TFR and again in this TFR, the intense competition for employers requesting an April 1 start date has resulted in H-2B visas being effectively unavailable for many employers who need workers to start late in the season, and thus the late season allocation is intended to directly assist those employers.

For FY 2024, as in FY 2023, the Departments believe that there is sufficient demand and need for the late second half to justify the additional work and potential impact on processing times.

87 FR 76816, 76830 (Dec. 15, 2022).

Regarding the claim that the total allocation for the second half of FY 2023 was inadequate, the Departments reiterate that the 33,000 cap was statutory, and the second half's total returning worker supplemental allocation of 26,500 visas was more than the first half's returning worker allocation of 18,216. In addition, while the 20,000 allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti was available for start dates throughout FY 2023, the majority of visas issued under that allocation went to workers with second half start dates.

As with the FY 2023 TFR, the Departments will continue to make more total visas available for the second half of FY 2024 than the first half.

Under the FY 2023 TFR allocation for nationals of Northern Central America and Haiti, a total of over 16,700 visas were issued, with around 5,000 of those visas issued to workers with first half start dates and the remainder issued to workers with second half start dates.

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, FY 2023 H-2B Northern Central American Cap Approvals by Validity Start Date Month.

Comment:

One commenter recommended reallocating unused visas from one sub-allocation to another if there were unused visas, such as unused visas from the allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti, to the returning worker allocation. Another commenter more specifically suggested that the Departments coordinate with DOS to verify all visas under the first half allocation are actually used and roll over any supplemental visas that were “used” (counted on a petition) but not issued (by DOS) from the first half cap to the second half cap, or from the early

second half cap to the late second half cap.

Response:

The Departments again decline to roll over any unused visas. As explained in this and the prior TFR, calculating and administering a process to carry over unused visas would significantly increase operational burdens. Also, not permitting rollover from the allocation for nationals of certain countries into the returning worker allocation provides employers seeking to hire workers from these countries with more time to petition for, and bring in those workers and encourages full use of the 20,000 allocation.

This, in turn, contributes to the United States Government's efforts to promote and improve safety, security and economic stability in these countries to help stem the flow of irregular migration to the United States. Further, DHS anticipates that the issuance of this rule early in the fiscal year, the fact that this is the fourth year that DHS will make a specific allocation available for workers from the Northern Central American countries and Haiti, as well as the inclusion of nationals from Ecuador, Colombia, and Costa Rica, will contribute to even greater utilization of available visas under this allocation during FY 2024 such that a rollover would not be beneficial or necessary. Similarly, it is the Departments' expectation that there will be sufficient demand from employers with first half and early second half start dates to use the entirety of these allocations in FY 2024, rendering rollover unnecessary.

In FY 2021, 3,079 visas out of 6,000 authorized were issued under the allocation for nationals of Northern Central America in the FY 2021 TFR, which published on May 25, 2021—to use a visa under this allocation the petition had to have been received by July 8, 20211. In FY 2022, 2,481 visas out of 6,500 authorized were issued under the allocation for nationals of Northern Central America and Haiti in the first half FY 2022 TFR, which published on January 22, 2022; 7,405 visas out of 11,500 authorized were issued under the allocation for nationals of Northern Central America and Haiti in the second half FY 2022 TFR, which published on May 18, 2022; and 16,713 visas were issued out of 20,000 authorized under the allocation for nationals of Northern Central America and Haiti in the FY 2023 TFR, which published on December 15, 2022.

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

With respect to the suggestion to roll over any supplemental visas that were “used” but not issued by DOS, the Departments note that DHS already accounts for visa usage rates (among other factors) in its administration of the caps by using projections of the number of petitions necessary to achieve the numerical limit of approvals.

See

new 8 CFR 214.2(h)(6)(xiv)(D). Further, any rollover process would be operationally burdensome as noted above.

Comment:

A commenter requested the Departments to prioritize the allocation of late second half visas to essential and critical infrastructure employers, including seafood processors, as designated by DHS. Another commenter similarly requested the Departments to prioritize critical and essential infrastructure seafood industry jobs.

Response:

The Departments decline the suggestion to prioritize certain industries or jobs in the allocation of supplemental cap visas. As noted in the FY 2023 TFR and this TFR, the Departments interpret the use of the phrase “the needs of American businesses” in the relevant statutory authority for the supplemental caps as providing discretion to identify the business needs that are most relevant, while bearing in mind the need to protect U.S. workers. The Departments have implemented the irreparable harm standard in order to prioritize the most pressing business needs. Prioritizing certain industries as “essential and critical,” separate from the irreparable harm consideration already in use, could also harm industries DHS does not designate as such. The Departments believe considering the irreparable harm to individual employers better addresses the needs of employers than designating entire industries for prioritization. In addition, the Departments do not believe such prioritization is necessary as the decision to provide a late second half allocation again for FY 2024 should provide some relief to seafood processors (one of the industries highlighted in the comments) and other similar companies facing a need for additional workers in the late second half.

FY 23 Allocation for Nationals of El Salvador, Guatemala, Honduras, and Haiti

Comment:

Two commenters expressed general opposition to the allocation of supplemental visas for nationals of El Salvador, Guatemala, Honduras, and Haiti. These commenters opined that the H-2B program is not an appropriate strategy for addressing humanitarian needs and that the H-2B program would not provide permanent, durable solutions for these countries' nationals.

Response:

The country-specific allocation within the H-2B program is an important part of the administration's overall strategy to expand access to lawful pathways for individuals from these countries to stem irregular migration. These allocations are just one of the additional lawful pathways offered to these nationals and others, including new family reunification parole processes for certain nationals of El Salvador,

Guatemala,

Honduras,

Colombia,

and Ecuador,

and modernized family reunification parole processes for certain nationals of Haiti

and Cuba.

Implementation of a Family Reunification Parole Process for Salvadorans,

88 FR 43611 (July 10, 2023).

Implementation of a Family Reunification Parole Process for Guatemalans,

88 FR 43581 (July 10, 2023).

Implementation of a Family Reunification Parole Process for Hondurans,

88 FR 43601 (July 10, 2023).

Implementation of a Family Reunification Parole Process for Colombians,

88 FR 43591 (July 10, 2023).

DHS announced a forthcoming family reunification parole program for Ecuador on October 18, 2023. DHS,

DHS Announces Family Reunification Parole Process for Ecuador

(Oct. 18, 2023),

https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-process-for-ecuador

(announcing that the

Federal Register

notice for this process will be published soon). As of October 27, 2023, the program is not yet active.

Implementation of Changes to the Haitian Family Reunification Parole Process,

88 FR 54635 (Aug. 11, 2023).

Implementation of Changes to the Cuban Family Reunification Parole Process,

88 FR 54639 (Aug. 11, 2023).

The root causes of migration from these regions are multifold. Political instability and insecurity, poverty and economic inequality, pervasive crime and corruption, and other factors all contribute to irregular migration.

The diversity of the root causes of irregular migration requires a multi-pronged strategy, as employed by this administration, to address them. As such, this rule and the allocation for certain countries provide an additional lawful pathway for individuals seeking an economic opportunity in the United States who would eventually return to contribute to the development of their own community and country. However, the Departments recognize other programs and efforts are also needed to

address other drivers to irregular migration.

See

National Security Council,

U.S. Strategy for Addressing the Root Causes of Migration in Central America,

at 4 (Jul. 2021),

https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf

(Poverty and economic inequality, among other factors, contribute to irregular migration).

See also

The White House,

Fact Sheet: Update on the U.S. Strategy for Addressing the Root Causes of Migration in Central America

(Feb. 2023),

https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/06/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-2/

(economic challenges is one of the drivers of irregular migration); Diana Roy and Amelia Cheatham,

Central America's Turbulent Northern Triangle

(July 13, 2023), Council on Foreign Relations,

https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle

(“Many interrelated factors drive people from the Northern Triangle, including lack of economic opportunity. . . .”).

Comment:

A commenter stated that the allocation of supplemental visas for nationals of El Salvador, Guatemala, Honduras, and Haiti was too high for H-2B employers to take full advantage of this set aside. The commenter stated that visa processing times in those countries cause employers to fear that they will not be able to obtain H-2B workers from these countries efficiently.

Response:

The Departments disagree that the 20,000 allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti was too high. The Departments have again decided to set aside 20,000 supplemental visas for nationals of certain countries and believe all 20,000 visas will be utilized in FY 2024 for the following reasons. First, H-2B visa issuance growth data for nationals of these countries for the past several years supports the Departments' decision. Under the dedicated allocations in prior TFRs, H-2B visas were issued to 3,079 out of 6,000 authorized for nationals of Northern Central America under the FY 2021 TFR; 9,886 out of 11,500 authorized for nationals of Northern Central America and Haiti under the two FY 2022 TFRs; and 16,713 out of 20,000 authorized for nationals of Northern Central America and Haiti under the FY 2023 TFR.

These numbers show a steady increase in utilization over time. In addition, the issuance of this rule early in the fiscal year and the fact that this is the fourth year that DHS will make a specific allocation available for workers from the Northern Central American countries and Haiti, as well as the inclusion of nationals from Colombia, Ecuador, and Costa Rica, will increase the likelihood that all 20,000 set-aside visas for FY 2024 will be used.

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023.

Comment:

A commenter requested including nationals of Ukraine in the same priority allocation as nationals of El Salvador, Guatemala, Honduras, and Haiti.

Response:

The Departments thank the commenter but will decline this suggestion. While DHS is committed to providing support to Ukrainian nationals, the allocation for Northern Central American/Haitian nationals was intended to support the administration's efforts to reduce irregular migration and expand lawful pathways from across the Western Hemisphere, and the Departments are making a similar separate allocation for nationals of specified countries this year for the same reasons. DHS continues to support Ukrainian nationals through other processes, such as Uniting for Ukraine.

The Departments further note that, historically, Ukrainian nationals have received relatively high numbers of H-2B visas compared to nationals of other countries.

Including Ukrainian nationals in the 20,000 allocation would take away from the number of supplemental visas available to help achieve the administration's overall goal of expanding lawful pathways from the Americas.

USCIS,

Uniting for Ukraine, https://www.uscis.gov/ukraine;

DHS,

Fact Sheet: DHS Efforts to Assist Ukrainian Nationals,

https://www.dhs.gov/news/2022/03/31/fact-sheet-dhs-efforts-assist-ukrainian-nationals

(last visited Oct. 31, 2023).

Ukraine was among the top ten H-2B visa issuance countries in FY 2022 and among the top five H-2B visa issuance countries in FY 2021 and FY 2020.

See

USCIS,

Characteristics of H-2B Nonagricultural Temporary Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf

(Feb. 14, 2023) (Ukrainian nationals were issued 1,085 H-2B visas in FY22);

Characteristics of H-2B Nonagricultural Temporary Workers Fiscal Year 2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf

(Mar. 10, 2022) (Ukrainian nationals were issued 2,222 H-2B visas in FY21);

Characteristics of H-2B Nonagricultural Temporary Workers Fiscal Year 2020 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf

(Feb. 22, 2021) (Ukrainian nationals were issued 1,585 H-2B visas in FY20).

Data Transparency

Comment:

Several commenters requested the Departments disclose more data about the H-2B program. Specifically, commenters requested that DHS post “close to real time” data about jobs for which employers are seeking H-2B workers including the employer name, wages and working conditions and dates of need; provide more information through the USCIS H-2B Employer Data Hub including information on cap-exempt petitions; and provide additional information on usage of the allocation for Northern Central American and Haitian nationals, including the number of visas that were issued to nationals from each country, as well as which industries, employers and recruiters were involved. With regard to suggestions for DOL, commenters recommended enhancing the

seasonaljobs.gov

website's utility, including by ensuring that workers know in real time when an employer is actively hiring.

Response:

The Departments appreciate these comments and note that transparency and access to data and information continue to be among our priorities.

DHS/USCIS has sought to increase transparency in employment-based visa programs, including through the USCIS H-2B Employer Data Hub which provides detailed information on H-2B petitions including employer name, state, worksite state, industry, occupation, and wage levels.

Notably, the goal of improving data transparency is among the objectives included in a recently published report by the H-2B Worker Protection Taskforce.

Specifically, one of the action items described in the report is the leveraging of existing data to increase transparency and reduce the vulnerability of H-2B and H-2A workers, including by improving interagency data sharing; improving publicly available data to inform outreach and advocacy efforts, including through new anonymized quarterly data reports and on DHS's H-2B Data Hub; and by publishing anonymized, aggregated data by gender, sector, and occupation to provide an additional transparency to the H-2 programs and aid efforts to prevent gender discrimination.

USCIS,

Annual Statistical Report FY 2022, https://www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf.

Since FY 2008, DOL continues to publish selected statistical factsheets and individual TLC case record data cumulated on a quarterly and annual basis useful to a wide range of stakeholders and the general public at

https://www.dol.gov/agencies/eta/foreign-labor/performance.

USCIS,

H-2B Employer Data Hub, https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub

(last visited Oct. 17, 2023). The data in the H-2B Employer Data Hub comes from fields on an employer's Form I-129, from USCIS' adjudicative decisions, and from the DOL H-2B Application for Temporary Employment Certification (Form ETA-9142B). USCIS,

Understanding our H-2B Employer Data Hub, https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub/understanding-our-h-2b-employer-data-hub

(last visited Oct. 17, 2023).

See

The White House,

Strengthening Protections for H-2B Temporary Workers, Report of the H-2B Worker Protection Taskforce, https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf

(Oct. 19, 2023).

In addition, USCIS included some data about visas allocated under the FY 2022 allocation for nationals of Northern Central American countries and Haiti in its most recent report to Congress (which is available to the public) about characteristics of the H-2B program.

The Departments will consider the suggestions provided by these commenters as they seek to improve clarity and transparency of data for the public. However, the Departments believe that many of the

suggestions, as well as other data enhancements, can be accomplished outside of the regulatory process. Therefore, DHS declines to adopt these suggestions as part of this temporary final rule.

USCIS,

Characteristics of H-2B Nonagricultural Temporary Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf

(Feb. 14, 2023).

Irreparable Harm Standard

Comment:

Two commenters expressed concerns related to the irreparable harm standard as articulated. One commenter stated that the standard is unclear, overly burdensome, applied inconsistently by the Departments, and disruptive to business operations. The commenter felt that, if the standard is retained, the Departments should provide clearer guidance on what specific documents are required and sufficient, and recommended that the Departments issue step-by-step instructions for participating in the program to assist employers with understanding their obligations and reducing the risk of noncompliance.

Response:

As discussed in greater detail below, because the authority to increase the statutory cap is tied to the needs of businesses, the Departments think it is reasonable for employers to attest that they are suffering irreparable harm or that they will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on their petition and to retain and be able to produce (upon request) documentation of that harm as well as a statement describing the harm and explaining the relevance of the documentation. The Departments also think that the standard is sufficiently clear to allow compliance, and that listing out specific documents that must be provided in each case is not an appropriate approach. Each determination of irreparable harm is made on a case-by-case basis. This inherently means that some documentation presented in one case may not be sufficient in another case presenting a different set of facts. In addition, not listing specific documents provides more flexibility for employers across occupations and industries to provide documentation that is relevant to their types of businesses.

Recruitment Requirements

Comment:

One commenter stated that the additional recruitment requirements included in the TFR create an undue burden for participating employers. Specifically, the commenter stated that the requirement to provide a copy of the job notice to the AFL-CIO is unnecessary, and “purely duplicative, given the steps already required of petitioners to recruit U.S. workers.” The commenter also asserted that the requirement failed to acknowledge the rate at which workers are unionized, noting the low rate of unionization in the residential construction industry, and suggested that in some areas alternative organizations—such as state and local trade associations or workforce boards—may be better positioned to conduct recruitment efforts in place of the AFL-CIO.

Response:

As discussed in the FY 2023 TFR and below, while the Departments recognize that the recruitment requirements create some burden on employers, the Departments believe they are necessary to ensure that the employer's recruitment has not become stale and that there are no U.S. workers available for the relevant job opportunity. The Departments reiterate that the additional recruitment requirements are only applicable if an employer files their I-129 petition 30 or more days after their certified start dates of work. The Departments, as discussed in the FY 2023 TFR and below, believe that the requirement to provide a copy of the job notice to the AFL-CIO is complementary to, rather than duplicative of, the other recruitment requirements for several reasons. For example, the Departments explained in the prior TFR that the State Federations of Labor and local unions to which SWAs would circulate relevant job orders, based on their knowledge of the local labor market, are composed of various union organizations and may not always include the AFL-CIO. At the same time, the requirement to contact the AFL-CIO increases outreach to qualified U.S. workers as H-2B job opportunities in traditionally or customarily unionized occupations tend to fall within those industries most likely to be organized or represented by AFL-CIO member unions.

See

87 FR 76816, 76844-45. The Departments disagree that they have not taken the rate of unionization into account as the Departments previously provided, and will continue to provide, a list of occupations that they believe are typically or customarily unionized.

See, e.g.,

87 FR 76816, 76844 n.145 (noting the occupations or industries listed are ones in which the Department has typically observed substantial union presence). Finally, the Departments agree that other organizations in addition to the AFL-CIO are well positioned to assist employers with recruitment activities as demonstrated by the requirement to post a new job order with the SWA and to engage with the local AJC to assist with recruitment.

Attestation Form

Comment:

One commenter stated that the attestation form that is required “to demonstrate irreparable harm” under the TFR is “overly burdensome and may discourage employer participation when noncitizen workers are needed to address labor shortages,” and urged the Departments to exclude the attestation form from subsequent rulemakings. The commenter indicated the Departments should recognize that a petitioner's investment of resources into seeking a TLC and filing Form I-129 with accompanying documentation shows “the implied need for H-2B workers.”

Response:

The Departments disagree with this comment. The attestation form contains information needed to establish eligibility for supplemental H-2B visas that is not captured on other forms. It also contains information that the Departments need to properly administer the allocations under this rule. For example, among other things, the petitioner must indicate which allocation they are requesting workers under, attest that they are suffering or will suffer impending irreparable harm and indicate the types of evidence that they have retained to demonstrate irreparable harm. The Departments believe that the additional attestation is the least burdensome way to collect information needed to establish eligibility and to properly administer the supplemental visa allocations. The Departments also disagree that the attestation form is overly burdensome as DOL estimated that the total time burden for the ETA-9142-B-CAA-7 is 1 hour.

It is unlikely that an employer would be discouraged from seeking H-2B workers because of this 1 hour burden, especially if the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ those workers.

The Departments are retaining the attestation form requirement, and the total time burden for the FY 2024 attestation form, ETA-9142-B-CAA-8, remains 1 hour.

Legal Issues

Comment:

One commenter stated that DHS violated the National Environmental Policy Act (NEPA) by failing to provide any analysis to justify its assertion that adding up to 64,716 visas would not result in “meaningful, calculable change in environment effect,” or to justify its conclusion that the FY 2023 TFR therefore fits within a categorical exclusion.

Response:

The Departments disagree with the commenter regarding the sufficiency of the NEPA analysis in the FY 2023 TFR. As explained in the FY

2023 TFR, an additional 64,716 H-2B nonimmigrant visas will not result in any meaningful, calculable change in environmental effect with respect to the current H-2B limit or in the context of a current U.S. population exceeding 331,893,745, which represents a maximum temporary increase of 0.0195 percent. As further explained, the FY 2023 TFR is a stand-alone temporary authorization and not a part of any larger action and presents no extraordinary circumstances creating the potential for significant environmental effects.

Comment:

While a commenter agreed with DHS that there was good cause to immediately increase the cap, the commenter opined that there was not good cause for the other “ancillary policy provisions,” particularly the requirement to “affirmatively contact” the nearest AFL-CIO office and provide written notice of the job order placed with the SWA when the employment is in a traditionally or customarily unionized occupation or industry. Accordingly, the commenter urged the Departments to reissue the FY 2023 TFR as two separate rules, a final rule to release the supplemental visas and a proposed rule that contains the other provisions.

Response:

The Departments maintain there was good cause to couple the release of supplemental visas with additional provisions, such as the additional recruitment requirements, in a temporary final rule. The Departments provided their rationale for the recruitment requirements in the FY 2023 TFR

and articulated sufficient good cause to forgo notice and comment rulemaking for all aspects of the temporary final rule. As indicated in the FY 2023 temporary final rule, the duration of the authorization to make supplemental cap visas available, combined with the urgent need of American businesses for H-2B workers did not provide sufficient time to conduct pre-promulgation notice and comment rulemaking on any aspect of the TFRs, including additional recruitment requirements.

87 FR 76816, 76842-47 (Dec. 15, 2022).

Suggestions Outside the Departments' Authority

Comment:

Two commenters urged the administration to consider an “Alternative Model for Labor Migration” that would give workers in the H-2B visa program, and more broadly in all work visa programs, more control over their visas by allowing them to self-petition and be matched with employers via a government database, and would enable workers to petition for citizenship. The commenters set forth a detailed plan regarding how the model would function, including specific DOL and USCIS procedures, and they provided an analysis of the benefits of the alternative model relative to the current program.

The commenters asserted that the supplemental cap TFR represents an opportunity for the Departments to “partially implement” the model described. Specifically, the commenters suggested that the Departments could implement a lottery open to all returning workers by which they could apply to be assigned a priority ranking. Employers approved through the TLC and petition processes would be required to post the number of open H-2B positions and procedures for applying publicly on

seasonaljobs.dol.gov,

and any returning H-2B worker would be eligible to apply directly to the employer or the employer's designated agent. If the applications from returning H-2B workers exceeded the vacancies, workers' priority would be based on their assigned lottery rank.

Response:

As implicitly acknowledged by the commenters in their suggestions that the proposed model could be “partially” implemented by regulation, many aspects of the commenters' proposed “Alternative Model for Labor Migration,” such as enabling workers to self-petition and to pursue citizenship, are clearly outside the Departments authority under the current statutory scheme. It is unclear whether the Departments have authority to otherwise “partially implement” the model as suggested. Regardless, even assuming such authority, the Departments note that the proposal would not be feasible in the context of a temporary and time-limited statutory authority and rule such as the current TFR, due to the level of changes to existing processes and the development of new systems and processes that would be required for implementation.

Broader Program Reforms

Some commenters made suggestions for broader program reforms that would require Congressional action. For example, commenters made suggestions relating to permanently increasing the H-2B annual statutory cap, exempting certain workers from that cap, and increasing funding for DOL's H-2B enforcement. However, the Departments decline to further detail and respond to these comments, as the recommendations are all outside of the Departments' authority to accomplish.

In addition to the issues discussed above, the public comments included numerous suggestions for the Departments to make permanent changes to the H-2B program, with several commenters expressing that the Departments should not exercise their authority to increase the number of H-2B visas unless and until the program is more broadly reformed. The recommendations for permanent program reforms included suggestions for both DHS and DOL regarding ways to increase protections for both foreign and U.S. workers, and to improve the overall integrity and efficiency of the program. Specifically, commenters suggested that one or both Departments should implement the following changes to the H-2B program before or instead of authorizing supplemental visas:

• Provide a grace period with employment authorization so workers can leave employers for any reason;

• Notify beneficiaries about their own immigration status;

• Provide workers access to information about their rights and about available resources to enforce those rights;

• Improve access to deferred action for H-2 workers who experience or witness labor rights violations, including an expedited process for issuance of statements of interest from government entities;

• Fully implement the existing provision at 8 CFR 214.2(h)(17)(iii) to protect workers who leave abusive employers from accruing unlawful presence;

• Do more to prevent discrimination and discriminatory hiring practices in the H-2B program;

• Collect and release more and better data about the H-2B program;

See above comment and response under the heading “Data Transparency” for further discussion on this topic.

• Provide increased real-time information about available job opportunities;

• Require employers to give priority to anyone in the U.S. with employment authorization (including “individuals with unexpired valid H-2B visas”) for any open unfilled position for which an employer sought or obtained H-2B labor certification;

• Prioritize petitions for industries with the lowest unemployment rate(s) instead of using a lottery system;

• Allocate visas to employers who pay the highest wages instead of using a random lottery system;

• Do not issue H-2B visas to employers who are engaged in labor disputes, and only issue visas to direct employers and end outsourcing and labor contractors;

These recommendations were specifically for USCIS, however, the Departments note that visas are issued by the Department of State.

• Grant work authorization to spouses of H-2 nonimmigrants;

• Impose greater employer accountability for actions of contractors, recruiters, and agents;

• Seek ways to enforce the ban on recruitment fees without penalizing workers;

• Allow H-2B workers to pursue permanent labor certification or “other applications for permanent residence;”

• Prohibit the imposition of unnecessary requirements for entry-level positions;

• Improve health and safety standards at H-2B workplaces;

• Require employers to undertake both local and national recruitment efforts before looking abroad;

• Require employers to pay for housing and daily transportation to and from the worksite for both U.S. and H-2B workers;

• Require full contract compliance, including all hours promised;

• Cease issuance of H-2B labor certifications for work in certain areas, such as “labor surplus areas or occupations” or “high unemployment regions and industries;”

• Create a streamlined process for reporting program violations;

• Create an avenue for stakeholders, including U.S. workers, to raise concerns about job orders and labor certifications;

• Reinstate the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws to strengthen deconfliction efforts between key agencies and support affirmative protections for immigrant and nonimmigrant workers;

• Create a civil society advisory group to promote decent work in the Central American regional strategy;

• Update the H-2B prevailing wage methodology in various ways;

• Implement the additional U.S. recruitment requirements;

• Improve language access for workers;

• Keep job postings active until all positions are actually filled, and require employers to update the job postings with new information;

• Keep labor violators out of the program, including by creating an employer screening and/or registration program;

• Establish a formal registration process for international recruiters, as well as U.S. agents;

• Require employers to disclose every person authorized to engage in recruitment on their behalf;

• Work with Department of State to enhance consulates' H-2B job verification services by verifying recruiters associated with the job order;

• Increase enforcement in various ways, such as by debarring all recruiters that engage in any prohibited practice, creating stiffer penalties for employer violations, and/or instituting processing fees at sufficient levels to fund robust enforcement;

• Change the visa allocation procedures for the statutory 66,000 cap, including allocation in 4 different increments, and using less than 33,000 visas during the first half of the fiscal year;

• Modify the current process for randomizing H-2B TLC applications in such a manner as to give H-2B employers opportunities to participate without regard to the date specified as the first date for employment;

• Reduce the period a worker is required to be outside the United States following 3 years in H-2B status to 60 days;

• Provide notice of seasonal job openings to unions representing workers in relevant occupations so that they may dispatch members in response;

• Limit the duration of H-2B eligible job orders to 7 months;

• Cap at 100 the number of visas that any single employer can receive;

The permanent changes to the H-2B program that commenters have suggested are not appropriate for inclusion in a rule of temporary duration such as the current TFR, and the Departments therefore decline to discuss each of these suggestions with further specificity. The Departments appreciate the thoughtful recommendations for permanent program reforms, however, and note that they are actively engaged in reform efforts outside of this rulemaking, including efforts to address some of the issues discussed in the suggestions.

Notably, on September 20, 2023, DHS published a notice of proposed rulemaking (NPRM) to modernize and improve both the H-2B and H-2A programs by providing greater flexibility and protections for participating workers, and improving the program's efficiency.

The NPRM contains discussions and proposals related to some of the reform concepts included in the commenters' suggestions including, for example, providing grace periods during which an H-2 worker can leave work to seek new employment, ensuring greater accountability for employers and recruiters with past violations, reducing the required amount of time to be spent outside the United States after reaching 3 years in H-2B status, and allowing workers to take steps toward permanent residence without violating their nonimmigrant status on that basis. DHS is currently accepting public comments specific to the NPRM through November 20, 2023, and will consider all such comments in developing a subsequent final rule. In addition, both Departments are involved in an H-2B Worker Protection Taskforce, convened by the White House, which focuses on threats to H-2B program integrity, H-2B workers' fundamental vulnerabilities, and the impermissible use of the program to avoid hiring U.S. workers.

On October 19, 2023, the H-2B Worker Protection Taskforce published a report announcing new actions to be taken by four federal agencies—DHS, DOL, DOS, and the U.S. Agency for International Development (USAID)— to strengthen protections for vulnerable workers.

Modernizing H-2 Program Requirements, Oversight, and Worker Protections,

88 FR 65040 (Sep. 20, 2023).

See

DHS,

DHS to Supplement H-2B Cap with Nearly 65,000 Additional Visas for Fiscal Year 2023

(Oct. 12, 2022),

https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023

(announcing the creation of the H-2B Worker Protection Taskforce).

See

The White House,

(Oct. 19, 2023).

With regard to commenters' specific recommendation that the Departments decline to provide supplemental H-2B visas unless and until the program is broadly reformed, the Departments disagree with that recommendation. While permanent reforms to the relevant DHS regulations are being considered outside of this rulemaking as noted above, the Departments have determined, as discussed in greater detail below, that an increase in H-2B visas for businesses facing irreparable harm is warranted and justified under the authority provided in section 303 of the FY 2023 Omnibus, as extended by Public Law 118-15.

III. Discussion

A. Statutory Determination

Following consultation with the Secretary of Labor, the Secretary of Homeland Security has determined that some U.S. employers cannot satisfy their needs in FY 2024 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with the FY 2024 continuing resolution extending the authority provided in section 303 of the FY 2023 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas through the end of FY 2024 by up to 64,716 additional visas for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition. These businesses must retain documentation, as described below, supporting this attestation.

As in connection with the FY 2021, FY 2022, and FY 2023 H-2B supplemental visa temporary final rules, and consistent with existing authority, DHS and DOL intend to conduct a significant number of audits with respect to petitions filed under this TFR requesting supplemental H-2B visas during the period of temporary need. The Departments will use their discretion to select which petitions to audit, and the Departments will use the audits to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule. If the Departments find that an employer's documentation does not meet the irreparable harm standard, or that the employer fails to provide evidence demonstrating irreparable harm or comply with the audit process, the Departments may consider it to be a substantial violation resulting in an adverse agency action against the employer, including revocation of the petition and/or TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under the supplemental caps in FY 2021, FY 2022, and FY 2023 revealed concerns surrounding payment of the promised wage, employment of returning workers, documentation of irreparable harm, and employment at the listed location, which may warrant further review and action.

As he did in FY 2021, FY 2022, and FY 2023, the Secretary of Homeland Security has also again determined, following consultation with the Secretary of Labor, that for certain employers, additional recruitment steps are necessary to confirm that there are no qualified U.S. workers available for the positions. In addition, the Secretary of Homeland Security has determined, following consultation with the Secretary of Labor, that the supplemental visas will be limited to returning workers, with the exception that up to 20,000 of the 64,716 visas will be exempt from the returning worker requirement and will be reserved for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

DHS is reserving these 20,000 H-2B visas for nationals of these countries to further the United States' objectives in the Western Hemisphere to manage irregular migration through various lines of efforts including increasing and expanding access to lawful pathways for nationals of countries that have extensively collaborated with the United States on migration issues, such as through endorsing the Los Angeles Declaration on Migration and Protection (L.A. Declaration),

joining the United States to ramp up efforts to address the irregular migration flows through the Darien,

and hosting Safe Mobility Offices so that migrants do not trek north to the U.S. Southwest Border.

The 20,000 set-aside will also deliver on the objectives of E.O. 14010, which, among other initiatives, instructs the Secretary of Homeland Security and the Secretary of State to implement measures to enhance access to visa programs for nationals of the Northern Central American countries.

DHS is also allocating these visas to specific countries to further promote development and economic stability of these countries to reduce irregular migration throughout the Western Hemisphere.

These conditions and limitations are not inconsistent with sections 214(g)(3) (“first in, first out” H-2B processing) and (g)(10) (fiscal year H-2B allocations) because noncitizens covered by the special allocation under section 303 of the FY 2023 Omnibus are not “subject to the numerical limitations of [section 214(g)(1)].”

See, e.g.,

INA section 214(g)(3); INA section 214(g)(10); Continuing Appropriations Act, 2024, div. A, sec. 101(6) (extending the authority provided in FY 2023 Omnibus div. O, sec. 303 (“Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the [INA] . . . .”)).

The White House, Los Angeles Declaration on Migration and Protection, June 10, 2022,

https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.

Trilateral Joint Statement,

April 11, 2023,

https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.

The White House,

Joint Statement from the United States and Guatemala on Migration

(June 1, 2023),

https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/;

United States Department of State,

U.S.-Colombia Joint Commitment to Address the Hemispheric Challenge of Irregular Migration

(June 4, 2023),

https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/;

The White House,

Readout of Principal Deputy National Security Advisor Jon Finer's Meeting with Colombian Foreign Minister Alvaro Leyva

(June 11, 2023),

https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/;

United States Department of State,

U.S.-Costa Rica Joint Commitment to Address the Hemispheric Challenge of Irregular Migration

(June 12, 2023),

https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/;

United States Department of State, Announcement of Safe Mobility Office in Ecuador (October 19, 2023),

https://www.state.gov/announcement-of-safe-mobility-office-in-ecuador/#:~:text=The%20United%20States%20is%20pleased,authorized%20channels%20of%20lawful%20migration.

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 L.A. Declaration to expand legal pathways as an alternative to irregular migration”); The White House,

Fact Sheet: The Los Angeles Declaration on Migration and Protection U.S, Government and Foreign Partner Deliverables, 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 303 of the FY 2023 Omnibus, as extended by Public Law 118-15, sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2024.

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 2024, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it is appropriate to make available up to 64,716 additional visas, which is the maximum allowed, under the FY 2024 supplemental cap authority. The Secretary further considered the objectives of E.O. 14010 and the L.A. Declaration, both of which focus in part on addressing the root causes of irregular migration and managing migration through lawful pathways. Accordingly, the Secretary determined that it is appropriate to reserve up to 20,000 of the up to 64,716 additional visas and exempt this number from the returning worker requirement for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.

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 for workers from Northern Central American countries.

Of the petitions received, USCIS issued approvals for 30,707 beneficiaries, including approvals for 6,805 beneficiaries under the allocation for the nationals of the Northern Central American countries.

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 10/2023, TRK 13122. The number of approved workers exceeded the number of additional visas authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States. Unlike these past supplemental cap TFRs, petitions filed under the first half FY 2022 TFR did not exceed the additional allocation of 20,000 H-2B visas provided by that rule.

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.

100

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

101

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.

100

See

USCIS,

(May 31, 2022).

101

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122. The number of approved workers exceeded the number of additional visas authorized for the second half of FY 2022 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

In FY 2023, USCIS received enough petitions to reach the cap for the additional 18,216 H-2B visas made available for returning workers for the first half of fiscal year by January 30, 2023, and USCIS received enough petitions to reach the cap for the additional 16,500 H-2B visas made available for returning workers for the early second half of fiscal year by March 30, 2023.

102

Of the petitions for supplemental H-2B visas in FY 2023, USCIS issued approvals for 78,302 beneficiaries, including 7,157 beneficiaries under the allocation of 10,000 visas made available for returning workers for the late second half of the fiscal year and 23,832 beneficiaries under the allocation of 20,000 visas reserved for nationals of the Northern Central American countries and Haiti.

103

102

See

USCIS,

(Jan. 31, 2023); USCIS,

(Mar. 31, 2023).

103

See

DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report September 30, 2023. The number of approved workers exceeded the number of additional visas authorized for FY 2023 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

Data for the first half of FY 2024 clearly indicate an immediate need for additional supplemental H-2B visas for employers with start dates on or before March 31, 2024. USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2024 fiscal year statutory cap on October 11, 2023.

104

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory cap has generally trended earlier in recent years. In fiscal years 2017 through 2024, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, September

12, 2022, and October 11, 2023, respectively.

105

104

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

105

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); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

Through the third quarter of FY 2023, approximately 85.2 percent of H-2B filings were for positions within just 5 sectors.

106

NAICS 56 (Administrative and Support and Waste Management and Remediation Services) accounted for 39.5% of filings, NAICS 71 (Accommodation and Food Services) accounted for 11.2%, NAICS 72 (Arts, Entertainment, and Recreation) accounted for 18.00%, NAICS 23 (Construction) accounted for 12.4%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) accounted for 4.1% of filings.

106

USCIS analysis of DOL OLFC Performance data.

Within these industries, DOL data show higher labor demand relative to recent history. More specifically, industry unemployment data from the Bureau of Labor Statistics (BLS) show that the industry unemployment rate in each of these industries is lower than the long term (10-year) average.

107

USCIS has elected to use a long-term average as a reference point so as to minimize the impact that the Covid-19 pandemic has on the comparison of the industry employment rate. All data are taken from the respective BLS “Industry at a Glance” pages. See

https://www.bls.gov/iag/tgs/iag11.htm, https://www.bls.gov/iag/tgs/iag23.htm,

https://www.bls.gov/iag/tgs/iag60.htm, https://www.bls.gov/iag/tgs/iag71.htm,

https://www.bls.gov/iag/tgs/iag72.htm.

All data accessed September 20, 2023.

ER17NO23.020

ER17NO23.021

In August 2023, the industry unemployment for NAICS 56

108

was 3.7 percent, which is 1.31 points lower than its 10-year average of 5.01 percent, while the industry unemployment rate for NAICS 71 was 4.5 percent which is 3.85 points lower than its 10-year average of 8.35 percent. The August 2023 industry unemployment rate for NAICS 72 (6.10 percent) was 2.13 points lower than its 10-year average of 8.23 percent while the rate for NAICS 23 (3.9 percent) was 2.53 points lower than its 10-year average of 6.43 percent. The industry unemployment rate for NAICS 11 (5.80 percent) was 1.96 points lower than its 10-year average of 7.76 percent. The relatively low unemployment rate across these industries is a clear indication of a strong labor demand within these industries. The Departments believe that the supplemental allocation of H-2B visas described in this temporary final rule will help to meet demand in these industries.

108

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 July, 2023 from the Department of Labor's Current Employment Statistics program indicates that NAICS 56 accounted for just under 42% of employment in Professional Business Services. All data accessed September 27, 2023.

Economy-wide data also indicate that labor-market tightness continues to exist. The most recent Employment Situation released by the Bureau of Labor Statistics (BLS) stated that the unemployment rate was 3.8 percent in September 2023.

109

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

110

shows that the H-2B visa allocations for Fiscal Year 2024

111

made by this rule are slightly higher than the historical trend but are generally consistent with what the current unemployment rate alone would predict. Additionally, when the unemployment rate is below 6 percent, there is greater variance in the total number of H-2B visas issued in a given year; for example, in years 2022, 2007 and 2006, when the unemployment rate ranged from approximately 3.5 percent to 4.6 percent, the total number of H-2B visas issued were comparable to what is planned for 2024. The data presented in chart 1 is meant to provide additional context and to demonstrate that the total allocation of H-2B visas is reasonable given labor market conditions.

109

See

DOL, BLS,

The Employment Situation—September 2023, https://www.bls.gov/news.release/archives/empsit_10062023.pdf

(Oct. 6, 2023).

110

Annual data presented here is on a fiscal year basis. Fiscal year averages were calculated by taking the average of the monthly unemployment rate for the months in each respective fiscal year (October-September). Data for fiscal year 2023 are for October 2022-August 2023. Unemployment rate for 2024 is based on median Federal Reserve projections See

https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm

(accessed September 29, 2023).

111

The number of estimated visas issued for Fiscal Year 2024 is based on the sum of the fiscal year statutory cap for H-2B workers (66,000) and the supplemental allocation for this rule (64,716), for a total H-2B visa allocation of 130,716.

ER17NO23.022

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

Making Allocations for All of FY 2024 in a Single Rule

As in FY 2023, DHS believes that it is appropriate to issue a single rule for the entire fiscal year for multiple reasons.

112

First, DHS expects that there is demand for supplemental visas in the first half of FY 2024. As previously discussed, USCIS already received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2024.

113

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory caps has generally trended earlier in recent years. In fiscal years 2017 through 2024, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, September 12, 2022, and October 11, 2023, respectively.

114

112

Further, DHS believes that 64,716 is an appropriate number of supplemental visas to make available, as this rule will cover both the first and second half of FY 2024.

113

See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

114

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); USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

Second, based on relevant data, DHS expects that USCIS will reach the statutory cap for the second half of FY 2024 and that there will accordingly be demand for supplemental visas in the second half of FY 2024. For example, in fiscal years 2017 through 2023, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, February 25, 2022, and February 27, 2023.

115

In addition, DOL data shows consistently high demand in recent years, particularly during the second half of the fiscal year. In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 7, 2022, covering 136,555 worker positions; and DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions.

116

115

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); USCIS,

USCIS Reaches H-2B Cap for Second Half of FY 2023 and Announces Filing Dates for the Second Half of FY 2023 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of

(Mar. 2, 2023).

116

See

DOL,

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

Finally, publishing one rule that addresses all the visas available for FY 2024 benefits the regulated public by giving more notice and certainty of what will become available for the second

half. As noted in comments received in response to the FY 2023 TFR, this approach allows businesses to better plan ahead for their seasonal workforce needs.

117

See the docket for this rulemaking for access to these comments.

Filing Deadline of September 16, 2024 for All Petitions

The authority to approve H-2B petitions under this FY 2024 supplemental cap expires at the end of the fiscal year,

i.e.,

the end of September 30, 2024. Therefore, DHS is requiring employers requesting any supplemental visas under this TFR, regardless of the employment start date(s), to properly file their H-2B petition with USCIS no later than September 16, 2024. USCIS will reject any cases that are received after September 16, 2024.

See

new 8 CFR 214.2(h)(6)(xiv)(C). Because DHS believes that 15 days from the end of the fiscal year is generally the minimum time needed for petitions to be adjudicated, but also to account for the fact that September 15, 2024 falls on a Sunday,

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DHS has set September 16, 2024 as the last day to file in order to provide USCIS with adequate time for petition processing before the expiration of the authority at the end of the fiscal year, although USCIS cannot guarantee the time period will be sufficient for adjudication of petitions in all cases.

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In prior rules, USCIS used September 15th as the cutoff date for accepting petitions filed under the supplemental cap. However, in FY 2024, September 15th is on a Sunday when USCIS does not accept petitions. DHS has revised this date accordingly to avoid potential confusion and frustration from petitioners who might have otherwise expected their petitions to be received on the 15th but would instead face rejection.

In addition, the filing deadline will be earlier than September 16, 2024 if the applicable numerical limit for the relevant supplemental visa allocation is reached before that date.

See

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

Returning Worker Allocation for the First Half of FY 2024 (October 1, 2023 Through March 31, 2024)

For the first half of FY 2024, DHS will make 20,716 visas immediately available upon publication of this TFR that are limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These petitions must request a date of need starting on or before March 31, 2024.

See

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

DHS anticipates that employers will use all of the first half allocation for returning workers, given how quickly USCIS reached the FY 2024 first half statutory cap and the first half supplemental allocation for FY 2023. As noted previously, USCIS received enough H-2B petitions to reach the FY 2024 first half statutory cap on October 11, 2023.

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Under the FY 2023 TFR, which published on December 15, 2022, USCIS received enough petitions to reach the 18,216 first half allocation by January 31, 2023.

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Similarly, the relatively early publication of this rule will provide interested employers more time to prepare their petitions, increasing the likelihood that the first half allocation for returning workers will be used.

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To the extent that the first half allocation for returning workers is used, this TFR may provide affected employers with some relief by making available a separate allocation of visas for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, which will be available for the entirety of FY 2024.

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See

USCIS,

USCIS Reaches H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024

(Oct. 13, 2023).

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USCIS,

(Jan. 31, 2023).

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Compare the publication date of this rule with December 15, 2022, the date the FY 2023 TFR was first published, and January 28, 2022, the date the temporary final rule making available additional H-2B visas for the first half of FY 2022 was first published.

In the event that USCIS approves insufficient petitions to use all 20,716 visas, the unused numbers will not carry over for the second half allocation because DHS believes that the operational burdens of calculating and administering a process to carry over unused visas, combined with the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations, would outweigh the benefits. In order to make any unused first half visas available for employers with second half start dates, DHS would need to set a filing cutoff date prior to September 16, 2024 for the first half allocation, upon which it would stop accepting such petitions and make a calculation of how many visas should be re-released for second half employers. Calculating visas to be re-released could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which would significantly increase operational burdens. In addition to increasing operational burdens, DHS believes that the opening, closing, and potential re-opening of this allocation (and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 16, 2024 will maximize employers' opportunity to avail themselves of the first half allocation. While DHS acknowledges that this approach could potentially result in some employers with a demonstrated business need in the second half of the fiscal year losing the opportunity to receive a supplemental visa, it is DHS's expectation that there will be sufficient demand from employers with first half start dates to use the entire allocation.

Initial Returning Worker Allocation for the Early Second Half (April 1, 2024, Through May 14, 2024)

For the second half of FY 2024, DHS will initially make available 19,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These petitions must request a date of need starting on or after April 1, 2024, through and including May 14, 2024. Limiting this allocation to employers with employment start dates on or before May 14, 2024 reflects DHS's intentions to give employers with needs later in the season a better opportunity to access the H-2B program, and to prevent employers from petitioning under both of the second-half allocations to fill the same need.

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

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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 petitione

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