Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

Federal RegisterDec 2, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2788-25]

RIN 1615-AC95

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2024-0002]

RIN 1205-AC20

Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

AGENCY:

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

ACTION:

Temporary rule.

SUMMARY:

DHS, in consultation with DOL, is exercising time-limited Fiscal Year (FY) 2025 authority and increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for the entirety of FY 2025. These supplemental visas will be distributed in four allocations throughout the fiscal year. This rule reserves 20,000 of these visas for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be available only to businesses that are suffering or will suffer impending irreparable harm, as attested by the employer. In addition, DHS is again providing temporary portability flexibility.

DATES:

Effective dates:

The amendments at instructions 1, 3, and 5 are effective December 2, 2024; instructions 2 and 4 amending 8 CFR 214.2 and 274a.12, respectively, are effective from December 2, 2024, through December 2, 2027; instruction 6, adding 20 CFR 655.64, is effective from December 2, 2024, through September 30, 2025; and instruction 7, adding 20 CFR 655.68, is effective from December 2, 2024, through September 30, 2028.

Petition dates:

DHS will not accept any H-2B petitions under provisions related to the FY 2025 supplemental numerical allocations after September 15, 2025, and will not approve any such H-2B petitions after September 30, 2025. The provisions related to portability are only available to petitioners and H-2B nonimmigrant workers initiating employment through the end of January 24, 2026.

Comments on the Information Collection:

The Office of Foreign Labor Certification within the U.S. Department of Labor will accept comments in connection with the new information collection Form ETA-9142B-CAA-9 associated with this rule until January 31, 2025. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit written comments on the new information collection Form ETA-9142B-CAA-9, identified by Regulatory Information Number (RIN) 1205-AC20, electronically by the following method:

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

. Follow the instructions on the website for submitting comments.

Instructions:

Include the agency's name and the RIN 1205-AC20 in your submission. All comments received will become a matter of public record and may be posted without change to

https://www.regulations.gov

. Comments submitted after the deadline for submission will not be considered. Please do not submit comments containing trade secrets, confidential or proprietary commercial or financial information, personal health information, sensitive personally identifiable information (for example, social security numbers, driver's license or state identification numbers, passport numbers, or financial account numbers), or other information that you do not want to be made available to the public. The agency reserves the right to redact or refrain from posting such information and libelous or otherwise inappropriate comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; or that contain hate speech directed at race, color, sex, sexual orientation, national origin, ethnicity, age, religion, or disability. Please note that depending on how information is submitted through regulations.gov, the agency may not be able to redact the information and instead reserves the right to refrain from posting the information or comment in such situations.

FOR FURTHER INFORMATION CONTACT:

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

Regarding 20 CFR part 655 and Form ETA-9142B-CAA-9: Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Ave. NW, Room N-5311, Washington, DC 20210, telephone (202) 693-8200 (this is not a toll-free number).

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Legal Framework

B. H-2B Numerical Limitations Under the INA

C. FY 2025 Public Law 118-83

D. Joint Issuance of the Final Rule

III. Discussion

A. Statutory Determination

B. Numerical Increase and Allocations for Fiscal Year 2025

C. Returning Workers

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

E. Business Need Standard—Irreparable Harm and FY 2025 Attestation

F. Portability

G. DHS Petition Procedures

H. DOL Procedures

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

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

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. National Environmental Policy Act

H. Congressional Review Act

I. Paperwork Reduction Act

I. Executive Summary

FY 2025 H-2B Supplemental Cap

With this temporary final rule (TFR), the Secretary of Homeland Security, following consultation with the Secretary of Labor, is authorizing the release of an additional 64,716 H-2B visas for FY 2025, subject to certain conditions. The 64,716 visas are divided into the following allocations:

• For the first half of FY 2025: 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 2022, 2023, or 2024, regardless of country of nationality. These petitions must request employment start dates on or before March 31, 2025;

• For the early second half of FY 2025 (April 1 to May 14): 19,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024 regardless of country of nationality. These early second half of FY 2025 petitions must request employment start dates from April 1, 2025, to May 14, 2025. Furthermore, employers must file these petitions no earlier than 15 days after the second half statutory cap

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 2025 (May 15 to September 30): 5,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024 regardless of country of nationality. These late second half of FY 2025 petitions must request employment start dates from May 15, 2025, to September 30, 2025. Furthermore, employers must file these petitions no earlier than 45 days after the second half statutory cap is reached; and

• For the entirety of FY 2025: 20,000 visas reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) as attested by the petitioner (regardless of whether such nationals are returning workers). Employers requesting an employment start date in the first half of FY 2025 may file such petitions immediately after the publication of this TFR. Employers requesting an employment start date in the second half of FY 2025 must file such petitions no earlier than 15 days after the second half statutory cap is reached.

To qualify for the FY 2025 supplemental caps provided by this temporary final rule, eligible petitioners must:

• 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 the current filing location, on or before September 15, 2025;

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

• 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 who left employment with the employer on or after January, 1, 2023, including those the employer furloughed or laid off, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;

• 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 2025 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date DOL approved the TLC and must provide the documents and records upon the request of DHS or DOL, as well as fully cooperate with any compliance reviews such as audits.

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

Such non-compliance can harm U.S. workers by undermining wages and working conditions. It also directly harms H-2B workers. Further, H-2B workers depend on ongoing employment with the petitioning employer to maintain status in the United States. This dependence creates a power imbalance between the employer and H-2B worker, making the H-2B worker particularly vulnerable to exploitation and violations. An employer's failure to cooperate with or respond to an audit or investigation severely hinders the Departments' ability to assess whether it has complied with the H-2B program requirements and to determine if any temporary foreign or U.S. workers were affected by program violations. In recognition of the substantial impact that non-compliance can have on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a significant number of audits focusing on irreparable harm and other worker protection provisions. And as it

did as part of the supplemental cap TFRs in recent years, DHS will again subject employers that have committed labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process.

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);

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

88 FR 80394 (Nov. 17, 2023).

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

DHS will not approve H-2B petitions filed in connection with the FY 2025 supplemental cap authority on or after October 1, 2025.

H-2B Portability

In addition to exercising its time-limited authority to make additional FY 2025 H-2B visas available, DHS is again providing additional flexibilities to H-2B petitioners under its general programmatic authority by allowing nonimmigrant workers in the United States

in valid H-2B status and who are beneficiaries of non-frivolous H-2B petitions received on or after January 25, 2025, or who are the beneficiaries of non-frivolous H-2B petitions that are pending as of January 25, 2025, to begin work with a new employer after an H-2B petition (supported by a valid TLC) is filed and before the petition is approved, generally for a period of up to 60 days. However, such employment authorization would end 15 days after USCIS denies the H-2B petition or such petition is withdrawn. This H-2B portability ends one year after the provision's effective date of January 25, 2025, in other words, at the end of January 24, 2026.

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

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

Notice of Proposed Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to extend portability to H-2A and H-2B workers on a permanent basis. The Department's proposal does not interfere with the portability provision of this rule. However, should DHS publish a final rule making H-2 portability permanent, any such provision would not expire on a specific date, unlike the portability provision made effective by this temporary final rule.

II. Background

A. Legal Framework

The Immigration and Nationality Act (INA), as amended, establishes the H-2B nonimmigrant classification for a nonagricultural temporary worker “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform . . . temporary [non-agricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). Employers must petition DHS in such form and containing such information as the Secretary prescribes for classification of prospective temporary workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve this petition before the beneficiary can be considered eligible for an H-2B visa. In addition, the INA requires that “[t]he question of importing any alien as [an H-2B] nonimmigrant . . . in any specific case or specific cases shall be determined by [DHS],

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). INA section 291, 8 U.S.C. 1361, establishes that the petitioner or applicant for a visa or other immigration document bears the burden of proof with respect to eligibility and inadmissibility, including that the noncitizen is entitled to the immigration status being sought.

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 and FY 2024 H-2B supplemental cap TFRs both included a portability provision at 8 CFR 214.2(h)(29) and (31), respectively. Portability under 8 CFR 214.2(h)(31) remains in effect through January 24, 2025.

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

87 FR 76816 (Dec. 15, 2022);

88 FR 80394 (Nov. 17, 2023).

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 2025 is from October 1, 2024, through September 30, 2025.

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.

For FY 2025, USCIS received sufficient H-2B petitions to reach the first half of the fiscal year statutory cap on September 18, 2024.

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

See

DOL,

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

(July 10, 2023).

On September 19, 2024, USCIS announced that it had received sufficient petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2025, and that September 18, 2024, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2025.

See

USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024). While this date was slightly later than in fiscal year 2023, the Departments note that DOL received 2,158 applications for the first half of the FY 2025 statutory cap during the initial three-day filing window of July 3-5, 2024, covering 44,238 worker positions; a 59% increase in TLC workload and 48% increase in requested worker positions when compared to the same time period for fiscal year 2023.

See

DOL, OFLC Publishes List of Randomized H-2B Applications Submitted July 3-5, 2024, for Employers Seeking H-2B Workers Starting October 1, 2024,

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

(July 9, 2024).

In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 4, 2022, covering 136,555 worker positions; DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions; and DOL received 8,817 H-2B applications by January 8, 2024, covering 138,847 worker positions.

See

DOL,

Announcements, 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, Title I of the Continuing Appropriations and Extensions Act, 2025, Public Law 118-83 (Sept. 26, 2024) (FY 2025 authority), which extended the authorization previously provided in section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (“FY 2024 Omnibus”), as discussed below.

See

section 543 of Division F of the Consolidated Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of the Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus); section 105 of Division I of the Further Consolidated Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of Division A of Public Law 117-43, Continuing Appropriations Act, 2022, and section 101 of Division A of Public Law 117-70, Further Continuing Appropriations Act, 2022 through February 18, 2022 (together, FY 2022 authority); section 204 of Division O of the Consolidated Appropriations Act, 2022, Public Law 117-103 (FY 2022 Omnibus); section 303 of Division O of the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023 Omnibus); Division A of Public Law 118-15, Continuing Appropriations Act, 2024 and Other Extensions Act, through November 17, 2023, as well as section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024 Omnibus), signed into law on March 23, 2024, and the Continuing Appropriations and Extensions Act, 2025, sections 101(6) and 106 of Division A, Title I of Public Law 118-83 (Sept. 26, 2024).

C. FY 2025 Public Law 118-83

On March 23, 2024, President Joseph Biden signed the FY 2024 Omnibus, which contains a provision, section 105 of Division G, Title I, permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H-2B visas available to U.S. employers, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA.

Specifically, section 105 provides that “the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon determining that the needs of American businesses cannot be satisfied in [FY] 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of noncitizens who may receive an H-2B visa in FY 2024 by the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation.

Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024).

On September 25, 2024, Congress passed the FY 2025 authority, Public Law 118-83, which the President signed the next day. This law extends authorization under the same terms and conditions provided in section 105 of Division G, Title I of the FY 2024 Omnibus permitting the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2025, and expires on December 20, 2024.

In other words, Public Law 118-83 permits the Secretary of Homeland Security, after consultation with the Secretary of Labor, to provide up to 64,716 additional H-2B visas for FY 2025, notwithstanding the otherwise-established statutory numerical limitation set forth in the INA, for eligible employers whose employment needs for FY 2025 cannot be met.

Under the Public Law 118-83 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 2025 to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. The authority to approve H-2B petitions under this FY 2025 supplemental cap expires at the end of that fiscal year. Therefore, USCIS will not approve H-2B petitions filed in connection with this FY 2025 supplemental cap authority on or after October 1, 2025.

See

secs. 101(6) and 106, Div. A, Title I, Pub. L. 118-83 (Sept. 26, 2024), and section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (FY 2024 Omnibus).

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

See, e.g.,

Comments on Due Date and Amount of District of Columbia's Contributions to Special Employee Retirement Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that “a continuing resolution appropriates the full annual amount regardless of its period of duration. . . . Standard continuing resolution language makes it clear that the appropriations are available to the extent and in the manner which would be provided by the pertinent appropriations act that has yet to be enacted (unless otherwise provided in the continuing resolution).”). Consistent with this principle, DHS interprets the current continuing resolution to provide DHS with the ability to authorize additional H-2B visa numbers with respect to all of FY 2025 subject to the same terms and conditions as the FY 2024 authority at any time before the continuing resolution expires, notwithstanding the reference to FY 2024 in the FY 2024 Omnibus.

As noted above, since FY 2017, Congress has enacted a series of public laws providing the Secretary of Homeland Security with the discretionary authority to increase the H-2B cap beyond the annual numerical limitation set forth in section 214 of the INA. The previous statutory provisions were materially identical to section 105 of the FY 2024 Omnibus, which is the same authority provided for FY 2025 by the recent continuing resolution. During each fiscal year from FY 2017 through FY 2019, and FY 2021 through FY 2024, the Secretary of Homeland Security, after consulting with the Secretary of Labor, determined that some American businesses could not satisfy their needs in such year with U.S. workers who were willing, qualified, and able to perform temporary nonagricultural labor. On the basis of these determinations, on July 19, 2017, and May 31, 2018, DHS and DOL jointly published temporary final rules for FY 2017 and FY 2018, respectively, each of which allowed an increase of up to 15,000 additional H-2B visas for those businesses that attested that if they did not receive all of the workers requested on the Petition for a Nonimmigrant Worker (Form I-129), they were likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss.

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.

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) (correction).

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.

On November 17, 2023, DHS and DOL jointly published a temporary final rule authorizing an increase of up to 64,716 additional H-2B visas for the entirety of

FY 2024.

As in the FY 2023 TFR, the additional visas were available only to employers that attested they were suffering or would suffer impending irreparable harm without the additional workers. The 64,716 additional visas included 44,716 reserved for returning workers from one of the last three fiscal years (FY 2021, 2022, or 2023), which were distributed in several allocations based on date of employer need: 20,716 for employers with requested employment start dates on or before March 31, 2024; 19,000 for employers with requested employment start dates from April 1, 2024, to May 14, 2024 (early second half allocation); and 5,000 for employers with requested employment start dates from May 15, 2024, to September 30, 2024 (late second half allocation). The remaining 20,000 visas were available for the entirety of FY 2024, and were set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt from the returning worker requirement. By January 9, 2024, USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year, and by April 17, 2024, USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year.

USCIS data show that the total number of H-2B workers approved towards the FY 2024 supplemental cap increase was 85,577, including 61,102 workers under the returning worker allocation, as well as 24,475 workers approved towards the country-specific allocation.

88 FR 80394 (Nov. 17, 2023).

See

USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024

(Jan. 12, 2024); USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for the Early Second Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024

(Apr. 18, 2024).

The number of approved workers exceeded the number of additional visas authorized for FY 2024 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

See

DHS, USCIS, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.

Once again, DHS, in consultation with DOL, believes that it is appropriate to increase the H-2B cap for FY 2025 based on the demand for H-2B workers in the first half of FY 2025, anticipated demand for the second half of FY 2025, recent economic growth, and strong labor demand.

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 prior years, 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);

88 FR 80394 (Nov. 17, 2023).

See Outdoor Amusement Bus. Ass'n

Dep't of Homeland Sec.,

983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021);

see also Temporary Non-Agricultural Employment of H-2B Aliens in the United States,

80 FR 24041, 24045 (Apr. 29, 2015).

See Outdoor Amusement Bus. Ass'n,

983 F.3d at 684-89.

See

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

III. Discussion

A. Statutory Determination

Following consultation with the Secretary of Labor, the Secretary of Homeland Security has determined that some U.S. employers cannot satisfy their needs in FY 2025 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. In accordance with the FY 2025 continuing resolution extending the authority provided in section 105 of the FY 2024 Omnibus, the Secretary of Homeland Security has determined that it is appropriate, for the reasons stated below, to raise the numerical limitation on H-2B nonimmigrant visas through the end of FY 2025 by up to 64,716 additional visas for those American businesses that attest that they are suffering irreparable harm or will suffer impending irreparable harm, in other words, a permanent and severe financial loss, without the ability to employ all of the H-2B workers requested on their petition. These businesses must retain documentation, as described below, supporting this attestation.

As in connection with H-2B supplemental visa temporary final rules in recent years, and consistent with existing authority, DHS and DOL intend to conduct a significant number of audits with respect to petitions filed under this TFR requesting supplemental H-2B visas during the period of temporary need. The Departments will use their discretion to select which petitions to audit, and the Departments will use the audits to verify compliance with H-2B program requirements, including the irreparable harm standard as well as other key worker protection provisions implemented through this rule. If the Departments find that an employer's documentation does not meet the irreparable harm standard, or that the employer fails to provide

evidence demonstrating irreparable harm or comply with the audit process, the Departments may consider it to be a willful violation resulting in an adverse agency action against the employer, including revocation of the TLC or program debarment. Of the audits completed so far, some audits conducted of employers that received visas under past supplemental caps revealed concerns surrounding payment of the promised wage, employment of returning workers, documentation of irreparable harm, need for all requested workers, employment for the reported number of hours and employment at the listed location, recruitment of U.S. workers, and cooperation with the audit process, which may warrant further review and action.

Based on the insufficient responses and evidence generally provided in response to these audits, which indicate a lack of compliance with the audit process and program requirements, DOL has added clarifying language to the regulatory text at 20 CFR 655.64(a)(1) and (a)(5) to provide more information on how employers can provide sufficient evidence to establish irreparable harm in response to an audit or investigation and further explain how failing to respond to audits or failing to establish compliance with H-2B program requirements can result in debarment from the program and all programs administered by OFLC, consistent with the Department's regulations at 20 CFR 655.70 and 20 CFR 655.73. While the requirements remain the same, DOL believes adding these clarifications would benefit the public and regulated community at large.

As he did in recent years, the Secretary of Homeland Security has also again determined, following consultation with the Secretary of Labor, that for certain employers, additional recruitment steps are necessary to confirm that there are no qualified U.S. workers available for the positions. In addition, the Secretary of Homeland Security has determined, following consultation with the Secretary of Labor, that the supplemental visas will be limited to returning workers, with the exception that up to 20,000 of the 64,716 visas will be exempt from the returning worker requirement and, similar to FY 2024, will be reserved for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

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 (SMOs) 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 105 of the FY 2024 Omnibus are not “subject to the numerical limitations of [section 214(g)(1)].”

See, e.g.,

INA section 214(g)(3); INA section 214(g)(10); Continuing Appropriations Act, 2025, div. A, sec. 101(6) (extending the authority provided in FY 2024 Omnibus div. G, sec. 3105 (“Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the [INA] . . . .”)).

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/.

On May 7, 2024, Guatemala hosted the third Los Angeles Declaration Ministerial with foreign ministers and senior representatives from 21 endorsing countries, including U.S. Secretary of State Antony Blinken. The White House,

Fact Sheet: Third Ministerial Meeting on the Los Angeles Declaration Migration and Protection in Guatemala

(May 7, 2024), available at

https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/.

On September 25, the United States hosted the fourth Los Angeles Declaration Ministerial with foreign ministers and senior representatives from the other 21 endorsing countries. The White House,

Fact Sheet: Fourth Ministerial Meeting on the Los Angeles Declaration Migration and Protection

(September 26, 2024), available at

https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/26/fact-sheet-fourth-ministerial-meeting-on-the-los-angeles-declaration-on-migration-and-protection/.

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' 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 105 of the FY 2024 Omnibus, as extended by Public Law 118-83, sets the highest number of H-2B returning workers who were exempt from the cap in certain previous years as the maximum limit for any increase in the H-2B numerical limitation for FY 2025.

Consistent with the statute's reference to H-2B returning workers, in determining the appropriate number by which to increase the H-2B numerical limitation, the Secretary of Homeland Security focused on the number of visas allocated to such workers in years in which Congress enacted returning worker exemptions from the H-2B numerical limitation. During each of the years the returning worker provision was in force, U.S. employers' standard business needs for H-2B workers exceeded the statutory 66,000 cap. The highest number of H-2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H-2B visas to be made available for FY 2025, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it is appropriate to make available up to 64,716 additional visas, which is the maximum allowed, under the FY 2025 supplemental cap authority. The Secretary further considered the objectives the Biden-Harris Administration to address the root causes of irregular migration consistent with the E.O. 14010 and the L.A. Declaration, and managing migration through expansion of lawful pathways while increasing the consequences for those who do not use these pathways and unlawfully enter the United States.

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).

See Circumvention of Lawful Pathways,

88 FR 31314 (May 16, 2023);

Securing the Border,

89 FR 81156, (Oct. 7, 2025).

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.

Of the

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

See

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

See

USCIS,

Cap Reached for Additional Returning Worker H-2B Visas for Second Half of FY

2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022

(May 31, 2022).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, C3 Consolidated, queried 10/2023, TRK 13122, FY 2023 H-2B Northern Central American Cap Approvals by Validity Start Date Month. The number of approved workers exceeded the number of additional visas authorized for the second half of FY 2022 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

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.

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.

See

USCIS,

(Jan. 31, 2023); USCIS,

(Mar. 31, 2023).

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.

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

USCIS received enough petitions to reach the cap for the additional 20,716 H-2B visas made available for returning workers for the first half of fiscal year by January 9, 2024, and USCIS received enough petitions to reach the cap for the additional 19,000 H-2B visas made available for returning workers for the early second half of fiscal year by April 17, 2024.

Of the petitions for supplemental H-2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries, including 6,314 beneficiaries under the allocation of 5,000 visas made available for returning workers for the late second half of the fiscal year and 24,475 beneficiaries under the allocation of 20,000 visas reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.

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).

See

USCIS,

(Jan. 12, 2024); USCIS,

(Apr. 18, 2023).

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. The number of approved workers exceeded the number of additional visas authorized for FY 2024 to allow for the possibility that some approved workers would either not seek a visa or admission, would not be issued a visa, or would not be admitted to the United States.

Data for the first half of FY 2025 clearly indicate an immediate need for additional supplemental H-2B visas for employers with start dates on or before March 31, 2025. USCIS received a sufficient number of H-2B petitions to reach the first half of the FY 2025 fiscal year statutory cap on September 18, 2024.

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory cap has generally trended earlier in recent years. In fiscal years 2017 through 2025, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, September 12, 2022, October 11, 2023, and September 18, 2024, respectively.

See

USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

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;

USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

Through the third quarter of FY 2024, approximately 90 percent of H-2B filings were for positions within just six sectors.

NAICS 56 (Administrative and Support and Waste Management and Remediation Services) accounted for 38.57% of filings, NAICS 71 (Arts, Entertainment, and Recreation) accounted for 11.73%, NAICS 72 (Accommodation and Food Services) accounted for 23.14%, NAICS 23, (Construction) accounted for 11.91%, NAICS 31 (Animal Food Manufacturing) accounted for 2.01% of filings, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) accounted for 2.39% of filings.

USCIS analysis of DOL OLFC Performance data.

Relevant unemployment data also supports the need for additional supplemental H-2B visas. Within these industries, DOL data show higher labor demand relative to recent history. More specifically, industry unemployment data from the Bureau of Labor Statistics (BLS) show that the industry unemployment rate for most of these industries (except for NAICS 11, which accounts for the lowest percentage of filings among these industries) is lower than the long term (10-year) average.

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, https://www.bls.gov/iag/tgs/iag311.htm.

All data accessed September 23, 2024.

10-Year Average of Industry Unemployment Rate

NAICS 11

NAICS 23

NAICS 56 *

NAICS 71

NAICS 72

NAICS 31

7.61

6.13

4.82

7.96

7.90

5.22

* Supersector is used as a proxy, see footnote 94.

August 2024 Industry Unemployment Rate

NAICS 11

NAICS 23

NAICS 56 *

NAICS 71

NAICS 72

NAICS 31

11.3

3.2

4.2

4.1

5.9

3.7

* Supersector is used as a proxy, see footnote 94.

In August 2024, the industry unemployment for NAICS 56

was 4.2 percent, which is 0.62 points lower than its 10-year average of 4.82 percent, while the industry unemployment rate for NAICS 71 was 4.1 percent which is 3.86 points lower than its 10-year average of 7.96 percent. The August 2024 industry unemployment rate for NAICS 72 (5.9 percent) was 2 points lower than its 10-year average of 7.9 percent while the rate for NAICS 23 (3.2 percent) was 2.93 points lower than its 10-year average of 6.13 percent. The industry unemployment rate for NAICS 11 (11.3 percent) was 3.69 points higher than its 10-year average of 7.61 percent, making it the only industry among the top 5 H-2B industries that has a higher industry unemployment rate relative to its historical average. The relatively low unemployment rate across most of these industries is a clear indication of a strong labor demand within these industries. The Departments believe that the supplemental allocation of H-2B visas described in this temporary final rule will help to meet demand in these industries.

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 23, 2024.

Economy-wide data also indicate that labor-market tightness continues to exist. The most recent Employment Situation released by the Bureau of Labor Statistics (BLS) stated that the unemployment rate was 4.2 percent in August 2024.

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

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

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.

See

DOL, BLS,

The Employment Situation—August 2024, https://www.bls.gov/news.release/archives/empsit_10042024.pdf

(Sept. 6, 2024).

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

See https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20240918.pdf

(accessed September 23, 2024).

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.

ER02DE24.003

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

Making allocations for all of FY 2025 in a single rule

As in FY 2023 and FY 2024, DHS believes that it is appropriate to issue a single rule for the entire fiscal year for multiple reasons.

First, DHS expects that there is demand for supplemental visas in the first half of FY 2025. As previously discussed, USCIS already received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of FY 2025.

Further, the date on which USCIS received sufficient H-2B petitions to reach the first half semiannual statutory caps has generally trended earlier in recent years. In fiscal years 2017 through 2025, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant first half statutory cap on January 10, 2017, December 15, 2017, December 6, 2018, November 15, 2019, November 16, 2020, September 30, 2021, September 12, 2022, October 11, 2023, and September 18, 2024, respectively.

Further, DHS believes that 64,716 is an appropriate number of supplemental visas to make available, as this rule will cover both the first and second half of FY 2025.

USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

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); USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

Second, based on relevant data, DHS expects that USCIS will reach the statutory cap for the second half of FY 2025 and that there will accordingly be demand for supplemental visas in the second half of FY 2025. For example, in fiscal years 2017 through 2023, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, February 25, 2022, February 27, 2023, and March 7, 2024.

100

In addition, DOL data shows consistently high demand in recent years, particularly during the second half of the fiscal year. In recent years, DOL has received an increasing number of TLC applications for an increasing number of H-2B workers with April 1 start dates: DOL received 4,500 applications on January 1, 2018, covering more than 81,600 worker positions; DOL received 5,276 applications by January 8, 2019, covering more than 96,400 worker positions; DOL received 5,677 applications during the initial three-day filing window in 2020 covering 99,362 worker positions; DOL received 5,377 applications during the initial three-day filing window in 2021 covering 96,641 worker positions; DOL received 7,875 applications by January 4, 2022, covering 136,555 worker positions; DOL received 8,693 applications during the initial three-day filing window in 2023, covering 142,796 worker positions; and DOL received 8,817 H-2B applications by January 8, 2024, covering 138,847 worker positions.

101

100

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); USCIS,

USCIS Reaches H-2B Cap for Second Half of FY 2024 and Announces Filing Dates for the Second Half of FY 2024 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of

(Mar. 8, 2024).

101

See

DOL,

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

Finally, publishing one rule that addresses all the visas available for FY 2025 benefits the regulated public by giving more notice and certainty of what will become available for the second half. As noted in comments received in response to the FY 2023 TFR, this approach allows businesses to better plan ahead for their seasonal workforce needs.

102

See the docket for

87 FR 76816 (Dec. 15, 2022) for access to these comments.

Filing Deadline of September 15, 2025 for All Petitions

The authority to approve H-2B petitions under this FY 2025 supplemental cap expires at the end of the fiscal year,

i.e.,

the end of September 30, 2025. Therefore, DHS is requiring employers requesting any supplemental visas under this TFR, regardless of the employment start date(s), to properly file their H-2B petition with USCIS no later than September 15, 2025. USCIS will reject any cases that are received after September 15, 2025.

See

new 8 CFR 214.2(h)(6)(xv)(C). Because DHS believes that 15 days from the end of the fiscal year is generally the minimum time needed for petitions to be adjudicated, DHS has set September 15, 2025 as the last day to file in order to provide USCIS with adequate time for petition processing before the expiration of the authority at the end of the fiscal year, although USCIS cannot guarantee the time period will be sufficient for adjudication of petitions in all cases.

In addition, the filing deadline will be earlier than September 15, 2025 if the applicable numerical limit for the relevant supplemental visa allocation is reached before that date.

See

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

Returning Worker Allocation for the First Half of FY 2025 (October 1, 2024 Through March 31, 2025)

For the first half of FY 2025, DHS will make 20,716 visas immediately available upon publication of this TFR that are limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These petitions must request a date of need starting on or before March 31, 2025.

See

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

DHS anticipates that employers will use all of the first half allocation for returning workers, given how quickly USCIS reached the FY 2025 first half statutory cap and the first half supplemental allocation for FY 2024. As noted previously, USCIS received enough H-2B petitions to reach the FY 2025 first half statutory cap on

September 18, 2024.

103

Under the FY 2024 TFR, which published on November 17, 2023, USCIS received enough petitions to reach the 20,716 first half allocation by January 9, 2024.

104

Similarly, as with the FY 2024 TFR, the relatively early publication of this rule will provide interested employers more time to prepare their petitions, increasing the likelihood that the first half allocation for returning workers will be used.

105

To the extent that the first half allocation for returning workers is used, this TFR may provide affected employers with some relief by making available a separate allocation of visas for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, which will be available for the entirety of FY 2025.

103

See

USCIS,

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025

(Sept. 19, 2024).

104

USCIS,

(Jan. 12, 2023).

105

Compare the publication dates of the FY 2024 TFR and this rule with December 15, 2022, the date the FY 2023 TFR was first published, and January 28, 2022, the date the temporary final rule making available additional H-2B visas for the first half of FY 2022 was first published.

As in previous years, in the event that USCIS approves insufficient petitions to use all 20,716 visas, the unused numbers will not carry over for the second half allocation because DHS believes that the operational burdens of calculating and administering a process to carry over unused visas, combined with the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations, would outweigh the benefits. As explained in the FY 2024 TFR, in order to make any unused first half visas available for employers with second half start dates, DHS would need to set a filing cutoff date prior to September 15, 2025 for the first half allocation, upon which it would stop accepting such petitions and make a calculation of how many visas should be re-released for second half employers. Calculating visas to be re-released could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which would significantly increase operational burdens. In addition to increasing operational burdens, DHS believes that the opening, closing, and potential re-opening of this allocation (and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 15, 2025 will maximize employers' opportunity to avail themselves of the first half allocation. While DHS acknowledges that this approach could potentially result in some employers with a demonstrated business need in the second half of the fiscal year losing the opportunity to receive a supplemental visa, it is DHS's expectation that, as occurred in FY 2024, there will be sufficient demand from employers with first half start dates to use the entire allocation.

Initial Returning Worker Allocation for the Early Second Half (April 1, 2025, Through May 14, 2025)

For the second half of FY 2025, DHS will initially make available 19,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These petitions must request a date of need starting on or after April 1, 2025, through and including May 14, 2025. Limiting this allocation to employers with employment start dates on or before May 14, 2025 reflects DHS's intentions to give employers with needs later in the season a better opportunity to access the H-2B program, and to prevent employers from petitioning under both of the second-half allocations to fill the same need.

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

106

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

after

the second half statutory cap has been reached builds in flexibility to account for variations in the timing of that cap being reached. DHS cannot predict with certainty when the FY 2025 second half statutory cap will be reached (or if it will be reached), and therefore, did not specify a date for when to first allow petitioners to file for FY 2025 second half supplemental visas. In the event that the statutory second half FY 2025 cap is not reached, the supplemental allocation for returning workers for the second half of FY 2025 will not become available.

106

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

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

)(

) of this section requesting employment start dates from April 1, 2025 to May 14, 2025 that are received earlier than 15 days after the INA section 214(g) cap for the second half FY 2025 has been met.

Based on historical data showing increasingly high demand for H-2B workers with April 1 start dates, DHS expects all 19,000 visas to be used quickly once the supplemental allocation becomes available as occurred in FY 2024 on April 17, 2024. However, in the event that USCIS approves insufficient petitions to use all 19,000 visas, the unused numbers will not carry over for petition approvals for employment start dates beginning on or after May 15, 2025. DHS chose to limit these 19,000 visas to start dates on or before May 14, 2025, without the ability for these visas to be carried over into the next allocation. As previously stated, DHS believes that the operational burdens of calculating and administering a process to carry over unused visas, combined with the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations, would outweigh the benefits. In order to make any unused visas from this allocation available for late second half of FY 2025 petitions, DHS would need to set a filing cutoff date that would be after the cutoff for the first half allocation but prior to any cutoff for late second half of FY 2025 petitions and prior to September 15, 2025, upon which it would stop accepting petitions and make a calculation of how many visas should be re-released for late second half employers. Calculating visas to be re-released could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which would significantly increase operational burdens. In addition to increasing operational burdens, DHS believes that the opening, closing, and potential re-opening of this allocation

(and/or other cap allocations) could cause confusion for the public and adjudicators. Furthermore, not setting a filing cutoff date prior to September 15, 2025, will maximize employers' opportunity to avail themselves of the early second half allocation. While DHS acknowledges that this approach could result in employers in the late second half losing the opportunity to receive a supplemental visa, it is DHS's expectation that there will be sufficient demand from employers to use this entire allocation. As anticipated in the FY 2024 TFR, employers did, in fact, use the entire early second half of FY 2024 allocation.

107

USCIS,

Temporary Increase in H-2B Nonimmigrant Visas for FY 2024, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2024

(last visited Aug. 20, 2024).

Additional Returning Worker Allocation for the Late Second Half (on or After May 15, 2025, Through September 30, 2025)

For the late second half of FY 2025, DHS will make available an additional allocation of 5,000 visas limited to returning workers, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. To assist employers needing workers to begin work during the late spring and summer seasons in the fiscal year (also referred to as “late season employers”), these petitions must request a date of need starting on or after May 15, 2025. These petitions must be filed no sooner than 45 days after the second half statutory cap is reached, a date that USCIS will identify in a public announcement.

108

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

109

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

108

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

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

)(

iii

) of this section requesting employment start dates from May 15, 2025 to September 30, 2025, that are received earlier than 45 days after the INA section 214(g) cap for the second half FY 2025 has been met.

109

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

This is the third supplemental cap reserved for late season employers that need workers to begin work during the late spring and summer seasons in the fiscal year.

110

By regulation, employers may only apply for a TLC 75 to 90 days before the start date of need,

111

and, as such, employers needing workers to begin work on or after May 15 are not eligible to file TLC applications until on or after February 15. As noted in the FY 2023 and FY 2024 TFRs, in past years, because of this requirement and the strong demand for H-2B workers in recent years to begin work on the earliest employment start date (

i.e.,

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

112

USCIS has typically received sufficient H-2B petitions to meet the statutory cap for the second half of the fiscal year around mid-February to early March, many of these late season employers may have decided to not file a TLC application.

110

87 FR 76816 (Dec. 15, 2022);

88 FR 2023 (Nov. 17, 2023).

111

See

20 CFR 655.15(b).

112

As noted above, in fiscal years 2017 through 2024, USCIS received a sufficient number of H-2B petitions to reach or exceed the relevant second half statutory cap on March 13, 2017, February 27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, February 25, 2022, February 27, 2023, and March 7, 2024, respectively.

DHS, in consultation with DOL, has again determined that it is appropriate to make a separate allocation available for late season employers whose late season labor needs may have put them at a disadvantage in accessing H-2B workers in recent years. While there was significant demand for the late second half allocation in FY 2024, the full allocation of 5,000 visas was not reached. As of September 30, 2024, DOS has issued 3,906 towards the late second half allocation, while USCIS approved 6,314 beneficiaries towards the late second half allocation.

113

Therefore, in order to meet the employer demand in the late second half of FY 2025, while still maximizing the overall usage of supplemental visas, DHS has determined it is appropriate to again limit the late second half allocation for FY 2025 to up to 5,000 visas. DHS, in consultation with DOL, has determined that authorizing two allocations for the second half of FY 2025 based on an employer's start date of need, in addition to requiring that the employer's start date of need on the Form I-129 match the start date of need on the approved TLC,

114

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

113

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.

114

See

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

To mitigate complications from concurrent administration of the additional returning worker allocation for the second half of the fiscal year for late season employers and either the statutory second half cap or the initial supplemental allocation for returning workers for the second half of the fiscal year (or both), these petitions must be filed no earlier than 45 days after the second half statutory cap is reached. When USCIS announces that it has received a sufficient number of petitions to reach the second half statutory cap, it will also announce the earliest possible filing date (45 days after the second half statutory cap is reached) for this allocation. In the event that the statutory second half FY 2025 cap is not reached, this supplemental allocation for late season filers workers will not become available. Furthermore, in the event that USCIS does not approve sufficient petitions to use all 5,000 visas for late season employers, DHS will not carry over the unused numbers for petition approvals for any other allocation. For example, any unused

numbers would not carry over to petitions under the country-specific allocation. As noted above, DHS believes the operational burdens of calculating and administering a process to carry over unused visas would outweigh the benefits because of the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations. A process to carry over unused visas could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which significantly increase operational burdens and may add further confusion to the public and adjudicators.

Allocation for Nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica

As in FY 2024, DHS will make available 20,000 additional visas that are reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, as attested by the petitioner (regardless of whether such nationals are returning workers). These 20,000 visas will be available for petitioners requesting an employment start date before the end of FY 2025, up to and including September 30, 2025. As discussed in the Legal Framework section as well as in the section addressing the irreparable harm standard, DHS has a broad delegation from Congress to administer and enforce U.S. immigration laws and issue regulations regarding the same, as well as broad discretion over the admission of nonimmigrants, and the adjudication of nonimmigrant petitions, after consultation with other agencies, including DOL.

See

INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary enactment authorizing the Secretary of DHS to increase the number of H-2B visas,

115

Congress delegated to the Secretary of DHS, after consultation with the Secretary of Labor, the discretion to establish a framework for determining that the needs of American businesses cannot be satisfied with the existing workforce and the conditions under which to authorize additional visas to further the purpose of the enactment. In the most recent, as well as each prior annual enactment, Congress consistently used the word “may” when describing the Secretary's authority, and the use of the word “may” indicates a grant of discretion, absent contrary legislative intent, structure and purpose of the statute.

116

As in prior years, the Departments have determined that the temporary enactment together with DHS's broad authority over immigration provide the Secretary of DHS with discretion to implement the temporary enactment in a manner that addresses two complimentary policy objectives: the need to provide access to H-2B workers to American businesses, and the objective to provide lawful pathways for able, willing, and qualified workers from designated countries to come temporarily to the United States and perform nonagricultural labor. In issuing this TFR, and as in prior years, the Departments are implementing appropriate policy choices in exercising the discretionary authority provided by Congress.

117

This policy choice was previously ratified by Congress

118

—legislative history of the FY2023 Omnibus indicates that Congress was aware of and approved of the country-specific allocations.

119

While prior fiscal years' country-specific allocations have not been reached, the number has been trending upwards, and DHS anticipates a higher likelihood that the 20,000 visas allocated for certain nationals by this rule will be reached by the end of this fiscal year. As discussed above, DHS observed robust employer interest in response to the FY 2021 H-2B supplemental visa allocation for Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 and FY 2023 supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and Haitian nationals, and the data show a trend of increased participation by Haitian, Salvadoran, Guatemalan, and Honduran workers in the H-2B program

120

In FY 2024, the inclusion of nationals from the additional countries of Colombia, Ecuador, and Costa Rica increased the likelihood that the 20,000 visas would be used and the data show a continued trend of increased usage of the country-specific allocation.

121

115

Public Law 118-47, Division G, Title I, sec. 105 states: “Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of United States businesses cannot be satisfied during fiscal year 2024 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year by not more than the highest number of H-2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from such numerical limitation.”

116

See generally U.S.

Rodgers,

461 U.S. 677, 706 (1983) (The word “may,” when used in a statute, usually implies some degree of discretion unless there is indication of contrary legislative intent, or an obvious contrary inference from the structure and purpose of the statute.).

117

See Loper Bright Enterprises,

144 S. Ct. at 2263 (2024).

118

Lorillard

Pons,

434 U.S. 575, 581 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.”).

119

See

S. Rep. No. 118-85, at p. 104 (Jul. 27, 2023) (“Further, the Committee supports the Departments efforts to set aside visas for certain nationalities, including nationals from El Salvador, Guatemala, Honduras, and Haiti, regardless of whether they are returning workers.”).

120

As previously noted, USCIS approved petitions on behalf of 6,805 beneficiaries under the FY 2021 country-specific allocation, 3,231 beneficiaries under the FY 2022 first half country-specific supplemental allocation, 12,318 beneficiaries for the second half country-specific allocation of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023 country-specific allocation.

See

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

121

As of October 28, 2024, USCIS approved petitions on behalf of 24,475 beneficiaries under the FY 2024 country-specific allocation.

See

Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.

Employers requesting workers under the country-specific allocation with an employment start date in the first half of FY 2025 may file their petitions immediately after the publication of this TFR. Employers requesting workers under the country-specific allocation with an employment start date in the second half of FY 2025 must file their petitions no earlier than 15 days after the second half statutory cap is reached. The requirement to file the petition no earlier than 15 days after the second half statutory cap is reached is consistent with the approach taken for the initial returning worker allocation for the early second half of the fiscal year, and is in line with the Departments' longstanding interpretation of their authority to make available supplemental (or in other words, additional) visas contingent upon the exhaustion of visas under the statutory cap.

122

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

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

) of this section that have a date of need on or after April 1, 2025 and are received earlier than 15 days after the INA section 214(g) cap for the second half of FY 2025 is met.

As in FY 2023 and FY 2024, the Departments have decided not to further divide the 20,000 visas for workers from specific countries into separate allocations for the first and second half of the fiscal year. The Departments intend for this additional flexibility of allowing any employment start date within FY 2025 to encourage U.S. employers that are suffering irreparable harm or will suffer impending

irreparable harm to seek out workers from such countries, and, at the same time, increase interest among nationals of the Northern Central American countries, Haiti, Colombia, Ecuador, and Costa Rica seeking a legal pathway for temporary employment in the United States. While this approach could potentially result in employers with start dates in the first half of FY 2025 using all 20,000 visas for nationals of the specified countries, and consequently, employers with start dates in the second half of FY 2025 losing the opportunity to utilize this particular allocation, DHS believes that the benefits of increasing the flexibility of this allocation outweighs the potential risk. Moreover, employers with start dates in the second half of FY 2025 seeking to employ nationals under the country-specific allocation may request a visa under one of the two second half supplemental allocations which are available for returning workers regardless of country of nationality.

In the event that USCIS does not approve sufficient petitions to use all 20,000 visas under the country-specific allocation by the end of FY 2025, DHS will not carry over the unused numbers for petition approvals for any other allocation. For example, any unused numbers would not carry over to petitions for returning workers with employment start dates in the second half of FY 2025. As noted above, DHS believes the operational burdens of calculating and administering a process to carry over unused visas would outweigh the benefits because of the potential confusion for the public and adjudicators that could result from having different filing cutoff dates for the different allocations. A process to carry over unused visas could also entail an additional cap allocation, additional announcements to the public, and potentially an additional lottery, all of which significantly increase operational burdens and may add further confusion to the public and adjudicators. Further, this single filing cutoff approach provides employers with incentive and more time to petition for, and bring in, workers from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica to meet employer needs, consistent with the administration's efforts and outreach to promote and improve safety, security, and economic stability in these countries.

Process if Cap Allocations Are Reached

Finally, recognizing the high demand for H-2B visas, it is plausible that the additional H-2B supplemental allocations provided in this rule will be reached prior to September 15, 2025. Specifically, the following scenarios may still occur:

• The 20,716 supplemental cap visas limited to returning workers that will be immediately available for employers with dates of need on or after October 1, 2024, through March 31, 2025, will be reached before September 15, 2025;

• The 19,000 supplemental cap visas limited to returning workers that will be available for employers with dates of need starting on or after April 1, 2025, through May 14, 2025, will be reached before September 15, 2025;

• The 5,000 supplemental cap visas limited to returning workers that will be available for late season employers with dates of need on or after May 15, 2025, through September 30, 2025, will be reached before September 15, 2025; or

• The 20,000 supplemental cap visas limited to nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica will be reached before September 15, 2025.

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

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as applicable to each of the scenarios described above that involve numerical limitations of the supplemental cap. Specifically, for each of the scenarios mentioned above, DHS will monitor petitions received, and make projections of the number of petitions necessary to achieve the projected numerical limit of approvals. USCIS will also notify the public of the dates that USCIS has received the necessary number of petitions (the “final receipt dates”) for each of these scenarios. The day the public is notified will not control the final receipt dates. Moreover, USCIS may randomly select, via computer-generated selection, from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals for each of the scenarios involving numerical limitations to the supplemental cap. USCIS may, but will not necessarily, conduct a lottery if: the 20,716 supplemental cap visas limited to returning workers that will be immediately available for employers with dates of need on or after October 1, 2024, through March 31, 2025, is reached before September 15, 2025; the 19,000 supplemental cap visas limited to returning workers that will be available for employers with dates of need on or after April 1, 2025, through May 14, 2025, is reached before September 15, 2025; the 5,000 supplemental cap visas limited to returning workers that will be available for late season employers with dates of need on or after May 15, 2025, through September 30, 2025, is reached before September 15, 2025; or the 20,000 visas limited to certain nationals is reached before September 15, 2025. Similar to the processes applicable to the H-2B semiannual statutory cap, if the final receipt date is any of the first 5 business days on which petitions subject to the applicable numerical limit may be received (in other words, if the numerical limit is reached on any one of the first 5 business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those 5 business days.

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See

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

C. Returning Workers

As noted above, to address the increased and, in some cases, impending need for H-2B workers in this fiscal year, the Secretary of Homeland Security, in consultation with the Secretary of Labor, has determined that employers may petition for supplemental visas on behalf of up to 44,716 workers who were issued an H-2B visa or were otherwise granted H-2B status in FY 2022, 2023, or 2024. This temporal limitation mirrors prior fiscal years' temporal limitation in the returning worker definition

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

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

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DOS

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

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

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

88 FR 80394 (Nov. 17, 2023) (defining “returning workers” as those who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023).

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See

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

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