80394 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

[CIS No. 2764–24] 

RIN 1615–AC89 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

[DOL Docket No. ETA–2023–0005] 

RIN 1205–AC18 

Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for 

FY 2024 for the H–2B Temporary 

Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers 

Seeking To Change Employers 

AGENCY: U.S. Citizenship and 

Immigration Services (USCIS), 

Department of Homeland Security 

(DHS), and Employment and Training 

Administration and Wage and Hour 

Division, U.S. Department of Labor 

(DOL). 

ACTION: Temporary rule. 

SUMMARY: DHS, in consultation with 

DOL, is exercising time-limited Fiscal 

Year (FY) 2024 authority and increasing 

the total number of noncitizens who 

may receive an H–2B nonimmigrant visa 

by up to 64,716 for the entirety of FY 

2024. These supplemental visas will be 

distributed in several allocations. 20,000 

visas made available in this rule will be 

reserved for nationals of Guatemala, El 

Salvador, Honduras, Haiti, Colombia, 

Ecuador, or Costa Rica. All visas will be 

available only to businesses that are 

suffering or will suffer impending 

irreparable harm, as attested by the 

employer. In addition, DHS is again 

providing temporary portability 

flexibility. 

DATES: Effective dates: The amendments 

at instructions 1, 3, and 5 are effective 

November 17, 2023; at instructions 2 

and 4 amending 8 CFR 214.2 and 

274a.12, respectively, are effective from 

November 17, 2023, through November 

17, 2026; at instruction 6, adding 20 

CFR 655.64, is effective from November 

17, 2023, through September 30, 2024; 

and at instruction 7, adding 20 CFR 

655.65, is effective from November 17, 

2023, through September 30, 2027. 

Petition dates: DHS will not accept 

any H–2B petitions under provisions 

related to the FY 2024 supplemental 

numerical allocations after September 

16, 2024, and will not approve any such 

H–2B petitions after September 30, 

2024. The provisions related to 

portability are only available to 

petitioners and H–2B nonimmigrant 

workers initiating employment through 

the end of January 24, 2025. 

Comments on the Information 

Collection: The Office of Foreign Labor 

Certification within the U.S. Department 

of Labor will accept comments in 

connection with the new information 

collection Form ETA–9142B–CAA–8 

associated with this rule until January 

16, 2024. The electronic Federal Docket 

Management System will accept 

comments prior to midnight eastern 

time at the end of that day. 

ADDRESSES: You may submit written 

comments on the new information 

collection Form ETA–9142B–CAA–8, 

identified by Regulatory Information 

Number (RIN) 1205–AC18, 

electronically by the following method: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions on the website for 

submitting comments. 

Instructions: Include the agency’s 

name and the RIN 1205–AC18 in your 

submission. All comments received will 

become a matter of public record and 

will be posted without change to 

https://www.regulations.gov. Please do 

not include any personally identifiable 

information or confidential business 

information you do not want publicly 

disclosed. 

FOR FURTHER INFORMATION CONTACT: 

Regarding 8 CFR parts 214 and 274a: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, Camp Springs, MD 

20746; telephone 240–721–3000 (this is 

not a toll-free number). 

Regarding 20 CFR part 655 and Form 

ETA–9142B–CAA–8: Brian D. 

Pasternak, Administrator, Office of 

Foreign Labor Certification, 

Employment and Training 

Administration, Department of Labor, 

200 Constitution Ave NW, Room N– 

5311, Washington, DC 20210, telephone 

(202) 693–8200 (this is not a toll-free 

number). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. Legal Framework 

B. H–2B Numerical Limitations Under the 

INA 

C. FY 2023 Omnibus and FY 2024 Public 

Law 118–15 

D. Joint Issuance of the Final Rule 

E. Comments and Responses to Comments 

on the FY 2023 TFR 

III. Discussion 

A. Statutory Determination 

B. Numerical Increase and Allocations for 

Fiscal Year 2024 

C. Returning Workers 

D. 20,000 Allocation for Nationals of 

Guatemala, El Salvador, Honduras, Haiti, 

Colombia, Ecuador, or Costa Rica 

E. Business Need Standard—Irreparable 

Harm and FY 2024 Attestation 

F. Portability 

G. Compliance With Employment-Related 

Laws 

H. DHS Petition Procedures 

I. DOL Procedures 

IV. Statutory and Regulatory Requirements 

A. Administrative Procedure Act 

B. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. National Environmental Policy Act 

H. Congressional Review Act 

I. Paperwork Reduction Act 

I. Executive Summary 

FY 2024 H–2B Supplemental Cap 

With this temporary final rule (TFR), 

the Secretary of Homeland Security, 

following consultation with the 

Secretary of Labor, is authorizing the 

release of an additional 64,716 H–2B 

visas for FY 2024, subject to certain 

conditions. The 64,716 visas are divided 

into the following allocations: 

• For the first half of FY 2024: 20,716 

immediately available visas limited to 

returning workers, in other words, those 

workers who were issued H–2B visas or 

held H–2B status in fiscal years 2021, 

2022, or 2023, regardless of country of 

nationality. These petitions must 

request employment start dates on or 

before March 31, 2024; 

• For the early second half of FY 2024 

(April 1 to May 14): 19,000 visas limited 

to returning workers, in other words, 

those workers who were issued H–2B 

visas or held H–2B status in fiscal years 

2021, 2022, or 2023 regardless of 

country of nationality. These early 

second half of FY 2024 petitions must 

request employment start dates from 

April 1, 2024, to May 14, 2024. 

Furthermore, employers must file these 

petitions no earlier than 15 days after 


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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80395 

1The 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). 

2See 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 TimeLimited 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). 

the second half statutory cap 1 is 

reached; 

• For the late second half of FY 2024: 

(May 15 to September 30): 5,000 visas 

limited to returning workers, in other 

words, those workers who were issued 

H–2B visas or held H–2B status in fiscal 

years 2021, 2022, or 2023 regardless of 

country of nationality. These late 

second half of FY 2024 petitions must 

request employment start dates from 

May 15, 2024, to September 30, 2024. 

Furthermore, employers must file these 

petitions no earlier than 45 days after 

the second half statutory cap is reached; 

and 

• For the entirety of FY 2024: 20,000 

visas reserved for nationals of El 

Salvador, Guatemala, Honduras, Haiti, 

Colombia, Ecuador, and Costa Rica 

(country-specific allocation) as attested 

by the petitioner (regardless of whether 

such nationals are returning workers). 

Employers requesting an employment 

start date in the first half of FY 2024 

may file such petitions immediately 

after the publication of this TFR. 

Employers requesting an employment 

start date in the second half of FY 2024 

must file such petitions no earlier than 

15 days after the second half statutory 

cap is reached. 

To qualify for the FY 2024 

supplemental caps provided by this 

temporary final rule, eligible petitioners 

must: 

• Meet all existing H–2B eligibility 

requirements, including obtaining an 

approved temporary labor certification 

(TLC) from DOL before filing the Form 

I–129, Petition for a Nonimmigrant 

Worker, with USCIS; 

• Properly file the Form I–129, 

Petition for a Nonimmigrant Worker, 

with USCIS at its Texas Service Center 

on or before September 16, 2024; 

• Submit an attestation affirming, 

under penalty of perjury, that the 

employer is suffering irreparable harm 

or will suffer impending irreparable 

harm without the ability to employ all 

of the H–2B workers requested on the 

petition, and that they are seeking to 

employ returning workers only, unless 

the H–2B worker is a Salvadoran, 

Guatemalan, Honduran, Haitian, 

Colombian, Ecuadorian, or Costa Rican 

national and counted towards the 

20,000 cap exempt from the returning 

worker requirement; and 

• Prepare and retain a detailed 

written statement describing how the 

employer is suffering irreparable harm 

or will suffer impending irreparable 

harm and how evidence demonstrates 

irreparable harm and supports their 

application. 

Employers filing an H–2B petition 30 

or more days after the certified start date 

on the TLC, must attest to engaging in 

the following additional steps to recruit 

U.S. workers: 

• No later than 1 business day after 

filing the petition, place a new job order 

with the relevant State Workforce 

Agency (SWA) for at least 15 calendar 

days; 

• Contact the nearest American Job 

Center serving the geographic area 

where work will commence and request 

staff assistance in recruiting qualified 

U.S. workers; 

• Contact the employer’s former U.S. 

workers, including those the employer 

furloughed or laid off beginning on 

January 1, 2022, and until the date the 

H–2B petition is filed, disclose the 

terms of the job order and solicit their 

return to the job; 

• Provide written notification of the 

job opportunity to the bargaining 

representative for the employer’s 

employees in the occupation and area of 

employment, or post notice of the job 

opportunity at the anticipated worksite 

if there is no bargaining representative; 

• Where the occupation is 

traditionally or customarily unionized, 

provide written notification of the job 

opportunity to the nearest American 

Federation of Labor and Congress of 

Industrial Organizations (AFL–CIO) 

office covering the area of intended 

employment, by providing a copy of the 

job order and requesting assistance in 

recruiting qualified U.S. workers for the 

job opportunity; 

• Contact in writing and in a language 

understood by the worker, all U.S. 

workers currently employed at the place 

of employment, disclose the terms of the 

job order, and request assistance in 

recruiting qualified U.S. workers for the 

job; 

• Where the employer maintains a 

website for its business operations, post 

the job opportunity in a conspicuous 

location on the employer’s website; and 

• Hire any qualified U.S. worker who 

applies or is referred for the job 

opportunity until the later of either (1) 

the date on which the last H–2B worker 

departs for the place of employment, or 

(2) 30 days after the last date of the SWA 

job order posting. 

Petitioners filing H–2B petitions 

under this FY 2024 supplemental cap 

must retain documentation of 

compliance with the attestation 

requirements for 3 years from the date 

DOL approved the TLC, and must 

provide the documents and records 

upon the request of DHS or DOL, as well 

as fully cooperate with any compliance 

reviews such as audits. 

Through audits and investigations, 

both Departments have received 

evidence of employer non-compliance 

with the terms and conditions of the H– 

2B program, as well as violations of 

other labor and employment laws. DOL 

Office of Foreign Labor Certification 

(OFLC), DOL Wage and Hour Division 

(WHD), and USCIS Fraud Detection and 

National Security (FDNS) personnel 

have encountered non-compliance 

issues such as failure to pay the 

promised wage, failure to employ 

returning workers, failure to 

demonstrate irreparable harm, failure to 

conduct the additional recruitment 

steps, and failure to accurately disclose 

the beneficiary’s work location(s). 

Such non-compliance can harm U.S. 

workers by undermining wages and 

working conditions. It also directly 

harms H–2B workers. Further, H–2B 

workers depend on ongoing 

employment with the petitioning 

employer to maintain status in the 

United States. This dependence creates 

a power imbalance between the 

employer and H–2B worker, making the 

H–2B worker particularly vulnerable to 

exploitation and violations. In 

recognition of the substantial impact 

that non-compliance can have on both 

U.S. workers and H–2B workers, DHS 

and DOL again intend to conduct a 

significant number of audits focusing on 

irreparable harm and other worker 

protection provisions. And as it did as 

part of the FY 2022 second half H–2B 

supplemental cap TFR and the FY 2023 

H–2B supplemental cap TFR, DHS will 

again subject employers that have 

committed labor law violations in the 

H–2B program to additional scrutiny in 

the supplemental cap petition process.2

DHS intends for this additional scrutiny 

to help ensure compliance with H–2B 

program requirements and obligations. 

Specifically, falsifying information in 

H–2B program attestation(s) can result 

not only in penalties relating to perjury, 

but 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 


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80396 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

3The 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). 

4On September 20, 2023, DHS issued a 

Modernizing H–2 Program Requirements, 

Oversight, and Worker Protections Notice of 

Proposed Rulemaking (NPRM), 88 FR 65040, 65066, 

with a 60-day public comment period that ends on 

November 20, 2023. In that NPRM, DHS proposed 

to extend portability to H–2A and H–2B workers on 

a permanent basis. The Department’s proposal does 

not interfere with the portability provision of this 

rule, however, should DHS publish a final rule 

making H–2 portability permanent, any such 

provision would not expire on a specific date, 

unlike the portability provision made effective by 

this temporary final rule. 

5As 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. 

6For 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. 

7For instance, the FY 2023 H–2B supplemental 

cap TFR included a portability provision at 8 CFR 

214.2(h)(29)(iii)(A)(1)–(2), which remains in effect 

through January 24, 2024. See e.g., Exercise of 

Time-Limited Authority To Increase the Numerical 

Limitation for FY 2023 for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

programs administered by DOL. 

Falsifying information also may subject 

a petitioner/employer to other criminal 

and/or civil penalties. 

DHS will not approve H–2B petitions 

filed in connection with the FY 2024 

supplemental cap authority on or after 

October 1, 2024. 

H–2B Portability 

In addition to exercising its timelimited authority to make additional FY 

2024 H–2B visas available, DHS is again 

providing additional flexibilities to H– 

2B petitioners under its general 

programmatic authority by allowing 

nonimmigrant workers in the United 

States 3 in valid H–2B status and who 

are beneficiaries of non-frivolous H–2B 

petitions received on or after January 25, 

2024, or who are the beneficiaries of 

non-frivolous H–2B petitions that are 

pending as of January 25, 2024, to begin 

work with a new employer after an H– 

2B petition (supported by a valid TLC) 

is filed and before the petition is 

approved, generally for a period of up 

to 60 days. However, such employment 

authorization would end 15 days after 

USCIS denies the H–2B petition or such 

petition is withdrawn. This H–2B 

portability ends one year after the 

provision’s effective date of January 25, 

2024, in other words, at the end of 

January 24, 2025.4

II. Background 

A. Legal Framework 

The Immigration and Nationality Act 

(INA), as amended, establishes the H–2B 

nonimmigrant classification for a 

nonagricultural temporary worker 

‘‘having a residence in a foreign country 

which he has no intention of 

abandoning who is coming temporarily 

to the United States to perform . . . 

temporary [non-agricultural] service or 

labor if unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ INA section 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b). Employers must 

petition DHS for classification of 

prospective temporary workers as H–2B 

nonimmigrants. INA section 214(c)(1), 8 

U.S.C. 1184(c)(1). Generally, DHS must 

approve this petition before the 

beneficiary can be considered eligible 

for an H–2B visa. In addition, the INA 

requires that ‘‘[t]he question of 

importing any alien as [an H–2B] 

nonimmigrant . . . in any specific case 

or specific cases shall be determined by 

[DHS],5 after consultation with 

appropriate agencies of the 

Government.’’ INA section 214(c)(1), 8 

U.S.C. 1184(c)(1). The INA generally 

charges the Secretary of Homeland 

Security with the administration and 

enforcement of the immigration laws, 

and provides that the Secretary ‘‘shall 

establish such regulations . . . and 

perform such other acts as he deems 

necessary for carrying out his authority’’ 

under the INA. See INA section 

103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3); 

see also 6 U.S.C. 202(4) (charging the 

Secretary with ‘‘[e]stablishing and 

administering rules . . . governing the 

granting of visas or other forms of 

permission . . . to enter the United 

States to individuals who are not a 

citizen or an alien lawfully admitted for 

permanent residence in the United 

States’’). With respect to nonimmigrants 

in particular, the INA provides that 

‘‘[t]he admission to the United States of 

any alien as a nonimmigrant shall be for 

such time and under such conditions as 

the [Secretary] may by regulations 

prescribe.’’ INA section 214(a)(1), 8 

U.S.C. 1184(a)(1); see also INA section 

274A(a)(1) and (h)(3), 8 U.S.C. 

1324a(a)(1) and (h)(3) (prohibiting 

employment of noncitizens 6 not 

authorized for employment). The 

Secretary may designate officers or 

employees to take and consider 

evidence concerning any matter that is 

material or relevant to the enforcement 

of the INA. INA sections 287(a)(1), (b), 

8 U.S.C. 1357(a)(1), (b) and INA section 

235(d)(3), 8 U.S.C. 1225(d)(3). 

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 7 and in this rule, and except 


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Flexibility for H–2B Workers Seeking To Change 

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

8See 8 CFR 214.2(h)(6)(vii) and 8 CFR 

274a.12(b)(9). 

9The Federal Government’s fiscal year runs from 

October 1 of the prior year through September 30 

of the year being described. For example, fiscal year 

2024 is from October 1, 2023, through September 

30, 2024. 

10See 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. 

11See INA section 214(g)(9)(A), 8 U.S.C. 

1184(g)(9)(A). 

12See Consolidated Appropriations Act, 2016, 

Public Law 114–113, div. F, tit. V, sec 565. 

13See 20 CFR 655.15(b). 

14See 8 CFR 214.2(h)(6)(vi)(A). 

15 In fiscal years 2017 through 2021, USCIS 

received a sufficient number of H–2B petitions to 

reach or exceed the relevant first half statutory cap 

on January 10, 2017, December 15, 2017, December 

6, 2018, November 15, 2019, and November 16, 

2020, respectively. See USCIS, USCIS Reaches the 

H–2B Cap for the First Half of Fiscal Year 2017, 

https://www.uscis.gov/archive/uscis-reaches-the-h2b-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-forfirst-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-h2b-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-fy2021 (Nov. 18, 2020). 

16On 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/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 

2021). 

17On 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/uscisreaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 

2022). 

18On 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-2bcap-for-first-half-of-fy-2024 (October 13, 2023). 

19See 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/foreignlabor/news (July 10, 2023). 

for certain professional athletes being 

traded among organizations,8 H–2B 

workers seeking to extend their status 

with a new employer may not begin 

employment with the new employer 

until the new H–2B petition is 

approved. 

The INA also authorizes DHS to 

impose appropriate remedies against an 

employer for a substantial failure to 

meet the terms and conditions of 

employing an H–2B nonimmigrant 

worker, or for a willful 

misrepresentation of a material fact in a 

petition for an H–2B nonimmigrant 

worker. INA section 214(c)(14)(A), 8 

U.S.C. 1184(c)(14)(A). The INA 

expressly authorizes DHS to delegate 

certain enforcement authority to DOL. 

INA section 214(c)(14)(B), 8 U.S.C. 

1184(c)(14)(B); see also INA section 

103(a)(6), 8 U.S.C. 1103(a)(6). DHS has 

delegated its authority under INA 

section 214(c)(14)(A)(i), 8 U.S.C. 

1184(c)(14)(A)(i), to DOL. See DHS, 

Delegation of Authority to DOL under 

Section 214(c)(14)(A) of the INA (Jan. 

16, 2009); see also 8 CFR 214.2(h)(6)(ix) 

(stating that DOL may investigate 

employers to enforce compliance with 

the conditions of an H–2B petition and 

a DOL-approved TLC). This 

enforcement authority has been 

delegated within DOL to the Wage and 

Hour Division (WHD), and is governed 

by regulations at 29 CFR part 503. 

B. H–2B Numerical Limitations Under 

the INA 

The maximum annual number 

(‘‘statutory cap’’) of noncitizens who 

may be issued H–2B visas or otherwise 

provided H–2B nonimmigrant status to 

perform temporary nonagricultural work 

is 66,000, distributed semiannually 

beginning in October and April. See 

INA sections 214(g)(1)(B) and (g)(10), 8 

U.S.C. 1184(g)(1)(B) and (g)(10). 

Accordingly, with certain exceptions as 

described below, up to 33,000 

noncitizens may be issued H–2B visas 

or provided H–2B nonimmigrant status 

in the first half of a fiscal year, and the 

remaining annual allocation, including 

any unused nonimmigrant H–2B visas 

from the first half of a fiscal year, are 

available for employers seeking to hire 

H–2B workers during the second half of 

the fiscal year.9 If the number of 

petitions approved by DHS is 

insufficient to use all H–2B numbers in 

a given fiscal year, DHS cannot carry 

over the unused numbers for petition 

approvals for employment start dates 

beginning on or after the start of the 

next fiscal year. 

In FYs 2005, 2006, 2007, and 2016, 

Congress exempted H–2B workers 

identified as returning workers from the 

annual H–2B cap of 66,000.10 A 

returning worker is an H–2B worker 

who was previously counted against the 

annual H–2B cap during a designated 

period of time.11 For example, Congress 

designated that returning workers for FY 

2016 needed to have been counted 

against the cap during FY 2013, 2014, or 

2015 to qualify for the exemption.12

DHS and the Department of State (DOS) 

worked together to confirm that all 

workers requested under the returning 

worker provision in fact were eligible 

for exemption from the annual cap (in 

other words, were issued an H–2B visa 

or provided H–2B status during one of 

the prior 3 fiscal years) and were 

otherwise eligible for H–2B 

classification. 

Because of the strong demand for H– 

2B visas in recent years, the statutorilylimited semiannual visa allocation, the 

DOL regulatory requirement that 

employers apply for a TLC 75 to 90 days 

before the start date of work,13 and the 

DHS regulatory requirement that an 

approved TLC accompany all H–2B 

petitions,14 employers that wish to 

obtain visas for their workers under the 

semiannual allotment must act early to 

receive a TLC and file a petition with 

U.S. Citizenship and Immigration 

Services (USCIS). As a result, the date 

on which USCIS has reached sufficient 

H–2B petitions to reach the first half of 

the fiscal year statutory cap has 

generally trended earlier in recent 

years.15 For FY 2022, for the first time 

in more than a decade, USCIS received 

sufficient H–2B petitions to reach the 

first half of the fiscal year statutory cap 

before the start of the fiscal year.16 This 

occurred even earlier in FY 2023, when 

USCIS received enough H–2B petitions 

to reach the FY 2023 first-half statutory 

cap on September 12, 2022.17 For FY 

2024, USCIS received sufficient H–2B 

petitions to reach the first half of the 

fiscal year statutory cap on October 11, 

2023.18 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 2022.19 This trend in 

recent years of increased demand for H– 


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20 In recent years, DOL has received an increasing 

number of TLC applications for an increasing 

number of H–2B workers with April 1 start dates: 

DOL received 4,500 applications on January 1, 

2018, covering more than 81,600 worker positions; 

DOL received 5,276 applications by January 8, 

2019, covering more than 96,400 worker positions; 

DOL received 5,677 applications during the initial 

three-day filing window in 2020 covering 99,362 

worker positions; DOL received 5,377 applications 

during the initial three-day filing window in 2021 

covering 96,641 worker positions; DOL received 

7,875 applications by January 7, 2022, covering 

136,555 worker positions; and DOL received 8,693 

applications during the initial three-day filing 

window in 2023, covering 142,796 worker 

positions. See DOL, Announcements, https://

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

21See section 543 of Division F of the 

Consolidated Appropriations Act, 2017, Public Law 

115–31 (FY 2017 Omnibus); section 205 of Division 

M of the Consolidated Appropriations Act, 2018, 

Public Law 115–141 (FY 2018 Omnibus); section 

105 of Division H of the Consolidated 

Appropriations Act, 2019, Public Law 116–6 (FY 

2019 Omnibus); section 105 of Division I of the 

Further Consolidated Appropriations Act, 2020, 

Public Law 116–94 (FY 2020 Omnibus); section 105 

of Division O of the Consolidated Appropriations 

Act, 2021, Public Law 116–260 (FY 2021 Omnibus); 

section 105 of Division O of the Consolidated 

Appropriations Act, 2021, FY 2021 Omnibus, 

sections 101 and 106(3) of Division A of Public Law 

117–43, Continuing Appropriations Act, 2022, and 

section 101 of Division A of Public Law 117–70, 

Further Continuing Appropriations Act, 2022 

through February 18, 2022 (together, FY 2022 

authority); and section 204 of Division O of the 

Consolidated Appropriations Act, 2022, Public Law 

117–103 (FY 2022 Omnibus). 

22The Department of Homeland Security 

Appropriations Act, 2023, Public Law 117–328 

(Dec. 29, 2022). 

23See Public Law 118–15, Continuing 

Appropriations Act, 2024 and Other Extensions 

Act, Division A, sections 101(6) and 106 (extending 

into 2024 DHS funding and other authorities, 

including the authority to issue supplemental H–2B 

visas that was provided under title III of Division 

O of Pub. L. 117–328, through November 17, 2023). 

24Appropriations and authorities provided by the 

continuing resolutions are available for the needs of 

the entire fiscal year to which the continuing 

resolution applies, although DHS’s ability to 

obligate funds or exercise such authorities may 

lapse at the sunset of such resolution. See, e.g., 

Comments on Due Date and Amount of District of 

Columbia’s Contributions to Special Employee 

Retirement Funds, B–271304 (Comp. Gen. Mar. 19, 

1996) (explaining that ‘‘a continuing resolution 

appropriates the full annual amount regardless of 

its period of duration . . . . Standard continuing 

resolution language makes it clear that the 

appropriations are available to the extent and in the 

manner which would be provided by the pertinent 

appropriations act that has yet to be enacted (unless 

otherwise provided in the continuing resolution).’’). 

Consistent with this principle, DHS interprets the 

current continuing resolution to provide DHS with 

the ability to authorize additional H–2B visa 

numbers with respect to all of FY 2024 subject to 

the same terms and conditions as the FY 2023 

authority at any time before the continuing 

resolution expires, notwithstanding the reference to 

FY 2023 in the FY 2023 Omnibus. 

25See 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). 

26See 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. 

27See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

2B workers is even more apparent in the 

second half of the fiscal year.20

Congress, in recognition of historical 

and current demand has, for the last 

several fiscal years, authorized 

supplemental caps.21 The authorization 

for the current supplemental cap is 

under sections 101(6) and 106 of 

Division A of Public Law 118–15, 

Continuing Appropriations Act, 2024 

and Other Extensions Act (FY 2024 

authority), which extended the 

authorization previously provided in 

section 303 of Division O of the 

Consolidated Appropriations Act, 2023, 

Public Law 117–328 (FY 2023 

Omnibus), as discussed below. 

C. FY 2023 Omnibus and FY 2024 

Public Law 118–15 

On December 29, 2022, President 

Joseph Biden signed the FY 2023 

Omnibus, which contains a provision, 

section 303 of Division O, Title III, 

permitting the Secretary of Homeland 

Security, under certain circumstances 

and after consultation with the 

Secretary of Labor, to increase the 

number of H–2B visas available to U.S. 

employers, notwithstanding the 

otherwise-established statutory 

numerical limitation set forth in the 

INA.22 Specifically, section 303 

provides that ‘‘the Secretary of 

Homeland Security, after consultation 

with the Secretary of Labor, and upon 

determining that the needs of American 

businesses cannot be satisfied in [FY] 

2023 with United States workers who 

are willing, qualified, and able to 

perform temporary nonagricultural 

labor,’’ may increase the total number of 

noncitizens who may receive an H–2B 

visa in FY 2023 by the highest number 

of H–2B nonimmigrants who 

participated in the H–2B returning 

worker program in any fiscal year in 

which returning workers were exempt 

from the H–2B numerical limitation. 

On September 30, 2023, Congress 

passed Public Law 118–15, which 

extends authorization under the same 

terms and conditions provided in 

section 303 of Division O of the FY 2023 

Omnibus permitting the Secretary of 

Homeland Security to increase the 

number of H–2B visas available to U.S. 

employers in FY 2024.23 In other words, 

Public Law 118–15 permits the 

Secretary of Homeland Security, after 

consultation with the Secretary of 

Labor, to provide up to 64,716 

additional H–2B visas for FY 2024, 

notwithstanding the otherwiseestablished statutory numerical 

limitation set forth in the INA, for 

eligible employers whose employment 

needs for FY 2024 cannot be met.24

Under the Public Law 118–15 authority, 

DHS and DOL are jointly publishing this 

temporary final rule to authorize the 

issuance of no more than 64,716 

additional visas for FY 2024 to those 

businesses that are suffering irreparable 

harm or will suffer impending 

irreparable harm, as attested by the 

employer on a new attestation form. The 

authority to approve H–2B petitions 

under this FY 2024 supplemental cap 

expires at the end of that fiscal year. 

Therefore, USCIS will not approve H– 

2B petitions filed in connection with 

this FY 2024 supplemental cap 

authority on or after October 1, 2024. 

As noted above, since FY 2017, 

Congress has enacted a series of public 

laws providing the Secretary of 

Homeland Security with the 

discretionary authority to increase the 

H–2B cap beyond the annual numerical 

limitation set forth in section 214 of the 

INA. The previous statutory provisions 

were materially identical to section 303 

of the FY 2023 Omnibus, which is the 

same authority provided for FY 2024 by 

the recent continuing resolution. During 

each fiscal year from FY 2017 through 

FY 2019, and FY 2021 through FY 2023, 

the Secretary of Homeland Security, 

after consulting with the Secretary of 

Labor, determined that some American 

businesses could not satisfy their needs 

in such year with U.S. workers who 

were willing, qualified, and able to 

perform temporary nonagricultural 

labor. On the basis of these 

determinations, on July 19, 2017, and 

May 31, 2018, DHS and DOL jointly 

published temporary final rules for FY 

2017 and FY 2018, respectively, each of 

which allowed an increase of up to 

15,000 additional H–2B visas for those 

businesses that attested that if they did 

not receive all of the workers requested 

on the Petition for a Nonimmigrant 

Worker (Form I–129), they were likely 

to suffer irreparable harm, in other 

words, suffer a permanent and severe 

financial loss.25 USCIS approved a total 

of 12,294 workers for H–2B 

classification under petitions filed 

pursuant to the FY 2017 supplemental 

cap increase.26 In FY 2018, USCIS 

received petitions for more than 15,000 

beneficiaries during the first 5 business 

days of filing for the supplemental cap 

and held a lottery on June 7, 2018. The 

total number of H–2B workers approved 

toward the FY 2018 supplemental cap 

increase was 15,788.27 The vast majority 


khammond on DSKJM1Z7X2PROD with RULES2
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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. 

28Premium processing allows for expedited 

processing for an additional fee. See INA 286(u), 8 

U.S.C. 1356(u). 

29See 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). 

30See 84 FR at 20021. 

31See 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. 

32See DHS, DHS to Improve Integrity of Visa 

Program for Foreign Workers (March 5, 2020), 

https://www.dhs.gov/news/2020/03/05/dhsimprove-integrity-visa-program-foreign-workers. 

33See Proclamation 9994 of Mar. 13, 2020, 

Declaring a National Emergency Concerning the 

Coronavirus Disease (COVID–19) Outbreak, 85 FR 

15337 (Mar. 18, 2020). 

34See https://twitter.com/DHSgov/status/ 

1245745115458568192?s=20. 

35See https://twitter.com/DHSgov/status/1245745

116528156673. 

36See 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). 

37See USCIS, Cap Reached for Remaining H–2B 

Visas for Returning Workers for FY 2021, https:// 

www.uscis.gov/news/alerts/cap-reached-forremaining-h-2b-visas-for-returning-workers-for-fy2021 (Aug. 19, 2021). 

38The number of approved workers exceeded the 

number of additional visas authorized for FY 2021 

to allow for the possibility that some approved 

workers would either not seek a visa or admission, 

would not be issued a visa, or would not be 

admitted to the United States. See Department of 

Homeland Security, U.S. Citizenship and 

Immigration Services, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data 

queried 10/2023, TRK 13122, H–2B Visa Issuance 

Report September 30, 2023. 

39See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2023, TRK 13122, H– 

2B Visa Issuance Report September 30, 2023. 

40See 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). 

41See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2023, TRK 13122, H– 

2B Visa Issuance Report September 30, 2023. 

of the H–2B petitions received under the 

FY 2017 and FY 2018 supplemental 

caps requested premium processing 

(Form I–907) 28 and were adjudicated 

within 15 calendar days. 

On May 8, 2019, DHS and DOL jointly 

published a temporary final rule 

authorizing an increase of up to 30,000 

additional H–2B visas for the remainder 

of FY 2019.29 The additional visas were 

limited to returning workers who had 

been counted against the H–2B cap or 

were otherwise granted H–2B status in 

the previous three fiscal years, and for 

those businesses that attested to a level 

of need such that, if they did not receive 

all of the workers requested on the Form 

I–129, they were likely to suffer 

irreparable harm, in other words, suffer 

a permanent and severe financial loss.30

The Secretary determined that limiting 

returning workers to those who were 

issued an H–2B visa or granted H–2B 

status in the past 3 fiscal years was 

appropriate, as it mirrored the standard 

that Congress designated in previous 

returning worker provisions. On June 5, 

2019, approximately 30 days after the 

supplemental visas became available, 

USCIS announced that it received 

sufficient petitions filed pursuant to the 

FY 2019 supplemental cap increase. 

USCIS did not conduct a lottery for the 

FY 2019 supplemental cap increase. The 

total number of H–2B workers approved 

towards the FY 2019 supplemental cap 

increase was 32,680.31 The vast majority 

of these petitions requested premium 

processing and were adjudicated within 

15 calendar days. 

Although Congress provided the 

Secretary of Homeland Security with 

the discretionary authority to increase 

the H–2B cap in FY 2020, the Secretary 

did not exercise that authority. DHS 

initially intended to exercise its 

authority and, on March 4, 2020, 

announced that it would make available 

35,000 supplemental H–2B visas for the 

second half of the fiscal year.32 On 

March 13, 2020, then-President Trump 

declared a National Emergency 

concerning COVID–19, a communicable 

disease caused by the coronavirus 

SARS–CoV–2.33 On April 2, 2020, DHS 

announced that the rule to increase the 

H–2B cap was on hold due to economic 

circumstances, and that DHS would not 

release additional H–2B visas until 

further notice.34 DHS also noted that the 

Department of State had suspended 

routine visa services.35

In FY 2021, DHS in consultation with 

DOL determined it was appropriate to 

increase the H–2B cap for FY 2021 

coupled with additional protections (for 

example, post-adjudication audits, 

investigations, and compliance checks), 

based on the demand for H–2B workers 

in the second half of FY 2021, 

continuing economic growth, the 

improving job market, and increased 

visa processing capacity by the 

Department of State. Accordingly, on 

May 25, 2021, DHS and DOL jointly 

published a temporary final rule 

authorizing an increase of up to 22,000 

additional H–2B visas for the remainder 

of FY 2021.36 The supplemental visas 

were available only to employers that 

attested they were likely to suffer 

irreparable harm without the additional 

workers. The allocation of 22,000 

additional H–2B visas under that rule 

consisted of 16,000 visas available only 

to H–2B returning workers from one of 

the last three fiscal years (FY 2018, 

2019, or 2020) and 6,000 visas that were 

initially reserved for nationals of the 

Northern Central American countries of 

El Salvador, Guatemala, and Honduras, 

who were exempt from the returning 

worker requirement. By August 13, 

2021, USCIS had received enough 

petitions for returning workers to reach 

the additional 22,000 H–2B visas made 

available under the FY 2021 H–2B 

supplemental visa temporary final 

rule.37 The total number of H–2B 

workers approved towards the FY 2021 

supplemental cap increase was 

30,707.38 This total number included 

approved H–2B petitions for 23,937 

returning workers, as well as 6,805 

beneficiaries from the Northern Central 

American countries.39

On January 28, 2022, DHS and DOL 

jointly published a temporary final rule 

authorizing an increase of up to 20,000 

additional H–2B visas for FY 2022 

positions with start dates on or before 

March 31, 2022.40 These supplemental 

visas were available only to employers 

that attested they were suffering or 

would suffer impending irreparable 

harm without the additional workers. 

The allocation of 20,000 additional H– 

2B visas under that rule consisted of 

13,500 visas available only to H–2B 

returning workers from one of the last 

three fiscal years (FY 2019, 2020, or 

2021) and 6,500 visas reserved for 

Salvadoran, Guatemalan, Honduran, 

and Haitian nationals, who were 

exempted from the returning worker 

requirement. USCIS data show that the 

total number of H–2B workers approved 

towards the first half FY 2022 

supplemental cap increase was 17,381, 

including 14,150 workers under the 

returning worker allocation, as well as 

3,231 workers approved towards the 

Haitian/Northern Central American 

allocation.41

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 


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42See Temporary Final Rule, Exercise of TimeLimited 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). 

43See USCIS, Cap Reached for Additional 

Returning Worker H–2B Visas for Second Half of FY 

2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022). 

44The 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. 

45See 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). 

46See 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-2bvisas-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/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2023 (Mar. 31, 2023). 

47The 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. 

48The 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. 

49See Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2017 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

Program, 82 FR 32987 (Jul. 19, 2017); Exercise of 

Time-Limited Authority To Increase the Fiscal Year 

2018 Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program, 83 FR 24905 (May 

31, 2018); Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2019 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

Program, 84 FR 20005 (May 8, 2019); Exercise of 

Time-Limited Authority To Increase the Fiscal Year 

2021 Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

Employers, 86 FR 28198 (May 25, 2021); Exercise 

of Time-Limited Authority To Increase the Fiscal 

Year 2022 Numerical Limitation for the H–2B 

Temporary Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers Seeking To 

Change Employers, 87 FR 4722 (Jan. 28, 2022); 

Exercise of Time-Limited Authority To Increase the 

Numerical Limitation for Second Half of FY 2022 

for the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

30334 (May 18, 2022); Exercise of Time-Limited 

Authority To Increase the Numerical Limitation for 

FY 2023 for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

76816 (Dec. 15, 2022). 

50See Outdoor Amusement Bus. Ass’n v. Dep’t of 

Homeland Sec., 983 F.3d 671 (4th Cir. 2020), cert. 

denied, 142 S. Ct. 425 (2021); see also Temporary 

Non-Agricultural Employment of H–2B Aliens in 

the United States, 80 FR 24041, 24045 (Apr. 29, 

2015). 

51See Outdoor Amusement Bus. Ass’n, 983 F.3d 

at 684–89. 

through September 30, 2022, based on 

the continued demand for H–2B 

workers for the remainder of FY 2022, 

continuing economic growth, increased 

labor demand, and increased visa 

processing capacity by the Department 

of State. Accordingly, on May 18, 2022, 

DHS and DOL jointly published a 

temporary final rule authorizing an 

increase of no more than 35,000 

additional H–2B visas for the second 

half of FY 2022.42 As in the January 

2022 TFR, the supplemental visas were 

available only to employers that attested 

they were suffering or would suffer 

impending irreparable harm without the 

additional workers. The allocation of 

35,000 additional H–2B visas under the 

rule applicable to the second half of FY 

2022 consisted of 23,500 visas available 

only to H–2B returning workers from 

one of the last three fiscal years (FY 

2019, 2020, or 2021) and 11,500 visas 

reserved for Salvadoran, Guatemalan, 

Honduran, and Haitian nationals, who 

were exempted from the returning 

worker requirement. By May 25, 2022, 

USCIS had received enough petitions 

for returning workers to reach the 

additional 23,500 H–2B visas made 

available under the second half FY 2022 

H–2B supplemental visa temporary final 

rule.43 USCIS data show that the total 

number of H–2B workers approved 

towards the second half FY 2022 

supplemental cap increase was 43,798, 

including 31,480 workers under the 

returning worker allocation, as well as 

12,318 workers approved towards the 

Haitian/Northern Central American 

allocation.44

Finally, on December 15, 2022, DHS 

and DOL jointly published a temporary 

final rule authorizing an increase of up 

to 64,716 additional H–2B visas for the 

entirety of FY 2023. As in the FY 2022 

TFRs, the additional visas were 

available only to employers that attested 

they were suffering or would suffer 

impending irreparable harm without the 

additional workers.45 The 64,716 

additional visas included 44,716 

reserved for returning workers from one 

of the last three fiscal years (FY 2020, 

2021, or 2022), which were distributed 

in several allocations based on date of 

employer need: 18,216 for employers 

with requested employment start dates 

on or before March 31, 2023; 16,500 for 

employers with requested employment 

start dates from April 1, 2023, to May 

14, 2023 (early second half allocation); 

and 10,000 for employers with 

requested employment start dates from 

May 15, 2023, to Sept. 30, 2023 (late 

second half allocation). The remaining 

20,000 visas were available for the 

entirety of FY 2023, and were set aside 

for nationals of El Salvador, Guatemala, 

Honduras, and Haiti, who were exempt 

from the returning worker requirement. 

By January 30, 2023, USCIS received 

enough petitions to reach the cap for the 

additional 18,216 H–2B visas made 

available for returning workers for the 

first half of fiscal year, and by March 30, 

2023, USCIS received enough petitions 

to reach the cap for the additional 

16,500 H–2B visas made available for 

returning workers for the early second 

half of fiscal year.46 USCIS data show 

that the total number of H–2B workers 

approved towards the FY 2023 

supplemental cap increase was 78,302, 

including 54,470 workers under the 

returning worker allocation, as well as 

23,832 workers approved towards the 

Haitian/Northern Central American 

allocation.47

Once again, DHS in consultation with 

DOL believes that it is appropriate to 

increase the H–2B cap for FY 2024 

based on the demand for H–2B workers 

in the first half of FY 2024, anticipated 

demand for the second half of FY 2024, 

recent economic growth, and strong 

labor demand.48 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. 

D. Joint Issuance of the Final Rule 

As in FY 2017, FY 2018, FY 2019, FY 

2021, FY 2022, and FY 2023, DHS and 

DOL (the Departments) have determined 

that it is appropriate to jointly issue this 

temporary final rule.49 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.50 Although DHS and DOL each 

have authority to independently issue 

rules implementing their respective 

duties under the H–2B program,51 the 

Departments are implementing the 

numerical increase in this manner to 

ensure there can be no question about 

the authority underlying the 


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52See 8 CFR 214.2(h)(6)(iii)(A) and (C), 

(h)(6)(iv)(A). 

53Exercise 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, 76830 (Dec. 15, 

2022). 

54Under the FY 2023 TFR allocation for nationals 

of Northern Central America and Haiti, a total of 

over 16,700 visas were issued, with around 5,000 

of those visas issued to workers with first half start 

dates and the remainder issued to workers with 

second half start dates. See DHS, USCIS, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data, queried 10/2023, TRK 13122, 

FY 2023 H–2B Northern Central American Cap 

Approvals by Validity Start Date Month. 

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).52

E. Comments and Responses to 

Comments on the FY 2023 TFR 

In connection with the FY 2023 TFR, 

the Departments solicited public 

comments for 60 days. During that 

comment period, the Departments 

received 10 substantive comments. In 

the following discussion, the 

Departments discuss and respond to 

those comments by topic. 

Timing and Distribution of Visas 

Comment: Several commenters 

expressed support for the Departments’ 

release of the maximum number of visas 

authorized by Congress. In addition, 

these commenters indicated 

appreciation for the earlier release of 

supplemental visas in 2023 than in prior 

years, noting that the FY 2023 TFR 

offered certainty that was beneficial to 

employers. The commenters encouraged 

the Departments to similarly make 

future supplemental visas available 

early in the relevant fiscal year. 

Response: The Departments thank the 

commenters for their feedback. The 

Departments are again making the 

maximum number of visas available for 

FY 2024 and worked diligently to 

release these visas as early as possible. 

Comment: One commenter stated that 

the number of supplemental visas was 

not sufficiently justified by labor market 

conditions. The commenter asserted 

that the United States is not 

experiencing a labor shortage and 

disagreed with the Departments’ usage 

of official unemployment rate data to 

justify the decision to release 64,716 

supplemental visas for FY 2023. The 

comment centers on a critique of official 

government statistics produced by the 

Department of Labor. More specifically, 

the comment noted the long-term 

decline in the labor force participation 

rate and, further, alleges that the official 

unemployment rate is flawed because it 

excludes persons who are considered to 

no longer be in the labor force. 

Response: The Departments 

appreciate the comment regarding 

justification for the number of 

supplemental visas. However, the 

Departments disagree that the rule did 

not sufficiently justify the number of 

supplemental visas. Specifically, the 

Departments disagree with the assertion 

that official government statistics are 

incorrect or inadequate. Furthermore, 

the Departments (as branches of the 

Federal Government) believe that it is 

reasonable to rely on official labor 

market statistics produced by subjectmatter experts within the U.S. 

Government when assessing the labor 

market. Additionally, the Departments 

note that did they not rely on any single 

statistic to determine either the general 

need for supplemental visas or the 

specific number of supplemental visas, 

but rather considered a number of 

factors including demand for H–2B 

workers (in the form of TLC data) and 

labor market conditions (in the form of 

multiple labor market statistics). 

Finally, the Departments believe that 

aspects of this comment, specifically the 

discussion regarding long-term labor 

force trends that (by the commenter’s 

description) are impacted by multiple 

variables other than short-term labor 

needs, are out of the scope of the FY 

2023 Temporary Final Rule. 

Comment: Some commenters 

expressed support for the Departments’ 

FY 2023 distribution of the 

supplemental H–2B visas in multiple 

seasonal allocations including two 

allocations for the second half of the 

fiscal year. These commenters noted 

that this distribution was beneficial to 

employers who hire later in the fiscal 

year. 

Response: The Departments thank the 

commenters for their feedback and will 

again make multiple allocations 

available including two allocations for 

the second half of FY 2024. 

Comment: One commenter requested 

that the Departments consider 

combining the supplemental allocations 

for the second half of the fiscal year into 

a single allocation in future TFRs. The 

commenter stated that administering 

multiple allocations creates more work 

for the Departments when they are 

already struggling to process 

applications and petitions in a timely 

manner. The commenter also stated that 

the allocations for the second half of the 

fiscal year were ‘‘woefully insufficient’’ 

to meet employer demand. 

Response: The Departments have 

again decided to reserve supplemental 

visas for the late second half of FY 2024. 

As noted by the commenter, 

administering multiple allocations 

involves some level of additional work. 

This includes both the work performed 

by USCIS in the actual administration of 

each allocation cap, as well as a 

potential increase in DOL workload as 

TLC requests may increase. However, 

the Departments have attempted to 

balance such workload challenges with 

the importance of addressing the needs 

of U.S. employers, including those late 

season employers who otherwise may 

not have the opportunity to file for capsubject H–2B workers. As explained in 

last year’s TFR and again in this TFR, 

the intense competition for employers 

requesting an April 1 start date has 

resulted in H–2B visas being effectively 

unavailable for many employers who 

need workers to start late in the season, 

and thus the late season allocation is 

intended to directly assist those 

employers.53 For FY 2024, as in FY 

2023, the Departments believe that there 

is sufficient demand and need for the 

late second half to justify the additional 

work and potential impact on 

processing times. 

Regarding the claim that the total 

allocation for the second half of FY 2023 

was inadequate, the Departments 

reiterate that the 33,000 cap was 

statutory, and the second half’s total 

returning worker supplemental 

allocation of 26,500 visas was more than 

the first half’s returning worker 

allocation of 18,216. In addition, while 

the 20,000 allocation for nationals of El 

Salvador, Guatemala, Honduras, and 

Haiti was available for start dates 

throughout FY 2023, the majority of 

visas issued under that allocation went 

to workers with second half start 

dates.54 As with the FY 2023 TFR, the 

Departments will continue to make 

more total visas available for the second 

half of FY 2024 than the first half. 

Comment: One commenter 

recommended reallocating unused visas 

from one sub-allocation to another if 

there were unused visas, such as unused 

visas from the allocation for nationals of 

El Salvador, Guatemala, Honduras, and 

Haiti, to the returning worker allocation. 

Another commenter more specifically 

suggested that the Departments 

coordinate with DOS to verify all visas 

under the first half allocation are 

actually used and roll over any 

supplemental visas that were ‘‘used’’ 

(counted on a petition) but not issued 

(by DOS) from the first half cap to the 

second half cap, or from the early 


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55 In FY 2021, 3,079 visas out of 6,000 authorized 

were issued under the allocation for nationals of 

Northern Central America in the FY 2021 TFR, 

which published on May 25, 2021—to use a visa 

under this allocation the petition had to have been 

received by July 8, 20211. In FY 2022, 2,481 visas 

out of 6,500 authorized were issued under the 

allocation for nationals of Northern Central America 

and Haiti in the first half FY 2022 TFR, which 

published on January 22, 2022; 7,405 visas out of 

11,500 authorized were issued under the allocation 

for nationals of Northern Central America and Haiti 

in the second half FY 2022 TFR, which published 

on May 18, 2022; and 16,713 visas were issued out 

of 20,000 authorized under the allocation for 

nationals of Northern Central America and Haiti in 

the FY 2023 TFR, which published on December 

15, 2022. See DHS, USCIS, Office of Performance 

and Quality, CLAIMS3, VIBE, DOS Visa Issuance 

Data, queried 10/2023, TRK 13122, H–2B Visa 

Issuance Report September 30, 2023. 

56 Implementation of a Family Reunification 

Parole Process for Salvadorans, 88 FR 43611 (July 

10, 2023). 

57 Implementation of a Family Reunification 

Parole Process for Guatemalans, 88 FR 43581 (July 

10, 2023). 

58 Implementation of a Family Reunification 

Parole Process for Hondurans, 88 FR 43601 (July 

10, 2023). 

59 Implementation of a Family Reunification 

Parole Process for Colombians, 88 FR 43591 (July 

10, 2023). 

60 DHS announced a forthcoming family 

reunification parole program for Ecuador on 

October 18, 2023. DHS, DHS Announces Family 

Reunification Parole Process for Ecuador (Oct. 18, 

2023), https://www.uscis.gov/newsroom/newsreleases/dhs-announces-family-reunificationparole-process-for-ecuador (announcing that the 

Federal Register notice for this process will be 

published soon). As of October 27, 2023, the 

program is not yet active. 

61 Implementation of Changes to the Haitian 

Family Reunification Parole Process, 88 FR 54635 

(Aug. 11, 2023). 

62 Implementation of Changes to the Cuban 

Family Reunification Parole Process, 88 FR 54639 

(Aug. 11, 2023). 

63See National Security Council, U.S. Strategy for 

Addressing the Root Causes of Migration in Central 

America, at 4 (Jul. 2021), https://

www.whitehouse.gov/wp-content/uploads/2021/07/ 

Root-Causes-Strategy.pdf (Poverty and economic 

inequality, among other factors, contribute to 

irregular migration). See also The White House, 

Fact Sheet: Update on the U.S. Strategy for 

Addressing the Root Causes of Migration in Central 

America (Feb. 2023), https://www.whitehouse.gov/ 

briefing-room/statements-releases/2023/02/06/factsheet-update-on-the-u-s-strategy-for-addressing-theroot-causes-of-migration-in-central-america-2/ 

(economic challenges is one of the drivers of 

irregular migration); Diana Roy and Amelia 

Cheatham, Central America’s Turbulent Northern 

Triangle (July 13, 2023), Council on Foreign 

Relations, https://www.cfr.org/backgrounder/ 

central-americas-turbulent-northern-triangle 

(‘‘Many interrelated factors drive people from the 

Northern Triangle, including lack of economic 

opportunity. . . .’’). 

second half cap to the late second half 

cap. 

Response: The Departments again 

decline to roll over any unused visas. As 

explained in this and the prior TFR, 

calculating and administering a process 

to carry over unused visas would 

significantly increase operational 

burdens. Also, not permitting rollover 

from the allocation for nationals of 

certain countries into the returning 

worker allocation provides employers 

seeking to hire workers from these 

countries with more time to petition for, 

and bring in those workers and 

encourages full use of the 20,000 

allocation.55 This, in turn, contributes to 

the United States Government’s efforts 

to promote and improve safety, security 

and economic stability in these 

countries to help stem the flow of 

irregular migration to the United States. 

Further, DHS anticipates that the 

issuance of this rule early in the fiscal 

year, the fact that this is the fourth year 

that DHS will make a specific allocation 

available for workers from the Northern 

Central American countries and Haiti, 

as well as the inclusion of nationals 

from Ecuador, Colombia, and Costa 

Rica, will contribute to even greater 

utilization of available visas under this 

allocation during FY 2024 such that a 

rollover would not be beneficial or 

necessary. Similarly, it is the 

Departments’ expectation that there will 

be sufficient demand from employers 

with first half and early second half start 

dates to use the entirety of these 

allocations in FY 2024, rendering 

rollover unnecessary. 

With respect to the suggestion to roll 

over any supplemental visas that were 

‘‘used’’ but not issued by DOS, the 

Departments note that DHS already 

accounts for visa usage rates (among 

other factors) in its administration of the 

caps by using projections of the number 

of petitions necessary to achieve the 

numerical limit of approvals. See new 8 

CFR 214.2(h)(6)(xiv)(D). Further, any 

rollover process would be operationally 

burdensome as noted above. 

Comment: A commenter requested the 

Departments to prioritize the allocation 

of late second half visas to essential and 

critical infrastructure employers, 

including seafood processors, as 

designated by DHS. Another commenter 

similarly requested the Departments to 

prioritize critical and essential 

infrastructure seafood industry jobs. 

Response: The Departments decline 

the suggestion to prioritize certain 

industries or jobs in the allocation of 

supplemental cap visas. As noted in the 

FY 2023 TFR and this TFR, the 

Departments interpret the use of the 

phrase ‘‘the needs of American 

businesses’’ in the relevant statutory 

authority for the supplemental caps as 

providing discretion to identify the 

business needs that are most relevant, 

while bearing in mind the need to 

protect U.S. workers. The Departments 

have implemented the irreparable harm 

standard in order to prioritize the most 

pressing business needs. Prioritizing 

certain industries as ‘‘essential and 

critical,’’ separate from the irreparable 

harm consideration already in use, 

could also harm industries DHS does 

not designate as such. The Departments 

believe considering the irreparable harm 

to individual employers better addresses 

the needs of employers than designating 

entire industries for prioritization. In 

addition, the Departments do not 

believe such prioritization is necessary 

as the decision to provide a late second 

half allocation again for FY 2024 should 

provide some relief to seafood 

processors (one of the industries 

highlighted in the comments) and other 

similar companies facing a need for 

additional workers in the late second 

half. 

FY 23 Allocation for Nationals of El 

Salvador, Guatemala, Honduras, and 

Haiti 

Comment: Two commenters 

expressed general opposition to the 

allocation of supplemental visas for 

nationals of El Salvador, Guatemala, 

Honduras, and Haiti. These commenters 

opined that the H–2B program is not an 

appropriate strategy for addressing 

humanitarian needs and that the H–2B 

program would not provide permanent, 

durable solutions for these countries’ 

nationals. 

Response: The country-specific 

allocation within the H–2B program is 

an important part of the 

administration’s overall strategy to 

expand access to lawful pathways for 

individuals from these countries to stem 

irregular migration. These allocations 

are just one of the additional lawful 

pathways offered to these nationals and 

others, including new family 

reunification parole processes for 

certain nationals of El Salvador,56

Guatemala,57 Honduras,58 Colombia,59

and Ecuador,60 and modernized family 

reunification parole processes for 

certain nationals of Haiti 61 and Cuba.62

The root causes of migration from 

these regions are multifold. Political 

instability and insecurity, poverty and 

economic inequality, pervasive crime 

and corruption, and other factors all 

contribute to irregular migration.63 The 

diversity of the root causes of irregular 

migration requires a multi-pronged 

strategy, as employed by this 

administration, to address them. As 

such, this rule and the allocation for 

certain countries provide an additional 

lawful pathway for individuals seeking 

an economic opportunity in the United 

States who would eventually return to 

contribute to the development of their 

own community and country. However, 

the Departments recognize other 

programs and efforts are also needed to 


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64See 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. 

65USCIS, Uniting for Ukraine, https://

www.uscis.gov/ukraine; DHS, Fact Sheet: DHS 

Efforts to Assist Ukrainian Nationals, https://

www.dhs.gov/news/2022/03/31/fact-sheet-dhsefforts-assist-ukrainian-nationals (last visited Oct. 

31, 2023). 

66Ukraine was among the top ten H–2B visa 

issuance countries in FY 2022 and among the top 

five H–2B visa issuance countries in FY 2021 and 

FY 2020. See USCIS, Characteristics of H–2B 

Nonagricultural Temporary Workers Fiscal Year 

2022 Report to Congress, https://www.uscis.gov/ 

sites/default/files/document/data/USCIS_H2B_

FY22_Characteristics_Report.pdf (Feb. 14, 2023) 

(Ukrainian nationals were issued 1,085 H–2B visas 

in FY22); Characteristics of H–2B Nonagricultural 

Temporary Workers Fiscal Year 2021 Report to 

Congress, https://www.uscis.gov/sites/default/files/ 

document/reports/H-2B-FY21-CharacteristicsReport.pdf (Mar. 10, 2022) (Ukrainian nationals 

were issued 2,222 H–2B visas in FY21); 

Characteristics of H–2B Nonagricultural Temporary 

Workers Fiscal Year 2020 Report to Congress, 

https://www.uscis.gov/sites/default/files/document/ 

reports/H-2B-FY20-Characteristics-Report.pdf (Feb. 

22, 2021) (Ukrainian nationals were issued 1,585 

H–2B visas in FY20). 

67USCIS, Annual Statistical Report FY 2022, 

https://www.uscis.gov/sites/default/files/document/ 

reports/FY2022_Annual_Statistical_Report.pdf. 

Since FY 2008, DOL continues to publish selected 

statistical factsheets and individual TLC case record 

data cumulated on a quarterly and annual basis 

useful to a wide range of stakeholders and the 

general public at https://www.dol.gov/agencies/eta/ 

foreign-labor/performance. 

68USCIS, H–2B Employer Data Hub, https://

www.uscis.gov/tools/reports-and-studies/h-2bemployer-data-hub (last visited Oct. 17, 2023). The 

data in the H–2B Employer Data Hub comes from 

fields on an employer’s Form I–129, from USCIS’ 

adjudicative decisions, and from the DOL H–2B 

Application for Temporary Employment 

Certification (Form ETA–9142B). USCIS, 

Understanding our H–2B Employer Data Hub, 

https://www.uscis.gov/tools/reports-and-studies/h2b-employer-data-hub/understanding-our-h-2bemployer-data-hub (last visited Oct. 17, 2023). 

69See The White House, Strengthening 

Protections for H–2B Temporary Workers, Report of 

the H–2B Worker Protection Taskforce, https://

www.whitehouse.gov/wp-content/uploads/2023/10/ 

Final-H-2B-Worker-Protection-Taskforce-Report.pdf 

(Oct. 19, 2023). 

70USCIS, Characteristics of H–2B Nonagricultural 

Temporary Workers Fiscal Year 2022 Report to 

Congress, https://www.uscis.gov/sites/default/files/ 

document/data/USCIS_H2B_FY22_Characteristics_

Report.pdf (Feb. 14, 2023). 

address other drivers to irregular 

migration. 

Comment: A commenter stated that 

the allocation of supplemental visas for 

nationals of El Salvador, Guatemala, 

Honduras, and Haiti was too high for H– 

2B employers to take full advantage of 

this set aside. The commenter stated 

that visa processing times in those 

countries cause employers to fear that 

they will not be able to obtain H–2B 

workers from these countries efficiently. 

Response: The Departments disagree 

that the 20,000 allocation for nationals 

of El Salvador, Guatemala, Honduras, 

and Haiti was too high. The 

Departments have again decided to set 

aside 20,000 supplemental visas for 

nationals of certain countries and 

believe all 20,000 visas will be utilized 

in FY 2024 for the following reasons. 

First, H–2B visa issuance growth data 

for nationals of these countries for the 

past several years supports the 

Departments’ decision. Under the 

dedicated allocations in prior TFRs, H– 

2B visas were issued to 3,079 out of 

6,000 authorized for nationals of 

Northern Central America under the FY 

2021 TFR; 9,886 out of 11,500 

authorized for nationals of Northern 

Central America and Haiti under the 

two FY 2022 TFRs; and 16,713 out of 

20,000 authorized for nationals of 

Northern Central America and Haiti 

under the FY 2023 TFR.64 These 

numbers show a steady increase in 

utilization over time. In addition, the 

issuance of this rule early in the fiscal 

year and the fact that this is the fourth 

year that DHS will make a specific 

allocation available for workers from the 

Northern Central American countries 

and Haiti, as well as the inclusion of 

nationals from Colombia, Ecuador, and 

Costa Rica, will increase the likelihood 

that all 20,000 set-aside visas for FY 

2024 will be used. 

Comment: A commenter requested 

including nationals of Ukraine in the 

same priority allocation as nationals of 

El Salvador, Guatemala, Honduras, and 

Haiti. 

Response: The Departments thank the 

commenter but will decline this 

suggestion. While DHS is committed to 

providing support to Ukrainian 

nationals, the allocation for Northern 

Central American/Haitian nationals was 

intended to support the administration’s 

efforts to reduce irregular migration and 

expand lawful pathways from across the 

Western Hemisphere, and the 

Departments are making a similar 

separate allocation for nationals of 

specified countries this year for the 

same reasons. DHS continues to support 

Ukrainian nationals through other 

processes, such as Uniting for 

Ukraine.65 The Departments further 

note that, historically, Ukrainian 

nationals have received relatively high 

numbers of H–2B visas compared to 

nationals of other countries.66 Including 

Ukrainian nationals in the 20,000 

allocation would take away from the 

number of supplemental visas available 

to help achieve the administration’s 

overall goal of expanding lawful 

pathways from the Americas. 

Data Transparency 

Comment: Several commenters 

requested the Departments disclose 

more data about the H–2B program. 

Specifically, commenters requested that 

DHS post ‘‘close to real time’’ data about 

jobs for which employers are seeking H– 

2B workers including the employer 

name, wages and working conditions 

and dates of need; provide more 

information through the USCIS H–2B 

Employer Data Hub including 

information on cap-exempt petitions; 

and provide additional information on 

usage of the allocation for Northern 

Central American and Haitian nationals, 

including the number of visas that were 

issued to nationals from each country, 

as well as which industries, employers 

and recruiters were involved. With 

regard to suggestions for DOL, 

commenters recommended enhancing 

the seasonaljobs.gov website’s utility, 

including by ensuring that workers 

know in real time when an employer is 

actively hiring. 

Response: The Departments 

appreciate these comments and note 

that transparency and access to data and 

information continue to be among our 

priorities.67 DHS/USCIS has sought to 

increase transparency in employmentbased visa programs, including through 

the USCIS H–2B Employer Data Hub 

which provides detailed information on 

H–2B petitions including employer 

name, state, worksite state, industry, 

occupation, and wage levels.68 Notably, 

the goal of improving data transparency 

is among the objectives included in a 

recently published report by the H–2B 

Worker Protection Taskforce.69

Specifically, one of the action items 

described in the report is the leveraging 

of existing data to increase transparency 

and reduce the vulnerability of H–2B 

and H–2A workers, including by 

improving interagency data sharing; 

improving publicly available data to 

inform outreach and advocacy efforts, 

including through new anonymized 

quarterly data reports and on DHS’s H– 

2B Data Hub; and by publishing 

anonymized, aggregated data by gender, 

sector, and occupation to provide an 

additional transparency to the H–2 

programs and aid efforts to prevent 

gender discrimination. 

In addition, USCIS included some 

data about visas allocated under the FY 

2022 allocation for nationals of 

Northern Central American countries 

and Haiti in its most recent report to 

Congress (which is available to the 

public) about characteristics of the H– 

2B program.70 The Departments will 

consider the suggestions provided by 

these commenters as they seek to 

improve clarity and transparency of data 

for the public. However, the 

Departments believe that many of the 


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71The Departments are retaining the attestation 

form requirement, and the total time burden for the 

FY 2024 attestation form, ETA–9142–B–CAA–8, 

remains 1 hour. 

suggestions, as well as other data 

enhancements, can be accomplished 

outside of the regulatory process. 

Therefore, DHS declines to adopt these 

suggestions as part of this temporary 

final rule. 

Irreparable Harm Standard 

Comment: Two commenters 

expressed concerns related to the 

irreparable harm standard as articulated. 

One commenter stated that the standard 

is unclear, overly burdensome, applied 

inconsistently by the Departments, and 

disruptive to business operations. The 

commenter felt that, if the standard is 

retained, the Departments should 

provide clearer guidance on what 

specific documents are required and 

sufficient, and recommended that the 

Departments issue step-by-step 

instructions for participating in the 

program to assist employers with 

understanding their obligations and 

reducing the risk of noncompliance. 

Response: As discussed in greater 

detail below, because the authority to 

increase the statutory cap is tied to the 

needs of businesses, the Departments 

think it is reasonable for employers to 

attest that they are suffering irreparable 

harm or that they will suffer impending 

irreparable harm without the ability to 

employ all of the H–2B workers 

requested on their petition and to retain 

and be able to produce (upon request) 

documentation of that harm as well as 

a statement describing the harm and 

explaining the relevance of the 

documentation. The Departments also 

think that the standard is sufficiently 

clear to allow compliance, and that 

listing out specific documents that must 

be provided in each case is not an 

appropriate approach. Each 

determination of irreparable harm is 

made on a case-by-case basis. This 

inherently means that some 

documentation presented in one case 

may not be sufficient in another case 

presenting a different set of facts. In 

addition, not listing specific documents 

provides more flexibility for employers 

across occupations and industries to 

provide documentation that is relevant 

to their types of businesses. 

Recruitment Requirements 

Comment: One commenter stated that 

the additional recruitment requirements 

included in the TFR create an undue 

burden for participating employers. 

Specifically, the commenter stated that 

the requirement to provide a copy of the 

job notice to the AFL–CIO is 

unnecessary, and ‘‘purely duplicative, 

given the steps already required of 

petitioners to recruit U.S. workers.’’ The 

commenter also asserted that the 

requirement failed to acknowledge the 

rate at which workers are unionized, 

noting the low rate of unionization in 

the residential construction industry, 

and suggested that in some areas 

alternative organizations—such as state 

and local trade associations or 

workforce boards—may be better 

positioned to conduct recruitment 

efforts in place of the AFL–CIO. 

Response: As discussed in the FY 

2023 TFR and below, while the 

Departments recognize that the 

recruitment requirements create some 

burden on employers, the Departments 

believe they are necessary to ensure that 

the employer’s recruitment has not 

become stale and that there are no U.S. 

workers available for the relevant job 

opportunity. The Departments reiterate 

that the additional recruitment 

requirements are only applicable if an 

employer files their I–129 petition 30 or 

more days after their certified start dates 

of work. The Departments, as discussed 

in the FY 2023 TFR and below, believe 

that the requirement to provide a copy 

of the job notice to the AFL–CIO is 

complementary to, rather than 

duplicative of, the other recruitment 

requirements for several reasons. For 

example, the Departments explained in 

the prior TFR that the State Federations 

of Labor and local unions to which 

SWAs would circulate relevant job 

orders, based on their knowledge of the 

local labor market, are composed of 

various union organizations and may 

not always include the AFL–CIO. At the 

same time, the requirement to contact 

the AFL–CIO increases outreach to 

qualified U.S. workers as H–2B job 

opportunities in traditionally or 

customarily unionized occupations tend 

to fall within those industries most 

likely to be organized or represented by 

AFL–CIO member unions. See 87 FR 

76816, 76844–45. The Departments 

disagree that they have not taken the 

rate of unionization into account as the 

Departments previously provided, and 

will continue to provide, a list of 

occupations that they believe are 

typically or customarily unionized. See, 

e.g., 87 FR 76816, 76844 n.145 (noting 

the occupations or industries listed are 

ones in which the Department has 

typically observed substantial union 

presence). Finally, the Departments 

agree that other organizations in 

addition to the AFL–CIO are well 

positioned to assist employers with 

recruitment activities as demonstrated 

by the requirement to post a new job 

order with the SWA and to engage with 

the local AJC to assist with recruitment. 

Attestation Form 

Comment: One commenter stated that 

the attestation form that is required ‘‘to 

demonstrate irreparable harm’’ under 

the TFR is ‘‘overly burdensome and may 

discourage employer participation when 

noncitizen workers are needed to 

address labor shortages,’’ and urged the 

Departments to exclude the attestation 

form from subsequent rulemakings. The 

commenter indicated the Departments 

should recognize that a petitioner’s 

investment of resources into seeking a 

TLC and filing Form I–129 with 

accompanying documentation shows 

‘‘the implied need for H–2B workers.’’ 

Response: The Departments disagree 

with this comment. The attestation form 

contains information needed to 

establish eligibility for supplemental H– 

2B visas that is not captured on other 

forms. It also contains information that 

the Departments need to properly 

administer the allocations under this 

rule. For example, among other things, 

the petitioner must indicate which 

allocation they are requesting workers 

under, attest that they are suffering or 

will suffer impending irreparable harm 

and indicate the types of evidence that 

they have retained to demonstrate 

irreparable harm. The Departments 

believe that the additional attestation is 

the least burdensome way to collect 

information needed to establish 

eligibility and to properly administer 

the supplemental visa allocations. The 

Departments also disagree that the 

attestation form is overly burdensome as 

DOL estimated that the total time 

burden for the ETA–9142–B–CAA–7 is 

1 hour.71 It is unlikely that an employer 

would be discouraged from seeking H– 

2B workers because of this 1 hour 

burden, especially if the employer is 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ those workers. 

Legal Issues 

Comment: One commenter stated that 

DHS violated the National 

Environmental Policy Act (NEPA) by 

failing to provide any analysis to justify 

its assertion that adding up to 64,716 

visas would not result in ‘‘meaningful, 

calculable change in environment 

effect,’’ or to justify its conclusion that 

the FY 2023 TFR therefore fits within a 

categorical exclusion. 

Response: The Departments disagree 

with the commenter regarding the 

sufficiency of the NEPA analysis in the 

FY 2023 TFR. As explained in the FY 


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72Exercise 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, 76842–47 (Dec. 

15, 2022). 

73See above comment and response under the 

heading ‘‘Data Transparency’’ for further discussion 

on this topic. 

2023 TFR, an additional 64,716 H–2B 

nonimmigrant visas will not result in 

any meaningful, calculable change in 

environmental effect with respect to the 

current H–2B limit or in the context of 

a current U.S. population exceeding 

331,893,745, which represents a 

maximum temporary increase of 0.0195 

percent. As further explained, the FY 

2023 TFR is a stand-alone temporary 

authorization and not a part of any 

larger action and presents no 

extraordinary circumstances creating 

the potential for significant 

environmental effects. 

Comment: While a commenter agreed 

with DHS that there was good cause to 

immediately increase the cap, the 

commenter opined that there was not 

good cause for the other ‘‘ancillary 

policy provisions,’’ particularly the 

requirement to ‘‘affirmatively contact’’ 

the nearest AFL–CIO office and provide 

written notice of the job order placed 

with the SWA when the employment is 

in a traditionally or customarily 

unionized occupation or industry. 

Accordingly, the commenter urged the 

Departments to reissue the FY 2023 TFR 

as two separate rules, a final rule to 

release the supplemental visas and a 

proposed rule that contains the other 

provisions. 

Response: The Departments maintain 

there was good cause to couple the 

release of supplemental visas with 

additional provisions, such as the 

additional recruitment requirements, in 

a temporary final rule. The Departments 

provided their rationale for the 

recruitment requirements in the FY 

2023 TFR72 and articulated sufficient 

good cause to forgo notice and comment 

rulemaking for all aspects of the 

temporary final rule. As indicated in the 

FY 2023 temporary final rule, the 

duration of the authorization to make 

supplemental cap visas available, 

combined with the urgent need of 

American businesses for H–2B workers 

did not provide sufficient time to 

conduct pre-promulgation notice and 

comment rulemaking on any aspect of 

the TFRs, including additional 

recruitment requirements. 

Suggestions Outside the Departments’ 

Authority 

Comment: Two commenters urged the 

administration to consider an 

‘‘Alternative Model for Labor 

Migration’’ that would give workers in 

the H–2B visa program, and more 

broadly in all work visa programs, more 

control over their visas by allowing 

them to self-petition and be matched 

with employers via a government 

database, and would enable workers to 

petition for citizenship. The 

commenters set forth a detailed plan 

regarding how the model would 

function, including specific DOL and 

USCIS procedures, and they provided 

an analysis of the benefits of the 

alternative model relative to the current 

program. 

The commenters asserted that the 

supplemental cap TFR represents an 

opportunity for the Departments to 

‘‘partially implement’’ the model 

described. Specifically, the commenters 

suggested that the Departments could 

implement a lottery open to all 

returning workers by which they could 

apply to be assigned a priority ranking. 

Employers approved through the TLC 

and petition processes would be 

required to post the number of open H– 

2B positions and procedures for 

applying publicly on 

seasonaljobs.dol.gov, and any returning 

H–2B worker would be eligible to apply 

directly to the employer or the 

employer’s designated agent. If the 

applications from returning H–2B 

workers exceeded the vacancies, 

workers’ priority would be based on 

their assigned lottery rank. 

Response: As implicitly 

acknowledged by the commenters in 

their suggestions that the proposed 

model could be ‘‘partially’’ 

implemented by regulation, many 

aspects of the commenters’ proposed 

‘‘Alternative Model for Labor 

Migration,’’ such as enabling workers to 

self-petition and to pursue citizenship, 

are clearly outside the Departments 

authority under the current statutory 

scheme. It is unclear whether the 

Departments have authority to 

otherwise ‘‘partially implement’’ the 

model as suggested. Regardless, even 

assuming such authority, the 

Departments note that the proposal 

would not be feasible in the context of 

a temporary and time-limited statutory 

authority and rule such as the current 

TFR, due to the level of changes to 

existing processes and the development 

of new systems and processes that 

would be required for implementation. 

Broader Program Reforms 

Some commenters made suggestions 

for broader program reforms that would 

require Congressional action. For 

example, commenters made suggestions 

relating to permanently increasing the 

H–2B annual statutory cap, exempting 

certain workers from that cap, and 

increasing funding for DOL’s H–2B 

enforcement. However, the Departments 

decline to further detail and respond to 

these comments, as the 

recommendations are all outside of the 

Departments’ authority to accomplish. 

In addition to the issues discussed 

above, the public comments included 

numerous suggestions for the 

Departments to make permanent 

changes to the H–2B program, with 

several commenters expressing that the 

Departments should not exercise their 

authority to increase the number of H– 

2B visas unless and until the program is 

more broadly reformed. The 

recommendations for permanent 

program reforms included suggestions 

for both DHS and DOL regarding ways 

to increase protections for both foreign 

and U.S. workers, and to improve the 

overall integrity and efficiency of the 

program. Specifically, commenters 

suggested that one or both Departments 

should implement the following 

changes to the H–2B program before or 

instead of authorizing supplemental 

visas: 

• Provide a grace period with 

employment authorization so workers 

can leave employers for any reason; 

• Notify beneficiaries about their own 

immigration status; 

• Provide workers access to 

information about their rights and about 

available resources to enforce those 

rights; 

• Improve access to deferred action 

for H–2 workers who experience or 

witness labor rights violations, 

including an expedited process for 

issuance of statements of interest from 

government entities; 

• Fully implement the existing 

provision at 8 CFR 214.2(h)(17)(iii) to 

protect workers who leave abusive 

employers from accruing unlawful 

presence; 

• Do more to prevent discrimination 

and discriminatory hiring practices in 

the H–2B program; 

• Collect and release more and better 

data about the H–2B program; 73

• Provide increased real-time 

information about available job 

opportunities; 

• Require employers to give priority 

to anyone in the U.S. with employment 

authorization (including ‘‘individuals 

with unexpired valid H–2B visas’’) for 

any open unfilled position for which an 

employer sought or obtained H–2B labor 

certification; 

• Prioritize petitions for industries 

with the lowest unemployment rate(s) 

instead of using a lottery system; 


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74These recommendations were specifically for 

USCIS, however, the Departments note that visas 

are issued by the Department of State. 

75 Modernizing H–2 Program Requirements, 

Oversight, and Worker Protections, 88 FR 65040 

(Sep. 20, 2023). 

76See DHS, DHS to Supplement H–2B Cap with 

Nearly 65,000 Additional Visas for Fiscal Year 2023 

(Oct. 12, 2022), https://www.dhs.gov/news/2022/10/ 

12/dhs-supplement-h-2b-cap-nearly-65000- 

additional-visas-fiscal-year-2023 (announcing the 

creation of the H–2B Worker Protection Taskforce). 

77See The White House, Strengthening 

Protections for H–2B Temporary Workers, Report of 

the H–2B Worker Protection Taskforce, https://

www.whitehouse.gov/wp-content/uploads/2023/10/ 

Final-H-2B-Worker-Protection-Taskforce-Report.pdf 

(Oct. 19, 2023). 

• Allocate visas to employers who 

pay the highest wages instead of using 

a random lottery system; 

• Do not issue H–2B visas to 

employers who are engaged in labor 

disputes, and only issue visas to direct 

employers and end outsourcing and 

labor contractors; 74

• Grant work authorization to spouses 

of H–2 nonimmigrants; 

• Impose greater employer 

accountability for actions of contractors, 

recruiters, and agents; 

• Seek ways to enforce the ban on 

recruitment fees without penalizing 

workers; 

• Allow H–2B workers to pursue 

permanent labor certification or ‘‘other 

applications for permanent residence;’’ 

• Prohibit the imposition of 

unnecessary requirements for entrylevel positions; 

• Improve health and safety standards 

at H–2B workplaces; 

• Require employers to undertake 

both local and national recruitment 

efforts before looking abroad; 

• Require employers to pay for 

housing and daily transportation to and 

from the worksite for both U.S. and H– 

2B workers; 

• Require full contract compliance, 

including all hours promised; 

• Cease issuance of H–2B labor 

certifications for work in certain areas, 

such as ‘‘labor surplus areas or 

occupations’’ or ‘‘high unemployment 

regions and industries;’’ 

• Create a streamlined process for 

reporting program violations; 

• Create an avenue for stakeholders, 

including U.S. workers, to raise 

concerns about job orders and labor 

certifications; 

• Reinstate the Interagency Working 

Group for the Consistent Enforcement of 

Federal Labor, Employment and 

Immigration Laws to strengthen 

deconfliction efforts between key 

agencies and support affirmative 

protections for immigrant and 

nonimmigrant workers; 

• Create a civil society advisory group 

to promote decent work in the Central 

American regional strategy; 

• Update the H–2B prevailing wage 

methodology in various ways; 

• Implement the additional U.S. 

recruitment requirements; 

• Improve language access for 

workers; 

• Keep job postings active until all 

positions are actually filled, and require 

employers to update the job postings 

with new information; 

• Keep labor violators out of the 

program, including by creating an 

employer screening and/or registration 

program; 

• Establish a formal registration 

process for international recruiters, as 

well as U.S. agents; 

• Require employers to disclose every 

person authorized to engage in 

recruitment on their behalf; 

• Work with Department of State to 

enhance consulates’ H–2B job 

verification services by verifying 

recruiters associated with the job order; 

• Increase enforcement in various 

ways, such as by debarring all recruiters 

that engage in any prohibited practice, 

creating stiffer penalties for employer 

violations, and/or instituting processing 

fees at sufficient levels to fund robust 

enforcement; 

• Change the visa allocation 

procedures for the statutory 66,000 cap, 

including allocation in 4 different 

increments, and using less than 33,000 

visas during the first half of the fiscal 

year; 

• Modify the current process for 

randomizing H–2B TLC applications in 

such a manner as to give H–2B 

employers opportunities to participate 

without regard to the date specified as 

the first date for employment; 

• Reduce the period a worker is 

required to be outside the United States 

following 3 years in H–2B status to 60 

days; 

• Provide notice of seasonal job 

openings to unions representing 

workers in relevant occupations so that 

they may dispatch members in 

response; 

• Limit the duration of H–2B eligible 

job orders to 7 months; 

• Cap at 100 the number of visas that 

any single employer can receive; 

The permanent changes to the H–2B 

program that commenters have 

suggested are not appropriate for 

inclusion in a rule of temporary 

duration such as the current TFR, and 

the Departments therefore decline to 

discuss each of these suggestions with 

further specificity. The Departments 

appreciate the thoughtful 

recommendations for permanent 

program reforms, however, and note 

that they are actively engaged in reform 

efforts outside of this rulemaking, 

including efforts to address some of the 

issues discussed in the suggestions. 

Notably, on September 20, 2023, DHS 

published a notice of proposed 

rulemaking (NPRM) to modernize and 

improve both the H–2B and H–2A 

programs by providing greater flexibility 

and protections for participating 

workers, and improving the program’s 

efficiency.75 The NPRM contains 

discussions and proposals related to 

some of the reform concepts included in 

the commenters’ suggestions including, 

for example, providing grace periods 

during which an H–2 worker can leave 

work to seek new employment, ensuring 

greater accountability for employers and 

recruiters with past violations, reducing 

the required amount of time to be spent 

outside the United States after reaching 

3 years in H–2B status, and allowing 

workers to take steps toward permanent 

residence without violating their 

nonimmigrant status on that basis. DHS 

is currently accepting public comments 

specific to the NPRM through November 

20, 2023, and will consider all such 

comments in developing a subsequent 

final rule. In addition, both Departments 

are involved in an H–2B Worker 

Protection Taskforce, convened by the 

White House, which focuses on threats 

to H–2B program integrity, H–2B 

workers’ fundamental vulnerabilities, 

and the impermissible use of the 

program to avoid hiring U.S. workers.76

On October 19, 2023, the H–2B Worker 

Protection Taskforce published a report 

announcing new actions to be taken by 

four federal agencies—DHS, DOL, DOS, 

and the U.S. Agency for International 

Development (USAID)— to strengthen 

protections for vulnerable workers.77

With regard to commenters’ specific 

recommendation that the Departments 

decline to provide supplemental H–2B 

visas unless and until the program is 

broadly reformed, the Departments 

disagree with that recommendation. 

While permanent reforms to the relevant 

DHS regulations are being considered 

outside of this rulemaking as noted 

above, the Departments have 

determined, as discussed in greater 

detail below, that an increase in H–2B 

visas for businesses facing irreparable 

harm is warranted and justified under 

the authority provided in section 303 of 

the FY 2023 Omnibus, as extended by 

Public Law 118–15. 


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78These conditions and limitations are not 

inconsistent with sections 214(g)(3) (‘‘first in, first 

out’’ H–2B processing) and (g)(10) (fiscal year H– 

2B allocations) because noncitizens covered by the 

special allocation under section 303 of the FY 2023 

Omnibus are not ‘‘subject to the numerical 

limitations of [section 214(g)(1)].’’ See, e.g., INA 

section 214(g)(3); INA section 214(g)(10); 

Continuing Appropriations Act, 2024, div. A, sec. 

101(6) (extending the authority provided in FY 

2023 Omnibus div. O, sec. 303 (‘‘Notwithstanding 

the numerical limitation set forth in section 

214(g)(1)(B) of the [INA] . . . .’’)). 

79The White House, Los Angeles Declaration on 

Migration and Protection, June 10, 2022, https://

www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/. 

80Trilateral Joint Statement, April 11, 2023, 

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

81The 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-statementfrom-the-united-states-and-guatemala-onmigration/; 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-jointcommitment-to-address-the-hemispheric-challengeof-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/statementsreleases/2023/06/11/readout-of-principal-deputynational-security-advisor-jon-finers-meeting-withcolombian-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-toaddress-the-hemispheric-challenge-of-irregularmigration/; 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%20

is%20pleased,authorized%20

channels%20of%20lawful%20migration. 

82See 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. 

83See 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/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-and-foreign-partner-deliverables/ 

(addressing several measures, including the H–2B 

allocation for nationals of Haiti, as part of ‘‘the 

President’s commitment to support the people of 

Haiti.’’). We also note Congress’ recent statement, in 

a provision within the FY 2022 Omnibus, that it is 

the policy of the United States to support the 

sustainable rebuilding and development of Haiti. 

See Section 102 of Division V of the Consolidated 

Appropriations Act, 2022, Public Law 117–103. See 

also DHS, Identification of Foreign Countries Whose 

Nationals Are Eligible To Participate in the H–2A 

and H–2B Nonimmigrant Worker Programs, 86 FR 

62562 (Nov. 10, 2021) (sustainable development 

and the stability of Haiti is vital to the interests of 

the United States as a close partner and neighbor). 

III. Discussion 

A. Statutory Determination 

Following consultation with the 

Secretary of Labor, the Secretary of 

Homeland Security has determined that 

some U.S. employers cannot satisfy 

their needs in FY 2024 with U.S. 

workers who are willing, qualified, and 

able to perform temporary 

nonagricultural labor. In accordance 

with the FY 2024 continuing resolution 

extending the authority provided in 

section 303 of the FY 2023 Omnibus, 

the Secretary of Homeland Security has 

determined that it is appropriate, for the 

reasons stated below, to raise the 

numerical limitation on H–2B 

nonimmigrant visas through the end of 

FY 2024 by up to 64,716 additional 

visas for those American businesses that 

attest that they are suffering irreparable 

harm or will suffer impending 

irreparable harm, in other words, a 

permanent and severe financial loss, 

without the ability to employ all of the 

H–2B workers requested on their 

petition. These businesses must retain 

documentation, as described below, 

supporting this attestation. 

As in connection with the FY 2021, 

FY 2022, and FY 2023 H–2B 

supplemental visa temporary final rules, 

and consistent with existing authority, 

DHS and DOL intend to conduct a 

significant number of audits with 

respect to petitions filed under this TFR 

requesting supplemental H–2B visas 

during the period of temporary need. 

The Departments will use their 

discretion to select which petitions to 

audit, and the Departments will use the 

audits to verify compliance with H–2B 

program requirements, including the 

irreparable harm standard as well as 

other key worker protection provisions 

implemented through this rule. If the 

Departments find that an employer’s 

documentation does not meet the 

irreparable harm standard, or that the 

employer fails to provide evidence 

demonstrating irreparable harm or 

comply with the audit process, the 

Departments may consider it to be a 

substantial violation resulting in an 

adverse agency action against the 

employer, including revocation of the 

petition and/or TLC or program 

debarment. Of the audits completed so 

far, some audits conducted of employers 

that received visas under the 

supplemental caps in FY 2021, FY 2022, 

and FY 2023 revealed concerns 

surrounding payment of the promised 

wage, employment of returning workers, 

documentation of irreparable harm, and 

employment at the listed location, 

which may warrant further review and 

action. 

As he did in FY 2021, FY 2022, and 

FY 2023, the Secretary of Homeland 

Security has also again determined, 

following consultation with the 

Secretary of Labor, that for certain 

employers, additional recruitment steps 

are necessary to confirm that there are 

no qualified U.S. workers available for 

the positions. In addition, the Secretary 

of Homeland Security has determined, 

following consultation with the 

Secretary of Labor, that the 

supplemental visas will be limited to 

returning workers, with the exception 

that up to 20,000 of the 64,716 visas will 

be exempt from the returning worker 

requirement and will be reserved for H– 

2B workers who are nationals of El 

Salvador, Guatemala, Honduras, Haiti, 

Colombia, Ecuador, and Costa Rica.78

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),79 joining the United 

States to ramp up efforts to address the 

irregular migration flows through the 

Darien,80 and hosting Safe Mobility 

Offices so that migrants do not trek 

north to the U.S. Southwest Border.81

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.82 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.83

DHS observed robust employer 

interest in response to the FY 2021 H– 

2B supplemental visa allocation for 

Salvadoran, Guatemalan, and Honduran 

nationals and the FY 2022 and FY 2023 

supplemental visa allocations for 

Salvadoran, Guatemalan, Honduran, 

and Haitian nationals, with USCIS 


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84While USCIS approved a greater number of 

beneficiaries from the Northern Central American 

countries than the 6,000 visas allocated under the 

FY 2021 supplemental cap for those countries, the 

Department of State issued 3,079 visas to nationals 

from those countries. See DHS, USCIS, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data, queried 10/2023, TRK 13122, 

H–2B Visa Issuance Report September 30, 2023. 

This discrepancy can be attributed to adverse 

impacts on consular processing caused by the 

COVID–19 pandemic, travel restrictions, as well as 

lack of readily available processes to efficiently 

match workers from Northern Central American 

countries with U.S. recruiters/employers on an 

expedited timeline. 

85See 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. 

86See DHS, USCIS, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, 

queried 10/2023, TRK 13122, H–2B Visa Issuance 

Report September 30, 2023. While USCIS approved 

a greater number of beneficiaries from the Northern 

Central American countries and Haiti than the 

11,500 visas allocated under the FY 2022 second 

half supplemental cap for those countries, the 

Department of State issued approximately 7,405 

visas to nationals from those countries. Similarly, 

while USCIS approved a greater number of 

beneficiaries from the Northern Central American 

countries and Haiti than the 20,000 visas allocated 

under the FY 2023 supplemental cap for those 

countries, the Department of State issued 

approximately 16,713 visas to nationals from those 

countries. DHS anticipates that the issuance of this 

rule early in the fiscal year, the fact that this is the 

fourth year that DHS will make a specific allocation 

available for workers from the Northern Central 

American countries, as well as the inclusion of 

nationals from several additional countries, will 

contribute to even greater utilization of available 

visas under this allocation during FY 2024. 

87See, e.g., USAID, Administrator Samantha 

Power at the Summit of the Americas Fair 

Recruitment and H–2 Visa Side Event, https://

www.usaid.gov/news-information/speeches/jun-9– 

2022-administrator-samantha-power-summitamericas-fair-recruitment-and-h-2-visa (June 9, 

2022) (‘‘Our combined efforts [with the labor 

ministries in Honduras and Guatemala, and the 

Foreign Ministry in El Salvador] . . . resulted in a 

record number of H–2 visas issued in 2021, 

including a nearly forty percent increase over the 

pre-pandemic levels in H–2B visas issued across all 

three countries.’’). 

88For purposes of this rule, these returning 

workers could have been H–2B cap exempt or 

extended H–2B status in FY 2021, 2022, or 2023. 

Additionally they may have been previously 

counted against the annual H–2B cap of 66,000 

visas during FY 2021, 2022, or 2023, or the 

supplemental caps in FY 2021, 2022, or 2023. 

89The returning worker allocations are for 

workers who were issued H–2B visas or held H–2B 

status in fiscal years 2021, 2022, or 2023, regardless 

of country of nationality. Therefore, a petitioner 

may choose to petition for Salvadoran, Guatemalan, 

Honduran, Haitian, Colombian, Ecuadorian, or 

Costa Rican nationals who meet this requirement 

under an available returning worker allocation, 

regardless of whether the separate 20,000 allocation 

for these nationals has been reached. 

90See the docket for this rulemaking for access to 

these letters. 91See the docket for this rulemaking for access to 

these letters. 92See the docket for this rulemaking for access to 

these comments. 

approving petitions on behalf of 6,805 

beneficiaries under the FY 2021 

allocation,84 3,231 beneficiaries under 

the FY 2022 first half supplemental 

allocation,85 12,318 beneficiaries for the 

second half of the fiscal year FY 2022, 

and 23,832 beneficiaries under the FY 

2023 allocation.86 In addition, DHS and 

the Biden administration have 

continued to conduct outreach efforts 

promoting the H–2B program as, among 

other things, a lawful pathway for 

nationals of El Salvador, Guatemala, 

Honduras, and Haiti to work in the 

United States.87

DHS will not accept and will reject 

petitions submitted for the countryspecific allocation with a date of need 

on or after April 1, 2024 that are 

received earlier than 15 days after the 

INA section 214(g) cap for the second 

half of FY 2024 is met or are received 

after the applicable numerical limitation 

has been reached or after September 16, 

2024. Requiring petitioners to wait to 

submit H–2B supplemental cap 

petitions with start dates of need on or 

after April 1, 2024 is consistent with the 

supplemental cap authority in section 

303, as extended to FY 2024 by Public 

Law 118–15, Continuing Appropriations 

Act, 2023 and Other Extensions Act, 

and will facilitate the orderly intake and 

processing of supplemental cap 

petitions for the country-specific 

allocation. As discussed above, similar 

limitations apply to the intake and 

processing of returning worker petitions 

with start dates of need on or after April 

1, 2024. 

Similar to the previous temporary 

final rules for the FY 2019, FY 2021, FY 

2022, and FY 2023 supplemental caps, 

the Secretary of Homeland Security has 

also determined to limit the 

supplemental visas to H–2B returning 

workers,88 unless the employer 

indicates on the new attestation form 

that it is requesting workers who are 

nationals of one of the specified 

countries and who are therefore counted 

towards the 20,000 country-specific 

allocation regardless of whether they are 

new or returning workers. If the 20,000 

country-specific allocation is reached 

and visas remain available under the 

returning worker cap, USCIS would 

reject a petition seeking workers under 

the 20,000 allocation and return any 

fees submitted to the petitioner. In such 

a case, a petitioner may continue to 

request workers who are nationals of 

one of these countries, but the petitioner 

must file a new Form I–129 petition, 

with fee, and attest that these 

noncitizens will be returning workers, 

in other words, workers who were 

issued H–2B visas or were otherwise 

granted H–2B status in FY 2021, 2022, 

or 2023.89 Like the temporary final rules 

for the first half and for the second half 

of FY 2022 and FY 2023, if the 20,000 

returning worker exemption cap for 

specific nationals remains unfilled, DHS 

will not make unfilled visas reserved for 

these nationals available to the general 

returning worker cap. The DHS decision 

not to make available unfilled visas 

from the country-specific allocation to 

the general supplemental cap for 

returning workers is consistent with the 

administration’s goal of providing a 

lawful pathway for such nationals to 

temporarily work in the United States. 

To that end, not permitting rollover into 

the returning worker allocation provides 

employers with more time to petition 

for, and bring in, workers from these 

countries and encourages full use of the 

20,000 country-specific allocation to 

meet employer needs. This, in turn, 

contributes to our country’s efforts to 

promote and improve safety, security 

and economic stability in these 

countries to help stem the flow of 

irregular migration to the United States. 

The Secretary of Homeland Security’s 

determination to increase the numerical 

limitation is based, in part, on the 

conclusion that some businesses are 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ all of the H–2B 

workers requested on their petition. In 

recent years, members of Congress have 

informed the Secretaries of Homeland 

Security and Labor about the needs of 

some U.S. businesses for H–2B workers 

(after the statutory cap for the relevant 

half of the fiscal year has been reached) 

and about the potentially negative 

impact on state and local economies if 

the cap is not increased.90 U.S. 

businesses, chambers of commerce, 

employer organizations, and state and 

local elected officials have also 

expressed concerns in recent years to 

the DHS and Labor Secretaries regarding 

the unavailability of H–2B visas after 

the statutory cap was reached.91 In 

addition, several commenters on the FY 

2023 TFR supported the Departments’ 

decision to publish one rule covering 

the entire fiscal year for 2023, and urged 

the Departments to once again publish 

one rule covering the entire fiscal year 

for 2024 in order to save time in the 

second half of the fiscal year, conserve 

limited agency resources, and reduce 

uncertainty for employers.92

After considering the full range of 

evidence and diverse points of view, the 

Secretary of Homeland Security has 

deemed it appropriate to take action to 

prevent further severe and permanent 

financial loss for those employers 

currently suffering irreparable harm and 

to avoid impending irreparable harm for 

other employers unable to obtain H–2B 


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93See, e.g., Impacts of the H–2B Visa Program for 

Seasonal Workers on Maryland’s Seafood Industry 

and Economy, Maryland Department of Agriculture 

Seafood Marketing Program and Chesapeake Bay 

Seafood Industry Association (March 2, 2020), 

available at https://mda.maryland.gov/documents/ 

2020–H2B-Impact-Study.pdf (last visited Sept. 29, 

2023); Hospitality Employment Rose in May, But 

Hoteliers Report Lingering Labor Woes, Hotel Dive 

(Jun. 7, 2023), https://www.hoteldive.com/news/ 

hotel-employment-labor-shortage-increased-wage/ 

652308/(last visited Oct. 2, 2023). 

94 In contrast with section 214(g)(1) of the INA, 

8 U.S.C. 1184(g)(1), which establishes a cap on the 

number of individuals who may be issued visas or 

otherwise provided H–2B status (emphasis added), 

and section 214(g)(10) of the INA, 8 U.S.C. 

1184(g)(10), which imposes a first half of the fiscal 

year cap on H–2B issuance with respect to the 

number of individuals who may be issued visas or 

are accorded [H–2B] status’’ (emphasis added), 

section 303 only authorizes DHS to increase the 

number of available H–2B visas. Accordingly, DHS 

will not permit individuals authorized for H–2B 

status pursuant to an H–2B petition approved under 

section 303 to change to H–2B status from another 

nonimmigrant status. See INA section 248, 8 U.S.C. 

1258; see also 8 CFR part 248. If a petitioner files 

a petition seeking H–2B workers in accordance with 

this rule and requests a change of status on behalf 

of someone in the United States, the change of 

status request will be denied, but the petition will 

be adjudicated in accordance with applicable DHS 

regulations. Any noncitizen authorized for H–2B 

status under the approved petition would need to 

obtain the necessary H–2B visa at a consular post 

abroad and then seek admission to the United 

States in H–2B status at a port of entry. 

95 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). 

workers under the statutory cap, 

including potential wage and job losses 

by their U.S. workers, as well as other 

adverse downstream economic effects.93

At the same time, the Secretary of 

Homeland Security believes it is 

appropriate to condition receipt of 

supplemental visas on adherence to 

additional worker protections, as 

discussed below. 

The decision to afford the benefits of 

this temporary cap increase to U.S. 

businesses that need H–2B workers 

because they are suffering irreparable 

harm already or will suffer impending 

irreparable harm, and that will comply 

with additional worker protections, 

rather than applying the cap increase to 

any and all businesses seeking 

temporary workers, is consistent with 

DHS’s time-limited authority to increase 

the cap, as explained below. The 

Secretary of Homeland Security, in 

implementing section 303, as extended 

by Public Law 118–15, and determining 

the scope of any such increase, has 

broad discretion, following consultation 

with the Secretary of Labor, to identify 

the business needs that are most 

relevant, while bearing in mind the 

need to protect U.S. workers. Within 

that context, for the below reasons, the 

Secretary of Homeland Security has 

determined to allow an overall increase 

of up to 64,716 additional visas solely 

for the businesses facing permanent, 

severe financial loss or those who will 

face such loss in the near future. 

First, DHS interprets the reference to 

‘‘the needs of American businesses’’ in 

section 303, as extended by Public Law 

118–15, as describing a need different 

from the need ordinarily required of 

employers in petitioning for an H–2B 

worker. Under the generally applicable 

H–2B program, each individual H–2B 

employer must demonstrate that it has 

a temporary need for the services or 

labor for which it seeks to hire H–2B 

workers. See 8 CFR 214.2(h)(6)(ii); 20 

CFR 655.6. The use of the phrase ‘‘needs 

of American businesses,’’ which is not 

found in INA section 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b), or the regulations 

governing the standard H–2B cap, 

authorizes the Secretary of Homeland 

Security in allocating additional H–2B 

visas under section 303, as extended by 

Public Law 118–15, to require that 

employers establish a need above and 

beyond the normal standard under the 

H–2B program, that is, an inability to 

find sufficient qualified U.S. workers 

willing and available to perform 

temporary services or labor and that the 

employment of the H–2B worker will 

not adversely affect the wages and 

working conditions of U.S. workers, see 

8 CFR 214.2(h)(6)(i)(A). DOL concurs 

with this interpretation. Accordingly, 

the Secretaries have determined that it 

is appropriate, within the limits 

discussed below, to tailor the 

availability of this temporary cap 

increase to those businesses that are 

suffering irreparable harm or will suffer 

impending irreparable harm, in other 

words, those facing permanent and 

severe financial loss. 

Second, the approach set forth in this 

rule, which is similar to the 

implementation of the supplemental 

caps in previous fiscal years, provides 

protections against adverse effects on 

U.S. workers that may result from a cap 

increase, including, as in previous rules, 

requiring employers seeking H–2B 

workers under the supplemental cap to 

engage in additional recruitment efforts 

for U.S. workers. 

In sum, this rule increases the 

numerical limitation by up to 64,716 

additional H–2B visas for the entirety of 

FY 2024, but also restricts the 

availability of those additional visas by 

prioritizing only the most significant 

business needs, and limiting eligibility 

to H–2B returning workers, unless the 

worker is a national of one of the 

countries included in the 20,000 

country-specific allocation that is 

exempt from the returning worker 

limitation. This rule also distributes the 

supplemental visas in several 

allocations to assist U.S. businesses that 

need workers to begin work on different 

start dates. These provisions are each 

described in turn below. 

B. Numerical Increase and Allocations 

for Fiscal Year 2024 

Making the Maximum Number of Visas 

Available 

The increase of up to 64,716 visas will 

help address the urgent needs of eligible 

employers for additional H–2B workers 

for those employers with employment 

needs in fiscal year 2024.94 The 

determination to allow up to 64,716 

additional H–2B visas reflects a 

balancing of a number of factors 

including: the demand for H–2B visas 

during the first half of FY 2024 and 

expected demand for the second half of 

FY 2024; current labor market 

conditions; the general trend of 

increased demand for H–2B visas from 

FY 2017 to FY 2023; H–2B returning 

worker data; the amount of time for 

employers to hire and obtain H–2B 

workers in this fiscal year; and the 

objectives of E.O. 14010 and the L.A. 

Declaration. DHS believes the numerical 

increase both addresses the needs of 

U.S. businesses and, as explained in 

more detail below, furthers the foreign 

policy interests of the United States. 

Section 303 of the FY 2023 Omnibus, 

as extended by Public Law 118–15, sets 

the highest number of H–2B returning 

workers who were exempt from the cap 

in certain previous years as the 

maximum limit for any increase in the 

H–2B numerical limitation for FY 

2024.95 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 


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96USCIS 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. 

97On 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/capreached-for-additional-returning-worker-h-2b-visasfor-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-mayfile-h-2b-petitions-for-returning-workers-for-fy-2021 

(Jul. 23, 2021). 

98See 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. 

99See 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. 

100See USCIS, Cap Reached for Additional 

Returning Worker H–2B Visas for Second Half of FY 

2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022). 

101See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, C3 Consolidated, queried 

10/2023, TRK 13122. The number of approved 

workers exceeded the number of additional visas 

authorized for the second half of FY 2022 to allow 

for the possibility that some approved workers 

would either not seek a visa or admission, would 

not be issued a visa, or would not be admitted to 

the United States. 

102See 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-2bvisas-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/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2023 (Mar. 31, 2023). 

103See 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. 

104See 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-fy2024 (Oct. 13, 2023). 

additional H–2B visas to be made 

available for FY 2024, DHS considered 

this number, overall indications of 

increased need, and the availability of 

U.S. workers, as discussed below. On 

the basis of these considerations, DHS 

determined that it is appropriate to 

make available up to 64,716 additional 

visas, which is the maximum allowed, 

under the FY 2024 supplemental cap 

authority. The Secretary further 

considered the objectives of E.O. 14010 

and the L.A. Declaration, both of which 

focus in part on addressing the root 

causes of irregular migration and 

managing migration through lawful 

pathways. Accordingly, the Secretary 

determined that it is appropriate to 

reserve up to 20,000 of the up to 64,716 

additional visas and exempt this 

number from the returning worker 

requirement for nationals of El Salvador, 

Guatemala, Honduras, Haiti, Colombia, 

Ecuador, or Costa Rica. 

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.96 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.97 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.98

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.99 For the 

second half of FY 2022, within the first 

five business days of filing, USCIS 

received petitions for more beneficiaries 

than the additional 23,500 supplemental 

visas made available for returning 

workers, thus necessitating a random 

selection of petitions to meet the 

returning worker allotment.100 Of the 

petitions received for the second half of 

FY 2022, USCIS issued approvals for 

43,798 beneficiaries, including 

approvals for 12,318 beneficiaries under 

the allocation for nationals of the 

Northern Central American countries 

and Haiti.101

In FY 2023, USCIS received enough 

petitions to reach the cap for the 

additional 18,216 H–2B visas made 

available for returning workers for the 

first half of fiscal year by January 30, 

2023, and USCIS received enough 

petitions to reach the cap for the 

additional 16,500 H–2B visas made 

available for returning workers for the 

early second half of fiscal year by March 

30, 2023.102 Of the petitions for 

supplemental H–2B visas in FY 2023, 

USCIS issued approvals for 78,302 

beneficiaries, including 7,157 

beneficiaries under the allocation of 

10,000 visas made available for 

returning workers for the late second 

half of the fiscal year and 23,832 

beneficiaries under the allocation of 

20,000 visas reserved for nationals of 

the Northern Central American 

countries and Haiti.103

Data for the first half of FY 2024 

clearly indicate an immediate need for 

additional supplemental H–2B visas for 

employers with start dates on or before 

March 31, 2024. USCIS received a 

sufficient number of H–2B petitions to 

reach the first half of the FY 2024 fiscal 

year statutory cap on October 11, 

2023.104 Further, the date on which 

USCIS received sufficient H–2B 

petitions to reach the first half 

semiannual statutory cap has generally 

trended earlier in recent years. In fiscal 

years 2017 through 2024, USCIS 

received a sufficient number of H–2B 

petitions to reach or exceed the relevant 

first half statutory cap on January 10, 

2017, December 15, 2017, December 6, 

2018, November 15, 2019, November 16, 

2020, September 30, 2021, September 


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105See 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-offiscal-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-forfirst-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-h2b-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/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (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-capfor-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/uscisreaches-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-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B 

Cap for First Half of FY 2024, https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (Oct. 13, 2023). 

106USCIS analysis of DOL OLFC Performance 

data. 

107USCIS has elected to use a long-term average 

as a reference point so as to minimize the impact 

that the Covid-19 pandemic has on the comparison 

of the industry employment rate. All data are taken 

from the respective BLS ‘‘Industry at a Glance’’ 

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

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

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

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

www.bls.gov/iag/tgs/iag72.htm. All data accessed 

September 20, 2023. 

108 Data presented here are for the Professional 

and Business Services Supersector, which is 

comprised of NAICS 54, NAICS 55 and NAICS 56. 

See https://www.bls.gov/iag/tgs/iag60.htm. As such, 

the data presented here should be understood to be 

the best possible proxy for changes in NAICS 56 

and not a direct measurement of any specific 

change in the actual underlying sectors. The latest 

data available, for July, 2023 from the Department 

of Labor’s Current Employment Statistics program 

indicates that NAICS 56 accounted for just under 

42% of employment in Professional Business 

Services. All data accessed September 27, 2023. 

109See DOL, BLS, The Employment Situation— 

September 2023, https://www.bls.gov/news.release/ 

archives/empsit_10062023.pdf (Oct. 6, 2023). 

110Annual 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 (OctoberSeptember). Data for fiscal year 2023 are for October 

2022-August 2023. Unemployment rate for 2024 is 

based on median Federal Reserve projections See 

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

fomcprojtabl20230920.htm (accessed September 29, 

2023). 

111The 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. 

12, 2022, and October 11, 2023, 

respectively.105

Through the third quarter of FY 2023, 

approximately 85.2 percent of H–2B 

filings were for positions within just 5 

sectors.106 NAICS 56 (Administrative 

and Support and Waste Management 

and Remediation Services) accounted 

for 39.5% of filings, NAICS 71 

(Accommodation and Food Services) 

accounted for 11.2%, NAICS 72 (Arts, 

Entertainment, and Recreation) 

accounted for 18.00%, NAICS 23 

(Construction) accounted for 12.4%, and 

NAICS 11 (Agriculture, Forestry, 

Fishing and Hunting) accounted for 

4.1% of filings. 

Within these industries, DOL data 

show higher labor demand relative to 

recent history. More specifically, 

industry unemployment data from the 

Bureau of Labor Statistics (BLS) show 

that the industry unemployment rate in 

each of these industries is lower than 

the long term (10-year) average.107

In August 2023, the industry 

unemployment for NAICS 56 108 was 3.7 

percent, which is 1.31 points lower than 

its 10-year average of 5.01 percent, 

while the industry unemployment rate 

for NAICS 71 was 4.5 percent which is 

3.85 points lower than its 10-year 

average of 8.35 percent. The August 

2023 industry unemployment rate for 

NAICS 72 (6.10 percent) was 2.13 points 

lower than its 10-year average of 8.23 

percent while the rate for NAICS 23 (3.9 

percent) was 2.53 points lower than its 

10-year average of 6.43 percent. The 

industry unemployment rate for NAICS 

11 (5.80 percent) was 1.96 points lower 

than its 10-year average of 7.76 percent. 

The relatively low unemployment rate 

across these industries is a clear 

indication of a strong labor demand 

within these industries. The 

Departments believe that the 

supplemental allocation of H–2B visas 

described in this temporary final rule 

will help to meet demand in these 

industries. 

Economy-wide data also indicate that 

labor-market tightness continues to 

exist. The most recent Employment 

Situation released by the Bureau of 

Labor Statistics (BLS) stated that the 

unemployment rate was 3.8 percent in 

September 2023.109 Historically, the 

availability of H–2B visas addressed a 

need in the labor market during periods 

of lower unemployment. Chart 1 110

shows that the H–2B visa allocations for 

Fiscal Year 2024 111 made by this rule 

are slightly higher than the historical 

trend but are generally consistent with 

what the current unemployment rate 

alone would predict. Additionally, 

when the unemployment rate is below 

6 percent, there is greater variance in 

the total number of H–2B visas issued 

in a given year; for example, in years 

2022, 2007 and 2006, when the 

unemployment rate ranged from 

approximately 3.5 percent to 4.6 

percent, the total number of H–2B visas 

issued were comparable to what is 

planned for 2024. The data presented in 

chart 1 is meant to provide additional 

context and to demonstrate that the total 

allocation of H–2B visas is reasonable 

given labor market conditions. 


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10-year Average of Industry Unemployment Rate 

NAICS NAICS NAICS NAICS NAICS 

11 23 56* 71 72 

7.76 6.43 5.01 8.35 8.23 

*Supersector is used as a proxy, see footnote 102. 

Aui ust 2023 Industry Unemployment Rate 

NAICS NAICS NAICS NAICS NAICS 

11 23 56* 71 72 

5.8 3.9 3.7 4.5 6.1 

*Supersector is used as a proxy, see footnote 102. 
80412 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

112Further, DHS believes that 64,716 is an 

appropriate number of supplemental visas to make 

available, as this rule will cover both the first and 

second half of FY 2024. 

113See 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-fy2024 (Oct. 13, 2023). 

114See 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-offiscal-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-forfirst-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-h2b-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/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (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-capfor-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/uscisreaches-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-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B 

Cap for First Half of FY 2024, https:// 

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (Oct. 13, 2023). 

115See USCIS, USCIS Reaches the H–2B Cap for 

Fiscal Year 2017, https://www.uscis.gov/archivealerts/uscis-reaches-the-h-2b-cap-for-fiscal-year2017 (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-processfor-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-reachedfor-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-forsecond-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-forsecond-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-reachedfor-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-2bcap-for-second-half-of-fy-2023-and-announcesfiling-dates-for-the-second-half-of (Mar. 2, 2023). 

116See DOL, Announcements, https://

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

Given the level of demand for H–2B 

workers, the continued economic 

recovery, and continued job growth, 

DHS believes it is appropriate to release 

the maximum amount of additional 

visas at this time. 

Making Allocations for All of FY 2024 

in a Single Rule 

As in FY 2023, DHS believes that it 

is appropriate to issue a single rule for 

the entire fiscal year for multiple 

reasons.112 First, DHS expects that there 

is demand for supplemental visas in the 

first half of FY 2024. As previously 

discussed, USCIS already received 

enough petitions to reach the 

congressionally mandated cap on H–2B 

visas for temporary nonagricultural 

workers for the first half of FY 2024.113

Further, the date on which USCIS 

received sufficient H–2B petitions to 

reach the first half semiannual statutory 

caps has generally trended earlier in 

recent years. In fiscal years 2017 

through 2024, USCIS received a 

sufficient number of H–2B petitions to 

reach or exceed the relevant first half 

statutory cap on January 10, 2017, 

December 15, 2017, December 6, 2018, 

November 15, 2019, November 16, 2020, 

September 30, 2021, September 12, 

2022, and October 11, 2023, 

respectively.114

Second, based on relevant data, DHS 

expects that USCIS will reach the 

statutory cap for the second half of FY 

2024 and that there will accordingly be 

demand for supplemental visas in the 

second half of FY 2024. For example, in 

fiscal years 2017 through 2023, USCIS 

received a sufficient number of H–2B 

petitions to reach or exceed the relevant 

second half statutory cap on March 13, 

2017, February 27, 2018, February 19, 

2019, February 18, 2020, February 12, 

2021, February 25, 2022, and February 

27, 2023.115 In addition, DOL data 

shows consistently high demand in 

recent years, particularly during the 

second half of the fiscal year. In recent 

years, DOL has received an increasing 

number of TLC applications for an 

increasing number of H–2B workers 

with April 1 start dates: DOL received 

4,500 applications on January 1, 2018, 

covering more than 81,600 worker 

positions; DOL received 5,276 

applications by January 8, 2019, 

covering more than 96,400 worker 

positions; DOL received 5,677 

applications during the initial three-day 

filing window in 2020 covering 99,362 

worker positions; DOL received 5,377 

applications during the initial three-day 

filing window in 2021 covering 96,641 

worker positions; DOL received 7,875 

applications by January 7, 2022, 

covering 136,555 worker positions; and 

DOL received 8,693 applications during 

the initial three-day filing window in 

2023, covering 142,796 worker 

positions.116

Finally, publishing one rule that 

addresses all the visas available for FY 

2024 benefits the regulated public by 

giving more notice and certainty of what 

will become available for the second 


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140,000 

120,000 

100,000 

80,000 

60,000 

40,000 

20,000 

0 

2.00 

Chart 1: H-2B Visa Issuance vs National Unemployment Rate 

• • • ----• . • - -~022 -- LUU/ y -~-- --- ~----- .... 2006 R' = 0.6903 

••••••··· • ••••· ••••• I • 

2019. • • t~s······•J( ?1 

20 8 2017 20 6oos • ···~········ • 20a,i2C 03 •••· •..... LU.LJ LU14 • .... 2002 202~013 ···•~·-······· • • .. _ ,v~2QQ9 --~····2010 

Source: USCIS RCD-Econ 

3.00 4.00 5.00 6.00 7.00 8.00 9.00 10.00 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80413 

117See the docket for this rulemaking for access 

to these comments. 

118 In prior rules, USCIS used September 15th as 

the cutoff date for accepting petitions filed under 

the supplemental cap. However, in FY 2024, 

September 15th is on a Sunday when USCIS does 

not accept petitions. DHS has revised this date 

accordingly to avoid potential confusion and 

frustration from petitioners who might have 

otherwise expected their petitions to be received on 

the 15th but would instead face rejection. 

119See 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-fy2024 (Oct. 13, 2023). 

120USCIS, Cap Reached for Additional Returning 

Worker H–2B Visas for the First Half of FY 2023, 

https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-first-half-of-fy-2023 (Jan. 31, 2023). 

121Compare the publication date of this rule with 

December 15, 2022, the date the FY 2023 TFR was 

first published, and January 28, 2022, the date the 

temporary final rule making available additional H– 

2B visas for the first half of FY 2022 was first 

published. 

122Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(2), 

USCIS will reject petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(1)(ii) of this section 

requesting employment start dates from April 1, 

2024 to May 14, 2024 that are received earlier than 

15 days after the INA section 214(g) cap for the 

second half FY 2024 has been met. 

half. As noted in comments received in 

response to the FY 2023 TFR, this 

approach allows businesses to better 

plan ahead for their seasonal workforce 

needs.117

Filing Deadline of September 16, 2024 

for All Petitions 

The authority to approve H–2B 

petitions under this FY 2024 

supplemental cap expires at the end of 

the fiscal year, i.e., the end of September 

30, 2024. Therefore, DHS is requiring 

employers requesting any supplemental 

visas under this TFR, regardless of the 

employment start date(s), to properly 

file their H–2B petition with USCIS no 

later than September 16, 2024. USCIS 

will reject any cases that are received 

after September 16, 2024. See new 8 

CFR 214.2(h)(6)(xiv)(C). Because DHS 

believes that 15 days from the end of the 

fiscal year is generally the minimum 

time needed for petitions to be 

adjudicated, but also to account for the 

fact that September 15, 2024 falls on a 

Sunday,118 DHS has set September 16, 

2024 as the last day to file in order to 

provide USCIS with adequate time for 

petition processing before the expiration 

of the authority at the end of the fiscal 

year, although USCIS cannot guarantee 

the time period will be sufficient for 

adjudication of petitions in all cases. 

In addition, the filing deadline will be 

earlier than September 16, 2024 if the 

applicable numerical limit for the 

relevant supplemental visa allocation is 

reached before that date. See new 8 CFR 

214.2(h)(6)(xiv)(C). In such a case, 

USCIS will also reject any cases that are 

received after the applicable numerical 

limitation has been reached. 

Returning Worker Allocation for the 

First Half of FY 2024 (October 1, 2023 

Through March 31, 2024) 

For the first half of FY 2024, DHS will 

make 20,716 visas immediately 

available upon publication of this TFR 

that are limited to returning workers, in 

other words, those workers who were 

issued H–2B visas or held H–2B status 

in fiscal years 2021, 2022, or 2023, 

regardless of country of nationality. 

These petitions must request a date of 

need starting on or before March 31, 

2024. See new 8 CFR 214.2(h)(6)(xiv)(C). 

DHS anticipates that employers will 

use all of the first half allocation for 

returning workers, given how quickly 

USCIS reached the FY 2024 first half 

statutory cap and the first half 

supplemental allocation for FY 2023. As 

noted previously, USCIS received 

enough H–2B petitions to reach the FY 

2024 first half statutory cap on October 

11, 2023.119 Under the FY 2023 TFR, 

which published on December 15, 2022, 

USCIS received enough petitions to 

reach the 18,216 first half allocation by 

January 31, 2023.120 Similarly, the 

relatively early publication of this rule 

will provide interested employers more 

time to prepare their petitions, 

increasing the likelihood that the first 

half allocation for returning workers 

will be used.121 To the extent that the 

first half allocation for returning 

workers is used, this TFR may provide 

affected employers with some relief by 

making available a separate allocation of 

visas for nationals of El Salvador, 

Guatemala, Honduras, Haiti, Colombia, 

Ecuador, and Costa Rica, which will be 

available for the entirety of FY 2024. 

In the event that USCIS approves 

insufficient petitions to use all 20,716 

visas, the unused numbers will not 

carry over for the second half allocation 

because DHS believes that the 

operational burdens of calculating and 

administering a process to carry over 

unused visas, combined with the 

potential confusion for the public and 

adjudicators that could result from 

having different filing cutoff dates for 

the different allocations, would 

outweigh the benefits. In order to make 

any unused first half visas available for 

employers with second half start dates, 

DHS would need to set a filing cutoff 

date prior to September 16, 2024 for the 

first half allocation, upon which it 

would stop accepting such petitions and 

make a calculation of how many visas 

should be re-released for second half 

employers. Calculating visas to be rereleased could also entail an additional 

cap allocation, additional 

announcements to the public, and 

potentially an additional lottery, all of 

which would significantly increase 

operational burdens. In addition to 

increasing operational burdens, DHS 

believes that the opening, closing, and 

potential re-opening of this allocation 

(and/or other cap allocations) could 

cause confusion for the public and 

adjudicators. Furthermore, not setting a 

filing cutoff date prior to September 16, 

2024 will maximize employers’ 

opportunity to avail themselves of the 

first half allocation. While DHS 

acknowledges that this approach could 

potentially result in some employers 

with a demonstrated business need in 

the second half of the fiscal year losing 

the opportunity to receive a 

supplemental visa, it is DHS’s 

expectation that there will be sufficient 

demand from employers with first half 

start dates to use the entire allocation. 

Initial Returning Worker Allocation for 

the Early Second Half (April 1, 2024, 

Through May 14, 2024) 

For the second half of FY 2024, DHS 

will initially make available 19,000 

visas limited to returning workers, in 

other words, those workers who were 

issued H–2B visas or held H–2B status 

in fiscal years 2021, 2022, or 2023, 

regardless of country of nationality. 

These petitions must request a date of 

need starting on or after April 1, 2024, 

through and including May 14, 2024. 

Limiting this allocation to employers 

with employment start dates on or 

before May 14, 2024 reflects DHS’s 

intentions to give employers with needs 

later in the season a better opportunity 

to access the H–2B program, and to 

prevent employers from petitioning 

under both of the second-half 

allocations to fill the same need. 

To mitigate complications from 

concurrent administration of the 

statutory second half cap, these 

petitions must be filed no earlier than 

15 days after the second half statutory 

cap is reached, a date that USCIS will 

identify in a public announcement.122

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 


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80414 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

123Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(3), 

USCIS will reject petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(1)(iii) of this section 

requesting employment start dates from May 15, 

2024 to September 30, 2024, that are received 

earlier than 45 days after the INA section 214(g) cap 

for the second half FY 2024 has been met. 

124While petitioners may continue to submit 

petitions under the early second half supplemental 

cap through September 16, 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. 125See 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). 126See 20 CFR 655.15(b). 127As noted above, in fiscal years 2017 through 

2023, USCIS received a sufficient number of H–2B 

petitions to reach or exceed the relevant second half 

statutory cap on March 13, 2017, February 27, 2018, 

February 19, 2019, February 18, 2020, February 12, 

2021, February 25, 2022, and February 27, 2023 

respectively. 

128 Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2023, TRK 13122, H– 

2B Visa Issuance Report September 30, 2023. 

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 2024 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 2024 second 

half supplemental visas. In the event 

that the statutory second half FY 2024 

cap is not reached, the supplemental 

allocation for returning workers for the 

second half of FY 2024 will not become 

available. 

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. 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, 2024. DHS chose to limit 

these 19,000 visas to start dates on or 

before May 14, 2024, 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 2024 

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 

2024 petitions and prior to September 

16, 2024, 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 rereleased could also entail an additional 

cap allocation, additional 

announcements to the public, and 

potentially an additional lottery, all of 

which would significantly increase 

operational burdens. In addition to 

increasing operational burdens, DHS 

believes that the opening, closing, and 

potential re-opening of this allocation 

(and/or other cap allocations) could 

cause confusion for the public and 

adjudicators. Furthermore, not setting a 

filing cutoff date prior to September 16, 

2024, will maximize employers’ 

opportunity to avail themselves of the 

early second half allocation. While DHS 

acknowledges that this approach could 

result in employers in the late second 

half losing the opportunity to receive a 

supplemental visa, it is DHS’s 

expectation that there will be sufficient 

demand from employers to use this 

entire allocation. 

Additional Returning Worker Allocation 

for the Late Second Half (on or After 

May 15, 2024, Through September 30, 

2024) 

For the late second half of FY 2024, 

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 2021, 

2022, or 2023, 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, 2024. 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.123 When USCIS 

announces that it has received a 

sufficient number of petitions to reach 

the second half statutory cap, it will also 

announce the earliest possible filing 

date (45 days after the second half 

statutory cap) for this allocation. The 

cushion of 45 days after the second half 

statutory cap is reached is intended to 

provide USCIS with sufficient time to 

process H–2B petitions filed under the 

second half statutory cap that remain 

pending, as well as to process the 

expected influx of petitions under the 

early second half supplemental cap that 

will begin 15 days after the second half 

statutory cap is reached.124 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. 

This is the second supplemental cap 

reserved for late season employers that 

need workers to begin work during the 

late spring and summer seasons in the 

fiscal year.125 By regulation, employers 

may only apply for a TLC 75 to 90 days 

before the start date of need,126 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 TFR, in past years, because of this 

requirement and the strong demand for 

& 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 capsubject H–2B workers before the second 

semiannual statutory cap was reached. 

Since, based on recent years’ data,127

USCIS has typically received sufficient 

H–2B petitions to meet the statutory cap 

for the second half of the fiscal year 

around mid-February, many of these 

late season employers may have decided 

to not file a TLC application. 

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 2023, the full 

allocation of 10,000 visas was not 

reached. As of October 6, 2023, DOS has 

issued 5,071 visas towards the late 

second half allocation, while USCIS 

approved 7,157 beneficiaries towards 

the late second half allocation.128


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129See 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’’). 

130As previously noted, USCIS approved 

petitions on behalf of 6,805 beneficiaries under the 

FY 2021 allocation, 3,231 beneficiaries under the 

FY 2022 first half supplemental allocation, 12,318 

beneficiaries for the second half of the fiscal year 

FY 2022, and 23,832 beneficiaries under the FY 

2023 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. 

131Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(4), 

USCIS will reject petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(2) of this section that have 

a date of need on or after April 1, 2024 and are 

received earlier than 15 days after the INA section 

214(g) cap for the second half of FY 2024 is met. 

Therefore, in order to meet the employer 

demand in the late second half of FY 

2024, while still maximizing the overall 

usage of supplemental visas, DHS has 

determined it is appropriate to limit the 

late second half allocation for FY 2024 

to up to 5,000 visas. DHS, in 

consultation with DOL, has determined 

that authorizing two allocations for the 

second half of FY 2024 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,129 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. 

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, it will 

also announce the earliest possible 

filing date (45 days after the second half 

statutory cap) for this allocation. In the 

event that the statutory second half FY 

2024 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 countryspecific 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 

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 2024, up 

to and including September 30, 2024. 

While prior fiscal years’ allocations 

for nationals of the Northern Central 

American countries and Haiti have not 

been reached, DHS anticipates a higher 

likelihood that the 20,000 visas 

allocated for 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.130 Furthermore, the inclusion 

of nationals from the additional 

countries of Colombia, Ecuador, and 

Costa Rica also increases the likelihood 

that the 20,000 visas will be used. 

Employers requesting workers under 

the country-specific allocation with an 

employment start date in the first half 

of FY 2024 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 2024 must file their 

petitions no earlier than 15 days after 

the second half statutory cap is reached. 

The requirement to file the petition no 

earlier than 15 days after the second half 

statutory cap is reached is consistent 

with the approach taken for the initial 

returning worker allocation for the early 

second half of the fiscal year, and is in 

line with the Departments’ 

interpretation of their authority to make 

available supplemental (or in other 

words, additional) visas as contingent 

upon the exhaustion of visas under the 

statutory cap.131

As in FY 2023, 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 2024 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 

2024 using all 20,000 visas for nationals 

of the specified countries, and 

consequently, employers with start 

dates in the second half of FY 2024 

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 

2024 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 2024, 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 2024. 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 


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132See 8 CFR 214.2(h)(8)(vii). 

133See 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) (defining ‘‘returning workers’’ 

as those who were issued H–2B visas or held H– 

2B status in fiscal years 2020, 2021, or 2022). 134See INA section 214(g)(9)(A), 8 U.S.C. 

1184(g)(9)(A); Consolidated Appropriations Act, 

2016, Public Law 114–113, div. F, tit. V, sec 565; 

John Warner National Defense Authorization Act 

for Fiscal Year 2007, Public Law 109–364, div. A, 

tit. X, sec. 1074, (2006); Save Our Small and 

Seasonal Businesses Act of 2005, Public Law. 109– 

13, div. B, tit. IV, sec. 402. 

135The previous review of an applicant’s 

qualifications and current evidence of lawful travel 

to the United States will generally lead to a shorter 

processing time of a renewal application. 

136The interview waiver authority for certain H– 

2B applicants renewing visas in the same 

classification within 48 months of the prior visa’s 

expiration has no sunset date. Currently, certain 

first-time H–2B visa applicants or certain H–2B visa 

applicants previously issued any type of visa within 

the last 48 months may be eligible for an interview 

waiver; however, the authority for these interview 

waivers is set to expire on December 31, 2023. See 

DOS, Important Announcement on Waivers of the 

Interview Requirement for Certain Nonimmigrant 

Visas, https://travel.state.gov/content/travel/en/ 

News/visas-news/important-announcement-onwaivers-of-the-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23, 

2022); DOS, Extension of Interview Waivers for 

Certain Nonimmigrant Visa Applicants, https://

www.state.gov/extension-of-interview-waivers-forcertain-nonimmigrant-visa-applicants/ (last 

updated Dec. 23, 2022). 

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 16, 2024. 

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, 2023, through March 31, 2024, will be 

reached before September 16, 2024; 

• 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, 2024, 

through May 14, 2024, will be reached 

before September 16, 2024; 

• 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, 2024, 

through September 30, 2024, will be 

reached before September 16, 2024; 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 16, 2024. 

Under this rule, new 8 CFR 

214.2(h)(6)(xiv)(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,132

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 computergenerated 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, 2023, through March 31, 2024, is 

reached before September 16, 2024; 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, 2024, through 

May 14, 2024, is reached before 

September 16, 2024; 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, 2024, through 

September 30, 2024, is reached before 

September 16, 2024; or the 20,000 visas 

limited to certain nationals is reached 

before September 16, 2024. 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. 

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 2021, 2022, or 2023. 

This temporal limitation mirrors the 

prior fiscal year’s temporal limitation in 

the returning worker definition 133 and 

the temporal limitation Congress 

imposed in previous returning worker 

statutes.134 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.135

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).136

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 


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137See The White House, Joint Statement from 

the United States and Guatemala on Migration (June 

1, 2023), https://www.whitehouse.gov/briefingroom/statements-releases/2023/06/01/jointstatement-from-the-united-states-and-guatemalaon-migration/. 

138 Id. 

139See 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-jointcommitment-to-address-the-hemispheric-challengeof-irregular-migration/. See 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-ofprincipal-deputy-national-security-advisor-jonfiners-meeting-with-colombian-foreign-ministeralvaro-leyva/. 

140See 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-ricajoint-commitment-to-address-the-hemisphericchallenge-of-irregular-migration/. 

141See United States Department of State, 

Announcement of Safe Mobility Office in Ecuador 

(Oct. 19, 2023), https://www.state.gov/ 

announcement-of-safe-mobility-office-in-ecuador/. 

142See, e.g., USAID, Administrator Samantha 

Power at the Summit of the Americas Fair 

Recruitment and H–2 Visa Side Event, https://

www.usaid.gov/news-information/speeches/jun-9- 

2022-administrator-samantha-power-summitamericas-fair-recruitment-and-h-2-visa (Jun. 9, 

2022) (‘‘Our combined efforts [with the labor 

ministries in Honduras and Guatemala, and the 

Foreign Ministry in El Salvador] . . . resulted in a 

record number of H–2 visas issued in 2021, 

including a nearly forty percent increase over the 

pre-pandemic levels in H–2B visas issued across all 

three countries.’’). 

period of authorized stay, which is a 

condition of H–2B status. The returning 

worker condition therefore provides a 

basis to believe that H–2B workers 

under this cap increase will again abide 

by the terms and conditions of their visa 

or nonimmigrant status. 

The returning worker condition also 

benefits employers that seek to re-hire 

known and trusted workers who have a 

proven positive employment track 

record while previously employed as 

workers in this country. While the 

Departments recognize that the 

returning worker requirement may limit 

to an extent the flexibility of employers 

that might wish to hire non-returning 

workers, the requirement provides an 

important safeguard against H–2B 

abuse, which DHS considers to be a 

significant consideration. 

To ensure compliance with the 

requirement that additional visas only 

be made available to returning workers, 

DHS will require petitioners seeking H– 

2B workers under the supplemental cap 

to attest that each employee requested 

or instructed to apply for a visa under 

the FY 2024 supplemental cap was 

issued an H–2B visa or otherwise 

granted H–2B status in FY 2021, 2022, 

or 2023, unless the H–2B worker is a 

national of El Salvador, Guatemala, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica and is counted towards the 

20,000 cap. This attestation will serve as 

prima facie initial evidence to DHS that 

each worker, unless a national of one of 

these countries who is counted against 

the 20,000 country-specific cap, meets 

the returning worker requirement. DHS 

and DOS retain the right to review and 

verify that each beneficiary is in fact a 

returning worker any time before and 

after approval of the petition or visa. 

DHS has authority to review and verify 

this attestation during the course of an 

audit or investigation, as otherwise 

discussed in this rule. 

With respect to satisfying the 

returning worker requirement, 

employers must maintain evidence that 

the employer requested and/or 

instructed that each of the workers 

petitioned by the employer in 

connection with this temporary rule 

were issued H–2B visas or otherwise 

granted H–2B status in FY 2021, 2022, 

or 2023, unless the H–2B worker is a 

national of one of the specific countries 

counted towards the 20,000 cap. Such 

evidence would include, but is not 

limited to, a date-stamped written 

communication from the employer to its 

agent(s) and/or recruiter(s) that instructs 

the agent(s) and/or recruiter(s) to only 

recruit and provide instruction 

regarding an application for an H–2B 

visa to those foreign workers who were 

previously issued an H–2B visa or 

granted H–2B status in FY 2021, 2022, 

or 2023. 

D. 20,000 Allocation for Nationals of 

Guatemala, El Salvador, Honduras, 

Haiti, Colombia, Ecuador, or Costa Rica 

As described above, the Secretary of 

Homeland Security has determined that 

up to 20,000 additional H–2B visas will 

be limited to workers who are nationals 

of Guatemala, El Salvador, Honduras, 

Haiti, Colombia, Ecuador, or Costa Rica. 

These 20,000 visas will be exempt from 

the returning worker requirement. 

Because the returning worker 

allocations have no restrictions related 

to a worker’s country of nationality, if 

the 20,000 visa limit has been reached 

and the 44,716 returning worker cap has 

not, petitioners may continue to request 

workers who are nationals of one of 

these countries, but the workers must be 

specifically requested as returning 

workers who were issued H–2B visas or 

were otherwise granted H–2B status in 

FY 2021, 2022, or 2023. 

While DHS reiterates the benefits of 

allocating visas under the supplemental 

cap to returning workers, the Secretary 

of Homeland Security has determined 

that the 20,000 country-specific 

allocation which is exempted from the 

returning worker requirement is 

beneficial for following reasons. First, 

this country-specific allocation furthers 

the U.S. foreign policy objective of 

managing irregular migration with 

partner countries through expanding 

access to lawful pathways to nationals 

of these countries seeking economic 

opportunity in the United States. 

Several of these countries have 

extensively collaborated with the 

United States on migration issues such 

as through endorsing the L.A. 

Declaration, joining the United States to 

ramp up efforts to address the irregular 

migration flows through the Darien and 

hosting Safe Mobility Offices (SMOs) to 

facilitate access to lawful pathways to 

the United States and other countries, 

including expedited refugee processing 

and other humanitarian pathways. After 

a series of negotiations, on June 1, 2023, 

the United States and Guatemala issued 

a joint statement to commit to take a 

series of critical steps to humanely 

reduce irregular migration and expand 

lawful pathways under the L.A. 

Declaration.137 As the first step of a 

comprehensive program to manage 

irregular migration, both countries have 

been implementing a six-month pilot 

phase of SMOs since June 12, 2023.138

On June 4, 2023, the United States and 

Colombia announced the impending 

establishment of SMOs that would 

identify, register, and categorize the 

reasons for irregular migration and 

channel those who qualify through 

lawful pathways from Colombia to the 

United States.139 The Safe Mobility 

initiative launched in Colombia on June 

28, 2023, with SMOs currently 

operational in three cities. Furthermore, 

on June 12, 2023, the United States and 

the Government of Costa Rica, in 

furtherance of bilateral partnership and 

addressing hemispheric challenge of 

irregular migration, launched an 

exploratory six-month implementation 

of SMOs.140 On October 19, 2023, the 

United States and Ecuador announced 

their partnership in establishing SMOs 

in Ecuador.141 This allocation for 

nationals of El Salvador, Guatemala, 

Honduras, Haiti, Colombia, Ecuador, 

and Costa Rica will promote safe, 

orderly and lawful migration to the 

United States, as well as help provide 

U.S. employers with additional labor 

from these countries with whom the 

United States Government has engaged 

in outreach efforts to promote the H–2B 

program.142

Second, in addition to the allocation 

for returning workers, the countryspecific allocation will also address the 

needs of certain H–2B employers that 


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143See also National Security Council, 

Collaborative Migration Management Strategy, 

https://www.whitehouse.gov/wp-content/uploads/ 

2021/07/Collaborative-Migration-ManagementStrategy.pdf (July 2021) (stating that ‘‘The United 

States has strong national security, economic, and 

humanitarian interests in reducing irregular 

migration and promoting safe, orderly, and humane 

migration’’ within North and Central America). 

144See, e.g., 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/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-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’’). 

145As noted previously, some consular sections 

may waive the in-person interview requirement for 

H–2B applicants whose prior visa expired within a 

specific timeframe and who otherwise meet the 

strict limitations set out under INA section 222(h), 

8 U.S.C. 1202(h). The authority allowing for waiver 

of interview of certain H–2 (temporary agricultural 

and non-agricultural workers) applicants is 

extended through the end of 2023. Certain 

applicants renewing a visa in the same 

classification within 48 months of the prior visa’s 

expiration are also eligible for interview waiver. 

DOS, Important Announcement on Waivers of the 

Interview Requirement for Certain Nonimmigrant 

Visas, https://travel.state.gov/content/travel/en/ 

News/visas-news/important-announcement-onwaivers-of-the-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23, 

2022); DOS, Extension of Interview Waivers for 

Certain Nonimmigrant Visa Applicants, https://

www.state.gov/extension-of-interview-waivers-forcertain-nonimmigrant-visa-applicants/ (last 

updated Dec. 23, 2022). 

146See DOS, Nonimmigrant Visa Issuance 

Statistics, Nonimmigrant Visa Issuances by Visa 

Class and by Nationality, https://travel.state.gov/ 

content/travel/en/legal/visa-law0/visa-statistics/ 

nonimmigrant-visa-statistics.html (last visited Sept. 

26, 2023); U.S. Dep’t of Homeland Security, U.S. 

Citizenship and Immigr. Servs., Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data, queried 10/2023, TRK 13122, 

Issuances for FY 2023 H–2Bs By Requested 

Nationality Code. 

147See USAID, Additional H–2B Visa Allocations 

for Northern Central America and Haiti to Address 

Irregular Migration, https://www.usaid.gov/newsinformation/press-releases/oct-12-2022-additionalH-2B-visa-allocations-northern-central-americaand-haiti#:∼:text=Collaborating%20

closely%20with,eight%20in%20Honduras (Oct. 12, 

2022). 

148The ‘‘combined total’’ includes all H–2B visas 

and are not limited to visas issued under 

supplemental caps. See DOS, Nonimmigrant Visa 

Issuance Statistics, Nonimmigrant Visa Issuances 

by Visa Class and by Nationality, https://travel.

state.gov/content/travel/en/legal/visa-law0/visastatistics/nonimmigrant-visa-statistics.html. 

149See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, C3 Consolidated, DOS 

Issuance Data, queried 10/2022, TRK #10698. 

150See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, C3 Consolidated, DOS 

Issuance Data, queried 10/2022, TRK #10698. 

151 DHS, USCIS, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, 

queried 10/2023, TRK 13122, Issuances for FY 2023 

H–2Bs By Requested Nationality Code. 

are suffering irreparable harm or will 

suffer impending irreparable harm. 

Third, the 20,000 set-aside will 

deliver on the objectives of E.O. 14010, 

which, among other initiatives, instructs 

the Secretary of Homeland Security and 

the Secretary of State to implement 

measures to enhance access for 

nationals of the Northern Central 

American countries to visa programs, as 

appropriate and consistent with 

applicable law. E.O. 14010 also directs 

relevant government agencies to create a 

comprehensive regional framework to 

address the causes of migration, and to 

manage migration throughout North and 

Central America.143

Fourth, DHS is allocating these visas 

to specific countries to further promote 

development and economic stability of 

these countries to reduce irregular 

migration throughout the Western 

Hemisphere.144

As in prior years, DOS will work with 

the relevant countries to facilitate 

consular interviews, if required,145 and 

channels for reporting incidents of fraud 

and abuse within the H–2 programs. 

Further, each country’s own consular 

networks will maintain contact with the 

workers while in the United States and 

ensure the workers know their rights 

and responsibilities under the U.S. 

immigration laws, which are all 

valuable protections to the immigration 

system, U.S. employers, U.S. workers, 

and workers entering the country on H– 

2 visas. DHS has determined that 

reserving 20,000 supplemental H–2B 

visas towards the country-specific 

allocation and inclusion of additional 

countries this fiscal year is reasonable 

given the progressively increasing use of 

H–2B visas in recent years among the 

Northern Central American and Haitian 

populations, as noted above. DHS 

believes these aspects will encourage 

U.S. employers that are suffering 

irreparable harm or will suffer 

impending irreparable harm to seek out 

workers from such countries, while, at 

the same time, increase interest among 

such nationals seeking a legal pathway 

for temporary employment in the 

United States. DHS also believes its 

outreach efforts with the governments of 

these countries, along with efforts in 

some of these countries by USAID to 

increase access to the H–2B program, 

support the decision to provide this 

allocation of 20,000 visas. USAID has 

worked to build government capacity in 

Northern Central America to facilitate 

access to temporary worker visas under 

the H–2 program. Collaborating closely 

with the governments of El Salvador, 

Guatemala, and Honduras, USAID has 

strengthened the capacity of relevant 

government ministries to transparently 

and efficiently match qualified workers 

to temporary labor opportunities in the 

United States. In Fiscal Years 2021, 

2022, and 2023 USAID increased 

funding to expand capacity building 

activities in El Salvador, Guatemala, and 

Honduras in response to the increased 

demand generated by the supplemental 

allocations of H–2B visas for Northern 

Central American nationals included in 

the FY 2021, FY 2022, and FY 2023 

TFRs. The acceleration of USAID’s 

activities likely helped increase uptake 

of H–2B visas issuance under the FY 

2021, FY 2022, and FY 2023 TFRs, as 

H–2B visa issuances to Salvadorans, 

Guatemalans and Hondurans increased 

significantly over prior years,146 and 

USAID’s assistance helped reduce the 

average period of time to match 

qualified workers from these three 

countries to requests from U.S. 

employers—from 42 days to 14 days in 

El Salvador, 55 days to 20 days in 

Guatemala, and 24 days to 8 days in 

Honduras.147 USAID’s programs also 

strengthen worker protections by 

helping crowd out unethical recruiters 

and providing labor rights education 

and resources to seasonal workers. 

DOS issued a combined total of 

approximately 26,630 H–2B visas to 

nationals of the Northern Central 

American countries and Haiti from FY 

2015 through FY 2020, an average of 

approximately 4,400 per year.148 In FY 

2021, the first year in which 

supplemental H–2B visas were reserved 

for nationals of Northern Central 

American countries, DOS issued a 

combined total of 6,277 H–2B visas to 

nationals of those countries.149 In FY 

2022, DOS issued a combined total of 

15,058 H–2B visas to nationals of Haiti 

and the Northern Central American 

countries.150 In FY 2023, DOS issued a 

combined total of 23,816 H–2B visas to 

nationals of Haiti and the Northern 

Central American countries.151 This 

increase is likely due in part to the 

additional H–2B visas made available to 

nationals of these countries by the FY 

2021, FY 2022, and FY 2023 H–2B 

supplemental visa temporary final rules. 

In addition, based in part on the vital 

U.S. interest of promoting sustainable 

development and the stability of Haiti, 

in November 2021, DHS added Haiti to 

the list of countries whose nationals are 

eligible to participate in the H–2A and 


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152See Identification of Foreign Countries Whose 

Nationals Are Eligible To Participate in the H–2A 

and H–2B Nonimmigrant Worker Programs, 86 FR 

62559, 62562, https://www.govinfo.gov/content/ 

pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 

2021). 

153 During fiscal years 2021 and 2022, the 

Department of State issued 74 and 247 H–2B visas 

respectively to Colombian nationals, 35 and 115 H– 

2B visas respectively to Ecuadorian nationals, and 

204 and 283 H–2B visas respectively to Costa Rican 

nationals. See Characteristics of H–2B 

Nonagricultural Temporary Workers Fiscal Year 

2021 Report to Congress, https://www.uscis.gov/ 

sites/default/files/document/reports/H-2B-FY21- 

Characteristics-Report.pdf (Mar. 10, 2022); 

Characteristics of H-2B Nonagricultural Temporary 

Workers Fiscal Year 2022 Report to Congress, 

https://www.uscis.gov/sites/default/files/document/ 

data/USCIS_H2B_FY22_Characteristics_Report.pdf 

(Feb. 14, 2023). 

154An employer may request fewer workers on 

the H–2B petition than the number of workers listed 

on the TLC. See Instructions for Petition for 

Nonimmigrant Worker, providing that ‘‘the total 

number of workers you request on the petition must 

not exceed the number of workers approved by the 

Department of Labor or Guam Department of Labor, 

if required, on the temporary labor certification.’’ 

155Since July 26, 2019, USCIS has been accepting 

a printed copy of the electronic one-page ETA– 

9142B, Final Determination: H–2B Temporary 

Labor Certification Approval, as an original, 

approved TLC. See Notice of DHS’s Requirement of 

the Temporary Labor Certification Final 

Determination Under the H–2B Temporary Worker 

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

156The attestation requirement does not apply to 

workers who have already been counted under the 

H–2B statutory caps for fiscal year 2024. Further, 

the attestation requirement does not apply to 

noncitizens who are exempt from the fiscal year 

2024 H–2B statutory cap, including those who are 

extending their stay in H–2B status. Accordingly, 

petitioners that are filing on behalf of such workers 

are not subject to the attestation requirement. 

157See section 303 of Public Law 117–328, as 

extended by Public Law 118–15. 

H–2B programs.152 Therefore, as 

previously stated, DHS has determined 

that the additional increase in FY 2024 

will not only provide U.S. businesses 

that have been unable to find qualified 

and available U.S. workers with 

potential workers, but also promote 

further expansion of lawful immigration 

and lawful employment authorization 

for nationals of the specified countries. 

The exemption from the returning 

worker requirement recognizes the 

small, albeit increasing, number of 

individuals from the three Northern 

Central American countries and Haiti, 

and the small number of individuals 

from Colombia, Ecuador, and Costa 

Rica,153 who were previously granted 

H–2B visas in recent years. Absent this 

exemption, there may be an insufficient 

number of qualifying workers from 

these countries to use the allocated 

visas. Exempting this population from 

the returning worker requirement will 

increase the ability of workers from 

these countries to pursue lawful 

temporary work in the U.S., encourage 

employers to seek out individuals from 

these countries, and maximize the 

chance of meeting the goal of reaching 

the full allocation. 

USCIS will stop accepting petitions 

received under the country-specific 

allocation after September 16, 2024. 

This end date should provide H–2B 

employers ample time, should they 

choose, to petition for, and bring in, 

workers under the country-specific 

allocation. This, in turn, provides an 

opportunity for employers to contribute 

to our country’s efforts to promote and 

improve safety, security and economic 

stability in these countries to help stem 

the flow of irregular migration to the 

United States. Nothing in this rule will 

limit the authority of DHS or DOS to 

deny, revoke, or take any other lawful 

action with respect to an H–2B petition 

or visa application at any time before or 

after approval of the H–2B petition or 

visa application. 

E. Business Need Standard—Irreparable 

Harm and FY 2024 Attestation 

To file any H–2B petition under this 

rule, petitioners must meet all existing 

H–2B eligibility requirements, including 

having an approved, valid, and 

unexpired TLC. See 8 CFR 214.2(h)(6) 

and 20 CFR part 655, subpart A. The 

TLC process focuses on establishing 

whether a petitioner has a temporary 

need for workers and whether there are 

U.S. workers who are able, willing, 

qualified, and available to perform the 

temporary service or labor, and does not 

address the harm a petitioner is facing 

or will face in the absence of such 

workers; the attestation addresses this 

question. In addition, under this rule, 

the petitioner must submit an attestation 

to USCIS in which the petitioner 

affirms, under penalty of perjury, that it 

meets the business need standard—that 

they are suffering irreparable harm or 

will suffer impending irreparable harm 

(that is, permanent and severe financial 

loss) without the ability to employ all of 

the H–2B workers requested on their 

petition.154 In addition to asserting that 

it meets the business need standard, the 

employer must attest that, by the time 

of submission of the petition to USCIS, 

they have prepared and retained a 

detailed written statement describing 

how the evidence gathered in support of 

their petition demonstrates that 

irreparable harm is occurring or 

impending. The employer must also 

attest that, upon request, it will provide 

to DHS and/or DOL all documentary 

evidence that supports its claim of 

irreparable harm, along with the 

detailed written statement it prepared 

by the time of submitting the petition to 

USCIS, describing how such evidence 

demonstrates irreparable harm. The 

petitioner must submit the attestation 

directly to USCIS, together with Form I– 

129, the approved and valid TLC,155 and 

any other necessary documentation. As 

in the rules implementing prior years’ 

temporary cap increases, employers will 

be required to complete the new 

attestation form which can be found at: 

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

form.cfm.156

The irreparable harm standard is the 

same as in the temporary final rule for 

the second half of FY 2022 and the 

temporary final rule for FY 2023. The 

irreparable harm standard requires 

employers to attest that they are 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ all of the H–2B 

workers requested on the petition filed 

under this rule. 

As noted above, Congress authorized 

the Secretary of Homeland Security, in 

consultation with the Secretary of 

Labor, to increase the total number of 

H–2B visas available ‘‘upon the 

determination that the needs of 

American businesses cannot be 

satisfied’’ with U.S. workers.157 The 

irreparable harm standard in this rule 

aligns with this determination that 

Congress requires DHS to make before 

increasing the number of H–2B visas 

available to U.S. employers. In 

particular, requiring employers to attest 

that they are suffering irreparable harm 

or will suffer impending irreparable 

harm without the ability to employ all 

of the requested H–2B workers is 

directly relevant to the needs of the 

business—if an employer is suffering or 

will suffer irreparable harm, then their 

needs are not being satisfied. Because 

the authority to increase the statutory 

cap is tied to the needs of businesses, 

the Departments think it is reasonable 

for employers to attest that they are 

suffering irreparable harm or that they 

will suffer impending irreparable harm 

without the ability to employ all of the 

H–2B workers requested on their 

petition. If such employers are unable to 

attest to such harm and retain and 

produce (upon request) documentation 

of that harm, it calls into question 

whether the need set forth in this rule 

cannot in fact be satisfied without the 

ability to employ H–2B workers. 

As in the FY 2023 rule, this rule also 

requires an employer to attest that it has 

prepared a detailed written statement 

describing (i) how the employer’s 

business is suffering irreparable harm or 

will suffer impending irreparable harm 

without the ability to employ all H–2B 

workers requested on the I–129 petition, 

and (ii) how each type of evidence 


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relied upon by the employer 

demonstrates the applicable irreparable 

harm. The employer will not submit this 

detailed written statement to DHS with 

its petition for supplemental visas, but 

will attest on the attestation form to 

having prepared a detailed written 

statement. The detailed written 

statement must be provided to DHS 

and/or DOL upon request in the event 

of an audit or during the course of an 

investigation. This requirement was first 

introduced in the FY 2023 TFR to 

provide additional clarity informed by 

the Departments’ experiences in 

assessing the irreparable harm standard 

in previous years. 

As explained in the FY 2023 TFR, the 

attestation that irreparable harm is 

occurring or is impending cannot be 

based on a speculative analysis that 

permanent or severe financial loss ‘‘may 

occur’’ or ‘‘is likely to occur.’’ Rather, as 

of the time of submission to DHS, 

employers must have concrete evidence 

establishing that severe and permanent 

financial loss is occurring, with the 

scope and severity of harm clearly 

articulable, or that severe and 

permanent financial loss will occur in 

the near future without access to the 

supplemental visas. Even if no 

irreparable harm ultimately occurs 

because the employer is approved for 

supplemental visas under this rule, the 

employer must be able to articulate how 

permanent and severe financial loss was 

impending at the time of filing. 

Additionally, in DOL’s experience, 

employers sometimes do not retain the 

documentation they specifically attested 

they would retain, or will not or cannot 

explain how this documentation 

demonstrates the relevant irreparable 

harm to which they attested, which 

indicates that some of the employers 

seeking to benefit from hiring H–2B 

workers are not thoughtfully 

considering, or considering at all, 

whether their business needs qualify 

them for supplemental H–2B visas 

under these rules. 

Additionally, the Departments 

continue to believe that the written 

statement is necessary in the case of an 

audit or investigation to explain, in 

detail, the employer’s reasoning as to 

why irreparable harm was occurring or 

impending without the ability to 

employ H–2B workers, and how the 

evidence supports the employer’s 

reasoning. In audits and investigations, 

some employers have provided 

hundreds of pages of evidence without 

any explanation as to how this evidence 

demonstrates irreparable harm, leaving 

DOL or DHS to determine how a 

voluminous compilation of complex 

and, sometimes, seemingly unrelated 

documents demonstrates irreparable 

harm without any understanding of the 

employer’s intent when providing the 

documents. A detailed, thoughtful 

explanation from the employer will 

clarify the purpose of these documents 

and allow the employer to clearly make 

their case that the business was 

experiencing irreparable harm or would 

experience impending irreparable harm 

at the time of petitioning for 

supplemental visas. 

As such, the Departments believe that 

it is prudent to require employers to 

identify how they are suffering 

irreparable harm (that is, permanent or 

severe financial loss), or will suffer 

impending irreparable harm, and how 

the evidence they will maintain shows 

that harm was occurring or impending, 

at the time they petition for H–2B visas 

under this rule. The written statement 

should identify, in detail, the severe and 

permanent financial loss that is 

occurring or will occur in the near 

future without access to the 

supplemental visas and should describe 

how the information contained in the 

documentary evidence demonstrates 

this severe and permanent financial 

loss. A written statement explaining that 

no irreparable harm occurred because 

the employer was approved for 

supplemental H–2B visas is insufficient; 

if no irreparable harm actually occurred, 

the employer must be able to show that 

irreparable harm was impending at the 

time of the petition’s filing. Supporting 

evidence of the employer’s irreparable 

harm (either occurring or impending) 

maintained and discussed in the 

detailed written statement may include, 

but is not limited to, the following types 

of documentation: 

(1) Evidence that the business is 

suffering or will suffer in the near future 

permanent and severe financial loss due 

to the inability to meet financial or 

existing contractual obligations because 

they were unable to employ H–2B 

workers, including evidence of 

contracts, reservations, orders, or other 

business arrangements that have been or 

would be cancelled, and evidence 

demonstrating an inability to pay debts/ 

bills; 

(2) Evidence that the business is 

suffering or will suffer in the near future 

permanent and severe financial loss, as 

compared to prior years, such as 

financial statements (including profit/ 

loss statements) comparing the 

employer’s period of need to prior years; 

bank statements, tax returns, or other 

documents showing evidence of current 

and past financial condition; and 

relevant tax records, employment 

records, or other similar documents 

showing hours worked and payroll 

comparisons from prior years to the 

current year; 

(3) Evidence showing the number of 

workers needed in the previous three 

seasons (FY 2021, 2022, and 2023) to 

meet the employer’s need as compared 

to those currently employed or expected 

to be employed at the beginning of the 

start date of need. Such evidence must 

indicate the dates of their employment, 

and their hours worked (for example, 

payroll records) and evidence showing 

the number of H–2B workers it claims 

are needed, and the workers’ actual 

dates of employment and hours worked; 

and/or 

(4) Evidence that the petitioner is 

reliant on obtaining a certain number of 

workers to operate, based on the nature 

and size of the business, such as 

documentation showing the number of 

workers it has needed to maintain its 

operations in the past, or will in the 

near future need, including but not 

limited to: a detailed business plan, 

copies of purchase orders or other 

requests for good and services, or other 

reliable forecast of an impending need 

for workers. 

These examples are not exhaustive, 

nor will they necessarily establish that 

the business meets the irreparable harm 

standard; petitioners may retain other 

types of evidence they believe will 

satisfy these standards. Such evidence 

must be maintained and provided, with 

the written statement, to DOL and/or 

DHS upon request. 

While the employer will not submit 

the detailed written statement nor the 

supporting evidence to DHS at the time 

of filing a petition for H–2B visas under 

this rule, the Departments emphasize 

that the employer must prepare the 

detailed written statement and compile 

the evidence at the time of filing. The 

employer must complete the analysis as 

to whether the employer is experiencing 

irreparable harm or will experience 

impending irreparable harm at the time 

the employer petitions for supplemental 

visas using evidence available at this 

time. In the interest of efficiency, the 

Departments do not require the 

submission of this statement to DHS at 

the time of filing the petition. Instead, 

the employer must attest that it has 

prepared the detailed written statement. 

The attestation form will serve as 

prima facie initial evidence to DHS that 

the petitioner’s business is suffering 

irreparable harm or will suffer 

impending irreparable harm. USCIS 

may reject in accordance with 8 CFR 

103.2(a)(7)(ii) or deny in accordance 

with 8 CFR 103.2(b)(8)(ii), as applicable, 

any petition requesting H–2B workers 

under this FY 2024 supplemental cap 

that is lacking the requisite attestation 


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form. Although this regulation does not 

require submission of evidence and/or a 

detailed written statement at the time of 

filing of the petition, other than an 

attestation, the employer must have 

such evidence and the accompanying 

detailed written statement on hand and 

ready to present to DHS and/or DOL at 

any time starting with the date of filing 

the I–129 petition, through the 

prescribed document retention period 

discussed below. 

As with petitions filed under the FY 

2021, FY 2022, and FY 2023 

Supplemental TFRs, the Departments 

intend to select a significant number of 

petitions for audit examination to verify 

compliance with program requirements, 

including the irreparable harm standard 

and recruitment provisions 

implemented through this rule. The 

Departments may consider failure to 

provide evidence demonstrating 

irreparable harm, to prepare or provide 

the detailed written statement 

explaining irreparable harm, or to 

comply with the audit process to be a 

substantial violation resulting in an 

adverse agency action on the employer, 

including assessment of a civil money 

penalty, revocation of the petition and/ 

or TLC, or program debarment. 

Similarly, failure to cooperate with any 

compliance review, evaluation, 

verification, or inspection conducted by 

DHS and/or DOL as required by 8 CFR 

214.2(h)(6)(xiv)(B)(2)(v) and (vi) may 

constitute a violation of the terms and 

conditions of an approved petition and 

lead to petition revocation under 8 CFR 

214.2(h)(11)(iii)(A)(3). 

The attestation submitted to USCIS 

will also state that the employer: 

(1) meets all other eligibility criteria 

for the available visas, including the 

returning worker requirement, unless 

exempt because the H–2B worker is a 

national of El Salvador, Guatemala, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica who is counted against the 

20,000 visas reserved for such workers; 

(2) will comply with all assurances, 

obligations, and conditions of 

employment set forth in the Application 

for Temporary Employment 

Certification (Form ETA 9142B and 

appendices) certified by DOL for the job 

opportunity (which serves as the TLC); 

(3) will conduct additional 

recruitment of U.S. workers in 

accordance with the requirements of 

this rule and discussed further below; 

and 

(4) will document and retain evidence 

of such compliance. 

Because petitioners will submit the 

attestation to USCIS as initial evidence 

with Form I–129, DHS considers the 

attestation to be evidence that is 

incorporated into and a part of the 

petition consistent with 8 CFR 

103.2(b)(1). Accordingly, USCIS may 

deny or revoke, as applicable, a petition 

based on or related to statements made 

in the attestation, including but not 

limited to the following grounds: (1) the 

employer failed to demonstrate 

employment of all of the requested 

workers is necessary under the 

appropriate business need standard; or 

(2) the employer failed to demonstrate 

that it requested and/or instructed that 

each worker petitioned for is a returning 

worker, or a national of one of the 

specified countries, as required by this 

rule. The petitioner may appeal any 

denial or revocation on such basis, 

however, under 8 CFR part 103, 

consistent with DHS regulations and 

existing USCIS procedures. 

It is the view of the Secretaries of 

Homeland Security and Labor that 

requiring a post-TLC attestation to 

USCIS is the most practical approach to 

applying the eligibility requirements of 

this rule without causing undue delays 

in the filing or adjudication processes 

for those employers with start dates in 

the first half of the fiscal year, many of 

whom will have already begun or 

completed the TLC application process. 

The Departments have determined that, 

if such employers were required to 

submit the attestation form to DOL 

before filing a petition with DHS, the 

attendant delays would negatively 

impact the ability of American 

businesses to timely get the help that 

they need given TLC processing 

timeframes. For consistency and to 

avoid confusion, the Departments will 

also maintain the post-TLC attestation 

process for employers with start dates in 

the second half of the fiscal year that 

seek supplemental H–2B visas under 

this rule. This approach, in conjunction 

with additional integrity safeguards, has 

been used consistently in prior 

supplemental H–2B temporary final 

rules, and the Departments will 

continue to monitor its effectiveness 

and sufficiency. 

As in prior years, all employers under 

this rule are required to retain 

documentation, which the employer 

must provide upon request by DHS and/ 

or DOL, supporting the new attestations 

regarding (1) the irreparable harm 

standard; (2) the returning worker 

requirement, or, alternatively, 

documentation supporting that the H– 

2B worker(s) requested is a national of 

one of the specified countries who is 

counted against the 20,000 countryspecific allocation (which may be 

satisfied by the separate Form I–129 that 

employers are required to file for such 

workers in accordance with this rule); 

and (3) a recruitment report for any 

additional recruitment required under 

this rule for a period of 3 years. See 20 

CFR 655.65. Although the employer 

must have such documentation on hand 

at the time it files the petition, the 

Departments do not believe it is 

necessary or efficient for all employers 

to submit such documentation to USCIS 

at the time of filing the petition. 

However, as noted above, the 

Departments will employ program 

integrity measures, including additional 

scrutiny by DHS of employers that have 

committed labor law violations in the 

H–2B program, and continue to conduct 

audits, investigations, and/or postadjudication compliance reviews on a 

significant number of H–2B petitions. 

As part of that process, USCIS may issue 

a request for additional evidence, a 

notice of intent to revoke, or a 

revocation notice, based on the review 

of such documentation, see 8 CFR 

103.2(b) and 8 CFR 214.2(h)(11), and 

DOL’s OFLC and WHD will be able to 

review this documentation and enforce 

the attestations during the course of an 

audit examination or investigation. 

In accordance with the attestation 

requirements, under which petitioners 

attest that they meet the irreparable 

harm standard, that they are seeking to 

employ only returning workers (unless 

exempt as described above), and that 

they meet the document retention 

requirements at 20 CFR 655.65, 

petitioners must retain documents and 

records fulfilling their responsibility to 

demonstrate compliance with this rule 

for 3 years from the date the TLC was 

approved, and must provide the 

documents and records upon the 

request of DHS and/or DOL. With regard 

to the irreparable harm standard, 

employers attesting that they are 

suffering irreparable harm must be able 

to provide concrete evidence 

establishing severe and permanent 

financial loss that is occurring; the 

scope and severity of the harm must be 

clearly articulable. Employers attesting 

that they will suffer impending 

irreparable harm must be able to 

demonstrate that severe and permanent 

financial loss will occur in the near 

future without access to the 

supplemental visas. It will not be 

enough to provide evidence suggesting 

that such harm may or is likely to occur; 

rather, the documentary evidence must 

show that impending harm is occurring 

or will occur and document the form of 

such harm. Examples of possible types 

of evidence to be maintained are listed 

earlier in this section. 

When a petition is selected for audit 

examination, or investigation, DHS and/ 

or DOL will review all evidence 


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158Pursuant to the statutory provisions governing 

enforcement of the H–2B program, INA section 

214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists 

under the H–2B program where there has been a 

willful misrepresentation of a material fact in the 

petition or a substantial failure to meet any of the 

terms and conditions of the petition. A substantial 

failure is a willful failure to comply that constitutes 

a significant deviation from the terms and 

conditions. See, e.g., INA section 214(c)(14)(D), 8 

U.S.C. 1184(c)(14)(D); see also 29 CFR 503.19. 

159 DHS may publicly disclose information 

regarding the H–2B program consistent with 

applicable law and regulations. For information 

about DHS disclosure of information contained in 

a system of records, see https://www.dhs.gov/ 

system-records-notices-sorns. Additional general 

information about DHS privacy policy can be 

accessed at https://www.dhs.gov/policy. 

160The Departments’ intentions with respect to 

non-severability extend to all features of this rule 

other than the portability provision, which is 

described in the section below. 

161 Individuals who are the beneficiaries of 

petitions filed on the basis of 8 CFR 214.1(c)(4) are 

not eligible to port to a new employer under 8 CFR 

214.2(h)(31). 

162On September 20, 2023, DHS issued a 

Modernizing H–2 Program Requirements, 

Oversight, and Worker Protections Notice of 

Proposed Rulemaking (NPRM), 88 FR 65040, 65066, 

with a 60-day public comment period that ends on 

November 20, 2023. In that NPRM, DHS proposed 

to extend portability to H–2A and H–2B workers on 

a permanent basis. The Department’s proposal does 

not interfere with the portability provision of this 

rule, however, should DHS publish a final rule 

making H–2 portability permanent, any such 

provision will not expire on a specific date, unlike 

the portability provision made effective by this 

temporary final rule. 

available to it to confirm that the 

petitioner properly attested to DHS, at 

the time of filing the petition, that their 

business was suffering irreparable harm 

or would suffer impending irreparable 

harm, and that they petitioned for and 

employed only returning workers, 

unless the H–2B worker is a national of 

one of the specific countries counted 

towards the 20,000 country-specific 

allocation, among other attestations. If 

DHS subsequently finds that the 

evidence does not support the 

employer’s attestations, DHS may deny 

or, if the petition has already been 

approved, revoke the petition at any 

time consistent with existing regulatory 

authorities. DHS may also, or 

alternatively, refer the petitioner to DOL 

for further investigation. In addition, 

DOL may independently take 

enforcement action, including by, 

among other things, debarring the 

petitioner from the H–2B program for 

not less than one year or more than five 

years from the date of the final agency 

decision, which also disqualifies the 

debarred party from filing any labor 

certification applications or labor 

condition applications with DOL for the 

same period set forth in the final 

debarment decision. See, e.g., 20 CFR 

655.73; 29 CFR 503.20, 503.24.158

Evidence reflecting a preference for 

hiring H–2B workers over U.S. workers 

may warrant an investigation by 

additional agencies enforcing 

employment and labor laws, such as the 

Immigrant and Employee Rights Section 

(IER) of the Department of Justice’s Civil 

Rights Division. See INA section 274B, 

8 U.S.C. 1324b (prohibiting certain 

types of employment discrimination 

based on citizenship status or national 

origin). Moreover, DHS and DOL may 

refer potential discrimination to IER 

pursuant to applicable interagency 

agreements. See IER, Partnerships, 

https://www.justice.gov/crt/partnerships 

(last visited Sept. 26, 2023). In addition, 

if members of the public have 

information that a participating 

employer may be abusing this program, 

DHS invites them to notify USCIS by 

completing the online fraud tip form, 

https://www.uscis.gov/report-fraud/ 

uscis-tip-form (last visited Sept. 26, 

2023).159

DHS, in exercising its statutory 

authority under INA section 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b), and section 303 of 

the FY 2023 Omnibus, as extended by 

Public Law 118–15, is responsible for 

adjudicating eligibility for H–2B 

classification. As in all cases, the 

burden rests with the petitioner to 

establish eligibility by a preponderance 

of the evidence. INA section 291, 8 

U.S.C. 1361. Matter of Chawathe, 25 

I&N Dec. 369, 375–76 (AAO 2010). 

Accordingly, as noted above, where the 

petition lacks initial evidence, such as 

a properly completed attestation, USCIS 

may, as applicable, reject the petition in 

accordance with 8 CFR 103.2(a)(7)(ii) or 

deny the petition in accordance with 8 

CFR 103.2(b)(8)(ii). Further, where the 

initial evidence submitted with the 

petition contains inconsistencies or is 

inconsistent with other evidence in the 

petition and the underlying TLC, USCIS 

may issue a Request for Evidence, 

Notice of Intent to Deny, or Denial in 

accordance with 8 CFR 103.2(b)(8). In 

addition, where it is determined that an 

H–2B petition filed pursuant to the FY 

2023 Omnibus, as extended by Public 

Law 118–15, was granted erroneously, 

the H–2B petition approval may be 

revoked. See 8 CFR 214.2(h)(11). 

Because of the particular 

circumstances of this regulation, and 

because the attestation and other 

requirements of this rule play a vital 

role in achieving the purposes of this 

rule, DHS and DOL intend that the 

attestation requirement, DOL 

procedures, and other aspects of this 

rule be non-severable from the 

remainder of the rule, including the 

increase in the numerical allocations.160

Thus, if the attestation requirement or 

any other part of this rule is enjoined or 

held invalid, the Departments intend for 

the remainder of the rule, with the 

exception of the retention requirements 

being codified in 20 CFR 655.65, to 

cease operation in the relevant 

jurisdiction, without prejudice to 

workers already present in the United 

States under this regulation, as 

consistent with law. 

F. Portability 

As an additional option for employers 

that cannot find U.S. workers, and as an 

additional flexibility for H–2B 

employees seeking to begin work with a 

new H–2B employer, this rule allows 

petitioners to immediately employ 

certain H–2B workers who are present 

in the United States in H–2B status 

without waiting for approval of the H– 

2B petition, generally for a period of up 

to 60 days. Such workers must be 

beneficiaries of a timely, non-frivolous 

H–2B petition requesting an extension 

of stay received on or after January 25, 

2024, but no later than 1 year after that 

date.161 In addition, such workers must 

have been lawfully admitted to the 

United States and have not worked 

without authorization subsequent to 

such lawful admission. Additionally, 

petitioners may immediately employ 

individuals who are beneficiaries of a 

non-frivolous H–2B petition requesting 

an extension of the worker’s stay that is 

pending as of January 25, 2024 without 

waiting for approval of the H–2B 

petition. To be eligible for portability, 

employers must have received an 

approved TLC demonstrating that they 

have completed a test of the U.S. labor 

market, and that DOL determined that 

there were no qualified U.S. workers 

available to fill these temporary 

positions. DHS is making this 

portability available for an additional 

one-year period in order to provide 

greater certainty for H–2B employers 

and workers.162

The portability provision at new 8 

CFR 214.2(h)(31) is substantively the 

same as the portability provision offered 

in the FY 2023 H–2B supplemental visa 

temporary final rule, which was 

codified at 8 CFR 214.2(h)(29), and will 

begin upon the expiration of that 

provision. See new 8 CFR 214.2(h)(31). 

Additionally, the provision is similar to 

temporary flexibilities that DHS has 

used previously to improve employer 


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163See 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). On May 14, 2020, DHS published 

a temporary final rule in the Federal Register to 

amend certain H–2B requirements to help H–2B 

petitioners seeking workers to perform temporary 

nonagricultural services or labor essential to the 

U.S. food supply chain. Temporary Changes to 

Requirements Affecting H–2B Nonimmigrants Due 

to the COVID–19 National Emergency, 85 FR 28843 

(May 14, 2020). In addition, on April 20, 2020, DHS 

issued a temporary final rule which, among other 

flexibilities, allowed H–2A workers to change 

employers and begin work before USCIS approved 

the new H–2A petition for the new employer. 

Temporary Changes to Requirements Affecting H– 

2A Nonimmigrants Due to the COVID–19 National 

Emergency, 85 FR 21739 (April 20, 2020). DHS has 

subsequently extended that portability provision for 

H–2A workers through two additional temporary 

final rules, on August 20, 2020, and December 18, 

2020, which have been effective for H–2A petitions 

that were received on or after August 19, 2020 

through December 17, 2020, and on or after 

December 18, 2020 through June 16, 2021, 

respectively. Temporary Changes to Requirements 

Affecting H–2A Nonimmigrants Due To the COVID– 

19 National Emergency: Partial Extension of Certain 

Flexibilities, 85 FR 51304 (August 20, 2020) and 

Temporary Changes to Requirements Affecting H– 

2A Nonimmigrants due to the COVID–19 National 

Emergency: Extension of Certain Flexibilities, 85 FR 

82291 (December 18, 2020). 

164A similar portability provision exists in DHS 

regulations related to H–1B nonimmigrant workers, 

but does not include a 15-day period. See 8 CFR 

214.2(h)(2)(i)(H)(2). 

165The Joint Explanatory Statement 

accompanying the Fiscal Year (FY) 2020 

Department of Homeland Security (DHS) Further 

Consolidated Appropriations Act (Pub. L. 116–94) 

states, ‘‘Not later than 120 days after the date of 

enactment of this Act, DHS, the Department of 

Labor, the Department of State, and the United 

States Digital Service are directed to report on 

options to improve the execution of the H–2A and 

H–2B visa programs, including: processing 

efficiencies; combatting human trafficking; 

protecting worker rights; and reducing employer 

burden, to include the disadvantages imposed on 

such employers due to the current semiannual 

distribution of H–2B visas on October 1 and April 

1 of each fiscal year. USCIS is encouraged to 

leverage prior year materials relating to the issuance 

of additional H–2B visas, to include previous 

temporary final rules, to improve processing 

efficiencies.’’ 

166The White House, The National Action Plan 

to Combat Human Trafficking, Priority Action 1.5.3, 

at p. 25 (Dec 2021); The White House, The National 

Action Plan to Combat Human Trafficking, Priority 

Action 1.6.3, at p. 20–21 (2020) (Stating that 

‘‘[w]orkers sometimes find themselves in abusive 

work situations, but because their immigration 

status is dependent on continued employment with 

the employer in whose name the visa has been 

issued, workers may be left with few options to 

leave that situation.’’). By providing the option of 

changing employers without risking job loss or a 

loss of income through the publication of this rule, 

DHS believes that H–2B workers may be more likely 

to leave abusive work situations, and thereby are 

afforded greater worker protections. 

167See HHS, Fact Sheet: End of the COVID–19 

Public Health Emergency (May 9, 2023), https://

www.hhs.gov/about/news/2023/05/09/fact-sheetend-of-the-covid-19-public-health-emergency.html. 

168 During the period of employment specified on 

the TLC, the employer must comply with all 

applicable Federal, State and local employmentrelated laws and regulations, including health and 

safety laws. 20 CFR 655.20(z). By submitting the 

TLC as evidence supporting the petition, it is 

incorporated into and considered part of the benefit 

request under 8 CFR 103.2(b)(1). 

169This is a different filing location from the FY 

2023 TFR. 

access to noncitizen workers during the 

COVID–19 pandemic.163

The employment authorization 

provided under this provision would 

end 15 days after USCIS denies the H– 

2B petition or such petition is 

withdrawn. This 15-day period of 

employment following an H–2B petition 

denial or withdrawal is consistent with 

prior H–2B supplemental cap temporary 

final rules, as well as the 15-day period 

of employment following petition denial 

under existing DHS regulations at 8 CFR 

274a.12(b)(21) for certain E-Verify 

participants to employ H–2A workers. 

As in the prior temporary final rules, the 

15-day period is intended to account for 

the passage of time between USCIS 

denial of the H–2B petition and the 

petitioner receiving notice of such 

denial.164

DHS is strongly committed not only to 

protecting U.S. workers and helping 

U.S. businesses receive the documented 

workers authorized to perform 

temporary nonagricultural services or 

labor that they need, but also to 

protecting the rights and interests of H– 

2B workers (consistent with Executive 

Order 13563 and in particular its 

reference to ‘‘equity,’’ ‘‘fairness,’’ and 

‘‘human dignity’’). In the FY 2020 DHS 

Further Consolidated Appropriations 

Act (Pub. L. 116–94), Congress directed 

DHS to provide options to improve the 

H–2A and H–2B visa programs, to 

include options that would protect 

worker rights.165 DHS has determined 

that providing H–2B nonimmigrant 

workers with the flexibility of being able 

to begin work with a new H–2B 

petitioner immediately and avoid a 

potential job loss or loss of income 

while the new H–2B petition is pending, 

provides some certainty to H–2B 

workers who may have found 

themselves in situations that warrant a 

change in employers.166 This flexibility 

also provides an alternative to H–2B 

petitioners who have not been able to 

find U.S. workers and who have not 

been able to obtain H–2B workers 

subject to the statutory or supplemental 

caps who have the skills to perform the 

job duties. In that sense as well, it is 

equitable and fair. 

G. Compliance With EmploymentRelated Laws 

In recent supplemental cap TFRs 

issued during the COVID–19 public 

health emergency, the Departments have 

specifically required petitioners to attest 

that they will comply with all Federal, 

State, and local employment-related 

laws and regulations, including, where 

applicable, with laws related to COVID– 

19 worker protections and any right to 

time off or paid time off for COVID–19 

vaccination, or to reimbursement for 

travel to and from the nearest 

vaccination site. See, e.g., 8 CFR 

214.2(h)(29)(iii)(B). In addition, the 

Departments have required petitioners 

to attest that they would notify any H– 

2B workers approved under the 

supplemental cap, in a language 

understood by the worker as necessary 

or reasonable, that all persons in the 

United States, including 

nonimmigrants, have equal access to 

COVID–19 vaccines and vaccine 

distribution sites. As the public health 

emergency is no longer in effect,167 the 

Departments no longer believe it is 

necessary to include the requirements 

that are specific to COVID–19. 

In addition, after removing the 

language related to COVID–19, the 

Departments believe that the remaining 

attestation from these prior rules would 

overlap with the general requirement 

found at 20 CFR 655.20(z) and 29 CFR 

503.16(z) that all employers, as a 

condition of their labor certification, 

comply with employment-related laws 

including health and safety laws. To 

avoid confusion the Departments are 

also removing this attestation from the 

TFR. While there is no additional 

attestation with respect to H–2B 

petitioners that do not avail themselves 

of the supplemental H–2B visas made 

available under this rule, the 

Departments remind all H–2B 

employers that they must comply with 

all Federal, State, and local 

employment-related laws and 

regulations, including health and safety 

laws. To the extent that Federal, State, 

or local laws and regulations relating to 

COVID–19 remain in effect, the 

Departments note that an employer 

remains obligated to comply with them. 

Failure to comply with such laws and 

regulations would be contrary to the 

attestation 7 on ETA 9142B—Appendix 

B, and therefore may be a basis for DHS 

to revoke the petition under 8 CFR 

214.2(h)(11)(iii)(A)(3) for violating terms 

and conditions of the approved 

petition.168

H. DHS Petition Procedures 

To petition for H–2B workers under 

the supplemental allocations in this 

rule, the petitioner must file a Form I– 

129 at the USCIS Texas Service 

Center 169 in accordance with applicable 

regulations and form instructions, along 


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170On Nov. 1, 2023, USCIS changed the service 

center filing location for all petitioners filing Forms 

I–129, Petition for a Nonimmigrant Worker, to 

request H–2B workers. Those petitions should now 

be filed at the Texas Service Center. Although 

USCIS provided a 60-day grace period for H–2B 

petitions that are filed at the California and 

Vermont Service Centers during which they could 

still be accepted (through Dec. 31, 2023), this grace 

period does not apply to petitions filed for 

supplemental allocations under this rule. 

with an unexpired TLC and the 

attestation Form ETA–9142–B–CAA–8. 

Petitions filed for supplemental 

allocations under this rule at any 

location other than the USCIS Texas 

Service Center will be rejected and the 

filing fees will be returned.170 For all 

petitions filed under this rule and the 

H–2B program, generally, employers 

must establish, among other 

requirements, that insufficient qualified 

U.S. workers are available to fill the 

petitioning H–2B employer’s job 

opportunity and that the foreign 

worker’s employment in the job 

opportunity will not adversely affect the 

wages or working conditions of 

similarly-employed U.S. workers. INA 

section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 

CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR 

655.1. To meet this standard of 

protection for U.S. workers and, in order 

to be eligible for additional visas under 

this rule, employers must have applied 

for and received a valid TLC in 

accordance with 8 CFR 

214.2(h)(6)(iv)(A) and (D) and 20 CFR 

part 655, subpart A. Under DOL’s H–2B 

regulations, TLCs are valid only for the 

period of employment certified by DOL 

and expire on the last day of authorized 

employment. 20 CFR 655.55(a). 

In order to have a valid TLC, 

therefore, the employment start date on 

the employer’s H–2B petition must not 

be different from the employment start 

date certified by DOL on the TLC. See 

8 CFR 214.2(h)(6)(iv)(D). Under 

generally applicable DHS regulations, 

the only exception to this requirement 

applies when an employer files an 

amended H–2B petition, accompanied 

by a copy of the previously approved 

TLC and a copy of the initial visa 

petition approval notice, at a later date 

to substitute workers as set forth under 

8 CFR 214.2(h)(6)(viii)(B). This rule also 

requires additional recruitment for 

certain petitioners, as discussed below. 

All H–2B petitions must state the 

nationality of all the requested H–2B 

workers, whether named or unnamed, 

even if there are beneficiaries from more 

than one country. See 8 CFR 

214.2(h)(2)(iii). If filing multiple Forms 

I–129 based on the same TLC (for 

instance, one requesting returning 

workers and another requesting workers 

under the country-specific allocation), 

each H–2B petition must include a copy 

of the TLC and reference all previouslyfiled or concurrently-filed petitions 

associated with the same TLC. The total 

number of requested workers may not 

exceed the total number of workers 

indicated on the approved TLC. 

Petitioners seeking H–2B 

classification for nationals under the 

20,000 country-specific visa allocation 

that are exempt from the returning 

worker provision must file a separate 

Form I–129 for those nationals only. See 

new 8 CFR 214.2(h)(6)(xiv). In this 

regard, a petition must be filed with a 

single Form ETA–9142–B–CAA–8 that 

clearly indicates that the petitioner is 

only requesting nationals from El 

Salvador, Guatemala, Honduras, Haiti, 

Colombia, Ecuador, or Costa Rica who 

are exempt from the returning worker 

requirement. Specifically, if the 

petitioner checks the first box of Form 

ETA–9142–B–CAA–8, then the petition 

accompanying that form must be filed 

only on behalf of nationals of one or 

more of these and not other countries. 

In such a case, if the Form I–129 

petition is requesting beneficiaries from 

countries other than one of these 

countries, then USCIS may reject it or 

issue a request for evidence, notice of 

intent to deny, or denial, or, in the case 

of a non-frivolous petition, a partial 

approval limiting the petition to the 

number of beneficiaries who are from 

Guatemala, El Salvador, Honduras, 

Haiti, Colombia, Ecuador, or Costa Rica. 

Requiring the filing of separate petitions 

to request returning workers and to 

request workers who are nationals of the 

specified countries is necessary to 

ensure the operational capability to 

properly calculate and manage the 

respective additional cap allocations 

and to ensure that all corresponding 

visa issuances are limited to qualifying 

applicants, particularly when such 

petitions request unnamed beneficiaries 

or are relied upon for subsequent 

requests to substitute beneficiaries in 

accordance with 8 CFR 214.2(h)(6)(viii). 

The attestations must be filed on 

Form ETA–9142–B–CAA–8, Attestation 

for Employers Seeking to Employ H–2B 

Nonimmigrant Workers Under Section 

303 of Division O of the Consolidated 

Appropriations Act, 2023, Public Law 

117–328, as extended by sections 101(6) 

and 106 of Division A of the Continuing 

Appropriations Act, 2024 and Other 

Extensions Act, Public Law 118–15. See 

20 CFR 655.64. Petitioners are required 

to retain a copy of such attestations and 

all supporting evidence for 3 years from 

the date the associated TLC was 

approved, consistent with 20 CFR 

655.56 and 29 CFR 503.17. See 20 CFR 

655.65. Petitions submitted to DHS 

pursuant to Public Law 118–15, which 

extended the FY 2023 Omnibus, will be 

processed in the order in which they 

were received within the relevant 

supplemental allocation, and pursuant 

to processes parallel to those in place 

for when numerical limitations are 

reached under INA section 214(g)(1)(B) 

or (g)(10), 8 U.S.C. 1184(g)(1)(B) or 

(g)(10). 

All filings under the supplemental 

allocations in this rule must be filed at 

the USCIS Texas Service Center. USCIS 

will reject petitions filed under the 

supplemental allocations in this rule at 

any location other than the USCIS Texas 

Service Center and will return the filing 

fees for any such petition. 

Immediately upon publication of the 

rule, but no earlier than that date, 

USCIS will begin accepting returning 

worker H–2B petitions requesting dates 

of need starting on or before March 31, 

2024, as well as H–2B petitions for 

workers under the country-specific 

allocation with dates of need in the first 

half of FY 2024. Beginning no earlier 

than 15 days after the second half 

statutory cap is reached, USCIS will 

begin accepting returning worker H–2B 

petitions requesting work to begin on or 

after April 1, 2024, through May 14, 

2024, as well as H–2B petitions for 

workers under the country-specific 

allocation with dates of need on or after 

April 1, 2024 through September 30, 

2024. Finally, beginning no earlier than 

45 days after the second half statutory 

cap is reached, USCIS will begin 

accepting returning worker H–2B 

petitions requesting work to begin on or 

after May 15 through September 30, 

2024. 

USCIS will reject any returning 

worker petition that is received after 

September 16, 2024, or after the 

applicable numerical limitation has 

been reached. DHS believes that 15 days 

from the end of the fiscal year is the 

minimum time needed for petitions to 

be adjudicated, although USCIS cannot 

guarantee the time period will be 

sufficient in all cases. Therefore, even if 

the country-specific allocation and 

second half supplemental allocations 

provided in this rule have not yet been 

reached, USCIS will stop accepting 

petitions under those allocations that 

are received after September 16, 2024. 

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

petitions will be rejected and the filing 

fees will be returned. Petitioners may 

choose to request premium processing 

of their petitions under 8 CFR 106.4, 

which allows for expedited processing 

for an additional fee. 

Based on the time-limited authority 

granted to DHS by Public Law 118–15, 

on the same terms as section 303 of the 


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FY 2023 Omnibus, DHS is notifying the 

public that USCIS cannot approve 

petitions seeking H–2B workers under 

this rule on or after October 1, 2024. See 

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

pending with USCIS that are not 

approved before October 1, 2024 will be 

denied and any fees will not be 

refunded. See new 8 CFR 

214.2(h)(6)(xiv)(C). 

I. DOL Procedures 

As noted above, all employers are 

required to have an approved and valid 

TLC from DOL in order to file a Form 

I–129 petition with DHS. See 8 CFR 

214.2(h)(6)(iv)(A) and (D). The 

standards and procedures governing the 

submission and processing of 

Applications for Temporary 

Employment Certification for employers 

seeking to hire H–2B workers are set 

forth in 20 CFR part 655, subpart A. An 

employer that seeks to hire H–2B 

workers must request a TLC in 

compliance with the application filing 

requirements set forth in 20 CFR 655.15 

and meet all the requirements of 20 CFR 

part 655, subpart A, to obtain a valid 

TLC, including the criteria for 

certification set forth in 20 CFR 655.51. 

See 20 CFR 655.64(a) and 655.50(b). 

Employers with an approved TLC have 

conducted recruitment, as set forth in 20 

CFR 655.40 through 655.48, to 

determine whether U.S. workers are 

qualified and available to perform the 

work for which employers sought H–2B 

workers. 

The H–2B regulations require that, 

among other things, an employer 

seeking to hire H–2B workers in a nonemergency situation must file a 

completed Application for Temporary 

Employment Certification with the 

National Processing Center (NPC) 

designated by the OFLC Administrator 

no more than 90 calendar days and no 

fewer than 75 calendar days before the 

employer’s date of need (i.e., start date 

for the work). See 20 CFR 655.15. 

Emergency Procedures 

Under 20 CFR 655.17, an employer 

may request a waiver of the time 

period(s) for filing an Application for 

Temporary Employment Certification 

based on ‘‘good and substantial’’ cause, 

provided that the employer has 

sufficient time to thoroughly test the 

domestic labor market on an expedited 

basis and the OFLC certifying officer 

(CO) has sufficient time to make a final 

determination as required by the 

regulation. To rely on this provision, as 

the Departments explained in the 2015 

H–2B Interim Final Rule, the employer 

must provide the OFLC CO with 

detailed information describing the 

‘‘good and substantial cause’’ 

necessitating the waiver. Such cause 

may include the substantial loss of U.S. 

workers due to Acts of God, or a similar 

unforeseeable human-made catastrophic 

event that is wholly outside the 

employer’s control, unforeseeable 

changes in market conditions, or 

pandemic health issues. Thus, to ensure 

an adequate test of the domestic labor 

market and to protect the integrity of the 

H–2B program, the Departments clearly 

intended that use of emergency 

procedures must be narrowly construed 

and permitted in extraordinary and 

unforeseeable catastrophic 

circumstances that have a direct impact 

on the employer’s need for the specific 

services or labor to be performed. Even 

under the existing H–2B statutory visa 

cap structure, DOL considers USCIS’ 

announcement(s) that the statutory 

cap(s) on H–2B visas has been reached, 

which may occur with regularity every 

six months depending on H–2B visa 

need, as foreseeable, and therefore not 

within the meaning of ‘‘good and 

substantial cause’’ that would justify a 

request for emergency procedures. 

Accordingly, employers cannot rely 

solely on the supplemental H–2B visas 

made available through this rule as good 

and substantial cause to use emergency 

procedures under 20 CFR 655.17. 

Additional Recruitment 

In addition to the recruitment already 

conducted in connection with a valid 

TLC, to ensure the recruitment has not 

become stale, employers that wish to 

obtain visas for their workers under 8 

CFR 214.2(h)(6)(xiv), and who file an I– 

129 petition 30 or more days after the 

certified start date of work on the TLC 

must conduct additional recruitment for 

U.S. workers. As noted in the 2015 H– 

2B Interim Final Rule, U.S. workers 

seeking employment in temporary 

nonagricultural jobs typically do not 

search for work months in advance and 

cannot make commitments about their 

availability for employment far in 

advance of the work start date. See 80 

FR 24041, 24061, 24071. Given that the 

temporary labor certification process 

generally begins 75 to 90 days in 

advance of the employer’s start date of 

work, employer recruitment efforts 

typically occur between 40 and 60 days 

before that date with an obligation to 

provide employment to any qualified 

U.S. worker who applies until 21 days 

before the date of need. Therefore, 

employers with TLCs containing a start 

date of work on October 1, 2023, for 

example, likely conducted their positive 

recruitment beginning around late-July 

and ending around mid-August 2023, 

and continued to consider U.S. worker 

applicants and referrals only until 

September 10, 2023. 

In order to provide U.S. workers a 

realistic opportunity to pursue jobs for 

which employers will be seeking foreign 

workers under this rule, the 

Departments have determined that if 

employers file an I–129 petition 30 or 

more days after their certified start dates 

of work, as shown on its approved Form 

ETA–9142B, Final Determination: H–2B 

Temporary Labor Certification 

Approval, they have not conducted 

recruitment recently enough for the 

DOL to reasonably conclude that there 

are currently an insufficient number of 

U.S. workers who are qualified, willing, 

and available to perform the work 

absent taking additional, positive 

recruitment steps. As noted in the FY 

2022 second half H–2B supplemental 

cap TFR, the Departments determined 

that this 30-day requirement is 

consistent with provisions contained in 

previous TFRs and better aligns with the 

goal of affording workers an adequate 

opportunity to apply for jobs closer to 

when they tend to search for temporary 

employment, as explained in the 2015 

H–2B Interim Final Rule, which found 

that U.S. applicants applying for 

temporary positions typically offered by 

H–2B employers are often not seeking 

job opportunities, or making informed 

decisions about such work, several 

months in advance. See 80 FR 24041, 

24071; 87 FR 30334, 30353–54. The 

Departments continued to use this 30- 

day requirement in the FY 2023 H–2B 

supplemental cap TFR based on the 

rationale provided in the FY 2022 

second half H–2B supplemental cap 

TFR. See 87 FR 76816, 76842–76843. 

The Departments have determined that 

this requirement is necessary to provide 

U.S. workers an opportunity to pursue 

jobs for which employers are seeking 

supplemental visas. 

An employer that files an I–129 

petition under 8 CFR 214.2(h)(6)(xiv) 

fewer than 30 days after the certified 

start date of work on the TLC must 

submit the TLC and a completed Form 

ETA–9142B–CAA–8 but is not required 

to conduct additional recruitment for 

U.S. workers beyond the recruitment 

already conducted as a condition of 

certification. Only those employers with 

still-valid TLCs with a certified start 

date of work that is 30 or more days 

before the date they file a petition will 

be required to conduct recruitment in 

addition to that conducted prior to 

being granted a TLC and attest that the 

recruitment will be conducted, as 

follows. 


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Placement of New Job Orders With State 

Workforce Agencies 

Employers that are required to engage 

in additional recruitment must place a 

new job order for the job opportunity 

with the State Workforce Agency (SWA) 

serving the area of intended 

employment no later than the next 

business day after submitting an I–129 

petition for H–2B workers to USCIS, and 

inform the SWA that the job order is 

being placed in connection with a 

previously submitted and certified 

Application for Temporary Employment 

Certification for H–2B workers by 

providing the SWA with the unique 

OFLC TLC case number. Under this 

rule, employers must also provide the 

OFLC NPC with the unique TLC case 

number concurrently with their 

placement of new job orders with the 

SWAs. This notification will allow 

OFLC to cross reference and repost 

information about the job opportunities 

that are provided on the employers’ 

certified Applications for Temporary 

Labor Certification and posted by OFLC 

on SeasonalJobs.dol.gov, which is 

DOL’s electronic job registry authorized 

under 20 CFR 655.34. Once posted by 

OFLC, information about the employer’s 

certified job opportunity will remain 

posted for a period of at least 15 

calendar days, which is consistent with 

the period of time SWAs post job orders 

for intrastate and interstate clearance to 

recruit U.S. workers, as discussed 

below. The Departments continue to 

believe this additional notification is a 

reasonable and cost-efficient method of 

disseminating available job 

opportunities to a wider audience and 

those U.S. workers who may be 

interested in applying. While not meant 

to recreate it, this action will serve the 

same functional purpose as the posting 

on Seasonal Jobs. To help employers 

who must conduct this notification 

requirement, DOL encourages 

employers to notify the OFLC NPC, at 

the same time notification is sent to the 

SWA, by sending an email to H2Bsupplementalvisas@dol.gov, and 

including the words ‘‘H–2B TFR 2024 

Recruitment’’ followed by the unique 

TLC case number in the subject line of 

the email. 

The new job order placed with the 

SWA must contain the job assurances 

and contents set forth in 20 CFR 655.18 

for recruitment of U.S. workers at the 

place of employment, and remain 

posted for at least 15 calendar days. The 

employer must also follow all 

applicable SWA instructions for posting 

job orders and receive applications in 

all forms allowed by the SWA, 

including online applications. The 

Departments have concluded that 

keeping the job order posted for a period 

of at least 15 calendar days, during the 

period the employer is conducting the 

additional recruitment steps explained 

below and OFLC reposts the job 

opportunity information, will effectively 

ensure U.S. workers are apprised of the 

job opportunity and are referred for 

employment, if they are willing, 

qualified, and available to perform the 

work. The minimum 15 calendar day 

period also is consistent with the 

employer-conducted recruitment 

activity period applicable under 20 CFR 

655.40(b). 

Once the SWA places the new job 

order on its public labor exchange 

system, the SWA will perform its 

normal employment service activities by 

circulating the job order for intrastate 

clearance, and in interstate clearance by 

providing a copy of the job order to 

other SWAs with jurisdiction over listed 

worksites as well as those States the 

OFLC CO designated in the original 

Notice of Acceptance issued under 20 

CFR 655.33. Where the occupation or 

industry is traditionally or customarily 

unionized, the SWA will also circulate 

a copy of the new job order to the 

central office of the State Federation of 

Labor in the State(s) in which work will 

be performed, and the office(s) of local 

union(s) representing workers in the 

same or substantially equivalent job 

classification in the area(s) in which 

work will be performed, consistent with 

its current obligation under 20 CFR 

655.33(b)(5). To facilitate an effective 

dissemination of these job 

opportunities, DOL encourages union(s) 

or hiring halls representing workers in 

occupations typically used in the H–2B 

program to proactively contact and 

establish partnerships with SWAs in 

order to obtain timely information on 

available temporary job opportunities. 

This will aid the SWAs’ prompt and 

effective outreach under the rule. DOL’s 

OFLC maintains a comprehensive 

directory of contact information for each 

SWA at https://www.dol.gov/agencies/ 

eta/foreign-labor/contact. 

Contact With American Job Centers 

The employer also must conduct 

additional recruitment steps during the 

period of time the SWA is actively 

circulating the job order for intrastate 

clearance. First, the employer must 

contact, by email or other electronic 

means, the nearest American Job 

Center(s) (AJC) serving the area of 

intended employment where work will 

commence to request staff assistance to 

advertise and recruit U.S. workers for 

the job opportunity. AJCs bring together 

a variety of programs providing a wide 

range of employment and training 

services for U.S. workers, including job 

search services and assistance for 

prospective workers and recruitment 

services for employers through the 

Wagner-Peyser Program. Therefore, 

AJCs can offer assistance to employers 

with recruitment of U.S. workers, and 

contact with local AJCs will facilitate 

contemporaneous and effective 

recruitment activities that can broaden 

dissemination of the employer’s job 

opportunity through connections with 

other partner programs within the OneStop System to locate qualified U.S. 

workers to fill the employer’s labor 

need. For example, the local AJC, 

working in concert with the SWA, can 

coordinate efforts to contact 

community-based organizations in the 

geographic area that serve potentially 

qualified workers or, when a job 

opportunity is in an occupation or 

industry that is traditionally or 

customarily unionized, the local AJC 

may be better positioned to identify and 

circulate the job order to appropriate 

local union(s) or hiring hall(s), 

consistent with 20 CFR 655.33(b)(5). In 

addition, as a partner program in the 

One-Stop System, AJCs are connected 

with the State’s unemployment 

insurance program, thus an employer’s 

connection with the AJC will help 

facilitate knowledge of the job 

opportunity to U.S. workers actively 

seeking employment. When contacting 

the AJC(s), the employer must provide 

staff with the job order number or, if the 

job order number is unavailable, a copy 

of the job order. 

To increase navigability and to make 

the process as convenient as possible, 

DOL offers an online service for 

employers to locate the nearest local 

AJC at https://www.careeronestop.org/ 

and by selecting the ‘‘Find Local Help’’ 

feature on the main homepage. This 

feature will navigate the employer to a 

search function called ‘‘Find an 

American Job Center’’ where the city, 

state or zip code covering the 

geographic area where work will 

commence can be entered. Once entered 

and the search function is executed, the 

online service will return a listing of the 

name(s) of the AJC(s) serving that 

geographic area as well as a contact 

option(s) and an indication as to 

whether the AJC is a ‘‘comprehensive’’ 

or ‘‘affiliate’’ center. Employers must 

contact the nearest ‘‘comprehensive’’ 

AJC serving the area of intended 

employment where work will 

commence or, where a 

‘‘comprehensive’’ AJC is not available, 

the nearest ‘‘affiliate’’ AJC. A 

‘‘comprehensive’’ AJC tends to be a 


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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80427 

171The Departments have determined that the 

requirement for employers to contact the nearest 

AFL–CIO office properly balances the goal of 

increasing U.S. worker outreach in those H–2B job 

opportunities that are in traditionally or 

customarily unionized occupations, while still 

providing employers with necessary guidance on 

recruitment requirements. The AFL–CIO is a 

voluntary federation of more than 60 national and 

international labor unions covering a substantial 

number of union employees. AFL–CIO, About Us, 

https://aflcio.org/about-us (last visited October 11, 

2023). The H–2B job opportunities in traditionally 

or customarily unionized occupations most 

frequently fall within those industries most likely 

to be organized or represented by AFL–CIO member 

unions. Additionally, the AFL–CIO’s status as the 

largest federation of unions in the United States 

provides for comprehensive national coverage and 

increases the chances that a U.S. worker will be 

hired. See AFL–CIO Press Release, https:// 

aflcio.org/press/releases/afl-cio-teams-wilmingtontrust-and-bny-mellon-expand-retirement-planningoptions (last visited October 11, 2023) (noting the 

AFL–CIO is ‘‘the nation’s largest federation of labor 

unions’’). As discussed below, the SWAs 

circulation of relevant job orders based on their 

knowledge of the local labor market would provide 

effective outreach to other federations of unions and 

non-affiliated unions. 172These resources were developed based on 

recent information received from stakeholders 

indicating that collective bargaining agreements 

now exist in certain occupations, such as 

landscaping. In addition, the occupations or 

industries listed are ones in which the Department 

has typically observed substantial union presence 

in its program administration experience, such as 

occupations involved in public sector employment, 

construction and extraction activities, and servicerelated industries, where historical Bureau of Labor 

Statistics data has demonstrated a presence of 

union affiliated workers. See BLS, Economic News 

Release, Table 3. Union Affiliation of Employed 

Wage and Salary Workers by Occupation and 

Industry (Jan. 20, 2022), https://www.bls.gov/ 

news.release/union2.t03.htm. 

large office that offers the full range of 

employment and business services, and 

an ‘‘affiliate’’ AJC typically is a smaller 

office that offers a self-service career 

center, conducts hiring events, and 

provides workshops or other select 

employment services for workers. 

Because a ‘‘comprehensive’’ AJC may 

not be available in many geographic 

areas, particularly among rural 

communities, this rule permits 

employers to contact the nearest 

‘‘affiliate’’ AJC serving the area of 

intended employment where a 

‘‘comprehensive’’ AJC is not available. 

In order to facilitate efficient access to 

AJC services, this rule requires that 

employers utilize available electronic 

methods to contact the nearest AJC to 

meet the contact and disclosure 

requirements in this rule. 

Contact With AFL–CIO for Jobs in 

Traditionally or Customarily Unionized 

Occupation or Industry 

When a job is in a traditionally or 

customarily unionized occupation or 

industry, during the time the SWA is 

actively circulating the job order the 

employer must affirmatively contact the 

nearest American Federation of Labor 

and Congress of Industrial 

Organizations (AFL–CIO) office 

covering the area of intended 

employment to provide written notice of 

the job opportunity and request 

assistance in recruiting qualified U.S. 

workers who may be interested in 

applying for the job opportunity. The 

employer must provide the AFL–CIO 

office (by mail, email, or other effective 

written means) a copy of the job order 

placed with the SWA. To determine 

which occupations are traditionally or 

customarily unionized, and to obtain 

information about the proper AFL–CIO 

office to contact,171 employers should 

search the resources available on the 

OFLC website, under the ‘‘Customarily 

Unionized H–2B Occupations’’ tab on 

the lefthand side of the OFLC 

homepage: https://www.dol.gov/ 

agencies/eta/foreign-labor.172 In 

addition, to help employers who must 

conduct this additional recruitment 

step, employers may also contact the 

national AFL–CIO and request 

assistance in circulating the job order to 

the nearest AFL–CIO office covering the 

area of intended employment to 

advertise and recruit U.S. workers for 

the job opportunity. The most effective 

means of contacting the national AFL– 

CIO is to email the job order and request 

for assistance to H-2B@aflcio.org, but 

employers may also visit https://

aflcio.org to obtain information on other 

effective means of contacting the 

organization for assistance. Upon 

receipt, the national AFL–CIO will 

distribute a copy of the job order, on 

behalf of the employer, to the most 

appropriate AFL–CIO office(s) serving 

the area of intended employment for 

that job opportunity. The Department 

believes that this approach will be more 

straightforward and simpler for 

employers, and therefore encourages 

employers to meet the notification 

requirement by contacting the national 

AFL–CIO directly. 

When applicable, the employer must 

include information in its recruitment 

report confirming that either the 

national or nearest AFL–CIO office was 

contacted and notified in writing of the 

job opportunity or opportunities. In the 

recruitment report, the employer must 

state whether the nearest AFL–CIO 

office referred qualified U.S. worker(s), 

including the number of referrals, or 

indicate that it was non-responsive to 

the employer’s requests. The employer 

must retain all documentation 

establishing that it has contacted either 

the national or nearest AFL–CIO office 

and submit all such information upon 

request from the Departments. 

Documentation or evidence that would 

help employers establish that the 

appropriate AFL–CIO office was 

contacted, may include, but is not 

limited to: documentation proving the 

job order was shipped and delivered to 

the AFL–CIO office (e.g., copy of the job 

order along with the certificate of 

shipment provided by the U.S. Postal 

Service or other courier mail or parcel 

delivery services and/or any other form 

of delivery confirmation); evidence 

confirming that the job order, along with 

a request for assistance to recruit 

workers, was in fact emailed to the 

appropriate AFL–CIO office (e.g., copies 

of emails); phone records accompanied 

by proof of a follow-up email sending 

the job order to the appropriate AFL– 

CIO office; or copies of any 

correspondence exchanged (e.g., letter, 

email) between the employer and the 

AFL–CIO office regarding worker 

referrals. 

We believe the requirement that 

employers contact the AFL–CIO in 

occupations or industries that are 

traditionally or customarily unionized 

will complement the requirement that 

SWAs circulate the job order to the State 

Federation of Labor and local unions in 

such situations, thereby increasing the 

likelihood that a U.S. worker will be 

recruited for the job opportunity. This is 

because in traditionally or customarily 

unionized industries and occupations, 

unions serve as an essential conduit for 

communications between U.S. workers 

and hiring employers and have 

traditionally been recognized as a 

reliable source of referrals of U.S. 

workers. Unionized applicants may 

additionally share information about the 

job opportunity with nonunionized 

applicants, resulting in more referrals of 

qualified applicants to the job 

opportunity. Within this context, the 

two requirements complement each 

other as the State Federations of Labor 

and local unions that SWAs would 

circulate relevant job orders to, based on 

their knowledge of the local labor 

market, are comprised of various union 

organizations and may not always 

include the AFL–CIO. Since H–2B job 

opportunities in traditionally or 

customarily unionized occupations tend 

to fall within those industries most 

likely to be organized or represented by 

AFL–CIO member unions, this 

requirement increases outreach to 

qualified U.S. workers. Moreover, this 

requirement offers a chance for hiring 

employers to directly contact a potential 

pool of U.S. workers who are qualified 

and interested in the job opportunity, 

which can strengthen the probability 

that employers will locate U.S. workers 


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80428 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

173Furloughed employees are employees the 

employer laid off (as the term is defined in 20 CFR 

655.5 and 29 CFR 503.4), but the layoff is intended 

to last for a temporary period of time. 

suited for the job opportunity. For 

example, potential U.S. workers may be 

more inclined to contact an employer 

directly upon learning of the job 

opportunity rather than utilize the SWA 

as an intermediary since the application 

process could be quicker and 

demonstrates a willingness by 

employers to consider union workers. 

Direct contact between employers and 

unions may also initiate a dialogue 

between employers and unions that 

could lead to a future working 

relationship that fulfills the workforce 

needs of employers. Therefore, in 

providing timely and meaningful notice 

of job opportunities in traditionally or 

customarily unionized industries to the 

AFL–CIO, employers build on efforts by 

SWAs to circulate job orders to state and 

local unions, which may differ from the 

AFL–CIO, and thus broaden the scope of 

their U.S. worker outreach. 

Contact With Former U.S. Workers 

During the period of time the SWA is 

actively circulating the job order 

described in paragraph (a)(4)(i) of 20 

CFR 655.64 for intrastate clearance, the 

employer must make reasonable efforts 

to contact (by mail or other written 

effective means) its former U.S. workers 

that it employed in the occupation at 

the place of employment (except those 

who were dismissed for cause or who 

abandoned the worksite) during the 

period beginning January 1, 2022 until 

the date the I–129 petition required 

under 8 CFR 214.2(h)(6)(xiv) is 

submitted. Among the employees the 

employer must contact are those who 

have been furloughed 173 or laid off 

during this period. The employer must 

disclose to its former employees the 

terms of the job order placed with the 

SWA, and solicit their return to the job. 

The employer must provide the contact 

and disclosures required by this 

paragraph in a language understood by 

the worker, as necessary or reasonable, 

and in writing to ensure the recruitment 

effort is effective and meaningful in 

reaching each former U.S. worker. The 

Departments are requiring written 

communication because they believe 

that written contact and disclosure of 

the terms of the job order is more 

effective than oral disclosure, and 

provides greater assurance that workers 

understand the terms and working 

conditions of the job opportunity and 

can more effectively pursue redress if 

they do not receive the disclosed terms 

and working conditions. Written 

communication and disclosure will also 

make it easier for employers to establish 

compliance with this requirement, if 

necessary. 

Contact With the Bargaining 

Representative or Posting of the Job 

Order 

As the employer was required to do 

when initially applying for its labor 

certification, the employer must provide 

a copy of the job order to the bargaining 

representative for its employees in the 

occupation and area of intended 

employment, consistent with 20 CFR 

655.45(a), or if there is no bargaining 

representative, post the job order in the 

places and manner described in 20 CFR 

655.45(b). Similar to the requirement to 

contact former U.S. workers, discussed 

above, the employer must provide the 

contact and disclosures required by this 

paragraph in a language understood by 

the worker, as necessary or reasonable, 

and in writing to ensure the recruitment 

effort is effective and meaningful in 

reaching each former U.S. worker. 

Contact With Current U.S. Workers 

As was required in the FY 2023 H–2B 

supplemental visa TFR, employers must 

again contact U.S. workers currently 

employed at the place of employment to 

inform them of the job opportunity and 

request their assistance in recruiting 

qualified U.S. workers who may be 

seeking employment. The Departments 

continue to believe this recruitment step 

is a reasonable and cost-effective 

method of broadening dissemination of 

available job opportunities and 

increasing the likelihood that qualified 

U.S. workers will apply. We believe the 

requirement that employers contact 

their current U.S. workers employed at 

the place(s) of employment and solicit 

their assistance in recruiting other 

qualified U.S. workers will complement 

the requirement that employers post the 

job order in the places and manner 

described in 20 CFR 655.45(b), enhance 

word-of-mouth recruiting, which is a 

common method of soliciting referrals 

of qualified U.S. workers, and increase 

the likelihood of locating U.S. workers 

suited for the job opportunity more 

quickly and efficiently. U.S. workers 

currently employed by the employer, 

who are more likely to be familiar with 

the nature of the employer’s business 

operations and services or labor to be 

performed, will generally refer other 

U.S. workers who are qualified and may 

be more inclined to contact an employer 

directly upon learning of the job 

opportunity from a family, friend, or 

colleague with experience working for 

the employer. 

Accordingly, during the period of 

time the SWA is actively circulating the 

job order described in paragraph (a)(4)(i) 

of 20 CFR 655.64 for intrastate 

clearance, the employer must make 

reasonable efforts to contact (by mail or 

other effective written means) all U.S. 

workers it currently employs at the 

place(s) of employment under the 

certified TLC. The employer must 

disclose to each of its current U.S. 

workers the terms of the job order 

placed with the SWA, and request 

assistance in recruiting qualified U.S. 

workers who may be interested in 

applying for the job opportunity. The 

contacts, disclosures, and requests for 

assistance required by this paragraph 

must be provided in a language 

understood by the worker, as necessary 

or reasonable, and in writing to ensure 

the recruitment effort is effective and 

meaningful in reaching each current 

U.S. worker. 

The employer must retain all 

documentation establishing that it has 

contacted each U.S. worker it currently 

employs at the place(s) of employment 

under the certified TLC and submit all 

such information upon request from the 

Departments. Documentation or 

evidence that would help employers 

establish compliance with this 

regulatory requirement may include, but 

is not limited to the following: 

documentation proving the job order, 

along with a request for assistance to 

recruit workers, was shipped and 

delivered to each current U.S. worker’s 

address (e.g., copy of the job order and 

request for assistance along with the 

certificate of shipment provided by the 

U.S. Postal Service or other courier mail 

or parcel delivery services and/or any 

other form of delivery confirmation); 

evidence confirming that the job order, 

along with a request for assistance to 

recruit workers, was emailed to the 

current U.S. worker (e.g., copies of 

emails); or copies of any 

correspondence exchanged (e.g., letter, 

email) between the employer and the 

current U.S. worker regarding referrals 

of other qualified U.S. workers. 

The requirements to contact current 

and former U.S. workers and provide 

notice to the bargaining representative 

or post the job order must be conducted 

in a language understood by the 

workers, as necessary or reasonable. 

This requirement would apply, for 

example, in situations where an 

employer has one or more employees 

who do not speak English as their 

primary language and who have a 

limited ability to read, write, speak, or 

understand English. This requirement 

would allow those workers to make 

informed decisions regarding the job 


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174The U.S. Chamber of Commerce reports that 

71% of small businesses have a website and, of 

those with websites, 79% of survey respondents 

claimed that their websites are mobile-friendly. 

According to the survey results, 92% of the 29% 

of small businesses without a website reported 

planning to have one up and running by the end 

of 2018. See U.S. Chamber of Commerce, Small 

Business Statistics, available at https://

www.chamberofcommerce.org/small-businessstatistics/#marketing-statistics (accessed October 

11, 2023). 

opportunity, and is a reasonable 

interpretation of the recruitment 

requirements in 20 CFR part 655, 

subpart A, in light of the need to ensure 

that the test of the U.S. labor market is 

as comprehensive as possible. 

Consistent with existing language 

requirements in the H–2B program 

under 20 CFR 655.20(l), DOL intends to 

broadly interpret the necessary or 

reasonable qualification, and apply an 

exemption only in those situations 

where having the job order translated 

into a particular language would both 

place an undue burden on an employer 

and not significantly disadvantage the 

employee. 

Posting of the Job Opportunity on the 

Employer’s Website If the Employer Has 

a Website 

Finally, as was required in the FY 

2023 H–2B supplemental visa TFR, 

where the employer maintains a 

company website for its business 

operations, the employer must post an 

electronic advertisement of the job 

opportunity in a conspicuous location 

on this website. 

Although the vast majority of small 

businesses in the United States maintain 

a website, the Departments acknowledge 

that not all employers maintain a 

company website.174 As discussed in 

the prior TFR, although there is no 

parallel requirement for employers 

without a website, the Departments 

believe that continuing to require 

employers with websites to post the job 

announcement on their website is 

reasonable because this population of 

employers uses their websites to inform 

the public about their existence and/or 

the services they may provide. Thus, 

these employers’ advertisement of the 

job opportunity, via their websites, is 

consistent with these employers’ use of 

the internet/electronic means to 

communicate with the public. 

Accordingly, this recruitment 

requirement will continue to apply only 

to employers that maintain a website for 

business operations. For employers who 

must conduct this additional 

recruitment step, the electronic 

advertisement of the job opportunity on 

the company website must be posted in 

a conspicuous location. This means 

access to the electronic advertisement 

on the company website must be clearly 

visible on the website’s homepage or 

easily accessible from the website’s 

homepage using any job search tool(s) or 

direct links from the homepage to a 

subsequent web page where other 

available jobs or careers are normally 

posted by the employer. 

The Departments have concluded that 

keeping the electronic advertisements 

on company websites posted for a 

period of at least 15 calendar days, 

along with the other additional 

recruitment steps discussed above, will 

effectively ensure that U.S. workers are 

apprised of the job opportunity and are 

referred for employment, if they are 

willing, qualified, and available to 

perform the work. The minimum 15 

calendar day period is also consistent 

with the employer-conducted 

recruitment activity period applicable 

under 20 CFR 655.40(b). 

The employer must retain all 

documentation establishing that it has 

posted the electronic advertisement of 

the job opportunity in compliance with 

regulatory requirements and submit all 

such information upon request from the 

Departments. Documentation or 

evidence for employers to establish 

compliance with these regulatory 

requirements can include screenshots of 

the company website on which the 

advertisement appears for a period of no 

less than 15 days and screen shots of the 

web pages establishing the path that 

U.S. workers must follow to access the 

advertisement on the website. 

Hiring U.S. Workers 

The employer must hire any qualified 

U.S. worker who applies or is referred 

for the job opportunity until 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 on which 

the SWA job order is posted, whichever 

is later. Additionally, consistent with 20 

CFR 655.40(a), applicants may be 

rejected only for lawful job-related 

reasons. Given that the employer, SWA, 

and AJC(s) will be actively engaged in 

conducting recruitment and broader 

dissemination of the job opportunity 

during the period of time the job order 

is active, this requirement provides an 

adequate period of time for U.S. workers 

to contact the employer or SWA for 

referral to the employer and completion 

of the additional recruitment steps 

described above. As explained above, 

the Departments have determined that if 

employers file a petition 30 or more 

days after their dates of need, they have 

not conducted recruitment recently 

enough for the Departments to 

reasonably conclude that there are 

currently an insufficient number of U.S. 

workers qualified, willing, and available 

to perform the work absent additional 

recruitment. 

Because of the abbreviated timeline 

for the additional recruitment required 

for employers whose initial recruitment 

has gone stale, the Departments have 

determined that this hiring period is 

necessary to approximate the hiring 

period under normal recruitment 

procedures and ensure that domestic 

workers have access to these job 

opportunities, consistent with the 

Departments’ mandate. Additionally, 

given the relatively brief period during 

which additional recruitment will 

occur, additional time may be necessary 

for U.S. workers to have a meaningful 

opportunity to learn about the job 

opportunities and submit applications. 

The Departments remind all H–2B 

employers that the job opportunity must 

be, through the recruitment period set 

forth in this rule, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship, as specified 

under 20 CFR 655.20(r). Further, 

employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

worker is being recruited so that the 

worker incurs little or no cost. 

Employers cannot provide potential H– 

2B workers with more favorable 

treatment with respect to the 

requirement for, and conduct of, 

interviews. See 20 CFR 655.40(d). 

Any U.S. worker who applies or is 

referred for the job opportunity and is 

not considered by the employer for the 

job opportunity, experiences difficulty 

accessing or understanding the material 

terms and conditions of the job 

opportunity, or believes they have been 

improperly rejected by the employer 

may file a complaint directly with the 

SWA serving the area of intended 

employment. Each SWA maintains a 

complaint system for public labor 

exchange services, established under 20 

CFR part 658, subpart E, and any 

complaint filed with the SWA by, or on 

behalf of, a U.S. worker about a specific 

H–2B job order will be processed under 

this existing complaint system. 

Depending on the circumstances, the 

SWA may seek informal resolution by 

working with the complainant and the 

employer to resolve, for example, 

miscommunications with the employer 

to be considered for the job opportunity 

or other concerns or misunderstandings 

related to the terms and conditions of 

the job opportunity; or issue a formal, 

written determination where informal 


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80430 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

resolution cannot be reached. In other 

circumstances, such as allegations 

involving discriminatory hiring 

practices or violations of other 

employment-related laws, the SWA will 

formally enter the complaint and refer 

the matter to an appropriate 

enforcement agency for prompt action. 

As mentioned above, DOL’s OFLC 

maintains a comprehensive directory of 

contact information for each SWA that 

can be used to obtain more information 

on how to file a complaint. 

Although the hiring period may 

require some employers to hire U.S. 

workers after the start of the contract 

period, this is not unprecedented. For 

example, in the H–2A program, 

employers have been required to hire 

U.S. workers through 50 percent of the 

contract period since at least 2010, 

which ‘‘enhance[s] protections for U.S. 

workers, to the maximum extent 

possible, while balancing the potential 

costs to employers,’’ and is consistent 

with the Departments’ responsibility to 

ensure that these job opportunities are 

available to U.S. workers. 74 FR 45906, 

45917. The Department acknowledges 

that hiring workers after the start of the 

contract period imposes an additional 

cost on employers, but that cost can be 

lessened, in part, by the ability to 

discharge the H–2B worker upon hiring 

a U.S. worker (note, however, that an 

employer must pay for any discharged 

H–2B worker’s return transportation, 20 

CFR 655.20(j)(1)(ii) and 29 CFR 

503.16(j)(1)(ii)). Additionally, this rule 

permits employers to immediately hire 

H–2B workers who are already present 

in the United States without waiting for 

approval of an H–2B petition, which 

will reduce the potential for harm to H– 

2B workers as a result of displacement 

by U.S. workers. See new 8 CFR 

214.2(h)(31). Most importantly, a longer 

hiring period will ensure that available 

U.S. workers have a viable opportunity 

to apply for H–2B job opportunities. 

Accordingly, the Departments have 

determined that in affording the benefits 

of this temporary cap increase to 

businesses that are suffering irreparable 

harm or will suffer impending 

irreparable harm, it is necessary to 

ensure U.S. workers have sufficient time 

to apply for these jobs. 

As in the temporary rules 

implementing the supplemental cap 

increases in prior years, employers must 

retain documentation demonstrating 

compliance with the recruitment 

requirements described above. Under 

this TFR, in accordance with 20 CFR 

655.65, employers must retain 

documentation that demonstrates 

placement of a new job order with the 

SWA, contact with AJCs, contact with 

the bargaining representative or AFL– 

CIO when required, contact with former 

U.S. workers, compliance with 20 CFR 

655.45(a) or (b), contact with current 

U.S. workers at the place of 

employment, and posting of the job 

opportunity on the employer’s website, 

if the employer has a website. 

Employers must prepare and retain a 

recruitment report that describes these 

efforts and meets the requirements set 

forth in 20 CFR 655.48, including the 

requirement to update the recruitment 

report throughout the recruitment and 

hiring period set forth in paragraph 

(a)(4)(viii) of 20 CFR 655.64. Employers 

must maintain copies of the recruitment 

report, attestation, and supporting 

documentation, as described above, for 

a period of 3 years from the date that the 

TLC was approved, consistent with the 

document retention requirements under 

20 CFR 655.65, 20 CFR 655.56, and 29 

CFR 503.17. These requirements are 

similar to those that apply to certain 

seafood employers that stagger the entry 

of H–2B workers under 20 CFR 

655.15(f). 

The Departments are committed to 

ensuring that all recruitment conducted 

in conjunction with this rule complies 

with the additional recruitment 

requirements discussed above and 

encourages individuals with 

information about that recruitment to 

contact DOL through the OFLC H–2B 

Ombudsman Program email box 

(H2B.Ombudsman@dol.gov). The H–2B 

Ombudsman Program facilitates the fair 

and equitable resolution of concerns 

that arise within the H–2B filing 

community, by conducting independent 

and impartial inquiries into issues 

related to the administration of the H– 

2B program. The H–2B Ombudsman 

Program also receives concerns and 

information relevant to case processing 

from employers, unions, and worker 

advocate organizations and ensures 

such information is appropriately 

referred within OFLC or to SWAs, as 

appropriate. 

DOL actively monitors the H–2B 

Ombudsman Program email box, which 

is the best method for the public to 

provide information to the Department 

that is relevant to the processing of H– 

2B applications. Such information may 

include information about an in-process 

TLC application, information regarding 

the employer’s compliance with H–2B 

recruitment of U.S. workers, or 

information bearing on an employer’s 

irreparable harm justification. When the 

H–2B Ombudsman Program receives 

information relevant to its review of an 

H–2B TLC application, the information 

will be forwarded to the H–2B 

processing center. The H–2B processing 

center will review the information it 

receives and will consider it, as 

appropriate. 

The H–2B Ombudsman Program, 

however, is separate and distinct from 

the employment service complaint 

system administered by the 

Employment and Training 

Administration under regulations at 20 

CFR part 658, subpart E. Any 

information relevant to an employment 

service complaint will be forwarded to 

the appropriate SWA. The public may 

also submit employment service 

complaints directly to the appropriate 

SWA; the contact information for each 

SWA is available at the following web 

page: https://www.dol.gov/agencies/eta/ 

foreign-labor/contact. 

Complaints regarding an employer’s 

failure to comply with the H–2B 

program requirements may also be 

submitted to DOL’s WHD. WHD has the 

authority to investigate the employer’s 

attestations, as the attestations are a 

required part of the H–2B petition 

process under this rule and the 

attestations rely on the employer’s 

existing, approved TLC. Where a WHD 

investigation determines that there has 

been a willful misrepresentation of a 

material fact or a substantial failure to 

meet the required terms and conditions 

of the attestations, WHD may institute 

administrative proceedings to impose 

sanctions and remedies, including (but 

not limited to) assessment of civil 

money penalties; recovery of wages due 

to workers; make-whole relief for any 

U.S. worker who has been improperly 

rejected for employment, laid off, or 

displaced; make-whole relief for any 

person who has been discriminated 

against; and/or debarment for 1 to 5 

years. See 29 CFR 503.19, 503.20. This 

regulatory authority is consistent with 

WHD’s existing enforcement authority 

and is not limited by the expiration date 

of this rule. Therefore, in accordance 

with the documentation retention 

requirements at 20 CFR 655.65, the 

petitioner must retain documents and 

records evidencing compliance with 

this rule, and must provide the 

documents and records upon request by 

DHS or DOL. 

When conducting an investigation, 

WHD will generally review the 

employer’s compliance with this rule, 

the H–2B program obligations in 

general, and any other Federal labor 

laws that WHD enforces (such as the 

Fair Labor Standards Act, which 

establishes minimum wage, overtime, 

recordkeeping and child labor 

obligations for most employers in the 

United States) and to which the 

employer is subject. WHD’s 

investigations generally involve meeting 


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with the employer, touring the worksite, 

conducting confidential interviews with 

employees, reviewing records 

(including those required by 20 CFR 

655.65 evidencing compliance with this 

rule), and, when appropriate, imposing 

sanctions and remedies (including back 

wages). For example, in the past five 

years (Fiscal Years 2019–2023), WHD 

collected more than $16.7 million in H– 

2B back wages owed to 10,778 workers, 

and assessed more than $12.4 million in 

H–2B civil money penalties. 

Within the context of this rule, WHD’s 

investigative tools are particularly adept 

for the review of alleged violations that 

may result in back wages and/or that 

require intensive fact-finding at the 

worksite. Additionally, WHD is well 

suited to investigate alleged violations 

that occur after the job order has closed 

and H–2B workers are already in the 

United States. For example, WHD’s 

tools are well suited to investigate 

allegations that U.S. applicants were 

improperly rejected for the job 

opportunity (if supplemental 

recruitment was required as outlined in 

20 CFR 655.64(a)(4)) after the job order 

has closed, as WHD may conduct 

employee interviews, question the 

employer as to why the applicant was 

not hired, review recruitment records, 

and, if a violation is substantiated, 

compute back wages for the improperly 

rejected U.S. applicant. 

Additionally, WHD is well suited to 

investigate allegations of retaliation, as 

these cases involve complex fact finding 

and, if allegations are substantiated, 

may result in make-whole relief or back 

wages owed to the worker. An employer 

is prohibited from intimidating, 

threatening, restraining, coercing, 

blacklisting, discharging, or in any 

manner discriminating against any 

person who has, among other actions: 

filed a complaint related to H–2B rights 

and protections; consulted with a 

workers’ rights center, community 

organization, labor union, legal 

assistance program, or attorney on H–2B 

rights or protections; or exercised or 

asserted H–2B rights and protections on 

behalf of themselves or others. 20 CFR 

655.20(n) and 29 CFR 503.16(n). 

Examples of protected activity include 

making a complaint to a manager, 

employer, or WHD; cooperating with a 

WHD investigation; requesting payment 

of wages; refusing to return back wages 

to the employer; consulting with WHD 

or workers’ rights organization; and 

testifying in a trial. If other laws are 

applicable (such as the Fair Labor 

Standards Act), the anti-retaliation 

provisions of those laws may also be 

applicable. 

In addition to the H–2B Ombudsman 

Program and the employment service 

complaint system under 20 CFR part 

658, subpart E, which are described 

above, workers or U.S. applicants for job 

opportunities who believe their rights 

under the H–2B program have been 

violated may file complaints with WHD 

by telephone at 1–866–487–9243 or may 

access the telephone number via TTY by 

calling 1–877–889–5627 or visit https:// 

www.dol.gov/agencies/whd to locate the 

nearest WHD office for assistance. 

Complainants should be prepared to 

provide their name and contact 

information; name, address, and contact 

information for the employer; and 

details about the alleged violation. WHD 

maintains all complaints as confidential 

unless the complainant provides WHD 

with permission to use their name when 

speaking to the employer. 

DHS has the authority to verify any 

information submitted to establish H–2B 

eligibility at any time before or after the 

petition has been adjudicated by USCIS. 

See, e.g., INA sections 103 and 214 (8 

U.S.C. 1103, 1184); see also 8 CFR part 

103 and section 214.2(h). DHS’ 

verification methods may include, but 

are not limited to, review of public 

records and information, contact via 

written correspondence or telephone, 

unannounced physical site inspections, 

and interviews. USCIS will use 

information obtained through 

verification to determine H–2B 

eligibility and assess compliance with 

the requirements of the H–2B program. 

Subject to the exceptions described in 8 

CFR 103.2(b)(16), USCIS will provide 

petitioners with an opportunity to 

address adverse information that may 

result from a USCIS compliance review, 

verification, or site visit that occurs after 

a formal decision is made on a petition 

or after the agency has initiated an 

adverse action that may result in 

revocation or termination of an 

approval. 

DOL’s OFLC already has the authority 

under 20 CFR 655.70 to conduct audit 

examinations on adjudicated 

Applications for Temporary 

Employment Certification, including all 

appropriate appendices, and verify any 

information supporting the employer’s 

attestations. OFLC uses audits of 

adjudicated Applications for Temporary 

Employment Certification, as authorized 

by 20 CFR 655.70, to ensure employer 

compliance with attestations made in its 

Application for Temporary Employment 

Certification and to ensure the employer 

has met all statutory and regulatory 

criteria and satisfied all program 

requirements. The OFLC CO has sole 

discretion to choose which Applications 

for Temporary Employment 

Certification will be audited. See 20 

CFR 655.70(a). Post-adjudication audits 

can be used to establish a record of 

employer compliance or noncompliance with program requirements 

and the information gathered during the 

audit assists DOL in determining 

whether it needs to further investigate 

or debar an employer or its agent or 

attorney from future labor certifications. 

Under this rule, an employer may 

submit a petition to USCIS, including a 

valid TLC and Form ETA–9142B–CAA– 

8, in which the employer attests to 

compliance with requirements for 

access to the supplemental H–2B visas 

allocated through 8 CFR 

214.2(h)(6)(xiv), including that its 

business is suffering irreparable harm or 

will suffer impending irreparable harm, 

and that it will conduct additional 

recruitment, if necessary to refresh the 

TLC’s labor market test. DHS and DOL 

consider Form ETA–9142B–CAA–8 to 

be an appendix to the Application for 

Temporary Employment Certification 

and the attestations contained on the 

Form ETA–9142B–CAA–8 and 

documentation supporting the 

attestations to be evidence that is 

incorporated into and a part of the 

approved TLC. Therefore, DOL’s audit 

authority includes the authority to audit 

the veracity of any attestations made on 

Form ETA–9142B–CAA–8 and 

documentation supporting the 

attestations. In order to make certain 

that the supplemental visa allocation is 

not subject to fraud or abuse, DHS will 

continue to share information regarding 

Forms ETA–9142B–CAA–8 with DOL, 

consistent with existing authorities. 

This information sharing between DHS 

and DOL, along with relevant 

information that may be obtained 

through the separate SWA and WHD 

complaint systems, are expected to 

support DOL’s identification of TLCs 

used to access the supplemental visa 

allocation for closer examination of 

TLCs through the audit process. 

In accordance with the 

documentation retention requirements 

in this rule, the petitioner must retain 

documents and records proving 

compliance with this rule, and must 

provide the documents and records 

upon request by DHS or DOL. Under 

this rule, DOL will audit a significant 

number of TLCs used to access the 

supplemental visa allocation to ensure 

employer compliance with attestations, 

including those regarding the 

irreparable harm standard and 

additional employer conducted 

recruitment, required under this rule. In 

the event of an audit, the OFLC CO will 

send a letter to the employer and, if 

appropriate, a copy of the letter to the 


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175Because the Departments have issued this rule 

as a temporary final rule, the supplemental cap 

portion of this rule—with the sole exception of the 

document retention requirements—will be of no 

effect after September 30, 2024. The ability to 

initiate employment with a new employer pursuant 

to the portability provisions of this rule expires at 

the end of on January 24, 2025. 

176See Section 303, Consolidated Appropriations 

Act, 2023, Division O, Public Law 117–328 (Dec. 

29, 2022), extended by sections 101(6) and 106 of 

the Continuing Appropriations Act, 2024 and Other 

Extensions Act, Division A (‘‘Continuing 

Appropriations Act, 2024’’), Public Law 118–15 

(Sep. 30, 2023). 

177Pursuant to section 101(6) and 106 of the 

Continuing Appropriations Act, 2024, Division A, 

Public Law 118–15, the deadline for exercising the 

FY 2024 supplemental cap authority under this act 

is Nov. 17, 2023, the date on which the Continuing 

Appropriations Act expires. 

178See Irina Ivanova, America’s labor shortage is 

actually an immigrant shortage, CBS News, https:// 

www.cbsnews.com/news/immigration-jobs-workerslabor-shortage/ (Apr. 8, 2022). (‘‘U.S. employers say 

it’s a hard time to find and keep talent. Workers are 

decamping at near-record rates, while millions of 

open jobs go unfilled. One reason for this labor 

crunch that has largely flown beneath the radar: 

Immigration to the U.S. is plummeting, a shift with 

potentially enormous long-term implications for the 

job market.’’) 

employer’s attorney or agent, listing the 

documentation the employer must 

submit and the date by which the 

documentation must be sent to the CO. 

During audits under this rule, the CO 

will request documentation necessary to 

demonstrate the employer conducted all 

recruitment steps required under this 

rule and truthfully attested to the 

irreparable harm the employer was 

suffering or would suffer in the near 

future without the ability to employ all 

of the H–2B workers requested under 

the cap increase, including 

documentation the employer is required 

to retain under this rule. If necessary to 

complete the audit, the CO may request 

supplemental information and/or 

documentation from the employer 

during the course of the audit process. 

20 CFR 655.70(c). 

Failure to comply in the audit process 

may result in the revocation of the 

employer’s certification or in 

debarment, under 20 CFR 655.72 and 

655.73, respectively, or require the 

employer to undergo assisted 

recruitment in future filings of an 

Application for Temporary Employment 

Certification, under 20 CFR 655.71. 

Where an audit examination or review 

of information from DHS or other 

appropriate agencies determines that 

there has been fraud or willful 

misrepresentation of a material fact or a 

substantial failure to meet the required 

terms and conditions of the attestations 

or failure to comply with the audit 

examination process, OFLC may 

institute appropriate administrative 

proceedings to impose sanctions on the 

employer. Those sanctions may result in 

revocation of an approved TLC, the 

requirement that the employer undergo 

assisted recruitment in future filings of 

an Application for Temporary 

Employment Certification for a period of 

up to 2 years, and/or debarment from 

the H–2B program and any other foreign 

labor certification program administered 

by DOL for 1 to 5 years. See 20 CFR 

655.71, 655.72, 655.73. Additionally, 

OFLC has the authority to provide any 

finding made or documents received 

during the course of conducting an 

audit examination to DHS, WHD, IER, or 

other enforcement agencies. OFLC’s 

existing audit authority is 

independently authorized, and is not 

limited by the expiration date of this 

rule. Therefore, in accordance with the 

documentation retention requirements 

at 20 CFR 655.65, the petitioner must 

retain documents and records proving 

compliance with this rule, and must 

provide the documents and records 

upon request by DHS or DOL. 

Petitioners must also comply with any 

other applicable laws, such as avoiding 

unlawful discrimination against U.S. 

workers based on their citizenship 

status or national origin. Specifically, 

the failure to recruit and hire qualified 

and available U.S. workers on account 

of such individuals’ national origin or 

citizenship status may violate INA 

section 274B, 8 U.S.C. 1324b. 

IV. Statutory and Regulatory 

Requirements 

A. Administrative Procedure Act 

This rule is issued without prior 

notice and opportunity to comment and 

with an immediate effective date 

pursuant to the Administrative 

Procedure Act (APA). 5 U.S.C. 553(b) 

and (d). 

1. Good Cause To Forgo Notice and 

Comment Rulemaking 

The APA, 5 U.S.C. 553(b)(B), 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency, for good 

cause, finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Among other 

things, the good cause exception for 

forgoing notice and comment 

rulemaking ‘‘excuses notice and 

comment in emergency situations, or 

where delay could result in serious 

harm.’’ Jifry v. FAA, 370 F.3d 1174, 

1179 (D.C. Cir. 2004). Courts have found 

‘‘good cause’’ under the APA in similar 

situations when an agency is moving 

expeditiously to avoid significant 

economic harm to a program, program 

users, or an industry. See, e.g., Nat’l 

Fed’n of Fed. Emps. v. Devine, 671 F.2d 

607, 611 (D.C. Cir. 1982) (holding that 

an agency may use the good cause 

exception to address ‘‘a serious threat to 

the financial stability of [a government] 

benefit program’’); Am. Fed’n of Gov’t 

Emps. v. Block, 655 F.2d 1153, 1156 

(D.C. Cir. 1981) (finding good cause 

when an agency bypassed notice and 

comment to avoid ‘‘economic harm and 

disruption’’ to a given industry, which 

would likely result in higher consumer 

prices). 

Although the good-cause exception is 

‘‘narrowly construed and only 

reluctantly countenanced,’’ Tenn. Gas 

Pipeline Co. v. FERC, 969 F.2d 1141, 

1144 (D.C. Cir. 1992), the Departments 

have appropriately invoked the 

exception in this case due to the time 

exigencies resulting from the unique 

procedural history of the Department’s 

authority for this action and the ongoing 

economic need for this rulemaking, as 

described further below. Overall, the 

Departments are bypassing notice and 

comment to prevent ‘‘serious economic 

harm to the H–2B community,’’ 

including U.S. employers, associated 

U.S. workers, and related professional 

associations, that could result from the 

failure to provide supplemental visas as 

authorized by Congress. See Bayou 

Lawn & Landscape Servs. v. Johnson, 

173 F. Supp. 3d 1271, 1285 & n.12 (N.D. 

Fla. 2016). The Departments note that 

this action is temporary in nature, see 

id.,175 and limits eligibility for H–2B 

supplemental visas to only those 

businesses most in need, and also 

protects H–2B and U.S. workers. 

With respect to the supplemental 

allocations provisions in 8 CFR 214.2 

and 20 CFR part 655, subpart A, as 

explained above, the Departments are 

acting pursuant to the extension of 

supplemental cap authority in Section 

303 of the Consolidated Appropriations 

Act, 2023 by sections 101(6) and 106 of 

the Continuing Appropriations Act, 

2024 and Other Extensions Act 

(authorized on September 30, 2023) to 

FY 2024.176 The deadline for exercising 

the FY 2024 supplemental cap authority 

under the Continuing Appropriations 

Act, 2023 is November 17, 2023, the 

date on which the Continuing 

Appropriations Act, 2024 expires.177

This timing concern is critical since the 

Departments are bypassing advance 

notice and comment in order to urgently 

address increased labor demand.178

Acting expeditiously is intended to 

prevent economic harm resulting from 

American businesses suffering 

irreparable harm due to a lack of a 

sufficient labor force. This harm would 

ensue if the Departments do not exercise 

the authority provided by the extension 

of supplemental cap authority. USCIS 


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179See 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-fy2024 (Oct 13, 2023). 

180See 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). 

181On September 20, 2023, DHS issued a 

Modernizing H–2 Program Requirements, 

Oversight, and Worker Protections Notice of 

Proposed Rulemaking (NPRM), 88 FR 65040, 65066, 

with a 60-day public comment period that ends on 

November 20, 2023. In that NPRM, DHS proposed 

to extend portability to H–2A and H–2B workers on 

a permanent basis. 

received more than enough petitions to 

meet the H–2B visa statutory cap for the 

first half of FY 2024 on October 11, 

2023.179 Based on past years’ 

experience, DHS anticipates that it will 

also receive sufficient petitions to meet 

the semiannual cap for the second half 

of the FY 2024; last year on February 27, 

2023, USCIS received sufficient 

petitions to meet the H–2B visa 

statutory cap for the second half of FY 

2023.180 Given the continued high 

demand of American businesses for H– 

2B workers (as discussed in this 

preamble), rapidly evolving economic 

conditions and historically high labor 

demand, and the limited time remaining 

until the expiration of the continuing 

resolution authorizing supplemental cap 

authority to help prevent further 

irreparable harm currently experienced 

by some U.S. employers or avoid 

impending economic harm for others, a 

decision to undertake notice and 

comment rulemaking, which would 

delay final action on this matter by 

months, would greatly complicate and 

potentially preclude the Departments 

from successfully exercising the 

authority created by section 303, Public 

Law 117–328 as extended to FY 2024 by 

secs. 101(6) and 106, Public Law 118– 

15. If the Departments are precluded 

from exercising this authority, 

substantial economic harm will result 

for the reasons stated above. 

The temporary portability and change 

of employer provisions in 8 CFR 214.2 

and 274a.12 are also supported by labor 

market demands. Courts have found 

‘‘good cause’’ under the APA when an 

agency is moving expeditiously to avoid 

significant economic harm to a program, 

program users, or an industry. Courts 

have held that an agency may use the 

good cause exception to address ‘‘a 

serious threat to the financial stability of 

[a government] benefit program,’’ Nat’l 

Fed’n of Fed. Emps. v. Devine, 671 F.2d 

607, 611 (D.C. Cir. 1982), or to avoid 

‘‘economic harm and disruption’’ to a 

given industry, which would likely 

result in higher consumer prices, Am. 

Fed’n of Gov’t Emps. v. Block, 655 F.2d 

1153, 1156 (D.C. Cir. 1981). 

Finally, taking public comments on 

this year’s temporary final rule before 

implementation may have limited 

utility given that the Departments took 

post-promulgation public comments 

during a 60-day comment period on last 

year’s (FY 2023) nearly identical TFR. 

Those comments are discussed in detail 

above in the preamble of this temporary 

final rule. In addition, DHS is separately 

pursuing broader programmatic 

improvements in the H–2B and H–2A 

programs through a separate notice and 

comment rulemaking which includes a 

proposal to make portability permanent 

for all H–2 workers.181

2. Good Cause To Proceed With an 

Immediate Effective Date 

The APA also authorizes agencies to 

make a rule effective immediately, upon 

a showing of good cause, instead of 

imposing a 30-day delay. 5 U.S.C. 

553(d)(3). The good cause exception to 

the 30-day effective date requirement is 

easier to meet than the good cause 

exception for foregoing notice and 

comment rulemaking. Riverbend Farms, 

Inc. v. Madigan, 958 F.2d 1479, 1485 

(9th Cir. 1992); Am. Fed’n of Gov’t 

Emps., AFL–CIO v. Block, 655 F.2d 

1153, 1156 (D.C. Cir. 1981); U.S. Steel 

Corp. v. EPA, 605 F.2d 283, 289–90 (7th 

Cir. 1979). An agency can show good 

cause for eliminating the 30-day delayed 

effective date when it demonstrates 

urgent conditions the rule seeks to 

correct or unavoidable time limitations. 

U.S. Steel Corp., 605 F.2d at 290; United 

States v. Gavrilovic, 511 F.2d 1099, 

1104 (8th Cir. 1977). For the same 

reasons set forth above expressing the 

need for immediate action, we also 

conclude that the Departments have 

good cause to dispense with the 30-day 

effective date requirement. 

B. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

Under E.O. 12866, OMB’s Office of 

Information and Regulatory Affairs 

(OIRA) determines whether a regulatory 

action is significant and, therefore, 

subject to the requirements of the E.O. 

and review by OMB. 58 FR 51735. 

Section 3(f) of E.O. 12866, as amended 

by E.O. 14094, defines a ‘‘significant 

regulatory action’’ as an action that is 

likely to result in a rule that: (1) has an 

annual effect on the economy of $200 

million or more, or adversely affects in 

a material way a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) creates serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alters the 

budgetary impacts of entitlement grants, 

user fees, or loan programs, or the rights 

and obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the E.O. 88 FR 21879. 

The Office of Management and Budget 

(OMB) has designated this temporary 

final rule a significant regulatory action 

under section 3(f)(1) of Executive Order 

12866, as amended by Executive Order 

14094, because its annual effects on the 

economy exceed $200 million in any 

year of the analysis. Accordingly, OMB 

has reviewed this rule. 

E.O. 13563 directs agencies to propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; the regulation is tailored 

to impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. E.O. 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider (and discuss 

qualitatively) values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

1. Summary 

With this temporary final rule (TFR), 

DHS is authorizing the release of up to 

an additional 64,716 total H–2B visas to 

be allocated throughout FY 2024. In 

accordance with the FY 2024 continuing 

resolution extending the authority 

provided in section 303 of the FY 2023 

Omnibus, DHS is allocating the 

supplemental visas in the following 

manner: 


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80434 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

As with previous H–2B visa 

supplements, these visas will be 

available to businesses that: (1) show 

that there are an insufficient number of 

U.S. workers to meet their needs 

throughout FY 2024; (2) attest that their 

businesses are suffering irreparable 

harm or will suffer impending 

irreparable harm without the ability to 

employ all of the H–2B workers 

requested on their petition; and (3) 

petition for returning workers who were 

issued an H–2B visa or were otherwise 

granted H–2B status in FY 2021, 2022, 

or 2023, unless the H–2B worker is a 

national of one of the countries 

included in the country-specific 

allocation. Additionally, up to 20,000 

visas may be granted to workers from 

countries included in the countryspecific allocation who are exempt from 

the returning worker requirement. This 

TFR aims to prevent irreparable harm to 

certain U.S. businesses by allowing 

them to hire additional H–2B workers 

within FY 2024. 

The estimated total costs to 

petitioners range from $7,530,484 to 

$10,043,625. The estimated total cost to 

the Federal Government is $350,028. 

Therefore, DHS estimates that the total 

cost of this rule ranges from $7,880,512 

to $10,393,653. Total transfers from 

filing fees made by petitioners to the 

Government are $9,214,500. The 

benefits of this rule are diverse, though 

some of them are difficult to quantify. 

Some of these benefits include: 

• Employers benefit from this rule 

significantly through increased access to 

H–2B workers; 

• Customers and others benefit 

directly or indirectly from increased 

access; 

• Some American workers may 

benefit to the extent that they do not 

lose jobs through the reduced or closed 

business activity that might occur if 

fewer H–2B workers were available; 

• Some American workers may 

benefit from the additional recruitment 

activities that the rule requires certain 

petitioners to complete, to the extent 

that these activities could result in some 

U.S. workers being hired. 

• The existence of a lawful pathway 

for up to 20,000 temporary workers from 

countries included in the countryspecific allocation is likely to provide 

multiple benefits in terms of U.S. policy 

with respect to those countries; and 

• The Federal Government benefits 

from increased evidence regarding 

attestations. Table 2 provides a 

summary of the provisions in this rule 

and some of their impacts. 

BILLING CODE 9111–97–P 


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FY24 First Half Returning Worker Allocation 

FY24 Second Half Returning Worker Allocation 

FY24 Second Half Returning Worker Allocation #2 - (Late 

season Filers) 

FY24 Country-specific Allocation (available whole FY) 

FY24 Total Supplemental Visas 

20,716 

19,000 

5,000 

20,000 

64,716 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80435 


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Table 2. Summarv of the TFR 's Provisions and Economic Imvact 

Changes Resulting Expected Costs of the Expected Benefits of the 

Current Provision from the Provisions of 

the TFR 

Provisions of the TFR Provisions of the TFR 

- The current statutory - The amended - The total estimated - Form 1-129 petitioners would 

cap limits H-2B visa provisions will allow for opportunity cost of time be able to hire temporary 

allocations to 66,000 an additional 64,716 H- to file Form 1-129 workers needed to prevent their 

workers a year. 2B temporary workers. (Petition for a businesses from suffering 

Up to 20,000 of the Nonimmigrant Worker) irreparable harm. 

64,716 additional visas by human resource - Businesses that are dependent 

will be reserved for specialists is on the success of other 

workers who are approximately businesses that are dependent on 

nationals of the $508,705. The total H-2B workers would be 

countries included in the estimated opportunity protected from the repercussions 

country-specific cost of time to file Form of local business failures. 

allocation and will be 1-129 and Form G-28 - Some American workers may 

exempt from the will range from benefit to the extent that they do 

returning worker approximately not lose jobs through the 

requirement. $1,214,165 if filed by reduced or closed business 

in-house lawyers to activity that might occur if 

approximately additional H-2B workers were 

$2,093,429 if filed by not available. 

outsourced lawyers. - Additional recruitment 

The total estimated activities may result in some 

opportunity cost of time U.S. workers being hired. 

associated with filing 

additional petitions 

ranges from $1,722,870 

to $2,602,134 

depending on the filer. 

- The total estimated 

opportunity cost of time 

associated with filing 

Form 1-907 (Request 

for Premium Processing 

Service) if it is filed 

with Form 1-129 is 
80436 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 


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$62,173 if filed by 

human resource 

specialists. The total 

estimated costs 

associated with filing 

Form 1-907 would 

range from 

approximately $124,560 

if filed by an in-house 

lawyer to approximately 

$214,754 if filed by an 

outsourced lawyer. The 

total estimated 

opportunity cost of time 

associated with 

requesting premium 

processing ranges from 

approximately $186,733 

to approximately 

$276,927. 

- The total estimated 

costs of this provision 

to petitioners range 

from $1,909,603 to 

$2,879,061, depending 

on the filer. 

n/a -Petitioners will be - The estimated cost for -An approved Form ETA-9142B 

required to fill out Form late season petitioners is required before filing a Form 

ETA-9142B in order to to file Form ETA- 1-129 to request H-2B workers. 

utilize the 5,000 late 9142B ranges from 

season H-2B visas $59,068 to $87,595 

allocated under the rule. depending on the filer. 

n/a - Petitioners will be - The total estimated - Form ETA-9142-B-CAA-8 

required to fill out the cost to petitioners to will serve as initial evidence to 

newly created Form complete and file Form DHS that the petitioner meets 

ETA-9142-B-CAA-8, ETA-9142-B-CAA-8 is the irreparable harm standard 

Attestation for approximately and returning worker 

Employers Seeking to $1,912,291. requirements. 

EmployH-2B 

Nonimmigrant Workers 

Under Section 303 of 

Division O of the 

Consolidated 

Appropriations Act, 

2023, Public Law 117-

328, as extended by 

sections 101 ( 6) and 106 

of Division A of the 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80437 


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Continuing 

Appropriations Act, 

2024 and Other 

Extensions Act, Public 

Law 118-15. 

n/a - Certain Petitioners - The total estimated - The additional round of 

would be required to cost to petitioners to recruitment will ensure that a 

conduct an additional conduct an additional U.S. worker who is willing and 

round of recruitment. round of recruitment is able to fill the position is not 

approximately replaced by a nonimmigrant 

$284,245. worker. Furthermore, additional 

recruitment activities may result 

in some U.S. workers being 

hired. 

Temporary Portability -AnH-2B - The total estimated - H-2B workers present in the 

nonimmigrant who is opportunity cost of time United States will be able to port 

physically present in the to file Form 1-129 by to another employer and 

United States may port human resource potentially extend their stay and, 

to another employer. specialists is therefore, earn additional wages. 

approximately $34,046. - An H-2B worker with an 

The total estimated employer that is not complying 

opportunity cost of time with H-2B program 

to file Form T-129 and requirements would have 

Form G-28 will range additional flexibility in porting 

from approximately to another employer's certified 

$81,456 if filed by in- position. 

house lawyers to - This provision would ensure 

approximately $140,444 employers will be able to hire 

if filed by outsourced the H-2B workers they need. 

lawyers. 

- The total estimated 

costs associated with 

filing Form 1-907 ifit is 

filed with Form 1-129 is 

$4,167 iffiled by 

human resource 

specialists. The total 

estimated costs 

associated with filing 

Form 1-907 would 

range from 

approximately $8,344 if 

filed by an in-house 

lawyer to approximately 

$14,385 if filed by an 

outsourced lawyer. 

- The total estimated 

costs associated with 
80438 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 


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the portability provision 

ranges from $128,013 

to $193,042, depending 

on the filer. 

- DHS may incur some 

additional adjudication 

costs as more 

petitioners file Form I129. However, these 

additional costs to 

USCTS are expected to 

be covered by the fees 

paid for filing the form, 

which have been 

accounted for in costs to 

petitioners. 

n/a - DHS and DOL intend - Employers will have - DOL and DHS audits will 

to conduct several to comply with audits yield evidence of the efficacy of 

audits during the period for an estimated total attestations in enforcing 

of temporary need to opportunity cost of time compliance with H-2B 

verify compliance with of$213,948. supplemental cap requirements. 

H-2B program - It is expected both - Conducting a significant 

requirements, including DHS and DOL will be number of audits will discourage 

the irreparable harm able to shift resources to uncorroborated attestations. 

standard as well as other be able to conduct these 

key worker protection audits without incurring 

provisions implemented additional costs. 

through this rule. However, the 

Departments will incur 

opportunity costs of 

time. The audits are 

expected to take a total 

of approximately 4,200 

hours and cost 

approximately 

$350,028. 

Additional Scrutiny - Some petitioners will - Some employers will - Additional scrutiny of 

provide additional need to print and ship employers with past H-2B 

evidence. additional evidence to program violations are aimed at 

USCIS. Opportunity ensuring compliance with 

costs of time associated program requirements, reducing 

with compiling such harms to both U.S. workers and 

evidence are H-2B workers. 

unavailable due to the 

unique fact pattern in 

each instance and a lack 

of data regarding the 

time to comply. The 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80439 

182Revised effective 1/18/2009; Changes to 

Requirements Affecting H–2B Nonimmigrants and 

Their Employers; Correction, 73 FR 78104 (Jan. 19, 

2009); Changes to Requirements Affecting H–2B 

Nonimmigrants and Their Employers; Correction, 

74 FR 2837 (Jan 18, 2009). 

183See INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B) 

and INA 214(g)(4), 8 U.S.C. 1184(g)(4). 

184A temporary labor certification (TLC) 

approved by the Department of Labor must 

accompany an H–2B petition. The employment start 

date stated on the petition must match the start date 

listed on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and 

(D). 

BILLING CODE 9111–97–C 

2. Background and Purpose of the 

Temporary Rule 

The H–2B visa classification program 

was designed to serve U.S. businesses 

that are unable to find enough U.S. 

workers to perform nonagricultural 

work of a temporary nature. For a 

nonimmigrant worker to be admitted 

into the United States under this visa 

classification, the hiring employer is 

required to: (1) receive a temporary 

labor certification (TLC) from the 

Department of Labor (DOL); and (2) file 

Form I–129 with DHS. The temporary 

nature of the services or labor described 

on the approved TLC is subject to DHS 

review during adjudication of Form I– 

129.182 The INA sets the annual number 

of H–2B visas for workers performing 

temporary nonagricultural work at 

66,000 to be distributed semiannually 

beginning in October (33,000) and in 

April (33,000).183 Any unused H–2B 

visas from the first half of the fiscal year 

are available for employers seeking to 

hire H–2B workers during the second 

half of the fiscal year. However, any 

unused H–2B visas from one fiscal year 

do not carry over into the next and 

would therefore not be made 

available.184 Once the statutory H–2B 

visa cap limit has been reached, 

petitioners must wait until the next half 

of the fiscal year, or the beginning of the 

next fiscal year, for additional visas to 

become available. 

On September 30, 2023, the President 

signed the Continuing Appropriations 

Act, 2024 and Other Extensions Act. 

Sections 101(6) and 106 reauthorize Sec. 

303 of Div. O of the Consolidated 

Appropriations Act FY 2023, permitting 

the Secretary of Homeland Security, 

under certain circumstances, to increase 

the number of H–2B visas available to 

U.S. employers, notwithstanding the 

established statutory numerical 

limitation. After consulting with the 

Secretary of Labor, the Secretary of the 

Homeland Security has determined it is 

appropriate to exercise his discretion 

and raise the H–2B cap by up to a total 

of 64,716 visas for FY 2024. The total 

supplemental allocation will be divided 

into four separate allocations: one for 

the first half of FY 2024, two for the 

second half of FY 2024 (a first one for 

employment from April 1 through May 

14, 2024, and a second one for those 

with start dates on or after May 15, 

2024), and a full fiscal year allocation 

for workers from the countries included 

in the country-specific allocation. As 

with previous supplemental allocations, 

USCIS will make these supplemental 

visas available only to businesses that 

qualify and meet the requirements for 

the supplemental visas. These 

businesses must attest that they are 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ all the H–2B workers 

requested on their petition. 


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estimated cost to submit 

additional evidentiary 

requirements is 

$22,028. 

Familiarization Cost - Petitioners or their - Petitioners or their - Petitioners will have the 

representatives will representatives will necessary information to take 

familiarize themselves need to read and advantage of and comply with 

with the rule. understand the rule at the provisions of this rule. 

an estimated total 

opportunity cost of time 

that ranges from 

$3,001,288 to 

$4,451,415. 

Total Costs Total cost of the rule to 

petitioners ranges from 

$7,530,484 to 

$10,043,625 depending 

on the filer. Total costs 

of the rule to 

government are 

$350,028. Total costs of 

the rule range from 

$7,880,512 to 

$10,393,653. 

Source: USCIS and DOL analysis. 
80440 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

185September 2023 Federal Open Market 

Committee (FOMC) projections for unemployment 

rate in 2024 ranged from 3.7 to 4.5% with central 

tendency more tightly clustered between 3.9 and 

4.4%. See https://www.federalreserve.gov/ 

monetarypolicy/fomcprojtabl20230920.htm (last 

accessed Sept. 29, 2023). 

186USCIS analysis of OFLC Performance data. All 

data are for applications listed as having a case 

status of ‘‘Certification’’, ‘‘Partial Certification’’, 

‘‘Determination—Certification’’, or 

‘‘Determination—Partial Certification’’. 

Furthermore, data have been adjusted to a fiscal 

year using the employment begin date provided on 

the TLC application. As such, counts differ from 

counts based on the Disclosure Files of OFLC H– 

2B Performance data. This adjustment was made so 

that the OFLC data more closely align to USCIS I– 

129 data. Data for FY 2023 include data through the 

end of quarter 3. 

187Averages are rounded to the nearest whole 

number. 

188 19,000 visas for returning workers and 5,000 

visas for filers with employment start dates May 15, 

2024 or later. 

189See https://www.federalregister.gov/ 

documents/2022/12/15/2022-27236/exercise-oftime-limited-authority-to-increase-the-numericallimitation-for-fy-2023-for-the-h-2b (accessed 

September 26, 2023). 

In contrast to previously issued H–2B 

TFRs which codified the availability of 

supplemental H–2B visas only after the 

relevant statutory fiscal half-year caps 

had been reached, the Secretaries have 

determined that this TFR will cover the 

entirety of FY 2024. While the 

Departments cannot predict with 

certainty what labor market conditions 

will be during the second half of FY 

2024, they believe that the structure of 

this TFR is reasonable because: (1) the 

availability of the second half FY 

supplemental visas is contingent on the 

exhaustion of the second half FY 

statutory cap, (2) strong historical 

demand for H–2B workers, and (3) 

mainstream estimates of labor market 

conditions for FY 2024 indicate a 

continuation of labor market tightness 

from a historical perspective.185

With respect to historical demand for 

H–2B workers, Table 3 makes two 

important points supporting the 

Departments’ decision to structure this 

rule in a manner that covers the entire 

fiscal year. First, Table 3 shows that H– 

2B demand, as represented by the 

number of workers requested on 

certified TLCs, has outpaced the 

statutorily capped allotment of H–2B 

visas. This demonstrates that, in 

aggregate, there is sufficient demand for 

the entire supplementary allocation that 

the Departments are making available. 

To that end, the 5-year average of 

workers requested on certified TLCs, 

154,636, would still completely exhaust 

the total supplemental allocation made 

available by the TFR. Second, Table 3 

demonstrates that within a given fiscal 

year, demand for H–2B workers is 

particularly strong in the second half of 

the fiscal year. On average over the last 

5 fiscal years, H–2B employers have 

requested 97,182 employees with start 

dates on April 1 or later, which would 

completely exhaust the 24,000 188 total 

supplemental H–2B visas explicitly set 

aside for workers with employment start 

dates in the second half of FY 2024. 

Given these conditions, the Departments 

believe that the decision to authorize a 

second half supplement is reasonable. 

In terms of the actual distribution of 

the visas being made available by the 

Rule, the Departments have determined 

that up to 44,716 of the 64,716 

supplemental visas will be limited to 

returning H–2B returning workers for 

nationals of any country. These 

individuals must be workers who were 

issued H–2B visas or were otherwise 

granted H–2B status in fiscal years 2021, 

2022, or 2023. The 44,716 visas for 

returning workers will be divided into 

three separate allocations that will be 

available to petitioners over the fiscal 

year. The first allocation is comprised of 

20,716 visas for returning workers with 

requested start dates between October 1, 

2023, and March 31, 2024. These visas 

will be available to petitioners 

immediately upon the publication of the 

rule. The second allocation is comprised 

of 19,000 visas for returning workers 

with requested start dates between April 

1, 2024, and May 14, 2024. These visas 

will be available to petitioners 15 

calendar days after the second half 

statutory cap of 33,000 visas is reached. 

The third allocation is comprised of 

5,000 visas for returning workers with 

requested start dates between May 15, 

2024, and September 30, 2024. These 

visas will be available to petitioners 45 

calendar days after the second half 

statutory cap of 33,000 visas is reached. 

The inclusion of an allocation of visas 

specifically for those petitioners with 

employment needs starting on or after 

May 15 is in response to trends in TLC 

data. As stated in the FY 2023 H–2B 

TFR, the relative demand in FY 2016 for 

workers with start dates later in the 

fiscal year was higher relative to recent 

years. More specifically, data for FY 

2016 show that approximately 45.51 

percent of certified TLCs requested 

workers with start dates in April while 

17.93 percent of certified TLCs 

requested workers with start dates after 

April.189 Table 4 and Table 5 

demonstrate that the 5-year average for 

these values skew toward April start 

dates. The increase in the relative 

prevalence of April 1 start dates since 

2016 raises the question whether 

petitioners with employment needs later 

in the fiscal year may not have the 

opportunity to utilize the H–2B program 

because the supply of supplemental 

visas is already exhausted by the time 

a petitioner with a later start date can 

file a TLC and receive eligibility to 

request workers on Form I–129. Under 

DOL regulations, employers must apply 

for a TLC 75 to 90 days before the start 


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Table 3. DOL Certified Worker Demand186 

Number of Number ofDOL DOL Certified Workers 

Fiscal Year Certifications Certified Workers with requested start dates 

Requested 4/1 or later 

2019 7,044 141,787 91,209 

2020 6,001 123,291 78,544 

2021 6,365 136,711 89,543 

2022 8,899 177,429 113,108 

2023 10,385 193,961 113,505 

5-yr A verage 187 7,739 154,636 97,182 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80441 

190See 20 CFR 655.15(b). 

191See USCIS, Cap Reached for Additional 

Returning Worker H–2B Visas for Second Half of FY 

2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022). 

192Tables 4 and 5 contain USCIS analysis of 

OFLC Performance data. All data are for 

applications listed as having a case status of 

‘‘Certification’’, ‘‘Partial Certification’’, 

‘‘Determination—Certification’’, or 

‘‘Determination—Partial Certification.’’ 

Furthermore, data have been adjusted to a fiscal 

year using the employment begin date provided on 

the TLC application. As such, counts differ from 

counts based on the Disclosure Files of OFLC H– 

2B Performance data. This adjustment was made so 

that the OFLC data more closely align to USCIS I– 

129 data. 

date of work.190 Employers must have a 

DOL-approved TLC before filing their 

Form I–129 request for H–2B workers 

with USCIS. Because the availability of 

H–2B visas is limited by statute and 

regulation, USCIS generally announces 

to the public when it has received a 

sufficient number of I–129 petitions, 

and by extension H–2B beneficiaries, to 

exhaust the respective H–2B visa 

allocation.191 USCIS rejects H–2B I–129 

petitions that are received after USCIS 

has determined that a given allocation 

has been fully utilized. Functionally, 

this means that a subset of petitioners 

that would utilize H–2B workers given 

the chance may not be able to do so 

because the available visas have already 

been allocated before they can petition 

USCIS for the necessary workers. Using 

OFLC TLC data, Table 4 illustrates that 

relative to 2016, when employers of 

returning workers had greater flexibility 

in determining TLC-requested start 

dates, requested H–2B employment start 

dates have become increasingly 

concentrated in April.192


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Table 4. DOL Certified Worker Demand for A1>ril Start Dates 

Certified DOL DOL Certified Workers Percentage of DOL 

Fiscal Workers with requested start dates Certified Workers with 

Year requested start dates in Requested in April April 

2016 93,324 42,469 45.51% 

2018 129,374 80,239 62.02% 

2019 141,787 85,421 60.25% 

2020 123,291 76,168 61.78% 

2021 136,711 86,589 63.34% 

2022 177,429 108,361 61.07% 

Table 5. DOL Certified Worker Demand post-April Start Dates 

Certified DOL DOL Certified Workers Percentage of DOL 

Fiscal Workers with requested start dates Certified Workers with 

Year requested start dates after Requested after April April 

2016 93,324 16,736 17.93% 

2018 129,374 5,470 4.23% 

2019 141,787 5,788 4.08% 

2020 123,291 2,376 1.93% 

2021 136,711 2,954 2.16% 

2022 177,429 4,747 2.68% 
80442 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

193USCIS, Office of Performance and Quality, 

SAS PME C3 Consolidated, Data queried 09/2023, 

TRK 12921. Calculation: 7,198 beneficiaries granted 

visas under the late-season filer allocation/10,000 

visas allocated = 71.98% utilization. 

194For Fiscal Years 2018 through 2022, 

Petitioners in NAICS 3117 were approved for 

49,332 non cap-exempt beneficiaries. Of that total, 

31,204 were approved for the 1st half of a fiscal 

year, yielding a rate of 63% (rounded). 

195USCIS Analysis as of 7/29/2023, Office of 

Performance and Quality, SAS PME C3 

Consolidated, Data queried 07/2023, TRK 12149. 

196See DOL H–2B public disclosure data for FY 

2023 covering applications processed on and after 

October 1, 2022, through June 30, 2023, at 

Performance Data | U.S. Department of Labor 

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

performance). 

197See, e.g., https://www.uscis.gov/newsroom/ 

alerts/cap-reached-for-additional-returning-workerh-2b-visas-for-second-half-of-fy-2022. 

This has given rise to the concern that 

this proliferation of April start dates 

may be crowding out employers with 

labor needs later in the season (shown 

in Table 5). These data suggest there 

may be structural barriers that preclude 

employers with later start dates from 

being able to employ needed workers 

through the H–2B program. To 

illustrate, in FY 2016, a temporary 

statutory provision exempted certain H– 

2B visas from the cap that had been 

counted against the cap in any of the 

three prior fiscal years. Data from FY 

2016 show a much higher incidence of 

employers that request relatively later 

start dates, suggesting that employers 

with late-season needs would use the 

H–2B program but for the unavailability 

of visas. 

As part of the FY 2023 TFR, USCIS 

made 10,000 visas available to 

petitioners with start dates later in the 

season (after May 15). The goal for this 

separate allocation was to address this 

potentially inequitable situation and to 

take steps towards collecting 

information through that rule to 

determine whether such a structural 

barrier exists. As of September 2023, 

approximately 72 percent of the lateseason filer allocation was used.193

Preliminary analysis of Form I–129 

filings under the late-season filer 

allocation suggests some variation in the 

demand by industry appeared for this 

allocation. Specifically, petitioners in 

the Seafood Product Preparation and 

Packaging industry (NAICS 3117), 

appeared to respond to the availability 

of the late-season filer allocation. This 

industry historically requested 

temporary H–2B workers during the first 

half of the fiscal year for both statutory 

caps and any available supplemental 

allocations, such that well over 50 

percent of the total industry 

beneficiaries were for the first half of a 

given fiscal year.194 For FY 2023, 

however, approximately 47 percent of 

industry beneficiaries were requested 

under first half caps while almost 22 

percent were requested under the lateseason filer allocation.195 This data 

point, while limited, provides some 

evidence that certain industries may be 

able to more efficiently fulfill their 

temporary labor needs by petitioning for 

beneficiaries under this cap. 

While DOL TLC data indicates that 

there was sufficient employer demand 

to exhaust the late-season filer 

allocation, the Form I–129 filing data 

mentioned above indicates that fewer 

employers took the subsequent (and 

necessary) step of filing for 

supplemental workers under this cap.196

Therefore, the Departments’ experience 

with the late-season filer allocation 

under the prior TFR confirms that the 

demand for workers with later start 

dates exists, though it may not be fully 

reflected in petition filings. To that end, 

USCIS has elected to scale down this 

allocation, as mentioned in the 

preamble. 

The Secretaries have also determined 

that up to 20,000 of the 64,716 

additional visas will be reserved for 

workers who are nationals of the 

countries included in the countryspecific allocation and that these 20,000 

workers will be exempt from the 

returning worker requirement. These 

visas will be available for the entirety of 

the fiscal year and do not have 

limitations regarding the requested start 

date of the H–2B beneficiaries’ 

employment within the fiscal year. If 

the 20,000-visa limit has been reached, 

a petitioner may request H–2B visas for 

workers who are nationals of the 

countries included in the countryspecific allocation but these workers 

must be returning workers. 

The Departments note that they are 

committed to analyzing the results and 

impacts of this and future H–2B 

supplemental visa TFRs in a holistic 

manner, and have attempted to fully 

quantify the potential impacts of the FY 

2024 TFR, where time and data allow. 

3. Population 

This rule will affect those employers 

that file Form I–129 on behalf of 

nonimmigrant workers they seek to hire 

under the H–2B visa program. More 

specifically, this rule will affect those 

employers that can establish that their 

business is suffering irreparable harm or 

will suffer impending irreparable harm 

without the ability to employ all the H– 

2B workers requested on their petition 

and without the exercise of authority 

that is the subject of this rule. Due to 

historical trends and strong demand for 

the H–2B program (see Table 3), the 

Departments believe that it is reasonable 

to assume that the population of eligible 

petitioners for these additional 64,716 

visas will generally be the same 

population as those employers that 

would already complete the steps to 

receive an approved TLC irrespective of 

this rule. One exception is the 

population of late season employers, 

described below. 

This rulee will also have additional 

impacts on the population of H–2B 

employers and workers presently in the 

United States by permitting some H–2B 

workers to port to another certified H– 

2B employer. These H–2B workers will 

continue to earn wages and gaining 

employers will continue to obtain 

necessary workers. 

a. Population That Will File a Form I– 

129, Petition for a Nonimmigrant 

Worker 

As discussed above, the population 

that will file a Form I–129 is necessarily 

limited to those business that have 

already established that their business is 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ all the H–2B workers 

requested on their petition and without 

the exercise of authority that is the 

subject of this rule. Because the number 

of supplementary visas available is 

finite, USCIS has generally informed the 

public when the number of submitted 

Form I–129 petitions and, by extension, 

the number of respective beneficiaries is 

enough to exhaust the supply of 

supplemental visas.197


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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80443 

198 In Fiscal Year 2021, the Departments 

authorized a single supplemental allocation which 

was divided between returning workers and 

workers from specific countries. See https://

www.federalregister.gov/documents/2021/05/25/ 

2021-11048/exercise-of-time-limited-authority-toincrease-the-fiscal-year-2021-numerical-limitationfor-the (accessed October 6, 2023). 

199 In Fiscal Year 2022, the Departments 

authorized two separate supplemental allocations of 

H–2B Visas, with each being further divided 

between returning workers and workers from 

specific countries. See https://

www.federalregister.gov/documents/2022/01/28/ 

2022-01866/exercise-of-time-limited-authority-toincrease-the-fiscal-year-2022-numerical-limitationfor-the; https://www.federalregister.gov/documents/ 

2022/05/18/2022-10631/exercise-of-time-limitedauthority-to-increase-the-numerical-limitation-forsecond-half-of-fy-2022. 

200FY 2020 was not included due to the 

suspension of additional H–2B visas to be released 

in 2020. DHS also noted that the Department of 

State had suspended routine visa services. 

201Calculation for expected petitions. If each I– 

129 requests 14.85 workers, we’d expect to see 

4,358 petitioners exhausting the 64,716 supplement 

allocated this year: 64,716 / 14.85 = 4,358 

(rounded). 

202Calculation for expected late season TLCs: 

5,000 visas / 14.85 beneficiaries per petition = 337 

TLCs (rounded down). 

203USCIS, Filing Your Form G–28, https://

www.uscis.gov/forms/filing-your-form-g-28. 

204Calculation: 4,358 estimated additional 

petitions * 47.21 percent of petitions filed by a 

lawyer = 2,057 (rounded) petitions filed by a 

lawyer. 

Calculation: 4,358 estimated additional 

petitions¥2,057 petitions filed by a lawyer = 2,301 

petitions filed by an HR specialist. 

Table 6 shows the total supplemental 

H–2B visa allocations issued by the 

Departments in each fiscal year since 

2017,200 including the total number of 

petitions and the total number of 

beneficiaries submitted under a 

supplement in each fiscal year. Using 

the historical average of 14.85 

beneficiaries per petition for 

supplemental visas derived in Table 6, 

USCIS anticipates that 4,358 Forms I– 

129 will be submitted as a result of this 

temporary final rule.201

Using the estimates in Table 6, the 

Departments further estimate that the 

allocation of 5,000 visas for late season 

filers made by this TFR, addressing the 

disadvantage these employers face in 

accessing scarce H–2B visas, will result 

in 337 202 additional Form ETA–9142B 

requests to DOL, assuming each late 

season visa requestor submits a TLC and 

Form I–129 for the historic average of 

14.85 beneficiaries. The number of 

additional Form ETA–9142B requests 

could be lower if some petitioners that 

would have filed for April 1 start dates 

in the absence of this TFR change their 

behavior to request late season workers 

as a result of this allocation. 

Alternatively, this number could be 

higher if late season filers are at a larger 

disadvantage in accessing H–2B workers 

than recent data suggests. The 

Departments commit to monitoring the 

utilization of these late season FY24 

visas to determine if this carve-out 

promotes access, as anticipated, to 

employers with needs for workers later 

in the second half of the fiscal year but 

that have faced obstacles to accessing 

H–2B workers in the past. 

USCIS recognizes that some 

employers will have to submit two I– 

129 Forms if they choose to request H– 

2B workers under both the returning 

worker and country-specific caps. At 

this time, USCIS cannot predict how 

many employers will choose to take 

advantage of more than one allocation, 

and therefore recognizes that the 

number of petitions may be 

underestimated. 

b. Population That Files Form G–28, 

Notice of Entry of Appearance as 

Attorney or Accredited Representative 

If a lawyer or accredited 

representative submits Form I–129 on 

behalf of the petitioner, Form G–28, 

Notice of Entry of Appearance as 

Attorney or Accredited Representative, 

must accompany the Form I–129 

submission.203 Using data from FY 2018 

to FY 2022, we estimate that a lawyer 

or accredited representative will file 

47.21 percent of Form I–129 petitions. 

Table 7 shows the percentage of Form 

I–129 H–2B petitions that were 

accompanied by a Form G–28. 

Therefore, we estimate that in-house or 

outsourced lawyers will file 2,057 

Forms I–129 and Forms G–28, and that 

human resources (HR) specialists will 

file 2,301 Forms I–129.204


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Table 6. 1-129 Petitions per Supplemental H-2B Visa Allocation 

Supplement Totall-129 Totall-129 Beneficiaries 

Petitions per 1-129 

Sunnlement Amount Received Beneficiaries netition 

2018 Supplement 15,000 983 15,868 16.14 

2019 Supplement 30,000 2,700 33,239 12.31 

2021 Supplement198 22,000 2,180 31,274 14.35 

2022 Supplement199 55,000 4,045 61,868 15.29 

2023 Supplement 64,716 4,900 79,095 16.14 

Avera~e 14.85 
80444 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

205Calculation: 4,358 estimated additional 

petitions * 91.43 percent premium processing filing 

rate = 3,985 (rounded) additional Form I–907. 

206Calculation: 3,985 additional Form I–907 * 

47.21 percent of petitioners represented by a lawyer 

= 1,881 (rounded) additional Form I–907 filed by 

a lawyer. 

Calculation: 3,985 additional Form I–907¥1,881 

additional Form I–907 filed by a lawyer = 2,104 

additional Form I–907 filed by an HR specialist. 

c. Population That Files Form I–907, 

Request for Premium Processing Service 

Employers may use Form I–907, 

Request for Premium Processing 

Service, to request faster processing of 

their Form I–129 petitions for H–2B 

visas. Table 8 shows the percentage of 

Form I–129 H–2B petitions that were 

filed with a Form I–907. Using data 

from FY 2018 to FY 2022, USCIS 

estimates that approximately 91.43 

percent of Form I–129 H–2B petitioners 

will file a Form I–907 requesting 

premium processing. Based on this 

historical data, USCIS estimates that 

3,985 Forms I–907 will be filed with the 

Forms I–129 as a result of this rule.205

Of these 3,985 premium processing 

requests, we estimate that in-house or 

outsourced lawyers will file 1,881 

Forms I–907 and HR specialists or an 

equivalent occupation will file 2,104.206


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2019 3,335 7,461 44.70% 

2020 2,434 5,422 44.89% 

2021 4,228 9,160 46.16% 

2022 5,983 12,392 48.28% 

2023 6,498 13,181 49.30% 

2019 - 2023 Total 22,478 47,616 47.21% 

Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK 

12921 

2019 7,227 7,461 96.86% 

2020 4,341 5,422 80.06% 

2021 8,650 9,160 94.43% 

2022 11,773 12,392 95.00% 

2023 11,543 13,181 87.57% 

2019 - 2023 Total 43,534 47,616 91.43% 

Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK 

12921 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80445 

207Calculation for expected late season TLCs: 

5,000 late season visas/14.85 beneficiaries per 

petition = 337 TLCs (rounded up). 

208Calculation: 337 estimated additional requests 

* 47.21 percent of petitions filed by a lawyer (see 

Table 5) = 159 (rounded) ETA–9142–B requests 

filed by a lawyer. 

Calculation: 337 estimated additional 

requests¥159 requests filed by a lawyer = 178 

requests filed by an HR specialist. 

209Calculation: 20,716 workers in the 1st half 

returning working supplemental allocation/14.85 

workers per petitioner = 1,395 (rounded) petitioners 

required to undertake additional recruitment. 

210H–2B workers may have varying lengths in 

time approved on their H–2B visas. This number 

may overestimate H–2B workers who have already 

completed employment and departed and may 

underestimate H–2B workers not reflected in the 

current cap and long-term H–2B workers. In FY 

2021, USCIS approved 735 requests for change of 

status to H–2B, and Customs and Border Protection 

(CBP) processed 1,341 crossings of visa-exempt H– 

2B workers. See Characteristics of H–2B 

Nonagricultural Temporary Workers FY2021 Report 

to Congress, https://www.uscis.gov/sites/default/ 

files/document/reports/H-2B-FY21-CharacteristicsReport.pdf (accessed April 4, 2022). USCIS assumes 

some of these workers, along with current workers 

with a valid H–2B visa under the cap, could be 

eligible to port under this new provision. USCIS 

does not know the exact number of H–2B workers 

who would be eligible to port at this time but uses 

the cap and supplemental cap allocations as a 

possible proxy for this population. 

d. Population That Files Form ETA– 

9142–B–CAA–8, Attestation for 

Employers Seeking To Employ H–2B 

Nonimmigrant Workers Under Section 

303 of Division O of the Consolidated 

Appropriations Act, 2023, Public Law 

117–328, as Extended by Sections 

101(6) and 106 of Division A of the 

Continuing Appropriations Act, 2024 

and Other Extensions Act, Public Law 

118–15 

Petitioners seeking to take advantage 

of this FY 2024 H–2B supplemental visa 

cap will need to file a Form ETA–9142– 

B–CAA–8 attesting that their business is 

suffering irreparable harm or will suffer 

impending irreparable harm without the 

ability to employ all the H–2B workers 

requested on the petition, comply with 

third-party notification, and maintain 

required records, among other 

requirements. DOL estimates that each 

of the 4,358 petitions will need to be 

accompanied by Form ETA–9142–B– 

CAA–8 and petitioners filing these 

petitions and attestations will incur 

burdens complying with the evidentiary 

requirements. 

e. Population of Late Season Employers 

That File Form ETA–9142B, 

Application for Temporary Employment 

Certification 

As Table 3 demonstrated, historical 

data strongly indicate that there will be 

sufficient demand such that only those 

petitioners that utilize the late season 

allocation of supplemental visas will 

need to file an additional Form ETA– 

9142B. Assuming that the historical 

average of 14.85 beneficiaries per I–129 

petition holds, 337 207 petitioners will 

need to file Form ETA–9142B as a direct 

result of the provision reserving 5,000 

visas for beneficiaries of these 

employers. Given estimates from Table 

7 of the percentage of Form I–129 H–2B 

petitions accompanied by a Form G–28, 

we estimate that in-house or outsourced 

lawyers will file 159 of these Forms 

ETA–9142B, and that human resources 

(HR) specialists will file 178 Forms 

ETA–9142B.208

f. Population That Must Undergo 

Additional Recruitment Activities 

An employer that files Form ETA– 

9142B–CAA–8 and the I–129 petition 30 

or more days after the certified start date 

of work must conduct additional 

recruitment of U.S. workers. This 

consists of placing a new job order with 

the State Workforce Agency (SWA), 

contacting the relevant American Job 

Center (AJC), contacting former U.S. 

workers, contacting the bargaining 

representative or posting the job order 

in the places and manner described in 

20 CFR 655.45(b) if there is no 

bargaining representative, contacting 

current U.S. workers, posting the job to 

the company’s website if it maintains 

one and, if applicable, contacting the 

AFL–CIO. 

The Departments assume that, due to 

the timing of the publication of the rule, 

only petitioners that file for H–2B 

workers under the first half 

supplemental allocation of 20,716 

workers will incur burdens associated 

with this additional recruitment. By 

utilizing the average number of 

beneficiaries per Form I–129 petition 

established in Table 6, the Departments 

estimate that the population of 

petitioners that would need to fulfill the 

additional recruitment requirements 

would be 1,395.209

g. Population Affected by the Portability 

Provision 

The population affected by this 

provision are nonimmigrants in H–2B 

status who are present in the United 

States and the employers with valid 

TLCs seeking to hire H–2B workers. We 

use the population of 66,000 H–2B 

workers authorized by statute and the 

64,716 additional H–2B workers 

authorized by this rule as a proxy for the 

H–2B population that could be currently 

present in the United States.210 USCIS 

uses the number of Forms I–129 filed for 

extension of stay due to change of 

employer relative to the Forms I–129 

filed for new employment from FY 2016 

to FY 2020, the five years prior to the 

implementation of the first portability 

provision in a H–2B supplemental cap 

TFR, to estimate the baseline rate. We 

compare the average rate from FY 2016– 

FY 2020 to the average rate from FY 

2021–FY 2023. Table 9 presents the 

number of Forms I–129 filed for 

extensions of stay due to change of 

employer and Forms I–129 filed for new 

employment for Fiscal year 2016 FY 

through FY 2020. The average rate of 

extension of stay due to change of 

employer compared to new employment 

is approximately 12.6 percent. 


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80446 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

211USCIS, Office of Performance and Quality, 

SAS PME C3 Consolidated, Data queried 09/2023, 

TRK 12921 212See Id. 213See Id. 214Calculation, Step 1: 1,113 Form I–129 

petitions for extension of stay due to change of 

employer FY 2021 + 1,795 Form I–129 petitions for 

extension of stay due to change of employer in FY 

2022 + 2,113 Form I–129 petitions for extension of 

stay due to change of employer FY 2023 = 5,021 

Form I–129 petitions filed extension of stay due to 

change of employer in portability provision years. 

Calculation, Step 2: 7,206 Form I–129 petitions 

filed for new employment in FY 2021 + 9,231 Form 

I–129 petitions filed for new employment in FY 

2022 + 9,579 Form I–129 petitions filed for new 

employment in FY 2023 = 26,016 Form I–129 

petitions filed for new employment in portability 

provision years. 

Calculation, Step 3: 5,021 extension of stay due 

to change of employment petitions/26,016 new 

employment petitions = 19.3 percent rate of 

extension of stay due to change of employment to 

new employment (rounded). 

215Calculation: 4,358 Form I–129 H–2B petitions 

filed for new employment * 12.6 percent = 549 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, no portability provision. 216Calculation: 4,358 Form I–129 H–2B petitions 

filed for new employment * 19.3 percent = 841 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, with a portability provision. 217Calculation: 841 estimated number of Form I– 

129 H–2B petitions filed for extension of stay due 

to change of employer, with a portability 

provision¥549 estimated number of Form I–129 H– 

2B petitions filed for extension of stay due to 

change of employer, no portability provision = 292 

Form I–129 H–2B petition increase as a result of 

portability provision. 

218Calculation, Lawyers: 292 additional Form I– 

129 due to portability provision * 47.21 percent of 

Form I–129 for H–2B positions filed by an attorney 

or accredited representative = 138 (rounded) 

estimated Form I–129 filed by a lawyer. 

Calculation, HR specialist: 292 additional Form I– 

129 due to portability provision¥138 estimated 

Form I–129 filed by a lawyer = 154 estimated Form 

I–129 filed by an HR specialist. 

219Calculation: 292 Form I–129 H–2B petitions * 

91.43 percent premium processing filing rate = 267 

(rounded) Forms I–907. 

220Calculation, Lawyers: 267 Forms I–907 * 47.21 

percent filed by an attorney or accredited 

representative = 126 (rounded) Forms I–907 filed by 

a lawyer. 

Calculation, HR specialists: 267 Forms I– 

907¥126 Forms I–907 filed by a lawyer = 141 

Forms I–907 filed by an HR specialist. 

In FY 2021, the first year an H–2B 

supplemental cap included a portability 

provision, there were 1,113 Forms I–129 

filed for extension of stay due to change 

of employer compared to 7,206 Forms I– 

129 filed for new employment.211 In FY 

2022, there were 1,795 Forms I–129 

filed for extension of stay due to change 

of employer compared to 9,231 Forms I– 

129 filed for new employment.212 In FY 

2023, there were 2,113 Forms I–129 

filed for extension of stay due to change 

of employer compared to 9,579 Forms I– 

129 filed for new employment.213 Over 

the period when a portability provision 

was in place for H–2B workers, the rate 

of Form I–129 for extension of stay due 

to change of employer relative to new 

employment is 19.3 percent.214 This is 

above the 12.6 percent rate expected 

without a portability provision. 19.3 

percent is our estimate of the rate 

expected in periods with a portability 

provision in the supplemental visa 

allocation. Using the 4,358 as our 

estimate for the number of Forms I–129 

filed for H–2B new employment in FY 

2024, we estimate that 549 Forms I–129 

for extension of stay due to change of 

employer would be filed in absence of 

this provision.215 With this portability 

provision, we estimate that 841 Forms 

I–129 for extension of stay due to 

change of employer would be filed.216

This difference results in 292 additional 

Forms I–129 as a result of this 

provision.217 As previously estimated, 

we expect that about 47.21 percent of 

Form I–129 petitions will be filed by an 

in-house or outsourced lawyer. 

Therefore, we expect that a lawyer will 

file 138 of these petitions and an HR 

specialist or equivalent occupation will 

file the remaining 154.218 Previously in 

this analysis, we estimated that about 

91.43 percent of Form I–129 H–2B 

petitions are filed with Form I–907 for 

premium processing. As a result of this 

portability provision, we expect that an 

additional 267 Forms I–907 will be 

filed.219 We expect a lawyer to file 126 

of those Forms I–907 and an HR 

specialist to file the remaining 141.220

h. Population Affected by the Audits 

Under this time-limited FY 2024 H– 

2B supplemental cap rule, DHS intends 

to conduct 250 audits of employers 

hiring H–2B workers, and DOL intends 

to conduct 100 audits of employers 

hiring H–2B workers. The determination 

of which employers will be audited will 

be done at the discretion of the 

Departments, though the agencies will 

coordinate so that no employer is 

audited by both DOL and DHS. 

Therefore, the Federal Government 

expects to conduct a total of 350 audits 


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2016 427 5,750 7.4% 

2017 556 5,298 10.5% 

2018 744 5,136 14.5% 

2019 812 6,251 13.0% 

2020 804 3,997 20.1% 

FY 2016 -2020 Total 3,343 26,433 12.6% 

USC IS, USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 09/2023, TRK 

12921 
Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80447 

221These 350 audits are separate and distinct 

from WHD’s investigations pursuant to its existing 

enforcement authority. 

222Available at https://enforcedata.dol.gov/views/ 

data_catalogs.php (accessed September 22, 2023). 

223 It is possible not every employer that has been 

cited for an H–2B violation in the last two years will 

petition for H–2B employees under this 

supplemental cap authority. DHS considers an 

upper limit of 154 to be a reasonable estimate of the 

number of petitioners that will undergo additional 

scrutiny. 

224Calculation for lawyers: 7,739 estimated 

applicants * 47.21 percent represents by a lawyer 

= 3,654 (rounded) represented by a lawyer. 

Calculation for HR specialists: 7,739 approved, 

pending, and projected applicants¥3,654 

represented by a lawyer = 4,085 represented by an 

HR specialist. 

225Filing fees are not considered costs to society. 

These fees have been accounted for as a transfer 

from petitioners to USCIS. 

226The public reporting burden for this form is 

2.34 hours for Form I–129 and an additional 2.00 

hours for H Classification Supplement, totaling 4.34 

hours. See Form I–129 instructions at https://

www.uscis.gov/sites/default/files/document/forms/ 

i-129instr.pdf (accessed September 28, 2023). 

227U.S. Department of Labor, Bureau of Labor 

Statistics, ‘‘May 2022 National Occupational 

Employment and Wage Statistics’’ Human 

Resources Specialist (13–1071), Mean Hourly Wage, 

available at https://www.bls.gov/oes/2022/may/ 

oes131071.htm (accessed September 13, 2023). 

228U.S. Department of Labor, Bureau of Labor 

Statistics. ‘‘May 2022 National Occupational 

Employment and Wage Estimates’’ Lawyers (23– 

1011), Mean Hourly Wage, available at https://

www.bls.gov/oes/2022/may/oes231011.htm 

(accessed September 13, 2023). 

229Calculation: $42.48 mean Total Employee 

Compensation per hour for civilian workers/$29.32 

mean Wages and Salaries per hour for civilian 

workers = 1.45 benefits-to-wage multiplier. See 

Economic News Release, Bureau of Labor Statistics, 

U.S. Department of Labor, Employer Costs for 

Employee Compensation—December 2022 Table 1. 

Employer Costs for Employee Compensation by 

ownership, Civilian workers, available at https://

www.bls.gov/news.release/archives/ecec_

03172023.pdf (accessed September 13, 2023). 

on employers that petition for H–2B 

workers under this TFR.221

i. Population Affected by Additional 

Scrutiny 

DHS expects that petitioners that have 

been cited by WHD for H–2B program 

violations will undergo additional 

scrutiny from USCIS. To estimate the 

number of firms expected to undergo 

increased scrutiny, we utilize DOL’s 

Wage and Hour Compliance Action 

Data.222 The data available here is for 

concluded cases. Table 10 presents the 

number of employers that were cited for 

H–2B violations that have a worker 

protection violation end date in FYs 

2018–2022. The worker protection 

violation end date is established based 

on the ‘‘findings end date,’’ which 

represents the date that the last worker 

protection violation occurred in the 

concluded case. During FY 2018–2022, 

on average 77 (rounded) employers that 

were cited for H–2B violations had a 

worker protection violation end date 

each year. USCIS intends to request 

evidence from employers cited for H–2B 

violations with a worker protection 

violation end date in the last two years. 

Therefore, for purposes of this analysis, 

we expect 154 petitioners will undergo 

additional scrutiny from USCIS.223

j. Population Expected To Familiarize 

Themselves With This Rule 

DHS expects employers that have 

filed for TLCs to familiarize themselves 

with this rule. Table 3 shows that the 

average number of certifications over 

the last five FYs is 7,739. We use the 

TLC population, rather than the 

estimated 4,358 expected to file a Form 

I–129 petition, because employers that 

have applied for TLCs would need to 

familiarize themselves with the rule in 

order to determine whether or not to 

subsequently file a Form I–129 petition. 

We expect a HR specialist, in-house 

lawyer, or outsourced lawyer will 

perform familiarization with the rule at 

the same rate as petitioners that file a 

Form G–28. As discussed above, an 

estimated 47.21 percent of petitioners 

are submitted by lawyers. Therefore, we 

estimate that 3,654 lawyers and 4,085 

HR specialists will incur familiarization 

costs.224

4. Cost-Benefit Analysis 

The provisions of this rule require the 

submission of a Form I–129 H–2B 

petition. The costs for this form include 

the opportunity cost of time to complete 

and submit the form.225 The estimated 

time to complete and file Form I–129 for 

H–2B classification is 4.34 hours.226 A 

U.S. employer, a U.S. agent, or a foreign 

employer filing through the U.S. agent 

must file the petition. DHS estimates 

that an in-house or outsourced lawyer 

will file 47.21 percent of Form I–129 H– 

2B petitions, and an HR specialist or 

equivalent occupation will file the 

remainder (52.79 percent). DHS presents 

estimated costs for HR specialists filing 

Form I–129 petitions and an estimated 

range of costs for in-house lawyers or 

outsourced lawyers filing Form I–129 

petitions. 

To estimate the total opportunity cost 

of time to HR specialists who complete 

and file Form I–129, DHS uses the mean 

hourly wage rate of HR specialists of 

$35.13 as the base wage rate.227 If 

petitioners hire an in-house or 

outsourced lawyer to file Form I–129 on 

their behalf, DHS uses the mean hourly 

wage rate $78.74 as the base wage 

rate.228 Using the most recent BLS data, 

DHS calculated a benefits-to-wage 

multiplier of 1.45 to estimate the full 

wages to include benefits such as paid 

leave, insurance, and retirement.229

DHS multiplied the average hourly U.S. 

wage rate for HR specialists and for inhouse lawyers by the benefits-to-wage 


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Table 10. Employers with H-2B violations with worker protection violation end 

date in FY 2018-2022 

Fiscal Year Employers cited for H-2B violations with worker 

protection violation end date in Fiscal Year 

2018 96 

2019 119 

2020 84 

2021 48 

2022 37 

Five-year Average (rounded) 77 

Source: USCIS analysis ofDOL Wage and Hour Compliance Action Data 
80448 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

230Calculation, HR specialist: $35.13 mean 

hourly wage * 1.45 benefits-to-wage multiplier = 

$50.94 hourly total compensation (hourly 

opportunity cost of time). 

Calculation, In-house Lawyer: $78.74 mean 

hourly wage * 1.45 benefits-to-wage multiplier = 

$114.17 hourly total compensation (hourly 

opportunity cost of time). 

231The DHS ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ 

acknowledges that ‘‘the cost of hiring services 

provided by an outside vendor or contractor is two 

to three times more expensive than the wages paid 

by the employer for that service produced by an inhouse employee,’’ based on information received in 

public comment to that rule. We believe the 

explanation and methodology used in the Final 

Small Entity Impact Analysis (SEIA) remains sound 

for using 2.5 as a multiplier for outsourced labor 

wages in this rule: Safe Harbor Procedures for 

Employers Who Receive a No-Match Letter: 

Clarification; Final Regulatory Flexibility Analysis, 

73 FR 63843 (Oct. 28, 2008), available at https://

www.regulations.gov/document/ICEB-2006-0004- 

0921 (accessed Sep. 29, 2023). See also 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), available at 

https://www.regulations.gov/document/DHS-2022- 

0010-0001 (accessed September 29, 2023). 

232Calculation, Outsourced Lawyer: $78.74 mean 

hourly wage * 2.5 benefits-to-wage multiplier = 

$196.85 hourly total compensation (hourly 

opportunity cost of time). 

233USCIS, Filing Your Form G–28, https://

www.uscis.gov/forms/filing-your-form-g-28 

(accessed October 11, 2023). 

234USCIS, G–28, Instructions for Notice of Entry 

of Appearance as Attorney or Accredited 

Representative, https://www.uscis.gov/sites/default/ 

files/document/forms/g-28instr.pdf. 

Calculation: 50 minutes/60 minutes per hour = 

0.83 hour (rounded). 

235Calculation: 0.83 hour to file Form G–28 + 

4.34 hours to file Form I–129 = 5.17 hours to file 

both forms. 

236Calculation, HR specialist files Form I–129: 

$50.94 hourly opportunity cost of time * 4.34 hours 

= $221.08 opportunity cost of time per petition. 

Calculation, In-house Lawyer files Form I–129 

and Form G–28: $114.17 hourly opportunity cost of 

time * 5.17 hours = $590.26 opportunity cost of 

time per petition. 

Calculation, Outsourced Lawyer files Form I–129 

and Form G–28: $196.85 hourly opportunity cost of 

time * 5.17 hours = $1,017.71 opportunity cost of 

time per petition. 

237See Form I–129 instructions at https://

www.uscis.gov/sites/default/files/document/forms/ 

i-129instr.pdf (accessed September 28, 2023). See 

also 8 U.S.C. 1184(c)(13). 

238Calculation: (4,358 petitions + 292 petitions) 

* $610 per petition = $2,836,500. 

239Calculation (4,358 petitions + 292 petitions) * 

91.43 Form I–907 rate = 4,252 Forms I–907. 

240Calculation: $1,500 per petition * 4,252 Forms 

I–907 = $6,378,000 

241Calculation: $2,836,500 + $6,378,000 = 

$9,214,500. 

242Calculation, HR specialist: $221.08 cost per 

petition * 2,301 Form I–129 = $508,705 (rounded) 

total cost. 

243Calculation, In-house Lawyer: $590.26 cost per 

petition * 2,057 Form I–129 and Form G–28 = 

$1,214,165 (rounded) total cost. 

Calculation, Outsourced Lawyer: $1,017.71 cost 

per petition * 2,057 Form I–129 and Form G–28 = 

$2,093,429 (rounded) total cost. 

244Calculation: $508,705 total cost of Form I–129 

filed by HR specialists + $1,214,165 total cost of 

Form I–129 and Form G–28 filed by in-house 

lawyers = $1,722,870 estimated total costs to file 

Form I–129 and G–28. 

Calculation: $508,705 total cost of Form I–129 

filed by HR specialists + $2,093,429 total cost of 

Form I–129 and G–28 filed by outsourced lawyers 

= $2,602,134 estimated total costs to file Form I– 

129 and G–28. 

245The filing fee is a transfer from the petitioner 

requesting premium processing and proxy for the 

total costs to USCIS. 

246See Form I–907 instructions at https://

www.uscis.gov/i-907 (accessed September 22, 2023). 

multiplier of 1.45 to estimate total 

compensation to employees. The total 

compensation for an HR specialist is 

$50.94 per hour, and the total 

compensation for an in-house lawyer is 

$114.17 per hour.230 In addition, DHS 

recognizes that an entity may not have 

an in-house lawyer and may seek 

outside counsel to complete and file 

Form I–129 on behalf of the petitioner. 

Therefore, DHS presents a second wage 

rate for lawyers labeled as outsourced 

lawyers. DHS recognizes that the wages 

for outsourced lawyers may be much 

higher than in-house lawyers and 

therefore uses a higher compensation-towage multiplier of 2.5 for outsourced 

lawyers.231 DHS estimates the total 

compensation for an outsourced lawyer 

is $196.85 per hour.232 If a lawyer 

submits Form I–129 on behalf of the 

petitioner, Form G–28 must accompany 

the Form I–129 petition.233 DHS 

estimates the time burden to complete 

and submit Form G–28 for a lawyer is 

50 minutes (0.83 hour, rounded).234 For 

this analysis, DHS adds the time to 

complete Form G–28 to the opportunity 

cost of time to lawyers for filing Form 

I–129 on behalf of a petitioner. This 

results in a time burden of 5.17 hours 

for in-house lawyers and outsourced 

lawyers to complete Form G–28 and 

Form I–129.235 Therefore, the total 

opportunity cost of time per petition for 

an HR specialist to complete and file 

Form I–129 is approximately $221.08, 

for an in-house lawyer to complete and 

file Forms I–129 and G–28 is about 

$590.26, and for an outsourced lawyer 

to complete and file is approximately 

$1,017.71.236

a. Transfers 

i. Transfers From Petitioners to the 

Government 

The provisions of this rule require the 

submission of a Form I–129 H–2B 

petition. The transfers for this form 

include the filing costs to submit the 

form. The current filing fee for Form I– 

129 is $460 and employers filing H–2B 

petitions must submit an additional fee 

of $150.237 These filing fees are not a 

cost to society or an expenditure of new 

resources but a transfer from the 

petitioner to USCIS in exchange for 

agency services. DHS anticipates that 

petitioners will file 4,358 Forms I–129 

due to the rule’s supplemental visa 

allocation and an additional 292 Forms 

I–129 due to the rule’s portability 

provision. The total value of transfers 

from petitioners to the Government for 

Form I–129 filings due to the rule is 

$2,836,500.238

Additionally, employers may use 

Form I–907 to request premium 

processing of Form I–129 petitions for 

H–2B visas. The filing fee for Form I– 

907 for H–2B petitions is $1,500. Based 

upon historical trends, USCIS expects 

that 91.43 percent of petitioners will file 

a Form I–907 in addition to their Form 

I–129. Applying that rate to the 

expected number of Forms I–129 would 

result in 4,252 Forms I–907 filed due to 

the rule.239 Transfers from petitioners to 

the Government related to the filing of 

Forms I–907 as a result of the rule are 

$6,378,000.240 Total transfers from 

petitioners to the Government are 

$9,214,500.241

b. Cost to Petitioners 

As mentioned in Section 3, the 

estimated population impacted by this 

rule is 4,358 eligible petitioners that are 

projected to apply for the additional 

64,716 H–2B visas, with 20,000 of those 

additional visas reserved for employers 

that will petition for workers who are 

nationals of the countries included in 

the country-specific allocation, who are 

exempt from the returning worker 

requirement. 

i. Costs to Petitioners To File Form I– 

129 and Form G–28 

As discussed above, DHS estimates 

that HR specialists will file an 

additional 2,301 petitions using Form I– 

129 and lawyers will file an additional 

2,057 petitions using Form I–129 and 

Form G–28. DHS estimates the total cost 

to file Form I–129 petitions if filed by 

HR specialists is $508,705 (rounded).242

DHS estimates the total cost to file Form 

I–129 petitions and Form G–28 if filed 

by lawyers will range from $1,214,165 

(rounded) if only in-house lawyers file 

these forms, to $2,093,429 (rounded) if 

only outsourced lawyers file them.243

Therefore, the estimated total cost to file 

Form I–129 and Form G–28 range from 

$1,722,870 and $2,602,134.244

ii. Costs to File Form I–907 

Employers may use Form I–907 to 

request premium processing of Form I– 

129 petitions for H–2B visas. The filing 

fee for Form I–907 for H–2B petitions is 

$1,500, and the time burden for 

completing the form is 35 minutes (0.58 

hour).245 246 Using the wage rates 


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Calculation: 35 minutes/60 minutes per hour = 

0.58 (rounded) hour. 

247Calculation, HR specialist Form I–907: $50.94 

hourly opportunity cost of time * 0.58 hour = 

$29.55 opportunity cost of time per request. 

Calculation, In-house Lawyer Form I–907: 

$114.17 hourly opportunity cost of time * 0.58 hour 

= $66.22 opportunity cost of time per request. 

Calculation, Outsourced Lawyer Form I–907: 

$196.85 hourly opportunity cost of time * 0.58 hour 

= $114.17 opportunity cost of time per request. 

248Calculation, HR specialist: $29.55 opportunity 

cost of time per request * 2,104 Form I–907 = 

$62,173 (rounded) total cost of Form I–907 filed by 

HR specialists. 

249Calculation, In-house Lawyer Form I–907: 

$66.22 hourly opportunity cost of time * 1,881 

applications = $124,560. 

Calculation, Outsourced Lawyer Form I–907: 

$114.17 hourly opportunity cost of time * 1,881 

applications = $214,754. 

250Calculation: $62,173 total cost of Form I–907 

filed by HR specialists + $124,560 total cost of Form 

I–907 filed by in-house lawyers = $186,733 

estimated total costs to file Form I–907. 

Calculation: $62,173 total cost of Form I–129 filed 

by HR specialists + $214,754 total cost of Form I– 

907 filed by outsourced lawyers = $276,927 

estimated total costs to file Form I–907. 

251The 130 minute burden estimate is as follows: 

9142–B—55 minutes, Appendix A—15 minutes, 

Appendix B- 15 minutes, Appendix C—20 minutes, 

Appendix D—10 minutes, Record Keeping—15 

minutes. See Form ETA–9142–B at https://

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_

Form_9142B.pdf (last accessed Sep. 22, 2023). 

252Calculation, HR specialist: $50.94 per hour * 

2.17 hours * 178 Form ETA–9142–B = $19,676 

(rounded) total cost of Form ETA–9142–B filed by 

HR specialists. 

253Calculation, In-house Lawyer Form ETA– 

9142–B: $114.17 per hour * 2.17 hours * 159 

applications = $39,392 (rounded). Calculation, 

Outsourced Lawyer Form ETA–9142–B: $196.85 per 

hour * 2.17 hours * 159 applications = $67,919 

(rounded). 

254Calculation: $19,676 total cost of Form ETA– 

9142–B filed by HR specialist + $39,392 total cost 

of Form ETA–9142–B filed by In-house Lawyer = 

$59,068 estimated total costs to file Form ETA– 

9142–B. 

Calculation: $19,676 total cost of Form ETA– 

9142–B filed by HR specialist + $67,919 total cost 

of Form ETA–9142–B filed by Outsourced Lawyer 

= $87,595 estimated total costs to file Form ETA– 

9142–B. 

255Calculation: $50.94 hourly opportunity cost of 

time * 1-hour time burden for the new attestation 

form and notifying third parties and retaining 

records related to the returning worker 

requirements = $50.94. 

256Calculation: $50.94 hourly opportunity cost of 

time * 0.17 hours to send OFLC and AFL–CIO the 

ETA case number = $8.66 (rounded). 

257Calculation: $50.94 + $8.66 = $59.60. 

258See U.S. Department of Labor, Bureau of Labor 

Statistics, ‘‘May 2022 National Occupational 

Employment and Wage Statistics’’ Financial and 

Investment Analysts (13–2051), https://

www.bls.gov/oes/2022/may/oes132051.htm 

(accessed September 13, 2023). 

259Calculation: $52.30 mean hourly wage for a 

financial analyst * 1.45 benefits-to-wage multiplier 

= $75.84 (rounded). 

260Calculation: $75.84 estimated total 

compensation for a financial analyst * 5 hours to 

meet the requirements of the irreparable harm 

standard = $379.20. 

261Calculations, HR specialists: $59.60 

opportunity cost of time to comply with attestation 

requirements and to send the ETA case number to 

OFLC and AFL–CIO * 4,358 estimated additional 

petitions = $259,737 (rounded) total cost to comply 

with attestation requirements. 

Calculation, Financial Analysts: $379.20 

opportunity cost of time to comply with attestation 

requirements * 4,358 estimated additional petitions 

= $1,652,554 (rounded) to comply with attestation 

requirements. 

262Calculation: $259,737 total cost for HR 

specialist to comply with attestation requirement 

Continued 

established previously, the opportunity 

cost of time to file Form I–907 is 

approximately $29.55 for an HR 

specialist, $66.22 for an in-house 

lawyer, and $114.17 for an outsourced 

lawyer.247

As discussed above, DHS estimates 

that HR specialists will file an 

additional 2,104 Form I–907 and 

lawyers will file an additional 1,881 

Form I–907. DHS estimates the total cost 

of Form I–907 filed by HR specialists is 

about $62,173 (rounded).248 DHS 

estimates the total cost to file Form I– 

907 filed by lawyers range from about 

$124,560 (rounded) for only in-house 

lawyers, to $214,754 (rounded) for only 

outsourced lawyers.249 The estimated 

total cost to file Form I–907 range from 

$186,733 and $276,927.250

iii. Cost to Late Season Employers Filing 

Form ETA–9142B 

In addition to the costs for employers 

projected to request TLCs irrespective of 

this rule, the population of 337 late 

season employers that would not 

otherwise request H–2B workers will 

file Form ETA–9142B as a precondition 

to utilizing the late season allocation of 

H–2B visas made available by the rule. 

There is no filing fee for Form ETA– 

9142B, and the time burden for 

completing the form, including 

Appendix A, Appendix B, Appendix C, 

Appendix D, and record keeping, is 2 

hours and 10 minutes (2.17 hours).251

DHS estimates the total cost of Form 

ETA–9142B filed by HR specialists is 

about $19,676 (rounded).252 DHS 

estimates the total cost to file Form 

ETA–9142B by lawyers range from 

about $39,392 (rounded) for only inhouse lawyers, to $67,919 (rounded) for 

only outsourced lawyers.253 The 

estimated total cost to file Form ETA– 

9142B range from $59,068 and 

$87,595.254

iv. Cost to File Form ETA–9142–B– 

CAA–8 

Form ETA–9142–B–CAA–8 is an 

attestation form that includes recruiting 

requirements, the irreparable harm 

standard, and document retention 

obligations. DOL estimates the time 

burden for completing and signing the 

form is 0.25 hours, 0.25 hours for 

retaining records, and 0.50 hours to 

comply with the returning workers’ 

attestation, for a total time burden of 1 

hour. Using the $50.94 hourly total 

compensation for an HR specialist, the 

opportunity cost of time for an HR 

specialist to complete the attestation 

form, notify third parties, and retain 

records relating to the returning worker 

requirements is approximately 

$50.94.255 Employers are also required 

to send OFLC and AFL–CIO the ETA 

case number when filing a petition with 

DHS. DOL estimates the time burden for 

this task is 10 minutes (0.17 hours) for 

an HR specialist. The opportunity cost 

of time for an HR specialist to send 

OFLC and AFL the ETA case number is 

approximately $8.66.256 The total 

opportunity cost of time for filing Form 

ETA–9142–B–CAA–8 and emailing the 

ETA case number to both OFLC and the 

AFL–CIO is $59.60.257

Additionally, the form requires that 

petitioners assess, prepare a detailed 

written statement, and document 

supporting evidence for meeting the 

irreparable harm standard, and retain 

those documents and records, which we 

assume will require the resources of a 

financial analyst (or another equivalent 

occupation). Using the same 

methodology previously described for 

wages, the mean hourly wage for a 

financial analyst is $52.30,258 and the 

estimated hourly total compensation for 

a financial analyst is $75.84.259 DOL 

estimates the time burden for these tasks 

is at least 4 hours, and 1 hour for 

gathering and retaining documents and 

records, for a total time burden of 5 

hours. Therefore, the total opportunity 

cost of time for a financial analyst to 

assess, document, and retain supporting 

evidence is approximately $379.20.260

As discussed previously, DHS 

believes that the 4,358 Form I–129 

petitions required to exhaust the 

number of supplemental visas made 

available in this rule represents the 

number of potential employers that will 

request to employ H–2B workers under 

this rule. This number of petitions is a 

reasonable proxy for the number of 

employers that may need to review and 

sign the attestation. Using this estimate 

for the total number of certifications, we 

estimate the opportunity cost of time for 

completing the attestation and sending 

the ETA case number to OFLC and 

AFL–CIO for HR specialists is 

approximately $259,737 (rounded) and 

for financial analysts is about 

$1,652,554 (rounded).261

The estimated total cost to file Form 

ETA–9142–B–CAA–8 and comply with 

the attestation is approximately 

1,912,291.262


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and to send the ETA case number to OFLC and 

AFL–CIO + $1,652,554 total cost for financial 

analysts to comply with attestation requirements = 

$1,912,291 total cost to comply with attestation 

requirements. 

263This is the average expected time burden 

across all employers; not all employers will need 

to notify the AFL–CIO, because not all occupation 

are traditionally or customarily unionized. DOL 

estimates the time burden for placing a new job 

order for the job opportunity with SWA is 1 hour, 

0.5 hours for contacting the nearest AJC, 1 hour for 

contacting former U.S. workers, 0.5 hours for 

contacting current employees for referrals, 0.5 hours 

for placing the available job opportunity on the 

employer’s website, and 0.5 hours to provide a copy 

of job order to the bargaining representative and 

written notification of job opportunity to nearest 

AFL–CIO if the occupation is traditionally or 

customarily unionized, for a total time burden of 4 

hours. 

264Calculation: $50.94 hourly opportunity cost of 

time for an HR specialist * 4 hours to conduct 

additional recruitment = $203.76 per petitioner cost 

to conduct additional recruitment. 

265Calculation: 1,395 estimated number of 

petitioners subject to additional recruitment 

requirements * $203.76 per petitioner cost to 

conduct additional recruitment = $284,245 

(rounded) total cost to conduct additional 

recruitment. 

266Calculation, HR specialist: $221.08 estimated 

cost to file a Form I–129 H–2B petition * 154 

petitions = $34,046 (rounded). 

267Calculation, In-house Lawyer: $590.26 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 * 138 petitions = 

$81,456 (rounded). 

Calculation, Outsourced Lawyer: $1,017.71 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 * 138 petitions = 

$140,444 (rounded). 

268Calculation: 292 estimated additional Form I– 

129 H–2B petitions * 91.43 percent accompanied by 

Form I–907 = 267 (rounded) additional Form I–907. 

269Calculation, Lawyers: 267 additional Form I– 

907 * 47.21 percent = 126 (rounded) Form I–907 

filed by a lawyer. Calculation, HR specialists: 267 

Form I–907¥126 Form I–907 filed by a lawyer = 

141 Form I–907 filed by an HR specialist. 

270Calculation, HR specialist: $29.55 to file a 

Form I–907 * 141 forms = $4,167 (rounded). 

271Calculation, In-house lawyer: $66.22 to file a 

Form I–907 * 126 forms = $8,344 (rounded). 

Calculation for an outsourced lawyer: $114.17 to 

file a Form I–907 * 126 forms = $14,385 (rounded). 

v. Cost To Conduct Recruitment 

An employer that files Form ETA– 

9142B–CAA–8 and the I–129 petition 30 

or more days after the certified start date 

of work must conduct additional 

recruitment of U.S. workers. This 

consists of: (1) placing a new job order 

with the State Workforce Agency 

(SWA), (2) contacting the relevant 

American Job Center (AJC), (3) 

contacting the AFL–CIO if applicable, 

(4) contacting former U.S. workers, (5) 

recruiting U.S. workers as provided in 

§ 655.45(a) and (b), (6) contacting 

current employees for referrals, and (7) 

placing the available job opportunity on 

the employer’s website if the employer 

maintains a website for its business and. 

Specifically, the employer must place 

a new job order for the job opportunity 

with the SWA serving the area of 

intended employment. During the 

period the SWA is actively circulating 

the job order, employers must also 

contact, by email or other available 

electronic means, the nearest local AJC 

to request staff assistance advertising 

and recruiting qualified U.S. workers for 

the job opportunity, and to provide to 

the AJC the unique identification 

number associated with the job order 

placed with the SWA. 

If the occupation is traditionally or 

customarily unionized, employers must 

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 request assistance in 

recruiting qualified U.S. workers for the 

job opportunity. 

Employers are required to make 

reasonable efforts to contact, by mail or 

other effective means, their former U.S. 

workers, including those workers who 

were furloughed and laid off, beginning 

January 1, 2022. Employers must 

disclose the terms of the job order to 

these workers as required by the rule. 

The employer must provide a copy of 

the job order to the bargaining 

representative for its employees in the 

occupation and area of intended 

employment, consistent with 20 CFR 

655.45(a), or if there is no bargaining 

representative, post the job order in the 

places and manner described in 20 CFR 

655.45(b). 

Employers are also required to contact 

current employees regarding available 

job opportunities for referrals. 

Finally, employers are required to 

post the available job opportunity on the 

employer’s website if the employer 

maintains a website for its business. 

DOL estimates the average expected 

time burden for activities related to 

conducting recruitment is 4 hours.263

Assuming this work will be done by an 

HR specialist or an equivalent 

occupation, the estimated cost to each 

petitioner is approximately $203.76.264

Using 1,395 as the estimated number of 

petitioners required to undergo 

additional recruitment activities, the 

estimated total cost of this provision is 

approximately $284,245 (rounded).265

It is possible that if U.S. employees 

apply for these positions, H–2B 

employers may incur some costs 

associated with reviewing applications, 

interviewing, vetting, and hiring 

applicants who are referred to H–2B 

employers by the recruiting activities 

required by this rule. However, DOL is 

unable to quantify the impact. 

vi. Cost of the Portability Provision 

Petitioners seeking to hire H–2B 

nonimmigrants who are currently 

present in the United States with a valid 

H–2B visa would need to file a Form I– 

129, which includes paying the 

associated fee as discussed above. Also 

previously discussed, we estimate that 

approximately 292 additional Form I– 

129 H–2B petitions will be filed as a 

result of this provision. 

As discussed previously, if a 

petitioner is represented by a lawyer, 

the lawyer must file Form G–28. In 

addition, if a petitioner desires premium 

processing, the petitioner must file 

Form I–907 and pay the associated fee. 

We expect an HR specialist, in-house 

lawyer, or an outsourced lawyer will 

perform these actions. Moreover, as 

previously estimated, we expect that an 

in-house or outsourced lawyer will file 

about 47.21 percent of these Form I–129 

petitions. Therefore, we expect that a 

lawyer will file 138 of these petitions 

and an HR specialist or equivalent 

occupation will file the remaining 154. 

As previously discussed, the 

opportunity cost of time to file a Form 

I–129 H–2B petition is $221.08 for an 

HR specialist; and the opportunity cost 

of time to file a Form I–129 H–2B 

petition with accompanying Form G–28 

is $590.26 for an in-house lawyer and 

$1,017.71 for an outsourced lawyer. 

Therefore, we estimate the cost of the 

additional Forms I–129 from the 

portability provision for HR specialists 

is $34,046.266 The estimated cost of the 

additional Forms I–129 accompanied by 

Forms G–28 from the portability 

provision for lawyers is $81,456 if filed 

by in-house lawyers and $140,444 if 

filed by outsourced lawyers.267

Previously in this analysis, we 

estimated that about 91.43 percent of 

Form I–129 H–2B petitions are filed 

with Form I–907 for premium 

processing. As a result of this provision, 

we expect that an additional 267 Forms 

I–907 will be filed.268 We expect a 

lawyer will file 126 of those Forms I– 

907 and an HR specialist or equivalent 

occupation will file the remaining 

141.269 As previously discussed, the 

estimated opportunity cost of time to 

file a Form I–907 is $29.55 for an HR 

specialist; and the estimated 

opportunity cost of time to file a Form 

I–907 is approximately $66.22 for an inhouse lawyer and $114.17 for an 

outsourced lawyer. The estimated total 

cost of the additional Forms I–907 if HR 

specialists file is $4,167.270 The 

estimated total cost of the additional 

Forms I–907 is $8,344 if filed by inhouse lawyers and $14,385 if filed by 

outsourced lawyers.271


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272Calculation for HR specialists and in-house 

lawyers: $34,046 for HR specialists to file Form I– 

129 H–2B petitions + $81,456 for in-house lawyers 

to file Form I–129 and the accompanying Form G– 

28 + $4,167 for HR specialists to file Form I–907 

+ $8,344 for in-house lawyers to file Form I–907 = 

$128,013. 

Calculation for HR specialists and outsourced 

lawyers: $34,046 for HR specialists to file Form I– 

129 H–2B petitions + $140,444 for outsourced 

lawyers to file Form I–129 and the accompanying 

Form G–28 + $4,167 for HR specialists to file Form 

I–907 + $14,385 for outsourced lawyers to file Form 

I–907 = $193,042. 

273The number in hours for audits was provided 

by the USCIS, Service Center Operations. 

274Calculation: $50.94 hourly opportunity cost of 

time for an HR specialist * 12 hours to comply with 

an audit = $611.28 per audited employer. 

275Calculation: 350 audited employers * $611.28 

opportunity cost of time to comply with an audit 

= $213,948. 

276USPS, Priority Mail, https://www.usps.com/ 

ship/priority-mail.htm (accessed September 23, 

2023). 

277See https://www.montgomerycountymd.gov/ 

Library/services/computerhelp.html (accessed 

September 20, 2023). Cost to make black and white 

copies. Calculation: 500 pages * $0.15 per page = 

$75.00 in printing costs. 

278Calculation: $75.00 in printing costs + $17.10 

in shipping costs = $92.10 to print and ship 

evidence. 

279Calculation: 154 petitioners * $92.10 to print 

and ship evidence = $14,183 total printing and 

shipping costs. 

280Calculation: $50.94 hourly opportunity cost of 

time for HR specialist * 1 hour to print and ship 

evidence = $50.94 opportunity cost of time per 

petitioner. 

281Calculation: 154 petitioners * $50.94 

opportunity cost of time per petitioner = $7,845 

total estimated opportunity cost of time to print and 

ship evidence. 

282Calculation: $14,183 total printing and 

shipping costs + $7,845 total opportunity cost of 

time = $22,028 total estimated cost of additional 

scrutiny. 

283Brysbaert, Marc (2019, April 12). ‘How many 

words do we read per minute? A review and metaanalysis of reading rate.’ https://doi.org/10.31234/ 

osf.io/xynwg (accessed September 22, 2023). We use 

the average speed for silent reading of English 

nonfiction by adults. 

284Please note that this number represents that 

Departments’ best estimate of the final word count, 

given that the actual word may change during the 

promulgation of the Rule. 

285Calculation, Step 1: roughly 69,000 words/238 

words per minute = 290 (rounded) minutes. 

Calculation, Step 2: 290 minutes/60 minutes per 

hour = 4.8 (rounded) hours. 

286Calculation, HR Specialists: $50.94 estimated 

hourly total compensation for an HR specialist * 4.8 

hours to read and become familiar with the rule = 

$244.51 opportunity cost of time for an HR 

specialist to read and understand the rule. 

Calculation, In-house lawyer: 114.17 estimated 

hourly total compensation for an in-house lawyer 

* 4.8 hours to read and become familiar with the 

rule = 548.02 (rounded) opportunity cost of time for 

an in-house lawyer to read and understand the rule. 

Calculation, Outsourced lawyer: $196.85 

estimated hourly total compensation for an 

outsourced lawyer * 4.8 hours to read and become 

familiar with the rule = $944.88 (rounded) 

opportunity cost of time for an outsourced lawyer 

to read and understand the rule. 

287Calculation, HR specialists: $244.51 

opportunity cost of time * 4,085 = $998,823 

(rounded). 

288Calculation for in-house lawyers: $548.02 

opportunity cost of * 3,654 = $2,002,465 (rounded). 

Calculation for outsourced lawyers: 944.88 

opportunity cost of time * 3,654 = $3,452,592 

(rounded). 

The estimated total cost of this 

provision ranges from $128,013 to 

$193,042 depending on what share of 

the forms are filed by in-house or 

outsourced lawyers.272

vii. Cost of Audits to Petitioners 

As discussed above, DHS intends to 

conduct 250 audits of employers hiring 

H–2B workers, and DOL intends to 

conduct 100 audits of employers hiring 

H–2B workers, for a total of 350 

employers. Employers will need to 

provide requested information to 

comply with the audit. We estimate that 

the expected time burden to comply 

with audits conducted by DHS and 

DOL’s Office of Foreign Labor 

Certification is 12 hours.273 We expect 

that an HR specialist or equivalent 

occupation will provide these 

documents. Given an hourly 

opportunity cost of time of $50.94, the 

estimated cost of complying with audits 

is $611.28 per audited employer.274

Therefore, the total estimated cost to 

employers to comply with audits is 

$213,948.275

viii. Cost of Additional Scrutiny 

The Departments expect that 

petitioners undergoing additional 

scrutiny will need to submit additional 

evidence to USCIS. The costs associated 

with additional scrutiny include the 

opportunity cost of time to assess, 

document, and compile evidence and 

the costs (both explicit costs and 

opportunity costs of time) of submitting 

the compiled evidence. 

The opportunity costs of time 

associated with compiling such 

evidence are unavailable due to the 

unique fact pattern in each instance and 

a lack of data at this time regarding the 

time to comply. To estimate the explicit 

costs of additional scrutiny, we assume 

154 petitioners will need to print 500 

pages of documents and mail this to 

USCIS. We expect these documents to 

be able to fit in a Priority Mail Medium 

Flat Rate box, which costs $17.10.276 We 

estimate the costs of printing at $0.15 

per page and the cost of printing 500 at 

$75.00.277 The estimated cost for an 

employer to print and ship evidence to 

USCIS is $92.10.278 With an estimated 

154 petitioners expected to print and 

ship evidence, the total estimated costs 

for printing and shipping evidence is 

$14,183.279

We also expect petitioners to incur a 

time burden associated with printing 

and shipping evidence to USCIS. We 

estimate it will take an HR specialist or 

equivalent employee 1 hour to print and 

ship evidence. Using the $50.94 hourly 

opportunity cost of time for HR 

specialist, we estimate the opportunity 

cost of time for each petitioner is 

$50.94.280 With an estimated 154 

petitioners expected to print and ship 

evidence, the total estimated 

opportunity cost of time to print and 

ship evidence is $7,845.281

We do not expect this provision to 

impose new costs on to USCIS. The 

costs to request and review evidence 

from petitioners is included in the fees 

paid to the agency. 

The total estimated cost of additional 

scrutiny is $22,028.282

ix. Familiarization Costs 

We expect that petitioners or their 

representatives will need to read and 

understand this rule if they seek to take 

advantage of the supplemental cap. As 

a result, we expect this rule will impose 

one-time familiarization costs associated 

with reading and understanding this 

rule. As shown previously, we estimate 

that approximately 7,739 petitioners 

may take advantage of the provisions of 

this rule, and that a lawyer will 

represent 3,654 of these petitioners and 

an HR specialist or equivalent 

occupation will represent 4,085. 

To estimate the costs of rule 

familiarization, we estimate the time it 

will take to read and understand the 

rule by assuming a reading speed of 238 

words per minute.283 This rule has 

approximately 69,000 words.284 Using a 

reading speed of 238 words per minute, 

DHS estimates it will take 

approximately 4.8 hours to read and 

understand this rule.285

The estimated hourly total 

compensation for a HR specialist, inhouse lawyer, and outsourced lawyer 

are $50.94, $114.17, and $196.85, 

respectively. The estimated opportunity 

cost of time for each of these filers to 

read and understand the rule are 

$244.51, $548.02, and $944.88, 

respectively.286 The estimated total 

opportunity cost of time for 4,085 HR 

specialists to familiarize themselves 

with this rule is approximately 

$998,823.287 The estimated total 

opportunity cost of time for 3,654 

lawyers to familiarize themselves with 

this rule is approximately $2,002,465 if 

they are all in-house lawyers and 

$3,452,592 if they are all outsourced 

lawyers.288 Accordingly, the estimated 

total opportunity costs of time for 

petitioners’ representatives to 

familiarize themselves with this rule 


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289Calculation: $998,823 + $2,002,465 = 

$3,001,288. 

Calculation: $998,823 + $3,452,592 = $4,451,415. 

290Calculation of lower range: $1,722,870 + 

$186,733 + $59,068 + $1,912,291 + $284,245 + 

$128,013 + $213,948 + $3,001,288 + $22,028 = 

$7,530,484. 

Calculation of upper range: $2,602,134 + 

$276,927 + $87,595 + $1,912,291 + $284,245 + 

$$193,042 + $213,948 + $4,451,415 + $22,028 = 

$10,043,625. 

291Calculation: (4,358 + 292 Form I–129 

petitions) * $610 per petition = $2,836,500. 

292Calculation: (3,985 + 267 Forms I–907) * 

$1,500 per form = $6,378,000. 

293Calculation: $2,836,500 + $6,378,000 = 

$9,214,500. 

294See INA section 286(m), 8 U.S.C. 1356(m). 

295These audits are distinct from the WHD’s 

authority to perform investigations regarding 

employers’ compliance with the requirements of the 

H–2B program. 

296Calculation: 12 hours to conduct an audit * 

350 audits = 4,200 total hours to conduct audits. 

297See U.S. Office of Personnel Management, Pay 

and Leave, Salaries and Wages, For the Locality Pay 

area of Washington-Baltimore-Arlington, DC-MDVA-WV-PA, 2023, Hourly Basic Rate, https://

www.opm.gov/policy-data-oversight/pay-leave/ 

salaries-wages/salary-tables/pdf/2023/DCB_h.pdf 

(last accessed September 14, 2023). 

298Calculation, Step 1: $2,342,954 Full-time 

Permanent Salaries + $860,318 Civilian Personnel 

Benefits = $3,203,272 Compensation. 

Calculation, Step 2: $3,203,272 Compensation/ 

$2,342,954 Full-time Permanent Salaries = 1.37 

(rounded) Federal employee benefits to wage ratio. 

See https://www.uscis.gov/sites/default/files/ 

document/reports/USCIS_FY_2021_Budget_

Overview.pdf (accessed September 13, 2023). 

299Calculation: $60.83 hourly wage for a GS 13– 

5 in the Washington, DC locality area * 1.37 Federal 

employee benefits to wage ratio = $83.34 hourly 

opportunity cost of time for a GS 13–5 federal 

employee in the Washington, DC locality area. 

300Calculation: 4,200 hours to conduct audits * 

$83.34 hourly opportunity cost of time = $350,028 

total opportunity costs of time for Federal 

employees to conduct audits. 

ranges from $3,001,288 to 

$4,451,415.289

x. Estimated Total Costs to Petitioners 

In sum, the monetized costs of this 

rule come from time spent filing and 

complying with Form I–129, Form G– 

28, Form I–907, and Form ETA–9142– 

B–CAA–8, as well as contacting and 

refreshing recruitment efforts, posting 

notifications, time spent filing to obtain 

a porting worker, and complying with 

audits. The estimated total cost to file 

Form I–129 and an accompanying Form 

G–28 ranges from $1,722,870 to 

$2,602,134, depending on the filer. The 

estimated total cost of filing Form I–907 

ranges from $186,733 to $276,927, 

depending on the filer. The estimated 

cost for late season employers to file 

Form ETA–9142B ranges from $59,068 

to $87,595 depending on the filer. The 

estimated total cost of filing and 

complying with Form ETA–9142–B– 

CAA–8 is $1,912,291. The estimated 

total cost of conducting additional 

recruitment is $284,245. The estimated 

cost of the portability provision ranges 

from $128,013 to $193,042, depending 

on the filer. The estimated total cost for 

employers to comply with audits is 

$213,948. The estimated total costs for 

petitioners or their representatives to 

familiarize themselves with this rule 

ranges from $3,001,288 to $4,451,415, 

depending on the filer. The estimated 

total cost of additional scrutiny is 

$22,028. The total estimated cost to 

petitioners ranges from $7,530,484 to 

$10,043,625, depending on the filer.290

c. Cost to the Federal Government 

USCIS will incur costs related to the 

adjudication of petitions as a result of 

this TFR. DHS expects USCIS to recover 

these costs by the fees associated with 

the forms, which have been accounted 

for as a transfer from petitioners to 

USCIS and serve as a proxy for the costs 

to the agency. The total filing fees 

associated with Form I–129 H–2B 

petitions are $2,836,500, 291 and the 

total filing fees associated with 

premium processing are $6,378,000.292

Total transfers from petitioners to the 

Government are $9,214,500.293

The INA provides USCIS with the 

authority to collect fees at a level that 

will ensure recovery of the full costs of 

providing adjudication and 

naturalization services, including 

administrative costs, and services 

provided without charge to certain 

applicants and petitioners.294 DHS notes 

USCIS establishes its fees by assigning 

costs to an adjudication based on its 

relative adjudication burden and use of 

USCIS resources. USCIS establishes fees 

at an amount that is necessary to recover 

these assigned costs, such as clerical, 

officers, and managerial salaries and 

benefits, plus an amount to recover 

unassigned overhead (for example, 

facility rent, IT equipment and systems 

among other expenses) and immigration 

benefits provided without a fee charged. 

Consequently, since USCIS immigration 

fees are primarily based on resource 

expenditures related to the benefit in 

question, USCIS uses the fee associated 

with an information collection as a 

reasonable measure of the collection’s 

costs to USCIS. DHS anticipates some 

additional costs in adjudicating the 

additional petitions submitted because 

of the increase in cap limitation for H– 

2B visas. 

Both DOL and DHS intend to conduct 

a significant number of audits during 

the period of temporary need to verify 

compliance with H–2B program 

requirements, including the irreparable 

harm standard as well as other key 

worker protection provisions 

implemented through this rule.295

While fees fund most USCIS activities 

and appropriations fund DOL, we 

expect both agencies will be able to shift 

resources to conduct these audits 

without incurring additional costs. As 

previously mentioned, the agencies will 

conduct a total of 350 audits, and we 

expect each audit to take 12 hours. This 

results in a total time burden of 4,200 

hours.296 USCIS anticipates that a 

Federal employee at a GS–13 Step 5 

salary will typically conduct these 

audits for each agency. The base hourly 

pay for a GS–13 Step 5 in the 

Washington, DC locality area is 

$60.83.297 To estimate the total hourly 

compensation for these positions, we 

multiply the hourly wage ($60.83) by 

the Federal benefits to wage multiplier 

of 1.37.298 This results in an hourly 

opportunity cost of time of $83.34 for 

GS–13 Step 5 Federal employees in the 

Washington, DC locality pay area.299

The total opportunity costs of time for 

Federal workers to conduct audits is 

estimated to be $350,028.300

This final rule implements changes to 

the DOL’s mechanisms to receive 

complaints from advocates, unions, and 

other stakeholders about jobs posted on 

seasonaljobs.gov. DOL expects that the 

changes to the DOL’s mechanisms to 

receive complaints may result in some 

additional costs to DOL. However, DOL 

is unable to quantify such costs due to 

lack of data. 

d. Benefits to Petitioners 

The Departments assume that 

employers will incur the costs of this 

rule and other costs associated with 

hiring H–2B workers if the expected 

benefits of those workers exceed the 

expected costs. We assume that 

employers expect some level of net 

benefit from being able to hire 

additional H–2B workers. However, the 

Departments do not collect or require 

data from H–2B employers on the 

profits from hiring these additional 

workers to estimate this increase in net 

benefits. 

The inability to access H–2B workers 

for some entities is currently causing 

irreparable harm or will cause their 

businesses to suffer irreparable harm in 

the near future. Temporarily increasing 

the number of available H–2B visas for 

this fiscal year may result in a benefit, 

because it will allow some businesses to 

hire the additional labor resources 

necessary to avoid such harm. 

Preventing such harm may also result in 

cost savings by ultimately preserve the 

jobs of other employees (including U.S. 

workers) at that establishment. 


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301See 2 U.S.C. 1532(a). 

302See U.S. Department of Labor, BLS, 

‘‘Historical Consumer Price Index for All Urban 

Consumers (CPI–U): U.S. city average, all items, by 

month,’’ available at https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202308.pdf (last 

visited September 27, 2023). Calculation of 

inflation: (1) Calculate the average monthly CPI–U 

for the reference year (1995) and the current year 

(2022); (2) Subtract reference year CPI–U from 

current year CPI–U; (3) Divide the difference of the 

reference year CPI–U and current year CPI–U by the 

reference year CPI–U; (4) Multiply by 100 = 

[(Average monthly CPI–U for 2022¥Average 

monthly CPI–U for 1995)/(Average monthly CPI–U 

for 1995)] * 100 = [(292.655¥152.4)/152.4] * 100 

= (140.255/152.4) * 100 = 0.9203 (rounded) * 100 

= 92.03 percent = 92 percent (rounded). Calculation 

of inflation-adjusted value: $100 million in 1995 

dollars * 1.92 = $192 million in 2022 dollars. 

303The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1), 658(6). 

Additionally, returning workers are 

likely to be very familiar with the H–2B 

process and requirements, and may be 

positioned to begin work more 

expeditiously with these employers. 

Moreover, employers may already be 

familiar with returning workers as they 

have trained, vetted, and worked with 

some of these returning workers in past 

years. As such, limiting the 

supplemental visas to returning workers 

will assist employers that are suffering 

irreparable harm or will suffer 

impending irreparable harm. 

e. Benefits to Workers 

The Departments assume that workers 

will only incur the costs of this rule and 

other costs associated with obtaining a 

H–2B position if the expected benefits 

of that position exceed the expected 

costs. We assume that H–2B workers 

expect some level of net benefit from 

being able to work for H–2B employers. 

However, the Departments do not have 

sufficient data to estimate this increase 

in net benefits and lack the necessary 

resources to investigate this in a timely 

manner. This rule is not expected to 

impact wages because DOL prevailing 

wage regulations apply to all H–2B 

workers covered by this rule. 

Additionally, the RIA shows that 

employers incur costs in conducting 

additional recruitment of U.S. workers 

and attesting to irreparable harm from 

current labor shortfall. These costs 

suggest employers are not taking 

advantage of a large supply of foreign 

labor at the expense of domestic 

workers. 

The existence of this rule will benefit 

the workers who receive H–2B visas. 

See Arnold Brodbeck et al., Seasonal 

Migrant Labor in the Forest Industry of 

the United States: The Impact of H–2B 

Employment on Guatemalan 

Livelihoods, 31 Society & Natural 

Resources 1012 (2018), and in particular 

this finding: ‘‘Participation in the H–2B 

guest worker program has become a 

vital part of the livelihood strategies of 

rural Guatemalan families and has had 

a positive impact on the quality of life 

in the communities where they live. 

Migrant workers who were landless, 

lived in isolated rural areas, had few 

economic opportunities, and who had 

limited access to education or adequate 

health care, now are investing in small 

trucks, building roads, schools, and 

homes, and providing employment for 

others in their home communities. . . . 

The impact has been transformative and 

positive.’’ 

Some provisions of this rule will 

benefit such workers in particular ways. 

The portability provision of this rule 

will allow nonimmigrants with valid H– 

2B visas who are present in the United 

States to transfer to a new employer 

more quickly and potentially extend 

their stay in the United States and, 

therefore, earn additional wages. 

DHS recognizes that some of the 

effects of these provisions may occur 

beyond the borders of the United States. 

The current analysis does not seek to 

quantify or monetize costs or benefits 

that occur outside of the United States. 

U.S. workers will also benefit from 

this rule in multiple ways. For example, 

the additional round of recruitment and 

U.S. worker referrals required by the 

provisions of this rule will ensure that 

a nonimmigrant worker does not 

displace a U.S. worker who is willing 

and able to fill the position and may 

result in some U.S. workers being hired. 

As noted, the avoidance of current or 

impending irreparable harm made 

possible through the granting of 

supplemental visas in this rule could 

ensure that U.S. workers—who 

otherwise may be vulnerable if H–2B 

workers were not given visas—do not 

lose their jobs. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal agency 

rules that are subject to the notice and 

comment requirements of the APA. See 

5 U.S.C. 603(a), 604(a). This temporary 

final rule is exempt from notice and 

comment requirements for the reasons 

stated above. Therefore, the 

requirements of the RFA applicable to 

final rules, 5 U.S.C. 604, do not apply 

to this temporary final rule. 

Accordingly, the Departments are not 

required to either certify that the 

temporary final rule would not have a 

significant economic impact on a 

substantial number of small entities nor 

conduct a regulatory flexibility analysis. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule that includes any Federal 

mandate that may result in $100 million 

or more expenditure (adjusted annually 

for inflation) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector.301

This rule is exempt from the written 

statement requirement because DHS did 

not publish a notice of proposed 

rulemaking for this rule. 

In addition, this rule does not exceed 

the $100 million in 1995 expenditure in 

any 1 year when adjusted for inflation 

($192 million in 2022 dollars based on 

the Consumer Price Index for All Urban 

Consumers (CPI–U)),302 and this 

rulemaking does not contain such a 

Federal mandate as the term is defined 

under UMRA.303 The requirements of 

Title II of the Act, therefore, do not 

apply, and the Departments have not 

prepared a statement under the Act. 

E. Executive Order 13132 (Federalism) 

This rule does not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, 64 FR 43255 (Aug. 4, 

1999), this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, 61 FR 

4729 (Feb. 5, 1996). 

G. National Environmental Policy Act 

DHS and its components analyze their 

proposed actions to determine whether 

the National Environmental Policy Act 

(NEPA) applies to them and, if so, what 

degree of analysis is required. DHS 

Directive (Dir) 023–01 Rev. 01 and 

Instruction Manual 023–01–001–01 Rev. 

01 (Instruction Manual) establish the 

procedures that DHS and its 

components use to comply with NEPA 


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304See U.S. Census Bureau Quick Facts, available 

at https://www.census.gov/quickfacts/US (accessed 

September 28, 2023). 

Calculation: 64,716 additional visas/333,287,557 

million people in the United States = 0.0194 

(rounded) percent temporary increase in the 

population. 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA, 40 CFR parts 1500 

through 1508. 

NEPA and the CEQ regulations allow 

Federal agencies to establish categories 

of actions (‘‘categorical exclusions’’) that 

normally do not significantly affect the 

quality of the human environment and, 

therefore, do not require an 

Environmental Assessment (EA) or 

Environmental Impact Statement (EIS). 

42 U.S.C. 4336e(1), 42 U.S.C. 4336(a)(2); 

40 CFR 1501.4, 40 CFR 1508.1(d). The 

Instruction Manual, Appendix A, Table 

1 lists Categorical Exclusions that DHS 

has found to have no such effect. Under 

DHS NEPA implementing procedures, 

for an action to be categorically 

excluded, it must satisfy each of the 

following three conditions: (1) The 

entire action clearly fits within one or 

more of the categorical exclusions; (2) 

the action is not a piece of a larger 

action; and (3) no extraordinary 

circumstances exist that create the 

potential for a significant environmental 

effect. Instruction Manual, section 

V.B.2(a–c). 

This rule temporarily amends the 

regulations implementing the H–2B 

nonimmigrant visa program to increase 

the numerical limitation on H–2B 

nonimmigrant visas for FY 2024, based 

on the Secretary of Homeland Security’s 

determination, in consultation with the 

Secretary of Labor, consistent with the 

FY 2023 Omnibus and Public Law 118– 

15. It also allows H–2B beneficiaries 

who are in the United States to change 

employers upon the filing of a new H– 

2B petition and begin to work for the 

new employer for a period generally not 

to exceed 60 days before the H–2B 

petition is approved by USCIS. 

DHS has considered in accordance 

with its NEPA implementing procedures 

and has determined that this temporary 

final rule clearly fits within categorical 

exclusion A3(d) because it interprets or 

amends a regulation without changing 

its environmental effect. The 

amendments to 8 CFR part 214 would 

authorize up to an additional 64,716 

visas for noncitizens who may receive 

H–2B nonimmigrant visas, of which 

44,716 are for returning workers 

(persons issued H–2B visas or were 

otherwise granted H–2B status in Fiscal 

Years 2021, 2022, or 2023). The 

proposed amendments would also 

facilitate H–2B nonimmigrants to move 

to new employment faster than they 

could if they had to wait for a petition 

to be approved. The amendment’s 

operative provisions approving H–2B 

petitions under the supplemental 

allocation would effectively terminate 

after September 30, 2024 for the cap 

increase, and at the end of January 24, 

2025 for the portability provision. DHS 

believes amending applicable 

regulations to authorize up to an 

additional 64,716 H–2B nonimmigrant 

visas will not result in reasonably 

foreseeable effects that would 

necessitate an environmental 

assessment or environmental impact 

statement with respect to the current H– 

2B limit or in the context of a current 

U.S. population exceeding 333,287,557 

(maximum temporary increase of 0.0194 

percent).304 DHS has also considered 

and determined that this action would 

not have extraordinary circumstances 

that would require the preparation of an 

environmental assessment or 

environmental impact statement. 

The amendment to applicable 

regulations is a stand-alone temporary 

authorization and not a part of any 

larger action, and presents no 

extraordinary circumstances creating 

the potential for significant 

environmental effects. Therefore, this 

action is categorically excluded and no 

further NEPA analysis is required. 

H. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this temporary final rule is a ‘‘major 

rule’’ as defined by the Congressional 

Review Act (‘‘CRA’’) in 5 U.S.C. 

804(2)(a) and is subject to both the 

CRA’s reporting requirement and the 

delayed effective date requirement, 

pursuant to 5 U.S.C. 801. However, as 

stated in section IV.A of this rule, the 

Departments have good cause to forgo 

APA’s requirements for notice and 

public comment (and a delayed effective 

date), pursuant to 5 U.S.C. 553. 

Therefore, the Departments also have 

good cause to forgo the CRA’s 60-day 

delayed effective date requirement, 

pursuant to 5 U.S.C. 808(2). This rule is 

effective upon publication. DHS has 

complied with the CRA’s reporting 

requirements and has sent this rule to 

Congress and to the Comptroller General 

as required by 5 U.S.C. 801(a)(1). 

I. Paperwork Reduction Act 

Attestation for Employers Seeking To 

Employ H–2B Nonimmigrants Workers 

Under Section 303 of Division O of the 

Consolidated Appropriations Act, 2023, 

Public Law 117–328, as Extended by 

Sections 101(6) and 106 of Division A 

of the Continuing Appropriations Act, 

2024 and Other Extensions Act, Public 

Law 118–15, Form ETA–9142–B–CAA– 

8 

The Paperwork Reduction Act (PRA), 

44 U.S.C. 3501 et seq., provides that a 

Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless it is 

approved by OMB under the PRA and 

displays a currently valid OMB Control 

Number. In addition, notwithstanding 

any other provisions of law, no person 

shall generally be subject to penalty for 

failing to comply with a collection of 

information that does not display a 

valid Control Number. See 5 CFR 

1320.5(a) and 1320.6. DOL has 

submitted the Information Collection 

Request (ICR) contained in this rule to 

OMB and obtained approval of a new 

form, Form ETA–9142B–CAA–8, using 

emergency clearance procedures 

outlined at 5 CFR 1320.13. The 

Departments note that while DOL 

submitted the ICR, both DHS and DOL 

will use the information provided by 

employers in response to this 

information collection. 

Petitioners will use the new Form 

ETA–9142B–CAA–8 to make 

attestations regarding, for example, 

irreparable harm and the returning 

worker requirement (unless exempt 

because the H–2B worker is a national 

of one of the countries included in the 

country-specific allocation who is 

counted against the 20,000 returning 

worker exemption cap) described above. 

Petitioners will need to file the 

attestation with DHS until it announces 

that the supplemental H–2B cap has 

been reached. In addition, the petitioner 

will need to retain all documentation 

demonstrating compliance with this 

implementing rule, and must provide it 

to DHS or DOL in the event of an audit 

or investigation. 

In addition to obtaining immediate 

emergency approval pursuant to 5 CFR 

1320.13, DOL is seeking comments on 

this information collection pursuant to 

44 U.S.C. 3506(c)(2)(A). Comments on 

the information collection must be 

received by January 16, 2024. This 

process of engaging the public and other 

Federal agencies helps ensure that 

requested data can be provided in the 

desired format, reporting burden (time 


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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 80455 

and financial resources) is minimized, 

collection instruments are clearly 

understood, and the impact of collection 

requirements on respondents can be 

properly assessed. The PRA provides 

that a Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless it is 

approved by OMB under the PRA and 

displays a currently valid OMB Control 

Number. See 44 U.S.C. 3501 et seq. In 

addition, notwithstanding any other 

provisions of law, no person must 

generally be subject to a penalty for 

failing to comply with a collection of 

information that does not display a 

valid OMB Control Number. See 5 CFR 

1320.5(a) and 1320.6. 

In accordance with the PRA, DOL is 

affording the public with notice and an 

opportunity to comment on the new 

information collection, which is 

necessary to implement the 

requirements of this rule. The 

information collection activities covered 

under a newly granted OMB Control 

Number 1205–NEW are required under 

Section 303 of Division O of the FY 

2023 Omnibus as extended by Public 

Law 118–15, which provides that ‘‘the 

Secretary of Homeland Security, after 

consultation with the Secretary of 

Labor, and upon the determination that 

the needs of American businesses 

cannot be satisfied . . . with U.S. 

workers who are willing, qualified, and 

able to perform temporary 

nonagricultural labor,’’ may increase the 

total number of noncitizens who may 

receive an H–2B visa by not more than 

the highest number of H–2B 

nonimmigrants who participated in the 

H–2B returning worker program in any 

fiscal year in which returning workers 

were exempt from the H–2B numerical 

limitation. As previously discussed in 

the preamble of this rule, the Secretary 

of Homeland Security, in consultation 

with the Secretary of Labor, has decided 

to increase the numerical limitation on 

H–2B nonimmigrant visas to authorize 

the issuance of up to, but not more than, 

an additional 64,716 visas for FY 2024 

for certain H–2B workers, for U.S. 

businesses that attest that they are 

suffering irreparable harm or will suffer 

impending irreparable harm. As with 

the previous supplemental rules, the 

Secretary has determined that the 

additional visas will only be available 

for returning workers, that is workers 

who were issued H–2B visas or 

otherwise granted H–2B status in FY 

2021, 2022, or 2023, unless the worker 

is one of the 20,000 nationals of one of 

the countries included in the countryspecific allocation who are exempt from 

the returning worker requirement. 

Commenters are encouraged to 

discuss the following: 

• Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

• The accuracy of the agency’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• The quality, utility, and clarity of 

the information to be collected; and 

• The burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, for example, 

permitting electronic submission of 

responses. 

The aforementioned information 

collection requirements are summarized 

as follows: 

Agency: DOL–ETA. 

Type of Information Collection: 

Extension of an existing information 

collection. 

Title of the Collection: Attestation for 

Employers Seeking to Employ H–2B 

Nonimmigrants Workers Under Section 

303 of Division O of the Consolidated 

Appropriations Act, 2023, Public Law 

117–328, as extended by sections 101(6) 

and 106 of Division A of the Continuing 

Appropriations Act, 2024 and Other 

Extensions Act, Public Law 118–15. 

Agency Form Number: Form ETA– 

9142–B–CAA–8. 

Affected Public: Private Sector— 

businesses or other for-profits. 

Total Estimated Number of 

Respondents: 4,358. 

Average Responses per Year per 

Respondent: 1. 

Total Estimated Number of 

Responses: 4,358. 

Average Time per Response: 10.17 

hours per application. 

Total Estimated Annual Time Burden: 

32,469 hours. 

Total Estimated Other Costs Burden: 

$2,195,689. 

Request for Premium Processing 

Service, Form I–907 

The Paperwork Reduction Act (PRA), 

44 U.S.C. 3501 et seq., provides that a 

Federal agency generally cannot 

conduct or sponsor a collection of 

information, and the public is generally 

not required to respond to an 

information collection, unless it is 

approved by OMB under the PRA and 

displays a currently valid OMB Control 

Number. In addition, notwithstanding 

any other provisions of law, no person 

shall generally be subject to penalty for 

failing to comply with a collection of 

information that does not display a 

valid Control Number. See 5 CFR 

1320.5(a) and 1320.6. Form I–907, 

Request for Premium Processing 

Service, has been approved by OMB and 

assigned OMB control number 1615– 

0048. DHS is making no changes to the 

Form I–907 in connection with this 

temporary rule implementing the timelimited authority pursuant to Section 

303 of Division O of the Consolidated 

Appropriations Act, 2023, Public Law 

117–328 as extended by Public Law 

118–15 (which expires on November 17, 

2023). However, USCIS estimates that 

this temporary rule may result in 

approximately 4,325 additional filings 

of Form I–907 in fiscal year 2024. The 

current OMB-approved estimate of the 

number of annual respondents filing a 

Form I–907 is 815,773. USCIS has 

determined that the OMB-approved 

estimate is sufficient to fully encompass 

the additional respondents who will be 

filing Form I–907 in connection with 

this temporary rule, which represents a 

small fraction of the overall Form I–907 

population. Therefore, DHS is not 

changing the collection instrument or 

increasing its burden estimates in 

connection with this temporary rule and 

is not publishing a notice under the 

PRA or making revisions to the 

currently approved burden for OMB 

control number 1615–0048. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Foreign officials, 

Health professions, Reporting and 

recordkeeping requirements, Students. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Penalties, 

Reporting and recordkeeping 

requirements, Students. 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 


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80456 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

For the reasons discussed in the joint 

preamble, chapter I of title 8 of the Code 

of Federal Regulations is amended as 

follows: 

DEPARTMENT OF HOMELAND 

SECURITY 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305, 1357, and 

1372; sec. 643, Pub. L. 104–208, 110 Stat. 

3009–708; Pub. L. 106–386, 114 Stat. 1477– 

1480; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 

1806). 

■ 2. Effective November 17, 2023, 

through November 17, 2026, amend 

§ 214.2 by adding entries for ‘‘(30)’’ and 

‘‘(31)’’ to table 3 to paragraph (h) and 

adding paragraph (h)(6)(xiv), a reserved 

paragraph (h)(30), and paragraph (h)(31) 

to read as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

TABLE 3 TO PARAGRAPH (h)—PARAGRAPH CONTENTS

*******

(30) [Reserved] 

(31) Change of employers and portability for H–2B workers (January 25, 2024 through January 24, 2025). 

* * * * * 

(6) * * * 

(xiv) Special requirements for 

additional cap allocations under Public 

Laws 117–328 and 118–15—(A) Public 

Law 117–328 and section 101(6) of 

Division A of Public Law 118–15, 

Continuing Appropriations Act, 2024 

and Other Extensions Act—(1) 

Supplemental allocation for returning 

workers. Notwithstanding the numerical 

limitations set forth in paragraph 

(h)(8)(i)(C) of this section, for fiscal year 

2024 only, the Secretary has authorized 

up to an additional 64,716 visas for 

aliens who may receive H–2B 

nonimmigrant visas pursuant to section 

303 of Division O of Public Law 117– 

328, the Consolidated Appropriations 

Act, 2023, and section 101(6) of 

Division A of Public Law 118–15, 

Continuing Appropriations Act, 2024 

and Other Extensions Act. An alien may 

be eligible to receive an H–2B 

nonimmigrant visa under this paragraph 

(h)(6)(xiv)(A)(1) if she or he is a 

returning worker. The term ‘‘returning 

worker’’ under this paragraph 

(h)(6)(xiv)(A)(1) means a person who 

was issued an H–2B visa or was 

otherwise granted H–2B status in fiscal 

year 2021, 2022, or 2023. 

Notwithstanding § 248.2 of this chapter, 

an alien may not change status to H–2B 

nonimmigrant under this paragraph 

(h)(6)(xiv)(A)(1). The additional H–2B 

visas authorized under this paragraph 

will be made available to returning 

workers as follows: 

(i) Up to an additional 20,716 visas for 

aliens who may receive H–2B 

nonimmigrant visas based on petitions 

requesting FY 2024 employment start 

dates on or before March 31, 2024. 

(ii) Up to an additional 19,000 visas 

for aliens who may receive H–2B 

nonimmigrant visas based on petitions 

requesting FY 2024 employment start 

dates from April 1, 2024 to May 14, 

2024. 

(iii) Up to an additional 5,000 visas 

available for aliens with employment 

start dates from May 15, 2024 to 

September 30, 2024. 

(2) Supplemental allocation for 

nationals of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica. Notwithstanding the 

numerical limitations set forth in 

paragraph (h)(8)(i)(C) of this section, for 

fiscal year 2024 only, and in addition to 

the allocation described in paragraph 

(h)(6)(xiv)(A)(1) of this section, the 

Secretary has authorized up to an 

additional 20,000 visas for aliens who 

are nationals of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica, who may receive H–2B 

nonimmigrant visas pursuant section 

303 of Division O of the Consolidated 

Appropriations Act, 2023, Public Law 

117–328, and section 101(6) of Division 

A of Public Law 118–15 Continuing 

Appropriations Act, 2024 and Other 

Extensions Act, based on petitions with 

FY 2024 employment start dates. Such 

workers are not subject to the returning 

worker requirement in paragraph 

(h)(6)(xiv)(A)(1). Petitioners must 

request such workers in an H–2B 

petition that is separate from H–2B 

petitions that request returning workers 

under paragraph (h)(6)(xiv)(A)(1) and 

must declare that they are requesting 

these workers in the attestation Form 

ETA–9142–B–CAA–8 required under 20 

CFR 655.65(a)(1). A petition requesting 

returning workers under paragraph 

(h)(6)(xiv)(A)(1), which is accompanied 

by an attestation indicating that the 

petitioner is requesting nationals of 

Guatemala, El Salvador, Honduras, 

Haiti, Colombia, Ecuador, or Costa Rica, 

will be rejected, denied or, in the case 

of a non-frivolous petition, approved 

solely for the number of beneficiaries 

that are from the Guatemala, El 

Salvador, Honduras, Haiti, Colombia, 

Ecuador, or Costa Rica. Notwithstanding 

§ 248.2 of this chapter, an alien may not 

change status to H–2B nonimmigrant 

under this paragraph (h)(6)(xiv)(A)(2). 

(B) Eligibility. In order to file a 

petition with USCIS under this 

paragraph (h)(6)(xiv), the petitioner 

must: 

(1) Comply with all other statutory 

and regulatory requirements for H–2B 

classification, including, but not limited 

to, requirements in this section, under 

part 103 of this chapter, and under 20 

CFR part 655 and 29 CFR part 503; and 

(2) Submit to USCIS, at the time the 

employer files its petition, a U.S. 

Department of Labor attestation, in 

compliance with this section and 20 

CFR 655.64, evidencing that: 

(i) Its business is suffering irreparable 

harm or will suffer impending 

irreparable harm (that is, permanent and 

severe financial loss) without the ability 

to employ all of the H–2B workers 

requested on the petition filed pursuant 

to this paragraph (h)(6)(xiv); 

(ii) All workers requested and/or 

instructed to apply for a visa have been 

issued an H–2B visa or otherwise 

granted H–2B status in fiscal year 2021, 

2022, or 2023, unless the H–2B worker 

is a national of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica who is counted towards the 

20,000 cap described in paragraph 

(h)(6)(xiv)(A)(2) of this section; 


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(iii) The employer will comply with 

obligations and additional recruitment 

requirements outlined in 20 CFR 

655.64(a)(3) through (5); 

(iv) The employer will provide 

documentary evidence of the facts in 

paragraphs (h)(6)(xiv)(B)(2)(i) through 

(iii) of this section to DHS and/or DOL 

upon request; and 

(v) The employer will agree to fully 

cooperate with any compliance review, 

evaluation, verification, or inspection 

conducted by DHS, including an on-site 

inspection of the employer’s facilities, 

interview of the employer’s employees 

and any other individuals possessing 

pertinent information, and review of the 

employer’s records related to the 

compliance with immigration laws and 

regulations, including but not limited to 

evidence pertaining to or supporting the 

eligibility criteria for the FY 2024 

supplemental allocations outlined in 

paragraph (h)(6)(xiv)(B) of this section, 

as a condition for the approval of the 

petition. 

(vi) The employer will fully cooperate 

with any audit, investigation, 

compliance review, evaluation, 

verification or inspection conducted by 

DOL, including an on-site inspection of 

the employer’s facilities, interview of 

the employer’s employees and any other 

individuals possessing pertinent 

information, and review of the 

employer’s records related to the 

compliance with applicable laws and 

regulations, including but not limited to 

evidence pertaining to or supporting the 

eligibility criteria for the FY 2024 

supplemental allocations outlined in 20 

CFR 655.64(a) and 655.65(a), as a 

condition for the approval of the H–2B 

petition. The employer must attest to 

this on Form ETA–9142–B–CAA–8 and 

must further attest on Form ETA–9142– 

B–CAA–8 that it will not impede, 

interfere, or refuse to cooperate with an 

employee of the Secretary of the U.S. 

Department of Labor who is exercising 

or attempting to exercise DOL’s audit or 

investigative authority pursuant to 20 

CFR part 655, subpart A, and 29 CFR 

503.25. 

(C) Processing—(1) Petitions filed 

pursuant to paragraph 

(h)(6)(xiv)(A)(1)(a) requesting FY 2024 

employment start dates on or before 

March 31, 2024. USCIS will reject 

petitions filed pursuant to paragraph 

(h)(6)(xiv)(A)(1)(a) of this section 

requesting employment start dates on or 

before March 31, 2024 that are received 

after the applicable numerical limitation 

has been reached or after September 16, 

2024. 

(2) Petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(1)(ii) of this 

section requesting FY 2024 employment 

start dates from April 1, 2024 to May 14, 

2024. USCIS will reject petitions filed 

pursuant to paragraph 

(h)(6)(xiv)(A)(1)(ii) of this section 

requesting employment start dates from 

April 1, 2024 to May 14, 2024 that are 

received earlier than 15 days after the 

INA section 214(g) cap for the second 

half FY 2024 has been met, or after the 

applicable numerical limitation has 

been reached or after September 16, 

2024. 

(3) Petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(1)(iii) of this 

section requesting FY 2024 employment 

start dates from May 15, 2024 and 

September 30, 2024. USCIS will reject 

petitions filed pursuant to paragraph 

(h)(6)(xiv)(A)(1)(iii) of this section 

requesting employment start dates from 

May 15, 2024 to September 30, 2024 

that are received earlier than 45 days 

after the INA section 214(g) cap for the 

second half FY 2024 has been met, or 

after the applicable numerical limitation 

has been reached or after September 16, 

2024. 

(4) Petitions filed pursuant to 

paragraph (h)(6)(xiv)(A)(2) requesting 

nationals of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica with FY 2024 employment 

start dates. USCIS will reject petitions 

filed pursuant to paragraph 

(h)(6)(xiv)(A)(2) of this section that have 

a date of need on or after April 1, 2024 

and are received earlier than 15 days 

after the INA section 214(g) cap for the 

second half of FY 2024 is met, or after 

the applicable numerical limitation has 

been reached or after September 16, 

2024. 

(5) USCIS will not approve a petition 

filed pursuant to this paragraph 

(h)(6)(xiv) on or after October 1, 2024. 

(D) Numerical limitations under 

paragraphs (h)(6)(xiv)(A)(1) and (2) of 

this section. When calculating the 

numerical limitations under paragraphs 

(h)(6)(xiv)(A)(1) and (2) of this section 

as authorized under Public Law 117– 

328, as extended by Public Law 118–15, 

USCIS will make numbers for each 

allocation available to petitions in the 

order in which the petitions subject to 

the respective limitation are received. 

USCIS will make projections of the 

number of petitions necessary to 

achieve the numerical limit of 

approvals, taking into account historical 

data related to approvals, denials, 

revocations, and other relevant factors. 

USCIS will monitor the number of 

petitions received (including the 

number of workers requested when 

necessary) and will notify the public of 

the dates that USCIS has received the 

necessary number of petitions (the 

‘‘final receipt dates’’) under paragraph 

(h)(6)(xiv)(A)(1) or (2). The day the 

public is notified will not control the 

final receipt dates. When necessary to 

ensure the fair and orderly allocation of 

numbers subject to the numerical 

limitations in paragraphs 

(h)(6)(xiv)(A)(1) and (2), USCIS may 

randomly select from among the 

petitions received on the final receipt 

dates the remaining number of petitions 

deemed necessary to generate the 

numerical limit of approvals. This 

random selection will be made via 

computer-generated selection. Petitions 

subject to a numerical limitation not 

randomly selected or that were received 

after the final receipt dates that may be 

applicable under paragraph 

(h)(6)(xiv)(A)(1) or (2) will be rejected. 

If the final receipt date is any of the first 

5 business days on which petitions 

subject to the applicable numerical 

limits described in paragraph 

(h)(6)(xiv)(A)(1) or (2) may be received 

(in other words, if either of the 

numerical limits described in paragraph 

(h)(6)(xiv)(A)(1) or (2) 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. 

(E) Sunset. This paragraph (h)(6)(xiv) 

expires on October 1, 2024. 

(F) Non-severability. The requirement 

to file an attestation under paragraph 

(h)(6)(xiv)(B)(2) of this section is 

intended to be non-severable from the 

remainder of this paragraph (h)(6)(xiv), 

including, but not limited to, the 

numerical allocation provisions at 

paragraphs (h)(6)(xiv)(A)(1) and (2) of 

this section in their entirety. In the 

event that any part of this paragraph 

(h)(6)(xiv) is enjoined or held to be 

invalid by any court of competent 

jurisdiction, the remainder of this 

paragraph (h)(6)(xiv) is also intended to 

be enjoined or held to be invalid in such 

jurisdiction, without prejudice to 

workers already present in the United 

States under this paragraph (h)(6)(xiv), 

as consistent with law. 

* * * * * 

(30) [Reserved] 

(31) Change of employers and 

portability for H–2B workers. (i) This 

paragraph (h)(31) relates to H–2B 

workers seeking to change employers 

during the time period specified in 

paragraph (h)(31)(iv) of this section. 

Notwithstanding paragraph (h)(2)(i)(D) 

of this section: 

(A) An alien in valid H–2B 

nonimmigrant status whose new 

petitioner files a non-frivolous H–2B 

petition requesting an extension of the 

alien’s stay on or after January 25, 2024, 


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80458 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

is authorized to begin employment with 

the new petitioner after the petition 

described in this paragraph (h)(31) is 

received by USCIS and before the new 

H–2B petition is approved, but no 

earlier than the start date indicated in 

the new H–2B petition; or 

(B) An alien whose new petitioner 

filed a non-frivolous H–2B petition 

requesting an extension of the alien’s 

stay before January 25, 2024, that 

remains pending on January 25, 2024, is 

authorized to begin employment with 

the new petitioner before the new H–2B 

petition is approved, but no earlier than 

the start date of employment indicated 

on the new H–2B petition. 

(ii)(A) With respect to a new petition 

described in paragraph (h)(31)(i)(A) of 

this section, and subject to the 

requirements of 8 CFR 274a.12(b)(34), 

the new period of employment 

described in paragraph (h)(31)(i) of this 

section may last for up to 60 days 

beginning on the Received Date on Form 

I–797 (Notice of Action) or, if the start 

date of employment occurs after the I– 

797 Received Date, for a period of up to 

60 days beginning on the start date of 

employment indicated in the H–2B 

petition. 

(B) With respect to a new petition 

described in paragraph (h)(31)(i)(B) of 

this section, the new period of 

employment described in paragraph 

(h)(31)(i) of this section may last for up 

to 60 days beginning on the later of 

either January 25, 2024, or the start date 

of employment indicated in the H–2B 

petition. 

(C) With respect to either type of new 

petition, if USCIS adjudicates the new 

petition before the expiration of this 60- 

day period and denies the petition, or if 

the new petition is withdrawn by the 

petitioner before the expiration of the 

60-day period, the employment 

authorization associated with the filing 

of that petition under 8 CFR 

274a.12(b)(34) will automatically 

terminate 15 days after the date of the 

denial decision or 15 days after the date 

on which the new petition is 

withdrawn. Nothing in this paragraph 

(h)(31) is intended to alter the 

availability of employment 

authorization related to professional H– 

2B athletes who are traded between 

organizations pursuant to paragraph 

(h)(6)(vii) of this section and 8 CFR 

274a.12(b)(9). 

(iii) In addition to meeting all other 

requirements in paragraph (h)(6) of this 

section for the H–2B classification, to 

commence employment under this 

paragraph (h)(31): 

(A) The alien must either: 

(1) Have been in valid H–2B 

nonimmigrant status on or after January 

25, 2024 and be the beneficiary of a nonfrivolous H–2B petition requesting an 

extension of the alien’s stay that is 

received on or after January 25, 2024, 

but no later than January 24, 2025; or 

(2) Be the beneficiary of a nonfrivolous H–2B petition requesting an 

extension of the alien’s stay that is 

pending as of January 25, 2024; and 

(B) The petitioner may not impede, 

interfere, or refuse to cooperate with an 

employee of the Secretary of the U.S. 

Department of Labor who is exercising 

or attempting to exercise DOL’s audit or 

investigative authority under 20 CFR 

part 655, subpart A, and 29 CFR 503.25. 

(iv) Authorization to initiate 

employment changes pursuant to this 

paragraph (h)(31) begins at 12 a.m. on 

January 25, 2024, and ends at the end 

of January 24, 2025. 

* * * * * 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 3. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1105a, 

1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 

101–410, 104 Stat. 890, as amended by Pub. 

L. 114–74, 129 Stat. 599. 

■ 4. Effective November 17, 2023, 

through November 17, 2026, amend 

§ 274a.12 by adding paragraph (b)(34) to 

read as follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

* * * * * 

(b) * * * 

(34)(i) Pursuant to 8 CFR 214.2(h)(31) 

and notwithstanding 8 CFR 

214.2(h)(2)(i)(D), an alien is authorized 

to be employed no earlier than the start 

date of employment indicated in the H– 

2B petition and no earlier than January 

25, 2024, by a new employer that has 

filed an H–2B petition naming the alien 

as a beneficiary and requesting an 

extension of stay for the alien, for a 

period not to exceed 60 days beginning 

on: 

(A) The later of the ‘‘Received Date’’ 

on Form I–797 (Notice of Action) 

acknowledging receipt of the petition, or 

the start date of employment indicated 

on the new H–2B petition, for petitions 

filed on or after January 25, 2024; or 

(B) The later of January 25, 2024, or 

the start date of employment indicated 

on the new H–2B petition, for petitions 

that are pending as of January 25, 2024. 

(ii) If USCIS adjudicates the new 

petition prior to the expiration of the 60- 

day period in paragraph (b)(34)(i) of this 

section and denies the new petition for 

extension of stay, or if the petitioner 

withdraws the new petition before the 

expiration of the 60-day period, the 

employment authorization under this 

paragraph (b)(34) will automatically 

terminate upon 15 days after the date of 

the denial decision or the date on which 

the new petition is withdrawn. Nothing 

in this section is intended to alter the 

availability of employment 

authorization related to professional H– 

2B athletes who are traded between 

organizations pursuant to paragraph 

(b)(9) of this section and 8 CFR 

214.2(h)(6)(vii). 

(iii) Authorization to initiate 

employment changes pursuant to 8 CFR 

214.2(h)(31) and paragraph (b)(34)(i) of 

this section begins at 12 a.m. on January 

25, 2024, and ends at the end of January 

24, 2025. 

* * * * * 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Chapter V 

Accordingly, for the reasons stated in 

the joint preamble, 20 CFR part 655 is 

amended as follows: 

PART 655—TEMPORARY 

EMPLOYMENT OF FOREIGN 

WORKERS IN THE UNITED STATES 

■ 5. The authority citation for part 655 

continues to read as follows: 

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) 

and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and 

(t), 1184(c), (g), and (j), 1188, and 1288(c) and 

(d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 

2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), 

Pub. L. 101–649, 104 Stat. 4978, 5027 (8 

U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 

232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 323(c), Pub. L. 103–206, 107 Stat. 

2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. 

106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 

note); 29 U.S.C. 49k; Pub. L. 107–296, 116 

Stat. 2135, as amended; Pub. L. 109–423, 120 

Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 

214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, 

132 Stat. 1547 (48 U.S.C. 1806). 

Subpart A issued under 8 CFR 214.2(h). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 

CFR 214.2(h). 

Subpart E issued under 48 U.S.C. 1806. 

Subparts F and G issued under 8 U.S.C. 

1288(c) and (d); sec. 323(c), Pub. L. 103–206, 

107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. 

L. 114–74 at section 701. 

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), and 

(t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 

102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 

note); sec. 412(e), Pub. L. 105–277, 112 Stat. 

2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 

note, Pub. L. 114–74 at section 701. 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), 


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Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 

1182 note); Pub. L. 109–423, 120 Stat. 2900; 

and 8 CFR 214.2(h). 

■ 6. Effective November 17, 2023, 

through September 30, 2024, add 

§ 655.64 to read as follows: 

§ 655.64 Special application filing and 

eligibility provisions for Fiscal Year 2024 

under the November 17, 2023 supplemental 

cap increase. 

(a) An employer filing a petition with 

USCIS under 8 CFR 214.2(h)(6)(xiv) to 

request H–2B workers with FY 2024 

employment start dates on or before 

September 30, 2024, must meet the 

following requirements: 

(1) The employer must attest on the 

Form ETA–9142–B–CAA–8 that its 

business is suffering irreparable harm or 

will suffer impending irreparable harm 

(that is, permanent and severe financial 

loss) without the ability to employ all of 

the H–2B workers requested on the 

petition filed pursuant to 8 CFR 

214.2(h)(6)(xiv). Additionally, the 

employer’s attestation must identify the 

types of evidence the employer is 

relying on and will retain to meet the 

irreparable harm standard, attest that 

the employer has created a detailed 

written statement describing how it is 

suffering irreparable harm or will suffer 

impending irreparable harm and 

describing how such evidence 

demonstrates irreparable harm, and 

attest that the employer will provide all 

documentary evidence of the applicable 

irreparable harm and the written 

statement describing how such evidence 

demonstrates irreparable harm to DHS 

and/or DOL upon request. 

(2) The employer must attest on Form 

ETA–9142–B–CAA–8 that each of the 

workers requested and/or instructed to 

apply for a visa, whether named or 

unnamed, on a petition filed pursuant to 

8 CFR 214.2(h)(6)(xiv), have been issued 

an H–2B visa or otherwise granted H– 

2B status during one of the last three (3) 

fiscal years (fiscal year 2021, 2022, or 

2023), unless the H–2B worker is a 

national of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica and is counted towards the 

20,000 cap described in 8 CFR 

214.2(h)(6)(xiv)(A)(2). 

(3) The employer must attest on Form 

ETA–9142–B–CAA–8 that the employer 

will comply with all the assurances, 

obligations, and conditions of 

employment set forth on its approved 

Application for Temporary Employment 

Certification. 

(4) An employer that submits Form 

ETA–9142B–CAA–8 and the I–129 

petition 30 or more days after the 

certified start date of work, as shown on 

its approved Form ETA–9142B, Final 

Determination: H–2B Temporary Labor 

Certification Approval, must conduct 

additional recruitment of U.S. workers 

as follows: 

(i) Not later than the next business 

day after submitting the I–129 petition 

for H–2B worker(s), the employer must 

place a new job order for the job 

opportunity with the State Workforce 

Agency (SWA), serving the area of 

intended employment. The employer 

must follow all applicable SWA 

instructions for posting job orders, 

concurrently inform the SWA and NPC 

that the job order is being placed in 

connection with a previously certified 

Application for Temporary Employment 

Certification for H–2B workers by 

providing the unique temporary labor 

certification (TLC) identification 

number, and receive applications in all 

forms allowed by the SWA, including 

online applications (sometimes known 

as ‘‘self-referrals’’). The job order must 

contain the job assurances and contents 

set forth in § 655.18 for recruitment of 

U.S. workers at the place of 

employment, and remain posted for at 

least 15 calendar days; 

(ii) During the period of time the SWA 

is actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must contact, by email or 

other available electronic means, the 

nearest comprehensive American Job 

Center (AJC) serving the area of 

intended employment where work will 

commence, request staff assistance 

advertising and recruiting qualified U.S. 

workers for the job opportunity, and 

provide the unique identification 

number associated with the job order 

placed with the SWA or, if unavailable, 

a copy of the job order. If a 

comprehensive AJC is not available, the 

employer must contact the nearest 

affiliate AJC serving the area of intended 

employment where work will 

commence to satisfy the requirements of 

this paragraph (a)(4)(ii); 

(iii) Where the occupation or industry 

is traditionally or customarily 

unionized, during the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must contact (by mail, email 

or other effective means) the nearest 

American Federation of Labor and 

Congress of Industrial Organizations 

office covering the area of intended 

employment and provide written notice 

of the job opportunity, by providing a 

copy of the job order placed pursuant to 

(a)(4)(i) of this section, and request 

assistance in recruiting qualified U.S. 

workers for the job; 

(iv) During the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must contact (by mail or other 

effective means) its former U.S. workers, 

including those who have been 

furloughed or laid off, during the period 

beginning January 1, 2022, until the date 

the I–129 petition required under 8 CFR 

214.2(h)(6)(xiv) is submitted, who were 

employed by the employer in the 

occupation at the place of employment 

(except those who were dismissed for 

cause or who abandoned the worksite), 

disclose the terms of the job order 

placed pursuant to (a)(4)(i) of this 

section, and solicit their return to the 

job. The contact and disclosures 

required by this paragraph (a)(4)(iv) 

must be provided in a language 

understood by the worker, as necessary 

or reasonable, and in writing; 

(v) During the period of time the SWA 

is actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must engage in the 

recruitment of U.S. workers as provided 

in § 655.45(a) and (b). The contact and 

disclosures required by this paragraph 

(a)(4)(v) must be provided in a language 

understood by the worker, as necessary 

or reasonable, in writing; and 

(vi) During the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must contact (by mail or other 

effective written means) all U.S. workers 

currently employed at the place of 

employment, disclose the terms of the 

job order placed pursuant to (a)(4)(i) of 

this section, and request assistance in 

recruiting qualified U.S. workers for the 

job. The contact, disclosure, and request 

for assistance required by this paragraph 

(a)(4)(vi) must be provided in a language 

understood by the worker, as necessary 

or reasonable, and in writing; 

(vii) Where the employer maintains a 

website for its business operations, 

during the period of time the SWA is 

actively circulating the job order 

described in paragraph (a)(4)(i) of this 

section for intrastate clearance, the 

employer must post the job opportunity 

in a conspicuous location on the 

website. The job opportunity posted on 

the website must disclose the terms of 

the job order placed pursuant to (a)(4)(i) 

of this section, and remain posted for at 

least 15 calendar days; 

(viii) The employer must hire any 

qualified U.S. worker who applies or is 

referred for the job opportunity until the 

date on which the last H–2B worker 

departs for the place of employment, or 

30 days after the last date on which the 


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80460 Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 / Rules and Regulations 

SWA job order is posted, whichever is 

later. Consistent with § 655.40(a), 

applicants can be rejected only for 

lawful job-related reasons. 

(5) The employer must attest on Form 

ETA–9142–B–CAA–8 that it will fully 

cooperate with any audit, investigation, 

compliance review, evaluation, 

verification, or inspection conducted by 

DOL, including an on-site inspection of 

the employer’s facilities, interview of 

the employer’s employees and any other 

individuals possessing pertinent 

information, and review of the 

employer’s records related to the 

compliance with applicable laws and 

regulations, including but not limited to 

evidence pertaining to or supporting the 

eligibility criteria for the FY 2024 

supplemental allocations outlined in 

this paragraph (a) and § 655.65(a), as a 

condition for the approval of the H–2B 

petition. Pursuant to this subpart and 29 

CFR 503.25, the employer will not 

impede, interfere, or refuse to cooperate 

with an employee of the Secretary who 

is exercising or attempting to exercise 

DOL’s audit or investigative authority. 

(b) This section expires on October 1, 

2024. 

(c) The requirements under paragraph 

(a) of this section are intended to be 

non-severable from the remainder of 

this section; in the event that paragraph 

(a)(1), (2), (3), (4), or (5) of this section 

is enjoined or held to be invalid by any 

court of competent jurisdiction, the 

remainder of this section is also 

intended to be enjoined or held to be 

invalid in such jurisdiction, without 

prejudice to workers already present in 

the United States under this part, as 

consistent with law. 

■ 7. Effective November 17, 2023, 

through September 30, 2027, add 

§ 655.65 to read as follows: 

§ 655.65 Special document retention 

provisions for Fiscal Years 2024 through 

2027 under the Consolidated 

Appropriations Act, 2023, as extended by 

Public Law 118–15. 

(a) An employer that files a petition 

with USCIS to employ H–2B workers in 

fiscal year 2024 under authority of the 

temporary increase in the numerical 

limitation under section 303 of Division 

O, Public Law 117–328, as extended by 

Public Law 118–15 must maintain for a 

period of three (3) years from the date 

of certification, consistent with 20 CFR 

655.56 and 29 CFR 503.17, the 

following: 

(1) A copy of the attestation filed 

pursuant to the regulations in 8 CFR 

214.2 governing that temporary 

increase; 

(2) Evidence establishing, at the time 

of filing the I–129 petition, that the 

employer’s business is suffering 

irreparable harm or will suffer 

impending irreparable harm (that is, 

permanent and severe financial loss) 

without the ability to employ all of the 

H–2B workers requested on the petition 

filed pursuant to 8 CFR 214.2(h)(6)(xiv), 

including a detailed written statement 

describing the irreparable harm and 

how such evidence shows irreparable 

harm; 

(3) Documentary evidence 

establishing that each of the workers the 

employer requested and/or instructed to 

apply for a visa, whether named or 

unnamed on a petition filed pursuant to 

8 CFR 214.2(h)(6)(xiv), have been issued 

an H–2B visa or otherwise granted H– 

2B status during one of the last three (3) 

fiscal years (fiscal year 2021, 2022, or 

2023), unless the H–2B worker(s) is a 

national of El Salvador, Guatemala, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica and is counted towards the 

20,000 cap described in 8 CFR 

214.2(h)(6)(xiv)(A)(2). Alternatively, if 

applicable, employers must maintain 

documentary evidence that the workers 

the employer requested and/or 

instructed to apply for visas are eligible 

nationals of El Salvador, Guatemala, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica as defined in 8 CFR 

214.2(h)(6)(xiv)(A)(2); and 

(4) If applicable, proof of recruitment 

efforts set forth in § 655.64(a)(4)(i) 

through (vii) and a recruitment report 

that meets the requirements set forth in 

§ 655.48(a)(1) through (4) and (7), and 

maintained throughout the recruitment 

period set forth in § 655.64(a)(4)(viii). 

(b) DOL and/or DHS may inspect the 

documents in paragraphs (a)(1) through 

(4) of this section upon request. 

(c) This section expires on October 1, 

2027. 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

Julie A. Su, 

Acting Secretary, U.S. Department of Labor. 

[FR Doc. 2023–25493 Filed 11–16–23; 8:45 am] 

BILLING CODE 9111–97–P; 4510–FP–P 


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