`[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Rules and Regulations]
[Pages 95626-95685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28017]



[[Page 95625]]

Vol. 89

Monday,

No. 231

December 2, 2024

Part V





Department of Homeland Security





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8 CFR Parts 214 and 274a





Department of Labor





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Employment and Training Administration





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20 CFR Part 655





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

  Federal Register / Vol. 89 , No. 231 / Monday, December 2, 2024 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2788-25]
RIN 1615-AC95

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2024-0002]
RIN 1205-AC20


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

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

ACTION: Temporary rule.

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

DATES: 
    Effective dates: The amendments at instructions 1, 3, and 5 are 
effective December 2, 2024; instructions 2 and 4 amending 8 CFR 214.2 
and 274a.12, respectively, are effective from December 2, 2024, through 
December 2, 2027; instruction 6, adding 20 CFR 655.64, is effective 
from December 2, 2024, through September 30, 2025; and instruction 7, 
adding 20 CFR 655.68, is effective from December 2, 2024, through 
September 30, 2028.
    Petition dates: DHS will not accept any H-2B petitions under 
provisions related to the FY 2025 supplemental numerical allocations 
after September 15, 2025, and will not approve any such H-2B petitions 
after September 30, 2025. The provisions related to portability are 
only available to petitioners and H-2B nonimmigrant workers initiating 
employment through the end of January 24, 2026.
    Comments on the Information Collection: The Office of Foreign Labor 
Certification within the U.S. Department of Labor will accept comments 
in connection with the new information collection Form ETA-9142B-CAA-9 
associated with this rule until January 31, 2025. The electronic 
Federal Docket Management System will accept comments prior to midnight 
eastern time at the end of that day.

ADDRESSES: You may submit written comments on the new information 
collection Form ETA-9142B-CAA-9, identified by Regulatory Information 
Number (RIN) 1205-AC20, electronically by the following method:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions on the website for submitting comments.
    Instructions: Include the agency's name and the RIN 1205-AC20 in 
your submission. All comments received will become a matter of public 
record and may be posted without change to https://www.regulations.gov. 
Comments submitted after the deadline for submission will not be 
considered. Please do not submit comments containing trade secrets, 
confidential or proprietary commercial or financial information, 
personal health information, sensitive personally identifiable 
information (for example, social security numbers, driver's license or 
state identification numbers, passport numbers, or financial account 
numbers), or other information that you do not want to be made 
available to the public. The agency reserves the right to redact or 
refrain from posting such information and libelous or otherwise 
inappropriate comments, including those that contain obscene, indecent, 
or profane language; that contain threats or defamatory statements; or 
that contain hate speech directed at race, color, sex, sexual 
orientation, national origin, ethnicity, age, religion, or disability. 
Please note that depending on how information is submitted through 
regulations.gov, the agency may not be able to redact the information 
and instead reserves the right to refrain from posting the information 
or comment in such situations.

FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a: 
Charles L. Nimick, Chief, Business and Foreign Workers Division, Office 
of Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 5900 Capital Gateway Drive, Camp 
Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free 
number).
    Regarding 20 CFR part 655 and Form ETA-9142B-CAA-9: Brian D. 
Pasternak, Administrator, Office of Foreign Labor Certification, 
Employment and Training Administration, Department of Labor, 200 
Constitution Ave. NW, Room N-5311, Washington, DC 20210, telephone 
(202) 693-8200 (this is not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. Legal Framework
    B. H-2B Numerical Limitations Under the INA
    C. FY 2025 Public Law 118-83
    D. Joint Issuance of the Final Rule
III. Discussion
    A. Statutory Determination
    B. Numerical Increase and Allocations for Fiscal Year 2025
    C. Returning Workers
    D. 20,000 Allocation for Nationals of Guatemala, El Salvador, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica
    E. Business Need Standard--Irreparable Harm and FY 2025 
Attestation
    F. Portability
    G. DHS Petition Procedures
    H. DOL Procedures
IV. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 14094: Modernizing Regulatory Review; and Executive 
Order 13563: Improving Regulation and Regulatory Review
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. National Environmental Policy Act
    H. Congressional Review Act
    I. Paperwork Reduction Act

I. Executive Summary

FY 2025 H-2B Supplemental Cap

    With this temporary final rule (TFR), the Secretary of Homeland 
Security, following consultation with the Secretary of Labor, is 
authorizing the release of an additional 64,716 H-2B visas for FY 2025, 
subject to certain conditions. The 64,716 visas are divided into the 
following allocations:
     For the first half of FY 2025: 20,716 immediately 
available visas limited to

[[Page 95627]]

returning workers, in other words, those workers who were issued H-2B 
visas or held H-2B status in fiscal years 2022, 2023, or 2024, 
regardless of country of nationality. These petitions must request 
employment start dates on or before March 31, 2025;
     For the early second half of FY 2025 (April 1 to May 14): 
19,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2022, 2023, or 2024 regardless of country of nationality. These early 
second half of FY 2025 petitions must request employment start dates 
from April 1, 2025, to May 14, 2025. Furthermore, employers must file 
these petitions no earlier than 15 days after the second half statutory 
cap \1\ is reached;
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    \1\ The term ``statutory cap'' refers to the 66,000 cap set 
forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at 
INA section 214(g)(10).
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     For the late second half of FY 2025 (May 15 to September 
30): 5,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2022, 2023, or 2024 regardless of country of nationality. These late 
second half of FY 2025 petitions must request employment start dates 
from May 15, 2025, to September 30, 2025. Furthermore, employers must 
file these petitions no earlier than 45 days after the second half 
statutory cap is reached; and
     For the entirety of FY 2025: 20,000 visas reserved for 
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica (country-specific allocation) as attested by 
the petitioner (regardless of whether such nationals are returning 
workers). Employers requesting an employment start date in the first 
half of FY 2025 may file such petitions immediately after the 
publication of this TFR. Employers requesting an employment start date 
in the second half of FY 2025 must file such petitions no earlier than 
15 days after the second half statutory cap is reached.
    To qualify for the FY 2025 supplemental caps provided by this 
temporary final rule, eligible petitioners must:
     Meet all existing H-2B eligibility requirements, including 
obtaining an approved temporary labor certification (TLC) from DOL 
before filing the Form I-129, Petition for a Nonimmigrant Worker, with 
USCIS;
     Properly file the Form I-129, Petition for a Nonimmigrant 
Worker, with USCIS at the current filing location, on or before 
September 15, 2025;
     Submit an attestation affirming, under penalty of perjury, 
that the employer is suffering irreparable harm or will suffer 
impending irreparable harm without the ability to employ all of the H-
2B workers requested on the petition, and that they are seeking to 
employ returning workers only, unless the H-2B worker is a Salvadoran, 
Guatemalan, Honduran, Haitian, Colombian, Ecuadorian, or Costa Rican 
national and is counted towards the 20,000 cap exempt from the 
returning worker requirement; and
     Prepare and retain a detailed written statement describing 
how the employer is suffering irreparable harm or will suffer impending 
irreparable harm and how evidence demonstrates irreparable harm and 
supports their application.
    Employers filing an H-2B petition 30 or more days after the 
certified start date on the TLC, must attest to engaging in the 
following additional steps to recruit U.S. workers:
     No later than 1 business day after filing the petition, 
place a new job order with the relevant State Workforce Agency (SWA) 
for at least 15 calendar days;
     Contact the nearest American Job Center serving the 
geographic area where work will commence and request staff assistance 
in recruiting qualified U.S. workers;
     Contact the employer's former U.S. workers who left 
employment with the employer on or after January, 1, 2023, including 
those the employer furloughed or laid off, and until the date the H-2B 
petition is filed, disclose the terms of the job order and solicit 
their return to the job;
     Provide written notification of the job opportunity to the 
bargaining representative for the employer's employees in the 
occupation and area of employment, or post notice of the job 
opportunity at the anticipated worksite if there is no bargaining 
representative;
     Where the occupation is traditionally or customarily 
unionized, provide written notification of the job opportunity to the 
nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended 
employment, by providing a copy of the job order and requesting 
assistance in recruiting qualified U.S. workers for the job 
opportunity;
     Contact in writing and in a language understood by the 
worker, all U.S. workers currently employed at the place of employment, 
disclose the terms of the job order, and request assistance in 
recruiting qualified U.S. workers for the job;
     Where the employer maintains a website for its business 
operations, post the job opportunity in a conspicuous location on the 
employer's website; and
     Hire any qualified U.S. worker who applies or is referred 
for the job opportunity until the later of either (1) the date on which 
the last H-2B worker departs for the place of employment, or (2) 30 
days after the last date of the SWA job order posting.
    Petitioners filing H-2B petitions under this FY 2025 supplemental 
cap must retain documentation of compliance with the attestation 
requirements for 3 years from the date DOL approved the TLC and must 
provide the documents and records upon the request of DHS or DOL, as 
well as fully cooperate with any compliance reviews such as audits.
    Through audits and investigations, both Departments have received 
evidence of employer non-compliance with the terms and conditions of 
the H-2B program, as well as violations of other labor and employment 
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and 
Hour Division (WHD), and USCIS Fraud Detection and National Security 
(FDNS) personnel have encountered non-compliance issues such as failure 
to pay the promised wage, failure to employ returning workers, failure 
to demonstrate irreparable harm, failure to conduct the additional 
recruitment steps, failure to cooperate with the audit or investigation 
process, and failure to accurately disclose the beneficiary's work 
location(s).
    Such non-compliance can harm U.S. workers by undermining wages and 
working conditions. It also directly harms H-2B workers. Further, H-2B 
workers depend on ongoing employment with the petitioning employer to 
maintain status in the United States. This dependence creates a power 
imbalance between the employer and H-2B worker, making the H-2B worker 
particularly vulnerable to exploitation and violations. An employer's 
failure to cooperate with or respond to an audit or investigation 
severely hinders the Departments' ability to assess whether it has 
complied with the H-2B program requirements and to determine if any 
temporary foreign or U.S. workers were affected by program violations. 
In recognition of the substantial impact that non-compliance can have 
on both U.S. workers and H-2B workers, DHS and DOL intend to conduct a 
significant number of audits focusing on irreparable harm and other 
worker protection provisions. And as it

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did as part of the supplemental cap TFRs in recent years, DHS will 
again subject employers that have committed labor law violations in the 
H-2B program to additional scrutiny in the supplemental cap petition 
process.\2\ DHS intends for this additional scrutiny to help ensure 
compliance with H-2B program requirements and obligations.
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    \2\ See Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for Second Half of FY 2022 for the H-2B 
Temporary Nonagricultural Worker Program and Portability Flexibility 
for H-2B Workers Seeking to Change Employers, 87 FR 30334, 30335 
(May 18, 2022); Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for FY 2023 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 76816, 76818 (Dec. 15, 
2022); Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers, 88 FR 80394 (Nov. 17, 2023).
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    Specifically, falsifying information in H-2B program attestation(s) 
can result not only in penalties relating to perjury, but also in, 
among other things, a finding of fraud or willful misrepresentation; 
denial or revocation of the H-2B petition requesting supplemental 
workers; and debarment by DOL and DHS from the H-2B program and any 
other foreign labor programs administered by DOL. Falsifying 
information also may subject a petitioner/employer to other criminal 
and/or civil penalties.
    DHS will not approve H-2B petitions filed in connection with the FY 
2025 supplemental cap authority on or after October 1, 2025.

H-2B Portability

    In addition to exercising its time-limited authority to make 
additional FY 2025 H-2B visas available, DHS is again providing 
additional flexibilities to H-2B petitioners under its general 
programmatic authority by allowing nonimmigrant workers in the United 
States \3\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2025, or who 
are the beneficiaries of non-frivolous H-2B petitions that are pending 
as of January 25, 2025, to begin work with a new employer after an H-2B 
petition (supported by a valid TLC) is filed and before the petition is 
approved, generally for a period of up to 60 days. However, such 
employment authorization would end 15 days after USCIS denies the H-2B 
petition or such petition is withdrawn. This H-2B portability ends one 
year after the provision's effective date of January 25, 2025, in other 
words, at the end of January 24, 2026.\4\
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    \3\ The term ``United States'' includes the continental United 
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the 
United States, and the Commonwealth of the Northern Mariana Islands. 
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
    \4\ On September 20, 2023, DHS issued Modernizing H-2 Program 
Requirements, Oversight, and Worker Protections, Notice of Proposed 
Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to 
extend portability to H-2A and H-2B workers on a permanent basis. 
The Department's proposal does not interfere with the portability 
provision of this rule. However, should DHS publish a final rule 
making H-2 portability permanent, any such provision would not 
expire on a specific date, unlike the portability provision made 
effective by this temporary final rule.
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II. Background

A. Legal Framework

    The Immigration and Nationality Act (INA), as amended, establishes 
the H-2B nonimmigrant classification for a nonagricultural temporary 
worker ``having a residence in a foreign country which he has no 
intention of abandoning who is coming temporarily to the United States 
to perform . . . temporary [non-agricultural] service or labor if 
unemployed persons capable of performing such service or labor cannot 
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 
1101(a)(15)(H)(ii)(b). Employers must petition DHS in such form and 
containing such information as the Secretary prescribes for 
classification of prospective temporary workers as H-2B nonimmigrants. 
INA section 214(c)(1), 8 U.S.C. 1184(c)(1). Generally, DHS must approve 
this petition before the beneficiary can be considered eligible for an 
H-2B visa. In addition, the INA requires that ``[t]he question of 
importing any alien as [an H-2B] nonimmigrant . . . in any specific 
case or specific cases shall be determined by [DHS],\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). INA section 291, 8 U.S.C. 1361, establishes that the 
petitioner or applicant for a visa or other immigration document bears 
the burden of proof with respect to eligibility and inadmissibility, 
including that the noncitizen is entitled to the immigration status 
being sought.
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    \5\ As of March 1, 2003, in accordance with section 1517 of 
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a 
provision of the Immigration and Nationality Act describing 
functions which were transferred from the Attorney General or other 
Department of Justice official to the Department of Homeland 
Security by the HSA ``shall be deemed to refer to the Secretary'' of 
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV, 
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
    \6\ For purposes of this discussion, the Departments use the 
term ``noncitizen'' colloquially to be synonymous with the term 
``alien'' as it is used in the Immigration and Nationality Act.
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    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).

[[Page 95629]]

    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 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.
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    \7\ For instance, the FY 2023 and FY 2024 H-2B supplemental cap 
TFRs both included a portability provision at 8 CFR 214.2(h)(29) and 
(31), respectively. Portability under 8 CFR 214.2(h)(31) remains in 
effect through January 24, 2025. See e.g., Exercise of Time-Limited 
Authority To Increase the Numerical Limitation for FY 2023 for the 
H-2B Temporary Nonagricultural Worker Program and Portability 
Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 
76816 (Dec. 15, 2022); Exercise of Time-Limited Authority To 
Increase the Numerical Limitation for FY 2024 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023).
    \8\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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    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.
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    \9\ The Federal Government's fiscal year runs from October 1 of 
the prior year through September 30 of the year being described. For 
example, fiscal year 2025 is from October 1, 2024, through September 
30, 2025.
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    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.
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    \10\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see 
also Consolidated Appropriations Act, 2016, Public Law 114-113, div. 
F, tit. V, sec 565; John Warner National Defense Authorization Act 
for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, 
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public 
Law 109-13, div. B, tit. IV, sec. 402.
    \11\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).
    \12\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
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    Because of the strong demand for H-2B visas in recent years, the 
statutorily-limited semiannual visa allocation, the DOL regulatory 
requirement that employers apply for a TLC 75 to 90 days before the 
start date of work,\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

[[Page 95630]]

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\ For FY 2025, USCIS received sufficient H-2B petitions to 
reach the first half of the fiscal year statutory cap on September 18, 
2024.\19\ This trend in recent years of increased demand for H-2B 
workers is even more apparent in the second half of the fiscal 
year.\20\
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    \13\ See 20 CFR 655.15(b).
    \14\ See 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-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 
13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of 
Fiscal Year 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for 
the First Half of Fiscal Year 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 
2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal 
Year 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
    \16\ On October 12, 2021, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2022, and that September 30, 2021, was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2022. See USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021).
    \17\ On September 14, 2022, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2023, and that September 12, 2022, was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2023. See USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022).
    \18\ On October 13, 2023, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2024, and that October 11, 2023, was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2024. See USCIS, USCIS Reaches 
H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (October 13, 
2023). While this date was slightly later than the prior two years, 
the Departments note that DOL received 2,157 applications for the 
first half of the FY 2024 statutory cap during the initial three-day 
filing window of July 3-5, 2023, covering 40,947 worker positions; a 
59% increase in TLC workload when compared to the same time period 
in 2022. See DOL, OFLC Publishes List of Randomized H-2B 
Applications Submitted July 3-5, 2023, for Employers Seeking H-2B 
Workers Starting October 1, 2023, https://www.dol.gov/agencies/eta/foreign-labor/news (July 10, 2023).
    \19\ On September 19, 2024, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2025, and that September 18, 2024, was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2025. See USCIS, USCIS Reaches 
H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024). While this date was slightly later than 
in fiscal year 2023, the Departments note that DOL received 2,158 
applications for the first half of the FY 2025 statutory cap during 
the initial three-day filing window of July 3-5, 2024, covering 
44,238 worker positions; a 59% increase in TLC workload and 48% 
increase in requested worker positions when compared to the same 
time period for fiscal year 2023. See DOL, OFLC Publishes List of 
Randomized H-2B Applications Submitted July 3-5, 2024, for Employers 
Seeking H-2B Workers Starting October 1, 2024, https://www.dol.gov/agencies/eta/foreign-labor/news (July 9, 2024).
    \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 4, 2022, covering 136,555 worker positions; 
DOL received 8,693 applications during the initial three-day filing 
window in 2023, covering 142,796 worker positions; and DOL received 
8,817 H-2B applications by January 8, 2024, covering 138,847 worker 
positions. See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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    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, Title I of the Continuing Appropriations and 
Extensions Act, 2025, Public Law 118-83 (Sept. 26, 2024) (FY 2025 
authority), which extended the authorization previously provided in 
section 105 of Division G, Title I of the Further Consolidated 
Appropriations Act, 2024, Public Law 118-47 (Mar. 23, 2024) (``FY 2024 
Omnibus''), as discussed below.
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    \21\ See section 543 of Division F of the Consolidated 
Appropriations Act, 2017, Public Law 115-31 (FY 2017 Omnibus); 
section 205 of Division M of the Consolidated Appropriations Act, 
2018, Public Law 115-141 (FY 2018 Omnibus); section 105 of Division 
H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 
2019 Omnibus); section 105 of Division I of the Further Consolidated 
Appropriations Act, 2020, Public Law 116-94 (FY 2020 Omnibus); 
section 105 of Division O of the Consolidated Appropriations Act, 
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division 
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, 
sections 101 and 106(3) of Division A of Public Law 117-43, 
Continuing Appropriations Act, 2022, and section 101 of Division A 
of Public Law 117-70, Further Continuing Appropriations Act, 2022 
through February 18, 2022 (together, FY 2022 authority); section 204 
of Division O of the Consolidated Appropriations Act, 2022, Public 
Law 117-103 (FY 2022 Omnibus); section 303 of Division O of the 
Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023 
Omnibus); Division A of Public Law 118-15, Continuing Appropriations 
Act, 2024 and Other Extensions Act, through November 17, 2023, as 
well as section 105 of Division G, Title I of the Further 
Consolidated Appropriations Act, 2024, Public Law 118-47 (FY 2024 
Omnibus), signed into law on March 23, 2024, and the Continuing 
Appropriations and Extensions Act, 2025, sections 101(6) and 106 of 
Division A, Title I of Public Law 118-83 (Sept. 26, 2024).
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C. FY 2025 Public Law 118-83

    On March 23, 2024, President Joseph Biden signed the FY 2024 
Omnibus, which contains a provision, section 105 of Division G, Title 
I, permitting the Secretary of Homeland Security, under certain 
circumstances and after consultation with the Secretary of Labor, to 
increase the number of H-2B visas available to U.S. employers, 
notwithstanding the otherwise-established statutory numerical 
limitation set forth in the INA.\22\ Specifically, section 105 provides 
that ``the Secretary of Homeland Security, after consultation with the 
Secretary of Labor, and upon determining that the needs of American 
businesses cannot be satisfied in [FY] 2024 with United States workers 
who are willing, qualified, and able to perform temporary 
nonagricultural labor,'' may increase the total number of noncitizens 
who may receive an H-2B visa in FY 2024 by the highest number of H-2B 
nonimmigrants who participated in the H-2B returning worker program in 
any fiscal year in which returning workers were exempt from the H-2B 
numerical limitation.
---------------------------------------------------------------------------

    \22\ Further Consolidated Appropriations Act, 2024, Public Law 
118-47 (Mar. 23, 2024).
---------------------------------------------------------------------------

    On September 25, 2024, Congress passed the FY 2025 authority, 
Public Law 118-83, which the President signed the next day. This law 
extends authorization under the same terms and conditions provided in 
section 105 of Division G, Title I of the FY 2024 Omnibus permitting 
the Secretary of Homeland Security to increase the number of H-2B visas 
available to U.S. employers in FY 2025, and expires on December 20, 
2024.\23\ In other words, Public Law 118-83 permits the Secretary of 
Homeland Security, after consultation with the Secretary of Labor, to 
provide up to 64,716 additional H-2B visas for FY 2025, notwithstanding 
the otherwise-established statutory numerical limitation set forth in 
the INA, for eligible employers whose employment needs for FY 2025 
cannot be met.\24\ Under the Public Law 118-83 authority, DHS and DOL 
are jointly publishing this

[[Page 95631]]

temporary final rule to authorize the issuance of no more than 64,716 
additional visas for FY 2025 to those businesses that are suffering 
irreparable harm or will suffer impending irreparable harm, as attested 
by the employer on a new attestation form. The authority to approve H-
2B petitions under this FY 2025 supplemental cap expires at the end of 
that fiscal year. Therefore, USCIS will not approve H-2B petitions 
filed in connection with this FY 2025 supplemental cap authority on or 
after October 1, 2025.
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    \23\ See secs. 101(6) and 106, Div. A, Title I, Pub. L. 118-83 
(Sept. 26, 2024), and section 105 of Division G, Title I of the 
Further Consolidated Appropriations Act, 2024, Public Law 118-47 
(Mar. 23, 2024) (FY 2024 Omnibus).
    \24\ Appropriations and authorities provided by the continuing 
resolutions are available for the needs of the entire fiscal year to 
which the continuing resolution applies, although DHS's ability to 
obligate funds or exercise such authorities may lapse at the sunset 
of such resolution. See, e.g., Comments on Due Date and Amount of 
District of Columbia's Contributions to Special Employee Retirement 
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a 
continuing resolution appropriates the full annual amount regardless 
of its period of duration. . . . Standard continuing resolution 
language makes it clear that the appropriations are available to the 
extent and in the manner which would be provided by the pertinent 
appropriations act that has yet to be enacted (unless otherwise 
provided in the continuing resolution).''). Consistent with this 
principle, DHS interprets the current continuing resolution to 
provide DHS with the ability to authorize additional H-2B visa 
numbers with respect to all of FY 2025 subject to the same terms and 
conditions as the FY 2024 authority at any time before the 
continuing resolution expires, notwithstanding the reference to FY 
2024 in the FY 2024 Omnibus.
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    As noted above, since FY 2017, Congress has enacted a series of 
public laws providing the Secretary of Homeland Security with the 
discretionary authority to increase the H-2B cap beyond the annual 
numerical limitation set forth in section 214 of the INA. The previous 
statutory provisions were materially identical to section 105 of the FY 
2024 Omnibus, which is the same authority provided for FY 2025 by the 
recent continuing resolution. During each fiscal year from FY 2017 
through FY 2019, and FY 2021 through FY 2024, the Secretary of Homeland 
Security, after consulting with the Secretary of Labor, determined that 
some American businesses could not satisfy their needs in such year 
with U.S. workers who were willing, qualified, and able to perform 
temporary nonagricultural labor. On the basis of these determinations, 
on July 19, 2017, and May 31, 2018, DHS and DOL jointly published 
temporary final rules for FY 2017 and FY 2018, respectively, each of 
which allowed an increase of up to 15,000 additional H-2B visas for 
those businesses that attested that if they did not receive all of the 
workers requested on the Petition for a Nonimmigrant Worker (Form I-
129), they were likely to suffer irreparable harm, in other words, 
suffer a permanent and severe financial loss.\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 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.
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    \25\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program, 82 FR 32987, 32998 (July 19, 2017); 
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 
Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program, 83 FR 24905, 24917 (May 31, 2018).
    \26\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
    \27\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number 
of approved workers exceeded the number of additional visas 
authorized for FY 2018 to allow for the possibility that some 
approved workers would either not seek a visa or admission, would 
not be issued a visa, or would not be admitted to the United States.
    \28\ Premium processing allows for expedited processing for an 
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
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    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.
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    \29\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2019 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 2019).
    \30\ See 84 FR at 20021.
    \31\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. The number 
of approved workers exceeded the number of additional visas 
authorized for FY 2019 to allow for the possibility that some 
approved workers would either not seek a visa or admission, would 
not be issued a visa, or would not be admitted to the United States.
---------------------------------------------------------------------------

    Although Congress provided the Secretary of Homeland Security with 
the discretionary authority to increase the H-2B cap in FY 2020, the 
Secretary did not exercise that authority. DHS initially intended to 
exercise its authority and, on March 4, 2020, announced that it would 
make available 35,000 supplemental H-2B visas for the second half of 
the fiscal year.\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\
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    \32\ See DHS, DHS to Improve Integrity of Visa Program for 
Foreign Workers (March 5, 2020), https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
    \33\ See Proclamation 9994 of Mar. 13, 2020, Declaring a 
National Emergency Concerning the Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \34\ See https://twitter.com/DHSgov/status/1245745115458568192?s=20.
    \35\ See https://twitter.com/DHSgov/status/1245745116528156673.
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    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

[[Page 95632]]

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\
---------------------------------------------------------------------------

    \36\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021).
    \37\ See USCIS, Cap Reached for Remaining H-2B Visas for 
Returning Workers for FY 2021, https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19, 2021).
    \38\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2021 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. See Department of Homeland Security, U.S. 
Citizenship and Immigration Services, Office of Performance and 
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2023, TRK 
13122, H-2B Visa Issuance Report September 30, 2023.
    \39\ 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \40\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2022 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); 87 
FR 6017 (Feb. 3, 2022) (correction).
    \41\ 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.
---------------------------------------------------------------------------

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

    \42\ See Temporary Final Rule, Exercise of Time-Limited 
Authority To Increase the Numerical Limitation for Second Half of FY 
2022 for the H-2B Temporary Nonagricultural Worker Program and 
Portability Flexibility for H-2B Workers Seeking To Change 
Employers, 87 FR 30334 (May 18, 2022).
    \43\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
    \44\ The number of approved workers exceeded the number of 
additional visas authorized for the second half of FY 2022 to allow 
for the possibility that some approved workers would either not seek 
a visa or admission, would not be issued a visa, or would not be 
admitted to the United States. See Department of Homeland Security, 
U.S. Citizenship and Immigration Services, Office of Performance and 
Quality, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
---------------------------------------------------------------------------

    On December 15, 2022, DHS and DOL jointly published a temporary 
final rule authorizing an increase of up to 64,716 additional H-2B 
visas for the entirety of FY 2023.\45\ As in the FY 2022 TFRs, the 
additional visas were available only to employers that attested they 
were suffering or would suffer impending irreparable harm without the 
additional workers. The 64,716 additional visas included 44,716 
reserved for returning workers from one of the last three fiscal years 
(FY 2020, 2021, or 2022), which were distributed in several allocations 
based on date of employer need: 18,216 for employers with requested 
employment start dates on or before March 31, 2023; 16,500 for 
employers with requested employment start dates from April 1, 2023, to 
May 14, 2023 (early second half allocation); and 10,000 for employers 
with requested employment start dates from May 15, 2023, to Sept. 30, 
2023 (late second half allocation). The remaining 20,000 visas were 
available for the entirety of FY 2023, and were set aside for nationals 
of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from 
the returning worker requirement. By January 30, 2023, USCIS received 
enough petitions to reach the cap for the additional 18,216 H-2B visas 
made available for returning workers for the first half of fiscal year, 
and by March 30, 2023, USCIS received enough petitions to reach the cap 
for the additional 16,500 H-2B visas made available for returning 
workers for the early second half of fiscal year.\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\
---------------------------------------------------------------------------

    \45\ See Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for FY 2023 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); 87 
FR 77979 (Dec. 21, 2022) (correction).
    \46\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap Reached for 
Additional Returning Worker H-2B Visas for the Early Second Half of 
FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
    \47\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2023 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. See DHS, USCIS, Office of Performance and 
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 
13122, H-2B Visa Issuance Report September 30, 2023.
---------------------------------------------------------------------------

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

[[Page 95633]]

FY 2024.\48\ As in the FY 2023 TFR, the additional visas were available 
only to employers that attested they were suffering or would suffer 
impending irreparable harm without the additional workers. The 64,716 
additional visas included 44,716 reserved for returning workers from 
one of the last three fiscal years (FY 2021, 2022, or 2023), which were 
distributed in several allocations based on date of employer need: 
20,716 for employers with requested employment start dates on or before 
March 31, 2024; 19,000 for employers with requested employment start 
dates from April 1, 2024, to May 14, 2024 (early second half 
allocation); and 5,000 for employers with requested employment start 
dates from May 15, 2024, to September 30, 2024 (late second half 
allocation). The remaining 20,000 visas were available for the entirety 
of FY 2024, and were set aside for nationals of El Salvador, Guatemala, 
Honduras, Haiti, Colombia, Ecuador, and Costa Rica, who were exempt 
from the returning worker requirement. By January 9, 2024, USCIS 
received enough petitions to reach the cap for the additional 20,716 H-
2B visas made available for returning workers for the first half of 
fiscal year, and by April 17, 2024, USCIS received enough petitions to 
reach the cap for the additional 19,000 H-2B visas made available for 
returning workers for the early second half of fiscal year.\49\ USCIS 
data show that the total number of H-2B workers approved towards the FY 
2024 supplemental cap increase was 85,577, including 61,102 workers 
under the returning worker allocation, as well as 24,475 workers 
approved towards the country-specific allocation.\50\
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    \48\ Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for FY 2024 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023).
    \49\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for 
Additional Returning Worker H-2B Visas for the Early Second Half of 
FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024 (Apr. 18, 2024).
    \50\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2024 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. See DHS, USCIS, Office of Performance and 
Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/
2024, PAER0016221.
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    Once again, DHS, in consultation with DOL, believes that it is 
appropriate to increase the H-2B cap for FY 2025 based on the demand 
for H-2B workers in the first half of FY 2025, anticipated demand for 
the second half of FY 2025, recent economic growth, and strong labor 
demand.\51\ 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.
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    \51\ The term ``strong labor demand'' in this context relies on 
the most recently released figure from a Bureau of Labor Statistics 
(BLS) survey at the time this TFR was written. The BLS Job Openings 
and Labor Turnover Survey (JOLTS) reports 9.6 million job openings 
in August 2023. See DOL, BLS, Job Openings and Labor Turnover--
August 2023, https://www.bls.gov/news.release/archives/jolts_10032023.htm.
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D. Joint Issuance of the Final Rule

    As in prior years, DHS and DOL (the Departments) have determined 
that it is appropriate to jointly issue this temporary final rule.\52\ 
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.\53\ Although 
DHS and DOL each have authority to independently issue rules 
implementing their respective duties under the H-2B program,\54\ the 
Departments are implementing the numerical increase in this manner to 
ensure there can be no question about the authority underlying the 
administration and enforcement of the temporary cap increase. This 
approach is consistent with rules implementing DOL's general 
consultative role under INA section 214(c)(1), 8 U.S.C. 1184(c)(1), and 
delegated functions under INA sections 103(a)(6) and 214(c)(14)(B), 8 
U.S.C. 1103(a)(6), 1184(c)(14)(B).\55\
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    \52\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017); 
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 
Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited 
Authority To Increase the Fiscal Year 2019 Numerical Limitation for 
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May 
8, 2019); Exercise of Time-Limited Authority To Increase the Fiscal 
Year 2021 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021); 
Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 
Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second 
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers, 87 FR 30334 (May 18, 2022); 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); Exercise of Time-Limited 
Authority To Increase the Numerical Limitation for FY 2024 for the 
H-2B Temporary Nonagricultural Worker Program and Portability 
Flexibility for H-2B Workers Seeking To Change Employers, 88 FR 
80394 (Nov. 17, 2023).
    \53\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec., 
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021); 
see also Temporary Non-Agricultural Employment of H-2B Aliens in the 
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
    \54\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
    \55\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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III. Discussion

A. Statutory Determination

    Following consultation with the Secretary of Labor, the Secretary 
of Homeland Security has determined that some U.S. employers cannot 
satisfy their needs in FY 2025 with U.S. workers who are willing, 
qualified, and able to perform temporary nonagricultural labor. In 
accordance with the FY 2025 continuing resolution extending the 
authority provided in section 105 of the FY 2024 Omnibus, the Secretary 
of Homeland Security has determined that it is appropriate, for the 
reasons stated below, to raise the numerical limitation on H-2B 
nonimmigrant visas through the end of FY 2025 by up to 64,716 
additional visas for those American businesses that attest that they 
are suffering irreparable harm or will suffer impending irreparable 
harm, in other words, a permanent and severe financial loss, without 
the ability to employ all of the H-2B workers requested on their 
petition. These businesses must retain documentation, as described 
below, supporting this attestation.
    As in connection with H-2B supplemental visa temporary final rules 
in recent years, and consistent with existing authority, DHS and DOL 
intend to conduct a significant number of audits with respect to 
petitions filed under this TFR requesting supplemental H-2B visas 
during the period of temporary need. The Departments will use their 
discretion to select which petitions to audit, and the Departments will 
use the audits to verify compliance with H-2B program requirements, 
including the irreparable harm standard as well as other key worker 
protection provisions implemented through this rule. If the Departments 
find that an employer's documentation does not meet the irreparable 
harm standard, or that the employer fails to provide

[[Page 95634]]

evidence demonstrating irreparable harm or comply with the audit 
process, the Departments may consider it to be a willful violation 
resulting in an adverse agency action against the employer, including 
revocation of the TLC or program debarment. Of the audits completed so 
far, some audits conducted of employers that received visas under past 
supplemental caps revealed concerns surrounding payment of the promised 
wage, employment of returning workers, documentation of irreparable 
harm, need for all requested workers, employment for the reported 
number of hours and employment at the listed location, recruitment of 
U.S. workers, and cooperation with the audit process, which may warrant 
further review and action.
    Based on the insufficient responses and evidence generally provided 
in response to these audits, which indicate a lack of compliance with 
the audit process and program requirements, DOL has added clarifying 
language to the regulatory text at 20 CFR 655.64(a)(1) and (a)(5) to 
provide more information on how employers can provide sufficient 
evidence to establish irreparable harm in response to an audit or 
investigation and further explain how failing to respond to audits or 
failing to establish compliance with H-2B program requirements can 
result in debarment from the program and all programs administered by 
OFLC, consistent with the Department's regulations at 20 CFR 655.70 and 
20 CFR 655.73. While the requirements remain the same, DOL believes 
adding these clarifications would benefit the public and regulated 
community at large.
    As he did in recent years, the Secretary of Homeland Security has 
also again determined, following consultation with the Secretary of 
Labor, that for certain employers, additional recruitment steps are 
necessary to confirm that there are no qualified U.S. workers available 
for the positions. In addition, the Secretary of Homeland Security has 
determined, following consultation with the Secretary of Labor, that 
the supplemental visas will be limited to returning workers, with the 
exception that up to 20,000 of the 64,716 visas will be exempt from the 
returning worker requirement and, similar to FY 2024, will be reserved 
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, 
Haiti, Colombia, Ecuador, and Costa Rica.\56\ 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),\57\ joining the United 
States to ramp up efforts to address the irregular migration flows 
through the Darien,\58\ and hosting Safe Mobility Offices (SMOs) so 
that migrants do not trek north to the U.S. Southwest Border.\59\ 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.\60\ 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.\61\
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    \56\ These conditions and limitations are not inconsistent with 
sections 214(g)(3) (``first in, first out'' H-2B processing) and 
(g)(10) (fiscal year H-2B allocations) because noncitizens covered 
by the special allocation under section 105 of the FY 2024 Omnibus 
are not ``subject to the numerical limitations of [section 
214(g)(1)].'' See, e.g., INA section 214(g)(3); INA section 
214(g)(10); Continuing Appropriations Act, 2025, div. A, sec. 101(6) 
(extending the authority provided in FY 2024 Omnibus div. G, sec. 
3105 (``Notwithstanding the numerical limitation set forth in 
section 214(g)(1)(B) of the [INA] . . . .'')).
    \57\ The White House, Los Angeles Declaration on Migration and 
Protection, June 10, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/. On May 7, 2024, Guatemala hosted the third Los 
Angeles Declaration Ministerial with foreign ministers and senior 
representatives from 21 endorsing countries, including U.S. 
Secretary of State Antony Blinken. The White House, Fact Sheet: 
Third Ministerial Meeting on the Los Angeles Declaration Migration 
and Protection in Guatemala (May 7, 2024), available at https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/. On September 
25, the United States hosted the fourth Los Angeles Declaration 
Ministerial with foreign ministers and senior representatives from 
the other 21 endorsing countries. The White House, Fact Sheet: 
Fourth Ministerial Meeting on the Los Angeles Declaration Migration 
and Protection (September 26, 2024), available at https://www.whitehouse.gov/briefing-room/statements-releases/2024/09/26/fact-sheet-fourth-ministerial-meeting-on-the-los-angeles-declaration-on-migration-and-protection/.
    \58\ Trilateral Joint Statement, April 11, 2023, https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
    \59\ The White House, Joint Statement from the United States and 
Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/; United States 
Department of State, U.S.-Colombia Joint Commitment to Address the 
Hemispheric Challenge of Irregular Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; The White House, 
Readout of Principal Deputy National Security Advisor Jon Finer's 
Meeting with Colombian Foreign Minister Alvaro Leyva (June 11, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/; 
United States Department of State, U.S.-Costa Rica Joint Commitment 
to Address the Hemispheric Challenge of Irregular Migration (June 
12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; United 
States Department of State, Announcement of Safe Mobility Office in 
Ecuador (October 19, 2023), https://www.state.gov/announcement-of-
safe-mobility-office-in-ecuador/
#:~:text=The%20United%20States%20is%20pleased,authorized%20channels%2
0of%20lawful%20migration.
    \60\ See Section 3(c) of E.O. 14010, Creating a Comprehensive 
Regional Framework To Address the Causes of Migration, To Manage 
Migration Throughout North and Central America, and To Provide Safe 
and Orderly Processing of Asylum Seekers at the United States 
Border, signed February 2, 2021, https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf. E.O. 14010 referred to the 
three countries of El Salvador, Guatemala, and Honduras as the 
``Northern Triangle,'' but this rule refers to these countries 
collectively as the Northern Central American countries.
    \61\ See https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw (this supplemental 
allocation to workers from Haiti, Honduras, Guatemala, and El 
Salvador ``advances the Biden Administration's pledge, under the 
L.A. Declaration to expand legal pathways as an alternative to 
irregular migration''); The White House, Fact Sheet: The Los Angeles 
Declaration on Migration and Protection U.S, Government and Foreign 
Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's 
commitment to support the people of Haiti.''). We also note 
Congress' statement, in a provision within the FY 2022 Omnibus, that 
it is the policy of the United States to support the sustainable 
rebuilding and development of Haiti. See Section 102 of Division V 
of the Consolidated Appropriations Act, 2022, Public Law 117-103. 
See also 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).
---------------------------------------------------------------------------

    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 approving petitions on behalf of 6,805 
beneficiaries under the FY 2021 allocation,\62\ 3,231 beneficiaries 
under

[[Page 95635]]

the FY 2022 first half supplemental allocation,\63\ 12,318 
beneficiaries for the second half of the fiscal year FY 2022, and 
23,832 beneficiaries under the FY 2023 allocation.\64\ DHS also 
observed robust employer interest in response to the FY 2024 H-2B 
supplemental visa allocation for Salvadoran, Guatemalan, Honduran, 
Haitian, Colombian, Ecuadoran, and Costa Rican nationals. For FY 2024, 
USCIS approved 24,475 beneficiaries under the country-specific 
allocation.\65\ In addition, the Biden-Harris administration has 
conducted outreach efforts to ensure U.S. businesses are able to 
address their labor needs by utilizing this country specific allocation 
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica while at the same time promoting the 
availability of this lawful pathway for nationals of these countries 
seeking economic opportunity in the United States.\66\
---------------------------------------------------------------------------

    \62\ While USCIS approved a greater number of beneficiaries from 
the Northern Central American countries than the 6,000 visas 
allocated under the FY 2021 supplemental cap for those countries, 
the Department of State issued 3,079 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.
    \63\ 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.
    \64\ 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. 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.
    \65\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, ELIS, 
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. 
While USCIS approved a greater number of beneficiaries under the 
country-specific allocation than the 20,000 visas allocated, the 
Department of State issued approximately 17,695 visas under this 
allocation. Id.
    \66\ See, 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-summit-americas-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.''); 
USCIS, H-2B Visa Program: Overview and Country Specific Allocations 
Recruitment Webinar, https://www.uscis.gov/outreach/upcoming-national-engagements/h-2b-visa-program-overview-and-country-specific-allocations-recruitment-webinar (March 7, 2024).
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    DHS will not accept and will reject petitions submitted for the 
country-specific allocation with a date of need on or after April 1, 
2025, that are received earlier than 15 days after the INA section 
214(g) cap for the second half of FY 2025 is met or are received after 
the applicable numerical limitation has been reached or after September 
15, 2025. Requiring petitioners to wait to submit H-2B supplemental cap 
petitions with start dates of need on or after April 1, 2025, is 
consistent with the supplemental cap authority in section 105 of the FY 
2024 Omnibus, as extended to FY 2025 by Public Law 118-83 (September 
26, 2024), 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, 2025.
    Similar to previous temporary final rules, the Secretary of 
Homeland Security has also determined to limit the supplemental visas 
to H-2B returning workers,\67\ 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 2022, 2023, or 2024.\68\ Like the 
temporary final rules in recent years, 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.
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    \67\ For purposes of this rule, these returning workers could 
have been H-2B cap exempt or extended H-2B status in FY 2022, 2023, 
or 2024. Additionally, they may have been previously counted against 
the annual H-2B cap of 66,000 visas during FY 2022, 2023, or 2024, 
or the supplemental caps in FY 2022, 2023, or 2024.
    \68\ The returning worker allocations are for workers who were 
issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 
2024, 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.
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    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. As stated in prior TFRs, in the past, 
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.\69\ U.S. businesses, 
chambers of commerce, employer organizations, and state and local 
elected officials have also previously expressed concerns to the DHS 
and Labor Secretaries regarding the unavailability of H-2B visas after 
the statutory cap was reached.\70\ In addition, while DHS did not 
request comments for the FY 2024 TFR, several commenters on the FY 2023 
TFR supported the Departments' decision to publish one rule covering 
the entire

[[Page 95636]]

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.\71\
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    \69\ See, e.g., Exercise of Time-Limited Authority To Increase 
the Numerical Limitation for FY 2023 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022).
    \70\ These letters were retained in the administrative record 
for those rules.
    \71\ See the docket for 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) for 
access to these comments.
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    After considering the full range of evidence and diverse points of 
view, the Secretary of Homeland Security has deemed it appropriate to 
take action to prevent further severe and permanent financial loss for 
those employers currently suffering irreparable harm and to avoid 
impending irreparable harm for other employers unable to obtain H-2B 
workers under the statutory cap, including potential wage and job 
losses by their U.S. workers, as well as other adverse downstream 
economic effects.\72\ 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.
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    \72\ See, e.g., Impacts of the H-2B Visa Program for Seasonal 
Workers on Maryland's Seafood Industry and Economy, Maryland 
Department of Agriculture Seafood Marketing Program and Chesapeake 
Bay Seafood Industry Association (March 2, 2020), 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); Feds Double Seasonal 
Worker Visas Ahead of 2024 Crab Season, Chesapeake Bay Magazine 
(Nov. 7, 2023, https://www.chesapeakebaymagazine.com/feds-double-seasonal-worker-visas-ahead-of-2024-crab-season/; Senator Chris Van 
Hollen, Van Hollen Meets with Eastern Shore Crab Houses, Highlights 
Efforts to Support Seafood Industry's Employment Needs (March 21, 
2024), https://www.vanhollen.senate.gov/news/press-releases/van-hollen-meets-with-eastern-shore-crab-houses-highlights-efforts-to-support-seafood-industrys-employment-needs; HotelDive, Hotel 
Employment Rose in May, But Owners' Labor Woes Remained (June 11, 
2024), https://www.hoteldive.com/news/hotel-employment-labor-challenges/718560/.
---------------------------------------------------------------------------

    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 105 of the FY 2024 Omnibus, as extended by Public 
Law 118-83, 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.\73\ 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.\74\
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    \73\ Congress has delegated to DHS the broad authority to 
administer and enforce the immigration laws in title 8 of the U.S.C. 
as well as other immigration and naturalization laws. See, e.g., INA 
sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), 
(c)(1); see Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 
2263 (2024) (``In a case involving an agency, of course, the 
statute's meaning may well be that the agency is authorized to 
exercise a degree of discretion. Congress has often enacted such 
statutes. For example, some statutes `expressly delegate' to an 
agency the authority to give meaning to a particular statutory term. 
Others empower an agency to prescribe rules to fill up the details 
of a statutory scheme, or to regulate subject to the limits imposed 
by a term or phrase that leaves agencies with flexibility, such as 
`appropriate' or `reasonable.' '') (cleaned up and internal 
citations omitted).
    \74\ The statute explicitly provides that the Secretary of 
Homeland Security, after consulting with the Secretary of Labor, and 
upon the determination that the needs of United States businesses 
cannot be satisfied during fiscal year 2025 with U.S. workers to 
perform temporary nonagricultural labor, may determine the 
appropriate number of H-2B supplemental visas to be issued in fiscal 
year 2025, limited to the highest number of H-2B nonimmigrants who 
participated in the H-2B returning worker program. Consistent with 
the discretion afforded thereunder by Congress, and commensurate 
with authorities including those afforded under section 103 and 214 
of the INA, 8 U.S.C. 1103 and1184, DHS, in consultation with DOL, is 
making available additional H-2B temporary nonagricultural worker 
visas for fiscal year 2025, as in past years, to employers who are 
suffering irreparable harm or will suffer impending irreparable 
harm. See Loper Bright Enterprises v. Raimondo, 144 S. Ct. at 2263 
(2024).
---------------------------------------------------------------------------

    First, as explained in earlier TFRs, DHS has long interpreted the 
reference to ``the needs of American businesses'' reiterated in section 
105 of the FY 2024 Omnibus, as extended by Public Law 118-83, 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 105 of the FY 2024 Omnibus, as 
extended by Public Law 118-83, 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 2025, 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 2025

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 2025.\75\ The

[[Page 95637]]

determination to make available 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 2025 and expected demand for the 
second half of FY 2025; current labor market conditions; the general 
trend of increased demand for H-2B visas from FY 2017 to FY 2024; 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 the 
Biden-Harris Administration to address the root causes of irregular 
migration as outlined in 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.
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    \75\ 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 105 of the FY 
2024 Omnibus 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 
105 of the FY 2024 Omnibus to change to H-2B status from another 
nonimmigrant status. See INA section 248, 8 U.S.C. 1258; see also 8 
CFR part 248. If a petitioner files a petition seeking H-2B workers 
in accordance with this rule and requests a change of status on 
behalf of someone in the United States, the change of status request 
will be denied, but the petition will be adjudicated in accordance 
with applicable DHS regulations. Any noncitizen authorized for H-2B 
status under the approved petition would need to obtain the 
necessary H-2B visa at a consular post abroad and then seek 
admission to the United States in H-2B status at a port of entry.
---------------------------------------------------------------------------

    Section 105 of the FY 2024 Omnibus, as extended by Public Law 118-
83, sets the highest number of H-2B returning workers who were exempt 
from the cap in certain previous years as the maximum limit for any 
increase in the H-2B numerical limitation for FY 2025.\76\ Consistent 
with the statute's reference to H-2B returning workers, in determining 
the appropriate number by which to increase the H-2B numerical 
limitation, the Secretary of Homeland Security focused on the number of 
visas allocated to such workers in years in which Congress enacted 
returning worker exemptions from the H-2B numerical limitation. During 
each of the years the returning worker provision was in force, U.S. 
employers' standard business needs for H-2B workers exceeded the 
statutory 66,000 cap. The highest number of H-2B returning workers 
approved was 64,716 in FY 2007. In setting the number of additional H-
2B visas to be made available for FY 2025, DHS considered this number, 
overall indications of increased need, and the availability of U.S. 
workers, as discussed below. On the basis of these considerations, DHS 
determined that it is appropriate to make available up to 64,716 
additional visas, which is the maximum allowed, under the FY 2025 
supplemental cap authority. The Secretary further considered the 
objectives the Biden-Harris Administration to address the root causes 
of irregular migration consistent with the E.O. 14010 and the L.A. 
Declaration, and managing migration through expansion of lawful 
pathways while increasing the consequences for those who do not use 
these pathways and unlawfully enter the United States.\77\ 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.
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    \76\ 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).
    \77\ See Circumvention of Lawful Pathways, 88 FR 31314 (May 16, 
2023); Securing the Border, 89 FR 81156, (Oct. 7, 2025).
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    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.\78\ 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.\79\ 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.\80\
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    \78\ USCIS recognizes it may have received petitions for more 
than 29,000 supplemental H-2B workers if the cap had not been 
exceeded within the first 5 days of opening. However, DHS estimates 
that not all of the 29,000 workers requested under the FY 2018 
supplemental cap would have been approved and/or issued visas. For 
instance, although DHS approved petitions for 15,672 beneficiaries 
under the FY 2018 cap increase, the Department of State data shows 
that as of January 15, 2019, it issued only 12,243 visas under that 
cap increase. Similarly, DHS approved petitions for 12,294 
beneficiaries under the FY 2017 cap increase, but the Department of 
State data shows that it issued only 9,160 visas.
    \79\ On June 3, 2021, USCIS announced that it had received 
enough petitions to reach the cap for the additional 16,000 H-2B 
visas made available for returning workers only, but that it would 
continue accepting petitions for the additional 6,000 visas allotted 
for nationals of the Northern Central American countries. See USCIS, 
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021, 
https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021 (Jun. 3, 2021). On July 23, 
2021, USCIS announced that, because it did not receive enough 
petitions to reach the allocation for the Northern Central American 
countries by the July 8 filing deadline, the remaining visas were 
available to H-2B returning workers regardless of their country of 
origin. See USCIS, Employers May File H-2B Petitions for Returning 
Workers for FY 2021, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (Jul. 23, 
2021).
    \80\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. The number 
of approved workers exceeded the number of additional visas 
authorized for FY 2018, FY 2019, as well as for FY 2021 to allow for 
the possibility that some approved workers would either not seek a 
visa or admission, would not be issued a visa, or would not be 
admitted to the United States. Unlike these past supplemental cap 
TFRs, petitions filed under the first half FY 2022 TFR did not 
exceed the additional allocation of 20,000 H-2B visas provided by 
that rule.
---------------------------------------------------------------------------

    In FY 2022, DHS made the supplemental cap available twice, once in 
January 2022 and again in May 2022. Under the earlier FY 2022 
supplemental cap for petitions with start dates in the first half of FY 
2022, USCIS had issued approvals for 17,381 beneficiaries, including 
approvals for 3,231 beneficiaries under the allocation for nationals of 
the Northern Central American countries and Haiti.\81\ 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.\82\ Of the

[[Page 95638]]

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.\83\
---------------------------------------------------------------------------

    \81\ 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.
    \82\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
    \83\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, queried 10/2023, TRK 13122, FY 2023 H-2B Northern 
Central American Cap Approvals by Validity Start Date Month. The 
number of approved workers exceeded the number of additional visas 
authorized for the second half of FY 2022 to allow for the 
possibility that some approved workers would either not seek a visa 
or admission, would not be issued a visa, or would not be admitted 
to the United States.
---------------------------------------------------------------------------

    In FY 2023, USCIS received enough petitions to reach the cap for 
the additional 18,216 H-2B visas made available for returning workers 
for the first half of fiscal year by January 30, 2023, and USCIS 
received enough petitions to reach the cap for the additional 16,500 H-
2B visas made available for returning workers for the early second half 
of fiscal year by March 30, 2023.\84\ 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.\85\
---------------------------------------------------------------------------

    \84\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap Reached for 
Additional Returning Worker H-2B Visas for the Early Second Half of 
FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
    \85\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023. The number of approved workers 
exceeded the number of additional visas authorized for FY 2023 to 
allow for the possibility that some approved workers would either 
not seek a visa or admission, would not be issued a visa, or would 
not be admitted to the United States.
---------------------------------------------------------------------------

    In FY 2024, USCIS received a sufficient number of H-2B petitions to 
reach the first half of the FY 2024 fiscal year statutory cap on 
October 11, 2023.\86\ USCIS received enough petitions to reach the cap 
for the additional 20,716 H-2B visas made available for returning 
workers for the first half of fiscal year by January 9, 2024, and USCIS 
received enough petitions to reach the cap for the additional 19,000 H-
2B visas made available for returning workers for the early second half 
of fiscal year by April 17, 2024.\87\ Of the petitions for supplemental 
H-2B visas in FY 2024, USCIS issued approvals for 85,577 beneficiaries, 
including 6,314 beneficiaries under the allocation of 5,000 visas made 
available for returning workers for the late second half of the fiscal 
year and 24,475 beneficiaries under the allocation of 20,000 visas 
reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, 
Colombia, Ecuador, or Costa Rica.\88\
---------------------------------------------------------------------------

    \86\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
    \87\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2024); USCIS, Cap Reached for 
Additional Returning Worker H-2B Visas for the Early Second Half of 
FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024 (Apr. 18, 2023).
    \88\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, ELIS, 
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221. 
The number of approved workers exceeded the number of additional 
visas authorized for FY 2024 to allow for the possibility that some 
approved workers would either not seek a visa or admission, would 
not be issued a visa, or would not be admitted to the United States.
---------------------------------------------------------------------------

    Data for the first half of FY 2025 clearly indicate an immediate 
need for additional supplemental H-2B visas for employers with start 
dates on or before March 31, 2025. USCIS received a sufficient number 
of H-2B petitions to reach the first half of the FY 2025 fiscal year 
statutory cap on September 18, 2024.\89\ Further, the date on which 
USCIS received sufficient H-2B petitions to reach the first half 
semiannual statutory cap has generally trended earlier in recent years. 
In fiscal years 2017 through 2025, USCIS received a sufficient number 
of H-2B petitions to reach or exceed the relevant first half statutory 
cap on January 10, 2017, December 15, 2017, December 6, 2018, November 
15, 2019, November 16, 2020, September 30, 2021, September 12, 2022, 
October 11, 2023, and September 18, 2024, respectively.\90\
---------------------------------------------------------------------------

    \89\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal 
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
    \90\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019, 
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap 
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); 
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021); USCIS, 
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024; USCIS, USCIS Reaches H-
2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
---------------------------------------------------------------------------

    Through the third quarter of FY 2024, approximately 90 percent of 
H-2B filings were for positions within just six sectors.\91\ NAICS 56 
(Administrative and Support and Waste Management and Remediation 
Services) accounted for 38.57% of filings, NAICS 71 (Arts, 
Entertainment, and Recreation) accounted for 11.73%, NAICS 72 
(Accommodation and Food Services) accounted for 23.14%, NAICS 23, 
(Construction) accounted for 11.91%, NAICS 31 (Animal Food 
Manufacturing) accounted for 2.01% of filings, and NAICS 11 
(Agriculture, Forestry, Fishing and Hunting) accounted for 2.39% of 
filings.
---------------------------------------------------------------------------

    \91\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

    Relevant unemployment data also supports the need for additional 
supplemental H-2B visas. Within these industries, DOL data show higher 
labor demand relative to recent history. More specifically, industry 
unemployment data from the Bureau of Labor Statistics (BLS) show that 
the industry unemployment rate for most of these industries (except for 
NAICS 11, which accounts for the lowest percentage of filings among 
these industries) is lower than the long term (10-year) average.\92\
---------------------------------------------------------------------------

    \92\ USCIS has elected to use a long-term average as a reference 
point so as to minimize the impact that the Covid-19 pandemic has on 
the comparison of the industry employment rate. All data are taken 
from the respective BLS ``Industry at a Glance'' pages. See https://www.bls.gov/iag/tgs/iag11.htm, https://www.bls.gov/iag/tgs/iag23.htm, https://www.bls.gov/iag/tgs/iag60.htm, https://www.bls.gov/iag/tgs/iag71.htm, https://www.bls.gov/iag/tgs/iag72.htm, https://www.bls.gov/iag/tgs/iag311.htm. All data accessed 
September 23, 2024.

[[Page 95639]]



                                                      10-Year Average of Industry Unemployment Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                              NAICS 11                                   NAICS 23        NAICS 56 *        NAICS 71         NAICS 72         NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.61...............................................................            6.13             4.82             7.96             7.90             5.22
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.


                                                         August 2024 Industry Unemployment Rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                              NAICS 11                                   NAICS 23        NAICS 56 *        NAICS 71         NAICS 72         NAICS 31
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.3...............................................................             3.2              4.2              4.1              5.9              3.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Supersector is used as a proxy, see footnote 94.

    In August 2024, the industry unemployment for NAICS 56 \93\ was 4.2 
percent, which is 0.62 points lower than its 10-year average of 4.82 
percent, while the industry unemployment rate for NAICS 71 was 4.1 
percent which is 3.86 points lower than its 10-year average of 7.96 
percent. The August 2024 industry unemployment rate for NAICS 72 (5.9 
percent) was 2 points lower than its 10-year average of 7.9 percent 
while the rate for NAICS 23 (3.2 percent) was 2.93 points lower than 
its 10-year average of 6.13 percent. The industry unemployment rate for 
NAICS 11 (11.3 percent) was 3.69 points higher than its 10-year average 
of 7.61 percent, making it the only industry among the top 5 H-2B 
industries that has a higher industry unemployment rate relative to its 
historical average. The relatively low unemployment rate across most of 
these industries is a clear indication of a strong labor demand within 
these industries. The Departments believe that the supplemental 
allocation of H-2B visas described in this temporary final rule will 
help to meet demand in these industries.
---------------------------------------------------------------------------

    \93\ Data presented here are for the Professional and Business 
Services Supersector, which is comprised of NAICS 54, NAICS 55 and 
NAICS 56. See https://www.bls.gov/iag/tgs/iag60.htm. As such, the 
data presented here should be understood to be the best possible 
proxy for changes in NAICS 56 and not a direct measurement of any 
specific change in the actual underlying sectors. The latest data 
available, for July 2023 from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 56 accounted for 
just under 42% of employment in Professional Business Services. All 
data accessed September 23, 2024.
---------------------------------------------------------------------------

    Economy-wide data also indicate that labor-market tightness 
continues to exist. The most recent Employment Situation released by 
the Bureau of Labor Statistics (BLS) stated that the unemployment rate 
was 4.2 percent in August 2024.\94\ Historically, the availability of 
H-2B visas addressed a need in the labor market during periods of lower 
unemployment. Chart 1 \95\ shows that the H-2B visa allocations for 
Fiscal Year 2024 \96\ 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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    \94\ See DOL, BLS, The Employment Situation--August 2024, 
https://www.bls.gov/news.release/archives/empsit_10042024.pdf (Sept. 
6, 2024).
    \95\ Annual data presented here is on a fiscal year basis. 
Fiscal year averages were calculated by taking the average of the 
monthly unemployment rate for the months in each respective fiscal 
year (October-September). Data for fiscal year 2024 are for October 
2023-August 2024. Unemployment rate for 2024 is based on median 
Federal Reserve projections. See https://www.federalreserve.gov/monetarypolicy/files/fomcprojtabl20240918.pdf (accessed September 
23, 2024).
    \96\ The number of estimated visas issued for Fiscal Year 2024 
is based on the sum of the fiscal year statutory cap for H-2B 
workers (66,000) and the supplemental allocation for this rule 
(64,716), for a total H-2B visa allocation of 130,716.
[GRAPHIC] [TIFF OMITTED] TR02DE24.003

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

[[Page 95640]]

    Making allocations for all of FY 2025 in a single rule.
    As in FY 2023 and FY 2024, DHS believes that it is appropriate to 
issue a single rule for the entire fiscal year for multiple 
reasons.\97\ First, DHS expects that there is demand for supplemental 
visas in the first half of FY 2025. As previously discussed, USCIS 
already received enough petitions to reach the congressionally mandated 
cap on H-2B visas for temporary nonagricultural workers for the first 
half of FY 2025.\98\ Further, the date on which USCIS received 
sufficient H-2B petitions to reach the first half semiannual statutory 
caps has generally trended earlier in recent years. In fiscal years 
2017 through 2025, USCIS received a sufficient number of H-2B petitions 
to reach or exceed the relevant first half statutory cap on January 10, 
2017, December 15, 2017, December 6, 2018, November 15, 2019, November 
16, 2020, September 30, 2021, September 12, 2022, October 11, 2023, and 
September 18, 2024, respectively.\99\
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    \97\ Further, DHS believes that 64,716 is an appropriate number 
of supplemental visas to make available, as this rule will cover 
both the first and second half of FY 2025.
    \98\ USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal Year 
2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
    \99\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019, 
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap 
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); 
USCIS, USCIS Reaches H-2B Cap for First Half of FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021); USCIS, 
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023); USCIS, 
USCIS Reaches H-2B Cap for First Half of Fiscal Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
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    Second, based on relevant data, DHS expects that USCIS will reach 
the statutory cap for the second half of FY 2025 and that there will 
accordingly be demand for supplemental visas in the second half of FY 
2025. For example, in fiscal years 2017 through 2023, USCIS received a 
sufficient number of H-2B petitions to reach or exceed the relevant 
second half statutory cap on March 13, 2017, February 27, 2018, 
February 19, 2019, February 18, 2020, February 12, 2021, February 25, 
2022, February 27, 2023, and March 7, 2024.\100\ In addition, DOL data 
shows consistently high demand in recent years, particularly during the 
second half of the fiscal year. In recent years, DOL has received an 
increasing number of TLC applications for an increasing number of H-2B 
workers with April 1 start dates: DOL received 4,500 applications on 
January 1, 2018, covering more than 81,600 worker positions; DOL 
received 5,276 applications by January 8, 2019, covering more than 
96,400 worker positions; DOL received 5,677 applications during the 
initial three-day filing window in 2020 covering 99,362 worker 
positions; DOL received 5,377 applications during the initial three-day 
filing window in 2021 covering 96,641 worker positions; DOL received 
7,875 applications by January 4, 2022, covering 136,555 worker 
positions; DOL received 8,693 applications during the initial three-day 
filing window in 2023, covering 142,796 worker positions; and DOL 
received 8,817 H-2B applications by January 8, 2024, covering 138,847 
worker positions.\101\
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    \100\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year 
2017, https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017 (Mar. 16, 2017); USCIS, USCIS Completes 
Random Selection Process for H-2B Visa Cap for Second Half of FY 
2018, https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018 (Mar. 
1, 2018); USCIS, H-2B Cap Reached for FY 2019, https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019 (Feb. 22, 2019); 
USCIS, H-2B Cap Reached for Second Half of FY 2020, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020 
(Feb. 26, 2020); USCIS, H-2B Cap Reached for Second Half of FY 2021, 
https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021 (Feb. 24, 2021); USCIS, H-2B Cap Reached for Second Half 
of FY 2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022 (Mar. 1, 2022); USCIS, USCIS Reaches H-2B 
Cap for Second Half of FY 2023 and Announces Filing Dates for the 
Second Half of FY 2023 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of (Mar. 2, 2023); 
USCIS, USCIS Reaches H-2B Cap for Second Half of FY 2024 and 
Announces Filing Dates for the Second Half of FY 2024 Supplemental 
Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of (Mar. 8, 2024).
    \101\ See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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    Finally, publishing one rule that addresses all the visas available 
for FY 2025 benefits the regulated public by giving more notice and 
certainty of what will become available for the second half. As noted 
in comments received in response to the FY 2023 TFR, this approach 
allows businesses to better plan ahead for their seasonal workforce 
needs.\102\
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    \102\ See the docket for 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) for 
access to these comments.
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Filing Deadline of September 15, 2025 for All Petitions
    The authority to approve H-2B petitions under this FY 2025 
supplemental cap expires at the end of the fiscal year, i.e., the end 
of September 30, 2025. Therefore, DHS is requiring employers requesting 
any supplemental visas under this TFR, regardless of the employment 
start date(s), to properly file their H-2B petition with USCIS no later 
than September 15, 2025. USCIS will reject any cases that are received 
after September 15, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Because DHS 
believes that 15 days from the end of the fiscal year is generally the 
minimum time needed for petitions to be adjudicated, DHS has set 
September 15, 2025 as the last day to file in order to provide USCIS 
with adequate time for petition processing before the expiration of the 
authority at the end of the fiscal year, although USCIS cannot 
guarantee the time period will be sufficient for adjudication of 
petitions in all cases.
    In addition, the filing deadline will be earlier than September 15, 
2025 if the applicable numerical limit for the relevant supplemental 
visa allocation is reached before that date. See new 8 CFR 
214.2(h)(6)(xv)(C). In such a case, USCIS will also reject any cases 
that are received after the applicable numerical limitation has been 
reached.
Returning Worker Allocation for the First Half of FY 2025 (October 1, 
2024 Through March 31, 2025)
    For the first half of FY 2025, DHS will make 20,716 visas 
immediately available upon publication of this TFR that are limited to 
returning workers, in other words, those workers who were issued H-2B 
visas or held H-2B status in fiscal years 2022, 2023, or 2024, 
regardless of country of nationality. These petitions must request a 
date of need starting on or before March 31, 2025. See new 8 CFR 
214.2(h)(6)(xv)(C).
    DHS anticipates that employers will use all of the first half 
allocation for returning workers, given how quickly USCIS reached the 
FY 2025 first half statutory cap and the first half supplemental 
allocation for FY 2024. As noted previously, USCIS received enough H-2B 
petitions to reach the FY 2025 first half statutory cap on

[[Page 95641]]

September 18, 2024.\103\ Under the FY 2024 TFR, which published on 
November 17, 2023, USCIS received enough petitions to reach the 20,716 
first half allocation by January 9, 2024.\104\ Similarly, as with the 
FY 2024 TFR, the relatively early publication of this rule will provide 
interested employers more time to prepare their petitions, increasing 
the likelihood that the first half allocation for returning workers 
will be used.\105\ To the extent that the first half allocation for 
returning workers is used, this TFR may provide affected employers with 
some relief by making available a separate allocation of visas for 
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica, which will be available for the entirety of FY 
2025.
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    \103\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal 
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
    \104\ USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2024 (Jan. 12, 2023).
    \105\ Compare the publication dates of the FY 2024 TFR and this 
rule with December 15, 2022, the date the FY 2023 TFR was first 
published, and January 28, 2022, the date the temporary final rule 
making available additional H-2B visas for the first half of FY 2022 
was first published.
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    As in previous years, in the event that USCIS approves insufficient 
petitions to use all 20,716 visas, the unused numbers will not carry 
over for the second half allocation because DHS believes that the 
operational burdens of calculating and administering a process to carry 
over unused visas, combined with the potential confusion for the public 
and adjudicators that could result from having different filing cutoff 
dates for the different allocations, would outweigh the benefits. As 
explained in the FY 2024 TFR, in order to make any unused first half 
visas available for employers with second half start dates, DHS would 
need to set a filing cutoff date prior to September 15, 2025 for the 
first half allocation, upon which it would stop accepting such 
petitions and make a calculation of how many visas should be re-
released for second half employers. Calculating visas to be re-released 
could also entail an additional cap allocation, additional 
announcements to the public, and potentially an additional lottery, all 
of which would significantly increase operational burdens. In addition 
to increasing operational burdens, DHS believes that the opening, 
closing, and potential re-opening of this allocation (and/or other cap 
allocations) could cause confusion for the public and adjudicators. 
Furthermore, not setting a filing cutoff date prior to September 15, 
2025 will maximize employers' opportunity to avail themselves of the 
first half allocation. While DHS acknowledges that this approach could 
potentially result in some employers with a demonstrated business need 
in the second half of the fiscal year losing the opportunity to receive 
a supplemental visa, it is DHS's expectation that, as occurred in FY 
2024, there will be sufficient demand from employers with first half 
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1, 
2025, Through May 14, 2025)
    For the second half of FY 2025, DHS will initially make available 
19,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2022, 2023, or 2024, regardless of country of nationality. These 
petitions must request a date of need starting on or after April 1, 
2025, through and including May 14, 2025. Limiting this allocation to 
employers with employment start dates on or before May 14, 2025 
reflects DHS's intentions to give employers with needs later in the 
season a better opportunity to access the H-2B program, and to prevent 
employers from petitioning under both of the second-half allocations to 
fill the same need.
    To mitigate complications from concurrent administration of the 
statutory second half cap, these petitions must be filed no earlier 
than 15 days after the second half statutory cap is reached, a date 
that USCIS will identify in a public announcement.\106\ When USCIS 
announces that it has received a sufficient number of petitions to 
reach the second half statutory cap, it will also announce the earliest 
possible filing date (15 days after the second half statutory cap) for 
this allocation. Concurrent administration of the second half statutory 
cap with the second half supplemental cap would pose significant 
operational challenges, particularly considering the volume of H-2B 
petitions USCIS would have to process at the same time. A cushion of 15 
days after the second half statutory cap is reached should provide 
USCIS with sufficient time to process H-2B petitions filed under the 
second half statutory cap and prepare to process petitions under this 
supplemental cap, and should also provide petitioners not selected 
under the statutory cap with enough time to refile under this 
supplemental cap. Furthermore, making this allocation available after 
the second half statutory cap has been reached builds in flexibility to 
account for variations in the timing of that cap being reached. DHS 
cannot predict with certainty when the FY 2025 second half statutory 
cap will be reached (or if it will be reached), and therefore, did not 
specify a date for when to first allow petitioners to file for FY 2025 
second half supplemental visas. In the event that the statutory second 
half FY 2025 cap is not reached, the supplemental allocation for 
returning workers for the second half of FY 2025 will not become 
available.
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    \106\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(2), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of 
this section requesting employment start dates from April 1, 2025 to 
May 14, 2025 that are received earlier than 15 days after the INA 
section 214(g) cap for the second half FY 2025 has been met.
---------------------------------------------------------------------------

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

[[Page 95642]]

(and/or other cap allocations) could cause confusion for the public and 
adjudicators. Furthermore, not setting a filing cutoff date prior to 
September 15, 2025, will maximize employers' opportunity to avail 
themselves of the early second half allocation. While DHS acknowledges 
that this approach could result in employers in the late second half 
losing the opportunity to receive a supplemental visa, it is DHS's 
expectation that there will be sufficient demand from employers to use 
this entire allocation. As anticipated in the FY 2024 TFR, employers 
did, in fact, use the entire early second half of FY 2024 
allocation.\107\
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    \107\ USCIS, Temporary Increase in H-2B Nonimmigrant Visas for 
FY 2024, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/temporary-increase-in-h-2b-nonimmigrant-visas-for-fy-2024 (last visited Aug. 20, 2024).
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Additional Returning Worker Allocation for the Late Second Half (on or 
After May 15, 2025, Through September 30, 2025)
    For the late second half of FY 2025, DHS will make available an 
additional allocation of 5,000 visas limited to returning workers, in 
other words, those workers who were issued H-2B visas or held H-2B 
status in fiscal years 2022, 2023, or 2024, regardless of country of 
nationality. To assist employers needing workers to begin work during 
the late spring and summer seasons in the fiscal year (also referred to 
as ``late season employers''), these petitions must request a date of 
need starting on or after May 15, 2025. These petitions must be filed 
no sooner than 45 days after the second half statutory cap is reached, 
a date that USCIS will identify in a public announcement.\108\ When 
USCIS announces that it has received a sufficient number of petitions 
to reach the second half statutory cap, it will also announce the 
earliest possible filing date (45 days after the second half statutory 
cap is reached) for this allocation. The cushion of 45 days after the 
second half statutory cap is reached is intended to provide USCIS with 
sufficient time to process H-2B petitions filed under the second half 
statutory cap that remain pending, as well as to process the expected 
influx of petitions under the early second half supplemental cap that 
will begin 15 days after the second half statutory cap is reached.\109\ 
By allowing USCIS to manage its workload in this way, the 45-day period 
will help USCIS prepare to process petitions under the late second half 
supplemental cap and mitigate the complications from concurrent 
administration of these various caps.
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    \108\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(3), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) 
of this section requesting employment start dates from May 15, 2025 
to September 30, 2025, that are received earlier than 45 days after 
the INA section 214(g) cap for the second half FY 2025 has been met.
    \109\ While petitioners may continue to submit petitions under 
the early second half supplemental cap through September 15, DHS 
expects the heaviest filing to occur soon after the visas become 
available. This expectation is based on historical filing patterns, 
as well as an assumption that employers will try act quickly to 
secure workers consistent with their dates of need.
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    This is the third supplemental cap reserved for late season 
employers that need workers to begin work during the late spring and 
summer seasons in the fiscal year.\110\ By regulation, employers may 
only apply for a TLC 75 to 90 days before the start date of need,\111\ 
and, as such, employers needing workers to begin work on or after May 
15 are not eligible to file TLC applications until on or after February 
15. As noted in the FY 2023 and FY 2024 TFRs, in past years, because of 
this requirement and the strong demand for H-2B workers in recent years 
to begin work on the earliest employment start date (i.e., April 1), 
late season employers were unable to receive cap-subject H-2B workers 
because they did not have an opportunity to file visa petitions for 
cap-subject H-2B workers before the second semiannual statutory cap was 
reached. Since, based on recent years' data,\112\ USCIS has typically 
received sufficient H-2B petitions to meet the statutory cap for the 
second half of the fiscal year around mid-February to early March, many 
of these late season employers may have decided to not file a TLC 
application.
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    \110\ See Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for FY 2023 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); 
Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers, 88 FR 2023 (Nov. 17, 2023).
    \111\ See 20 CFR 655.15(b).
    \112\ As noted above, in fiscal years 2017 through 2024, USCIS 
received a sufficient number of H-2B petitions to reach or exceed 
the relevant second half statutory cap on March 13, 2017, February 
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, 
February 25, 2022, February 27, 2023, and March 7, 2024, 
respectively.
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    DHS, in consultation with DOL, has again determined that it is 
appropriate to make a separate allocation available for late season 
employers whose late season labor needs may have put them at a 
disadvantage in accessing H-2B workers in recent years. While there was 
significant demand for the late second half allocation in FY 2024, the 
full allocation of 5,000 visas was not reached. As of September 30, 
2024, DOS has issued 3,906 towards the late second half allocation, 
while USCIS approved 6,314 beneficiaries towards the late second half 
allocation.\113\ Therefore, in order to meet the employer demand in the 
late second half of FY 2025, while still maximizing the overall usage 
of supplemental visas, DHS has determined it is appropriate to again 
limit the late second half allocation for FY 2025 to up to 5,000 visas. 
DHS, in consultation with DOL, has determined that authorizing two 
allocations for the second half of FY 2025 based on an employer's start 
date of need, in addition to requiring that the employer's start date 
of need on the Form I-129 match the start date of need on the approved 
TLC,\114\ will provide employers with late season needs a better 
opportunity to receive H-2B workers to avoid irreparable harm. 
Specifically, employers with early season needs that need work to begin 
on or after April 1 will have the opportunity to file H-2B petitions 
under both the statutory cap and the first allocation of the 
supplemental cap, while employers with late season needs do not have 
that opportunity.
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    \113\ Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, ELIS, 
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
    \114\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must 
state an employment start date that is the same as the date of need 
stated on the approved temporary labor certification'').
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    To mitigate complications from concurrent administration of the 
additional returning worker allocation for the second half of the 
fiscal year for late season employers and either the statutory second 
half cap or the initial supplemental allocation for returning workers 
for the second half of the fiscal year (or both), these petitions must 
be filed no earlier than 45 days after the second half statutory cap is 
reached. When USCIS announces that it has received a sufficient number 
of petitions to reach the second half statutory cap, it will also 
announce the earliest possible filing date (45 days after the second 
half statutory cap is reached) for this allocation. In the event that 
the statutory second half FY 2025 cap is not reached, this supplemental 
allocation for late season filers workers will not become available. 
Furthermore, in the event that USCIS does not approve sufficient 
petitions to use all 5,000 visas for late season employers, DHS will 
not carry over the unused numbers for petition approvals for any other 
allocation. For example, any unused

[[Page 95643]]

numbers would not carry over to petitions under the country-specific 
allocation. As noted above, DHS believes the operational burdens of 
calculating and administering a process to carry over unused visas 
would outweigh the benefits because of the potential confusion for the 
public and adjudicators that could result from having different filing 
cutoff dates for the different allocations. A process to carry over 
unused visas could also entail an additional cap allocation, additional 
announcements to the public, and potentially an additional lottery, all 
of which significantly increase operational burdens and may add further 
confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, Haiti, 
Colombia, Ecuador, and Costa Rica
    As in FY 2024, DHS will make available 20,000 additional visas that 
are reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, 
Colombia, Ecuador, and Costa Rica, as attested by the petitioner 
(regardless of whether such nationals are returning workers). These 
20,000 visas will be available for petitioners requesting an employment 
start date before the end of FY 2025, up to and including September 30, 
2025. As discussed in the Legal Framework section as well as in the 
section addressing the irreparable harm standard, DHS has a broad 
delegation from Congress to administer and enforce U.S. immigration 
laws and issue regulations regarding the same, as well as broad 
discretion over the admission of nonimmigrants, and the adjudication of 
nonimmigrant petitions, after consultation with other agencies, 
including DOL. See INA sec. 103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 
1103(a)(1), 1184(a)(1), (c)(1). In addition, through the temporary 
enactment authorizing the Secretary of DHS to increase the number of H-
2B visas,\115\ Congress delegated to the Secretary of DHS, after 
consultation with the Secretary of Labor, the discretion to establish a 
framework for determining that the needs of American businesses cannot 
be satisfied with the existing workforce and the conditions under which 
to authorize additional visas to further the purpose of the enactment. 
In the most recent, as well as each prior annual enactment, Congress 
consistently used the word ``may'' when describing the Secretary's 
authority, and the use of the word ``may'' indicates a grant of 
discretion, absent contrary legislative intent, structure and purpose 
of the statute.\116\ As in prior years, the Departments have determined 
that the temporary enactment together with DHS's broad authority over 
immigration provide the Secretary of DHS with discretion to implement 
the temporary enactment in a manner that addresses two complimentary 
policy objectives: the need to provide access to H-2B workers to 
American businesses, and the objective to provide lawful pathways for 
able, willing, and qualified workers from designated countries to come 
temporarily to the United States and perform nonagricultural labor. In 
issuing this TFR, and as in prior years, the Departments are 
implementing appropriate policy choices in exercising the discretionary 
authority provided by Congress.\117\ This policy choice was previously 
ratified by Congress \118\--legislative history of the FY2023 Omnibus 
indicates that Congress was aware of and approved of the country-
specific allocations.\119\ While prior fiscal years' country-specific 
allocations have not been reached, the number has been trending 
upwards, and DHS anticipates a higher likelihood that the 20,000 visas 
allocated for certain nationals by this rule will be reached by the end 
of this fiscal year. As discussed above, DHS observed robust employer 
interest in response to the FY 2021 H-2B supplemental visa allocation 
for Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 and 
FY 2023 supplemental visa allocations for Salvadoran, Guatemalan, 
Honduran, and Haitian nationals, and the data show a trend of increased 
participation by Haitian, Salvadoran, Guatemalan, and Honduran workers 
in the H-2B program \120\ In FY 2024, the inclusion of nationals from 
the additional countries of Colombia, Ecuador, and Costa Rica increased 
the likelihood that the 20,000 visas would be used and the data show a 
continued trend of increased usage of the country-specific 
allocation.\121\
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    \115\ Public Law 118-47, Division G, Title I, sec. 105 states: 
``Notwithstanding the numerical limitation set forth in section 
214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(1)(B)), the Secretary of Homeland Security, after 
consultation with the Secretary of Labor, and upon the determination 
that the needs of United States businesses cannot be satisfied 
during fiscal year 2024 with United States workers who are willing, 
qualified, and able to perform temporary nonagricultural labor, may 
increase the total number of aliens who may receive a visa under 
section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 
1101(a)(15)(H)(ii)(b)) in such fiscal year by not more than the 
highest number of H-2B nonimmigrants who participated in the H-2B 
returning worker program in any fiscal year in which returning 
workers were exempt from such numerical limitation.''
    \116\ See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983) 
(The word ``may,'' when used in a statute, usually implies some 
degree of discretion unless there is indication of contrary 
legislative intent, or an obvious contrary inference from the 
structure and purpose of the statute.).
    \117\ See Loper Bright Enterprises, 144 S. Ct. at 2263 (2024).
    \118\ Lorillard v. Pons, 434 U.S. 575, 581 (1978) (``Congress is 
presumed to be aware of an administrative or judicial interpretation 
of a statute and to adopt that interpretation when it reenacts a 
statute without change.'').
    \119\ See S. Rep. No. 118-85, at p. 104 (Jul. 27, 2023) 
(``Further, the Committee supports the Departments efforts to set 
aside visas for certain nationalities, including nationals from El 
Salvador, Guatemala, Honduras, and Haiti, regardless of whether they 
are returning workers.'').
    \120\ As previously noted, USCIS approved petitions on behalf of 
6,805 beneficiaries under the FY 2021 country-specific allocation, 
3,231 beneficiaries under the FY 2022 first half country-specific 
supplemental allocation, 12,318 beneficiaries for the second half 
country-specific allocation of the fiscal year FY 2022, and 23,832 
beneficiaries under the FY 2023 country-specific allocation. See 
DHS, USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS 
Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance 
Report September 30, 2023.
    \121\ As of October 28, 2024, USCIS approved petitions on behalf 
of 24,475 beneficiaries under the FY 2024 country-specific 
allocation. See Department of Homeland Security, U.S. Citizenship 
and Immigration Services, Office of Performance and Quality, ELIS, 
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
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    Employers requesting workers under the country-specific allocation 
with an employment start date in the first half of FY 2025 may file 
their petitions immediately after the publication of this TFR. 
Employers requesting workers under the country-specific allocation with 
an employment start date in the second half of FY 2025 must file their 
petitions no earlier than 15 days after the second half statutory cap 
is reached. The requirement to file the petition no earlier than 15 
days after the second half statutory cap is reached is consistent with 
the approach taken for the initial returning worker allocation for the 
early second half of the fiscal year, and is in line with the 
Departments' longstanding interpretation of their authority to make 
available supplemental (or in other words, additional) visas contingent 
upon the exhaustion of visas under the statutory cap.\122\
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    \122\ Pursuant to new 8 CFR 214.2(h)(6)(xv)(C)(4), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) of 
this section that have a date of need on or after April 1, 2025 and 
are received earlier than 15 days after the INA section 214(g) cap 
for the second half of FY 2025 is met.
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    As in FY 2023 and FY 2024, the Departments have decided not to 
further divide the 20,000 visas for workers from specific countries 
into separate allocations for the first and second half of the fiscal 
year. The Departments intend for this additional flexibility of 
allowing any employment start date within FY 2025 to encourage U.S. 
employers that are suffering irreparable harm or will suffer impending

[[Page 95644]]

irreparable harm to seek out workers from such countries, and, at the 
same time, increase interest among nationals of the Northern Central 
American countries, Haiti, Colombia, Ecuador, and Costa Rica seeking a 
legal pathway for temporary employment in the United States. While this 
approach could potentially result in employers with start dates in the 
first half of FY 2025 using all 20,000 visas for nationals of the 
specified countries, and consequently, employers with start dates in 
the second half of FY 2025 losing the opportunity to utilize this 
particular allocation, DHS believes that the benefits of increasing the 
flexibility of this allocation outweighs the potential risk. Moreover, 
employers with start dates in the second half of FY 2025 seeking to 
employ nationals under the country-specific allocation may request a 
visa under one of the two second half supplemental allocations which 
are available for returning workers regardless of country of 
nationality.
    In the event that USCIS does not approve sufficient petitions to 
use all 20,000 visas under the country-specific allocation by the end 
of FY 2025, DHS will not carry over the unused numbers for petition 
approvals for any other allocation. For example, any unused numbers 
would not carry over to petitions for returning workers with employment 
start dates in the second half of FY 2025. As noted above, DHS believes 
the operational burdens of calculating and administering a process to 
carry over unused visas would outweigh the benefits because of the 
potential confusion for the public and adjudicators that could result 
from having different filing cutoff dates for the different 
allocations. A process to carry over unused visas could also entail an 
additional cap allocation, additional announcements to the public, and 
potentially an additional lottery, all of which significantly increase 
operational burdens and may add further confusion to the public and 
adjudicators. Further, this single filing cutoff approach provides 
employers with incentive and more time to petition for, and bring in, 
workers from El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica to meet employer needs, consistent with the 
administration's efforts and outreach to promote and improve safety, 
security, and economic stability in these countries.
Process if Cap Allocations Are Reached
    Finally, recognizing the high demand for H-2B visas, it is 
plausible that the additional H-2B supplemental allocations provided in 
this rule will be reached prior to September 15, 2025. Specifically, 
the following scenarios may still occur:
     The 20,716 supplemental cap visas limited to returning 
workers that will be immediately available for employers with dates of 
need on or after October 1, 2024, through March 31, 2025, will be 
reached before September 15, 2025;
     The 19,000 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need 
starting on or after April 1, 2025, through May 14, 2025, will be 
reached before September 15, 2025;
     The 5,000 supplemental cap visas limited to returning 
workers that will be available for late season employers with dates of 
need on or after May 15, 2025, through September 30, 2025, will be 
reached before September 15, 2025; or
     The 20,000 supplemental cap visas limited to nationals of 
El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa 
Rica will be reached before September 15, 2025.
    Under this rule, new 8 CFR 214.2(h)(6)(xv)(D) reaffirms the 
existing processes that are in place when H-2B numerical limitations 
under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or 
(g)(10), are reached,\123\ as applicable to each of the scenarios 
described above that involve numerical limitations of the supplemental 
cap. Specifically, for each of the scenarios mentioned above, DHS will 
monitor petitions received, and make projections of the number of 
petitions necessary to achieve the projected numerical limit of 
approvals. USCIS will also notify the public of the dates that USCIS 
has received the necessary number of petitions (the ``final receipt 
dates'') for each of these scenarios. The day the public is notified 
will not control the final receipt dates. Moreover, USCIS may randomly 
select, via computer-generated selection, from among the petitions 
received on the final receipt date the remaining number of petitions 
deemed necessary to generate the numerical limit of approvals for each 
of the scenarios involving numerical limitations to the supplemental 
cap. USCIS may, but will not necessarily, conduct a lottery if: the 
20,716 supplemental cap visas limited to returning workers that will be 
immediately available for employers with dates of need on or after 
October 1, 2024, through March 31, 2025, is reached before September 
15, 2025; the 19,000 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need on or 
after April 1, 2025, through May 14, 2025, is reached before September 
15, 2025; the 5,000 supplemental cap visas limited to returning workers 
that will be available for late season employers with dates of need on 
or after May 15, 2025, through September 30, 2025, is reached before 
September 15, 2025; or the 20,000 visas limited to certain nationals is 
reached before September 15, 2025. Similar to the processes applicable 
to the H-2B semiannual statutory cap, if the final receipt date is any 
of the first 5 business days on which petitions subject to the 
applicable numerical limit may be received (in other words, if the 
numerical limit is reached on any one of the first 5 business days that 
filings can be made), USCIS will randomly apply all of the numbers 
among the petitions received on any of those 5 business days.
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    \123\ See 8 CFR 214.2(h)(8)(vii).
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C. Returning Workers

    As noted above, to address the increased and, in some cases, 
impending need for H-2B workers in this fiscal year, the Secretary of 
Homeland Security, in consultation with the Secretary of Labor, has 
determined that employers may petition for supplemental visas on behalf 
of up to 44,716 workers who were issued an H-2B visa or were otherwise 
granted H-2B status in FY 2022, 2023, or 2024. This temporal limitation 
mirrors prior fiscal years' temporal limitation in the returning worker 
definition \124\ and the temporal limitation Congress imposed in 
previous returning worker statutes.\125\ 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.\126\ DOS

[[Page 95645]]

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).\127\ Limiting the 
supplemental cap to returning workers is beneficial because these 
workers have generally followed immigration law in good faith and 
demonstrated their willingness to return home when they have completed 
their temporary labor or services or their period of authorized stay, 
which is a condition of H-2B status. The returning worker condition 
therefore provides a basis to believe that H-2B workers under this cap 
increase will again abide by the terms and conditions of their visa or 
nonimmigrant status.
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    \124\ See e.g., Exercise of Time-Limited Authority To Increase 
the Numerical Limitation for FY 2024 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 88 FR 80394 (Nov. 17, 2023) 
(defining ``returning workers'' as those who were issued H-2B visas 
or held H-2B status in fiscal years 2021, 2022, or 2023).
    \125\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A); 
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, 
tit. V, sec 565; John Warner National Defense Authorization Act for 
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, 
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public 
Law 109-13, div. B, tit. IV, sec. 402.
    \126\ The previous review of an applicant's qualifications and 
current evidence of lawful travel to the United States will 
generally lead to a shorter processing time of a renewal 
application.
    \127\ The interview waiver authority for certain H-2B applicants 
renewing visas in the same classification within 48 months of the 
prior visa's expiration has no sunset date. Currently, certain 
first-time H-2B visa applicants or certain H-2B visa applicants 
previously issued any type of visa within the last 48 months may be 
eligible for an interview waiver; the authority for these interview 
waivers is in place until further notice. See DOS, Important Update 
on Waivers of the Interview Requirement for Certain Nonimmigrant 
Visa Applicants, https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html (last updated Dec. 
21, 2023).
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    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 2025 supplemental cap was issued an H-2B visa or otherwise 
granted H-2B status in FY 2022, 2023, or 2024, 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 2022, 2023, or 2024, 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 2022, 2023, or 2024.

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 2022, 2023, or 
2024.
    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 
participating in the Safe Mobility Initiative to increase migrant 
integration in host countries and, where appropriate, facilitate access 
to lawful pathways to the United States and other countries, including 
expedited refugee processing. 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.\128\ 
For example, as part of a comprehensive program to manage irregular 
migration, Guatemala agreed to participate in the Safe Mobility 
Initiative, hosting SMOs since June 12, 2023.\129\ On June 4, 2023, the 
United States and Colombia announced the impending establishment of 
SMOs that would provide information about the wide range of existing 
services and support available for refugees and other migrants in 
Colombia, with the goal of reaching migrants on the move, or even 
before they begin irregular migration journey.\130\ The Safe Mobility 
initiative launched in Colombia on June 28, 2023, with SMOs currently 
operational in three cities. Furthermore, on June 12,

[[Page 95646]]

2023, the United States and the Government of Costa Rica launched SMOs 
in Costa Rica, in furtherance of bilateral partnership and addressing 
hemispheric challenge of irregular migration.\131\ On October 19, 2023, 
the United States and Ecuador announced their partnership in 
establishing SMOs in Ecuador.\132\ 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.\133\
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    \128\ See The White House, Joint Statement from the United 
States and Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/.
    \129\ Id.
    \130\ See United States Department of State, U.S.-Colombia Joint 
Commitment to Address the Hemispheric Challenge of Irregular 
Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/. See also The White House, Readout of Principal Deputy 
National Security Advisor Jon Finer's Meeting with Colombian Foreign 
Minister Alvaro Leyva (June 11, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/.
    \131\ See United States Department of State, U.S.-Costa Rica 
Joint Commitment to Address the Hemispheric Challenge of Irregular 
Migration (June 12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/.
    \132\ See 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/.
    \133\ See, 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-summit-americas-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.'').
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    Second, in addition to the allocation for returning workers, the 
country-specific allocation will also address the needs of certain H-2B 
employers that 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 
of El Salvador, Guatemala, and Honduras 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.\134\
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    \134\ See also National Security Council, Collaborative 
Migration Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021) (stating that ``The United States has 
strong national security, economic, and humanitarian interests in 
reducing irregular migration and promoting safe, orderly, and humane 
migration'' within North and Central America).
---------------------------------------------------------------------------

    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, 
including from Haiti.\135\
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    \135\ See, 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/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's 
commitment to support the people of Haiti'').
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    As in prior years, DOS will work with the relevant countries to 
facilitate consular interviews, if required,\136\ 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 continuing to include these 
countries is reasonable given the progressively increasing use of H-2B 
visas among the Northern Central American countries of Guatemala, 
Honduras and El Salvador, and the other three countries--Colombia, 
Costa Rica and Ecuador--added to this allocation in fiscal year 2024. 
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 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,\137\ 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 17 days in 
Guatemala, and 24 days to 8 days in Honduras.\138\ USAID's programs 
also strengthen worker protections by helping crowd out unethical 
recruiters and providing labor rights education and resources to 
seasonal workers.
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    \136\ As noted previously, some consular officers may waive the 
in-person interview requirement for H-2B applicants whose prior visa 
expired within a specific timeframe and who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h). The authority allowing for waiver of interview of certain 
H-2 (temporary agricultural and non-agricultural workers) applicants 
is in place until further notice and is reviewed annually. 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 Update on Waivers of the Interview 
Requirement for Certain Nonimmigrant Visa Applicants, https://travel.state.gov/content/travel/en/News/visas-news/important-update-on-waivers-of-the-interview-requirement-for-certaing-nonimmigrant-visa-applicants.html (last updated Dec. 21, 2023).
    \137\ 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/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.
    \138\ See USAID, H-2 Visa Opportunities in Guatemala, Honduras, 
and El Salvador, https://www.usaid.gov/sites/default/files/2024-06/USAID%20H-2%20Fact%20Sheet%20%283_7_24%29.pdf (Mar. 7, 2024).
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    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.\139\ 
In FY

[[Page 95647]]

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.\140\ In FY 
2022, DOS issued a combined total of 15,058 H-2B visas to nationals of 
Haiti and the Northern Central American countries.\141\ In FY 2023, DOS 
issued a combined total of 23,816 H-2B visas to nationals of Haiti and 
the Northern Central American countries.\142\ 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 H-2B 
programs.\143\ In FY 2024, DOS issued a combined total of 17,879 H-2B 
supplemental visas to nationals of Haiti, the North Central American 
countries, and Colombia, Ecuador, and Costa Rica.\144\ Therefore, as 
previously stated, DHS has determined that the additional increase in 
FY 2025 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.
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    \139\ The ``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/visa-statistics/nonimmigrant-visa-statistics.html.
    \140\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, DOS Issuance Data, queried 10/2022, TRK #10698.
    \141\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, DOS Issuance Data, queried 10/2022, TRK #10698.
    \142\ 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.
    \143\ See Identification of Foreign Countries Whose Nationals 
Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker 
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
    \144\ See DHS, USCIS, Office of Performance and Quality, ELIS, 
CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2024, PAER0016221.
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    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,\145\ 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.
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    \145\ 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).
---------------------------------------------------------------------------

    USCIS will stop accepting petitions received under the country-
specific allocation after September 15, 2025. 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 2025 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.\146\ 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 of the types of documentary evidence it 
selected in the attestation form that support 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,\147\ 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.\148\
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    \146\ An employer may request fewer workers on the H-2B petition 
than the number of workers listed on the TLC. See Instructions for 
Petition for Nonimmigrant Worker, providing that ``The total number 
of workers you request on an H-2B petition must not exceed the 
number of workers approved by the Department of Labor on the 
temporary labor certification.''
    \147\ Since July 26, 2019, USCIS has been accepting a printed 
copy of the electronic one-page ETA-9142B, Final Determination: H-2B 
Temporary Labor Certification Approval, as an original, approved 
TLC. See Notice of DHS's Requirement of the Temporary Labor 
Certification Final Determination Under the H-2B Temporary Worker 
Program, 85 FR 13178, 13179 (Mar. 6, 2020).
    \148\ The attestation requirement does not apply to workers who 
have already been counted under the H-2B statutory caps for fiscal 
year 2025. Further, the attestation requirement does not apply to 
noncitizens who are exempt from the fiscal year 2025 H-2B statutory 
cap, including those who are extending their stay in H-2B status. 
Accordingly, petitioners that are filing only on behalf of such 
workers are not subject to the attestation requirement.
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    The irreparable harm standard is the same as in the temporary final 
rule for recent years. 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

[[Page 95648]]

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.\149\ 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, as in prior years, the Departments 
think, as a policy matter, that it is reasonable to require 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. This requirement falls within the broad discretion 
Congress gave to the Secretary to, in consultation with the Secretary 
of Labor, increase the number of H-2B workers in order to meet the 
needs of American businesses.\150\ As discussed in the Legal Framework 
section as well as in the section addressing the country-specific 
allocation, DHS has broad delegation to administer and enforce U.S. 
immigration laws and issue regulations regarding the same, as well as 
broad discretion to establish conditions on the admission of 
nonimmigrants, and over the adjudication of nonimmigrant petitions, 
after consultation with other agencies, including DOL. See INA sec. 
103(a)(1), 214(a)(1), (c)(1); 8 U.S.C. 1103(a)(1), 1184(a)(1), (c)(1). 
In addition, through the temporary enactment authorizing the Secretary 
of DHS to increase the number of H-2B visas,\151\ Congress delegated to 
the Secretary of DHS, after consultation with the Secretary of Labor, 
the discretion to establish a framework for determining that the needs 
of American businesses cannot be satisfied with the existing workforce 
and the conditions under which to authorize additional visas to further 
the purpose of the enactment. In the most recent, as well as each prior 
annual enactment,\152\ Congress has consistently used the word ``may'' 
when describing the Secretary's authority, and the use of the word 
``may'' indicates a grant of discretion, absent contrary legislative 
intent, structure and purpose of the statute.\153\ As in prior years, 
the Departments have determined that the irreparable harm standard 
falls within the discretionary authority of the Secretary of DHS and 
furthers the legislative purpose behind the temporary enactment by 
making visas available to those American businesses that are most 
likely to be severely impacted by a lack of an able, willing, and 
qualified workforce.
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    \149\ See section 105 of Pub. L. 118-47, as extended by Public 
Law 118-83.
    \150\ See Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 
2263 (2024).
    \151\ Public Law 118-47, Division G, Title I, sec. 105, states: 
``Notwithstanding the numerical limitation set forth in section 
214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 
1184(g)(1)(B)), the Secretary of Homeland Security, after 
consultation with the Secretary of Labor, and upon the determination 
that the needs of United States businesses cannot be satisfied 
during fiscal year 2024 with United States workers who are willing, 
qualified, and able to perform temporary nonagricultural labor, may 
increase the total number of aliens who may receive a visa under 
section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 
1101(a)(15)(H)(ii)(b)) in such fiscal year by not more than the 
highest number of H-2B nonimmigrants who participated in the H-2B 
returning worker program in any fiscal year in which returning 
workers were exempt from such numerical limitation.''
    \152\ Lorillard v. Pons, 434 U.S. 575, 581 (1978). (``Congress 
is presumed to be aware of an administrative or judicial 
interpretation of a statute and to adopt that interpretation when it 
reenacts a statute without change.'').
    \153\ See generally U.S. v. Rodgers, 461 U.S. 677, 706 (1983) 
(The word ``may,'' when used in a statute, usually implies some 
degree of discretion unless there is indication of contrary 
legislative intent, or an obvious inference from the structure and 
purpose of the statute.).
---------------------------------------------------------------------------

    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 selected in the 
attestation form and 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.
    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

[[Page 95649]]

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 executed 
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 2022, 2023, and 2024) 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. It has been 
DOL's experience when reviewing documentation submitted to establish 
irreparable harm that employers commonly provide unexecuted contracts 
or letters of intent; contracts with redacted financial terms or dates 
of performance; or written statements memorializing verbal agreements 
that are not signed by all parties and thus may be insufficient 
evidence of the terms of such agreements and may call into question 
their credibility. In addition, DOL has encountered contracts among 
related entities that are owned, operated, or otherwise controlled by 
the employer or an individual with ownership interest in the employer. 
Such contracts may lack credibility as evidence of irreparable harm 
because the employer and related parties may share the same interest in 
obtaining H-2B workers even in situations where the employer is not 
suffering irreparable harm or will not suffer impending irreparable 
harm. In those instances, DOL may request that an employer provide 
additional credible evidence to demonstrate that it has met the legal 
standard. In other situations, the only documentation offered by the 
employer is a declaration, without any supporting documentary evidence. 
Given that the employer must establish 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, an 
employer's irreparable harm cannot be properly assessed without 
evidence of its financial business needs. As such, DOL is clarifying 
that merely asserting irreparable harm, or providing documentation that 
lacks sufficient facts or indicia of validity (e.g., signatures) for 
DOL to determine that the employer was suffering or would suffer 
impending irreparable harm without the ability to employ all of the H-
2B workers requested under the supplemental cap at the time of filing 
their petition, will be insufficient to make an irreparable harm 
determination. In such instances where the evidence is insufficient or 
the petitioner merely submits a declaration without supporting 
documentation, DOL may require the employer to provide additional 
credible evidence. This is because mere assertions or the absence of 
key financial terms or dates of performance in a contract due to 
redaction, for example, hinder the Department's ability to evaluate 
whether the employer was in fact suffering irreparable harm or would 
have suffered impending irreparable harm without the ability to employ 
all of the H-2B workers it requested for a given period. Factors that 
can demonstrate the credibility of a contract or similar commitment or 
obligation may include evidence of an agreement, preferably in writing, 
that includes the financial terms, dates of performance, and evidence 
it was signed and/or agreed upon before the petition was filed.
    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 and that it will keep it as part of its records, to 
be provided to the Departments, upon request.
    As the burden rests with the petitioner to prove eligibility for 
supplemental H-2B visas under the time-limited authority implemented 
with this temporary final rule by a preponderance of the evidence, it 
is the petitioner's burden to establish that it meets the irreparable 
harm standard. INA sec. 291, 8 U.S.C. 1361; Matter of Chawathe, 25 I&N 
Dec. 369, 375-76 (AAO 2010). The attestation form will serve as prima 
facie initial evidence to DHS that the petitioner's business is

[[Page 95650]]

suffering irreparable harm or will suffer impending irreparable harm. 
USCIS will reject in accordance with 8 CFR 103.2(a)(7)(ii) or may deny 
in accordance with 8 CFR 103.2(b)(8)(ii), as applicable, any petition 
requesting H-2B workers under this FY 2025 supplemental cap that is 
lacking the requisite attestation form. Although this rule does not 
require submission of the evidence selected in the attestation and/or a 
detailed written statement at the time of filing of the petition, other 
than an attestation, the employer must have the evidence selected in 
the attestation 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 supplemental TFRs in recent 
years, 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 willful violation resulting 
in an adverse agency action on the employer, including revocation of 
the 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)(xv)(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 country-specific 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 from the date of certification. See 20 CFR 
655.68. 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 post-adjudication compliance reviews on a 
significant number of H-2B petitions. As part of that process, USCIS 
may issue a request for additional evidence, a notice of intent to 
revoke, or a revocation notice, based on the review of such 
documentation, see 8 CFR 103.2(b) and 8 CFR 214.2(h)(11), and DOL's 
OFLC and WHD will be able to review this documentation and enforce the 
attestations during the course of an audit examination or 
investigation.
    In accordance with the attestation requirements, under which 
petitioners attest that they meet the irreparable harm standard, that 
they are seeking to employ only returning workers (unless exempt as 
described above), and that they meet the document retention 
requirements at 20 CFR 655.68, 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. 
As mentioned above, the employer bears the burden of establishing that 
they are suffering or will suffer impending irreparable harm. 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

[[Page 95651]]

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 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.\154\
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    \154\ Pursuant to the statutory provisions governing enforcement 
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a 
violation exists for purposes of DOL enforcement actions in 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.
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    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 
Aug. 20, 2024). In addition, if members of the public have information 
that a participating employer may be abusing this program, DHS invites 
them to notify U.S. Immigration and Customs Enforcement (ICE) by 
completing the online ICE Tip Form, https://www.ice.gov/webform/ice-tip-form (last visited Aug. 20, 2024), or alternately, via the toll-
free ICE Tip Line, (866) 347-2423.\155\
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    \155\ 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.
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    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 105 
of the FY 2024 Omnibus, as extended by Public Law 118-83, 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 will, as applicable, 
reject the petition in accordance with 8 CFR 103.2(a)(7)(ii) or may 
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 2024 Omnibus, as extended by Public Law 118-83, 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.\156\ 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 655.68, to cease operation in the relevant jurisdiction, without 
prejudice to workers already present in the United States under this 
regulation, as consistent with law.
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    \156\ The 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.
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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, 2025,\157\ but no 
later than 1 year after that date.\158\ 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, 2025 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

[[Page 95652]]

greater certainty for H-2B employers and workers.\159\
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    \157\ This rule uses January 25, 2025 as the starting date 
because the similar provision in the FY 2024 TFR expires January 24, 
2025. As January 25, 2025 is a Saturday, however, the earliest a 
petition might be received after the expiration of 8 CFR 
214.2(h)(31) is January 27, 2025. See 8 CFR 1.2 (definition of day) 
(explaining that when the last day of a period computed falls on a 
Saturday, Sunday, or a legal holiday, the period shall run until the 
end of the next day which is not a Saturday, Sunday, or legal 
holiday).
    \158\ 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)(32).
    \159\ On September 20, 2023, DHS issued Modernizing H-2 Program 
Requirements, Oversight, and Worker Protections, Notice of Proposed 
Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to 
extend portability to H-2A and H-2B workers on a permanent basis. 
The Department's proposal does not interfere with the portability 
provision of this rule, however, should DHS publish a final rule 
making H-2 portability permanent, any such provision will not expire 
on a specific date, unlike the portability provision made effective 
by this temporary final rule.
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    The portability provision at new 8 CFR 214.2(h)(32) is 
substantively the same as the portability provision offered in the FY 
2023 and FY 2024 H-2B supplemental visa temporary final rules, which 
were codified at 8 CFR 214.2(h)(29) and (h)(31), respectively, and will 
begin upon the expiration of 8 CFR 214.2(h)(31). See new 8 CFR 
214.2(h)(32). Additionally, the provision is similar to temporary 
flexibilities that DHS has used previously to improve employer access 
to noncitizen workers during the COVID-19 pandemic.\160\
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    \160\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2021 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers 86 FR 28198 (May 25, 2021). 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).
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    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.\161\
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    \161\ A 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).
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    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 (Public Law 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.\162\ 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.\163\ 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.
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    \162\ The Joint Explanatory Statement accompanying the Fiscal 
Year (FY) 2020 Department of Homeland Security (DHS) Further 
Consolidated Appropriations Act (Public Law 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.''
    \163\ The 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.
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G. 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 current filing 
location in accordance with applicable regulations and form 
instructions, along with an unexpired TLC and the attestation Form ETA-
9142-B-CAA-9. Petitions filed for supplemental allocations under this 
rule at any location other than the current filing location will be 
rejected and the filing fees will be returned. 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, 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

[[Page 95653]]

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 previously-filed 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. In addition, the USCIS Fee Schedule 
Final Rule, 89 FR 6194 (January 31, 2024), which took effect on April 
1, 2024, imposed a limit of 25 named beneficiaries per petition.\164\
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    \164\ See 8 CFR 214.2(h)(2)(ii).
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    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)(xv). In this regard, a 
petition must be filed with a single Form ETA-9142-B-CAA-9 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-9, 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-9, 
Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers 
Under Section 105 of Division G, Title I of the Further Consolidated 
Appropriations Act, 2024, Public Law 118-47, as extended by sections 
101(6) and 106 of Division A, Title I of the Continuing Appropriations 
and Extensions Act, 2025, Public Law 118-83. 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 
655.68. Petitions submitted to DHS pursuant to Public Law 118-83, which 
extended the FY 2024 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).
    USCIS will reject petitions filed under the supplemental 
allocations in this rule at any location other than the current filing 
location 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, 2025, as well 
as H-2B petitions for workers under the country-specific allocation 
with dates of need in the first half of FY 2025. 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, 2025, through May 14, 2025, as well as H-2B 
petitions for workers under the country-specific allocation with dates 
of need on or after April 1, 2025, through September 30, 2025. 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, 2025.
    USCIS will reject any returning worker petition that is received 
after September 15, 2025, 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 15, 2025. See new 8 CFR 
214.2(h)(6)(xv)(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 sections 
101(6) and 106 of Division A, Title I of the Continuing Appropriations 
and Extensions Act, 2025, Public Law 118-83, on the same terms as 
section 105 of the FY 2024 Omnibus, DHS is notifying the public that 
USCIS cannot approve petitions seeking H-2B workers under this rule on 
or after October 1, 2025. See new 8 CFR 214.2(h)(6)(xv)(C). Petitions 
pending with USCIS that are not approved before October 1, 2025 will be 
denied and any fees will not be refunded. See new 8 CFR 
214.2(h)(6)(xv)(C).

H. 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 non-emergency 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

[[Page 95654]]

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)(xv), 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, 2024, for 
example, likely conducted their positive recruitment beginning around 
late-July and ending around mid-August 2024 and continued to consider 
U.S. worker applicants and referrals only until September 10, 2024.
    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, 
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 and FY 2024 H-2B 
supplemental cap TFRs based on the rationale provided in the FY 2022 
second half H-2B supplemental cap TFR. See 87 FR 76816, 76842-76843; 88 
FR 80394, 80426. 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)(xv) 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-
9 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.
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 [email protected], and including the words ``H-2B TFR 2025 
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

[[Page 95655]]

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 One-Stop 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 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,\165\ employers should

[[Page 95656]]

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.\166\ 
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 [email protected], 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.
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    \165\ The 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 September 20, 2024). 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-wilmington-trust-and-bny-mellon-expand-retirement-planning-options (last visited September 20, 2024) (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.
    \166\ These 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 service-related 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. 
23, 2024), https://www.bls.gov/news.release/archives/union2_01232024.pdf.
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    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 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, 2023 until the date the I-129 petition 
required under 8 CFR 214.2(h)(6)(xv) is submitted. Among the employees 
the employer must contact are those who have been furloughed \167\ 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

[[Page 95657]]

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.
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    \167\ Furloughed 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.
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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 2024 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 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 2024 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.\168\ 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

[[Page 95658]]

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.
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    \168\ The U.S. Chamber of Commerce reports that 71% of small 
businesses have a website. See U.S. Chamber of Commerce, Small 
Business Statistics, available at https://www.chamberofcommerce.org/small-business-statistics/#marketing-statistics (accessed September 
27, 2024).
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    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 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 655.68, employers must 
retain documentation that demonstrates placement of a new job order 
with the SWA, contact with AJCs, contact with

[[Page 95659]]

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 655.68, 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 ([email protected]). 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 655.68, 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 with the employer, touring the 
worksite, conducting confidential interviews with employees, reviewing 
records (including those required by 20 CFR 655.68 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.

[[Page 95660]]

    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, 214, and 235(d) 
(8 U.S.C. 1103, 1184, and 1225(d)); 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. USCIS will also review information received from 
individuals who suspect H-2B benefit fraud and abuse and reported their 
suspicions via the ICE Tip Form, available online at https://www.ice.gov/webform/ice-tip-form (last visited July 29, 2024) or via 
the toll-free ICE Tip Line, (866) 347-2423. 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 non-compliance 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-9, 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)(xv), 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-9 to be an appendix to the Application for Temporary 
Employment Certification and the attestations contained on the Form 
ETA-9142B-CAA-9 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-9 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-9 
with DOL, consistent with existing authorities. This information 
sharing between DHS and DOL, along with relevant information that may 
be obtained from the SWA and WHD, 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 intends to 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 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).
    DOL relies on the employer to adhere to the H-2B regulations and 
fulfill its attestations as a condition of receiving a temporary labor 
certification, including attestations to fully cooperate with any 
audit, investigation, compliance review, evaluation, verification or 
inspection conducted by DOL. 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. Specifically, when an employer fails to respond to Departmental 
correspondence issued under 20 CFR 655.70 it may be considered to have 
failed to comply with the audit process or impeded the audit under 20 
CFR 655.73. 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

[[Page 95661]]

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 655.68, 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.,\169\ and limits eligibility for H-2B supplemental 
visas to only those businesses most in need, and also protects H-2B and 
U.S. workers.
---------------------------------------------------------------------------

    \169\ Because 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, 2025. 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, 2026.
---------------------------------------------------------------------------

    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 105 of the FY 2024 Omnibus by sections 101(6) and 
106 Division A, Title I of Public Law 118-83 (Sept. 26, 2024) to FY 
2025. The deadline for exercising the FY 2025 supplemental cap 
authority under the Continuing Appropriations and Extensions Act, 2025, 
is December 20, 2024 the date on which the FY 2025 continuing 
resolution expires. This timing concern is critical since the 
Departments are bypassing advance notice and comment in order to 
urgently address increased labor demand.\170\ 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 received 
more than enough petitions to meet the H-2B visa statutory cap for the 
first half of FY 2025 on September 18, 2024.\171\ 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 
2025; last year on March 7, 2024, USCIS received sufficient petitions 
to meet the H-2B visa statutory cap for the second half of FY 
2024.\172\ 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 105, Public 
Law 118-47 as extended to FY 2025 by secs. 101(6) and 106 of Public Law 
118-83. If the Departments are precluded from exercising this 
authority, substantial economic harm will result for the reasons stated 
above.
---------------------------------------------------------------------------

    \170\ See Lydia DePillis, Immigration Rebound Eases Shortage of 
Workers, Up to a Point, The NY Times, https://www.nytimes.com/2023/02/06/business/economy/immigration-labor.html (Feb. 6, 2023), (``The 
path of immigration policy will have a substantial bearing on the 
nation's supply of workers, which has been expanding more slowly as 
native-born workers have fewer children.'').
    \171\ See USCIS, USCIS Reaches H-2B Cap for First Half of Fiscal 
Year 2025, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fiscal-year-2025 (Sept. 19, 2024).
    \172\ See USCIS, USCIS Reaches H-2B Cap for Second Half of FY 
2024 and Announces Filing Dates for the Second Half of FY 2024 
Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of (Mar. 8, 2024).
---------------------------------------------------------------------------

    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

[[Page 95662]]

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 the FY 2023 nearly identical TFR, and discussed those 
comments in detail in the preamble of the FY 2024 TFR. 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.\173\
---------------------------------------------------------------------------

    \173\ On September 20, 2023, DHS issued Modernizing H-2 Program 
Requirements, Oversight, and Worker Protections, Notice of Proposed 
Rulemaking (NPRM), 88 FR 65040, 65066. In that NPRM, DHS proposed to 
extend portability to H-2A and H-2B workers on a permanent basis.
---------------------------------------------------------------------------

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.
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 2025. In accordance with the FY 2025 continuing 
resolution extending the authority provided in section 105 of the FY 
2024 Omnibus, DHS is allocating the supplemental visas in the following 
manner:

                Table 1--Allocation of Supplemental Visas
------------------------------------------------------------------------
                                                             Number of
                       Supplement                              visas
------------------------------------------------------------------------
FY25 First Half Returning Worker Allocation.............          20,716
FY25 Second Half Returning Worker Allocation............          19,000
FY25 Second Half Returning Worker Allocation #2--(Late             5,000
 season Filers).........................................
FY25 Country-specific Allocation (available whole FY)...          20,000
FY25 Total Supplemental Visas...........................          64,716
------------------------------------------------------------------------

    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 2025; (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 2022, 2023, or 2024, 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 country-specific 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 2025.
    The estimated total costs to petitioners range from $8,798,321 to 
$11,964,750. The estimated total cost to the Federal Government is 
$270,960. Therefore, DHS estimates that the total cost of this rule 
ranges from $9,069,281 to $12,235,710. Total transfers from filing fees 
made by petitioners to the Government are $12,088,515. 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

[[Page 95663]]

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 country-specific 
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.

                          Table 2--Summary of the TFR's Provisions and Economic Impact
----------------------------------------------------------------------------------------------------------------
                                        Changes resulting from                             Expected benefits of
          Current provision             the provisions of the    Expected costs of the    the provisions of the
                                                 TFR             provisions of the TFR             TFR
----------------------------------------------------------------------------------------------------------------
--The current statutory cap limits H-  --The amended            --The total estimated    --Form I-129
 2B visa allocations to 66,000          provisions will allow    opportunity cost of      petitioners would be
 workers a year.                        for an additional        time to file Form I-     able to hire temporary
                                        64,716 H-2B temporary    129 (Petition for a      workers needed to
                                        workers. Up to 20,000    Nonimmigrant Worker)     prevent their
                                        of the 64,716            by human resource        businesses from
                                        additional visas will    specialists is           suffering irreparable
                                        be reserved for          approximately            harm.
                                        workers who are          $552,801. The total     --Businesses that are
                                        nationals of the         estimated opportunity    dependent on the
                                        countries included in    cost of time to file     success of other
                                        the country-specific     Form I-129 and Form G-   businesses that are
                                        allocation and will be   28 will range from       dependent on H-2B
                                        exempt from the          approximately            workers would be
                                        returning worker         $1,383,848 if filed by   protected from the
                                        requirement.             in-house lawyers to      repercussions of local
                                                                 approximately            business failures.
                                                                 $2,385,900 if filed by  --Some American workers
                                                                 outsourced lawyers.      may benefit to the
                                                                 The total estimated      extent that they do
                                                                 opportunity cost of      not lose jobs through
                                                                 time associated with     the reduced or closed
                                                                 filing additional        business activity that
                                                                 petitions ranges from    might occur if
                                                                 $1,936,649 to            additional H-2B
                                                                 $2,938,701 depending     workers were not
                                                                 on the filer.            available.
                                                                                         --Additional
                                                                                          recruitment activities
                                                                                          may result in some
                                                                                          U.S. workers being
                                                                                          hired.
                                                                --The total estimated
                                                                 opportunity cost of
                                                                 time associated with
                                                                 filing Form I-907
                                                                 (Request for Premium
                                                                 Processing Service) if
                                                                 it is filed with Form
                                                                 I-129 is $40,908 if
                                                                 filed by human
                                                                 resource specialists.
                                                                 The total estimated
                                                                 costs associated with
                                                                 filing Form I-907
                                                                 would range from
                                                                 approximately $86,625
                                                                 if filed by an in-
                                                                 house lawyer to
                                                                 approximately $149,347
                                                                 if filed by an
                                                                 outsourced lawyer. The
                                                                 total estimated
                                                                 opportunity cost of
                                                                 time associated with
                                                                 requesting premium
                                                                 processing ranges from
                                                                 approximately $127,533
                                                                 to approximately
                                                                 $190,255.
                                                                --The total estimated
                                                                 costs of this
                                                                 provision to
                                                                 petitioners range from
                                                                 $2,064,183 to
                                                                 $3,128,957, depending
                                                                 on the filer.
n/a..................................  --Petitioners will be    --The estimated cost     --An approved Form ETA-
                                        required to fill out     for late season          9142B is required
                                        Form ETA-9142B in        petitioners to file      before filing a Form I-
                                        order to utilize the     Form ETA-9142B ranges    129 to request H-2B
                                        5,000 late season H-2B   from $63,347 to          workers.
                                        visas allocated under    $94,469 depending on
                                        the rule.                the filer.
n/a..................................  --Petitioners will be    --The total estimated    --Form ETA-9142-B-CAA-9
                                        required to fill out     cost to petitioners to   will serve as initial
                                        the newly created Form   complete and file Form   evidence to DHS that
                                        ETA-9142-B-CAA-9,        ETA-9142-B-CAA-9 is      the petitioner meets
                                        Attestation for          approximately            the irreparable harm
                                        Employers Seeking to     $1,992,995.              standard and returning
                                        Employ H-2B                                       worker requirements.
                                        Nonimmigrant Workers
                                        Under Section 105 of
                                        Division G, Title I of
                                        the Further
                                        Consolidated
                                        Appropriations Act,
                                        2024, Public Law 118-
                                        47, as extended by
                                        sections 101(6) and
                                        106 of Division A,
                                        Title I of the
                                        Continuing
                                        Appropriations and
                                        Extensions Act, 2025,
                                        Public Law 118-83.

[[Page 95664]]

 
n/a..................................  --Certain Petitioners    --The total estimated    --The additional round
                                        will be required to      cost to petitioners to   of recruitment will
                                        conduct an additional    conduct an additional    ensure that a U.S.
                                        round of recruitment.    round of recruitment     worker who is willing
                                                                 is approximately         and able to fill the
                                                                 $296,968.                position is not
                                                                                          replaced by a
                                                                                          nonimmigrant worker.
                                                                                          Furthermore,
                                                                                          additional recruitment
                                                                                          activities may result
                                                                                          in some U.S. workers
                                                                                          being hired.
Temporary Portability................  --An H-2B nonimmigrant   --The total estimated    --H-2B workers present
                                        who is physically        opportunity cost of      in the United States
                                        present in the United    time to file Form I-     will be able to port
                                        States may port to       129 by human resource    to another employer
                                        another employer.        specialists is           and potentially extend
                                                                 approximately $45,462.   their stay and,
                                                                 The total estimated      therefore, earn
                                                                 opportunity cost of      additional wages.
                                                                 time to file Form I-    --An H-2B worker with
                                                                 129 and Form G-28 will   an employer that is
                                                                 range from               not complying with H-
                                                                 approximately $113,387   2B program
                                                                 if filed by in-house     requirements would
                                                                 lawyers to               have additional
                                                                 approximately $195,491   flexibility in porting
                                                                 if filed by outsourced   to another employer's
                                                                 lawyers.                 certified position.
                                                                --The total estimated    --This provision would
                                                                 costs associated with    ensure employers will
                                                                 filing Form I-907 if     be able to hire the H-
                                                                 it is filed with Form    2B workers they need.
                                                                 I-129 is $3,355 if
                                                                 filed by human
                                                                 resource specialists.
                                                                 The total estimated
                                                                 costs associated with
                                                                 filing Form I-907
                                                                 would range from
                                                                 approximately $7,101
                                                                 if filed by an in-
                                                                 house lawyer to
                                                                 approximately $12,243
                                                                 if filed by an
                                                                 outsourced lawyer.
                                                                --The total estimated
                                                                 costs associated with
                                                                 the portability
                                                                 provision ranges from
                                                                 $169,305 to $256,551,
                                                                 depending on the filer.
                                                                --DHS may incur some
                                                                 additional
                                                                 adjudication costs as
                                                                 more petitioners file
                                                                 Form I-129. However,
                                                                 these additional costs
                                                                 to USCIS 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 to  --Employers will have    --DOL and DHS audits
                                        conduct several audits   to comply with audits    will yield evidence of
                                        during the period of     for an estimated total   the efficacy of
                                        temporary need to        opportunity cost of      attestations in
                                        verify compliance with   time of $159,090.        enforcing compliance
                                        H-2B program            --It is expected both     with H-2B supplemental
                                        requirements,            DHS and DOL will be      cap requirements.
                                        including the            able to shift           --Conducting a
                                        irreparable harm         resources to be able     significant number of
                                        standard as well as      to conduct these         audits will discourage
                                        other key worker         audits without           uncorroborated
                                        protection provisions    incurring additional     attestations.
                                        implemented through      costs. However, the     --Conducting a
                                        this rule.               Departments will incur   significant number of
                                                                 opportunity costs of     audits will ensure
                                                                 time. The audits are     that increasing the
                                                                 expected to take a       number of H-2B
                                                                 total of approximately   employers through the
                                                                 3,000 hours and cost     supplemental cap does
                                                                 approximately $270,960.  not undermine the
                                                                                          integrity of the H-2B
                                                                                          program.
Additional Scrutiny..................  --Some petitioners will  --Some employers will    --Additional scrutiny
                                        provide additional       need to print and ship   of employers with past
                                        evidence.                additional evidence to   H-2B program
                                                                 USCIS. Opportunity       violations are aimed
                                                                 costs of time            at ensuring compliance
                                                                 associated with          with program
                                                                 compiling such           requirements, reducing
                                                                 evidence are             harms to both U.S.
                                                                 unavailable due to the   workers and H-2B
                                                                 unique fact pattern in   workers.
                                                                 each instance and a
                                                                 lack of data regarding
                                                                 the time to comply.
                                                                 The estimated cost to
                                                                 submit additional
                                                                 evidentiary
                                                                 requirements is
                                                                 $20,740.
Familiarization Cost.................  --Petitioners or their   --Petitioners or their   --Petitioners will have
                                        representatives will     representatives will     the necessary
                                        familiarize themselves   need to read and         information to take
                                        with the rule.           understand the rule at   advantage of and
                                                                 an estimated total       comply with the
                                                                 opportunity cost of      provisions of this
                                                                 time that ranges from    rule.
                                                                 $4,031,694 to
                                                                 $6,014,981.

[[Page 95665]]

 
Total Costs..........................  .......................  Total cost of the rule
                                                                 to petitioners ranges
                                                                 from $8,798,321 to
                                                                 $11,964,750 depending
                                                                 on the filer. Total
                                                                 costs of the rule to
                                                                 government are
                                                                 $270,960. Total costs
                                                                 of the rule range from
                                                                 $9,069,281 to
                                                                 $12,235,710.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.

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.\174\ 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).\175\ 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.\176\ 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.
---------------------------------------------------------------------------

    \174\ Revised 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).
    \175\ See 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).
    \176\ A 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).
---------------------------------------------------------------------------

    On September 25, 2024, the President signed the Continuing 
Appropriations and Extensions Act, 2025. Sections 101(6) and 106 
reauthorize section 105 of Div. G, Title I of the Further Consolidated 
Appropriations Act, 2024, 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 2025. The total supplemental allocation 
will be divided into four separate allocations: one for the first half 
of FY 2025, two for the second half of FY 2025 (a first one for 
employment from April 1 through May 14, 2025, and a second one for 
those with start dates on or after May 15, 2025), 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.
    This TFR will cover the entirety of FY 2025. While the Departments 
cannot predict with certainty what labor market conditions will be 
during the second half of FY 2025, 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 2025 
indicate a continuation of labor market tightness from a historical 
perspective.\177\
---------------------------------------------------------------------------

    \177\ September 2023 Federal Open Market Committee (FOMC) 
projections for unemployment rate in 2024 ranged from 4.2 to 4.5% 
with central tendency more tightly clustered between 4.3 and 4.4%. 
See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20240918.htm (last accessed Sept. 25, 2024).

                                     Table 3--DOL Certified Worker Demand *
----------------------------------------------------------------------------------------------------------------
                                                                                                   DOL certified
                                                                                   Number of DOL   workers with
                                                                     Number of       certified       requested
                           Fiscal year                            certifications      workers       start dates
                                                                                     requested      April 1 or
                                                                                                       later
----------------------------------------------------------------------------------------------------------------
2020............................................................           5,903         115,116          88,466
2021............................................................           7,772         159,081         100,522
2022............................................................          10,674         205,037         127,654
2023............................................................          12,126         220,552         128,115
2024............................................................          13,143         227,226         127,324
----------------------------------------------------------------------------------------------------------------
    5-year Average **...........................................           9,924         185,402         114,416
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note:

[[Page 95666]]

 
* 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. Data
  for FY 2024 include data through the end of quarter 3.
** Averages are rounded to the nearest whole number.

    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, which demonstrates that, in aggregate, 
sufficient demand exists for the entire supplementary allocation that 
the Departments are making available. To that end, the 5-year average 
of workers requested on certified TLCs, 185,402, 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 114,416 employees with start dates on April 1 or later, 
which would completely exhaust the 24,000 total supplemental H-2B 
visas178 explicitly set aside for workers with employment start dates 
in the second half of FY 2025. Given these conditions, the Departments 
believe that the decision to authorize a second half supplement is 
reasonable.
    For 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 2022, 2023, or 
2024. 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, 2024, 
and March 31, 2025. 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, 2025, and May 14, 2025. 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, 2025, and September 30, 2025. 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 starting on or after May 15 
specifically for those petitioners with employment needs is in response 
to trends in TLC data and conclusions gleaned from the two years that a 
late season filer allocation has been available to petitioners with 
late season employment needs. 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.\179\ 
Table 4 and Table 5 demonstrate that the 5-year average for these 
values has moved away from April start dates after the implementation 
of a late season filer allocation. The decrease in the relative 
prevalence of April 1 start dates since the implementation of a late 
season filer allocation supports the rationale for providing such an 
allocation in response to concerns that, absent such an allocation, 
employers with late season employment needs could be effectively shut 
out of the H-2B program. Under DOL regulations, employers must apply 
for a TLC 75 to 90 days before the start date of work.\180\ 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.\181\ 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 a subset of petitioners who would 
employ 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.
---------------------------------------------------------------------------

    \179\ See Table 4 and Table 5, https://www.federalregister.gov/documents/2022/12/15/2022-27236/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-fy-2023-for-the-h-2b 
(accessed September 20, 2024).
    \180\ See 20 CFR 655.15(b).
    \181\ See USCIS, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2024, for example (accessed October 25, 2024).
---------------------------------------------------------------------------

    Using OFLC TLC data, Table 4 illustrates that relative to previous 
fiscal years that did not include a late-season filer allocation, 
requested H-2B employment start dates have become less concentrated in 
April.\182\
---------------------------------------------------------------------------

    \182\ Tables 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.

                           Table 4--DOL Certified Worker Demand for April Start Dates
----------------------------------------------------------------------------------------------------------------
                                                                                                   Percentage of
                                                                                   DOL certified   DOL certified
                                                                   Certified DOL   workers with    workers with
                           Fiscal year                                workers        requested       requested
                                                                     requested    start dates in  start dates in
                                                                                       April           April
----------------------------------------------------------------------------------------------------------------
2020............................................................         115,116          82,757           71.89
2021............................................................         159,081          94,656           59.50
2022............................................................         205,037         118,381           57.74
2023............................................................         220,552         112,639           51.07

[[Page 95667]]

 
2024............................................................         227,226         113,760           50.06
----------------------------------------------------------------------------------------------------------------


                         Table 5--DOL Certified Worker Demand for Post-April Start Dates
----------------------------------------------------------------------------------------------------------------
                                                                                               Percentage of DOL
                                                                              DOL certified    certified workers
                      Fiscal year                          Certified DOL       workers with      with requested
                                                         workers requested   requested start   start dates after
                                                                            dates after April        April
----------------------------------------------------------------------------------------------------------------
2020...................................................            115,116              5,709               4.96
2021...................................................            159,081              5,866               3.69
2022...................................................            205,037              9,273               4.52
2023...................................................            220,552             15,476               7.02
2024...................................................            227,226             13,564               5.97
----------------------------------------------------------------------------------------------------------------

    As part of the FY 2023 and FY 2024 H-2B TFRs, USCIS made 10,000 and 
5,000 visas available to petitioners with start dates later in the 
season (on or after May 15), respectively. The goal for having a 
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. 
Approximately 72% of the late season filer allocation for FY 2023 was 
utilized (as defined by the number of beneficiaries of Form I-129 
petitions approved for this allocation relative to the total allocation 
of 10,000 visas).\183\ However, visa issuance data shows that only 
slightly more than 5,000 visas were actually issued under the FY 2023 
late season filer allocation. This compares to the late season filer 
allocation for FY 2024, for which USCIS approved more beneficiaries of 
Form I-129 petitions than the total number of visas available, 
although, as of October 2024, still has not received a sufficient 
number of petitions to achieve issuance of 5,000 visas according to its 
projections.\184\ In sum, the data from the last two H-2B TFRs indicate 
that including another late-season filer allocation of 5,000 visas for 
FY 2025 is reasonable.
---------------------------------------------------------------------------

    \183\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 09/2023, TRK 12921.
    Calculation: 7,198 beneficiaries approved under the late-season 
filer allocation/10,000 visas allocated = 71.98% utilization.
    \184\ Under the late season allocation for FY 2024, USCIS 
approved 6,314 beneficiaries, while DOS issued 3,906 visas. 
Department of Homeland Security, U.S. Citizenship and Immigration 
Services, Office of Performance and Quality, ELIS, CLAIMS3, VIBE, 
DOS Visa Issuance Data queried 10/2024, PAER0016221.
---------------------------------------------------------------------------

    The Secretaries have 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 country-specific 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 country-specific 
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 2025 TFR, where time and data allow.
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 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 rule 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.\185\
---------------------------------------------------------------------------

    \185\ See, e.g., https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2024-and-announces-filing-dates-for-the-second-half-of.

[[Page 95668]]



                       Table 6--Form I-129 Petitions per Supplemental H-2B Visa Allocation
----------------------------------------------------------------------------------------------------------------
                                                                   Total form I-
                                                    Supplement     129 petitions   Total form I-   Beneficiaries
                   Supplement                         amount         received           129       per form I-129
                                                                                   beneficiaries     petition
----------------------------------------------------------------------------------------------------------------
2019 Supplement.................................          30,000           2,700          33,239           12.31
2021 Supplement *...............................          22,000           2,180          31,274           14.35
2022 Supplement **..............................          55,000           4,045          61,868           15.29
2023 Supplement.................................          64,716           4,902          79,057           16.13
2024 Supplement.................................          64,716           5,399          86,036           15.94
                                                 ---------------------------------------------------------------
    Average.....................................  ..............  ..............  ..............           14.80
----------------------------------------------------------------------------------------------------------------
Source: USCIS Analysis.
Notes:
* 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-to-increase-the-fiscal-year-2021-numerical-limitation-for-the
  (accessed September 25, 2024).
** 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-to-increase-the-fiscal-year-2022-numerical-limitation-for-the; https://www.federalregister.gov/documents/2022/05/18/2022-10631/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-second-half-of-fy-2022.

    Table 6 shows the total supplemental H-2B visa allocations issued 
by the Departments in each fiscal year since FY 2019,\186\ 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 14.80 beneficiaries per petition for supplemental visas 
derived in Table 6, USCIS anticipates that 4,373 Forms I-129 will be 
submitted as a result of this temporary final rule.\187\
---------------------------------------------------------------------------

    \186\ FY 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.
    \187\ Calculation for expected petitions. If each Form I-129 
petition requests 14.80 workers, we'd expect to see 4,373 
petitioners exhausting the 64,716 supplement allocated this year: 
64,716/14.80 = 4,373 (rounded)
---------------------------------------------------------------------------

    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 338 additional Form ETA-9142B 
requests \188\ to DOL, assuming each late season visa requestor submits 
a TLC and Form I-129 for the historic average of 14.80 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 FY25 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.
---------------------------------------------------------------------------

    \188\ Calculation for expected late season TLCs: 5,000 visas/
14.80 beneficiaries per petition = 338 TLCs (rounded).
---------------------------------------------------------------------------

    DHS recognizes that some employers will be required to submit two 
Form I-129 petitions if they choose to request H-2B workers under both 
the returning worker and country-specific caps. At this time, DHS 
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.\189\ Using data from FY 2020 to FY 2024, we estimate that a 
lawyer or accredited representative will file 47.73 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 2,087 Forms I-129 and 
Forms G-28, and that human resources (HR) specialists will file 2,286 
Forms I-129.\190\
---------------------------------------------------------------------------

    \189\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \190\ Calculation: 4,373 estimated additional petitions * 47.73 
percent of petitions filed by a lawyer = 2,087 (rounded) petitions 
filed by a lawyer.
    Calculation: 4,373 estimated additional petitions--2,087 
petitions filed by a lawyer = 2,286 petitions filed by an HR 
specialist.

           Table 7--Form I-129 H-2B Petition Receipts that Were Accompanied by Form G-28, FY 2020-2024
----------------------------------------------------------------------------------------------------------------
                                                                  Number of Form                    Percent of
                                                                    I-129 H-2B     Total number    Form I-129 H-
                           Fiscal year                               petitions     of Form I-129   2B petitions
                                                                  accompanied by  H-2B petitions  accompanied by
                                                                    a Form G-28      received       a Form G-28
----------------------------------------------------------------------------------------------------------------
2020............................................................           2,434           5,422          44.89%
2021............................................................           4,228           9,160           46.16
2022............................................................           5,984          12,392           48.29
2023............................................................           6,837          13,744           49.75
2024............................................................           6,048          12,773           47.35
                                                                 -----------------------------------------------

[[Page 95669]]

 
    Total.......................................................          25,531          53,491           47.73
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

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 2020 to FY 2024, 
DHS estimates that approximately 91.19 percent of Form I-129 H-2B 
petitioners will file a Form I-907 requesting premium processing. Based 
on this historical data, DHS estimates that 3,988 Forms I-907 will be 
filed with the Forms I-129 as a result of this rule.\191\ Of these 
3,988 premium processing requests, we estimate that in-house or 
outsourced lawyers will file 1,903 Forms I-907 and HR specialists or an 
equivalent occupation will file 2,085.\192\
---------------------------------------------------------------------------

    \191\ Calculation: 4,373 estimated additional petitions * 91.19 
percent premium processing filing rate = 3,988 (rounded) additional 
Form I-907.
    \192\ Calculation: 3,988 additional Form I-907 * 47.73 percent 
of petitioners represented by a lawyer = 1,903 (rounded) additional 
Form I-907 filed by a lawyer.
    Calculation: 3,988 additional Form I-907--1,903 additional Form 
I-907 filed by a lawyer = 2,085 additional Form I-907 filed by an HR 
specialist.

          Table 8--Form I-129 H-2B Petition Receipts that Were Accompanied by Form I-907, FY 2020-2024
----------------------------------------------------------------------------------------------------------------
                                                                  Number of Form                    Percent of
                                                                    I-129 H-2B     Total number    Form I-129 H-
                           Fiscal year                               petitions     of Form I-129   2B petitions
                                                                  accompanied by  H-2B petitions  accompanied by
                                                                    Form I-907       received       Form I-907
----------------------------------------------------------------------------------------------------------------
2020............................................................           4,341           5,422          80.06%
2021............................................................           8,650           9,160           94.43
2022............................................................          11,773          12,392           95.00
2023............................................................          12,078          13,744           87.88
2024............................................................          11,936          12,773           93.45
5-Year Total....................................................          48,778          53,491           91.19
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

d. Population That Files Form ETA-9142-B-CAA-9, Attestation for 
Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 105 
of Division G, Title I of the Further Consolidated Appropriations Act, 
2024, Public Law 118-47, as extended by sections 101(6) and 106 of 
Division A, Title I of the Continuing Appropriations and Extensions 
Act, 2025, Public Law 118-83
    Petitioners seeking to take advantage of this FY 2025 H-2B 
supplemental visa cap will need to file a Form ETA-9142-B-CAA-9 
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 4,373 petitions will need to be 
accompanied by Form ETA-9142-B-CAA-9 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 above 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 14.80 beneficiaries per I-129 petition holds, 338 
petitioners \193\ 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 the number 
of Form ETA-9142B in-house or outsourced lawyers will file is 161 and 
that the number of Form ETA-9142B human resources (HR) specialists will 
file is 177.\194\
---------------------------------------------------------------------------

    \193\ Calculation for expected late season TLCs: 5,000 late 
season visas/14.80 beneficiaries per petition = 338 TLCs (rounded).
    \194\ Calculation: 338 estimated additional requests * 47.73 
percent of petitions filed by a lawyer (see) = 161 (rounded) ETA-
9142-B requests filed by a lawyer.
    Calculation: 338 estimated additional requests--161 requests 
filed by a lawyer = 177 requests filed by an HR specialist.
---------------------------------------------------------------------------

f. Population That Must Undergo Additional Recruitment Activities
    An employer that files Form ETA-9142B-CAA-9 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

[[Page 95670]]

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. Using 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 1,400.\195\
---------------------------------------------------------------------------

    \195\ Calculation: 20,716 workers in the 1st half returning 
working supplemental allocation/14.80 workers per petitioner = 1,400 
(rounded) petitioners required to undertake additional recruitment.
---------------------------------------------------------------------------

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.\196\ DHS 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 2024. 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.
---------------------------------------------------------------------------

    \196\ H-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 2023, USCIS approved 407 requests for change of status to H-
2B, and Customs and Border Protection (CBP) processed 1,053 
crossings of visa-exempt H-2B workers. See Characteristics of H-2B 
Nonagricultural Temporary Workers FY2023 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY23-Characteristics-Report.pdf (accessed September 25, 2024). DHS 
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. DHS 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.

 Table 9--Numbers of Form I-129 H-2B Petitions Filed for Extension of Stay Due to Change of Employer and Form I-
                          129 H-2B Petitions Filed for New Employment, FY 2016-FY 2020
----------------------------------------------------------------------------------------------------------------
                                                                                            Rate of extension to
                                                   Form I-129 H-2B                           stay due to change
                                                 petitions filed for     Form I-129 H-2B     of employer filings
                  Fiscal year                     extension of stay    petitions filed for     relative to new
                                                  due to change of       new employment      employment filings
                                                      employer                                       (%)
----------------------------------------------------------------------------------------------------------------
2016..........................................                   427                 5,750                   7.4
2017..........................................                   556                 5,298                  10.5
2018..........................................                   744                 5,136                  14.5
2019..........................................                   812                 6,252                  13.0
2020..........................................                   804                 3,997                  20.1
                                               -----------------------------------------------------------------
    Total.....................................                 3,343                26,433                  12.6
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 08/2024, TRK 15749.

    In FY 2021, the first year an H-2B supplemental cap included a 
portability provision, 1,113 Forms I-129 were filed for extension of 
stay due to change of employer compared to 7,206 Forms I-129 filed for 
new employment.\197\ In FY 2022, 1,795 Forms I-129 were filed for 
extension of stay due to change of employer compared to 9,231 Forms I-
129 filed for new employment.\198\ In FY 2023, 2,277 Forms I-129 were 
filed for extension of stay due to change of employer compared to 9,895 
Forms I-129 filed for new employment.\199\ In FY 2024, 2,181 Forms I-
129 were filed for extension of stay due to change of employer compared 
to 9,097 Forms I-129 filed for new employment.\200\ 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 20.8 percent.\201\ This is above the 12.6 percent 
rate expected without a portability provision. We estimate that 20.8 
percent is the expected rate in periods with a portability provision in 
the supplemental visa allocation. Using 4,373 as our estimate for the 
number of Forms I-129 filed for H-2B new employment in FY 2024, we 
estimate that 551 Forms I-129 would be filed for extension of stay due 
to change of employer in absence of this provision.\202\ With this 
portability
---------------------------------------------------------------------------

    \197\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 08/2024, TRK 15749.
    \198\ See Id.
    \199\ See Id.
    \200\ See Id.
    \201\ Calculation, 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 +2,277 Form I-129 petitions for extension of stay due to change 
of employer FY 2023 + 2,181 Form I-129 petitions for extension of 
stay due to change of employer FY 2024 = 7,366 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 + 9,895 Form I-129 petitions filed for new 
employment in FY 2023 + 9,097 Form I-129 petitions filed for new 
employment in FY 2024 = 35,429 Form I-129 petitions filed for new 
employment in portability provision years
    Calculation, Step 3: 7,366 extension of stay due to change of 
employment petitions/35,429 new employment petitions = 20.8 percent 
rate of extension of stay due to change of employment to new 
employment (rounded).
    \202\ Calculation: 4,373 Form I-129 H-2B petitions filed for new 
employment * 12.6 percent = 551 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision.

---------------------------------------------------------------------------

[[Page 95671]]

provision, we estimate that 910 Forms I-129 would be filed for 
extension of stay due to change of employer,\203\ which results in a 
difference of 359 additional Forms I-129 as a result of this 
provision.\204\ As previously estimated, we expect that about 47.73 
percent of Form I-129 petitions will be filed by an in-house or 
outsourced lawyer. Therefore, we expect that a lawyer will file 171 of 
these petitions and an HR specialist or equivalent occupation will file 
the remaining 188.\205\ Previously in this analysis, we estimated that 
about 91.19 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 327 Forms I-907 will be filed.\206\ We 
expect a lawyer to file 156 of those Forms I-907 and an HR specialist 
to file the remaining 171.\207\
---------------------------------------------------------------------------

    \203\ Calculation: 4,373 Form I-129 H-2B petitions filed for new 
employment * 20.8 percent = 910 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision.
    \204\ Calculation: 910 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision--551 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer, 
no portability provision = 359 Form I-129 H-2B petition increase as 
a result of portability provision.
    \205\ Calculation, Lawyers: 359 additional Form I-129 due to 
portability provision * 47.73 percent of Form I-129 for H-2B 
positions filed by an attorney or accredited representative = 171 
(rounded) estimated Form I-129 filed by a lawyer.
    Calculation, HR specialist: 359 additional Form I-129 due to 
portability provision--171 estimated Form I-129 filed by a lawyer = 
188 estimated Form I-129 filed by an HR specialist.
    \206\ Calculation: 359 Form I-129 H-2B petitions * 91.19 percent 
premium processing filing rate = 327 (rounded) Forms I-907.
    \207\ Calculation, Lawyers: 327 Forms I-907 * 47.73 percent 
filed by an attorney or accredited representative = 156 (rounded) 
Forms I-907 filed by a lawyer.
    Calculation, HR specialists: 327 Forms I-907--156 Forms I-907 
filed by a lawyer = 171 Forms I-907 filed by an HR specialist.
---------------------------------------------------------------------------

h. Population Affected by the Audits
    Under this time-limited FY 2025 H-2B supplemental cap rule, DHS 
intends to conduct a minimum of 150 audits of employers hiring H-2B 
workers under this TFR. While this number of TFR-related audits is 
lower than previous years' TFR-related audits, DHS has increased the 
number of targeted site visits it conducts on H-2B petitioners under 
the regular H-2B program. Specifically, in addition to the 150 audits 
DHS will perform under this TFR, DHS will also routinely conduct at 
least 150 targeted site visits annually to H-2B petitioners to 
determine compliance with H-2B program requirements overall. During 
site visits, FDNS officers visit the work location, conduct in-person 
interviews, and review documents. These targeted H-2B site visits are 
conducted outside of the supplemental cap program, but overlap may 
exist between petitioners who file under the regular cap and the TFR. 
These increased targeted site visits, taken together with the audits 
conducted under this TFR, will increase oversight into the integrity of 
the H-2B program overall. Separately, DOL intends to conduct 100 audits 
of employers hiring H-2B workers under this TFR. 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 250 audits on employers that petition for H-2B 
workers under this TFR.\208\
---------------------------------------------------------------------------

    \208\ These 250 audits are separate and distinct from WHD's 
investigations pursuant to its existing enforcement authority.
---------------------------------------------------------------------------

i. Population Sffected 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.\209\ The data 
available 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 FY 2019-2023. 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 2019-2023, an average of 72 
(rounded) employers were cited for H-2B violations with a worker 
protection violation by the 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 144 petitioners will undergo 
additional scrutiny from USCIS.\210\
---------------------------------------------------------------------------

    \209\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed September 5, 2024).
    \210\ 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 144 to be a reasonable estimate of the number of 
petitioners that will undergo additional scrutiny.

     Table 10--Employers With H-2B Violations With Worker Protection
                   Violation End Date in FY 2019-2023
------------------------------------------------------------------------
                                                  Employers cited for H-
                                                    2B violations with
                  Fiscal year                       worker protection
                                                  violation end date in
                                                       fiscal year
------------------------------------------------------------------------
2019...........................................                      124
2020...........................................                       89
2021...........................................                       55
2022...........................................                       70
2023...........................................                       22
5-year Average (rounded).......................                       72
------------------------------------------------------------------------
Source: USCIS analysis of DOL Wage and Hour Compliance Action Data.

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 fiscal years is 9,924. We use the TLC 
population, rather than the estimated 4,373 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 
47.73 percent of petitioners are submitted by lawyers. Therefore, we 
estimate that 4,737 lawyers and 5,187 HR specialists will incur 
familiarization costs.\211\
---------------------------------------------------------------------------

    \211\ Calculation for lawyers: 9,924 estimated applicants * 
47.73 percent represents by a lawyer = 4,737 (rounded) represented 
by a lawyer.
    Calculation for HR specialists: 9,924 approved, pending, and 
projected applicants--4,737 represented by a lawyer = 5,187 
represented by an HR specialist.
---------------------------------------------------------------------------

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.\212\ The estimated time to 
complete and file Form I-129 for H-2B classification is 4.56 
hours.\213\ A U.S. employer, a U.S. agent, or a foreign employer filing 
through the U.S. agent

[[Page 95672]]

must file the petition. DHS estimates that an in-house or outsourced 
lawyer will file 47.73 percent of Form I-129 H-2B petitions, and an HR 
specialist or equivalent occupation will file the remainder (52.27 
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.
---------------------------------------------------------------------------

    \212\ Filing fees are not considered costs to society. These 
fees have been accounted for as a transfer from petitioners to 
USCIS.
    \213\ The public reporting burden for this form is 2.487 hours 
for Form I-129 and an additional 2.07 hours for H Classification 
Supplement, totaling 4.56 hours (rounded). See Form I-129 
instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed August 13, 2024).
---------------------------------------------------------------------------

    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 $36.57 as the base wage rate.\214\ If petitioners 
hire an in-house or outsourced lawyer to file Form I-129 on their 
behalf, DHS uses the mean hourly wage rate $84.84 as the base wage 
rate.\215\ 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.\216\ DHS 
multiplied the average hourly U.S. wage rate for HR specialists and for 
in-house lawyers by the benefits-to-wage multiplier of 1.45 to estimate 
total compensation to employees. The total compensation for an HR 
specialist is $53.03 per hour, and the total compensation for an in-
house lawyer is $123.02 per hour.\217\ 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-to-wage multiplier of 2.5 for outsourced lawyers.\218\ DHS 
estimates the total compensation for an outsourced lawyer is $212.10 
per hour.\219\ If a lawyer submits Form I-129 on behalf of the 
petitioner, Form G-28 must accompany the Form I-129 petition.\220\ DHS 
estimates the time burden to complete and submit Form G-28 for a lawyer 
is 50 minutes (0.83 hour, rounded).\221\ 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 5.39 hours for in-house lawyers and outsourced 
lawyers to complete Form G-28 and Form I-129.\222\ Therefore, the total 
opportunity cost of time per petition for an HR specialist to complete 
and file Form I-129 is approximately $241.82, for an in-house lawyer to 
complete and file Forms I-129 and G-28 is about $663.08, and for an 
outsourced lawyer to complete and file is approximately $1,143.22.\223\
---------------------------------------------------------------------------

    \214\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2023 National Occupational Employment and Wage Statistics'' 
Human Resources Specialist (13-1071), Mean Hourly Wage, available at 
https://www.bls.gov/news.release/archives/ocwage_04032024.pdf 
(accessed October 25, 2024).
    \215\ U.S. Department of Labor, Bureau of Labor Statistics. 
``May 2023 National Occupational Employment and Wage Estimates'' 
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/news.release/archives/ocwage_04032024.pdf(accessed 
October 25, 2024).
    \216\ Calculation: $46.21 mean Total Employee Compensation per 
hour for civilian workers/$31.80 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--June 2024 Table 
1. Employer Costs for Employee Compensation by ownership, Civilian 
workers, available at https://www.bls.gov/news.release/archives/ecec_09102024.pdf (accessed October 25, 2024).
    \217\ Calculation, HR specialist: $36.57 mean hourly wage * 1.45 
benefits-to-wage multiplier = $53.03 hourly total compensation 
(hourly opportunity cost of time).
    Calculation, In-house Lawyer: $84.84 mean hourly wage * 1.45 
benefits-to-wage multiplier = $123.02 hourly total compensation 
(hourly opportunity cost of time).
    \218\ The 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 in-house 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 
September 25, 2024). 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 25, 2024).
    \219\ Calculation, Outsourced Lawyer: $84.84 mean hourly wage * 
2.5 benefits-to-wage multiplier = $212.10 hourly total compensation 
(hourly opportunity cost of time).
    \220\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed September 25, 2024).
    \221\ USCIS, 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).
    \222\ Calculation: 0.83 hour to file Form G-28 + 4.56 hours to 
file Form I-129 = 5.39 hours to file both forms.
    \223\ Calculation, HR specialist files Form I-129: $53.03 hourly 
opportunity cost of time * 4.56 hours = $241.82 opportunity cost of 
time per petition.
    Calculation, In-house Lawyer files Form I-129 and Form G-28: 
$123.02 hourly opportunity cost of time * 5.39 hours = $663.08 
opportunity cost of time per petition.
    Calculation, Outsourced Lawyer files Form I-129 and Form G-28: 
$212.10 hourly opportunity cost of time * 5.39 hours = $1,143.22 
opportunity cost of time per petition.
---------------------------------------------------------------------------

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. In previous years, all filers of the Form I-129 paid a 
standard fee. As of April 1, 2024, the fee structure for I-129 H-2B 
petitions has changed, and now takes into account whether petitioners 
are named or unnamed, as well as the characteristics of the petitioner 
based on size. Additionally, petitioners pay a variable Asylum 
Processing Fee based on the identity of the petitioner based on entity 
type. All petitioners pay an additional Fraud Prevention and Detection 
Fee of $150.\224\ The new fee structure is summarized in Table 11 
below. 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 4,373 
Forms I-129 due to the rule's supplemental visa allocation and an 
additional 359 Forms I-129 due to the rule's portability provision.
---------------------------------------------------------------------------

    \224\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed 
September 4, 2024). See also 8 U.S.C. 1184(c)(13).

                               Table 11--Form I-129 Filing Fees by Petitioner Type
----------------------------------------------------------------------------------------------------------------
                                                                      Fraud
                Petitioner type                     Base fee      prevention and      Asylum         Total fee
                                                                  detection fee   processing fee
----------------------------------------------------------------------------------------------------------------
H-2B Named Non-Small Employer or Nonprofit.....          $1,080             $150            $600          $1,830
H-2B Named Small Employer......................             540              150             300             990

[[Page 95673]]

 
H-2B Named Nonprofit...........................             540              150               0             690
H-2B Unnamed Non-Small Employer or Nonprofit...             580              150             600           1,330
H-2B Unnamed Small Employer....................             460              150             300             910
H-2B Unnamed Nonprofit.........................             460              150               0             610
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed September 4, 2024). See also 8 USC 1184(c)(13).

    Using a historical average of petitioners requesting named versus 
unnamed beneficiaries from FY 2021-FY2024, DHS estimates that 6 percent 
will request named beneficiaries and 94 percent will request unnamed 
beneficiaries. Based on analysis conducted as part of the USCIS 2024 
Fee Rule, DHS assumes that 30 percent of I-129 H-2B petitioners have 26 
or more employees, 55 percent have 25 or fewer employees, and 15 
percent have non-profit status.\225\ This equates to 1,312 petitioners 
with 26 or more employees,\226\ 2,405 petitioners with 25 or fewer 
employees,\227\ and 656 non-profit petitioners filing Forms I-129 as 
part of the supplemental allocation.\228\ USCIS assumes that the 
percentage of named versus unnamed beneficiaries does not vary by 
employer size or nonprofit status. Thus, by multiplying the percentages 
of requests of named versus unnamed beneficiaries by the number of 
petitioners by characteristic, this equates to 79 petitioners with 26 
or more employees requesting named beneficiaries,\229\ 1,233 
petitioners with 26 or more employees requesting unnamed 
beneficiaries,\230\ 144 petitioners with 25 or fewer employees 
requesting named beneficiaries,\231\ 2,261 petitioners with 25 or fewer 
employees requesting unnamed beneficiaries,\232\ 39 non-profit 
petitioners requesting named beneficiaries,\233\ and 617 non-profit 
petitioners requesting unnamed beneficiaries as part of the 
supplemental allocation.\234\ Additionally, DHS estimates that 359 
additional Forms I-129 will be filed due to the portability provision 
of this rule. Petitions filed under the portability provision must 
request named beneficiaries. Thus, DHS estimates that this population 
will consist of 108 petitioners with 26 or more employees requesting 
named beneficiaries,\235\ 197 petitioners with 25 or fewer employees 
requesting named beneficiaries,\236\ and 54 non-profit petitioners 
requesting named beneficiaries.\237\
---------------------------------------------------------------------------

    \225\ See Table 25 of the Fee Rule Regulatory Impact Analysis at 
https://www.regulations.gov/document/USCIS-2021-0010-8179 (accessed 
October 28, 2024).
    \226\ Calculation: 4,373 expected additional Forms I-129 * 30 
percent petitioners with 26 or more employees = 1,312 (rounded).
    \227\ Calculation: 4,373 expected additional Forms I-129 * 55 
percent petitioners with 25 or fewer employees = 2,405 (rounded).
    \228\ Calculation: 4,373 expected additional Forms I-129 * 15 
percent non-profit petitioners = 656 (rounded).
    \229\ Calculation: 1,312 petitioners with 26 or more employees * 
6 percent unnamed beneficiaries = 79 (rounded).
    \230\ Calculation: 1,312 petitioners with 26 or more employees * 
94 percent unnamed beneficiaries = 1,233 (rounded).
    \231\ Calculation: 2,405 petitioners with 25 or fewer employees 
* 6 percent unnamed beneficiaries = 144 (rounded).
    \232\ Calculation: 2,405 petitioners with 25 or fewer employees 
* 94 percent unnamed beneficiaries = 2,261 (rounded).
    \233\ Calculation: 656 non-profit petitioners * 6 percent 
unnamed beneficiaries = 39 (rounded).
    \234\ Calculation: 656 non-profit petitioners * 94 percent 
unnamed beneficiaries = 617 (rounded).
    \235\ Calculation: 359 expected additional Forms I-129 * 30 
percent petitioners with 26 or more employees = 108 (rounded).
    \236\ Calculation: 359 expected additional Forms I-129 * 55 
percent petitioners with 25 or fewer employees = 197 (rounded).
    \237\ Calculation: 359 expected additional Forms I-129 * 15 
percent non-profit petitioners = 54 (rounded).
---------------------------------------------------------------------------

    The total transfers from petitioners to the government for filing 
Forms I-129 H-2B petitioners are $4,817,740.\238\ Transfers from 
petitioners to the Government related to the filing of Forms I-907 as a 
result of the rule are $7,270,775.\239\ Total transfers from 
petitioners to the Government are $12,088,515.\240\
---------------------------------------------------------------------------

    \238\ Calculation: 187 petitioners with 26 or more employees 
requesting named beneficiaries x $1,830 + 1,233 petitioners with 26 
or more employees requesting unnamed beneficiaries x $1,330 + 341 
petitioners with 25 or fewer employees requesting named 
beneficiaries x $990 + 2,261 petitioners with 25 or fewer employees 
requesting unnamed beneficiaries x $910 + 93 non-profits requesting 
named beneficiaries x $690 + 617 non-profits requesting unnamed 
beneficiaries x $610 = $4,817,740
    \239\ Calculation: $1,685 per petition * 4,315 Forms I-907 = 
$7,270,775
    \240\ Calculation: $4,817,740 + $7,270,775 = $12,088,515.
---------------------------------------------------------------------------

b. Cost to Petitioners
    As mentioned in Section 3, the estimated population impacted by 
this rule is 4,373 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 2,286 petitions using Form I-129 and lawyers will file an 
additional 2,087 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 $552,801 (rounded).\241\ DHS estimates the total cost to 
file Form I-129 petitions and Form G-28 if filed by lawyers will range 
from $1,383,848 (rounded) if only in-house lawyers file these forms, to 
$2,385,900 (rounded) if only outsourced lawyers file them.\242\ 
Therefore, the estimated total cost to file Form I-129 and Form G-28 
range from $1,936,649 and $2,938,701.\243\
---------------------------------------------------------------------------

    \241\ Calculation, HR specialist: $241.82 cost per petition * 
2,286 Form I-129 = $552,801 (rounded) total cost.
    \242\ Calculation, In-house Lawyer: $663.08 cost per petition * 
2,087 Form I-129 and Form G-28 = $1,383,848 (rounded) total cost.
    Calculation, Outsourced Lawyer: $1,143.22 cost per petition * 
2,087 Form I-129 and Form G-28 = $2,385,900 (rounded) total cost.
    \243\ Calculation: $552,801 total cost of Form I-129 filed by HR 
specialists + $1,383,848 total cost of Form I-129 and Form G-28 
filed by in-house lawyers = $1,936,649 estimated total costs to file 
Form I-129 and G-28.
    Calculation: $552,801 total cost of Form I-129 filed by HR 
specialists + $2,385,900 total cost of Form I-129 and G-28 filed by 
outsourced lawyers = $2,938,701 estimated total costs to file Form 
I-129 and G-28.
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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

[[Page 95674]]

$1,685, and the time burden for completing the form is 22 minutes (0.35 
hour).244 245 Using the wage rates established previously, 
the opportunity cost of time to file Form I-907 is approximately $19.62 
for an HR specialist, $45.52 for an in-house lawyer, and $78.48 for an 
outsourced lawyer.\246\
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    \244\ The filing fee is a transfer from the petitioner 
requesting premium processing and proxy for the total costs to 
USCIS.
    \245\ See Form I-907 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-907instr.pdf (accessed 
September 25, 2024).
    Calculation: 22 minutes/60 minutes per hour = 0.37 (rounded) 
hour.
    \246\ Calculation, HR specialist Form I-907: $53.03 hourly 
opportunity cost of time * 0.37 hour = $19.62 opportunity cost of 
time per request.
    Calculation, In-house Lawyer Form I-907: $123.02 hourly 
opportunity cost of time * 0.37 hour = $45.52 opportunity cost of 
time per request.
    Calculation, Outsourced Lawyer Form I-907: $212.10 hourly 
opportunity cost of time * 0.37 hour = $78.48 opportunity cost of 
time per request.
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    As discussed above, DHS estimates that HR specialists will file an 
additional 2,085 Form I-907 and lawyers will file an additional 1,903 
Form I-907. DHS estimates the total cost of Form I-907 filed by HR 
specialists is about $40,908 (rounded).\247\ DHS estimates the total 
cost to file Form I-907 filed by lawyers range from about $86,625 
(rounded) for only in-house lawyers, to $149,347 (rounded) for only 
outsourced lawyers.\248\ The estimated total cost to file Form I-907 
range from $127,533 and $190,255.\249\
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    \247\ Calculation, HR specialist: $19.62 opportunity cost of 
time per request * 2,085 Form I-907 = $40,908 (rounded) total cost 
of Form I-907 filed by HR specialists.
    \248\ Calculation, In-house Lawyer Form I-907: $45.52 hourly 
opportunity cost of time * 1,903 applications = $86,625.
    Calculation, Outsourced Lawyer Form I-907: $78.48 hourly 
opportunity cost of time * 1,903 applications = $149,347.
    \249\ Calculation: $40,908 total cost of Form I-907 filed by HR 
specialists + $86,625 total cost of Form I-907 filed by in-house 
lawyers = $127,533 estimated total costs to file Form I-907.
    Calculation: $40,908 total cost of Form I-129 filed by HR 
specialists + $149,347 total cost of Form I-907 filed by outsourced 
lawyers = $190,255 estimated total costs to file Form I-907.
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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 338 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).\250\ DHS estimates the total cost of Form ETA-
9142B filed by HR specialists is about $20,368 (rounded).\251\ DHS 
estimates the total cost to file Form ETA-9142B by lawyers range from 
about $42,979 (rounded) for only in-house lawyers, to $74,101 (rounded) 
for only outsourced lawyers.\252\ The estimated total cost to file Form 
ETA-9142B range from $63,347 and $94,469.\253\
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    \250\ The time burden estimate of 130 minutes 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/Form-ETA-9142B-Instructions-1205-0509.pdf 
(accessed August 22, 2024)
    \251\ Calculation, HR specialist: $53.03 per hour * 2.17 hours * 
177 Form ETA-9142-B = $20,368 (rounded) total cost of Form ETA-9142-
B filed by HR specialists.
    \252\ Calculation, In-house Lawyer Form ETA-9142-B: $123.02 per 
hour * 2.17 hours * 161 applications = $42,979 (rounded). 
Calculation, Outsourced Lawyer Form ETA-9142-B: $212.10 per hour * 
2.17 hours * 161 applications = $74,101 (rounded).
    \253\ Calculation: $20,368 total cost of Form ETA-9142-B filed 
by HR specialist + $42,979 total cost of Form ETA-9142-B filed by 
In-house Lawyer = $63,347 estimated total costs to file Form ETA-
9142-B.
    Calculation: $20,368 total cost of Form ETA-9142-B filed by HR 
specialist + $74,101 total cost of Form ETA-9142-B filed by 
Outsourced Lawyer = $94,469 estimated total costs to file Form ETA-
9142-B.
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iv. Cost To File Form ETA-9142-B-CAA-9
    Form ETA-9142-B-CAA-9 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 $53.03 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 
$53.03.\254\ 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 $9.02.\255\ The total opportunity 
cost of time for filing Form ETA-9142-B-CAA-9 and emailing the ETA case 
number to both OFLC and the AFL-CIO is $74.\256\
---------------------------------------------------------------------------

    \254\ Calculation: $53.03 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 = $53.03.
    \255\ Calculation: $53.03 hourly opportunity cost of time * 0.17 
hours to send OFLC and AFL-CIO the ETA case number = $9.02 
(rounded).
    \256\ Calculation: $53.03 + $9.02 = $62.05.
---------------------------------------------------------------------------

    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 $54.30,\257\ and the estimated hourly total compensation for 
a financial analyst is $78.74.\258\ 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 $393.70.\259\
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    \257\ See U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2023 National Occupational Employment and Wage Statistics'' 
Financial and Investment Analysts (13-2051), https://www.bls.gov/news.release/archives/ocwage_04032024.pdf (accessed October 25, 
2024).
    \258\ Calculation: $54.30 mean hourly wage for a financial 
analyst * 1.45 benefits-to-wage multiplier = $78.74 (rounded).
    \259\ Calculation: $78.74 estimated total compensation for a 
financial analyst * 5 hours to meet the requirements of the 
irreparable harm standard = $393.70.
---------------------------------------------------------------------------

    As discussed previously, DHS believes that the 4,373 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 $271,345 (rounded) 
and for financial analysts is about $1,721,650 (rounded).\260\
---------------------------------------------------------------------------

    \260\ Calculations, HR specialists: $62.05 opportunity cost of 
time to comply with attestation requirements and to send the ETA 
case number to OFLC and AFL-CIO * 4,373 estimated additional 
petitions = $271,345 (rounded) total cost to comply with attestation 
requirements.
    Calculation, Financial Analysts: $393.70 opportunity cost of 
time to comply with attestation requirements * 4,373 estimated 
additional petitions = $1,721,650 (rounded) to comply with 
attestation requirements.

---------------------------------------------------------------------------

[[Page 95675]]

    The estimated total cost to file Form ETA-9142-B-CAA-9 and comply 
with the attestation is approximately $1,992,995.\261\
---------------------------------------------------------------------------

    \261\ Calculation: $271,345 total cost for HR specialist to 
comply with attestation requirement and to send the ETA case number 
to OFLC and AFL-CIO + $1,721,650 total cost for financial analysts 
to comply with attestation requirements = $1,992,995 total cost to 
comply with attestation requirements.
---------------------------------------------------------------------------

v. Cost To Conduct Recruitment
    An employer that files Form ETA-9142B-CAA-99 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 Sec.  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.
    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, 
2023. 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.\262\ Assuming this work 
will be done by an HR specialist or an equivalent occupation, the 
estimated cost to each petitioner is approximately $212.12.\263\ Using 
1,400 as the estimated number of petitioners required to undergo 
additional recruitment activities, the estimated total cost of this 
provision is approximately $296,968 (rounded).\264\
---------------------------------------------------------------------------

    \262\ This is the average expected time burden across all 
employers; not all employers will need to notify the AFL-CIO, 
because not all occupations 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.
    \263\ Calculation: $53.03 hourly opportunity cost of time for an 
HR specialist * 4 hours to conduct additional recruitment = $212.12 
per petitioner cost to conduct additional recruitment.
    \264\ Calculation: 1,400 estimated number of petitioners subject 
to additional recruitment requirements * $212.12 per petitioner cost 
to conduct additional recruitment = $296,968 (rounded) total cost to 
conduct additional recruitment.
---------------------------------------------------------------------------

    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 359 
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 47.73 percent of these Form I-129 petitions. Therefore, we expect 
that a lawyer will file 171 of these petitions and an HR specialist or 
equivalent occupation will file the remaining 188. As previously 
discussed, the opportunity cost of time to file a Form I-129 H-2B 
petition is $241.82 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 
$663.08 for an in-house lawyer and $1,143.22 for an outsourced lawyer. 
Therefore, we estimate the cost of the additional Forms I-129 from the 
portability provision for HR specialists is $45,462.\265\ The estimated 
cost of the additional Forms I-129 accompanied by Forms G-28 from the 
portability provision for lawyers is $113,387 if filed by in-house 
lawyers and $195,491 if filed by outsourced lawyers.\266\
---------------------------------------------------------------------------

    \265\ Calculation, HR specialist: $241.82 estimated cost to file 
a Form I-129 H-2B petition * 188 petitions = $45,462 (rounded).
    \266\ Calculation, In-house Lawyer: $663.08 estimated cost to 
file a Form I-129 H-2B petition and accompanying Form G-28 * 171 
petitions = $113,387 (rounded).
    Calculation, Outsourced Lawyer: $1,143.22 estimated cost to file 
a Form I-129 H-2B petition and accompanying Form G-28 * 171 
petitions = $195,491 (rounded).
---------------------------------------------------------------------------

    Previously in this analysis, we estimated that about 91.19 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 
327 Forms I-907 will be filed.\267\ We expect a lawyer will file 156 of 
those Forms I-907 and an HR specialist or equivalent occupation will 
file the remaining 171.\268\ As previously discussed, the estimated 
opportunity cost of time to file a Form I-907 is $19.62 for an HR 
specialist; and the estimated opportunity cost of time to file a Form 
I-907 is approximately $45.52 for an in-house lawyer and $78.48 for an 
outsourced lawyer. The estimated total cost of the additional Forms I-
907 if HR

[[Page 95676]]

specialists file is $3,355.\269\ The estimated total cost of the 
additional Forms I-907 is $7,101 if filed by in-house lawyers and 
$12,243 if filed by outsourced lawyers.\270\
---------------------------------------------------------------------------

    \267\ Calculation: 359 estimated additional Form I-129 H-2B 
petitions * 91.19 percent accompanied by Form I-907 = 327 (rounded) 
additional Form I-907.
    \268\ Calculation, Lawyers: 327 additional Form I-907 * 47.73 
percent = 156 (rounded) Form I-907 filed by a lawyer. Calculation, 
HR specialists: 327 Form I-907--156 Form I-907 filed by a lawyer = 
171 Form I-907 filed by an HR specialist.
    \269\ Calculation, HR specialist: $19.62 to file a Form I-907 * 
171 forms = $3,355 (rounded).
    \270\ Calculation, In-house lawyer: $45.52 to file a Form I-907 
* 156 forms = $7,101 (rounded).
    Calculation for an outsourced lawyer: $78.48 to file a Form I-
907 * 156 forms = $12,243 (rounded).
---------------------------------------------------------------------------

    The estimated total cost of this provision ranges from $169,305 to 
$256,551 depending on what share of the forms are filed by in-house or 
outsourced lawyers.\271\
---------------------------------------------------------------------------

    \271\ Calculation for HR specialists and in-house lawyers: 
$45,462 for HR specialists to file Form I-129 H-2B petitions + 
$113,387 for in-house lawyers to file Form I-129 and the 
accompanying Form G-28 + $3,355 for HR specialists to file Form I-
907 + $7,101 for in-house lawyers to file Form I-907 = $169,305.
    Calculation for HR specialists and outsourced lawyers: $45,462 
for HR specialists to file Form I-129 H-2B petitions + $195,491 for 
outsourced lawyers to file Form I-129 and the accompanying Form G-28 
+ $3,355 for HR specialists to file Form I-907 + $12,243 for 
outsourced lawyers to file Form I-907 = $256,551.
---------------------------------------------------------------------------

vii. Cost of Audits to Petitioners
    As discussed above, DHS intends to conduct 150 audits of employers 
hiring H-2B workers under this TFR,\272\ and DOL intends to conduct 100 
audits of employers hiring H-2B workers under this TFR, for a total of 
250 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 $53.03, the estimated cost of complying 
with audits is $636.36 per audited employer.\274\ Therefore, the total 
estimated cost to employers to comply with audits is $159,090.\275\
---------------------------------------------------------------------------

    \272\ As noted above, in addition to these TFR-specific audits, 
DHS will also be conducting at least 150 targeted site visits 
annually related to other H-2B petitions to determine compliance 
with H-2B program requirements and provide increased oversight into 
the integrity of the H-2B program overall.
    \273\ The number in hours for audits was provided by the USCIS, 
Service Center Operations.
    \274\ Calculation: $53.03 hourly opportunity cost of time for an 
HR specialist * 12 hours to comply with an audit = $636.36 per 
audited employer.
    \275\ Calculation: 250 audited employers * $636.36 opportunity 
cost of time to comply with an audit = $159,090.
---------------------------------------------------------------------------

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 144 
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 $16.00.\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 $91.00.\278\ With an estimated 144 petitioners expected to print and 
ship evidence, the total estimated costs for printing and shipping 
evidence is $13,104.\279\
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    \276\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed August 22, 2024).
    \277\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed August 22, 2024). Cost to make black and 
white copies. Calculation: 500 pages * $0.15 per page = $75.00 in 
printing costs.
    \278\ Calculation: $75.00 in printing costs + $16.00 in shipping 
costs = $91.00 to print and ship evidence.
    \279\ Calculation: 144 petitioners * $91.00 to print and ship 
evidence = $13,104 total printing and shipping costs.
---------------------------------------------------------------------------

    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 $53.03 hourly opportunity cost of time for HR specialist, we 
estimate the opportunity cost of time for each petitioner is 
$53.03.\280\ With an estimated 144 petitioners expected to print and 
ship evidence, the total estimated opportunity cost of time to print 
and ship evidence is $7,636.\281\
---------------------------------------------------------------------------

    \280\ Calculation: $53.03 hourly opportunity cost of time for HR 
specialist * 1 hour to print and ship evidence = $53.03 opportunity 
cost of time per petitioner.
    \281\ Calculation: 144 petitioners * $53.03 opportunity cost of 
time per petitioner = $7,636 total estimated opportunity cost of 
time to print and ship evidence.
---------------------------------------------------------------------------

    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 $20,740.\282\
---------------------------------------------------------------------------

    \282\ Calculation: $13,104 total printing and shipping costs + 
$7,636 total opportunity cost of time = $20,740 total estimated cost 
of additional scrutiny.
---------------------------------------------------------------------------

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 9,924 
petitioners may take advantage of the provisions of this rule, and that 
a lawyer will represent 4,737 of these petitioners and an HR specialist 
or equivalent occupation will represent 5,187.
    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 67,000 
words.\284\ Using a reading speed of 238 words per minute, DHS 
estimates it will take approximately 4.7 hours to read and understand 
this rule.\285\
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    \283\ Brysbaert, Marc (2019, April 12). `How many words do we 
read per minute? A review and meta-analysis of reading rate.' 
https://doi.org/10.31234/osf.io/xynwg (accessed September 25, 2024). 
We use the average speed for silent reading of English nonfiction by 
adults.
    \284\ Please 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.
    \285\ Calculation, Step 1: roughly 67,000 words/238 words per 
minute = 282 (rounded) minutes.
    Calculation, Step 2: 282 minutes/60 minutes per hour = 4.7 
(rounded) hours.
---------------------------------------------------------------------------

    The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $53.03, $123.02, and $212.10, 
respectively. The estimated opportunity cost of time for each of these 
filers to read and understand the rule are $249.24, $578.19, and 
$996.87, respectively.\286\ The estimated total opportunity cost of 
time for 5,187 HR specialists to familiarize themselves with this rule 
is approximately $1,292,808.\287\ The estimated total

[[Page 95677]]

opportunity cost of time for 4,737 lawyers to familiarize themselves 
with this rule is approximately $2,738,886 if they are all in-house 
lawyers and $4,722,173 if they are all outsourced lawyers.\288\ 
Accordingly, the estimated total opportunity costs of time for 
petitioners' representatives to familiarize themselves with this rule 
ranges from $4,031,694 to $6,014,981.\289\
---------------------------------------------------------------------------

    \286\ Calculation, HR Specialists: $53.03 estimated hourly total 
compensation for an HR specialist * 4.7 hours to read and become 
familiar with the rule = $249.24 opportunity cost of time for an HR 
specialist to read and understand the rule.
    Calculation, In-house lawyer: $123.02 estimated hourly total 
compensation for an in-house lawyer * 4.7 hours to read and become 
familiar with the rule = $578.19 (rounded) opportunity cost of time 
for an in-house lawyer to read and understand the rule.
    Calculation, Outsourced lawyer: $212.10 estimated hourly total 
compensation for an outsourced lawyer * 4.7 hours to read and become 
familiar with the rule = $996.87 (rounded) opportunity cost of time 
for an outsourced lawyer to read and understand the rule.
    \287\ Calculation, HR specialists: $249.24 opportunity cost of 
time * 5,187 = $1,292,808 (rounded).
    \288\ Calculation for in-house lawyers: $578.19 opportunity cost 
of * 4,737 = $2,738,886 (rounded).
    Calculation for outsourced lawyers: $996.87 opportunity cost of 
time * 4,737 = $4,722,173 (rounded).
    \289\ Calculation: $1,292,808 + $2,738,886 = $4,031,694.
    Calculation: $1,292,808 + $4,722,173 = $6,014,981.
---------------------------------------------------------------------------

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-9, 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 $1,936,649 to 
$2,938,701, depending on the filer. The estimated total cost of filing 
Form I-907 ranges from $127,533 to $190,255, depending on the filer. 
The estimated cost for late season employers to file Form ETA-9142B 
ranges from $63,347 to $94,469 depending on the filer. The estimated 
total cost of filing and complying with Form ETA-9142-B-CAA-9 is 
$1,992,995. The estimated total cost of conducting additional 
recruitment is $296,968. The estimated cost of the portability 
provision ranges from $169,305 to $256,551, depending on the filer. The 
estimated total cost for employers to comply with audits is $159,090. 
The estimated total costs for petitioners or their representatives to 
familiarize themselves with this rule ranges from $4,031,694 to 
$6,014,981, depending on the filer. The estimated total cost of 
additional scrutiny is $20,740. The total estimated cost to petitioners 
ranges from $8,798,321 to $11,964,750, depending on the filer.\290\
---------------------------------------------------------------------------

    \290\ Calculation of lower range: $1,936,649 + $127,533 + 
$63,347 + $1,992,995 + $296,968 + $169,305 + $159,090 + $4,031,694 + 
$20,740 = $8,798,321.
    Calculation of upper range: $2,938,701 + $190,255 + $94,469 + 
$1,992,995 + $296,968 + $256,551 + $159,090 + $6,014,981 + $20,740 = 
$11,964,750.
---------------------------------------------------------------------------

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 $4,817,740, and the total filing fees associated with 
premium processing are $7,270,775.\291\ Total transfers from 
petitioners to the Government are $12,088,515.\292\
---------------------------------------------------------------------------

    \291\ Calculation: (3,988 + 327 Forms I-907) * $1,685 per form = 
$7,270,775.
    \292\ Calculation: $4,817,740 + $7,270,775 = $12,088,515.
---------------------------------------------------------------------------

    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.\293\ 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.
---------------------------------------------------------------------------

    \293\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

    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.\294\ 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 intend to conduct a total of 250 audits, and we 
expect each audit to take 12 hours. This results in a total time burden 
of 3,000 hours.\295\ 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 $64.06.\296\ To estimate the total hourly compensation for 
these positions, we multiply the hourly wage ($64.06) by the Federal 
benefits to wage multiplier of 1.41.\297\ This results in an hourly 
opportunity cost of time of $90.32 for GS-13 Step 5 Federal employees 
in the Washington, DC locality pay area.\298\ The total opportunity 
costs of time for Federal workers to conduct audits is estimated to be 
$270,960.\299\
---------------------------------------------------------------------------

    \294\ These audits are distinct from the WHD's authority to 
perform investigations regarding employers' compliance with the 
requirements of the H-2B program.
    \295\ Calculation: 12 hours to conduct an audit * 250 audits = 
3,000 total hours to conduct audits.
    \296\ See U.S. Office of Personnel Management, Pay and Leave, 
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA, 2024, Hourly Basic Rate, 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2024/DCB_h.pdf (accessed August 22, 2024).
    \297\ Calculation, Step 1: $2,382,167 Full-time Permanent 
Salaries + $983,370 Civilian Personnel Benefits = $3,365,537 
Compensation.
    Calculation, Step 2: $3,365,537 Compensation/$2,382,167 Full-
time Permanent Salaries = 1.41 (rounded) Federal employee benefits 
to wage ratio. See https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf (accessed 
August 22, 2024).
    \298\ Calculation: $64.06 hourly wage for a GS 13-5 in the 
Washington, DC locality area * 1.41 Federal employee benefits to 
wage ratio = $90.32 hourly opportunity cost of time for a GS 13-5 
federal employee in the Washington, DC locality area.
    \299\ Calculation: 3,000 hours to conduct audits * $90.32 hourly 
opportunity cost of time = $270,960 total opportunity costs of time 
for Federal employees to conduct audits.
---------------------------------------------------------------------------

    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

[[Page 95678]]

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. 
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, this 
analysis 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. According to Brodbeck et al. (2018):

    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.\300\
---------------------------------------------------------------------------

    \300\ See Arnold Brodbeck et al. (2018), 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.

    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.
---------------------------------------------------------------------------

    \301\ See 2 U.S.C. 1532(a)
---------------------------------------------------------------------------

    In addition, this rule does not exceed the $100 million in 1995 
expenditure in any 1 year when adjusted for inflation ($200 million in 
2023 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.
---------------------------------------------------------------------------

    \302\ See 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-202402.pdf, last accessed 
September 3, 2024). 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 2023-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(304.702-152.4)/152.4] * 
100 = (152.302/152.4) * 100 = 0.9994 (rounded) * 100 = 99.94 percent 
= 100 percent (rounded). Calculation of inflation-adjusted value: 
$100 million in 1995 dollars * 2.00 = $200 million in 2023 dollars.
    \303\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

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).

[[Page 95679]]

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 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 2025, based on the Secretary of Homeland 
Security's determination, in consultation with the Secretary of Labor, 
consistent with the FY 2024 Omnibus and Public Law 118-83. 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 2022, 2023, or 2024). 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, 2025 for the cap increase, and at the end of 
January 24, 2026 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 334,914,895 (maximum 
temporary increase of 0.0193 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.
---------------------------------------------------------------------------

    \304\ See U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed September 9, 2024).
    Calculation: 64,716 additional visas/334,914,895 million people 
in the United States = 0.0193 (rounded) percent temporary increase 
in the population.
---------------------------------------------------------------------------

    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 105 of Division G, Title I of the Further 
Consolidated Appropriations Act, 2024, Public Law 118-47, as extended 
by sections 101(6) and 106 of Division A, Title I of the Continuing 
Appropriations and Extensions Act, 2025, Public Law 118-83, Form ETA-
9142-B-CAA-9
    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-9, 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-9 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 31, 2025. This process of 
engaging the public and other

[[Page 95680]]

Federal agencies helps ensure that requested data can be provided in 
the desired format, reporting burden (time 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 105 of Division G of 
the FY 2024 Omnibus as extended by Public Law 118-83, 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 2025 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 2022, 
2023, or 2024, unless the worker is one of the 20,000 nationals of one 
of the countries included in the country-specific 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 105 of Division G, 
Title I of the Further Consolidated Appropriations Act, 2024, Public 
Law 118-47, as extended by sections 101(6) and 106 of Division A, Title 
I of the Continuing Appropriations and Extensions Act, 2025, Public Law 
118-83.
    Agency Form Number: Form ETA-9142-B-CAA-9.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 4,373.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 4,373.
    Average Time per Response: 10.17 hours per application.
    Total Estimated Annual Time Burden: 32,581 hours.
    Total Estimated Other Costs Burden: $2,289,811.
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 time-limited authority pursuant to 
Section 105 of Division G, Title I of the Further Consolidated 
Appropriations Act, 2024, Public Law 118-47, as extended by Public Law 
118-83 (which expires on December 20, 2024). However, DHS estimates 
that this temporary rule may result in approximately 4,325 additional 
filings of Form I-907 in fiscal year 2025. The current OMB-approved 
estimate of the number of annual respondents filing a Form I-907 is 
815,773. DHS 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,

[[Page 95681]]

Reporting and recordkeeping requirements, Unemployment, Wages, Working 
conditions.

    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

0
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).


0
2. Effective December 2, 2024, through December 2, 2027, amend Sec.  
214.2 by:
0
a. In table 3 to paragraph (h), adding an entry for ``32''; and
0
b. Adding paragraphs (h)(6)(xv) and (h)(32).
    The additions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *

              Table 3 to Paragraph (h)--Paragraph Contents
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
 
                              * * * * * * *
(32) Change of employers and portability for H-2B workers (January 25,
 2025 through January 24, 2026).
------------------------------------------------------------------------

* * * * *
    (6) * * *
    (xv) Special requirements for additional cap allocations under 
Public Laws 118-47 and 118-83--(A) Public Law 118-47 and sections 
101(6) and 106, Division A, Title I of Public Law 118-83--(1) 
Supplemental allocation for returning workers. Notwithstanding the 
numerical limitations set forth in paragraph (h)(8)(i)(C) of this 
section, for fiscal year 2025 only, the Secretary has authorized up to 
an additional 64,716 visas for aliens who may receive H-2B nonimmigrant 
visas pursuant to section 105 of Division G, Title I of Public Law 118-
47, the Further Consolidated Appropriations Act, 2024, and sections 
101(6) and 106, Division A, Title I of the Continuing Appropriations 
and Extensions Act, 2025, Public Law 118-83. An alien may be eligible 
to receive an H-2B nonimmigrant visa under this paragraph 
(h)(6)(xv)(A)(1) if she or he is a returning worker. The term 
``returning worker'' under this paragraph (h)(6)(xv)(A)(1) means a 
person who was issued an H-2B visa or was otherwise granted H-2B status 
in fiscal year 2022, 2023, or 2024. Notwithstanding Sec.  248.2 of this 
chapter, an alien may not change status to H-2B nonimmigrant under this 
paragraph (h)(6)(xv)(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 2025 employment 
start dates on or before March 31, 2025.
    (ii) Up to an additional 19,000 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2025 employment 
start dates from April 1, 2025 to May 14, 2025.
    (iii) Up to an additional 5,000 visas available for aliens with 
employment start dates from May 15, 2025 to September 30, 2025.
    (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 2025 only, and in 
addition to the allocation described in paragraph (h)(6)(xv)(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 to section 105 of Division G, Title I of 
Public Law 118-47, the Further Consolidated Appropriations Act, 2024, 
and sections 101(6) and 106 of Division A, Title I of the Continuing 
Appropriations and Extensions Act, 2025, Public Law 118-83, based on 
petitions with FY 2025 employment start dates. Such workers are not 
subject to the returning worker requirement in paragraph 
(h)(6)(xv)(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)(xv)(A)(1) and must declare that they are 
requesting these workers in the attestation Form ETA-9142-B-CAA-9 
required under 20 CFR 655.68(a)(1). A petition requesting returning 
workers under paragraph (h)(6)(xv)(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 
Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa 
Rica. Notwithstanding Sec.  248.2 of this chapter, an alien may not 
change status to H-2B nonimmigrant under this paragraph 
(h)(6)(xv)(A)(2).
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(xv), 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)(xv);
    (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 2022, 2023, or 2024, 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)(xv)(A)(2) of this section;
    (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)(xv)(B)(2)(i) through

[[Page 95682]]

(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 2025 supplemental allocations outlined in paragraph 
(h)(6)(xv)(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 2025 supplemental 
allocations outlined in 20 CFR 655.64(a) and 655.68(a), as a condition 
for the approval of the H-2B petition. The employer must attest to this 
on Form ETA-9142-B-CAA-9 and must further attest on Form ETA-9142-B-
CAA-9 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)(xv)(A)(1)(i) of this section requesting FY 2025 employment start 
dates on or before March 31, 2025. USCIS will reject petitions filed 
pursuant to paragraph (h)(6)(xv)(A)(1)(i) of this section requesting 
employment start dates on or before March 31, 2025 that are received 
after the applicable numerical limitation has been reached or after 
September 15, 2025.
    (2) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(ii) of 
this section requesting FY 2025 employment start dates from April 1, 
2025 to May 14, 2025. USCIS will reject petitions filed pursuant to 
paragraph (h)(6)(xv)(A)(1)(ii) of this section requesting employment 
start dates from April 1, 2025 to May 14, 2025 that are received 
earlier than 15 days after the INA section 214(g) cap for the second 
half FY 2024 has been met, or after the applicable numerical limitation 
has been reached or after September 15, 2025.
    (3) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(1)(iii) of 
this section requesting FY 2025 employment start dates from May 15, 
2025 and September 30, 2025. USCIS will reject petitions filed pursuant 
to paragraph (h)(6)(xv)(A)(1)(iii) of this section requesting 
employment start dates from May 15, 2025 to September 30, 2025 that are 
received earlier than 45 days after the INA section 214(g) cap for the 
second half FY 2025 has been met, or after the applicable numerical 
limitation has been reached or after September 15, 2025.
    (4) Petitions filed pursuant to paragraph (h)(6)(xv)(A)(2) 
requesting nationals of Guatemala, El Salvador, Honduras, Haiti, 
Colombia, Ecuador, or Costa Rica with FY 2025 employment start dates. 
USCIS will reject petitions filed pursuant to paragraph 
(h)(6)(xv)(A)(2) of this section that have a date of need on or after 
April 1, 2025, and are received earlier than 15 days after the INA 
section 214(g) cap for the second half of FY 2025 is met, or after the 
applicable numerical limitation has been reached or after September 15, 
2025.
    (5) USCIS will not approve a petition filed pursuant to this 
paragraph (h)(6)(xv) on or after October 1, 2025.
    (D) Numerical limitations under paragraphs (h)(6)(xv)(A)(1) and (2) 
of this section. When calculating the numerical limitations under 
paragraphs (h)(6)(xv)(A)(1) and (2) of this section as authorized under 
section 105 of Division G, Title I of Public Law 118-47, the Further 
Consolidated Appropriations Act, 2024, and sections 101(6) and 106 of 
Division A, Title I of the Continuing Appropriations and Extensions 
Act, 2025, Public Law 118-83, 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)(xv)(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)(xv)(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)(xv)(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)(xv)(A)(1) or (2) may be received (in other words, if 
either of the numerical limits described in paragraph (h)(6)(xv)(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)(xv) expires on October 1, 2025.
    (F) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(xv)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xv), including, 
but not limited to, the entirety of the numerical allocation provisions 
at paragraphs (h)(6)(xv)(A)(1) and (2) of this section. In the event 
that any part of this paragraph (h)(6)(xv) is enjoined or held to be 
invalid by any court of competent jurisdiction, the remainder of this 
paragraph (h)(6)(xv) 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)(xv), as 
consistent with law.
* * * * *
    (32) Change of employers and portability for H-2B workers. (i) This 
paragraph (h)(32) relates to H-2B workers seeking to change employers 
during the time period specified in paragraph (h)(32)(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, 2025, is authorized to begin 
employment with the new petitioner after the petition described in this 
paragraph (h)(32) is received by USCIS and before the new H-2B petition 
is approved, but no

[[Page 95683]]

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, 
2025, that remains pending on January 25, 2025, 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)(32)(i)(A) of this section, and subject to the requirements of 8 CFR 
274a.12(b)(35), the new period of employment described in paragraph 
(h)(32)(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)(32)(i)(B) of this section, the new period of employment described 
in paragraph (h)(32)(i) of this section may last for up to 60 days 
beginning on the later of either January 25, 2025, 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)(35) 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)(32) 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)(32):
    (A) The alien must either:
    (1) Have been in valid H-2B nonimmigrant status on or after January 
25, 2025 and be the beneficiary of a non-frivolous H-2B petition 
requesting an extension of the alien's stay that is received on or 
after January 25, 2025, but no later than January 24, 2026; or
    (2) Be the beneficiary of a non-frivolous H-2B petition requesting 
an extension of the alien's stay that is pending as of January 25, 
2025; 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)(32) begins at 12 a.m. on January 25, 2025, and ends at 
the end of January 24, 2026.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
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.


0
4. Effective December 2, 2024, through December 2, 2027, amend Sec.  
274a.12 by adding paragraph (b)(35) to read as follows:


Sec.  274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (35)(i) Pursuant to 8 CFR 214.2(h)(32) 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, 2025, 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, 2025; or
    (B) The later of January 25, 2025, or the start date of employment 
indicated on the new H-2B petition, for petitions that are pending as 
of January 25, 2025.
    (ii) If USCIS adjudicates the new petition prior to the expiration 
of the 60-day period in paragraph (b)(35)(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)(35) 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)(32) and paragraph (b)(35)(i) of this section begins at 12 
a.m. on January 25, 2025, and ends at the end of January 24, 2026.
* * * * *

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

0
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), 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).


0
6. Effective December 2, 2024, through September 30, 2025, add Sec.  
655.64 to read as follows:

[[Page 95684]]

Sec.  655.64  Special application filing and eligibility provisions for 
Fiscal Year 2025 under the December 2, 2024, supplemental cap increase.

    (a) An employer filing a petition with USCIS under 8 CFR 
214.2(h)(6)(xv) to request H-2B workers with FY 2025 employment start 
dates on or before September 30, 2025, must meet the following 
requirements:
    (1) The employer must attest on the Form ETA-9142-B-CAA-9 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)(xv). The employer's attestation 
must identify the types of evidence the employer is relying on and will 
retain to meet the irreparable harm standard. The employer must attest 
that it 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. In 
addition, the employer must attest that it will provide to DHS and/or 
DOL upon request all of the documentation it relied upon and retained 
as evidence that it meets the irreparable harm standard, including all 
of the supporting documentation the employer committed to retain at the 
time of filing on the employer's attestation form by selecting a 
checkbox next to the applicable type of documentation in section C, and 
the written statement describing how such evidence demonstrates 
irreparable harm.
    (2) The employer must attest on Form ETA-9142-B-CAA-9 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)(xv), have been issued an H-2B visa or otherwise granted H-
2B status during one of the last three (3) fiscal years (fiscal year 
2022, 2023, or 2024), 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)(xv)(A)(2).
    (3) The employer must attest on Form ETA-9142-B-CAA-9 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-9 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 Sec.  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 AJC with 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, 2023, 
until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xv) 
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 Sec.  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

[[Page 95685]]

SWA job order is posted, whichever is later. Consistent with Sec.  
655.40(a), applicants can be rejected only for lawful job-related 
reasons.
    (5) The employer must attest on Form ETA-9142-B-CAA-9 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 2025 supplemental allocations outlined in this 
paragraph (a) and Sec.  655.68(a), as a condition for the approval of 
the H-2B petition. Pursuant to this subpart A at Sec.  655.73 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. DOL may 
consider the failure to respond to and/or comply with an investigation 
or audit to be a willful misrepresentation of material fact or a 
substantial failure to meet the terms and conditions of the H-2B 
Application for Prevailing Wage Determination, or Application for 
Temporary Employment Certification, resulting in an adverse agency 
action on the employer, agent, or attorney, including assessment of a 
civil money penalty, revocation of the temporary labor certification, 
and/or program debarment for not less than 1 year or more than 5 years 
from the date of the final agency decision under 20 CFR 655.70, 655.72, 
655.73 or 29 CFR part 503. A debarred party will be disqualified from 
filing any labor certification applications or labor condition 
applications with the Department of Labor by, or on behalf of, the 
debarred party for the same period of time set forth in the final 
debarment decision.
    (b) This section expires on October 1, 2025.
    (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.

0
7. Effective December 2, 2024, through September 30, 2028, add Sec.  
655.68 to read as follows:


Sec.  655.68  Special document retention provisions for Fiscal Years 
2025 through 2028 under the Further Consolidated Appropriations Act, 
2024, as extended by Public Law 118-83.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2025 under authority of the temporary increase 
in the numerical limitation under section 105 of Division G, Public Law 
118-47, as extended by Public Law 118-83 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 
and as attested to in the attestation form, 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)(xv), 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)(xv), have 
been issued an H-2B visa or otherwise granted H-2B status during one of 
the last three (3) fiscal years (fiscal year 2022, 2023, or 2024), 
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)(xv)(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)(xv)(A)(2); and
    (4) If applicable, proof of recruitment efforts set forth in Sec.  
655.64(a)(4)(i) through (vii) and a recruitment report that meets the 
requirements set forth in Sec.  655.48(a)(1) through (4) and (7), and 
maintained throughout the recruitment period set forth in Sec.  
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, 2028.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
[FR Doc. 2024-28017 Filed 11-27-24; 8:45 am]
BILLING CODE 9111-97-P; 4510-FP-P`