95626 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

[CIS No. 2788–25] 

RIN 1615–AC95 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

[DOL Docket No. ETA–2024–0002] 

RIN 1205–AC20 

Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for 

FY 2025 for the H–2B Temporary 

Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers 

Seeking To Change Employers 

AGENCY: U.S. Citizenship and 

Immigration Services (USCIS), 

Department of Homeland Security 

(DHS), and Employment and Training 

Administration and Wage and Hour 

Division, U.S. Department of Labor 

(DOL). 

ACTION: Temporary rule. 

SUMMARY: DHS, in consultation with 

DOL, is exercising time-limited Fiscal 

Year (FY) 2025 authority and increasing 

the total number of noncitizens who 

may receive an H–2B nonimmigrant visa 

by up to 64,716 for the entirety of FY 

2025. These supplemental visas will be 

distributed in four allocations 

throughout the fiscal year. This rule 

reserves 20,000 of these visas for 

nationals of Guatemala, El Salvador, 

Honduras, Haiti, Colombia, Ecuador, or 

Costa Rica. All visas will be available 

only to businesses that are suffering or 

will suffer impending irreparable harm, 

as attested by the employer. In addition, 

DHS is again providing temporary 

portability flexibility. 

DATES: 

Effective dates: The amendments at 

instructions 1, 3, and 5 are effective 

December 2, 2024; instructions 2 and 4 

amending 8 CFR 214.2 and 274a.12, 

respectively, are effective from 

December 2, 2024, through December 2, 

2027; instruction 6, adding 20 CFR 

655.64, is effective from December 2, 

2024, through September 30, 2025; and 

instruction 7, adding 20 CFR 655.68, is 

effective from December 2, 2024, 

through September 30, 2028. 

Petition dates: DHS will not accept 

any H–2B petitions under provisions 

related to the FY 2025 supplemental 

numerical allocations after September 

15, 2025, and will not approve any such 

H–2B petitions after September 30, 

2025. The provisions related to 

portability are only available to 

petitioners and H–2B nonimmigrant 

workers initiating employment through 

the end of January 24, 2026. 

Comments on the Information 

Collection: The Office of Foreign Labor 

Certification within the U.S. Department 

of Labor will accept comments in 

connection with the new information 

collection Form ETA–9142B–CAA–9 

associated with this rule until January 

31, 2025. The electronic Federal Docket 

Management System will accept 

comments prior to midnight eastern 

time at the end of that day. 

ADDRESSES: You may submit written 

comments on the new information 

collection Form ETA–9142B–CAA–9, 

identified by Regulatory Information 

Number (RIN) 1205–AC20, 

electronically by the following method: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions on the website for 

submitting comments. 

Instructions: Include the agency’s 

name and the RIN 1205–AC20 in your 

submission. All comments received will 

become a matter of public record and 

may be posted without change to 

https://www.regulations.gov. Comments 

submitted after the deadline for 

submission will not be considered. 

Please do not submit comments 

containing trade secrets, confidential or 

proprietary commercial or financial 

information, personal health 

information, sensitive personally 

identifiable information (for example, 

social security numbers, driver’s license 

or state identification numbers, passport 

numbers, or financial account numbers), 

or other information that you do not 

want to be made available to the public. 

The agency reserves the right to redact 

or refrain from posting such information 

and libelous or otherwise inappropriate 

comments, including those that contain 

obscene, indecent, or profane language; 

that contain threats or defamatory 

statements; or that contain hate speech 

directed at race, color, sex, sexual 

orientation, national origin, ethnicity, 

age, religion, or disability. Please note 

that depending on how information is 

submitted through regulations.gov, the 

agency may not be able to redact the 

information and instead reserves the 

right to refrain from posting the 

information or comment in such 

situations. 

FOR FURTHER INFORMATION CONTACT: 

Regarding 8 CFR parts 214 and 274a: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, Camp Springs, MD 

20746; telephone 240–721–3000 (this is 

not a toll-free number). 

Regarding 20 CFR part 655 and Form 

ETA–9142B–CAA–9: Brian D. 

Pasternak, Administrator, Office of 

Foreign Labor Certification, 

Employment and Training 

Administration, Department of Labor, 

200 Constitution Ave. NW, Room N– 

5311, Washington, DC 20210, telephone 

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

number). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Background 

A. Legal Framework 

B. H–2B Numerical Limitations Under the 

INA 

C. FY 2025 Public Law 118–83 

D. Joint Issuance of the Final Rule 

III. Discussion 

A. Statutory Determination 

B. Numerical Increase and Allocations for 

Fiscal Year 2025 

C. Returning Workers 

D. 20,000 Allocation for Nationals of 

Guatemala, El Salvador, Honduras, Haiti, 

Colombia, Ecuador, or Costa Rica 

E. Business Need Standard—Irreparable 

Harm and FY 2025 Attestation 

F. Portability 

G. DHS Petition Procedures 

H. DOL Procedures 

IV. Statutory and Regulatory Requirements 

A. Administrative Procedure Act 

B. Executive Order 12866: Regulatory 

Planning and Review; Executive Order 

14094: Modernizing Regulatory Review; 

and Executive Order 13563: Improving 

Regulation and Regulatory Review 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. National Environmental Policy Act 

H. Congressional Review Act 

I. Paperwork Reduction Act 

I. Executive Summary 

FY 2025 H–2B Supplemental Cap 

With this temporary final rule (TFR), 

the Secretary of Homeland Security, 

following consultation with the 

Secretary of Labor, is authorizing the 

release of an additional 64,716 H–2B 

visas for FY 2025, subject to certain 

conditions. The 64,716 visas are divided 

into the following allocations: 

• For the first half of FY 2025: 20,716 

immediately available visas limited to 


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Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95627 

1The term ‘‘statutory cap’’ refers to the 66,000 

cap set forth at INA section 214(g)(1)(B) or the 

33,300 semiannual caps at INA section 214(g)(10). 

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; 

• 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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95628 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

2See Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for Second Half 

of FY 2022 for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking to Change Employers, 87 FR 

30334, 30335 (May 18, 2022); Exercise of TimeLimited Authority To Increase the Numerical 

Limitation for FY 2023 for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

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

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). 

3The term ‘‘United States’’ includes the 

continental United States, Alaska, Hawaii, Puerto 

Rico, Guam, the Virgin Islands of the United States, 

and the Commonwealth of the Northern Mariana 

Islands. INA section 101(a)(38), 8 U.S.C. 

1101(a)(38). 

4On September 20, 2023, DHS issued 

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. 

5As of March 1, 2003, in accordance with section 

1517 of Title XV of the Homeland Security Act of 

2002 (HSA), Public Law 107–296, 116 Stat. 2135, 

any reference to the Attorney General in a provision 

of the Immigration and Nationality Act describing 

functions which were transferred from the Attorney 

General or other Department of Justice official to the 

Department of Homeland Security by the HSA 

‘‘shall be deemed to refer to the Secretary’’ of 

Homeland Security. See 6 U.S.C. 557 (2003) 

(codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542 

note; 8 U.S.C. 1551 note. 

6For purposes of this discussion, the 

Departments use the term ‘‘noncitizen’’ colloquially 

to be synonymous with the term ‘‘alien’’ as it is 

used in the Immigration and Nationality Act. 

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. 

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 timelimited 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

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. 

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). 


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7For 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). 

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

274a.12(b)(9). 

9The Federal Government’s fiscal year runs from 

October 1 of the prior year through September 30 

of the year being described. For example, fiscal year 

2025 is from October 1, 2024, through September 

30, 2025. 

10See INA section 214(g)(9)(A), 8 U.S.C. 

1184(g)(9)(A), see also Consolidated Appropriations 

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

565; John Warner National Defense Authorization 

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

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

Seasonal Businesses Act of 2005, Public Law 109– 

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

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

1184(g)(9)(A). 

12See Consolidated Appropriations Act, 2016, 

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

13See 20 CFR 655.15(b). 

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

15 In fiscal years 2017 through 2021, USCIS 

received a sufficient number of H–2B petitions to 

reach or exceed the relevant first half statutory cap 

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

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

2020, respectively. See USCIS, USCIS Reaches the 

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

https://www.uscis.gov/archive/uscis-reaches-the-h2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 

2017); USCIS, USCIS Reaches H–2B Cap for the 

First Half of Fiscal Year 2018, https://

www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS 

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

2019, https://www.uscis.gov/news/news-releases/ 

uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 

12, 2018); USCIS, USCIS Reaches H–2B Cap for the 

First Half of Fiscal Year 2020, https://

www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); 

USCIS, USCIS Reaches H–2B Cap for the First Half 

of Fiscal Year 2021, https://www.uscis.gov/news/ 

alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2021 (Nov. 18, 2020). 

16On October 12, 2021, USCIS announced that it 

had received sufficient petitions to reach the 

congressionally mandated cap on H–2B visas for 

temporary nonagricultural workers for the first half 

of fiscal year 2022, and that September 30, 2021, 

was the final receipt date for new cap-subject H– 

2B worker petitions requesting an employment start 

date before April 1, 2022. See USCIS, USCIS 

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

2022, https://www.uscis.gov/newsroom/alerts/uscisContinued 

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. 

The INA also authorizes DHS to 

impose appropriate remedies against an 

employer for a substantial failure to 

meet the terms and conditions of 

employing an H–2B nonimmigrant 

worker, or for a willful 

misrepresentation of a material fact in a 

petition for an H–2B nonimmigrant 

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

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

expressly authorizes DHS to delegate 

certain enforcement authority to DOL. 

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

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

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

delegated its authority under INA 

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

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

Delegation of Authority to DOL under 

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

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

(stating that DOL may investigate 

employers to enforce compliance with 

the conditions of an H–2B petition and 

a DOL-approved TLC). This 

enforcement authority has been 

delegated within DOL to the Wage and 

Hour Division (WHD), and is governed 

by regulations at 29 CFR part 503. 

B. H–2B Numerical Limitations Under

the INA

The maximum annual number 

(‘‘statutory cap’’) of noncitizens who 

may be issued H–2B visas or otherwise 

provided H–2B nonimmigrant status to 

perform temporary nonagricultural work 

is 66,000, distributed semiannually 

beginning in October and April. See 

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

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

Accordingly, with certain exceptions as 

described below, up to 33,000 

noncitizens may be issued H–2B visas 

or provided H–2B nonimmigrant status 

in the first half of a fiscal year, and the 

remaining annual allocation, including 

any unused nonimmigrant H–2B visas 

from the first half of a fiscal year, are 

available for employers seeking to hire 

H–2B workers during the second half of 

the fiscal year.9 If the number of 

petitions approved by DHS is 

insufficient to use all H–2B numbers in 

a given fiscal year, DHS cannot carry 

over the unused numbers for petition 

approvals for employment start dates 

beginning on or after the start of the 

next fiscal year. 

In FYs 2005, 2006, 2007, and 2016, 

Congress exempted H–2B workers 

identified as returning workers from the 

annual H–2B cap of 66,000.10 A 

returning worker is an H–2B worker 

who was previously counted against the 

annual H–2B cap during a designated 

period of time.11 For example, Congress 

designated that returning workers for FY 

2016 needed to have been counted 

against the cap during FY 2013, 2014, or 

2015 to qualify for the exemption.12

DHS and the Department of State (DOS) 

worked together to confirm that all 

workers requested under the returning 

worker provision in fact were eligible 

for exemption from the annual cap (in 

other words, were issued an H–2B visa 

or provided H–2B status during one of 

the prior 3 fiscal years) and were 

otherwise eligible for H–2B 

classification. 

Because of the strong demand for H– 

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

DOL regulatory requirement that 

employers apply for a TLC 75 to 90 days 

before the start date of work,13 and the 

DHS regulatory requirement that an 

approved TLC accompany all H–2B 

petitions,14 employers that wish to 

obtain visas for their workers under the 

semiannual allotment must act early to 

receive a TLC and file a petition with 

U.S. Citizenship and Immigration 

Services (USCIS). As a result, the date 

on which USCIS has reached sufficient 

H–2B petitions to reach the first half of 

the fiscal year statutory cap has 

generally trended earlier in recent 

years.15 For FY 2022, for the first time 

in more than a decade, USCIS received 

sufficient H–2B petitions to reach the 

first half of the fiscal year statutory cap 

before the start of the fiscal year.16 This 


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reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 

2021). 

17On September 14, 2022, USCIS announced that 

it had received sufficient petitions to reach the 

congressionally mandated cap on H–2B visas for 

temporary nonagricultural workers for the first half 

of fiscal year 2023, and that September 12, 2022, 

was the final receipt date for new cap-subject H– 

2B worker petitions requesting an employment start 

date before April 1, 2023. See USCIS, USCIS 

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

2023, https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 

2022). 

18On October 13, 2023, USCIS announced that it 

had received sufficient petitions to reach the 

congressionally mandated cap on H–2B visas for 

temporary nonagricultural workers for the first half 

of fiscal year 2024, and that October 11, 2023, was 

the final receipt date for new cap-subject H–2B 

worker petitions requesting an employment start 

date before April 1, 2024. See USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2024, https:// 

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

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/foreignlabor/news (July 10, 2023). 

19On 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/uscisreaches-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 threeday 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. 

21See section 543 of Division F of the 

Consolidated Appropriations Act, 2017, Public Law 

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

M of the Consolidated Appropriations Act, 2018, 

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

105 of Division H of the Consolidated 

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

2019 Omnibus); section 105 of Division I of the 

Further Consolidated Appropriations Act, 2020, 

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

of Division O of the Consolidated Appropriations 

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

section 105 of Division O of the Consolidated 

Appropriations Act, 2021, FY 2021 Omnibus, 

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

117–43, Continuing Appropriations Act, 2022, and 

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

Further Continuing Appropriations Act, 2022 

through February 18, 2022 (together, FY 2022 

authority); 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). 

22Further Consolidated Appropriations Act, 

2024, Public Law 118–47 (Mar. 23, 2024). 

23See 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). 

24Appropriations and authorities provided by the 

continuing resolutions are available for the needs of 

the entire fiscal year to which the continuing 

resolution applies, although DHS’s ability to 

obligate funds or exercise such authorities may 

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

Comments on Due Date and Amount of District of 

Columbia’s Contributions to Special Employee 

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

1996) (explaining that ‘‘a continuing resolution 

appropriates the full annual amount regardless of 

its period of duration. . . . Standard continuing 

resolution language makes it clear that the 

appropriations are available to the extent and in the 

manner which would be provided by the pertinent 

appropriations act that has yet to be enacted (unless 

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

Consistent with this principle, DHS interprets the 

current continuing resolution to provide DHS with 

the ability to authorize additional H–2B visa 

numbers with respect to all of FY 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. 

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

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. 

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 otherwiseestablished 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. 

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 otherwiseestablished 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 


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25See Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2017 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

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

Exercise of Time-Limited Authority To Increase the 

Fiscal Year 2018 Numerical Limitation for the H– 

2B Temporary Nonagricultural Worker Program, 83 

FR 24905, 24917 (May 31, 2018). 

26See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2022, TRK 10625. 

27See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2022, TRK 10625. 

The number of approved workers exceeded the 

number of additional visas authorized for FY 2018 

to allow for the possibility that some approved 

workers would either not seek a visa or admission, 

would not be issued a visa, or would not be 

admitted to the United States. 

28Premium processing allows for expedited 

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

U.S.C. 1356(u). 

29See Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2019 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

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

30See 84 FR at 20021. 

31See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

Visa Issuance Data queried 10/2022, TRK 10625. 

The number of approved workers exceeded the 

number of additional visas authorized for FY 2019 

to allow for the possibility that some approved 

workers would either not seek a visa or admission, 

would not be issued a visa, or would not be 

admitted to the United States. 

32See DHS, DHS to Improve Integrity of Visa 

Program for Foreign Workers (March 5, 2020), 

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

33See Proclamation 9994 of Mar. 13, 2020, 

Declaring a National Emergency Concerning the 

Coronavirus Disease (COVID–19) Outbreak, 85 FR 

15337 (Mar. 18, 2020). 

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

1245745115458568192?s=20. 

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

1245745116528156673. 

36See Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2021 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 86 FR 

28198 (May 25, 2021). 

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. 

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. 

On May 8, 2019, DHS and DOL jointly 

published a temporary final rule 

authorizing an increase of up to 30,000 

additional H–2B visas for the remainder 

of FY 2019.29 The additional visas were 

limited to returning workers who had 

been counted against the H–2B cap or 

were otherwise granted H–2B status in 

the previous three fiscal years, and for 

those businesses that attested to a level 

of need such that, if they did not receive 

all of the workers requested on the Form 

I–129, they were likely to suffer 

irreparable harm, in other words, suffer 

a permanent and severe financial loss.30

The Secretary determined that limiting 

returning workers to those who were 

issued an H–2B visa or granted H–2B 

status in the past 3 fiscal years was 

appropriate, as it mirrored the standard 

that Congress designated in previous 

returning worker provisions. On June 5, 

2019, approximately 30 days after the 

supplemental visas became available, 

USCIS announced that it received 

sufficient petitions filed pursuant to the 

FY 2019 supplemental cap increase. 

USCIS did not conduct a lottery for the 

FY 2019 supplemental cap increase. The 

total number of H–2B workers approved 

towards the FY 2019 supplemental cap 

increase was 32,680.31 The vast majority 

of these petitions requested premium 

processing and were adjudicated within 

15 calendar days. 

Although Congress provided the 

Secretary of Homeland Security with 

the discretionary authority to increase 

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

did not exercise that authority. DHS 

initially intended to exercise its 

authority and, on March 4, 2020, 

announced that it would make available 

35,000 supplemental H–2B visas for the 

second half of the fiscal year.32 On 

March 13, 2020, then-President Trump 

declared a National Emergency 

concerning COVID–19, a communicable 

disease caused by the coronavirus 

SARS-CoV–2.33 On April 2, 2020, DHS 

announced that the rule to increase the 

H–2B cap was on hold due to economic 

circumstances, and that DHS would not 

release additional H–2B visas until 

further notice.34 DHS also noted that the 

Department of State had suspended 

routine visa services.35

In FY 2021, DHS in consultation with 

DOL determined it was appropriate to 

increase the H–2B cap for FY 2021 

coupled with additional protections (for 

example, post-adjudication audits, 

investigations, and compliance checks), 

based on the demand for H–2B workers 

in the second half of FY 2021, 

continuing economic growth, the 

improving job market, and increased 

visa processing capacity by the 

Department of State. Accordingly, on 

May 25, 2021, DHS and DOL jointly 

published a temporary final rule 

authorizing an increase of up to 22,000 

additional H–2B visas for the remainder 

of FY 2021.36 The supplemental visas 

were available only to employers that 

attested they were likely to suffer 

irreparable harm without the additional 

workers. The allocation of 22,000 

additional H–2B visas under that rule 

consisted of 16,000 visas available only 

to H–2B returning workers from one of 

the last three fiscal years (FY 2018, 

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

initially reserved for nationals of the 

Northern Central American countries of 

El Salvador, Guatemala, and Honduras, 

who were exempt from the returning 

worker requirement. By August 13, 

2021, USCIS had received enough 

petitions for returning workers to reach 

the additional 22,000 H–2B visas made 


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

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

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

38The number of approved workers exceeded the 

number of additional visas authorized for FY 2021 

to allow for the possibility that some approved 

workers would either not seek a visa or admission, 

would not be issued a visa, or would not be 

admitted to the United States. See Department of 

Homeland Security, U.S. Citizenship and 

Immigration Services, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data 

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

Report September 30, 2023. 

39See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

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

2B Visa Issuance Report September 30, 2023. 

40See Exercise of Time-Limited Authority To 

Increase the Fiscal Year 2022 Numerical Limitation 

for the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 4722 

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

(correction). 

41See Department of Homeland Security, U.S. 

Citizenship and Immigration Services, Office of 

Performance and Quality, CLAIMS3, VIBE, DOS 

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

2B Visa Issuance Report September 30, 2023. 

42See Temporary Final Rule, Exercise of TimeLimited Authority To Increase the Numerical 

Limitation for Second Half of FY 2022 for the H– 

2B Temporary Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers Seeking To 

Change Employers, 87 FR 30334 (May 18, 2022). 

43See USCIS, Cap Reached for Additional 

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

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

44The number of approved workers exceeded the 

number of additional visas authorized for the 

second half of FY 2022 to allow for the possibility 

that some approved workers would either not seek 

a visa or admission, would not be issued a visa, or 

would not be admitted to the United States. See 

Department of Homeland Security, U.S. Citizenship 

and Immigration Services, Office of Performance 

and Quality, C3 Consolidated, queried 10/2023, 

TRK 13122, H–2B Visa Issuance Report September 

30, 2023. 

45See Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for FY 2023 for 

the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

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

(correction). 

46See USCIS, Cap Reached for Additional 

Returning Worker H–2B Visas for the First Half of 

FY 2023, https://www.uscis.gov/newsroom/alerts/ 

cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); 

USCIS, Cap Reached for Additional Returning 

Worker H–2B Visas for the Early Second Half of FY 

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

47The number of approved workers exceeded the 

number of additional visas authorized for FY 2023 

to allow for the possibility that some approved 

workers would either not seek a visa or admission, 

would not be issued a visa, or would not be 

admitted to the United States. See DHS, USCIS, 

Office of Performance and Quality, CLAIMS3, VIBE, 

DOS Visa Issuance Data, queried 10/2023, TRK 

13122, H–2B Visa Issuance Report September 30, 

2023. 

available under the FY 2021 H–2B 

supplemental visa temporary final 

rule.37 The total number of H–2B 

workers approved towards the FY 2021 

supplemental cap increase was 

30,707.38 This total number included 

approved H–2B petitions for 23,937 

returning workers, as well as 6,805 

beneficiaries from the Northern Central 

American countries.39

On January 28, 2022, DHS and DOL 

jointly published a temporary final rule 

authorizing an increase of up to 20,000 

additional H–2B visas for FY 2022 

positions with start dates on or before 

March 31, 2022.40 These supplemental 

visas were available only to employers 

that attested they were suffering or 

would suffer impending irreparable 

harm without the additional workers. 

The allocation of 20,000 additional H– 

2B visas under that rule consisted of 

13,500 visas available only to H–2B 

returning workers from one of the last 

three fiscal years (FY 2019, 2020, or 

2021) and 6,500 visas reserved for 

Salvadoran, Guatemalan, Honduran, 

and Haitian nationals, who were 

exempted from the returning worker 

requirement. USCIS data show that the 

total number of H–2B workers approved 

towards the first half FY 2022 

supplemental cap increase was 17,381, 

including 14,150 workers under the 

returning worker allocation, as well as 

3,231 workers approved towards the 

Haitian/Northern Central American 

allocation.41

For the second half of FY 2022, DHS 

in consultation with DOL determined it 

was appropriate to increase the H–2B 

cap for FY 2022 positions with start 

dates beginning on April 1, 2022 

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

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

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 


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48Exercise 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). 

49See 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-2bvisas-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/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2024 (Apr. 18, 2024). 

50The 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. 

51The 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. 

52See 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). 

53See 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). 

54See Outdoor Amusement Bus. Ass’n, 983 F.3d 

at 684–89. 

55See 8 CFR 214.2(h)(6)(iii)(A) and (C), 

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

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

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. 

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

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 


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56These 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] . . . .’’)). 

57The White House, Los Angeles Declaration on 

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

www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/los-angeles-declaration-onmigration-and-protection/. 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/briefingroom/statements-releases/2024/05/07/fact-sheetthird-ministerial-meeting-on-the-los-angelesdeclarationon-migration-and-protection-inguatemala/. 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/briefingroom/statements-releases/2024/09/26/fact-sheetfourth-ministerial-meeting-on-the-los-angelesdeclaration-on-migration-and-protection/. 

58Trilateral Joint Statement, April 11, 2023, 

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

59The White House, Joint Statement from the 

United States and Guatemala on Migration (June 1, 

2023), https://www.whitehouse.gov/briefing-room/ 

statements-releases/2023/06/01/joint-statementfrom-the-united-states-and-guatemala-onmigration/; United States Department of State, U.S.- 

Colombia Joint Commitment to Address the 

Hemispheric Challenge of Irregular Migration (June 

4, 2023), https://www.state.gov/u-s-colombia-jointcommitment-to-address-the-hemispheric-challengeof-irregular-migration/; The White House, Readout 

of Principal Deputy National Security Advisor Jon 

Finer’s Meeting with Colombian Foreign Minister 

Alvaro Leyva (June 11, 2023), https://

www.whitehouse.gov/briefing-room/statementsreleases/2023/06/11/readout-of-principal-deputynational-security-advisor-jon-finers-meeting-withcolombian-foreign-minister-alvaro-leyva/; United 

States Department of State, U.S.-Costa Rica Joint 

Commitment to Address the Hemispheric Challenge 

of Irregular Migration (June 12, 2023), https://

www.state.gov/u-s-costa-rica-joint-commitment-toaddress-the-hemispheric-challenge-of-irregularmigration/; United States Department of State, 

Announcement of Safe Mobility Office in Ecuador 

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

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

#:∼:text=The%20United%20States%20is%20

pleased,authorized%20channels%20of

%20lawful%20migration. 

60See 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. 

61See https://twitter.com/DHSgov/status/ 

1580310211931144194?ref_src=twsrc%5Etfw (this 

supplemental allocation to workers from Haiti, 

Honduras, Guatemala, and El Salvador ‘‘advances 

the Biden Administration’s pledge, under the L.A. 

Declaration to expand legal pathways as an 

alternative to irregular migration’’); The White 

House, Fact Sheet: The Los Angeles Declaration on 

Migration and Protection U.S, Government and 

Foreign Partner Deliverables, https://

www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-and-foreign-partner-deliverables/ 

(addressing several measures, including the H–2B 

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

President’s commitment to support the people of 

Haiti.’’). We also note Congress’ 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). 

62While USCIS approved a greater number of 

beneficiaries from the Northern Central American 

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

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 


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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. 

63See 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. 

64See DHS, USCIS, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, 

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

Report September 30, 2023. 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. 

65See 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. 

66See, e.g., USAID, Administrator Samantha 

Power at the Summit of the Americas Fair 

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

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

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

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

ministries in Honduras and Guatemala, and the 

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

record number of H–2 visas issued in 2021, 

including a nearly forty percent increase over the 

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

three countries.’’); USCIS, H–2B Visa Program: 

Overview and Country Specific Allocations 

Recruitment Webinar, https://www.uscis.gov/ 

outreach/upcoming-national-engagements/h-2bvisa-program-overview-and-country-specificallocations-recruitment-webinar (March 7, 2024). 

67For 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. 

68The 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. 69See, 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). 70These letters were retained in the 

administrative record for those rules. 

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 BidenHarris 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

DHS will not accept and will reject 

petitions submitted for the countryspecific 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. 

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 


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71See 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. 

72See, 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-H2BImpact-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/hotelemployment-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-doubleseasonal-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-houseshighlights-efforts-to-support-seafood-industrysemployment-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/. 

73Congress 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). 

74The 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). 

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. 

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

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. 

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

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 


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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. 

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). 

77See Circumvention of Lawful Pathways, 88 FR 

31314 (May 16, 2023); Securing the Border, 89 FR 

81156, (Oct. 7, 2025). 

78USCIS 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. 

79On June 3, 2021, USCIS announced that it had 

received enough petitions to reach the cap for the 

additional 16,000 H–2B visas made available for 

returning workers only, but that it would continue 

accepting petitions for the additional 6,000 visas 

allotted for nationals of the Northern Central 

American countries. See USCIS, Cap Reached for 

Additional Returning Worker H–2B Visas for FY 

2021, https://www.uscis.gov/news/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-fy-2021 (Jun. 3, 2021). On July 23, 2021, USCIS 

announced that, because it did not receive enough 

petitions to reach the allocation for the Northern 

Central American countries by the July 8 filing 

deadline, the remaining visas were available to H– 

2B returning workers regardless of their country of 

origin. See USCIS, Employers May File H–2B 

Petitions for Returning Workers for FY 2021, 

https://www.uscis.gov/news/alerts/employers-mayfile-h-2b-petitions-for-returning-workers-for-fy-2021 

(Jul. 23, 2021). 

80See 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. 

81See 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. 

82See USCIS, Cap Reached for Additional 

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

Continued 

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. 

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 BidenHarris 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. 

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

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 


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95638 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

2022, https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-second-half-of-fy-2022 (May 31, 2022). 83See 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. 

84See USCIS, Cap Reached for Additional 

Returning Worker H–2B Visas for the First Half of 

FY 2023, https://www.uscis.gov/newsroom/alerts/ 

cap-reached-for-additional-returning-worker-h-2bvisas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); 

USCIS, Cap Reached for Additional Returning 

Worker H–2B Visas for the Early Second Half of FY 

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

85See DHS, USCIS, Office of Performance and 

Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, 

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

Report September 30, 2023. 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. 

86See USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2024, https://www.uscis.gov/newsroom/ 

alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2024 (Oct. 13, 2023). 87See 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-2bvisas-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/capreached-for-additional-returning-worker-h-2b-visasfor-the-early-second-half-of-fy-2024 (Apr. 18, 2023). 

88See 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. 

89See 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-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 90See USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2017, https://www.uscis.gov/archive/ 

uscis-reaches-the-h-2b-cap-for-the-first-half-offiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2018, https:// 

www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2019, https:// 

www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); 

USCIS, USCIS Reaches H–2B Cap for First Half of 

FY 2020, https://www.uscis.gov/news/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (Nov. 20, 2019); USCIS, USCIS Reaches H–2B 

Cap for First Half of FY 2021, https://

www.uscis.gov/news/alerts/uscis-reaches-h-2b-capfor-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, 

USCIS Reaches H–2B Cap for First Half of FY 2022, 

https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 

2021); USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2023, https://www.uscis.gov/newsroom/ 

alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B 

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

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024; USCIS, USCIS Reaches 

H–2B Cap for First Half of Fiscal Year 2025, https:// 

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fiscal-year-2025 (Sept. 19, 

2024). 

91USCIS analysis of DOL OLFC Performance 

data. 

92USCIS 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. 

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

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

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

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

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. 

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


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Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95639 

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. 

94See DOL, BLS, The Employment Situation— 

August 2024, https://www.bls.gov/news.release/ 

archives/empsit_10042024.pdf (Sept. 6, 2024). 

95Annual 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). 

96The 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. 

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. 

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. 

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. 


ddrumheller on DSK120RN23PROD with RULES2ER02DE24.003</GPH>

Chart 1: ~28 Visa Issuance vs National Unemployment Rate 

40,000 

0 .._ _______________ .._ ____ ....... __________ --'-_____________ ~ 

2.00 3Jl0 4.00 5.00 1.00 8.00 !1.00 10.00 
95640 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

97Further, 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. 

98USCIS, USCIS Reaches H–2B Cap for First Half 

of Fiscal Year 2025, https://www.uscis.gov/ 

newsroom/alerts/uscis-reaches-h-2b-cap-for-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 

99See USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2017, https://www.uscis.gov/archive/ 

uscis-reaches-the-h-2b-cap-for-the-first-half-offiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2018, https:// 

www.uscis.gov/archive/uscis-reaches-h-2b-cap-forfirst-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2019, https:// 

www.uscis.gov/news/news-releases/uscis-reaches-h2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); 

USCIS, USCIS Reaches H–2B Cap for First Half of 

FY 2020, https://www.uscis.gov/news/newsreleases/uscis-reaches-h-2b-cap-for-first-half-of-fy2020 (Nov. 20, 2019); USCIS, USCIS Reaches H–2B 

Cap for First Half of FY 2021, https://

www.uscis.gov/news/alerts/uscis-reaches-h-2b-capfor-first-half-of-fy-2021 (Nov. 18, 2020); USCIS, 

USCIS Reaches H–2B Cap for First Half of FY 2022, 

https://www.uscis.gov/newsroom/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 

2021); USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2023, https://www.uscis.gov/newsroom/ 

alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2023 (Sept. 14, 2022); USCIS, USCIS Reaches H–2B 

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

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2024 (Oct. 13, 2023); 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-year2025 (Sept. 19, 2024). 

100See USCIS, USCIS Reaches the H–2B Cap for 

Fiscal Year 2017, https://www.uscis.gov/archivealerts/uscis-reaches-the-h-2b-cap-for-fiscal-year2017 (Mar. 16, 2017); USCIS, USCIS Completes 

Random Selection Process for H–2B Visa Cap for 

Second Half of FY 2018, https://www.uscis.gov/ 

archive/uscis-completes-random-selection-processfor-h-2b-visa-cap-for-second-half-of-fy-2018 (Mar. 1, 

2018); USCIS, H–2B Cap Reached for FY 2019, 

https://www.uscis.gov/archive/h-2b-cap-reachedfor-fy-2019 (Feb. 22, 2019); USCIS, H–2B Cap 

Reached for Second Half of FY 2020, https://

www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy2020 (Feb. 26, 2020); USCIS, H–2B 

Cap Reached for Second Half of FY 2021, https:// 

www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy-2021 (Feb. 24, 2021); USCIS, H–2B 

Cap Reached for Second Half of FY 2022, https:// 

www.uscis.gov/newsroom/alerts/h-2b-cap-reachedfor-second-half-of-fy-2022 (Mar. 1, 2022); USCIS, 

USCIS Reaches H–2B Cap for Second Half of FY 

2023 and Announces Filing Dates for the Second 

Half of FY 2023 Supplemental Visas, https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-second-half-of-fy-2023-and-announcesfiling-dates-for-the-second-half-of (Mar. 2, 2023); 

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/uscisreaches-h-2b-cap-for-second-half-of-fy-2024-andannounces-filing-dates-for-the-second-half-of (Mar. 

8, 2024). 

101See DOL, Announcements, https://

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

102See 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. 

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

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

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

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 


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Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95641 

103See 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-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 

104USCIS, Cap Reached for Additional Returning 

Worker H–2B Visas for the First Half of FY 2024, 

https://www.uscis.gov/newsroom/alerts/capreached-for-additional-returning-worker-h-2b-visasfor-the-first-half-of-fy-2024 (Jan. 12, 2023). 

105Compare 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. 

106Pursuant 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. 

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. 

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 rereleased could also entail an additional 

cap allocation, additional 

announcements to the public, and 

potentially an additional lottery, all of 

which would significantly increase 

operational burdens. In addition to 

increasing operational burdens, DHS 

believes that the opening, closing, and 

potential re-opening of this allocation 

(and/or other cap allocations) could 

cause confusion for the public and 

adjudicators. Furthermore, not setting a 

filing cutoff date prior to September 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. 

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 rereleased could also entail an additional 

cap allocation, additional 

announcements to the public, and 

potentially an additional lottery, all of 

which would significantly increase 

operational burdens. In addition to 

increasing operational burdens, DHS 

believes that the opening, closing, and 

potential re-opening of this allocation 


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95642 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

107USCIS, 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-forfy-2024 (last visited Aug. 20, 2024). 

108Pursuant 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. 

109While 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. 

110See 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). 

111See 20 CFR 655.15(b). 

112As 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. 

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. 

114See 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’’). 

(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

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. 

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 capsubject 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. 

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. 

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 


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115Public 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.’’ 

116See 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.). 

117See 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.’’). 

119See 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.’’). 

120As 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 countryspecific 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. 

121As 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. 

122Pursuant 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. 

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 countryspecific 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

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

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 


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123See 8 CFR 214.2(h)(8)(vii). 

124See 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). 

125See 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. 

126The previous review of an applicant’s 

qualifications and current evidence of lawful travel 

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 computergenerated selection, from among the 

petitions received on the final receipt 

date the remaining number of petitions 

deemed necessary to generate the 

numerical limit of approvals for each of 

the scenarios involving numerical 

limitations to the supplemental cap. 

USCIS may, but will not necessarily, 

conduct a lottery if: the 20,716 

supplemental cap visas limited to 

returning workers that will be 

immediately available for employers 

with dates of need on or after October 

1, 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. 

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 


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to the United States will generally lead to a shorter 

processing time of a renewal application. 

127The 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-interviewrequirement-for-certaing-nonimmigrant-visaapplicants.html (last updated Dec. 21, 2023). 

128See 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/jointstatement-from-the-united-states-and-guatemalaon-migration/. 129 Id. 130See United States Department of State, U.S.- 

Colombia Joint Commitment to Address the 

Hemispheric Challenge of Irregular Migration (June 

4, 2023), https://www.state.gov/u-s-colombia-jointcommitment-to-address-the-hemispheric-challengeof-irregular-migration/. See 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-ofprincipal-deputy-national-security-advisor-jonfiners-meeting-with-colombian-foreign-ministeralvaro-leyva/. 

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. 

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, 


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131See United States Department of State, U.S.- 

Costa Rica Joint Commitment to Address the 

Hemispheric Challenge of Irregular Migration (June 

12, 2023), https://www.state.gov/u-s-costa-ricajoint-commitment-to-address-the-hemisphericchallenge-of-irregular-migration/. 

132See 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/. 

133See, e.g., USAID, Administrator Samantha 

Power at the Summit of the Americas Fair 

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

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

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

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

ministries in Honduras and Guatemala, and the 

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

record number of H–2 visas issued in 2021, 

including a nearly forty percent increase over the 

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

three countries.’’). 

134See also National Security Council, 

Collaborative Migration Management Strategy, 

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

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

States has strong national security, economic, and 

humanitarian interests in reducing irregular 

migration and promoting safe, orderly, and humane 

migration’’ within North and Central America). 

135See, e.g., https://twitter.com/DHSgov/status/ 

1580310211931144194?ref_src=twsrc%5Etfw (this 

supplemental allocation to workers from Haiti, 

Honduras, Guatemala, and El Salvador ‘‘advances 

the Biden Administration’s pledge, under the L.A. 

Declaration to expand legal pathways as an 

alternative to irregular migration’’); The White 

House, Fact Sheet: The Los Angeles Declaration on 

Migration and Protection U.S, Government and 

Foreign Partner Deliverables, https://

www.whitehouse.gov/briefing-room/statementsreleases/2022/06/10/fact-sheet-the-los-angelesdeclaration-on-migration-and-protection-u-sgovernment-and-foreign-partner-deliverables/ 

(addressing several measures, including the H–2B 

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

President’s commitment to support the people of 

Haiti’’). 

136As 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-waiversof-the-interview-requirement-for-certaingnonimmigrant-visa-applicants.html (last updated 

Dec. 21, 2023). 

137See 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. 

138See 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). 

139The ‘‘combined total’’ includes all H–2B visas 

and are not limited to visas issued under 

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

Second, in addition to the allocation 

for returning workers, the countryspecific 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

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

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. 

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 


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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. 

140See 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. 

141See 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. 

143See 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). 

144See DHS, USCIS, Office of Performance and 

Quality, ELIS, CLAIMS3, VIBE, DOS Visa Issuance 

Data queried 10/2024, PAER0016221. 

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). 

146An 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.’’ 147Since 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). 

148The 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. 

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. 

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. 

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

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 


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95648 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

149See section 105 of Pub. L. 118–47, as extended 

by Public Law 118–83. 150See Loper Bright Enterprises v. Raimondo, 144 

S. Ct. 2244, 2263 (2024). 151Public 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.’’). 

153See 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.). 

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. 

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 


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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 


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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 countryspecific allocation (which may be 

satisfied by the separate Form I–129 that 

employers are required to file for such 

workers in accordance with this rule); 

and (3) a recruitment report for any 

additional recruitment required under 

this rule for a period of 3 years 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 


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154Pursuant 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. 

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. 

156The 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. 

157This 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). 

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

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/icetip-form (last visited Aug. 20, 2024), or 

alternately, via the toll-free ICE Tip 

Line, (866) 347–2423.155

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. 

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 


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159On 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. 

160See 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). 

161A 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). 

162The 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.’’ 

163The 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. 

greater certainty for H–2B employers 

and workers.159

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

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

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. 

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 


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164See 8 CFR 214.2(h)(2)(ii). 

instance, one requesting returning 

workers and another requesting workers 

under the country-specific allocation), 

each H–2B petition must include a copy 

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

associated with the same TLC. The total 

number of requested workers may not 

exceed the total number of workers 

indicated on the approved TLC. 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

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 nonemergency situation must file a 

completed Application for Temporary 

Employment Certification with the 

National Processing Center (NPC) 

designated by the OFLC Administrator 

no more than 90 calendar days and no 

fewer than 75 calendar days before the 

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

for the work). See 20 CFR 655.15. 

Emergency Procedures 

Under 20 CFR 655.17, an employer 

may request a waiver of the time 

period(s) for filing an Application for 

Temporary Employment Certification 

based on ‘‘good and substantial’’ cause, 

provided that the employer has 


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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 H2Bsupplementalvisas@dol.gov, 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 


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165The 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 

Continued 

and contents set forth in 20 CFR 655.18 

for recruitment of U.S. workers at the 

place of employment and remain posted 

for at least 15 calendar days. The 

employer must also follow all 

applicable SWA instructions for posting 

job orders and receive applications in 

all forms allowed by the SWA, 

including online applications. The 

Departments have concluded that 

keeping the job order posted for a period 

of at least 15 calendar days, during the 

period the employer is conducting the 

additional recruitment steps explained 

below and OFLC reposts the job 

opportunity information, will effectively 

ensure U.S. workers are apprised of the 

job opportunity and are referred for 

employment, if they are willing, 

qualified, and available to perform the 

work. The minimum 15 calendar day 

period also is consistent with the 

employer-conducted recruitment 

activity period applicable under 20 CFR 

655.40(b). 

Once the SWA places the new job 

order on its public labor exchange 

system, the SWA will perform its 

normal employment service activities by 

circulating the job order for intrastate 

clearance, and in interstate clearance by 

providing a copy of the job order to 

other SWAs with jurisdiction over listed 

worksites as well as those States the 

OFLC CO designated in the original 

Notice of Acceptance issued under 20 

CFR 655.33. Where the occupation or 

industry is traditionally or customarily 

unionized, the SWA will also circulate 

a copy of the new job order to the 

central office of the State Federation of 

Labor in the State(s) in which work will 

be performed, and the office(s) of local 

union(s) representing workers in the 

same or substantially equivalent job 

classification in the area(s) in which 

work will be performed, consistent with 

its current obligation under 20 CFR 

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

dissemination of these job 

opportunities, DOL encourages union(s) 

or hiring halls representing workers in 

occupations typically used in the H–2B 

program to proactively contact and 

establish partnerships with SWAs in 

order to obtain timely information on 

available temporary job opportunities. 

This will aid the SWAs’ prompt and 

effective outreach under the rule. DOL’s 

OFLC maintains a comprehensive 

directory of contact information for each 

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

eta/foreign-labor/contact. 

Contact With American Job Centers 

The employer also must conduct 

additional recruitment steps during the 

period of time the SWA is actively 

circulating the job order for intrastate 

clearance. First, the employer must 

contact, by email or other electronic 

means, the nearest American Job 

Center(s) (AJC) serving the area of 

intended employment where work will 

commence to request staff assistance to 

advertise and recruit U.S. workers for 

the job opportunity. AJCs bring together 

a variety of programs providing a wide 

range of employment and training 

services for U.S. workers, including job 

search services and assistance for 

prospective workers and recruitment 

services for employers through the 

Wagner-Peyser Program. Therefore, 

AJCs can offer assistance to employers 

with recruitment of U.S. workers, and 

contact with local AJCs will facilitate 

contemporaneous and effective 

recruitment activities that can broaden 

dissemination of the employer’s job 

opportunity through connections with 

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

workers to fill the employer’s labor 

need. For example, the local AJC, 

working in concert with the SWA, can 

coordinate efforts to contact 

community-based organizations in the 

geographic area that serve potentially 

qualified workers or, when a job 

opportunity is in an occupation or 

industry that is traditionally or 

customarily unionized, the local AJC 

may be better positioned to identify and 

circulate the job order to appropriate 

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

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

addition, as a partner program in the 

One-Stop System, AJCs are connected 

with the State’s unemployment 

insurance program, thus an employer’s 

connection with the AJC will help 

facilitate knowledge of the job 

opportunity to U.S. workers actively 

seeking employment. When contacting 

the AJC(s), the employer must provide 

staff with the job order number or, if the 

job order number is unavailable, a copy 

of the job order. 

To increase navigability and to make 

the process as convenient as possible, 

DOL offers an online service for 

employers to locate the nearest local 

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

and by selecting the ‘‘Find Local Help’’ 

feature on the main homepage. This 

feature will navigate the employer to a 

search function called ‘‘Find an 

American Job Center’’ where the city, 

state or zip code covering the 

geographic area where work will 

commence can be entered. Once entered 

and the search function is executed, the 

online service will return a listing of the 

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

geographic area as well as a contact 

option(s) and an indication as to 

whether the AJC is a ‘‘comprehensive’’ 

or ‘‘affiliate’’ center. Employers must 

contact the nearest ‘‘comprehensive’’ 

AJC serving the area of intended 

employment where work will 

commence or, where a 

‘‘comprehensive’’ AJC is not available, 

the nearest ‘‘affiliate’’ AJC. A 

‘‘comprehensive’’ AJC tends to be a 

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 


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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-bnymellon-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. 

166These resources were developed based on 

recent information received from stakeholders 

indicating that collective bargaining agreements 

now exist in certain occupations, such as 

landscaping. In addition, the occupations or 

industries listed are ones in which the Department 

has typically observed substantial union presence 

in its program administration experience, such as 

occupations involved in public sector employment, 

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

Statistics data has demonstrated a presence of 

union affiliated workers. See BLS, Economic News 

Release, Table 3. Union Affiliation of Employed 

Wage and Salary Workers by Occupation and 

Industry (Jan. 23, 2024), https://www.bls.gov/ 

news.release/archives/union2_01232024.pdf. 

167Furloughed 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. 

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 H-2B@aflcio.org, but 

employers may also visit https://

aflcio.org to obtain information on other 

effective means of contacting the 

organization for assistance. Upon 

receipt, the national AFL–CIO will 

distribute a copy of the job order, on 

behalf of the employer, to the most 

appropriate AFL–CIO office(s) serving 

the area of intended employment for 

that job opportunity. 

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 


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168The 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). 

provides greater assurance that workers 

understand the terms and working 

conditions of the job opportunity and 

can more effectively pursue redress if 

they do not receive the disclosed terms 

and working conditions. Written 

communication and disclosure will also 

make it easier for employers to establish 

compliance with this requirement, if 

necessary. 

Contact With the Bargaining 

Representative or Posting of the Job 

Order 

As the employer was required to do 

when initially applying for its labor 

certification, the employer must provide 

a copy of the job order to the bargaining 

representative for its employees in the 

occupation and area of intended 

employment, consistent with 20 CFR 

655.45(a), or if there is no bargaining 

representative, post the job order in the 

places and manner described in 20 CFR 

655.45(b). Similar to the requirement to 

contact former U.S. workers, discussed 

above, the employer must provide the 

contact and disclosures required by this 

paragraph in a language understood by 

the worker, as necessary or reasonable, 

and in writing to ensure the recruitment 

effort is effective and meaningful in 

reaching each former U.S. worker. 

Contact With Current U.S. Workers 

As was required in the FY 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 


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access to the electronic advertisement 

on the company website must be clearly 

visible on the website’s homepage or 

easily accessible from the website’s 

homepage using any job search tool(s) or 

direct links from the homepage to a 

subsequent web page where other 

available jobs or careers are normally 

posted by the employer. 

The Departments have concluded that 

keeping the electronic advertisements 

on company websites posted for a 

period of at least 15 calendar days, 

along with the other additional 

recruitment steps discussed above, will 

effectively ensure that U.S. workers are 

apprised of the job opportunity and are 

referred for employment, if they are 

willing, qualified, and available to 

perform the work. The minimum 15 

calendar day period is also consistent 

with the employer-conducted 

recruitment activity period applicable 

under 20 CFR 655.40(b). 

The employer must retain all 

documentation establishing that it has 

posted the electronic advertisement of 

the job opportunity in compliance with 

regulatory requirements and submit all 

such information upon request from the 

Departments. Documentation or 

evidence for employers to establish 

compliance with these regulatory 

requirements can include screenshots of 

the company website on which the 

advertisement appears for a period of no 

less than 15 days and screen shots of the 

web pages establishing the path that 

U.S. workers must follow to access the 

advertisement on the website. 

Hiring U.S. Workers 

The employer must hire any qualified 

U.S. worker who applies or is referred 

for the job opportunity until either (1) 

the date on which the last H–2B worker 

departs for the place of employment, or 

(2) 30 days after the last date on which 

the SWA job order is posted, whichever 

is later. Additionally, consistent with 20 

CFR 655.40(a), applicants may be 

rejected only for lawful job-related 

reasons. Given that the employer, SWA, 

and AJC(s) will be actively engaged in 

conducting recruitment and broader 

dissemination of the job opportunity 

during the period of time the job order 

is active, this requirement provides an 

adequate period of time for U.S. workers 

to contact the employer or SWA for 

referral to the employer and completion 

of the additional recruitment steps 

described above. As explained above, 

the Departments have determined that if 

employers file a petition 30 or more 

days after their dates of need, they have 

not conducted recruitment recently 

enough for the Departments to 

reasonably conclude that there are 

currently an insufficient number of U.S. 

workers qualified, willing, and available 

to perform the work absent additional 

recruitment. 

Because of the abbreviated timeline 

for the additional recruitment required 

for employers whose initial recruitment 

has gone stale, the Departments have 

determined that this hiring period is 

necessary to approximate the hiring 

period under normal recruitment 

procedures and ensure that domestic 

workers have access to these job 

opportunities, consistent with the 

Departments’ mandate. Additionally, 

given the relatively brief period during 

which additional recruitment will 

occur, additional time may be necessary 

for U.S. workers to have a meaningful 

opportunity to learn about the job 

opportunities and submit applications. 

The Departments remind all H–2B 

employers that the job opportunity must 

be, through the recruitment period set 

forth in this rule, open to any qualified 

U.S. worker regardless of race, color, 

national origin, age, sex, religion, 

disability, or citizenship, as specified 

under 20 CFR 655.20(r). Further, 

employers that wish to require 

interviews must conduct those 

interviews by phone or provide a 

procedure for the interviews to be 

conducted in the location where the 

worker is being recruited so that the 

worker incurs little or no cost. 

Employers cannot provide potential H– 

2B workers with more favorable 

treatment with respect to the 

requirement for, and conduct of, 

interviews. See 20 CFR 655.40(d). 

Any U.S. worker who applies or is 

referred for the job opportunity and is 

not considered by the employer for the 

job opportunity, experiences difficulty 

accessing or understanding the material 

terms and conditions of the job 

opportunity, or believes they have been 

improperly rejected by the employer 

may file a complaint directly with the 

SWA serving the area of intended 

employment. Each SWA maintains a 

complaint system for public labor 

exchange services, established under 20 

CFR part 658, subpart E, and any 

complaint filed with the SWA by, or on 

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

H–2B job order will be processed under 

this existing complaint system. 

Depending on the circumstances, the 

SWA may seek informal resolution by 

working with the complainant and the 

employer to resolve, for example, 

miscommunications with the employer 

to be considered for the job opportunity 

or other concerns or misunderstandings 

related to the terms and conditions of 

the job opportunity; or issue a formal, 

written determination where informal 

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 


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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 

(H2B.Ombudsman@dol.gov). The H–2B 

Ombudsman Program facilitates the fair 

and equitable resolution of concerns 

that arise within the H–2B filing 

community, by conducting independent 

and impartial inquiries into issues 

related to the administration of the H– 

2B program. The H–2B Ombudsman 

Program also receives concerns and 

information relevant to case processing 

from employers, unions, and worker 

advocate organizations and ensures 

such information is appropriately 

referred within OFLC or to SWAs, as 

appropriate. 

DOL actively monitors the H–2B 

Ombudsman Program email box, which 

is the best method for the public to 

provide information to the Department 

that is relevant to the processing of H– 

2B applications. Such information may 

include information about an in-process 

TLC application, information regarding 

the employer’s compliance with H–2B 

recruitment of U.S. workers, or 

information bearing on an employer’s 

irreparable harm justification. When the 

H–2B Ombudsman Program receives 

information relevant to its review of an 

H–2B TLC application, the information 

will be forwarded to the H–2B 

processing center. The H–2B processing 

center will review the information it 

receives and will consider it, as 

appropriate. 

The H–2B Ombudsman Program, 

however, is separate and distinct from 

the employment service complaint 

system administered by the 

Employment and Training 

Administration under regulations at 20 

CFR part 658, subpart E. Any 

information relevant to an employment 

service complaint will be forwarded to 

the appropriate SWA. The public may 

also submit employment service 

complaints directly to the appropriate 

SWA; the contact information for each 

SWA is available at the following web 

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

foreign-labor/contact. 

Complaints regarding an employer’s 

failure to comply with the H–2B 

program requirements may also be 

submitted to DOL’s WHD. WHD has the 

authority to investigate the employer’s 

attestations, as the attestations are a 

required part of the H–2B petition 

process under this rule and the 

attestations rely on the employer’s 

existing, approved TLC. Where a WHD 

investigation determines that there has 

been a willful misrepresentation of a 

material fact or a substantial failure to 

meet the required terms and conditions 

of the attestations, WHD may institute 

administrative proceedings to impose 

sanctions and remedies, including (but 

not limited to) assessment of civil 

money penalties; recovery of wages due 

to workers; make-whole relief for any 

U.S. worker who has been improperly 

rejected for employment, laid off, or 

displaced; make-whole relief for any 

person who has been discriminated 

against; and/or debarment for 1 to 5 

years. See 29 CFR 503.19, 503.20. This 

regulatory authority is consistent with 

WHD’s existing enforcement authority 

and is not limited by the expiration date 

of this rule. Therefore, in accordance 

with the documentation retention 

requirements at 20 CFR 655.68, 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. 


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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 noncompliance with program requirements 

and the information gathered during the 

audit assists DOL in determining 

whether it needs to further investigate 

or debar an employer or its agent or 

attorney from future labor certifications. 

Under this rule, an employer may 

submit a petition to USCIS, including a 

valid TLC and Form ETA–9142B–CAA– 

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 


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169Because 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. 

170See 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.’’). 

171See 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-firsthalf-of-fiscal-year-2025 (Sept. 19, 2024). 172See 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). 

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. 

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. 

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 


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173On 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. 

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

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

Supplement Number of 

visas 

FY25 First Half Returning 

Worker Allocation .............. 20,716 

TABLE 1—ALLOCATION OF

SUPPLEMENTAL VISAS—Continued 

Supplement Number of 

visas 

FY25 Second Half Returning 

Worker Allocation .............. 19,000 

FY25 Second Half Returning 

Worker Allocation #2— 

(Late season Filers) .......... 5,000 

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 countryspecific allocation who are exempt from 

the returning worker requirement. This 

TFR aims to prevent irreparable harm to 

certain U.S. businesses by allowing 

them to hire additional H–2B workers 

within FY 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 


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that these activities could result in some 

U.S. workers being hired. 

• The existence of a lawful pathway 

for up to 20,000 temporary workers from 

countries included in the countryspecific allocation is likely to provide 

multiple benefits in terms of U.S. policy 

with respect to those countries; and 

• The Federal Government benefits 

from increased evidence regarding 

attestations. Table 2 provides a 

summary of the provisions in this rule 

and some of their impacts. 

TABLE 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT

Current provision Changes resulting from the provisions of the TFR 

Expected costs of the provisions of 

the TFR 

Expected benefits of the provisions 

of the TFR 

—The current statutory 

cap limits H–2B visa allocations to 66,000 

workers a year.

—The amended provisions will allow 

for an additional 64,716 H–2B 

temporary workers. 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 will be exempt from the returning worker requirement.

—The total estimated opportunity 

cost of time to file Form I–129 (Petition for a Nonimmigrant Worker) 

by human resource specialists is 

approximately $552,801. The total 

estimated opportunity cost of time 

to file Form I–129 and Form G–28 

will range from approximately 

$1,383,848 if filed by in-house lawyers to approximately $2,385,900 

if filed by outsourced lawyers. The 

total estimated opportunity cost of 

time associated with filing additional petitions ranges from 

$1,936,649 to $2,938,701 depending on the filer.

—Form I–129 petitioners would be 

able to hire temporary workers 

needed to prevent their businesses from suffering irreparable 

harm. 

—Businesses that are dependent on 

the success of other businesses 

that are dependent on H–2B workers would be protected from the 

repercussions of local business 

failures. 

—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 additional H–2B workers 

were not 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 required to fill 

out Form ETA–9142B in order to 

utilize the 5,000 late season H–2B 

visas allocated under the rule.

—The estimated cost for late season 

petitioners to file Form ETA– 

9142B ranges from $63,347 to 

$94,469 depending on the filer.

—An approved Form ETA–9142B is 

required before filing a Form I–129 

to request H–2B workers. 

n/a .................................... —Petitioners will be required to fill 

out the newly created 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.

—The total estimated cost to petitioners to complete and file Form 

ETA–9142–B–CAA–9 is approximately $1,992,995.

—Form ETA–9142–B–CAA–9 will 

serve as initial evidence to DHS 

that the petitioner meets the irreparable harm standard and returning worker requirements. 


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95664 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

TABLE 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued 

Current provision Changes resulting from the provisions of the TFR 

Expected costs of the provisions of 

the TFR 

Expected benefits of the provisions 

of the TFR 

n/a .................................... —Certain Petitioners will be required 

to conduct an additional round of 

recruitment.

—The total estimated cost to petitioners to conduct an additional 

round of recruitment is approximately $296,968.

—The additional round of recruitment 

will ensure that a U.S. worker who 

is willing and able to fill the 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 who is 

physically present in the United 

States may port to another employer.

—The total estimated opportunity 

cost of time to file Form I–129 by 

human resource specialists is approximately $45,462. The total estimated opportunity cost of time to 

file Form I–129 and Form G–28 

will range from approximately 

$113,387 if filed by in-house lawyers to approximately $195,491 if 

filed by outsourced lawyers.

—The total estimated costs associated with filing Form I–907 if it is 

filed with Form 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.

—H–2B workers present in the 

United States will be able to port 

to another employer and potentially extend their stay and, therefore, earn additional wages. 

—An H–2B worker with an employer 

that is not complying with H–2B 

program requirements would have 

additional flexibility in porting to 

another employer’s certified position. 

—This provision would ensure employers will be able to hire the H– 

2B workers they need. 

—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 conduct 

several 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.

—Employers will have to comply with 

audits for an estimated total opportunity cost of time of $159,090.

—It is expected both DHS and DOL 

will be able to shift resources to be 

able to conduct these audits without incurring additional costs. 

However, the Departments will 

incur opportunity costs of time. 

The audits are expected to take a 

total of approximately 3,000 hours 

and cost approximately $270,960.

—DOL and DHS audits will yield evidence of the efficacy of attestations in enforcing compliance with 

H–2B supplemental cap requirements. 

—Conducting a significant number of 

audits will discourage 

uncorroborated attestations. 

—Conducting a significant number of 

audits will ensure that increasing 

the number of H–2B employers 

through the supplemental cap 

does not undermine the integrity of 

the H–2B program. 

Additional Scrutiny ........... —Some petitioners will provide additional evidence.—Some employers will need to print 

and ship additional evidence to 

USCIS. 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 regarding the time to comply. The estimated cost to submit additional 

evidentiary requirements is 

$20,740.

—Additional scrutiny of employers 

with past H–2B program violations 

are aimed at ensuring compliance 

with program requirements, reducing harms to both U.S. workers 

and H–2B workers. 

Familiarization Cost ......... —Petitioners or their representatives 

will familiarize themselves with the 

rule.

—Petitioners or their representatives 

will need to read and understand 

the rule at an estimated total opportunity cost of time that ranges 

from $4,031,694 to $6,014,981.

—Petitioners will have the necessary 

information to take advantage of 

and comply with the provisions of 

this rule. 


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174Revised 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). 

175See 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). 

176A 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). 

177September 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 2—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued 

Current provision Changes resulting from the provisions of the TFR 

Expected costs of the provisions of 

the TFR 

Expected benefits of the provisions 

of the TFR 

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. 

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 countryspecific 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

TABLE 3—DOL CERTIFIED WORKER DEMAND * 

Fiscal year Number of 

certifications 

Number of 

DOL certified 

workers 

requested 

DOL certified 

workers with 

requested start 

dates 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: 


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179See Table 4 and Table 5, https://

www.federalregister.gov/documents/2022/12/15/ 

2022-27236/exercise-of-time-limited-authority-toincrease-the-numerical-limitation-for-fy-2023-forthe-h-2b (accessed September 20, 2024). 180See 20 CFR 655.15(b). 181See USCIS, https://www.uscis.gov/newsroom/ 

alerts/cap-reached-for-additional-returning-workerh-2b-visas-for-the-early-second-half-of-fy-2024, for 

example (accessed October 25, 2024). 

182Tables 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. 

* 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. 

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

TABLE 4—DOL CERTIFIED WORKER DEMAND FOR APRIL START DATES

Fiscal year 

Certified DOL 

workers 

requested 

DOL certified 

workers with 

requested start 

dates in April 

Percentage of 

DOL certified 

workers with 

requested start 

dates in 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 


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183USCIS, 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. 

184Under 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. 

185See, e.g., https://www.uscis.gov/newsroom/ 

alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy2024-and-announces-filing-dates-for-the-secondhalf-of. 

TABLE 4—DOL CERTIFIED WORKER DEMAND FOR APRIL START DATES—Continued 

Fiscal year 

Certified DOL 

workers 

requested 

DOL certified 

workers with 

requested start 

dates in April 

Percentage of 

DOL certified 

workers with 

requested start 

dates in April 

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

TABLE 5—DOL CERTIFIED WORKER DEMAND FOR POST-APRIL START DATES

Fiscal year 

Certified DOL 

workers 

requested 

DOL certified 

workers with requested start 

dates after April 

Percentage of 

DOL certified 

workers with requested start 

dates after 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. 

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


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186FY 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. 

187Calculation 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) 

188Calculation for expected late season TLCs: 

5,000 visas/14.80 beneficiaries per petition = 338 

TLCs (rounded). 

189USCIS, Filing Your Form G–28, https://

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

190Calculation: 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 6—FORM I–129 PETITIONS PER SUPPLEMENTAL H–2B VISA ALLOCATION

Supplement Supplement 

amount 

Total form 

I–129 

petitions 

received 

Total form 

I–129 

beneficiaries 

Beneficiaries 

per form I–129 

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-thefiscal-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-oftime-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

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. 

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

TABLE 7—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM G–28, FY 2020–2024 

Fiscal year 

Number of 

Form I–129 

H–2B petitions 

accompanied 

by a Form 

G–28 

Total number 

of Form I–129 

H–2B petitions 

received 

Percent of 

Form I–129 

H–2B petitions 

accompanied 

by 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 


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191Calculation: 4,373 estimated additional 

petitions * 91.19 percent premium processing filing 

rate = 3,988 (rounded) additional Form I–907. 

192Calculation: 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. 

193Calculation for expected late season TLCs: 

5,000 late season visas/14.80 beneficiaries per 

petition = 338 TLCs (rounded). 

194Calculation: 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. 

TABLE 7—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM G–28, FY 2020–2024— 

Continued 

Fiscal year 

Number of 

Form I–129 

H–2B petitions 

accompanied 

by a Form 

G–28 

Total number 

of Form I–129 

H–2B petitions 

received 

Percent of 

Form I–129 

H–2B petitions 

accompanied 

by a Form 

G–28 

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

TABLE 8—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY FORM I–907, FY 2020–2024 

Fiscal year 

Number of 

Form I–129 

H–2B petitions 

accompanied 

by Form I–907 

Total number 

of Form I–129 

H–2B petitions 

received 

Percent of 

Form I–129 

H–2B petitions 

accompanied 

by 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

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 


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195Calculation: 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. 

196H–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-CharacteristicsReport.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. 

197USCIS, Office of Performance and Quality, 

SAS PME C3 Consolidated, Data queried 08/2024, 

TRK 15749. 

198See Id. 

199See Id. 

200See Id. 

201Calculation, 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). 

202Calculation: 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. 

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

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. 

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 

Fiscal year 

Form I–129 H–2B 

petitions filed for 

extension of stay 

due to change of 

employer 

Form I–129 H–2B 

petitions filed for 

new employment 

Rate of extension 

to stay due to 

change of employer 

filings relative to 

new employment 

filings 

(%) 

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 


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203Calculation: 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. 

204Calculation: 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. 

205Calculation, 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. 

206Calculation: 359 Form I–129 H–2B petitions * 

91.19 percent premium processing filing rate = 327 

(rounded) Forms I–907. 

207Calculation, 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. 

208These 250 audits are separate and distinct 

from WHD’s investigations pursuant to its existing 

enforcement authority. 

209Available 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. 

211Calculation 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. 

212Filing fees are not considered costs to society. 

These fees have been accounted for as a transfer 

from petitioners to USCIS. 

213The 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). 

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

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 TFRrelated 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

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

TABLE 10—EMPLOYERS WITH H–2B 

VIOLATIONS WITH WORKER PROTECTION VIOLATION END DATE IN FY 

2019–2023 

Fiscal year 

Employers cited for 

H–2B violations with 

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

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 


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214U.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). 215U.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). 

216Calculation: $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). 

217Calculation, 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). 

218The DHS ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ 

acknowledges that ‘‘the cost of hiring services 

provided by an outside vendor or contractor is two 

to three times more expensive than the wages paid 

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

public comment to that rule. We believe the 

explanation and methodology used in the Final 

Small Entity Impact Analysis (SEIA) remains sound 

for using 2.5 as a multiplier for outsourced labor 

wages in this rule: Safe Harbor Procedures for 

Employers Who Receive a No-Match Letter: 

Clarification; Final Regulatory Flexibility Analysis, 

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

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

0921 (accessed 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). 

219Calculation, Outsourced Lawyer: $84.84 mean 

hourly wage * 2.5 benefits-to-wage multiplier = 

$212.10 hourly total compensation (hourly 

opportunity cost of time). 

220USCIS, Filing Your Form G–28, https://

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

(accessed September 25, 2024). 

221USCIS, 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). 

222Calculation: 0.83 hour to file Form G–28 + 

4.56 hours to file Form I–129 = 5.39 hours to file 

both forms. 

223Calculation, 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. 

224See 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). 

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. 

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 inhouse 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-towage 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

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. 

TABLE 11—FORM I–129 FILING FEES BY PETITIONER TYPE

Petitioner type Base fee 

Fraud 

prevention 

and detection 

fee 

Asylum 

processing fee Total fee 

H–2B Named Non-Small Employer or Nonprofit ........................................... $1,080 $150 $600 $1,830 

H–2B Named Small Employer ....................................................................... 540 150 300 990 


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225See Table 25 of the Fee Rule Regulatory 

Impact Analysis at https://www.regulations.gov/ 

document/USCIS-2021-0010-8179 (accessed 

October 28, 2024). 

226Calculation: 4,373 expected additional Forms 

I–129 * 30 percent petitioners with 26 or more 

employees = 1,312 (rounded). 

227Calculation: 4,373 expected additional Forms 

I–129 * 55 percent petitioners with 25 or fewer 

employees = 2,405 (rounded). 

228Calculation: 4,373 expected additional Forms 

I–129 * 15 percent non-profit petitioners = 656 

(rounded). 

229Calculation: 1,312 petitioners with 26 or more 

employees * 6 percent unnamed beneficiaries = 79 

(rounded). 

230Calculation: 1,312 petitioners with 26 or more 

employees * 94 percent unnamed beneficiaries = 

1,233 (rounded). 

231Calculation: 2,405 petitioners with 25 or fewer 

employees * 6 percent unnamed beneficiaries = 144 

(rounded). 

232Calculation: 2,405 petitioners with 25 or fewer 

employees * 94 percent unnamed beneficiaries = 

2,261 (rounded). 

233Calculation: 656 non-profit petitioners * 6 

percent unnamed beneficiaries = 39 (rounded). 

234Calculation: 656 non-profit petitioners * 94 

percent unnamed beneficiaries = 617 (rounded). 

235Calculation: 359 expected additional Forms I– 

129 * 30 percent petitioners with 26 or more 

employees = 108 (rounded). 

236Calculation: 359 expected additional Forms I– 

129 * 55 percent petitioners with 25 or fewer 

employees = 197 (rounded). 

237Calculation: 359 expected additional Forms I– 

129 * 15 percent non-profit petitioners = 54 

(rounded). 

238Calculation: 187 petitioners with 26 or more 

employees requesting named beneficiaries × $1,830 

+ 1,233 petitioners with 26 or more employees 

requesting unnamed beneficiaries × $1,330 + 341 

petitioners with 25 or fewer employees requesting 

named beneficiaries × $990 + 2,261 petitioners with 

25 or fewer employees requesting unnamed 

beneficiaries × $910 + 93 non-profits requesting 

named beneficiaries × $690 + 617 non-profits 

requesting unnamed beneficiaries × $610 = 

$4,817,740 

239Calculation: $1,685 per petition * 4,315 Forms 

I–907 = $7,270,775 

240Calculation: $4,817,740 + $7,270,775 = 

$12,088,515. 

241Calculation, HR specialist: $241.82 cost per 

petition * 2,286 Form I–129 = $552,801 (rounded) 

total cost. 

242Calculation, 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. 

243Calculation: $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. 

TABLE 11—FORM I–129 FILING FEES BY PETITIONER TYPE—Continued 

Petitioner type Base fee 

Fraud 

prevention 

and detection 

fee 

Asylum 

processing fee Total fee 

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 nonprofit 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

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

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

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 


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244The filing fee is a transfer from the petitioner 

requesting premium processing and proxy for the 

total costs to USCIS. 

245See 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. 

246Calculation, 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. 

247Calculation, 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. 

248Calculation, 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. 

249Calculation: $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. 

250The 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) 

251Calculation, 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. 

252Calculation, 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). 

253Calculation: $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. 

254Calculation: $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. 

255Calculation: $53.03 hourly opportunity cost of 

time * 0.17 hours to send OFLC and AFL–CIO the 

ETA case number = $9.02 (rounded). 

256Calculation: $53.03 + $9.02 = $62.05. 

257See 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). 

258Calculation: $54.30 mean hourly wage for a 

financial analyst * 1.45 benefits-to-wage multiplier 

= $78.74 (rounded). 

259Calculation: $78.74 estimated total 

compensation for a financial analyst * 5 hours to 

meet the requirements of the irreparable harm 

standard = $393.70. 

260Calculations, 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 

$1,685, 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

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

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 inhouse 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

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

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

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


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= $1,721,650 (rounded) to comply with attestation 

requirements. 

261Calculation: $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. 

262This 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. 

263Calculation: $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. 

264Calculation: 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. 

265Calculation, HR specialist: $241.82 estimated 

cost to file a Form I–129 H–2B petition * 188 

petitions = $45,462 (rounded). 

266Calculation, 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). 

267Calculation: 359 estimated additional Form I– 

129 H–2B petitions * 91.19 percent accompanied by 

Form I–907 = 327 (rounded) additional Form I–907. 

268Calculation, 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. 

The estimated total cost to file Form 

ETA–9142–B–CAA–9 and comply with 

the attestation is approximately 

$1,992,995.261

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 

§ 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

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

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 inhouse lawyer and $78.48 for an 

outsourced lawyer. The estimated total 

cost of the additional Forms I–907 if HR 


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269Calculation, HR specialist: $19.62 to file a 

Form I–907 * 171 forms = $3,355 (rounded). 

270Calculation, 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). 

271Calculation 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. 

272As noted above, in addition to these TFRspecific 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. 

273The number in hours for audits was provided 

by the USCIS, Service Center Operations. 

274Calculation: $53.03 hourly opportunity cost of 

time for an HR specialist * 12 hours to comply with 

an audit = $636.36 per audited employer. 

275Calculation: 250 audited employers * $636.36 

opportunity cost of time to comply with an audit 

= $159,090. 

276USPS, Priority Mail, https://www.usps.com/ 

ship/priority-mail.htm (accessed August 22, 2024). 

277See 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. 

278Calculation: $75.00 in printing costs + $16.00 

in shipping costs = $91.00 to print and ship 

evidence. 

279Calculation: 144 petitioners * $91.00 to print 

and ship evidence = $13,104 total printing and 

shipping costs. 

280Calculation: $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. 

281Calculation: 144 petitioners * $53.03 

opportunity cost of time per petitioner = $7,636 

total estimated opportunity cost of time to print and 

ship evidence. 

282Calculation: $13,104 total printing and 

shipping costs + $7,636 total opportunity cost of 

time = $20,740 total estimated cost of additional 

scrutiny. 283Brysbaert, Marc (2019, April 12). ‘How many 

words do we read per minute? A review and metaanalysis of reading rate.’ https://doi.org/10.31234/ 

osf.io/xynwg (accessed September 25, 2024). We use 

the average speed for silent reading of English 

nonfiction by adults. 

284Please note that this number represents that 

Departments’ best estimate of the final word count, 

given that the actual word may change during the 

promulgation of the Rule. 

285Calculation, Step 1: roughly 67,000 words/238 

words per minute = 282 (rounded) minutes. 

Calculation, Step 2: 282 minutes/60 minutes per 

hour = 4.7 (rounded) hours. 

286Calculation, 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. 

287Calculation, HR specialists: $249.24 

opportunity cost of time * 5,187 = $1,292,808 

(rounded). 

specialists file is $3,355.269 The 

estimated total cost of the additional 

Forms I–907 is $7,101 if filed by inhouse lawyers and $12,243 if filed by 

outsourced lawyers.270

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

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

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

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

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

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

The estimated hourly total 

compensation for a HR specialist, inhouse 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 


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288Calculation 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). 

289Calculation: $1,292,808 + $2,738,886 = 

$4,031,694. 

Calculation: $1,292,808 + $4,722,173 = 

$6,014,981. 

290Calculation 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. 

291Calculation: (3,988 + 327 Forms I–907) * 

$1,685 per form = $7,270,775. 

292Calculation: $4,817,740 + $7,270,775 = 

$12,088,515. 

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

294These audits are distinct from the WHD’s 

authority to perform investigations regarding 

employers’ compliance with the requirements of the 

H–2B program. 

295Calculation: 12 hours to conduct an audit * 

250 audits = 3,000 total hours to conduct audits. 296See U.S. Office of Personnel Management, Pay 

and Leave, Salaries and Wages, For the Locality Pay 

area of Washington-Baltimore-Arlington, DC-MDVA-WV-PA, 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). 

297Calculation, 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). 

298Calculation: $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. 

299Calculation: 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. 

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

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

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

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. 

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

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 


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95678 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

300See 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. 

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

302See U.S. Department of Labor, BLS, 

‘‘Historical Consumer Price Index for All Urban 

Consumers (CPI–U): U.S. city average, all items, by 

month,’’ available at https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-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. 

303The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

sector mandate. See 2 U.S.C. 1502(1), 658(6). 

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

Some provisions of this rule will 

benefit such workers in particular ways. 

The portability provision of this rule 

will allow nonimmigrants with valid H– 

2B visas who are present in the United 

States to transfer to a new employer 

more quickly and potentially extend 

their stay in the United States and, 

therefore, earn additional wages. 

DHS recognizes that some of the 

effects of these provisions may occur 

beyond the borders of the United States. 

The current analysis does not seek to 

quantify or monetize costs or benefits 

that occur outside of the United States. 

U.S. workers will also benefit from 

this rule in multiple ways. For example, 

the additional round of recruitment and 

U.S. worker referrals required by the 

provisions of this rule will ensure that 

a nonimmigrant worker does not 

displace a U.S. worker who is willing 

and able to fill the position and may 

result in some U.S. workers being hired. 

As noted, the avoidance of current or 

impending irreparable harm made 

possible through the granting of 

supplemental visas in this rule could 

ensure that U.S. workers—who 

otherwise may be vulnerable if H–2B 

workers were not given visas—do not 

lose their jobs. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA), imposes 

certain requirements on Federal agency 

rules that are subject to the notice and 

comment requirements of the APA. See 

5 U.S.C. 603(a), 604(a). This temporary 

final rule is exempt from notice and 

comment requirements for the reasons 

stated above. Therefore, the 

requirements of the RFA applicable to 

final rules, 5 U.S.C. 604, do not apply 

to this temporary final rule. 

Accordingly, the Departments are not 

required to either certify that the 

temporary final rule would not have a 

significant economic impact on a 

substantial number of small entities nor 

conduct a regulatory flexibility analysis. 

D. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

for which the agency published a 

proposed rule that includes any Federal 

mandate that may result in $100 million 

or more expenditure (adjusted annually 

for inflation) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector.301

This rule is exempt from the written 

statement requirement because DHS did 

not publish a notice of proposed 

rulemaking for this rule. 

In addition, this rule does not exceed 

the $100 million in 1995 expenditure in 

any 1 year when adjusted for inflation 

($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. 

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). 


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304See 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. 

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. 

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 


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95680 Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 

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 countryspecific allocation who are exempt from 

the returning worker requirement. 

Commenters are encouraged to 

discuss the following: 

• Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

• The accuracy of the agency’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• The quality, utility, and clarity of 

the information to be collected; and 

• The burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, for example, 

permitting electronic submission of 

responses. 

The aforementioned information 

collection requirements are summarized 

as follows: 

Agency: DOL–ETA. 

Type of Information Collection: 

Extension of an existing information 

collection. 

Title of the Collection: Attestation for 

Employers Seeking to Employ H–2B 

Nonimmigrants Workers Under Section 

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 timelimited 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, 


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

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1221, 1281, 1282, 1301–1305, 1357, and 

1372; sec. 643, Pub. L. 104–208, 110 Stat. 

3009–708; Pub. L. 106–386, 114 Stat. 1477– 

1480; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 

1806). 

■ 2. Effective December 2, 2024, through 

December 2, 2027, amend § 214.2 by: 

■ a. In table 3 to paragraph (h), adding 

an entry for ‘‘32’’; and 

■ b. Adding paragraphs (h)(6)(xv) and 

(h)(32). 

The additions read as follows: 

§ 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 § 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 § 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 


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(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 


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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 nonfrivolous 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 nonfrivolous 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 

■ 3. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1105a, 

1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 

101–410, 104 Stat. 890, as amended by Pub. 

L. 114–74, 129 Stat. 599. 

■ 4. Effective December 2, 2024, through 

December 2, 2027, amend § 274a.12 by 

adding paragraph (b)(35) to read as 

follows: 

§ 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 

■ 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). 

■ 6. Effective December 2, 2024, through 

September 30, 2025, add § 655.64 to 

read as follows: 


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§ 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 § 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 § 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 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 89, No. 231 / Monday, December 2, 2024 / Rules and Regulations 95685 

SWA job order is posted, whichever is 

later. Consistent with § 655.40(a), 

applicants can be rejected only for 

lawful job-related reasons. 

(5) The employer must attest on Form 

ETA–9142–B–CAA–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 § 655.68(a), as a 

condition for the approval of the H–2B 

petition. Pursuant to this subpart A at 

§ 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. 

■ 7. Effective December 2, 2024, through 

September 30, 2028, add § 655.68 to 

read as follows: 

§ 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 § 655.64(a)(4)(i) 

through (vii) and a recruitment report 

that meets the requirements set forth in 

§ 655.48(a)(1) through (4) and (7), and 

maintained throughout the recruitment 

period set forth in § 655.64(a)(4)(viii). 

(b) DOL and/or DHS may inspect the 

documents in paragraphs (a)(1) through 

(4) of this section upon request. 

(c) This section expires on October 1, 

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 


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