4722 Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Rules and Regulations 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

[CIS No. 2708–21] 

RIN 1615–AC77 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

[DOL Docket No. ETA–2022–0001] 

RIN 1205–AC09 

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 

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: The Secretary of Homeland 

Security, in consultation with the 

Secretary of Labor, is exercising his 

time-limited Fiscal Year (FY) 2022 

authority and increasing the total 

number of noncitizens who may receive 

an H–2B nonimmigrant visa by 

authorizing the issuance of no more 

than 20,000 additional visas during FY 

2022 for positions with start dates on or 

before March 31, 2022, to those 

businesses that are suffering irreparable 

harm or will suffer impending 

irreparable harm, as attested by the 

employer on a new attestation form. In 

addition to making additional visas 

available under the FY 2022 timelimited authority, DHS is exercising its 

general H–2B regulatory authority to 

again provide temporary portability 

flexibility by allowing H–2B workers 

who are already in the United States to 

begin work immediately after an H–2B 

petition (supported by a valid temporary 

labor certification) is received by USCIS, 

and before it is approved. 

DATES: 

Effective dates: The amendments to 

title 8 of the Code of Federal 

Regulations in this rule are effective 

from January 28, 2022 through January 

28, 2025. The amendments to title 20 of 

the Code of Federal Regulations in this 

rule are effective from January 28, 2022 

through September 30, 2022, except for 

20 CFR 655.69 which is effective from 

January 28, 2022 through September 30, 

2025. 

Petition dates: DHS will not accept 

any H–2B petition under the provisions 

related to the supplemental numerical 

allocation after March 31, 2022, and the 

provisions related to portability are only 

available to petitioners and H–2B 

nonimmigrant workers initiating 

employment through the end of July 27, 

2022. 

Comment dates: The Office of Foreign 

Labor Certification within the U.S. 

Department of Labor will be accepting 

comments in connection with the new 

information collection Form ETA– 

9142B–CAA–5 associated with this rule 

until March 29, 2022. 

ADDRESSES: You may submit written 

comments on the new information 

collection Form ETA–9142B–CAA–5, 

identified by Regulatory Information 

Number (RIN) 1205–AC09 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–AC09 in your 

submission. All comments received will 

become a matter of public record and 

will be posted without change to 

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

not include any personally identifiable 

information or confidential business 

information you do not want publicly 

disclosed. 

FOR FURTHER INFORMATION CONTACT: 

Regarding 8 CFR parts 214 and 274a: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, Camp Springs, MD 

20746; telephone 240–721–3000 (this is 

not a toll-free number). 

Regarding 20 CFR part 655 and Form 

ETA–9142B–CAA–5: 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 2021 Omnibus and FY 2022 Public 

Laws 117–43 and 117–70 

D. Joint Issuance of the Final Rule 

III. Discussion 

A. Statutory Determination 

B. Numerical Increase and Allocation of 

Up to 20,000 Visas 

C. Returning Workers 

D. Returning Worker Exemption for Up to 

6,500 Visas for Nationals of Guatemala, 

El Salvador, and Honduras (Northern 

Triangle Countries) and Haiti 

E. Business Need Standard—Irreparable 

Harm and FY 2022 Attestation 

F. Portability 

G. COVID–19 Worker Protections 

H. DHS Petition Procedures 

I. DOL Procedures 

IV. Statutory and Regulatory Requirements 

A. Administrative Procedure Act 

B. Executive Orders 12866 (Regulatory 

Planning and Review) and 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. Congressional Review Act 

H. National Environmental Policy Act 

I. Paperwork Reduction Act 

I. Executive Summary 

FY 2022 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 

immediate release of an additional 

20,000 H–2B visas for FY 2022 positions 

with start dates on or before March 31, 

2022, subject to certain conditions. The 

20,000 visas are divided into two 

allocations, as follows: 

• 13,500 visas limited to returning 

workers, regardless of country of 

nationality, in other words, those 

workers who were issued H–2B visas or 

held H–2B status in fiscal years 2019, 

2020, or 2021; and 

• 6,500 visas reserved for nationals of 

El Salvador, Guatemala, and Honduras 

(Northern Triangle countries) and Haiti 

as attested by the petitioner (regardless 

of whether such nationals are returning 

workers). 

To qualify for the FY 2022 

supplemental cap 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 


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Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Rules and Regulations 4723 

1The term ‘‘COVID–19 vaccinations’’ also 

includes COVID–19 booster shots. 

2The 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). 

3As 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. 

I–129, Petition for Nonimmigrant 

Worker, with USCIS; 

• Properly file the Form I–129, 

Petition for Nonimmigrant Worker, with 

USCIS on or before March 31, 2022, 

requesting an employment start date on 

or before March 31, 2022; 

• 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, or Haitian 

national and counted towards the 6,500 

cap; and 

• Agree to comply with all applicable 

labor and employment laws, including 

health and safety laws pertaining to 

COVID–19, as well as any rights to time 

off or paid time off to stay up-to-date 

with COVID–19 vaccinations,1 or to 

reimbursement for travel to and from 

the nearest available vaccination site, 

and notify the workers in a language 

understood by the worker as necessary 

or reasonable, of equal access of 

nonimmigrants to COVID–19 vaccines 

and vaccination distribution sites. 

Employers filing an H–2B petition 45 

or more days after the certified start date 

on the TLC, must attest to engaging in 

the following additional steps to recruit 

U.S. workers: 

• No later than 1 business day after 

filing the petition, place a new job order 

with the relevant State Workforce 

Agency (SWA) for at least 15 calendar 

days; 

• Contact the nearest American Job 

Center serving the geographic area 

where work will commence and request 

staff assistance in recruiting qualified 

U.S. workers; 

• Contact the employer’s former U.S. 

workers, including those the employer 

furloughed or laid off beginning on 

January 1, 2020, 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; 

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 2022 supplemental cap 

must retain documentation of 

compliance with the attestation 

requirements for 3 years from the date 

the TLC was approved, 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. Both DHS and 

DOL intend to conduct a significant 

number of post-adjudication audits to 

ascertain compliance with the 

attestation requirements of this TFR. 

Falsifying information in attestation(s) 

can result not only in penalties relating 

to perjury, but can also result 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–2 program. 

Falsifying information also may subject 

a petitioner/employer to other criminal 

penalties. 

DHS will not approve H–2B petitions 

filed in connection with the FY 2022 

supplemental cap authority on or after 

October 1, 2022, but DHS does not 

anticipate that petitions filed in 

connection with this rule will remain 

pending until the end of FY 2022, given 

the March 31, 2022 filing deadline. 

H–2B Portability 

In addition to exercising time-limited 

authority to make additional FY 2022 

H–2B visas available for positions with 

start dates on or before March 31, 2022, 

DHS is providing additional flexibilities 

to H–2B petitioners under its general 

programmatic authority by allowing 

nonimmigrant workers in the United 

States 2 in valid H–2B status and who 

are beneficiaries of non-frivolous H–2B 

petitions received on or after January 28, 

2022, or who are the beneficiaries of 

non-frivolous H–2B petitions that are 

pending as of January 28, 2022, 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 180 days after the 

effective date of this rule, in other 

words, after the date this rule is 

published in the Federal Register. This 

provision clarifies portability eligibility 

for beneficiaries of pending petitions. 

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 the Department of Homeland 

Security (DHS) for classification of 

prospective temporary workers as H–2B 

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

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

approve this petition before the 

beneficiary can be considered eligible 

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

requires that ‘‘[t]he question of 

importing any alien as [an H–2B] 

nonimmigrant . . . in any specific case 

or specific cases shall be determined by 

[DHS],3 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 


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4For 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. 

5See 8 CFR 214.2(h)(6)(vii) and 8 CFR 

274a.12(b)(9). 

6The 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 

2022 is from October 1, 2021, through September 

30, 2022. 

7 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. 

8See Consolidated Appropriations Act, 2016, 

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

9 20 CFR 655.15(b). 

10See 8 CFR 214.2(h)(5)(i)(A). 

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 noncitizen 4 not 

authorized for employment). The 

Secretary may designate officers or 

employees to take and consider 

evidence concerning any matter which 

is material or relevant to the 

enforcement of the INA. INA sections 

287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b) 

and INA section 235(d)(3), 8 U.S.C. 

1225(d)(3). 

Finally, under section 101 of 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 H–2B 

petition for temporary employment in 

the United States must be accompanied 

by 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. 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). 

In order 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 this rule, and except for certain 

professional athletes being traded 

among organizations,5 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 INA sets the annual number of 

noncitizens who may be issued H–2B 

visas or otherwise provided H–2B 

nonimmigrant status to perform 

temporary nonagricultural work at 

66,000, to be distributed semi-annually 

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). With 

certain exceptions, 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, will be available for 

employers seeking to hire H–2B workers 

during the second half of the fiscal 

year.6 If insufficient petitions are 

approved to use all H–2B numbers in a 

given fiscal year, the unused numbers 

cannot be carried over 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 66,000.7 A 

returning worker is defined by statute as 

an H–2B worker who was previously 

counted against the annual H–2B cap 

during a designated period of time. For 

example, Congress designated that 

returning workers for FY 2016 needed to 

have been counted against the cap 

during FY 2013, 2014, or 2015.8 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 semi-annual visa allocation, the 

DOL regulatory requirement that 

employers apply for a TLC 75 to 90 days 

before the start date of work,9 and the 

DHS regulatory requirement that all H– 

2B petitions be accompanied by an 

approved TLC,10 employers that wish to 

obtain visas for their workers under the 

semi-annual 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 received sufficient 

H–2B petitions to reach the first half of 

the fiscal year statutory cap has been 


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11 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 https://www.uscis.gov/ 

archive/uscis-reaches-the-h-2b-cap-for-the-firsthalf-of-fiscal-year-2017 (Jan. 13, 2017); https://

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

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

https://www.uscis.gov/news/news-releases/uscisreaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 

2019); https://www.uscis.gov/news/alerts/uscisreaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 

2020). 

12 Information provided by DOL OFLC via email 

sent December 2, 2021. 

13On 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 https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2022 (Oct 12, 2021). 

November 16, 2020 was the last receipt date for the 

first half of FY 2020. See https://www.uscis.gov/ 

news/alerts/uscis-reaches-h-2b-cap-for-first-half-offy-2021 (Nov. 18, 2020). 

14 INA section 214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), 

as revised by the Consolidated Appropriations Act 

of 2016 (Pub. L. 114–113). This program expired on 

September 30, 2016. 

15 DHS, after consulting with DOL, did not 

publish a temporary final rule supplementing the 

H–2B cap for FY 2020 pursuant to the Further 

Consolidated Appropriations Act, 2020, Public Law 

116–94. 

16The highest number of returning workers in 

any such fiscal year was 64,716, which represents 

the number of beneficiaries covered by H–2B 

returning worker petitions that were approved for 

FY 2007. DHS also considered using an alternative 

approach, under which DHS measured the number 

of H–2B returning workers admitted at the ports of 

entry (66,792 for FY 2007). 

17Temporary Rule, 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). 

18Public Law 117–70 Further Extending 

Government Funding Act, Division A ‘‘Further 

Continuing Appropriations Act, 2022’’, section 101 

(Dec. 3, 2021) changing the Public Law 117–43 

expiration date in section 106(3) from Dec. 3, 2021 

to Feb. 18, 2022, and Public Law 117–43 Extending 

Government Funding and Delivering Emergency 

Assistance Act, Division A ‘‘Continuing 

Appropriations Act, 2022’’, Section 101 and 106(3) 

(Oct. 3, 2021) providing DHS funding and 

authorities, including authority under section 105 

of title I of Division O of Public Law 116–260, 

through December 3, 2021. 

19Appropriations 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 2022 subject to 

the same terms and conditions as the FY 2021 

authority at any time before the continuing 

resolution expires, notwithstanding the reference to 

FY 2021 in the FY 2021 Omnibus. 

trending earlier in recent years.11 As of 

December 1, 2021, DOL’s Office of 

Foreign Labor Certification (OFLC) 

reports having certified TLC 

applications for 65,717 H–2B workers 

with expected start dates between 

October 1, 2021, and March 1, 2022.12

In addition, for fiscal year 2022, for the 

first time in more than a decade, USCIS 

received sufficient H–2B petitions to 

reach the first half of the fiscal year 

statutory cap before the start of the fiscal 

year—this year the last receipt date for 

the first half of the fiscal year was 

September 30, 2021, and last year it was 

November 16, 2020—a month and a half 

earlier.13 This early date continues to 

reflect an ongoing trend of higher H–2B 

demand in the first half of the fiscal year 

compared to the statutorily authorized 

level. Congress, in recognition of 

historical and current demand: (1) 

Allowed for additional H–2B workers 

through the FY 2016 reauthorization of 

the returning worker cap exemption; 14

and (2) for the last 6 fiscal years 

authorized supplemental caps under 

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); 15 section 

105 of Division O of the Consolidated 

Appropriations Act, 2021, Public Law 

116–260 (FY 2021), and section 105 of 

Division O of the Consolidated 

Appropriations Act, 2021, Public Law 

116–260 (FY 2021 Omnibus), and 

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), which is 

discussed below. 

C. FY 2021 Omnibus and FY 2022 

Public Laws 117–43 and 117–70 

On December 27, 2020, then-President 

Donald Trump signed the FY 2021 

Omnibus which contains a provision, 

section 105 of Division O (section 105), 

permitting the Secretary of Homeland 

Security, under certain circumstances 

and after consultation with the 

Secretary of Labor, to increase the 

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

employers, notwithstanding the 

otherwise-established statutory 

numerical limitation set forth in the 

INA. Specifically, section 105 provides 

that ‘‘the Secretary of Homeland 

Security, after consultation with the 

Secretary of Labor, and upon the 

determination that the needs of 

American businesses cannot be satisfied 

in [FY] 2021 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 in FY 

2021 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.16

The Secretary of Homeland Security 

consulted with the Secretary of Labor 

and, on May 25, 2021, published a 

temporary final rule implementing the 

authority contained in section 105.17

On December 3, 2021, Congress 

passed Public Law 117–70,18 which 

authorizes the Secretary of Homeland 

Security to increase the number of H– 

2B visas available to U.S. employers in 

FY 2022 under the same terms and 

conditions authorized in section 105 of 

Division O of the FY 2021 Omnibus. 

The authority in Public Law 117–70 

permits the Secretary of Homeland 

Security, after consultation with the 

Secretary of Labor, to provide additional 

H–2B visas for FY 2022, 

notwithstanding the otherwiseestablished statutory numerical 

limitation set forth in the INA, for 

eligible employers whose employment 

needs for FY 2022 cannot be met under 

the general fiscal year statutory cap.19

Under the Public Law 117–70 authority, 

DHS and DOL are jointly publishing this 

temporary final rule to authorize the 

issuance of no more than 20,000 

additional visas during FY 2022 for 

positions with start dates on or before 

March 31, 2022, 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 

2022 supplemental cap expires at the 

end of that fiscal year. Therefore, USCIS 

will not approve H–2B petitions filed in 

connection with the FY 2022 


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20See 8 CFR 103.7(e) (Oct. 1, 2020). This section 

was amended by a DHS rule published in the 

Federal Register on August 3, 2020 at 85 FR 46788 

titled U.S. Citizenship and Immigration Services 

Fee Schedule and Changes to Certain Other 

Immigration Benefit Request Requirements with an 

effective date of October 2, 2021. That rule was 

preliminarily enjoined. DHS is complying with the 

terms of the preliminary injunctions and is not 

enforcing it. See U.S. Citizenship and Immigration 

Services Fee Schedule and Changes to Certain 

Other Immigration Benefit Request Requirements; 

Notification of Preliminary Injunction, 86 FR 7493 

(Jan. 18, 2021). 

21Temporary Rule, 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); Temporary Rule, 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). 

22USCIS data pulled from the Computer Linked 

Application Information Management System 

(CLAIMS3) database on Mar. 15, 2021. General 

information about CLAIMS 3 is available at https:// 

www.dhs.gov/publication/dhsuscispia-016- 

computer-linked-application-informationmanagement-system-claims-3-and. 

23The 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. USCIS data pulled 

from CLAIMS3 on Mar. 15, 2021. 

24Premium processing allows for expedited 

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

U.S.C. 1356(u). 

25Temporary Rule, 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). 

26The 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. USCIS data pulled 

from CLAIMS3 on Mar. 15, 2021. 

27 DHS to Improve Integrity of Visa Program for 

Foreign Workers, March 5, 2020, https://

www.dhs.gov/news/2020/03/05/dhs-improveintegrity-visa-program-foreign-workers. 

28Proclamation 9994 of Mar. 13, 2020, Declaring 

a National Emergency Concerning the Coronavirus 

Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 

18, 2020). 

29https://twitter.com/DHSgov/status/ 

1245745115458568192?s=20. 

30 Id. 

31 86 FR 28198 (May 25, 2021). 

supplemental cap authority on or after 

October 1, 2022. Given the March 31, 

2022 filing cutoff, USCIS will process 

H–2B petitions filed under this rule that 

request premium processing in line with 

the USCIS premium processing rules,20

and all other H–2B petitions filed under 

this rule in the normal manner. 

Accordingly, DHS does not anticipate 

that petitions filed in connection with 

this rule will remain pending until the 

end of FY 2022. 

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 that set forth in 

section 214 of the INA. The previous 

four statutory provisions were 

materially identical to section 105 of the 

FY 2021 Omnibus, which is the same 

authority provided for FY 2022 by the 

recent continuing resolutions. During 

each fiscal year from FY 2017 through 

FY 2019, the Secretary of Homeland 

Security, after consulting with the 

Secretary of Labor, determined that the 

needs of some American businesses 

could not be satisfied 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.21 A total of 12,294 H–2B 

workers were approved for H–2B 

classification under petitions filed 

pursuant to the FY 2017 supplemental 

cap increase.22 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 15,788.23 The vast majority 

of the H–2B petitions received under the 

FY 2017 and FY 2018 supplemental 

caps requested premium processing 24

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. 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 3 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.25

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 32,666.26 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 fiscal year.27 On March 

13, 2020, then-President Trump 

declared a National Emergency 

concerning COVID–19, a communicable 

disease caused by the coronavirus 

SARS–CoV–2.28 On April 2, 2020, DHS 

announced that the rule to increase the 

H–2B cap was on hold due to economic 

circumstances, and no additional H–2B 

visas would be released until further 

notice.29 DHS also noted that the 

Department of State had suspended 

routine visa services.30

In FY 2021, although the COVID–19 

public health emergency remained in 

effect, DHS in consultation with DOL 

determined it was appropriate to 

increase the H–2B cap coupled with 

additional protections (for example, 

post-adjudication audits, investigations, 

and compliance checks), for FY 2021 

based on the demand for H–2B workers 

in the second half of FY 2021, as well 

as other factors that were occurring at 

that time, including the 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 2021.31 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 Salvadoran, Guatemalan, and 


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32https://www.uscis.gov/news/alerts/capreached-for-remaining-h-2b-visas-for-returningworkers-for-fy-2021 (Aug. 19, 2021). 

33The term ‘‘increased labor demand’’ in this 

context relies on the most recently released figure 

from the Bureau of Labor Statistics (BLS) survey at 

the time this TFR was written. The BLS Job 

Openings and Labor Turnover Survey (JOLTS) 

reports 11 million job openings in October 2021 

(compared to 6.8 million job openings in October 

2020). See Bureau of Labor Statistics, Job Openings 

and Labor Turnover Survey released on December 

8, 2021 at https://www.bls.gov/news.release/ 

archives/jolts_12082021.htm. 

34 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 

31, 2018); 84 FR 20005 (May 8, 2019); 86 FR 28198 

(May 25, 2021). 

35See Outdoor Amusement Bus. Ass’n v. Dep’t of 

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

denied, —— S. Ct. ——, 2021 WL 5043596 (2021); 

see also Temporary Non-Agricultural Employment 

of H–2B Aliens in the United States, 80 FR 24041, 

24045 (Apr. 29, 2015). 

36See Outdoor Amusement Bus. Ass’n, 983 F.3d 

at 684–89. 

37See 8 CFR 214.2(h)(6)(iii)(A) and (C), 

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

38These 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 2021 

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); FY 2021 

Omnibus div. O, sec. 105 (‘‘Notwithstanding the 

numerical limitation set forth in section 214(g)(1)(B) 

of the [INA] . . . .’’). 

39See 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. 

Honduran nationals, who were exempt 

from the returning worker requirement. 

As of August 13, 2021, USCIS received 

enough petitions for returning workers 

to reach the additional 22,000 H–2B 

visas made available under the FY 2021 

H–2B supplemental visa temporary final 

rule.32

Similarly, although the COVID–19 

public health emergency is still in 

effect, DHS in consultation with DOL 

believes that it is appropriate to increase 

the H–2B cap for FY 2022 positions 

with start dates on or before March 31, 

2022, based on the demand for H–2B 

workers in the first half of FY 2022, 

recent and continuing economic growth, 

increased labor demand,33 and 

increased visa processing capacity by 

the Department of State. DHS believes it 

is appropriate to limit the increase for 

the FY 2022 H–2B cap provided in this 

temporary final rule to those petitions 

with start dates on or before March 31, 

2022, as data clearly indicates an 

immediate need for supplemental H–2B 

visas in FY 2022 for positions with start 

dates in the first half of the fiscal year, 

as demonstrated by the FY 2022 first 

half cap being met even prior to the start 

of the fiscal year, the earliest the first 

half H–2B cap has been reached in more 

than a decade. DHS and DOL also 

believe that it is appropriate to couple 

this cap increase with additional 

workers protections, as described below. 

D. Joint Issuance of the Final Rule 

As they did in FY 2017, FY 2018, FY 

2019, and FY 2021, DHS and DOL (the 

Departments) have determined that it is 

appropriate to jointly issue this 

temporary final rule.34 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.35 Although DHS and DOL each 

have authority to independently issue 

rules implementing their respective 

duties under the H–2B program,36 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).37

III. Discussion 

A. Statutory Determination 

Following consultation with the 

Secretary of Labor, the Secretary of 

Homeland Security has determined that 

the needs of some U.S. employers 

cannot be satisfied in the first half of FY 

2022 with U.S. workers who are willing, 

qualified, and able to perform temporary 

nonagricultural labor. In accordance 

with the FY 2022 continuing resolution 

extending the authority provided in 

section 105 of the FY 2021 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 for positions with 

start dates on or before March 31, 2022 

up to 20,000 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 they did in connection with the FY 

2021 H–2B supplemental visa 

temporary final rule, and consistent 

with their existing authority, DHS and 

DOL intend to conduct a significant 

number of audits with respect to 

petitions filed under this, and previous 

TFRs, requesting supplemental H–2B 

visas, which may be selected at the 

discretion of the Departments, 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. If an 

employer’s documentation does not 

meet the irreparable harm standard, or 

if the employer fails to provide evidence 

demonstrating irreparable harm or 

comply with the audit process, this may 

be considered a substantial violation 

resulting in an adverse agency action on 

the employer, including revocation of 

the petition and/or TLC or program 

debarment. Some audits conducted of 

employers that received visas under the 

supplemental cap in FY 2021 have 

revealed concerns surrounding their 

documentation of irreparable harm, 

recruitment efforts, and compliance 

with the audit process, which may 

warrant further review and action. 

The Secretary of Homeland Security 

has also again determined, as in FY 

2021, 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 that 

the supplemental visas will be limited 

to returning workers, with the exception 

that up to 6,500 of the 20,000 visas will 

be exempt from the returning worker 

requirement and will be reserved for H– 

2B workers who are nationals of El 

Salvador, Guatemala, Honduras, and 

Haiti.38 As in FY 2021, these H–2B visas 

are being reserved for nationals of El 

Salvador, Guatemala, and Honduras to 

once again further 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 individuals from 

the Northern Triangle countries.39 DHS 

observed robust employer interest in 

response to the FY 2021 H–2B 

supplemental visa allocation for 

Salvadoran, Guatemalan, and Honduran 

nationals, with USCIS approving 

petitions on behalf of 6,805 beneficiaries 


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40While USCIS approved a greater number of 

beneficiaries from the Northern Triangle countries 

than the 6,000 visas allocated under the FY 2021 

supplemental cap for those countries, the 

Department of State approved 3,065 visas on behalf 

of nationals from those countries. See DHS, USCIS, 

Office of Performance and Quality, SAS PME C3 

Consolidated, VIBE, DOS Visa Issuance Data 

queried 11.2021, TRK 8598. 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 Norther Triangle countries with U.S. 

recruiters/employers on an expedited timeline. DHS 

anticipates that the normalization of consular 

services, easing of travel restrictions, the issuance 

of this rule earlier in the fiscal year, as well as the 

fact that this is the second year that DHS will make 

a specific allocation available for workers from the 

Northern Triangle countries, will contribute to 

greater utilization of available visas under this 

allocation during FY 2022. 

41 Id. 

42See 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). 

43For purposes of this rule, these returning 

workers could have been H–2B cap exempt or 

extended H–2B status in FY 2019, 2020, or 2021. 

Additionally they may have been previously 

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

visas during FY 2019, 2020, or 2021, or the 

supplemental caps in FY 2019 or FY 2021. 

44See the docket for this rulemaking for access to 

these letters. 

45 Id. 

46See, e.g., Impacts of the H–2B Visa Program for 

Seasonal Workers on Maryland’s Seafood Industry 

and Economy, Maryland Department of Agriculture 

Seafood Marketing Program and Chesapeake Bay 

Seafood Industry Association (March 2, 2020), 

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

2020-H2B-Impact-Study.pdf (last visited Dec. 1, 

2021). 

under this allocation.40 In addition, 

DHS and the Biden administration have 

continued to conduct outreach efforts 

promoting the H–2B program, among 

others, as a lawful pathway for nationals 

of El Salvador, Guatemala, and 

Honduras to work in the United States. 

The decision to again reserve an 

allocation of supplemental H–2B visas 

for these nationals, while providing an 

exemption from the returning worker 

requirement, will provide ongoing 

support for the President’s vision of 

expanding access to lawful pathways for 

protection and opportunity for 

individuals from the Northern Triangle 

countries.41

Additionally, with this temporary 

final rule, the 6,500 supplemental cap 

allocation exempted from the returning 

worker requirement is now also 

available to nationals of Haiti. In also 

providing this supplemental cap 

reservation to nationals of Haiti, DHS 

recognizes the recent challenges, such 

as political instability, increasing gangrelated violence, and a 7.2 magnitude 

earthquake that have occurred in that 

country, and believes that the H–2B 

program will provide a stabilizing 

lawful channel for Haitian nationals 

seeking to enter the United States for 

economic opportunities. As DHS 

emphasized in its recent notice adding 

Haiti to the list of countries whose 

nationals are eligible to participate in 

the H–2A and H–2B programs, 

sustainable development and the 

stability of Haiti is vital to the interests 

of the United States as a close partner 

and neighbor.42

Similar to the temporary final rules 

for the FY 2019 and FY 2021 

supplemental caps, the Secretary of 

Homeland Security has also determined 

to limit the supplemental visas to H–2B 

returning workers, in other words, 

workers who were issued H–2B visas or 

were otherwise granted H–2B status in 

FY 2019, 2020, or 2021,43 unless the 

employer indicates on the new 

attestation form that it is requesting 

workers who are nationals of one of the 

Northern Triangle countries or Haiti and 

who are therefore counted towards the 

6,500 allotment regardless of whether 

they are new or returning workers. If the 

6,500 returning worker exemption cap 

for Salvadoran, Guatemalan, Honduran, 

and Haitian nationals has been reached 

and visas remain available under the 

returning worker cap, the petition 

would be rejected and any fees 

submitted returned to the petitioner. In 

such a case, a petitioner may continue 

to request workers who are nationals of 

one of the Northern Triangle countries 

or Haiti, 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 2019, 2020, or 2021. Unlike the 

temporary final rule for the FY 2021 

supplemental cap, if the 6,500 returning 

worker exemption cap for nationals of 

the Northern Triangle countries and 

Haiti remains unfilled, DHS will not 

make unfilled visas reserved for 

Northern Triangle countries and Haiti 

available to the general returning worker 

cap. 

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. 

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.44 U.S. businesses, chambers 

of commerce, employer organizations, 

and state and local elected officials have 

also expressed concerns to the DHS and 

Labor Secretaries regarding the 

unavailability of H–2B visas after the 

statutory cap was reached.45

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.46

While the previous standard focused on 

avoidance of irreparable harm in the 

future, this rule recognizes that some 

employers may already be suffering 

irreparable harm, that is severe and 

permanent financial loss, and so the aim 

of the revised irreparable harm standard 

with respect to those employers that 

will benefit from this TFR is to prevent 

further severe and permanent financial 

loss by allowing these employers to also 

obtain H–2B workers. 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 and 

determining the scope of any such 

increase, has broad discretion, following 

consultation with the Secretary of 

Labor, to identify the business needs 

that are most relevant, while bearing in 

mind the need to protect U.S. workers. 

Within that context, for the below 

reasons, the Secretary of Homeland 

Security has determined to allow an 

overall increase of up to 20,000 

additional visas, for positions with start 

dates on or before March 31, 2022, 

solely for the businesses facing 


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47 DHS believes that this temporal limitation is 

appropriate even though H–2B visa issuances and 

admissions were lower in FY 2020 than in previous 

years, likely due to the impacts of COVID–19, as 

DHS believes that there will still be a sufficient 

number of returning workers available to U.S. 

employers to use the 13,500 additional visas 

authorized by this rule. 

48Consolidated 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. 

49The previous review of an applicant’s 

qualifications and current evidence of lawful travel 

to the United States will generally lead to a shorter 

processing time of a renewal application. In 

addition, U.S. Department of State consular officers 

temporarily have flexibility to waive the personal 

appearance of certain nonimmigrant visa 

applicants. See, e.g., 86 FR 70735 (Dec. 13, 2021); 

see also DOS website, Important Announcement on 

Waivers of the Interview Requirement for Certain 

Nonimmigrant Visas, https://travel.state.gov/ 

content/travel/en/News/visas-news/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

50Some consular sections waive the in-person 

interview requirement for certain H–2B applicants 

and who otherwise meet the strict limitations set 

out under INA section 222(h), 8 U.S.C. 1202(h). The 

authority allowing for waiver of interview of certain 

H–2 (temporary agricultural and non-agricultural 

workers) applicants is extended through the end of 

2022. DOS, Important Announcement on Waivers of 

the Interview Requirement for Certain 

Nonimmigrant Visas, https://travel.state.gov/ 

content/travel/en/News/visas-news/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

permanent, severe financial loss or 

those who will face such loss in the near 

future. 

First, DHS interprets section 105’s 

reference to ‘‘the needs of American 

businesses’’ 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 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 

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. 

Second, the approach set forth in this 

rule limits the increase in a way that is 

similar to the implementation of the 

supplemental caps in fiscal years 2017, 

2018, 2019, and 2021, and provides 

protections against adverse effects on 

U.S. workers that may result from a cap 

increase. Although there is not enough 

time to conduct a more full and formal 

quantitative analysis of such adverse 

effects, the Secretary has determined 

that in the particular circumstances 

presented here, 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. 

As noted above, to address the 

increased and, in some cases, 

impending need for H–2B workers in 

positions with start dates on or before 

March 31, 2022, the Secretary of 

Homeland Security has determined that 

employers may petition for 

supplemental visas on behalf of up to 

13,500 workers who were issued an H– 

2B visa or were otherwise granted H–2B 

status in FY 2019, 2020, or 2021.47 The 

last 3 fiscal years’ temporal limitation in 

the returning worker definition in this 

temporary rule mirrors the temporal 

limitation Congress imposed in previous 

returning worker statutes.48 Such 

workers (in other words, those who 

recently participated in the H–2B 

program) have previously obtained H– 

2B visas and therefore have been vetted 

by DOS, would have departed the 

United States after their authorized 

period of stay as generally required by 

the terms of their nonimmigrant 

admission, and therefore may obtain 

their new visas through DOS and begin 

work more expeditiously.49 DOS has 

informed DHS that, in general, H–2B 

visa applicants who are able to 

demonstrate clearly that they have 

previously abided by the terms of their 

status granted by DHS have a higher 

visa issuance rate when applying to 

renew their H–2B visas, as compared 

with the overall visa applicant pool 

from a given country. Furthermore, 

consular officers are authorized to waive 

the in-person interview requirement for 

certain H–2B applicants seeking to 

renew their visa within a specific 

timeframe of that visa’s expiration, and 

who otherwise meet the strict 

limitations set out under INA section 

222(h), 8 U.S.C. 1202(h). We note that 

DOS has, in response to the COVID–19 

pandemic, expanded interview waiver 

eligibility to certain first-time H–2 

applicants 50 potentially allowing such 

applicants to be processed with 

increased efficiency. However, there is 

no indication that this temporary 

measure will necessarily affect the 

overall visa issuance rates of applicants, 

which DOS has indicated is higher for 

returning workers who can demonstrate 

prior compliance with the program. 

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 after 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 nonimmgrant 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. 

In allocating up to 6,500 H–2B visas 

to nationals of the Northern Triangle 

countries and Haiti while making the 

remaining allocation of up to 13,500 H– 

2B visas available to qualified returning 

workers, irrespective of their country of 

nationality, this rule strikes a balance 

between furthering the U.S. foreign 

policy interests of creating a 

comprehensive, whole-of-government 

framework—of which this allocation is 

one piece—to address and manage 

migration from the Northern Triangle 

countries and Haiti and addressing the 

needs of certain H–2B employers that 

are suffering irreparable harm or will 

suffer impending irreparable harm. The 

United States has strong foreign policy 

interests in allocating up to 6,500 

supplemental visas only to nationals of 

the Northern Triangle countries or Haiti 

and exempting such persons from the 

returning worker requirement. The 

Secretary of Homeland Security has 

determined that both the 6,500 

limitation and the exemption from the 

returning worker requirement for 

nationals of the Northern Triangle 

countries is again beneficial in light of 


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51 DOS issued a combined total of approximately 

26,630 H–2B visas to nationals of the Northern 

Triangle countries and Haiti from FY 2015 through 

FY 2020, or approximately 4,400 per year. DOS 

Monthly NIV Issuances by Nationality and Visa 

Class; https://travel.state.gov/content/travel/en/ 

legal/visa-law0/visa-statistics/nonimmigrant-visastatistics.html (last visited Dec. 03, 2021). 

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

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

number of individuals who may be issued visas or 

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

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

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

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

number of individuals who may be issued visas or 

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

section 105 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 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. 

53On January 4, 2022, DOL’s Office of Foreign 

Labor Certification announced it had received a 

total of 7,875 H–2B temporary labor certification 

applications requesting 136,555 workers with the 

start date of work of April 1, 2022. See https://

www.dol.gov/agencies/eta/foreign-labor. DHS is 

limiting the supplemental H–2B visas provided by 

this TFR to those employers with start dates of need 

on or before March 31, 2022, for the reasons 

described in this TFR. 

President Biden’s February 2, 2021 E.O. 

14010, which instructed the Secretary of 

Homeland Security and the Secretary of 

State to implement measures to enhance 

access for individuals of the Northern 

Triangle countries to visa programs, as 

appropriate and consistent with 

applicable law, and to work toward 

addressing some of the causes of and 

managing migration throughout North 

and Central America. In response to this 

executive order, DHS seeks to promote 

and improve safety, security, and 

economic stability throughout the North 

and Central American region, and work 

with these countries to stem the flow of 

irregular migration in the region and 

enhance access to visa programs. DHS 

believes that including nationals of 

Haiti in this allocation of up to 6,500 

supplemental visas will further promote 

and improve safety, security, and 

economic stability throughout this 

region, and is in the interests of the 

United States as a close partner and 

neighbor. 

The exemption from the returning 

worker requirement recognizes the 

small numbers of individuals, 

approximately 4,400 per year, from the 

three Northern Triangle countries and 

Haiti who were previously granted H– 

2B visas in recent years.51 Absent this 

exemption, there may be insufficient 

workers from these countries, which 

means that the rule might thereby fail to 

achieve its intended policy objective to 

provide additional temporary foreign 

workers for U.S. employers that are 

suffering irreparable harm or will suffer 

impending irreparable harm, while also 

enhancing access to the H–2B visa 

classification for individuals from the 

Northern Triangle countries and Haiti. 

Finally, unlike the temporary final 

rule for the FY 2021 supplemental cap, 

this rule does not make available 

unfilled visas from the allocation for 

nationals of the Northern Triangle 

countries and Haiti to the general 

supplemental cap for returning workers. 

As with the supplemental cap for 

returning workers, USCIS will stop 

accepting petitions received under the 

allocation for the Northern Triangle 

countries and Haiti after March 31, 

2022. This end date is intended to 

provide H–2B employers ample time, 

should they choose, to petition for, and 

bring in, workers under the allocation 

for the Northern Triangle countries and 

Haiti. 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. 

For all petitions filed under this rule 

and the H–2B program, generally, 

employers must establish, among other 

requirements, that insufficient qualified 

U.S. workers are available to fill the 

petitioning H–2B employer’s job 

opportunity and that the foreign 

worker’s employment in the job 

opportunity will not adversely affect the 

wages or working conditions of 

similarly-employed U.S. workers. INA 

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

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

655.1. To meet this standard of 

protection for U.S. workers and, in order 

to be eligible for additional visas under 

this rule, employers must have applied 

for and received a valid TLC in 

accordance with 8 CFR 

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

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

regulations, TLCs are valid only for the 

period of employment certified by DOL 

and expire on the last day of authorized 

employment. 20 CFR 655.55(a). 

In order to have a valid TLC, 

therefore, the employment start date on 

the employer’s H–2B petition must not 

be different from the employment start 

date certified by DOL on the TLC. See 

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

generally applicable DHS regulations, 

the only exception to this requirement 

applies when an employer files an 

amended visa 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. 

In sum, this rule increases the FY 

2022 numerical limitation by up to 

20,000 visas for positions with start 

dates on or before March 31, 2022, 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 Northern Triangle 

countries or Haiti counted towards the 

6,500 allocation that are exempt from 

the returning worker limitation. These 

provisions are each described in turn 

below. 

B. Numerical Increase and Allocation of 

Up to 20,000 Visas 

The increase of up to 20,000 visas will 

help address the urgent needs of eligible 

employers for additional H–2B workers 

for those employers with employment 

needs for start dates on or before March 

31, 2022.52 As noted above, DHS is 

limiting the numerical increase to those 

petitions with start dates on or before 

March 31, 2022, because current data 

supports the need for additional H–2B 

workers with start dates during that 

timeframe.53 The determination to allow 

up to 20,000 additional H–2B visas 

reflects a balancing of a number of 

factors including the demand for H–2B 

visas for the first half of FY 2022; 

current economic conditions; the 

general trend of increased demand for 

H–2B visas from FY 2017 to FY 2021; 

H–2B returning worker data; the amount 

of time remaining for employers to hire 

and obtain H–2B workers with start 

dates on or before March 31, 2022; 

concerns from Congress, state and local 

elected officials, U.S. businesses, 

chambers of commerce, and employer 

organizations expressing a need for 

additional H–2B workers; and the 

objectives of E.O. 14010. 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 2021 Omnibus 

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 


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54 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). 

55USCIS 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. 

56On June 3, 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 Triangle 

countries. See https://www.uscis.gov/news/alerts/ 

cap-reached-for-additional-returning-worker-h-2bvisas-for-fy-2021 (June 3, 2021). On July 23, 2021, 

USCIS announced that, because it did not receive 

enough petitions to reach the allocation for the 

Northern Triangle countries by the July 8 filing 

deadline, the few remaining visas were available to 

H–2B returning workers regardless of their country 

of origin. See https://www.uscis.gov/news/alerts/ 

employers-may-file-h-2b-petitions-for-returningworkers-for-fy-2021 (July 23, 2021). 

57The 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. 

58Processing Times, https://flag.dol.gov/ 

processingtimes (last visited Dec. 2, 2021). 

59On 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 Sept. 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 First Half of FY 2022, https://

www.uscis.gov/newsroom/alerts/uscis-reaches-h-2bcap-for-first-half-of-fy-2022 (Oct 12, 2021). 

60See HHS Renewal of Determination That A 

Public Health Emergency Exists, https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVDI-15Oct21.aspx (Oct. 15, 2021). 

61USCIS analysis of DOL OLFC Performance 

data. 

62The JOLTS News Release states that the job 

openings rate is calculated by dividing the number 

of job openings by the sum of employment and job 

openings and multiplying that quotient by 100. See 

https://www.bls.gov/news.release/jolts.htm. 

63 JOLTS 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 November 

2021, from the Department of Labor’s Current 

Employment Statistics program indicates that 

Continued 

2021.54 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 in this temporary final rule for 

those petitioners with start dates on or 

before March 31, 2022 during FY 2022, 

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 

would be appropriate to make available 

up to 20,000 additional visas under the 

FY2022 supplemental cap authority. 

The Secretary further considered 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 

individuals from the Northern Triangle 

countries, as well as to address some of 

the root causes of and manage migration 

throughout both North and Central 

America, including Haiti, and 

determined that reserving up to 6,500 of 

the up to 20,000 additional visas and 

exempting this number from the 

returning worker requirement for 

nationals from the Northern Triangle 

countries or Haiti would be appropriate. 

In past years, the number of 

beneficiaries covered by H–2B petitions 

filed exceeded the number of additional 

visas allocated under the three most 

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 

would be accepted under the 

supplemental cap. Of the petitions that 

were selected, USCIS issued approvals 

for 15,672 beneficiaries.55 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 would be 

accepted 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 of 

workers from Northern Triangle 

countries.56 Of the petitions received, 

USCIS issued approvals for 30,211 

beneficiaries, including approvals for 

6,805 beneficiaries under the allocation 

for the nationals of the Northern 

Triangle.57

Data for the first half of FY 2022 

clearly indicate an immediate need for 

supplemental H–2B visas in FY 2022 for 

positions with start dates between 

October 1, 2021 through March 31, 

2022. As of December 1, 2021, DOL’s 

Office of Foreign Labor Certification 

(OFLC) reports having certified 2,469 

TLC applications with requested dates 

of need in the first half of FY 2022 for 

65,717 H–2B visas.58 Furthermore, as 

noted above, USCIS received a sufficient 

number of H–2B petitions to reach the 

first half of the FY 2022 fiscal year 

statutory cap prior to the start of the 

fiscal year.59

In addition, although the public 

health emergency due to COVID–19 still 

exists,60 DHS believes that issuing 

additional H–2B visas for positions with 

start dates on or before March 31, 2022 

is appropriate in the context of the 

nation’s economic recovery from the 

ongoing pandemic. In March 2020, the 

U.S. labor market was severely affected 

by the onset of the COVID–19 

pandemic, pushing the national 

unemployment rate to near record levels 

and resulting in millions of U.S. 

workers being displaced from work. In 

fiscal year 2021, approximately 88 

percent of H–2B filings were for 

positions within just 5 sectors.61 NAICS 

56 (Administrative and Support and 

Waste Management and Remediation 

Services) accounted for 41.7% of filings, 

NAICS 71 (Accommodation and Food 

Services) accounted for 17.1%, NAICS 

72 (Arts, Entertainment, and Recreation) 

accounted for 14.5%, NAICS 23 

(Construction) accounted for 9.5%, and 

NAICS 11 (Agriculture, Forestry, 

Fishing and Hunting) accounted for 5% 

of filings. 

Within these industries, DOL data 

show increased labor demand over the 

last year. More specifically, DOL data 

from the Job Openings and Labor 

Turnover Survey (JOLTS) show that the 

rate of job openings 62 increased for all 

5 industries between October 2020 and 

October 2021. The job opening rate for 

NAICS 56 63 increased from 5.7 to 7.9 


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NAICS 56 accounted for just under 42% of 

employment in Professional Business Services. All 

data accessed December 22, 2021. 64 JOLTS data presented here are for Mining and 

Logging, which is part of the Natural Resources and 

Mining Supersector. This supersector is comprised 

of NAICS 11 (Agriculture, Forestry, Fishing and 

Hunting) and NAICS 21 (Mining, Quarrying, and 

Oil and Gas Extraction). See https://www.bls.gov/ 

iag/tgs/iag10.htm. As such, the data presented here 

should be understood to be the best possible proxy 

for changes in NAICS 11 and not a direct 

measurement of any specific change in the actual 

underlying sectors. The latest data available, for 

November 2021, from the Department of Labor’s 

Current Employment Statistics program indicates 

that NAICS 11 accounted for just under 7% of 

employment in Mining and Logging. 

65 Year-over-year change was calculated as the 

difference between the October 2021 value for the 

respective industry and the October 2020 value. See 

https://www.bls.gov/jlt/#data. All data accessed 

December 22, 2021. 

66Proclamation 10294 of Oct. 25, 2021, 

Advancing the Safe Resumption of Global Travel 

During the COVID-19 Pandemic, 86 FR 59603 (Oct. 

28, 2021). 

67 DOS, Visa Services Operating Status Update, 

https://travel.state.gov/content/travel/en/News/ 

visas-news/visa-services-operating-statusupdate.html (Nov. 19, 2021). 

68See CDC, Requirement for Proof of Negative 

COVID–19 Test or Documentation of Recovery from 

COVID–19, Requirement for Proof of Negative 

COVID–19 Test or Documentation of Recovery from 

COVID–19 (Dec. 2, 2021). Changes made prior to the 

emergence of Omicron also reflect the evolving 

nature of the pandemic and potential impacts on 

international air travel by H–2B workers. See 86 FR 

59603 (Oct. 28, 2021) (Presidential Proclamation); 

see also 86 FR 61224 (Nov. 5, 2021) (implementing 

CDC Order). 

while the job opening rate for NAICS 71 

went from 5.2 to 7.6. The job opening 

rate for NAICS 72 went from 6.3 to 10.7 

while the rate for NAICS 23 went from 

3.3 to 5.2. The job opening rate for 

NAICS 11 64 increased from 3.4 to 5.3. 

YEAR-OVER-YEAR CHANGE IN JOB OPENING RATE 65

NAICS 11 NAICS 23 NAICS 56 NAICS 71 NAICS 72 

1.9 1.9 2.2 2.4 4.4 

The increase in the job openings rate 

across these industries is a clear 

indication of increased 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 increased job openings 

in these industries. 

In addition, DOS recently announced 

that, as worldwide restrictions due to 

the COVID–19 pandemic begin to ease, 

and in line with the President’s 

proclamation regarding the safe 

resumption of international travel,66 the 

Bureau of Consular Affairs is focusing 

on reducing wait times for all consular 

services at embassies and consulates 

overseas while also protecting health 

and safety of staff and applicants.67 We 

note, however, that amid growing 

concern about the COVID Omicron 

variant, a highly mutated form of the 

COVID virus that is now documented in 

dozens of countries and numerous states 

within the U.S., the Centers for Disease 

Control and Prevention (CDC) recently 

tightened testing requirements for 

international air travel to the United 

States, which may have an impact on 

such travel.68 Given the level of demand 

for H–2B workers, the continued and 

projected economic recovery, the 

continued and projected job growth, and 

the resumption of visa processing 

services, DHS believes it is appropriate 

at this time to release additional visas 

for positions with start dates on or 

before March 31, 2022. Further, DHS 

believes that 20,000 is an appropriate 

number of visas for the reasons 

discussed above. 

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 before March 31, 2022. 

Specifically, the following scenarios 

may still occur: 

• The 13,500 supplemental cap visas 

limited to returning workers that will be 

immediately available for employers 

will be reached before March 31, 2022. 

• The 6,500 supplemental cap visas 

limited to nationals of the Northern 

Triangle countries and Haiti will be 

reached before March 31, 2022. 

DHS regulation, 8 CFR 

214.2(h)(6)(xi)(E), reaffirms the use of 

the 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, 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 13,500 

supplemental cap visas for returning 

workers is reached before March 31, 

2022; or the 6,500 visas limited to 

nationals of the Northern Triangle 

countries and Haiti is reached before 

March 31, 2022. Finally, 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 

Similar to the temporary increases in 

FY 2019 and FY 2021, the Secretary of 

Homeland Security has determined that 

the supplemental visas should be 

granted to returning workers from the 

past 3 fiscal years, in order to meet the 

immediate need for H–2B workers, 

unless the H–2B worker is a national of 

one of the Northern Triangle countries 

or Haiti and is counted towards the 

separate 6,500 cap for such workers. 

The Secretary has determined that, for 

purposes of this program, H–2B 

returning workers include those 

individuals who were issued an H–2B 

visa or were otherwise granted H–2B 

status in FY 2019, 2020, or 2021. As 

discussed above, the Secretary 

determined that limiting returning 

workers to those who were issued an H– 

2B visa or granted H–2B status in the 

past three fiscal years is appropriate as 

it mirrors the standard that Congress 

designated in previous returning worker 

provisions. Returning workers have 

previously obtained H–2B visas and 

therefore been vetted by DOS, would 

have departed the United States after 

their authorized period of stay as 

generally required by the terms of their 


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69 DOS Monthly NIV Issuances by Nationality and 

Visa Class; https://travel.state.gov/content/travel/ 

en/legal/visa-law0/visa-statistics/nonimmigrantvisa-statistics.html (last visited December 1, 2021). 70 Id. 71See 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). 

72See 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). 

73As noted previously, some consular sections 

waive the in-person interview requirement for H– 

2B applicants whose prior visa expired within a 

specific timeframe and who otherwise meet the 

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

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

of interview of certain H–2 (temporary agricultural 

and non-agricultural workers) applicants is 

extended through the end of 2022. Applicants 

renewing any visa within 48 months of expiration 

are also eligible for interview waiver. DOS, 

Important Announcement on Waivers of the 

Interview Requirement for Certain Nonimmigrant 

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

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

2021). 

nonimmigrant admission, and therefore 

may have a higher likelihood of success 

in obtaining their new visas through 

DOS, possibly without a required 

interview, and begin work more 

expeditiously. 

To ensure compliance with the 

requirement that additional visas only 

be made available to returning workers, 

petitioners seeking H–2B workers under 

the supplemental cap will be required to 

attest that each employee requested or 

instructed to apply for a visa under the 

FY 2022 supplemental cap was issued 

an H–2B visa or otherwise granted H– 

2B status in FY 2019, 2020, or 2021, 

unless the H–2B worker is a national of 

one of the Northern Triangle countries 

or Haiti and is counted towards the 

6,500 cap. This attestation will serve as 

prima facie initial evidence to DHS that 

each worker, unless a national of one of 

the Northern Triangle countries or Haiti 

who is counted against the 6,500 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. 

D. Returning Worker Exemption for Up 

to 6,500 Visas for Nationals of 

Guatemala, El Salvador, and Honduras 

(Northern Triangle Countries) and Haiti 

As described above, the Secretary of 

Homeland Security has determined that 

up to 6,500 additional H–2B visas will 

be limited to workers who are nationals 

of one of the Northern Triangle 

countries or Haiti. These 6,500 visas 

will be exempt from the returning 

worker requirement. If the 6,500 visa 

limit has been reached and the 13,500 

cap has not, petitioners may continue to 

request workers who are nationals of 

one of the Northern Triangle countries 

or Haiti, but these noncitizens must be 

specifically requested as returning 

workers who were issued H–2B visas or 

were otherwise granted H–2B status in 

FY 2019, 2020, or 2021. 

DHS has determined that reserving 

6,500 supplemental H–2B visas for 

nationals of the Northern Triangle 

countries or Haiti—a number higher 

than the average annual number of visas 

issued to such persons in the past 7 

fiscal years—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 nationals 

of the Northern Triangle countries and 

Haiti seeking a legal pathway for 

temporary employment in the United 

States. DOS issued a combined total of 

approximately 26,630 H–2B visas to 

nationals of the Northern Triangle 

countries or Haiti from FY 2015 through 

FY 2020, an average of approximately 

4,400 per year.69 In FY 2021, DOS 

issued a combined total of more than 

6,600 visas to nationals of Northern 

Triangle countries. This increase is 

likely due in large part to the additional 

H–2B visas made available to nationals 

of these countries by the FY 2021 H–2B 

supplemental visa temporary final 

rule.70 In addition, based in part on the 

vital U.S. interest of promoting 

sustainable development and the 

stability of Haiti, DHS recently added 

Haiti to the list of countries whose 

nationals are eligible to participate in 

the H–2A and H–2B programs.71

Therefore, as previously stated, DHS has 

determined that the additional increase 

in FY 2022 will not only provide U.S. 

businesses who 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 Northern 

Triangle countries and Haiti. 

While DHS reiterates the importance 

of limiting the general supplemental cap 

exclusively to returning workers, for the 

reasons stated previously, the Secretary 

has determined that the exemption from 

the returning worker requirement for 

nationals of the Northern Triangle 

countries or Haiti is beneficial for the 

following reasons. It strikes a balance 

between furthering the U.S. foreign 

policy interests of expanding access to 

lawful pathways to nationals of the 

Northern Triangle countries and Haiti 

seeking economic opportunity in the 

United States and addressing the needs 

of certain H–2B employers that are 

suffering irreparable harm or will suffer 

impending irreparable harm. This 

policy initiative would also support the 

strategies for the region described in 

E.O. 14010, which directs DHS to 

implement efforts to expand access to 

lawful pathways to the United States, 

including visa programs, as appropriate 

and consistent with the law through 

both protection-related and nonprotection related programs. E.O. 14010 

further 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.72 The availability of workers 

from the Northern Triangle countries 

and Haiti may help provide U.S. 

employers with additional labor from 

neighboring countries who are 

committed to working with the United 

States and also promote safe and lawful 

immigration to the United States. 

Similar to the discussion above 

regarding returning workers, DOS will 

work with the relevant countries to 

facilitate consular interviews, as 

required,73 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. 

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 2022 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. In 

addition, the petitioner must submit an 

attestation to USCIS in which the 

petitioner affirms, under penalty of 


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74An employer may request fewer workers on the 

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

the TLC. See Instructions for Petition for 

Nonimmigrant Worker, providing that ‘‘the total 

number of workers you request on the petition must 

not exceed the number of workers approved by the 

Department of Labor or Guam Department of Labor, 

if required, on the temporary labor certification.’’ 75Since 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). 76This portion of the temporary rule does not 

apply to workers who have already been counted 

under the H–2B statutory cap for the first half of 

fiscal year 2022 (33,000). Further, this portion of the 

rule does not apply to noncitizens who are exempt 

from the fiscal year 2022 H–2B statutory cap, 

including those who are extending their stay in H– 

2B status. Accordingly, petitioners who are filing on 

behalf of such workers are not subject to the 

attestation requirement. 

77Public Law 117–70 Further Extending 

Government Funding Act, Division A ‘‘Further 

Continuing Appropriations Act, 2022’’, section 101 

(Dec. 3, 2021) changing the Public Law 117–43 

expiration date in section 106(3) from Dec. 3, 2021 

to Feb. 18, 2022, and Public Law 117–43 Extending 

Government Funding and Delivering Emergency 

Assistance Act, Division A ‘‘Continuing 

Appropriations Act, 2022’’, Section 101 and 106(3) 

(Oct. 3, 2021) providing DHS funding and 

authorities, including authority under section 105 

of title I of Division O of Public Law 116–260, 

through December 3, 2021. 

perjury, that it meets the business need 

standard. Petitioners must be able to 

establish 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.74 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. The attestation 

must be submitted directly to USCIS, 

together with Form I–129, the approved 

and valid TLC,75 and any other 

necessary documentation. As in the 

rules implementing the FY 2017, FY 

2018, FY 2019, and FY 2021 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.76

In previous years petitioners have 

only been required to attest that they 

were likely to suffer irreparable harm if 

they were unable to employ all of the 

H–2B workers requested on their I–129 

petition submitted under H–2B cap 

increase rules. The Departments have 

decided to change this standard. 

Employers must instead 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. This change is 

designed to focus more directly on the 

actual irreparable harm employers are 

suffering or the impending irreparable 

harm they will suffer as a result of their 

inability to employ H–2B workers, 

rather than on just the possibility of 

such harm. 

As noted above, Congress authorized 

the Secretary of Homeland Security, in 

consultation with the Secretary of 

Labor, to increase the total number of 

H–2B visas available ‘‘upon the 

determination that the needs of 

American businesses cannot be 

satisfied’’ with U.S. workers under the 

statutory visa cap.77 The new 

irreparable harm standard in this rule 

aligns with the 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. The prior 

standard, on the other hand, required 

only that the employer attest that harm 

was likely to occur at some point in the 

future, which created uncertainty as to 

whether that employer’s needs were 

truly unmet or would not be met 

without being able to employ the 

requested H–2B workers. Because the 

authority to increase the statutory cap is 

tied to the needs of businesses, the 

Departments think it is reasonable for 

employers to attest that they are 

suffering irreparable harm or that they 

will suffer impending irreparable harm 

without the ability to employ all of the 

H–2B workers requested on their 

petition. If such employers are unable to 

attest to such harm and retain and 

produce documentation of that harm, it 

calls into question whether their needs 

cannot in fact be satisfied without the 

ability to employ H–2B workers. As 

with employers with a current need, an 

employer’s inability to attest to 

impending harm calls into question 

their actual need for the requested H–2B 

workers. 

The change to the irreparable harm 

standard is also informed by the 

Departments’ experiences in 

implementing the business need 

standard. In the Departments’ 

experience, the ‘‘likely to suffer 

irreparable harm’’ standard has been 

difficult to assess and administer in the 

context of prior supplemental cap rules. 

For example, employers have reported 

confusion with the standard, including 

some employers that were not able to 

provide adequate evidence of the 

prospective ‘‘likelihood of irreparable 

harm’’ when selected for a random 

audit. The Departments therefore 

believe that asking employers to provide 

evidence of harm that is occurring or is 

impending without the ability to 

employ all of the H–2B workers 

requested on their petition is a better 

means of ensuring compliance. 

The attestation form will serve as 

prima facie initial evidence to DHS that 

the petitioner’s business is suffering 

irreparable harm or will suffer 

impending irreparable harm. Any 

petition requesting H–2B workers under 

this FY 2022 supplemental cap that is 

lacking the requisite attestation form 

may be rejected in accordance with 8 

CFR 103.2(a)(7)(ii) or denied in 

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

applicable. Although this regulation 

does not require submission of evidence 

at the time of filing of the petition, other 

than an attestation, the employer must 

have such evidence on hand and ready 

to present to DHS or DOL at any time 

starting with the date of filing the I–129 

petition, through the prescribed 

document retention period discussed 

below. In fact, as with petitions filed 

under the FY 2021 Supplemental TFR, 

the Departments intend to select a 

significant number of petitions 

approved for audit examination to verify 

compliance with program requirements, 

including the irreparable harm standard 

and recruitment provisions 

implemented through this rule. Failure 

to provide evidence demonstrating 

irreparable harm or to comply with the 

audit process may be considered a 

substantial violation resulting in an 

adverse agency action on the employer, 

including revocation of the petition 

and/or TLC or program debarment. 

Similarly, failure to cooperate with any 

compliance review, evaluation, 

verification, or inspection conducted by 

DHS or DOL as required by 8 CFR 

214.2(h)(6)(xi)(B)(2)(vi) and (vii), 

respectively, 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). 

In addition to the statement regarding 

the irreparable harm standard, the 

attestation submitted to USCIS will also 

state that the employer meets all other 

eligibility criteria for the available visas, 


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including the returning worker 

requirement, unless exempt because the 

H–2B worker is a national of one of the 

Northern Triangle countries or Haiti 

who is counted against the 6,500 visas 

reserved for such workers; 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); will conduct additional 

recruitment of U.S. workers in 

accordance with the requirements of 

this rule and discussed further below; 

and will document and retain evidence 

of such compliance. Because the 

attestation will be submitted 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, a petition 

may be denied or revoked, as 

applicable, based on or related to 

statements made in the attestation, 

including but not limited to the 

following grounds: (1) Because the 

employer failed to demonstrate 

employment of all of the requested 

workers is necessary under the 

appropriate business need standard; and 

(2) the employer failed to demonstrate 

that it requested and/or instructed that 

each worker petitioned for was a 

returning worker, or a national of one of 

the Northern Triangle countries or Haiti, 

as required by this rule. Any denial or 

revocation on such basis, however, 

would be appealable 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, 

given the time remaining in the first half 

of FY 2022 and the need to assemble the 

necessary documentation. In addition, 

the employer is required to retain 

documentation, which must be 

provided upon request by DHS 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 Northern Triangle countries 

or Haiti who is counted against the 

6,500 cap (which may be satisfied by the 

separate Form I–129 that employers are 

required to file for such workers in 

accordance with this rule) and (3) a 

recruitment report for any additional 

recruitment required under this rule for 

a period of 3 years. See new 20 CFR 

655.69. Although the employer must 

have such documentation on hand at 

the time it files the petition, the 

Departments have determined that, if 

employers were required to submit the 

attestation form to DOL before filing a 

petition with DHS, the attendant delays 

would render any visas unlikely to 

satisfy the needs of American 

businesses given processing timeframes 

and the time remaining in this fiscal 

year. However, as noted above, the 

Departments will be conducting 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, 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. See 

8 CFR 103.2(b) or 8 CFR 214.2(h)(11). 

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 they 

meet the document retention 

requirements at new 20 CFR 655.69, the 

petitioner must retain documents and 

records fulfilling their responsibility to 

demonstrate compliance with this rule 

for 3 years from the date of the 

attestation, and must provide the 

documents and records upon the 

request of DHS or DOL. With regard to 

the irreparable harm standard, 

employers attesting that they are 

suffering irreparable harm must be able 

to provide concrete evidence 

establishing severe and permanent 

financial loss that is occurring; the 

scope and severity of the harm must be 

clearly articulable. Employers attesting 

that they will suffer impending 

irreparable harm must be able to 

demonstrate that severe and permanent 

financial loss will occur in the near 

future without access to the 

supplemental visas; it will not be 

enough to provide evidence suggesting 

that such harm may or is likely to occur; 

rather, the documentary evidence must 

show that impending harm will occur 

and document the form of such harm. 

Supporting evidence may include, but is 

not limited to, the following types of 

documentation: 

(1) Evidence that the business is 

suffering or will suffer in the near future 

permanent and severe financial loss due 

to the inability to meet financial or 

existing contractual obligations because 

they were unable to employ H–2B 

workers, including evidence of 

contracts, reservations, orders, or other 

business arrangements that have been or 

would be cancelled, and evidence 

demonstrating an inability to pay debts/ 

bills; 

(2) Evidence that the business is 

suffering or will suffer in the near future 

permanent and severe financial loss, as 

compared to prior years, such as 

financial statements (including profit/ 

loss statements) comparing the 

employer’s period of need to prior years; 

bank statements, tax returns, or other 

documents showing evidence of current 

and past financial condition; and 

relevant tax records, employment 

records, or other similar documents 

showing hours worked and payroll 

comparisons from prior years to the 

current year; 

(3) Evidence showing the number of 

workers needed in the previous three 

seasons (FY 2019, 2020, and 2021) 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; 

(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; and/or 

(5) With respect to satisfying the 

returning worker requirement, 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 2019, 2020, 

or 2021, unless the H–2B worker is a 

national of one of the Northern Triangle 

countries or Haiti counted towards the 

6,500 cap. Such evidence would 

include, but is not limited to, a datestamped 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 2019, 2020, or 2021. 


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78Pursuant to the statutory provisions governing 

enforcement of the H–2B program, INA section 

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

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

willful misrepresentation of a material fact in the 

petition or a substantial failure to meet any of the 

terms and conditions of the petition. A substantial 

failure is a willful failure to comply that constitutes 

a significant deviation from the terms and 

conditions. See, e.g., 29 CFR 503.19. 

79 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 generally can 

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

80The 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. 

81Aliens 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)(27). 

82 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. 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. 85 FR 21739. 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, 

These examples are not exhaustive, 

nor will they necessarily establish that 

the business meets the irreparable harm 

or returning worker standards; 

petitioners may retain other types of 

evidence they believe will satisfy these 

standards. When an approved petition is 

selected for audit examination or 

investigation, DHS 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 

Northern Triangle countries or Haiti 

counted towards the 6,500 cap. 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, notify DOL. 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 1 year or more than 5 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, 503.24.78

To the extent that evidence reflects a 

preference for hiring H–2B workers over 

U.S. workers, 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, may also be warranted. 

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 Nov. 30, 2021). In addition, if 

members of the public have information 

that a participating employer may be 

abusing this program, DHS invites them 

to notify USCIS by completing the 

online fraud tip form, https://

www.uscis.gov/report-fraud/uscis-tipform (last visited Nov. 30, 2021).79

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 2021 Omnibus as extended by 

Public Law 117–70, 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, DHS 

may, as applicable, reject the petition in 

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

deny the petition in accordance with 8 

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

initial evidence submitted with the 

petition contains inconsistencies or is 

inconsistent with other evidence in the 

petition and the underlying TLC, DHS 

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 

2021 Omnibus as extended by Public 

Law 117–70 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.80

Thus, in the event the attestation 

requirement or any other part of this 

rule is enjoined or held invalid, the 

remainder of the rule, with the 

exception of the retention requirements 

being codified in 20 CFR 655.69, is also 

intended 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, 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. Such workers must 

be beneficiaries of a non-frivolous H–2B 

petition requesting an extension of stay 

received on or after the effective date of 

this temporary final rule but no later 

than 180 days after that date.81

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 

the effective date of this temporary final 

rule without waiting for approval of the 

H–2B petition. Specifically, the rule 

allows H–2B nonimmigrant workers to 

begin employment with a new H–2B 

employer or agent upon USCIS’s receipt 

of a timely filed, non-frivolous H–2B 

petition, provided the worker was 

lawfully admitted to the United States 

and has not worked without 

authorization subsequent to such lawful 

admission. Since every H–2B petition 

must be accompanied by an approved 

TLC, all H–2B petitioners must have 

completed a test of the U.S. labor 

market, as a result of which DOL 

determined that there were no qualified 

U.S. workers available to fill these 

temporary positions. 

This provision is similar to the 

portability provision in the FY 2021 H– 

2B supplemental visa temporary final 

rule. In addition, the provision is 

similar to temporary flexibilities that 

DHS has used previously to improve 

employer access to noncitizen workers 

during the COVID–19 pandemic.82 DHS 


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2020 through June 16, 2021, respectively. 85 FR 

51304 and 85 FR 82291. 83HHS, Determination of Public Health 

Emergency, 85 FR 7316 (Feb. 7, 2020). 84See HHS Renewal of Determination That A 

Public Health Emergency Exists, https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVDI-15Oct21.aspx (Oct. 15, 2021). 85Proclamation 9994 of Mar. 13, 2020, Declaring 

a National Emergency Concerning the Coronavirus 

Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 

18, 2020). 

86 DOS, Suspension of Routine Visa Services, 

https://travel.state.gov/content/travel/en/News/ 

visas-news/suspension-of-routine-visa-services.html 

(last updated July 22, 2020). 

87 DOS, Important Announcement on Waivers of 

the Interview Requirement for Certain 

Nonimmigrant Visas, https://travel.state.gov/ 

content/travel/en/News/visas-news/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

88 DOS, Visa Services Operating Status Update, 

https://travel.state.gov/content/travel/en/News/ 

visas-news/visa-services-operating-statusupdate.html (last updated Nov. 19, 2021). 

89 DOS, Expansion of Interview Waiver 

Eligibility, https://travel.state.gov/content/travel/ 

en/News/visas-news/expansion-of-interview-waivereligibility.html (last updated Mar. 11, 2021). 

90Celia Belin, Travel is resuming, but not for 

everyone, Brookings, https://www.brookings.edu/ 

blog/order-from-chaos/2021/11/08/travel-isresuming-but-not-for-everyone/ (Nov. 8, 2021). 

91The Joint Explanatory Statement accompanying 

the Fiscal Year (FY) 2020 Department of Homeland 

Security (DHS) Further Consolidated 

Appropriations Act (Pub. L. 116–94) states, ‘‘Not 

later than 120 days after the date of enactment of 

this Act, DHS, the Department of Labor, the 

Department of State, and the United States Digital 

Service are directed to report on options to improve 

the execution of the H–2A and H–2B visa programs, 

including: Processing efficiencies; combatting 

human trafficking; protecting worker rights; and 

reducing employer burden, to include the 

disadvantages imposed on such employers due to 

the current semiannual distribution of H–2B visas 

on October 1 and April 1 of each fiscal year. USCIS 

is encouraged to leverage prior year materials 

relating to the issuance of additional H–2B visas, to 

include previous temporary final rules, to improve 

processing efficiencies.’’ 

92The 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. 

recognizes the possibility that some 

beneficiaries were lawfully admitted 

and were in valid H–2B status at the 

time of the petition submission but such 

status may have lapsed during the 

pendency of the petition. Accordingly, 

DHS added the provision extending 

portability flexibility to petitioners to 

immediately employ beneficiaries of 

pending non-frivolous H–2B extension 

of stay petitions as of the effective date 

of this temporary final rule. See new 8 

CFR 214.2(h)(27)(iii)(B). This provision 

is intended to mitigate the harm that 

petitioners may experience resulting 

from the COVID–19 pandemic by 

allowing petitioners to employ such H– 

2B workers so long as they were 

lawfully admitted to the United States 

and if they have not worked unlawfully 

after their admission. In the context of 

this rule, DHS believes this flexibility 

will help some U.S. employers address 

the challenges related to the limitations 

imposed by the cap, as well as due to 

the ongoing disruptions caused by the 

COVID–19 pandemic. The pandemic 

has resulted in a variety of travel 

restrictions and visa processing 

limitations to mitigate the spread of 

COVID–19. 

In addition to resulting in a 

devastating loss of life, the worldwide 

pandemic of COVID–19 has impacted 

the United States in myriad ways, 

disrupting daily life, travel, and the 

operation of individual businesses and 

the economy at large. On January 31, 

2020, the Secretary of the U.S. 

Department of Health and Human 

Services (HHS) declared a public health 

emergency dating back to January 27, 

2020, under section 319 of the Public 

Health Service Act (42 U.S.C. 247d).83

This determination that a public health 

emergency exists due to COVID–19 has 

subsequently been renewed seven times: 

On April 21, 2020, on July 23, 2020, on 

October 2, 2020, on January 7, 2021, on 

April 15, 2021, on July 19, 2021 and 

most recently on October 15, 2021, 

effective October 18, 2021.84 On March 

13, 2020, then-President Trump 

declared a National Emergency 

concerning the COVID–19 outbreak to 

control the spread of the virus in the 

United States.85 The proclamation 

declared that the emergency began on 

March 1, 2020. DOS temporarily 

suspended routine immigrant and 

nonimmigrant visa services at all U.S. 

Embassies and Consulates on March 20, 

2020, and subsequently announced a 

phased resumption of visa services in 

which it would continue to provide 

emergency and mission critical visa 

services and resume routine visa 

services as local conditions and 

resources allowed.86 Based on the 

importance of the H–2A temporary 

agricultural worker and H–2B temporary 

nonagricultural worker programs, DOS 

indicated it would continue processing 

H–2A and H–2B cases to the extent 

possible, as permitted by post resources 

and local government restrictions, and 

expanded the categories of H–2 visa 

applicants whose applications can be 

adjudicated without an in-person 

interview.87 Although routine visa 

services have resumed 88 subject to local 

conditions and restrictions, and DOS 

has expanded visa interview waiver 

eligibility,89 the COVID–19 pandemic 

continues to have a significant impact 

on visa processing at embassies and 

consulates around the world.90 And as 

noted above, growing concern about the 

COVID Omicron variant recently 

prompted tightened testing 

requirements for international air travel 

to the United States, which may have an 

impact on such travel. 

Further, due to the possibility that 

some H–2B workers may be unavailable 

due to travel restrictions, to include 

those intended to limit the spread of 

COVID–19, or visa processing delays or 

may become unavailable due to COVID– 

19 related illness, U.S. employers that 

have approved H–2B petitions or who 

will be filing H–2B petitions in 

accordance with this rule might not 

receive all of the workers requested to 

fill the temporary positions. 

DHS is strongly committed not only to 

protecting U.S. workers and helping 

U.S. businesses receive the documented 

workers authorized to perform 

temporary nonagricultural services or 

labor that they need, but also to 

protecting the rights and interests of H– 

2B workers (consistent with Executive 

Order 13563 and in particular its 

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

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

Further Consolidated Appropriations 

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

DHS to provide options to improve the 

H–2A and H–2B visa programs, to 

include options that would protect 

worker rights.91 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.92 Providing that 

flexibility is also equitable and fair. 

Portability for H–2B workers provides 

these noncitizens with the option of not 

having to worry about job loss or loss of 

income between the time they leave a 

current employer and while they await 

approved employment with a new U.S. 

employer or agent. DHS believes this 

flexibility (job portability) not only 

protects H–2B workers but 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 


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93See CDC, What You Need to Know about 

Variants, https://www.cdc.gov/coronavirus/2019- 

ncov/variants/variant.html (last updated Dec. 13, 

2021); CDC, Key Things to Know About COVID–19 

Vaccines, https://www.cdc.gov/coronavirus/2019- 

ncov/vaccines/keythingstoknow.html (last updated 

Jan. 12, 2022). 

94See DHS, Statement on Equal Access to 

COVID–19 Vaccines and Vaccine Distribution Sites, 

https://www.dhs.gov/news/2021/02/01/dhsstatement-equal-access-covid-19-vaccines-andvaccine-distribution-sites (Feb. 1, 2021) (last 

accessed Nov. 30, 2021). 

95See ICE, FAQs: Protected Areas and 

Courthouse Arrests, https://www.ice.gov/about-ice/ 

ero/protected-areas (last visited Jan. 11, 2022). 

96See, Employee Rights—H–2B Workers and 

COVID–19 https://www.dol.gov/sites/dolgov/files/ 

WHD/posters/H2B_COVID.pdf (English); https://

www.dol.gov/sites/dolgov/files/WHD/posters/H2B_

COVID_SPA.pdf (Spanish) (Last visited Dec. 22, 

2021). 

97 During the period of employment specified on 

the Temporary Labor Certification, the employer 

must comply with all applicable Federal, State and 

local employment-related laws and regulations, 

including health and safety laws. 20 CFR 655.20(z). 

By submitting the Temporary Labor Certification as 

evidence supporting the petition, it is incorporated 

into and considered part of the benefit request 

under 8 CFR 103.2(b)(1). 

98See https://www.whitehouse.gov/briefing-room/ 

speeches-remarks/2021/04/21/remarks-bypresident-biden-on-the-covid-19-response-and-thestate-of-vaccinations-2/ (April 21, 2021). 

99See https://www.whitehouse.gov/briefing-room/ 

statements-releases/2021/12/02/fact-sheetpresident-biden-announces-new-actions-to-protectamericans-against-the-delta-and-omicron-variantsas-we-battle-covid-19-this-winter/ (December 2, 

2021). 

100See 86 FR 59603 (Oct. 28, 2021) (Presidential 

Proclamation); see also 86 FR 61224 (Nov. 5, 2021) 

(implementing CDC Order). 

101See 87 FR 3425 (Jan. 24, 2022) (restrictions at 

United States-Mexico border); 87 FR 3429 (Jan. 24, 

2022) (restrictions at United States-Canada border). 

supplemental caps who have the skills 

to perform the job duties. In that sense 

as well, it is equitable and fair. 

DHS is making this flexibility 

available for a 180-day period in order 

to provide stability for H–2B employers 

amidst continuing uncertainties 

surrounding the COVID–19 pandemic. 

This period is justified especially given 

the possible future impacts of COVID– 

19 variants and uncertainty regarding 

the duration of vaccine-gained 

immunity and how effective currently 

approved vaccines will be in responding 

to future COVID–19 variants.93 DHS will 

continue to monitor the evolving health 

crisis caused by COVID–19 and may 

address it in future rules. 

G. COVID–19 Worker Protections 

It is the policy of DHS and its Federal 

partners to support equal access to the 

COVID–19 vaccines and vaccine 

distribution sites, irrespective of an 

individuals’ immigration status.94 This 

policy promotes fairness and equity (see 

Executive Order 13563). Accordingly, 

DHS and DOL encourage all 

individuals, regardless of their 

immigration status, to receive the 

COVID–19 vaccine. U.S. Immigration 

and Customs Enforcement (ICE) and 

U.S. Customs and Border Protection do 

not conduct enforcement operations at 

or near vaccine distribution sites or 

clinics. Consistent with ICE’s protected 

areas policy, ICE does not and will not 

carry out enforcement operations in or 

near a medical or mental healthcare 

facility, such as a hospital, doctor’s 

office, health clinic, vaccination or 

testing site, urgent care center, site that 

serves pregnant individuals, or 

community health center.95

This TFR reflects that policy by 

providing as follows: 

Supplemental H–2B Visas: With 

respect to petitioners who wish to 

qualify to receive supplemental H–2B 

visas pursuant to the FY 2021 Omnibus 

as extended by Public Law 117–70, the 

Departments are using the DOL Form 

ETA–9142–B–CAA–5 to support equal 

access to vaccines in two ways. First, 

the Departments are requiring such 

petitioners to attest on the DOL Form 

ETA–9142–B–CAA–5 that, consistent 

with such petitioners’ obligations under 

generally applicable H–2B regulations, 

they will comply with all Federal, State, 

and local employment-related laws and 

regulations, including, where 

applicable, health and safety laws and 

laws related to COVID–19 worker 

protections; any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site 

See new 8 CFR 214.2(h)(6)(xi)(B)(2)(iv) 

and 20 CFR 655.64(a)(4). Second, the 

Departments are requiring such 

petitioners to also attest that they will 

notify any H–2B workers approved 

under the supplemental cap, in a 

language understood by the worker as 

necessary or reasonable, that all persons 

in the United States, including 

nonimmigrants, have equal access to 

COVID–19 vaccines and vaccine 

distribution sites. WHD has published a 

poster for employers’ optional use for 

this notification.96 Because the 

attestation will be submitted 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, a petition 

may be denied or revoked, as 

applicable, based on or related to 

statements made in the attestation, 

including, but not limited to, because 

the employer violated an applicable 

employment-related law or regulation, 

or failed to notify workers regarding 

equal access to COVID–19 vaccines and 

vaccine distribution sites. 

Other H–2B Employers: While there is 

no additional attestation with respect to 

H–2B petitioners that do not avail 

themselves of the supplemental H–2B 

visas made available under this rule, the 

Departments remind all H–2B 

employers that they must comply with 

all Federal, State, and local 

employment-related laws and 

regulations, including, where 

applicable, health and safety laws and 

laws related to COVID–19 worker 

protections; any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site. 

Failure to comply with such laws and 

regulations would be contrary to the 

attestation 7 on ETA 9142B—Appendix 

B, and therefore may be a basis for DHS 

to revoke the petition under 8 CFR 

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

and conditions of the approved 

petition.97 This obligation is also 

reflected as a condition of H–2B 

portability under this rule. See new 8 

CFR 214.2(h)(27)(iii)(C). 

President Biden, in his speech to Joint 

Session of Congress on April 21, 2021, 

made the following statement: ‘‘[T]oday, 

I’m announcing a program to address 

[the issue of COVID vaccinations] . . . 

nationwide. I’m calling on every 

employer, large and small, in every 

state, to give employees the time off 

they need, with pay, to get vaccinated 

and any time they need, with pay, to 

recover if they are feeling under the 

weather after the shot.’’ 98 More 

recently, President Biden reiterated his 

call on employers to provide paid time 

off to their employees to get booster 

shots.99 Consistent with the President’s 

statements, the Departments strongly 

urge, but do not require, that all 

employers seeking H–2B workers under 

either the Supplemental Cap or 

portability sections of the TFR, make 

every effort to ensure that all their 

workers, including nonimmigrant 

workers, be afforded an opportunity to 

take the time off needed to receive their 

COVID–19 vaccinations, as well as time 

off, with pay, to recover from any 

temporary side effect. In Proclamation 

10294 of October 25, 2021, the President 

barred the entry of nonimmigrants into 

the United States via air transportation 

unless they are fully vaccinated against 

COVID–19, with certain exceptions.100

On January 22, 2022, similar 

requirements entered into force at land 

ports of entry and ferry terminals.101

The Departments therefore expect that 

H–2B nonimmigrants who enter the 

United States via air transportation 

under this rule will generally be fully 

vaccinated against COVID–19. The 


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102Conversely, DHS believes that allowing 

petitioners to file these petitions during the second 

half of the fiscal year would be inconsistent with 

the intent to address the already-exceeded first half 

demand for H–2B workers without whom 

employers would be suffering irreparable harm. 

Allowing petitioners to file so far after their start 

date of need could call into question the petitioner’s 

period of temporary need for the services or labor 

to be performed, as well as petitioners’ attestations 

regarding the irreparable harm they are suffering or 

the impending irreparable harm they stand to suffer 

without the ability to employ all of the requested 

workers for that period of need. 

Departments note, however, that some 

H–2B nonimmigrants (such as 

nonimmigrants who are already in the 

United States) may not yet be 

vaccinated or may nonetheless be 

eligible for booster shots. 

As noted, Executive Order 13563 

refers to fairness, equity, and human 

dignity, and such efforts, on the part of 

employers, would be consistent with 

those commitments. 

Petitioners otherwise are strongly 

encouraged to facilitate and provide 

flexibilities, to the greatest extent 

possible, to all workers who wish to 

receive COVID–19 vaccinations. 

H. DHS Petition Procedures 

To petition for H–2B workers under 

this rule, the petitioner must file a Form 

I–129 in accordance with applicable 

regulations and form instructions, an 

unexpired TLC, and the attestation form 

described above. All H–2B petitions 

must state the nationality of all the 

requested H–2B workers, whether 

named or unnamed, even if there are 

beneficiaries from more than one 

country. See 8 CFR 214.2(h)(2)(iii). If 

filing multiple Forms I–129 based on 

the same TLC (for instance, one 

requesting returning workers and 

another requesting workers who are 

nationals of one of the Northern 

Triangle countries or Haiti), each H–2B 

petition must include a copy of the TLC 

and reference all previously-filed or 

concurrently filed petitions associated 

with the same TLC. The total number of 

requested workers may not exceed the 

total number of workers indicated on 

the approved TLC. Petitioners seeking 

H–2B classification for nationals of the 

Northern Triangle countries or Haiti 

under the 6,500 visa allocation that are 

exempt from the returning worker 

provision must file a separate Form I– 

129 for those nationals of the Northern 

Triangle countries and Haiti only. See 

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

regard, a petition must be filed with a 

single Form ETA–9142–B–CAA–5 that 

clearly indicates that the petitioner is 

only requesting nationals from a 

Northern Triangle country or Haiti who 

are exempt from the returning worker 

requirement. Specifically, if the 

petitioner checks Box #5 of Form ETA– 

9142–B–CAA–5, then the petition 

accompanying that form must be filed 

only on behalf of nationals of one or 

more of the Northern Triangle countries 

or Haiti, and not other countries. In 

such a case if the Form I–129 petition 

is requesting beneficiaries from 

countries other than Northern Triangle 

countries or Haiti, then USCIS may 

reject, 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 one of the Northern Triangle 

countries or Haiti. Requiring the filing 

of separate petitions to request returning 

workers and to request workers who are 

nationals of the Northern Triangle 

countries or Haiti 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–5, Attestation for 

Employers Seeking to Employ H–2B 

Nonimmigrant Workers Under Section 

105 of Division O of the Further 

Consolidated Appropriations Act, 2021 

Public Law 116–260, and Public Laws 

117–43 and 117–70. 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 new 20 CFR 655.69. 

Petitions submitted to DHS pursuant to 

the FY 2021 Omnibus, as extended by 

Public Law 117–43 and Public Law 

117–70, will be processed in the order 

in which they were received, and 

pursuant to processes 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). 

Consistent with the intent of this rule 

to address urgent demand from 

employers for H–2B workers with start 

dates in the first half of the fiscal year, 

USCIS will not accept petitions received 

after March 31, 2022. See new 8 CFR 

214.2(h)(6)(xi)(C). Such petitions will be 

rejected and the filing fees will be 

returned. DHS believes it is appropriate 

to set a final filing date that aligns with 

the final employment start date allowed 

under this rule, as petitioners under the 

supplemental allocation will attest to a 

need for H–2B workers to start on or 

before March 31, 2022, without whom 

they are suffering irreparable harm or 

will suffer impending irreparable 

harm.102

Based on the time-limited authority 

granted to DHS by Public Law 117–43 

and Public Law 117–70, on the same 

terms as section 105 of the under the FY 

2021 Omnibus, DHS is notifying the 

public that petitions seeking a visa 

under this rule filed on or before March 

31, 2022, may not be approved by 

USCIS on or after October 1, 2022. See 

new 8 CFR 214.2(h)(6)(xi). Petitions 

pending with USCIS that are not 

approved before October 1, 2022 will be 

denied and any fees will not be 

refunded. See new 8 CFR 

214.2(h)(6)(xi). 

Petitioners may choose to request 

premium processing of their petitions 

under 8 CFR 103.7(e), which allows for 

expedited processing for an additional 

fee. 

I. DOL Procedures 

As noted above, all employers are 

required to have an approved and valid 

TLC from DOL in order to file a Form 

I–129 petition with DHS. See 8 CFR 

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

standards and procedures governing the 

submission and processing of 

Applications for Temporary 

Employment Certification for employers 

seeking to hire H–2B workers are set 

forth in 20 CFR part 655, subpart A. An 

employer that seeks to hire H–2B 

workers must request a TLC in 

compliance with the application filing 

requirements set forth in 20 CFR 655.15 

and meet all the requirements of 20 CFR 

part 655, subpart A, to obtain a valid 

TLC, including the criteria for 

certification set forth in 20 CFR 655.51. 

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

Employers with an approved TLC have 

conducted recruitment, as set forth in 20 

CFR 655.40 through 655.48, to 

determine whether U.S. workers are 

qualified and available to perform the 

work for which H–2B workers are 

sought. 

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. 

Under 20 CFR 655.17, an employer 

may request a waiver of the time 

period(s) for filing an Application for 


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103 Interim Final Rule, Temporary NonAgricultural Employment of H–2B Aliens in the 

United States, 80 FR 24041 (Apr. 29, 2015) (2015 

H–2B Interim Final Rule). 

104See U.S. Department of Labor, Employment 

and Training Administration, Office of Foreign 

Labor Certification, 2015 H–2B Interim Final Rule 

FAQs, Round 12: Job Order and Application Filing 

and Processing, Emergency Procedures and PostCertification Amendments. Retrieved December 18, 

2021, from https://www.dol.gov/sites/dolgov/files/ 

ETA/oflc/pdfs/H-2B_2015_IFR_FAQs_Round12.pdf. 

Temporary Employment Certification 

based on ‘‘good and substantial’’ cause, 

provided that the employer has 

sufficient time to thoroughly test the 

domestic labor market on an expedited 

basis and the OFLC certifying officer 

(CO) has sufficient time to make a final 

determination as required by the 

regulation. To rely on this provision, as 

the Departments explained in the 2015 

H–2B Interim Final Rule,103 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.104

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. 

In addition to the recruitment already 

conducted in connection with a valid 

TLC, in order to ensure the recruitment 

has not become stale, employers that 

wish to obtain visas for their workers 

under 8 CFR 214.2(h)(6)(xi), and who 

file an I–129 petition 45 or more days 

after the certified start date of work on 

the TLC must conduct additional 

recruitment for U.S. workers. This is 

particularly important as U.S. workers 

continue to reenter the workforce as 

they become vaccinated. As noted in the 

2015 H–2B Interim Final Rule, U.S. 

workers seeking employment in 

temporary or seasonal 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, 2021, likely conducted their 

positive recruitment beginning around 

late-July and ending around mid-August 

2021, and continued to consider U.S. 

worker applicants and referrals only 

until September 10, 2021. 

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 45 or 

more days after their dates of need, 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. The 45-day threshold for 

additional recruitment identified in this 

rule reflects a timeframe between the 

end of the employer’s recruitment and 

filing of the petition similar to that 

provided under the FY 2018, FY 2019, 

and FY 2021 H–2B supplemental cap 

rules. 

An employer that files an I–129 

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

fewer than 45 days after the certified 

start date of work on the TLC must 

submit the TLC and a completed Form 

ETA–9142B–CAA–5, but is not required 

to conduct recruitment for U.S. workers 

beyond the recruitment already 

conducted as a condition of 

certification. Only those employers with 

still-valid TLCs with a start date of work 

that is 45 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 labor 

certification and attest that the 

recruitment will be conducted, as 

follows. 

Employers that are required to engage 

in new 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. 

The job order must contain the job 

assurances and contents set forth in 20 

CFR 655.18 for recruitment of U.S. 

workers at the place of employment, 

and remain posted for at least 15 

calendar days. The employer must also 

follow all applicable SWA instructions 

for posting job orders and receive 

applications in all forms allowed by the 

SWA, including online applications. 

The Departments have concluded that 

keeping the job order posted for a period 

of 15 calendar days, during the period 

the employer is conducting the 

additional recruitment steps explained 

below, 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 15 calendar day period also 

is consistent with the employerconducted 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). Common H–2B 

occupations or industries that are 

traditionally or customarily unionized 

include, but are not limited to, those 

covering construction and extraction, 

manufacturing, food and hospitality, 

transportation and distribution, and 

other production related services. To 

facilitate an effective dissemination of 


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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. 

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. 

As explained on the locator website, 

some AJCs may continue to offer virtual 

or remote services due to the pandemic 

with physical office locations 

temporarily closed for in-person and 

mail processing services. Therefore, this 

rule requires that employers utilize 

available electronic methods for the 

nearest AJC to meet the contact and 

disclosure requirements in this rule. 

Second, during the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(5)(i) for 

intrastate clearance, the employer must 

make reasonable efforts to contact (by 

mail or other 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, 

2020, until the date the I–129 petition 

required under 8 CFR 214.2(h)(6)(xi) is 

submitted. Among the employees the 

employer must contact are those who 

have been furloughed or laid off during 

this period. The employer must disclose 

to its former employees the terms of the 

job order, and solicit their return to the 

job. The contact and disclosures 

required by this paragraph must be 

provided in a language understood by 

the worker, as necessary or reasonable. 

Furloughed employees are employees 

the employer laid off (as the term is 

defined in 20 CFR 655.5 and 29 CFR 

503.4), but the layoff is intended to last 

for a temporary period of time. This 

recruitment step will help ensure notice 

of the job opportunity is disseminated 

broadly to U.S. workers who were laid 

off or furloughed during the COVID–19 

outbreak and who may be seeking 

employment as the economy continues 

to recover and as more people are 

vaccinated. While this requirement goes 

beyond the requirement at 20 CFR 

655.43, the Departments believe it is 

appropriate given the evolving 

conditions of the U.S. labor market, as 

described above, and the increased 

likelihood that qualified U.S. workers 

will make themselves available for these 

job opportunities. 

Third, 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). 

The requirements to contact 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 


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105Final Rule, Temporary Agricultural 

Employment of H–2A Aliens in the United States, 

75 FR 6884, 6921 (Feb. 12, 2010). 106NPRM, Temporary Agricultural Employment 

of H–2A Aliens in the United States, 74 FR 45906, 

45917 (Sept. 4, 2009); 75 FR at 6922. 

and not significantly disadvantage the 

employee. 

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 45 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 a longer 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 of the requirement to engage 

in non-discriminatory hiring practices 

and that the job opportunity is, and 

through the recruitment period set forth 

in this rule must continue to be, 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 

materials 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 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. In other 

circumstances, such as allegations 

involving discriminatory hiring 

practices, the SWA may need to 

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 2010,105

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.106 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)(27). 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 who may be 

seeking employment as the economy 

continues to recover in 2022 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, 

including placement of a new job order 

with the SWA, contact with AJCs, 

contact with former U.S. workers, and 

compliance with § 655.45(a) or (b). 

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)(5)(v) of new 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 655.56. 

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). 

DOL’s 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; 


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recovery of wages due; 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 new 20 CFR 655.69, 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. In 

addition to the complaint process under 

20 CFR part 658, subpart E, which is 

described above, workers who believe 

their rights under the H–2B program 

have been violated may file confidential 

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. Note 

that an employer is prohibited from 

intimidating, threatening, restraining, 

coercing, blacklisting, discharging, or in 

any manner discriminating against an 

employee 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). 

DHS has the authority to verify any 

information submitted to establish H–2B 

eligibility at any time before or after the 

petition has been adjudicated by USCIS. 

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

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

103 and section 214.2(h). DHS’ 

verification methods may include, but 

are not limited to, review of public 

records and information, contact via 

written correspondence or telephone, 

unannounced physical site inspections, 

and interviews. USCIS will use 

information obtained through 

verification to determine H–2B 

eligibility and assess compliance with 

the requirements of the H–2B program. 

Subject to the exceptions described in 8 

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

petitioners with an opportunity to 

address adverse information that may 

result from a USCIS compliance review, 

verification, or site visit 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– 

5, 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)(xi), 

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–5 to be an 

appendix to the Application for 

Temporary Employment Certification 

and the attestations contained on the 

Form ETA–9142B–CAA–5 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–5 and 

documentation supporting the 

attestations. However, DOL’s audit 

authority is independently authorized, 

and is not limited by the expiration date 

of this rule. In order to make certain that 

the supplemental visa allocation is not 

subject to fraud or abuse, DHS will 

share information regarding Forms 

ETA–9142B–CAA–5 with DOL, 

consistent with existing authorities. 

This information sharing between DHS 

and DOL, along with relevant 

information that may be obtained 

through the separate SWA and WHD 

complaint systems, are expected to 

support DOL’s identification of TLCs 

used to access the supplemental visa 

allocation for closer examination of 

TLCs through the audit process. 

In accordance with the 

documentation retention requirements 

in this rule, the petitioner must retain 

documents and records proving 

compliance with this rule, and must 

provide the documents and records 

upon request by DHS or DOL. Under 

this rule, DOL will audit a significant 

number of TLCs used to access the 

supplemental visa allocation to ensure 

employer compliance with attestations, 

including those regarding the 

irreparable harm standard and 

additional employer conducted 

recruitment, required under this rule. In 

the event of an audit, the OFLC CO will 

send a letter to the employer and, if 

appropriate, a copy of the letter to the 

employer’s attorney or agent, listing the 

documentation the employer must 

submit and the date by which the 

documentation must be sent to the CO. 

During audits under this rule, the CO 

will request documentation necessary to 

demonstrate the employer conducted all 

recruitment steps required under this 

rule and truthfully attested to the 

irreparable harm the employer was 

suffering or would suffer in the near 

future without the ability to employ all 

of the H–2B workers requested under 

the cap increase, including 

documentation the employer is required 

to retain under this rule. If necessary to 

complete the audit, the CO may request 

supplemental information and/or 

documentation from the employer 

during the course of the audit process. 

20 CFR 655.70(c). 

Failure to comply in the audit process 

may result in the revocation of the 

employer’s certification or in 

debarment, under 20 CFR 655.72 and 

655.73, respectively, or require the 

employer to undergo assisted 

recruitment in future filings of an 

Application for Temporary Employment 

Certification, under 20 CFR 655.71. 

Where an audit examination or review 

of information from DHS or other 

appropriate agencies determines that 

there has been fraud or willful 

misrepresentation of a material fact or a 

substantial failure to meet the required 

terms and conditions of the attestations 

or failure to comply with the audit 

examination process, OFLC may 

institute appropriate administrative 

proceedings to impose sanctions on the 

employer. Those sanctions may result in 

revocation of an approved TLC, the 

requirement that the employer undergo 

assisted recruitment in future filings of 


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107See Public Law 117–70 Further Extending 

Government Funding Act, Division A ‘‘Further 

Continuing Appropriations Act, 2022’’, section 101 

(Dec. 3, 2021) changing the Public Law 117–43 

expiration date in section 106(3) from Dec. 3, 2021 

to Feb. 18, 2022, and Public Law 117–43 Extending 

Government Funding and Delivering Emergency 

Assistance Act, Division A ‘‘Continuing 

Appropriations Act, 2022’’, Section 101 and 106(3) 

(Oct. 3, 2021) extending DHS funding, including 

authority under section 105 of title I of Division O 

of Public Law 116–260 through December 3, 2021. 

108See Megan Leonhardt, The Great Resignation 

is hitting these industries hardest, Fortune, https:// 

fortune.com/2021/11/16/great-resignation-hittingthese-industries-hardest/ (Nov. 16, 2021) (‘‘The 

industries hit hardest by quits in September are 

leisure and hospitality—including those who work 

in the arts and entertainment, as well as in 

restaurants and hotels—trade, transportation and 

utilities, professional services and retail.’’). These 

observations made in the preceding source align 

with USCIS analysis of labor demand in industry 

sectors that are most represented in the H–2B 

program, as discussed in the E.O. 12866 analysis. 

See also, e.g., Paul Krugman, Wonking Out: Is the 

Great Resignation a Great Rethink?, N.Y. Times, 

https://www.nytimes.com/2021/11/05/opinion/ 

great-resignation-quit-job.html (Nov. 5, 2021) (‘‘. . . 

there’s considerable evidence that ‘workers at lowwage jobs [have] historically underestimated how 

bad their jobs are.’ When something—like, say, a 

deadly pandemic—forces them out of their rut, they 

realize what they’ve been putting up with. And 

because they can learn from the experience of other 

workers, there may be a ‘quits multiplier’ in which 

the decision of some workers to quit ends up 

inducing other workers to follow suit.’’). 

109See Annika Kim Constantino, Omicron 

detected in Florida and Texas as it takes root in 25 

U.S. states, CNBC, https://www.cnbc.com/2021/12/ 

10/omicron-detected-in-florida-texas-and-otherstates-as-it-takes-root-across-the-us-.html (Dec. 10, 

2021). 

110On December 10, 2021, BLS reported that the 

CPI–U increased 0.8 percent in November on a 

seasonally adjusted basis after rising 0.9 percent in 

October. Over the previous 12 months, the all items 

index increased 6.8 percent before seasonal 

adjustment. See BLS, Economic News Release, 

Consumer Price Index Summary (Dec. 20, 2021), 

https://www.bls.gov/news.release/cpi.nr0.htm. 

111See, e.g., Mitchell Hartman, Omicron’s impact 

on inflation and supply chains is uncertain, 

Marketplace, https://www.marketplace.org/2021/ 

12/01/omicrons-impact-on-inflation-and-supplychains-is-uncertain/ (Dec. 1, 2021) (‘‘People have 

trouble getting to work through lockdowns and 

what have you, and labor gets scarcer — 

particularly for those jobs where being present at 

work matters. Supply goes down and has an 

upward pressure on pricing . . .’’); Alyssa Fowers 

& Rachel Siegel, Five charts explaining why 

inflation is at a near 40-year high, Wash. Post, 

https://www.washingtonpost.com/business/2021/ 

10/14/inflation-prices-supply-chain/ (Oct. 14, 2021, 

last updated Dec. 10, 2021) (‘‘Prices for meat, 

poultry, fish and eggs have surged in particular 

above other grocery categories. The White House 

has pointed to broad consolidation in the meat 

industry, saying that large companies bear some of 

the responsibility for pushing prices higher . . . 

Meat industry groups disagree, arguing that the 

same supply-side issues rampant in the rest of the 

economy apply to proteins because it costs more to 

transport and package materials, while tight labor 

market has held back meat production.’’). 

112USCIS, USCIS Reaches H–2B Cap for First 

Half of FY 2022, https://www.uscis.gov/newsroom/ 

alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy2022 (Oct. 12, 2021). 

113November 16, 2020 was the last receipt date 

for the first half of FY 2020. See 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). 

114See Jason Douglas et al, Omicron Disrupts 

Government Plans to Lure Migrant Workers as 

Labor Shortages Bite, Wall Street Journal, https://

www.wsj.com/articles/omicron-disruptsgovernment-plans-to-lure-migrant-workers-as-laborshortages-bite-11639132203 (Dec. 10, 2021) (‘‘‘I’ve 

lost customers because people don’t have the 

patience to wait—it’s horrible, horrible,’’ she said. 

‘‘The sad part is, if I got my workers, my business 

would grow exponentially.’ . . . Ms. Ogden has 

tried to find locals to fill the jobs. She even asked 

her congressman to put a sign in his office. She 

offered about $18 an hour, plus overtime. No one 

took a job. Congress raised the cap for H–2B visas 

this year, up to a total of 66,000 for fiscal 2022, but 

that still falls far short of demand.’’). 

an Application for Temporary 

Employment Certification for a period of 

up to 2 years, and/or debarment from 

the H–2B program and any other foreign 

labor certification program administered 

by DOL for 1 to 5 years. See 29 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 new 20 CFR 655.69, 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). 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, for the reasons set forth below. 

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 to give effect to the extension of 

the supplemental cap authority in 

section 105 of Div. O of the FY 2021 

Omnibus, which was extended by 

Congress and expires on February 18, 

2022 but extends the supplemental cap 

authority to FY 2022.107 The 

Departments are bypassing advance 

notice and comment because of the 

exigency created by this short timeframe 

for action, as well as to urgently address 

increased labor demand and other 

conditions stemming from the rapidly 

unfolding pandemic. In recent months, 

the ‘‘Great Resignation’’ has resulted in 

an adverse impact on many employers 

in industries that frequently use the H– 

2B program,108 and the emergence of the 

Omicron variant has uncertain 

implications for public health 109 as well 

as on inflation 110 and supply chains.111

USCIS received more than enough 

petitions to meet the H–2B visa 

statutory cap for the first half of FY 2022 

on September 30, 2021,112 which is a 

month and a half earlier than when the 

statutory cap for the first half of FY 2020 

was reached.113 USCIS rejected and 

returned the petitions and associated 

filing fees to petitioners for all capsubject petitions received after 

September 30, 2021. Given high demand 

by American businesses for H–2B 

workers, rapidly evolving economic 

conditions and labor demand, and the 

very short time remaining to authorize 

additional visa numbers to help prevent 

further irreparable harm currently 

experienced by some U.S. employers or 

avoid impending economic harm for 

others,114 a decision to undertake notice 

and comment rulemaking would likely 

delay final action on this matter by 

weeks or months, and would, therefore, 

greatly complicate and potentially 

preclude the Departments from 

successfully exercising the authority 

created by section 105, Public Law 117– 

43, and Public Law 117–70. 

The temporary portability and change 

of employer provisions in 8 CFR 214.2 


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115HHS, Determination of Public Health 

Emergency, 85 FR 7316 (Feb. 7, 2020). See also, 

https://www.phe.gov/emergency/news/ 

healthactions/phe/Pages/2019-nCoV.aspx (Jan. 31, 

2020). 

116See, HHS, Renewal of Determination that a 

Public Health Emergency Exists, https://

www.phe.gov/emergency/news/healthactions/phe/ 

Pages/COVDI-15Oct21.aspx (Oct. 15, 2021). 

117President of the United States, Proclamation 

9994 of March 13, 2020, Declaring a National 

Emergency Concerning the Coronavirus Disease 

(COVID–19) Outbreak, 85 FR 15337 (Mar. 18, 2020). 

118 DOS, Suspension of Routine Visa Services, 

https://travel.state.gov/content/travel/en/News/ 

visas-news/suspension-of-routine-visa-services.html 

(last updated July 22, 2020). 

119https://travel.state.gov/content/travel/en/ 

News/visas-news/suspension-of-routine-visaservices.html. 

120 DOS, Important Announcement on Waivers of 

the Interview Requirement for Certain 

Nonimmigrant Visas, https://travel.state.gov/ 

content/travel/en/News/visas-news/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

121See 86 FR 59603 (Oct. 28, 2021) (Presidential 

Proclamation); see also 86 FR 61224 (Nov. 5, 2021) 

(implementing CDC Order). 

122See 87 FR 3425 (Jan. 24, 2022) (restrictions at 

United States-Mexico border); 87 FR 3429 (Jan. 24, 

2022) (restrictions at United States-Canada border). 

123See A Proclamation on Suspension of Entry as 

Immigrants and Nonimmigrants of Certain 

Additional Persons Who Pose a Risk of 

Transmitting Coronavirus Disease 2019 (Nov. 26, 

2021), https://www.whitehouse.gov/briefing-room/ 

presidential-actions/2021/11/26/a-proclamationon-suspension-of-entry-as-immigrants-andnonimmigrants-of-certain-additional-persons-whopose-a-risk-of-transmitting-coronavirus-disease2019/. 

124See A Proclamation on Revoking Proclamation 

10315 (Dec. 28, 2021), https://www.whitehouse.gov/ 

briefing-room/presidential-actions/2021/12/28/aproclamation-on-revoking-proclamation-10315/. 

125See CDC, Requirement for Proof of Negative 

COVID–19 Test or Documentation of Recovery from 

COVID–19 (Dec. 2, 2021). 

126Because the Departments have issued this rule 

as a temporary final rule, this rule—with the sole 

exception of the document retention 

Continued 

and 274a.12 are further supported by 

conditions created by the COVID–19 

pandemic. On January 31, 2020, the 

Secretary of Health and Human Services 

declared a public health emergency 

under section 319 of the Public Health 

Service Act in response to COVID–19 

retroactive to January 27, 2020.115 This 

determination that a public health 

emergency exists due to COVID–19 has 

subsequently been renewed seven times: 

On April 21, 2020, on July 23, 2020, on 

October 2, 2020, January 7, 2021, on 

April 15, 2021, on July 19, 2021 and 

most recently on October 15, 2021, 

effective October 18, 2021.116 On March 

13, 2020, then-President Trump 

declared a National Emergency 

concerning the COVID–19 outbreak, 

retroactive to March 1, 2020, to control 

the spread of the virus in the United 

States.117 In response to the Mexican 

government’s call to increase social 

distancing in that country, DOS 

announced the temporary suspension of 

routine immigrant and nonimmigrant 

visa services processed at the U.S. 

Embassy in Mexico City and all U.S. 

consulates in Mexico beginning on 

March 18, 2020, and it later expanded 

the temporary suspension of routine 

immigrant and nonimmigrant visa 

services at all U.S. Embassies and 

Consulates.118 On July 22, 2020, DOS 

indicated that embassies and consulates 

should continue to provide emergency 

and mission critical visa services to the 

extent possible and could begin a 

phased resumption of routine visa 

services as local conditions and 

resources allow.119 On March 26, 2020 

DOS designated the H–2 programs as 

essential to the economy and food 

security of the United States and a 

national security priority; DOS 

indicated that U.S. Embassies and 

Consulates will continue to process H– 

2 cases to the extent possible and 

implemented a change in its procedures, 

to include interview waivers.120

Travel restrictions have also changed 

over time as the pandemic has 

continued to evolve. On October 25, 

2021, the President issued Proclamation 

10294, Advancing the Safe Resumption 

of Global Travel During the COVID–19 

Pandemic, which, together with other 

policies, advance the safety and security 

of the air traveling public and others, 

while also allowing the domestic and 

global economy to continue its recovery 

from the effects of the COVID–19 

pandemic. The proclamation bars the 

entry of noncitizen adult nonimmigrants 

into the United States via air 

transportation unless they are fully 

vaccinated against COVID–19, with 

certain exceptions.121 On January 22, 

2022, similar requirements entered into 

force at land ports of entry and ferry 

terminals.122

On November 26, 2021, the President 

issued another Proclamation suspending 

the entry into the United States, of 

immigrants or nonimmigrants, of 

noncitizens who were physically 

present within certain Southern African 

countries during the 14-day period 

preceding their entry or attempted entry 

into the United States.123 On December 

28, 2021, the President revoked the 

November 26 Proclamation.124 And on 

December 2, 2021, CDC announced that, 

beginning December 6, 2021, all air 

travelers over the age of two, regardless 

of citizenship or vaccination status, will 

be to be required to show a negative predeparture COVID–19 viral test taken the 

day before they board their flight to the 

United States, or documentation of 

recent recovery from COVID–19.125

Shifting requirements as well as varying 

availability of vaccines and tests in 

some H–2B nonimmigrants’ home 

countries could complicate travel. 

In addition to travel restrictions and 

impacts of the pandemic on visa 

services, as discussed elsewhere in this 

rule, current efforts to curb the 

pandemic in the United States and 

worldwide have been partially 

successful. With the emergence of 

COVID–19 variants, including the 

uncertainty surrounding the most recent 

variant, Omicron; different rates of 

vaccination; and other uncertainties 

associated with the evolving pandemic 

situation, DHS anticipates that H–2B 

employers may need additional 

flexibilities, beyond supplemental visa 

numbers, to meet all of their labor 

needs, particularly if some U.S. and H– 

2B workers become unavailable due to 

illness or other restrictions related to the 

spread of COVID–19. Therefore, DHS is 

acting expeditiously to put in place 

rules that will facilitate the continued 

employment of H–2B workers already 

present in the United States. This action 

will help employers fill these critically 

necessary nonagricultural job openings 

and protect U.S. businesses’ economic 

investments in their operations. 

Courts have found ‘‘good cause’’ 

under the APA when an agency is 

moving expeditiously to avoid 

significant economic harm to a program, 

program users, or an industry. Courts 

have held that an agency may use the 

good cause exception to address ‘‘a 

serious threat to the financial stability of 

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

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

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

‘‘economic harm and disruption’’ to a 

given industry, which would likely 

result in higher consumer prices, Am. 

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

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

Consistent with the above authorities, 

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 ongoing uncertainty over the 

status of the numerical limitation, in 

other words, the effective termination of 

the program through the remainder of 

FY 2021. 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.,126 and 


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requirements—will be of no effect after September 

30, 2022, even if Congress includes an additional 

or similar authority akin to Public Law 117–43, as 

extended by Public Law 117–70 on the same terms 

as section 105, in a subsequent act of Congress. 

127See, e.g., Arnold Brodbeck et al., Seasonal 

Migrant Labor in the Forest Industry of the 

Southeastern United States: The Impact of H–2B 

Employment on Guatemalan Livelihoods, 31 

Society and Natural Resources 1012 (2018). 

includes appropriate conditions to 

ensure that it affects only those 

businesses most in need, and also 

protects H–2B and U.S. workers. 

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 Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary and to the extent permitted by 

law, to proceed only if the benefits 

justify the costs and to select the 

regulatory approach that maximizes net 

benefits. Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits; 

reducing costs; simplifying and 

harmonizing rules; and promoting 

flexibility through approaches that 

preserve freedom of choice (including 

through ‘‘provision of information in a 

form that is clear and intelligible’’). It 

also allows consideration of equity, 

fairness, distributive impacts, and 

human dignity, even if some or all of 

these are difficult or impossible to 

quantify. 

The Office of Information and 

Regulatory Affairs has determined that 

this rule is a ‘‘significant regulatory 

action,’’ although not an economically 

significant regulatory action. 

Accordingly, the Office of Management 

and Budget has reviewed this 

regulation. 

Summary 

With this temporary final rule (TFR), 

DHS is authorizing the immediate 

release of an additional 20,000 H–2B 

visas. By the authority given under 

Public Law 117–43, and extended by 

Public Law 117–70, on the same terms 

as section 105 of the Further 

Consolidated Appropriations Act, 2021, 

Public Law 116–260 (FY 2021 

Omnibus), DHS is raising the H–2B cap 

by an additional 20,000 visas during FY 

2022 for positions with start dates on or 

before March 31, 2022 to businesses 

that: (1) Show that there are an 

insufficient number of U.S. workers to 

meet their needs in the first half of FY 

2022; (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 

2019, 2020, or 2021, unless the H–2B 

worker is a national of one of the 

Northern Triangle countries or Haiti. 

Additionally, up to 6,500 of the 20,000 

visas may be granted to workers from 

the Northern Triangle countries and 

Haiti 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 

2022. 

The estimated total costs to 

petitioners range from $4,803,155 to 

$5,324,039. The estimated total cost to 

the Federal Government is $467,820. 

Therefore, DHS estimates that the total 

cost of this rule ranges from $5,270,975 

to $5,791,859. The benefits of this rule 

are diverse, though some of them are 

difficult to quantify. They include: 

(1) Employers benefit from this rule 

significantly through increased access to 

H–2B workers; 

(2) Customers and others benefit 

directly or indirectly from that 

increased access; 

(3) H–2B workers benefit from this 

rule significantly through obtaining jobs 

and earning wages, potential ability to 

port and earn additional wages, and 

increased information on COVID–19 

and vaccination distribution. DHS 

recognizes that some of the effects of 

these provisions may occur beyond the 

borders of the United States; 127

(4) 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; 

(5) The existence of a lawful pathway, 

for the 6,500 visas set aside for new 

workers from Guatemala, Honduras, El 

Salvador, and Haiti, is likely to provide 

multiple benefits in terms of U.S. policy 

with respect to the Northern Triangle 

countries and Haiti; and 

(6) The Federal Government benefits 

from increased evidence regarding 

attestations. Table 1 provides a 

summary of the provisions in this rule 

and some of their impacts. 


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TABLE 1—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 20,000 H–2B temporary workers. Up to 

6,500 of the 20,000 additional visas will be reserved for workers who 

are nationals of Guatemala, Honduras, El Salvador, and Haiti and will 

be exempt from the returning worker requirement.

—The total estimated cost to file Form I–129 by 

human resource specialists is approximately 

$558,461. The total estimated cost to file Form I– 

129 and Form G–28 will range from approximately 

$624,952 if filed by in-house lawyers to approximately $836,755 if filed by outsourced lawyers. The 

total estimated cost associated with filing additional 

petitions ranges from $1,183,413 to $1,395,216 depending on the filer.

—The total estimated costs associated with filing Form 

I–907 if it is filed with Form I–129 is $974,909 if filed 

by human resource specialists. The total estimated 

costs associated with filing Form I–907 would range 

from approximately $795,707 if filed by an in-house 

lawyer to approximately $817,943 if filed by an 

outsourced lawyer. The total estimated costs associated with requesting premium processing ranges 

from approximately $1,770,616 to approximately 

$1,792,852.

—DHS may incur additional adjudication costs as 

more applicants 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.

—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 

fewer H–2B workers 

were available. 

—Petitioners will be required to fill out the 

newly created Form 

ETA–9142–B–CAA–5, 

Attestation for Employers 

Seeking to Employ H–2B 

Nonimmigrant Workers 

Under Section 105 of 

Div. O of the Consolidated Appropriations 

Act, 2021.

—The total estimated cost to petitioners to complete 

and file Form ETA–9142–B–CAA–5 is approximately 

$472,316.

—Form ETA–9142–B– 

CAA–5 will serve as initial evidence to DHS that 

the petitioner meets the 

irreparable harm standard and returning worker 

requirements. 

—Petitioners would be required to conduct an additional round of recruitment.—The total estimated cost to petitioners to conduct an 

additional round of recruitment is approximately 

$178,015.

—The additional round of 

recruitment will ensure 

that a U.S. worker that is 

willing and able to fill the 

position is not replaced 

by a nonimmigrant worker. 

—Employers of H–2B 

workers would be required to provide information about equal access to COVID–19 vaccines and vaccination 

distribution sites.

—The total estimated cost to petitioners to provide 

COVID–19 vaccines and vaccination distribution site 

information is approximately $601.

—Workers would be given 

information about equal 

access to vaccines and 

vaccination distribution. 

—An H–2B nonimmigrant 

who is physically present 

in the United States may 

port to another employer.

—The total estimated cost to file Form I–129 by 

human resource specialists is approximately 

$63,965. The total estimated cost to file Form I–129 

and Form G–28 will range from approximately 

$72,242 if filed by in-house lawyers to approximately $96,715 if filed by outsourced lawyers.

—The total estimated costs associated with filing Form 

I–907 if it is filed with Form I–129 is $111,549 if filed 

by human resource specialists. The total estimated 

costs associated with filing Form I–907 would range 

from approximately $92,052 if filed by an in-house 

lawyer to approximately $94,625 if filed by an 

outsourced lawyer.

—The total estimated costs associated with the portability provision ranges from $339,808 to $366,865, 

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.

—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. 


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128Revised effective 1/18/2009; 73 FR 78104; 74 

FR 2837. 

129See 8 U.S.C. 1184(g)(1)(B), INA 214(g)(1)(B) 

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

130A 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). 

131Sections 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 provide the DHS Secretary with the authority 

to make available additional H–2B visas for FY 

2022 on the same terms as Section 105 of Division 

O of the Consolidated Appropriations Act, 2021, 

Public Law 116–260 (FY 2021 Omnibus). This 

authority expires on February 18, 2022. 

132This assumption is based on the fact that, 

under DOL regulations, employers must apply for 

a TLC 75 to 90 days before the start date of work. 

20 CFR 655.15(b). 

TABLE 1—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 

—DHS and DOL intend to 

conduct a 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.

—Employers will have to comply with audits for an estimated total opportunity cost of time of $290,400.

—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 

6,000 hours and cost approximately $467,820.

—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. 

Familiarization Cost ............. —Petitioners or their representatives with familiarize themselves with 

the rule.

—Petitioners or their representatives will need to read 

and understand the rule at an estimated total opportunity costs of time that ranges from $567,986 to 

$827,774.

—Petitioners will have the 

necessary information to 

take advantage of and 

comply with the provisions of this rule. 

Source: USCIS and DOL analysis. 

Background and Purpose of the 

Proposed Rule 

The H–2B visa classification program 

was designed to serve U.S. businesses 

that are unable to find a sufficient 

number of U.S. workers to perform 

nonagricultural work of a temporary or 

seasonal 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–129.128

The current INA statute 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).129 Any unused 

H–2B visas from the first half of the 

fiscal year will be 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 will therefore not be made 

available.130 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 Dec 27, 2020, the President signed 

the FY 2021 Omnibus that contains a 

provision (Sec. 105 of Div. O) 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. On December 3, 2021, 

Congress extended this authority to 

eligible employers whose employment 

needs for FY 2022 cannot be met under 

the general fiscal year statutory cap.131

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 an 

additional 20,000 visas for FY 2022 

positions with start dates on or before 

March 31, 2022, for those businesses 

who would qualify under certain 

circumstances. 

These businesses must 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 their 

petition. The Secretary has determined 

that up to 13,500 of the 20,000 these 

supplemental visas will be limited to 

specified H–2B returning workers for 

nationals of any country. Specifically, 

these individuals must be workers who 

were issued H–2B visas or were 

otherwise granted H–2B status in fiscal 

years 2019, 2020, or 2021. The Secretary 

has also determined that up to 6,500 of 

the 20,000 additional visas will be 

reserved for workers who are nationals 

of Guatemala, Honduras, El Salvador, 

and Haiti, and that these 6,500 workers 

will be exempt from the returning 

worker requirement. Once the 6,500 visa 

limit has been reached, a petitioner may 

continue to request H–2B visas for 

workers who are nationals of 

Guatemala, Honduras, El Salvador, and 

Haiti but these workers must be 

returning workers. 

Population 

This rule would 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 

would 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 of the H–2B 

workers requested on their petition and 

without the exercise of authority that is 

the subject of this rule. Due to the 

temporary nature of this rule and the 

limited time left for employers to begin 

the H–2B filing process for positions 

with FY 2022 employment start dates on 

or before March 31, 2022,132 DHS 

believes that it is reasonable to assume 

that eligible petitioners for these 

additional 20,000 visas will generally be 

those employers that have already 

completed the steps to receive an 


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133As of December 1, 2021, DOL OFLC had 

denied 235 applications for 6,375 positions and 

rejected 74 applications for 1,063 positions. 

Employers had withdrawn 132 applications for 

6,171 positions. This totals 441 applications for 

13,609 positions either denied, rejected, or 

withdrawn. 134Of the 65,717 certified H–2B worker positions, 

approximately 14 percent (9,458 certified H–2B 

worker positions) may be employed by employers 

under a cap exempt status. Of the 7,301 H–2B 

workers positions requested for certification and 

still under DOL review, approximately 26 percent 

(1,933 pending H–2B worker positions) may be 

employed by employers under a cap exempt status. 

This totals 11,391 H–2B workers positions 

associated with approved and pending TLCs where 

the H–2B worker may be employed by the employer 

under a cap exempt status; or 16 percent of all 

73,018 positions associated with approved and 

pending TLCs. 

135Calculation for petitioners: 2,469 approved 

TLCs + 347 pending + 65 projected future TLCs = 

2,881 approved, pending, and project future TLCs. 

Calculation for beneficiaries: 65,717 positions 

associated with approved TLCs + 7,301 positions 

associated with pending TLCs+ 2,100 positions 

associated with projected future TLCs = 75,118 

positions associated with approved, pending, and 

projected future TLCs. 

136Calculation: 75,118 approved, pending, and 

projected H–2B worker positions * 84% of 

requested workers not being exempt from the 

statutory cap = 63,099 requested H–2B beneficiaries 

subject to the statutory cap. 

137USCIS, Office of Performance and Quality, 

Data pulled on December 2, 2021. 

138Calculation: 2,881 approved, pending, and 

projected TLCs ¥ 1,665 petitions for H–2B workers 

= 1,226 expected additional petitions for H–2B 

workers. 

139USCIS, Filing Your Form G–28, https://

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

140Calculation: 1,226 estimated additional 

petitions * 44.43 percent of petitions filed by a 

lawyer = 545 petitions (rounded) filed by a lawyer. 

Calculation: 1,226 estimated additional petitions 

¥ 545 petitions filed by a lawyer = 681 petitions 

filed by an HR specialist. 

approved TLC prior to the issuance of 

this rule. 

This rule would 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 

employer. These H–2B workers would 

continue to earn wages and gaining 

employers would continue to obtain 

necessary workers. 

Population That Will File a Form I–129, 

Petition for a Nonimmigrant Worker 

According to DOL OFLC’s 

certification data for FY 2021, as of 

December 1, 2021, about 3,257 TLCs for 

86,627 H–2B positions were received 

with expected work start dates between 

October 1, 2021 and March 1, 2022. 

DOL OFLC has approved 2,469 

certifications for 65,717 H–2B positions 

and is still reviewing the remaining 347 

TLC requests for 7,301 H–2B positions. 

DOL OFLC has denied, withdrawn, 

rejected, or returned 441 certifications 

for 13,609 H–2B positions.133 However, 

many of these certified worker positions 

have already been filled under the semiannual cap of 33,000 and, for 

approximately 16 percent of the worker 

positions certified and still under 

review by DOL, employers indicated on 

the Form ETA–9142B their intention to 

employ some or all of the H–2B workers 

under the application who will be 

exempt from the statutory visa cap.134

Additionally, based on the average TLC 

requests received for work start dates 

between March 2 and 31 during FY 

2019–2021, DOL OFLC estimates that it 

may receive another 65 TLC requests 

covering approximately 2,100 H–2B 

worker positions for the remainder of 

the first half visa allotment period 

ending March 31, 2022. The total 

universe of approved, pending, and 

projected future TLCs, as of December 1, 

2021, is 2,881 for 75,118 H–2B worker 

positions.135 Assuming 16 percent of the 

approved, pending, and projected 

75,118 H–2B worker petitions will be 

exempt from the statutory visa cap, we 

estimate applications requesting 

approximately 63,099 H–2B 

beneficiaries.136

Of the expected 2,881 certified 

Applications for Temporary 

Employment Certification, USCIS data 

shows that 1,655 H–2B petitions for 

40,749 positions with approved 

certifications were already filed toward 

the first semi-annual cap of 33,000 

visas.137 Therefore, we estimate that 

approximately 1,226 Applications for 

Temporary Employment Certification 

may be filed towards this FY 2022 

supplemental cap.138 USCIS recognizes 

that some employers would have to 

submit two Forms I–129 if they choose 

to request H–2B workers under both the 

returning worker and Northern Triangle 

Countries/Haiti cap. At this time, USCIS 

cannot predict how many employers 

will choose to take advantage of this setaside, and therefore recognize that the 

number of petitions may be 

underestimated. 

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.139 Using data from FY 2017 

to FY 2021, we estimate that 

approximately 44.43 percent of Form I– 

129 petitions will be filed by a lawyer 

or accredited representative (Table 2). 

Table 2 shows the percentage of Form 

I–129 H–2B petitions that were 

accompanied by a Form G–28. 

Therefore, we estimate that 545 Forms 

I–129 and Forms G–28 will be filed by 

in-house or outsourced lawyers, and 

that 681 Forms I–129 will be filed by 

human resources (HR) specialists.140

TABLE 2—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28 

[FY 2017–2021] 

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 

2017 ............................................................................................................................................. 2,615 6,112 42.78 

2018 ............................................................................................................................................. 2,626 6,148 42.71 

2019 ............................................................................................................................................. 3,335 7,461 44.70 

2020 ............................................................................................................................................. 2,434 5,422 44.89 

2021 ............................................................................................................................................. 4,229 9,159 46.17 

2017–2021 Total ................................................................................................................... 15,239 34,302 44.43 

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021 and December 

2, 2021. 


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141Calculation: 1,226 estimated additional 

petitions * 93.67 percent premium processing filing 

rate = 1,148 (rounded) additional Form I–907. 

142Calculation: 1,148 additional Form I–907 * 

44.43 percent of petitioners represented by a lawyer 

= 510 (rounded) additional Form I–907 filed by a 

lawyer. 

Calculation: 1,148 additional Form I–907 ¥ 510 

additional Form I–907 filed by a lawyer = 638 

additional Form I–907 filed by an HR specialist. 

143H–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 

2020, 346 requests for change of status to H–2B 

were approved by USCIS and 3,505 crossings of 

visa-exempt H–2B workers were processed by 

Customs and Border Protection (CBP). See 

Characteristics of H–2B Nonagricultural Temporary 

Workers FY2020 Report to Congress at https://

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

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

USCIS assumes some of these workers, along with 

current workers with a valid H–2B visa under the 

cap, could be eligible to port under this new 

provision. USCIS does not know the exact number 

of H–2B workers who would be eligible to port at 

this time but uses the cap and supplemental cap 

allocations as a possible proxy for this population. 

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 3 shows the percentage of 

Form I–129 H–2B petitions that were 

filed with a Form I–907. Using data 

from FY 2017 to FY 2021, USCIS 

estimates that approximately 93.67 

percent of Form I–129 H–2B petitioners 

will file a Form I–907 requesting 

premium processing, though this could 

be higher because of the timing of this 

rule. Based on this historical data, 

USCIS estimates that 1,148 Forms I–907 

will be filed with the Forms I–129 as a 

result of this rule.141 Of these 1,148 

premium processing requests, we 

estimate that 510 Forms I–907 will be 

filed by in-house or outsourced lawyers 

and 638 will be filed by HR 

specialists.142

TABLE 3—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM I–907 

[FY 2017–2021] 

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 

2017 ............................................................................................................................................. 5,932 6,112 97.05 

2018 ............................................................................................................................................. 5,986 6,148 97.36 

2019 ............................................................................................................................................. 7,227 7,461 96.86 

2020 ............................................................................................................................................. 4,341 5,422 80.06 

2021 ............................................................................................................................................. 8,646 9,159 94.40 

2017–2021 Total ................................................................................................................... 32,132 34,302 93.67 

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021 and December 

2, 2021. 

Population That Files Form ETA–9142– 

B–CAA–5, Attestation for Employers 

Seeking To Employ H–2B 

Nonimmigrant Workers Under Section 

105 of Division O of the Consolidated 

Appropriations Act, 2021 Public Law 

116–260 and Public Laws 117–43 and 

117–70 

Petitioners seeking to take advantage 

of the FY 2022 H–2B supplemental visa 

cap will need to file a Form ETA–9142– 

B–CAA–5 attesting that their business 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, 

comply with third party notification, 

and maintain required records, among 

other requirements. DOL estimates that 

each of the 1,226 petitioners will need 

to file a Form ETA–9142–B–CAA–5 and 

comply with its provisions. 

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 

20,000 additional H–2B workers 

authorized by this supplemental cap 

regulation as a proxy for the H–2B 

population that could be currently 

present in the United States.143 We use 

the number of approved, pending, and 

projected TLCs (2,881) to estimate the 

potential number of Form I–129 H–2B 

petitions that incur impacts associated 

with this porting provision. USCIS uses 

the number of Forms I–129 filed for 

extension of stay due to change of 

employer relative to the Forms I–129 

filed for new employment from FY 2011 

to FY 2020, the ten years prior to the 

implementation of first portability 

provision in a H–2B supplemental cap 

TFR, to estimate the baseline rate. We 

compare the average rate from FY 2011– 

FY 2020 to the rate from FY 2021. Table 

4 presents the number of Form I–129 

filed extensions of stay due to change of 

employer and Form I–129 filed for new 

employment for Fiscal year 2011 

through 2020. The average rate of 

extension of stay due to change of 

employer compared to new employment 

is approximately 10.5 percent. 


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144USCIS, Office of Performance and Quality, 

Data pulled on December 6, 2021. 

145Calculation: 1,113 Form I–129 filed for 

extension of stay due to change of employer/7,208 

Form I–129 filed for new employment = 15.4 

percent. 

146Calculation: 2,881 Form I–129 H–2B petitions 

filed for new employment * 10.5 percent = 303 

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

filed for extension of stay due to change of 

employer, no portability provision. 

147Calculation: 2,881 Form I–129 H–2B petitions 

filed for new employment * 15.4 percent = 444 

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

filed for extension of stay due to change of 

employer, with a portability provision. 

148Calculation: 444 estimated number of Form I– 

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

to change of employer, with a portability provision 

¥ 303 estimated number of Form I–129 H–2B 

petitions filed for extension of stay due to change 

of employer, no portability provision = 141 Form 

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

portability provision. 

149Calculation for lawyers: 2,881 approved, 

pending, and projected applicants * 44.43 percent 

represents by a lawyer = 1,280 (rounded) 

represented by a lawyer. 

Calculation for HR specialists: 2,881 approved, 

pending, and projected applicants—1,280 

represented by a lawyer = 1,601 represented by a 

HR specialist 

150See Form I–129 instructions at https://

www.uscis.gov/i-129 (accessed December 1, 2021). 

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

151Calculation: $460 current filing fee for Form 

I–129 + $150 additional filing fee for employers 

filing H–2B petitions = $610 total estimated filing 

fees for H–2B petitions using Form I–129. 

152The public reporting burden for this form is 

2.34 hours for Form I–129 and an additional 2.00 

hours for H Classification Supplement, totaling 4.34 

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

www.uscis.gov/i-129 (accessed December 1, 2021). 

TABLE 4—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 2011–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 

2011 ............................................................................................................................................. 360 3,887 0.093 

2012 ............................................................................................................................................. 293 3,688 0.079 

2013 ............................................................................................................................................. 264 4,120 0.064 

2014 ............................................................................................................................................. 314 4,666 0.067 

2015 ............................................................................................................................................. 415 4,596 0.090 

2016 ............................................................................................................................................. 427 5,750 0.074 

2017 ............................................................................................................................................. 556 5,298 0.105 

2018 ............................................................................................................................................. 744 5,136 0.145 

2019 ............................................................................................................................................. 812 6,251 0.130 

2020 ............................................................................................................................................. 804 3,997 0.201 

Ten-Year Average ................................................................................................................ ........................ ........................ 0.105 

Source: USCIS, Office of Performance and Quality, Data pulled on December 6, 2021. 

In FY 2021, the first year a H–2B 

supplemental cap included a portability 

provision, there were 1,113 Forms I–129 

filed for extension of stay due to change 

of employer compared to 7,208 Forms I– 

129 filed for new employment.144 This 

is a rate of 15.4 percent, which is above 

our earlier 10.5 percent rate, and is our 

estimate of the rate expected in future 

years with a portability provision in the 

supplemental visa allocation.145 Using 

the 2,881 as our estimate for the number 

of Forms I–129 filed for H–2B new 

employment in the first half of FY 2022, 

we estimate that 303 Forms I–129 for 

extension of stay due to change of 

employer would be filed in absence of 

this provision.146 With this portability 

provision, we estimate that 444 Forms 

I–129 for extension of stay due to 

change of employer would be filed.147

This difference results in 141 additional 

Forms I–129 as a result of this 

provision.148

Population Affected by the Audits 

DHS and DOL each intend to conduct 

250 audits of employers hiring H–2B 

workers under this time-limited FY 

2022 H–2B supplemental cap rule. The 

determination of which employers are 

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, a total of 500 audits on 

employers that petition for H–2B 

workers under this TFR will be 

conducted by the Federal Government. 

Population Expected To Familiarize 

Themselves With This Rule 

DHS expects the population that 

employers with approved, pending, or 

projected Applications for Temporary 

Employment Certification will need to 

familiarize themselves with this rule; an 

estimated 2,881 employers. We expect 

familiarization with the rule will be 

performed by a HR specialist, in-house 

lawyer, or outsourced lawyer, and this 

will be done at the same rate as 

petitioners who file a Form G–28; an 

estimated 44.43 percent performed by 

lawyers. Therefore we estimate that 

1,280 lawyers will incur familiarization 

costs and 1,601 HR specialists will incur 

familiarization costs.149

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 

filing costs and the opportunity cost of 

time to complete and submit the form. 

The current filing fee for Form I–129 is 

$460 and employers filing H–2B 

petitions must submit an additional fee 

of $150.150 The total estimated cost from 

filing fees for H–2B petitions using 

Form I–129 is $610.151 The estimated 

time to complete and file Form I–129 for 

H–2B classification is 4.34 hours.152 The 

petition must be filed by a U.S. 

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

employer filing through the U.S. agent. 

DHS estimates that 44.43 percent of 

Form I–129 H–2B petitions will be filed 

by an in-house or outsourced lawyer, 

and the remainder (55.57 percent) will 

be filed by an HR specialist or 

equivalent occupation. 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 


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153U.S. Department of Labor, Bureau of Labor 

Statistics, ‘‘May 2020 National Occupational 

Employment and Wage Statistics’’ Human 

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

available at https://www.bls.gov/oes/2020/may/oes_

nat.htm#13-0000 (accessed December 1, 2021). 

154U.S. Department of Labor, Bureau of Labor 

Statistics. ‘‘May 2020 National Occupational 

Employment and Wage Estimates’’ Lawyers (23– 

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

www.bls.gov/oes/2020/may/oes_nat.htm#23-0000 

(accessed December 1, 2021). 

155Calculation: $38.91 mean Total Employee 

Compensation per hour for civilian workers/$26.85 

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 2021 Table 1. 

Employer Costs for Employee Compensation by 

ownership, Civilian workers, available at https://

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

09162021.pdf (accessed December 1, 2021). 

156Calculation for the total wage of an HR 

specialist: $33.38 × 1.45 = $48.40 (rounded). 

Calculation for the total wage of an in-house 

lawyer: $71.59 × 1.45 = $103.81 (rounded). 

157The DHS ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ used 

a multiplier of 2.5 to convert in-house lawyer wages 

to the cost of outsourced lawyer based on 

information received in public comment to that 

rule. We believe the explanation and methodology 

used in the Final Small Entity Impact Analysis 

remains sound for using 2.5 as a multiplier for 

outsourced labor wages in this rule, see page G–4 

[September 1, 2015] [https://www.regulations.gov/ 

document/ICEB-2006-0004-0921]. Also see 

‘‘Exercise of Time-Limited Authority To Increase 

the Fiscal Year 2021 Numerical Limitation for the 

H–2B Temporary Nonagricultural Worker Program 

and Portability Flexibility for H–2B Workers 

Seeking To Change Employers.’’ May 25, 2021, 86 

FR 28198. Available at https://www.regulations.gov/ 

document/USCIS-2021-0007-0001. 

158Calculation: Average hourly wage rate of 

lawyers × benefits-to-wage multiplier for 

outsourced lawyer = $71.59 × 2.5 = $178.98 

(rounded). 

159USCIS, Filing Your Form G–28, https://

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

(accessed December 1, 2021). 

160USCIS, G–28, Notice of Entry of Appearance 

as Attorney or Accredited Representative 

Instructions. See https://www.uscis.gov/g-28. 

161Calculation: 0.83 hours to file Form G–28 + 

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

both forms. 

162Calculation if an HR specialist files Form I– 

129: $48.40 × 4.34 hours = $210.06 (rounded). 

Calculation if an in-house lawyer files Forms I– 

129 and G–28: $103.81 × 5.17 hours = $536.70 

(rounded). 

Calculation if an outsourced lawyer files Forms 

I–129 and G–28: $178.98 × 5.17 hours = $925.33 

(rounded). 

163Calculation if an HR specialist files Form I– 

129 and filing fee: $210.06 opportunity cost of time 

+ $610 in filing fees = $820.06. 

Calculation if an in-house lawyer files Forms I– 

129, G–28, and filing fee: $536.70 opportunity cost 

of time + $610 in filing fees = $1,146.70. 

Calculation if outsourced lawyer files Forms I– 

129, G–28 and filing fee: $925.33 opportunity cost 

of time + $610 in filing fees = $1,535.33. 

164Calculation: $820.06 opportunity costs for HR 

specialist plus filing fees * 681 Form I–129 filed by 

HR specialists = $558,461 (rounded) total cost of 

Form I–129 filed by HR specialists. 

165Calculation: $1,146.70 opportunity costs for 

in-house lawyers plus filing fees * 545 Form I–129 

and Form G–28 filed by in-house lawyers = 

$624,952 (rounded) total cost of Form I–129 and 

Form G–28 filed by in-house lawyers. 

Calculation: $1,535.33 opportunity costs for 

outsourced lawyers plus filing fees * 545 Form I– 

129 and Form G–28 filed by outsourced lawyers = 

$836,755 (rounded) total cost of Form I–129 and 

Form G–28 filed by outsourced lawyers. 

166Calculation: $558,461 total cost of Form I–129 

filed by HR specialists + $624,952 total cost of Form 

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

$1,183,413 estimated total costs to file Form I–129 

and G–28. 

Calculation: $558,461 total cost of Form I–129 

filed by HR specialists + $836,755 total cost of Form 

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

$1,395,216 estimated total costs to file Form I–129 

and G–28. 

167See Form I–907 instructions at https://

www.uscis.gov/i-907 (accessed December 1, 2021). 

168Calculation for opportunity cost of time if an 

HR specialist files Form I–907: $48.40 × 0.58 hours 

= $28.07(rounded). 

Calculation for opportunity cost of time if an inhouse lawyer files Form I–907: $103.81 × 0.58 

hours= $60.21(rounded). 

Calculation for opportunity cost of time if an 

outsourced lawyer files Form I–907: $178.98 × 0.58 

hours = $103.81(rounded). 

$33.38 as the base wage rate.153 If 

petitioners hire an in-house or 

outsourced lawyer to file Form I–129 on 

their behalf, DHS uses the mean hourly 

wage rate of $71.59 as the base wage 

rate.154 Using the most recent Bureau of 

Labor Statistics (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.155 DHS 

multiplied the average hourly U.S. wage 

rate for HR specialists and for in-house 

lawyers by the benefits-to-wage 

multiplier of 1.45 to estimate the full 

cost of employee wages. The total 

compensation for an HR specialist is 

$48.40 per hour, and the total 

compensation for an in-house lawyer is 

$103.81 per hour.156 In addition, DHS 

recognizes that an entity may not have 

in-house lawyers and seek outside 

counsel to complete and file Form I–129 

on behalf of the petitioner. Therefore, 

DHS presents a second wage rate for 

lawyers labeled as outsourced lawyers. 

DHS recognizes that the wages for 

outsourced lawyers may be much higher 

than in-house lawyers and therefore 

uses a higher compensation-to-wage 

multiplier of 2.5 for outsourced 

lawyers.157 DHS estimates the total 

compensation for an outsourced lawyer 

is $178.98 per hour.158 If a lawyer 

submits Form I–129 on behalf of the 

petitioner, Form G–28 must accompany 

the Form I–129 petition.159 DHS 

estimates the time burden to complete 

and submit Form G–28 for a lawyer is 

50 minutes (0.83 hour, rounded).160 For 

this analysis, DHS adds the time to 

complete Form G–28 to the opportunity 

cost of time to lawyers for filing Form 

I–129 on behalf of a petitioner. This 

results in a time burden of 5.17 hours 

for in-house lawyers and outsourced 

lawyers to complete Form G–28 and 

Form I–129.161 Therefore, the total 

opportunity cost of time per petition for 

an HR specialist to complete and file 

Form I–129 is approximately $210.06, 

for an in-house lawyer to complete and 

file Forms I–129 and G–28 is about 

$536.70, and for an outsourced lawyer 

to complete and file is approximately 

$925.33.162 The total cost, including 

filing fees and opportunity costs of time, 

per petitioner to file Form I–129 is 

approximately $820.06 if HR specialists 

file, $1,146.70 if an in-house lawyer 

files, and $1,535.33 if an outsourced 

lawyer files the form.163

Cost to Petitioners 

As mentioned in Section 3, the 

estimated population impacted by this 

rule is 1,226 eligible petitioners who are 

projected to apply for the additional 

20,000 H–2B visas for the first half of FY 

2022, with 6,500 of the additional visas 

reserved for employers that will petition 

for workers who are nationals of the 

Northern Triangle countries and Haiti, 

who are exempt from the returning 

worker requirement. 

Costs to Petitioners To File Form I–129 

and Form G–28 

As discussed above, DHS estimates 

that an additional 681 petitions will be 

filed by HR specialists using Form I–129 

and an additional 545 petitions will be 

filed by lawyers 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 $448,461 (rounded).164

DHS estimates total cost to file Form I– 

129 petitions and Form G–28 if filed by 

lawyers will range from $624,952 

(rounded) if only in-house lawyers file 

these forms to $836,755 (rounded) if 

only outsourced lawyers file them.165

Therefore, the estimated total cost to file 

Form I–129 and Form G–28 range from 

$1,183,413 and $1,395,216.166

Costs To File Form I–907 

Employers may use Form I–907 to 

request premium processing of Form I– 

129 petitions for H–2B visas. The filing 

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

$1,500 and the time burden for 

completing the form is 35 minutes (0.58 

hour).167 Using the wage rates 

established previously, the opportunity 

cost of time to file Form I–907 is 

approximately $28.07 for an HR 

specialist, $60.21 for an in-house 

lawyer, and $103.81 for an outsourced 

lawyer.168 Therefore, the total filing cost 

to complete and submit Form I–907 per 

petitioner is approximately $1,528.07 


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169Calculation if an HR specialist files: $28.07 + 

$1,500 = $1,528.07. 

Calculation if an in-house lawyer files: $60.21 + 

$1,500 = $1,560.21. 

Calculation if outsourced lawyer files: $103.81 + 

$1,500 = $1,603.81. 

170Calculation: $1,528.07 opportunity costs for 

HR specialist plus filing fees * 638 Form I–907 filed 

by HR specialists = $974,909 (rounded) total cost 

of Form I–907 filed by HR specialists. 

171Calculation: $1,560.21 opportunity costs for 

in-house lawyers plus filing fees * 510 Form I–907 

filed by in-house lawyers = $795,707 (rounded) 

total cost of Form I–907 filed by in-house lawyers. 

Calculation: $1,603.81 opportunity costs for 

outsourced lawyers plus filing fees * 510 Form I– 

907 filed by outsourced lawyers = $817,943 

(rounded) total cost of Form I–907 filed by 

outsourced lawyers. 

172Calculation: $974,909 total cost of Form I–907 

filed by HR specialists + $795,707 total cost of Form 

I–907 filed by in-house lawyers = $1,770,616 

estimated total costs to file Form I–907. 

Calculation: $974,909 total cost of Form I–129 

filed by HR specialists + $817,943 total cost of Form 

I–907 filed by outsourced lawyers = $1,792,852 

estimated total costs to file Form I–907. 

173Calculation: $48.40 opportunity cost of time 

for HR specialist × 1-hour time burden for the new 

attestation form and notifying third parties and 

retaining records related to the returning worker 

requirements = $48.40. 

174Calculation: $46.46 (average per hour wage for 

a financial analyst, based on BLS wages) × 1.45 

(benefits-to-wage multiplier) = $67.37. U.S. 

Department of Labor, Bureau of Labor Statistics, 

‘‘May 2020 National Occupational Employment and 

Wage Statistics’’ Financial and Investment 

Analysts, Financial Risk Specialists, and Financial 

Specialists, All Other (13–2098): https://

www.bls.gov/oes/2020/may/oes_nat.htm#13-0000 

(accessed April 9, 2021). 

175Calculation: $67.37 (fully loaded hourly wage 

for a financial analyst) x 5 hours (time burden for 

assessing, documenting and retention of supporting 

evidence demonstrating the employer is suffering 

irreparable harm or will suffer impending 

irreparable harm) = $336.85. 

176Calculations: Cost for HR Specialists: $48.40 

opportunity cost of time for an HR specialist to 

comply with attestation requirements * 1,226 

estimated additional petitions = $59,338 (rounded) 

total cost for HR specialists to comply with 

attestation requirements. 

Calculation: $336.85 opportunity cost of time for 

a financial analyst to comply with attestation 

requirements * 1,226 estimated additional petitions 

= $412,978 (rounded) for financial analysts to 

comply with attestation requirements. 

177Calculation: $59,338 total cost for HR 

specialist to comply with attestation requirement + 

$412,978 total cost for financial analysts to comply 

with attestation requirements = $472,316 total cost 

to comply with attestation requirements. 

178Calculation: $48.40 hourly opportunity cost of 

time for an HR specialist * 3-hour time burden = 

$145.20 per petitioner cost to conduct additional 

recruitment. 

179Calculation: 1,226 estimated number of 

petitioners * $145.20 per petitioner cost to conduct 

additional recruitment = $178,015 (rounded) total 

cost to conduct additional recruitment. 

for HR specialists, $1,560.21 for inhouse lawyers, and $1,603.81 for 

outsourced lawyers.169

As discussed above, DHS estimates 

that an additional 638 Form I–907 will 

be filed by HR specialists and an 

additional 510 Form I–907 will be filed 

by lawyers. DHS estimates the total cost 

of Form I–907 filed by HR specialists is 

about $974,909 (rounded).170 DHS 

estimates total cost to file Form I–907 

filed by lawyers range from about 

$795,707 (rounded) for only in-house 

lawyers to $817,943 (rounded) for only 

outsourced lawyers.171 The estimated 

total cost to file Form I–907 range from 

$1,770,616 and $1,792,852.172

Cost To File Form ETA–9142–B–CAA– 

5 

Form ETA–9142–B–CAA–5 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 hour, 0.25 hours for 

retaining records, and 0.5 hours to 

comply with the returning workers’ 

attestation, for a total time burden of 1 

hour. Using the total compensation per 

hour for an HR specialist ($48.40), 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 

$48.40.173

Additionally, the form requires that 

petitioners assess 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 total compensation per hour 

for a financial analyst is $67.37.174 DOL 

estimates the time burden for these tasks 

is at least 4 hours, and 1 hour for 

gathering and retaining documents and 

records. Therefore, the total opportunity 

cost of time for a financial analyst to 

assess, document, and retain supporting 

evidence is approximately $336.85.175

As discussed previously, DHS 

believes that the estimated 1,226 

remaining certifications for the first half 

of FY 2022 would include potential 

employers that might request to employ 

H–2B workers under this rule. This 

number of certifications 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 for HR 

specialists is approximately $59,338 

(rounded) and for financial analysts is 

about $412,978 (rounded).176 The total 

cost is estimated to be approximately 

$472,316.177

Cost To Conduct Recruitment 

An employer that files Form ETA– 

9142B–CAA–5 and the I–129 petition 45 

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, contacting 

the American Job Center, and contacting 

laid-off workers. Employers must place 

a new job order for the job opportunity 

with the State Workforce Agency 

(SWA). 

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, 2020. Employers must also 

disclose the terms of the job order to 

these workers as required by the rule. 

During the period of time the SWA is 

actively circulating the job order, 

employers must contact, by email or 

other available electronic means, the 

nearest local American Job Center (AJC) 

in order 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. 

Finally, the employer is required to 

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). 

DOL estimates the total time burden 

for activities related to conducting 

recruitment is 3 hours. Assuming this 

work will be done by an HR specialist 

or an equivalent occupation, the 

estimated cost to each petitioner is 

approximately $145.20.178 Using the 

1,226 as the estimated number of 

petitioners, the estimated total cost of 

this provision is approximately 

$178,015 (rounded).179 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. 

Cost of the COVID Protection Provision 

Employers must notify employees, in 

a language understood by the worker as 

necessary or reasonable, that all persons 

in the United States, including 

nonimmigrants, have equal access to 

COVID–19 vaccines and vaccine 

distribution sites. We assume that 


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180Cost to make copies $0.49. See https://

www.fedex.com/en-us/office/copy-and-printservices.html (accessed December 6, 2021). 

181Calculation: $0.49 per posting * 1,226 

petitioners = $601 (rounded) cost of notifications 

copies. 

182Calculation: $820.06 estimated cost for an HR 

specialist to file a Form I–129 H–2B petition * 78 

petitions = $63,965. 

183Calculation for an in-house lawyer: $1,146.70 

estimated cost for an in-house lawyer to file a Form 

I–129 H–2B petition and accompanying Form G–28 

* 63 petitions = $72,242 (rounded). 

Calculation for an outsourced lawyer: $1,535.33 

estimated cost for an outsourced lawyer to file a 

Form I–129 H–2B petition and accompanying Form 

G–28 * 63 petitions = $96,726 (rounded). 

184Calculation: 144 estimated additional Form I– 

129 H–2B petitions * 93.67 percent accompanied by 

Form I–907 = 132 (rounded) additional Form I–907. 

185Calculation: 132 additional Form I–907 * 

44.43 percent filed by a lawyer = 59 (rounded) Form 

I–907 filed by a lawyer. 132 Form I–907—59 Form 

I–907 filed by a lawyer = 73 Form I–907 filed by 

a HR specialist. 

186Calculation: $1,528.07 for a HR specialist to 

file a Form I–907 * 73 forms = $111,549 (rounded). 

187Calculation for an in-house lawyer: $1,560.21 

for an in-house lawyer to file a Form I–907 * 59 

forms = $92,052 (rounded). 

Calculation for an outsourced lawyer: $1,603.81 

for an outsourced lawyer to file a Form I–907 * 59 

forms = $94,625 (rounded). 

188Calculation for HR specialists and in-house 

lawyers: $63,965 for HR specialists to file Form I– 

129 H–2B petitions + $72,242 for in-house lawyers 

to file Form I–129 and the accompanying Form G– 

28 + $111,549 for HR specialists to file Form I–907 

+ $92,052 for in-house lawyers to file Form I–907 

= $339,808. 

Calculation for HR specialists and outsourced 

lawyers: $63,965 for HR specialists to file Form I– 

129 H–2B petitions + $96,726 for outsourced 

lawyers to file Form I–129 and the accompanying 

Form G–28 + $111,549 for HR specialists to file 

Form I–907 + $94,625 for outsourced lawyers to file 

Form I–907 = $366,865. 

189The number in hours for audits was provided 

by the USCIS, Service Center Operations. 

190Calculation: $48.40 hourly opportunity cost of 

time for an HR specialist * 12 hours to comply with 

an audit = $580.80 per audited employer. 

191Calculation: 500 audited employers * $580.80 

opportunity cost of time to comply with an audit 

= $290,400. 

192Brysbaert, 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 July 30, 2021). We use the 

average speed for silent reading of English 

nonfiction by adults. 

193Calculation: 32,000 words/238 words per 

minute = 134 (rounded) minutes. 134 minutes/60 

minutes per hour = 2.2 (rounded) hours. 

194Calculation: Total respective hourly 

compensation (HR $48.40, In-house Lawyer 

$103.81, or Outsourced Lawyer $178.98)*2.2 hours. 

employers will provide a printed 

notification to inform their employees 

and that printing and posting the 

notification can be done during the 

normal course of business. Given that 

the regulatory text associated with this 

provision is less than 150 words, we 

expect that an employer would only 

need to post a one-page notification. 

The printing cost associated with 

posting the notification (assuming that 

the notification is written) is $0.49 per 

posting.180 The estimated total cost to 

petitioners to print copies is 

approximately $601 (rounded).181 Print 

costs may be higher if employers have 

to print posters in multiple languages. 

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 assume that 

all employers with an approved TLC 

(2,881) would be able to file a petition 

under this provision, and estimate that 

approximately 141 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; if 

premium processing is desired, a 

petitioner must file Form I–907 and pay 

the associated fee. We expect these 

actions to be performed by an HR 

specialist, in-house lawyer, or an 

outsourced lawyer. Moreover, as 

previously estimated, we expect that 

about 44.43 percent of these Form I–129 

petitions will be filed by an in-house or 

outsourced lawyer. Therefore, we expect 

that 63 of these petitions will be filed by 

a lawyer and the remaining 78 will be 

filed by a HR specialist. As previously 

discussed, the estimated cost to file a 

Form I–129 H–2B petition is $820.06 for 

an HR specialist; and the estimated cost 

to file a Form I–129 H–2B petition with 

accompanying Form G–28 is 

approximately $1,146.70 for an in-house 

lawyer and $1,535.33 for an outsourced 

lawyer. Therefore, we estimate the cost 

of the additional Forms I–129 from the 

portability provision for HR specialists 

is $63,965.182 The estimated cost of the 

additional Forms I–129 accompanied by 

Forms G–28 from the portability 

provision for lawyers is $72,242 if filed 

by in-house lawyers and $96,726 if filed 

by outsourced lawyers.183

Previously in this analysis, we 

estimated that about 93.67 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 132 Forms 

I–907 will be filed.184 We expect 59 of 

those Forms I–907 will be filed by a 

lawyer and the remaining 73 will be 

filed by an HR specialist.185 As 

previously discussed, the estimated cost 

to file a Form I–907 is $1,528.07 for an 

HR specialist; and the estimated cost to 

file a Form I–907 is approximately 

$1,560.21 for an in-house lawyer and 

$1,603.81 for an outsourced lawyer. The 

estimated total cost of the additional 

Forms I–907 if HR specialists file is 

$111,549.186 The estimated total cost of 

the additional Forms I–907 is $92,052 if 

filed by in-house lawyers and $94,625 if 

filed by outsourced lawyers.187

The estimated total cost of this 

provision ranges from $339,808 to 

$366,865 depending on what share of 

the forms are filed by in-house or 

outsourced lawyers.188

Cost of Audits to Petitioners 

DHS and DOL will each conduct 

audits on 250 separate employers of H– 

2B workers hired under this 

supplemental cap, for a total of 500 

employers. Employers will need to 

provide requested information to 

comply with the audit. The expected 

time burden to comply with audits is 

estimated to be 12 hours.189 We expect 

that providing these documents will be 

accomplished by an HR specialist or 

equivalent occupation. Given an hourly 

opportunity cost of time of $48.40, the 

estimated cost of complying with audits 

is $580.80 per audited employer.190

Therefore, the total estimated cost to 

employers to comply with audits is 

$290,400.191

Familiarization Costs 

We expect that petitioners or their 

representatives would need to read and 

understand this rule if they seek to take 

advantage of the supplemental cap. As 

a result we expect this rule would 

impose one-time familiarization costs 

associated with reading and 

understanding this rule. As shown 

previously, we estimate that 

approximately 2,881 petitioners may 

take advantage of the provisions of this 

rule, and that 1,280 of these petitioners 

are expected to be represented by a 

lawyer and 1,601 are expected to be 

represented by a HR representative. 

To estimate the cost 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.192 This rule has 

approximately 38,000 words. Using a 

reading speed of 238 words per minute, 

DHS estimates it will take 

approximately 2.7 hours to read and 

become familiar with this rule.193

The estimated hourly total 

compensation for a HR specialist, inhouse lawyer, and outsourced lawyer 

are $48.40, $103.81, and $178.98 

respectively. The estimated opportunity 

cost of time for each of these filers to 

familiarize themselves with the rule are 

$130.68, $280.29, and $483.25 

respectively.194 The estimated total 


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195Calculation of lower range: $1,183,413 + 

$1,770,616 + $472,316 + $178,015 + $339,808 + 

$601 + $290,400 + $567,986= $4,803,155. 

Calculation of upper range: $1,395,216 + 

$1,792,852 + $472,316 + $178,015 + $366,865 + 

$601 + $290,400 + $827,774 = $5,324,039. 

196See INA section 286(m), 8 U.S.C. 1356(m). 

197Calculation: 12 hours to conduct an audit * 

500 audits = 6,000 total hours to conduct audits. 

198U.S. Office of Personnel Management, Pay and 

Leave, Salaries and Wages, For the Locality Pay area 

of Washington-Baltimore-Arlington, DC–MD–VA– 

WV–PA, 2021, https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/salary-tables/ 

21Tables/html/DCB.aspx (last accessed December 6, 

2021). 

199Calculation: $117,516 GS 13–5 Washington, 

DC locality annual salary/2080 annual hours = 

$56.50 (rounded). 

200Calculation: $1,717,321 Full-time Permanent 

Salaries + $656,748 Civilian Personnel Benefits = 

$2,374,069 Compensation. 

$2,374,069 Compensation/$1,717,321 Full-time 

Permanent Salaries = 1.38 (rounded) Federal 

employee benefits to wage ratio. 

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

document/reports/USCIS_FY_2021_Budget_

Overview.pdf (last accessed December 6, 2021). 

201Calculation: $56.50 hourly wage for a GS 13– 

5 in the Washington, DC locality area * 1.38 Federal 

employee benefits to wage ratio = $77.97 hourly 

opportunity cost of time for a GS 13–5 federal 

employee in the Washington, DC locality area. 

202Calculation: 6,000 hours to conduct audits * 

$77.97 hourly opportunity cost of time = $467,820 

total opportunity costs of time for Federal 

employees to conduct audits. 

opportunity cost of time for 1,601 HR 

specialists to familiarize themselves 

with this rule is approximately 

$209,219. The estimated total 

opportunity cost of time for 1,280 

lawyers to familiarize themselves with 

this rule is approximately $358,767 if 

they are all in-house lawyers and 

$618,555 if they are all outsourced 

lawyers. The estimated total 

opportunity costs of time for petitioners 

or their representatives to familiarize 

themselves with this rule ranges from 

$567,986 to $827,774. 

Estimated Total Costs to Petitioners 

The monetized costs of this rule come 

from filing and complying with Form I– 

129, Form G–28, Form I–907, and Form 

ETA–9142–B–CAA–5, as well as 

contacting and refreshing recruitment 

efforts, posting notifications, filings 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 $1,183,413 to 

$1,395,216, depending on the filer. The 

estimated total cost of filing Form I–907 

ranges from $1,770,616 to $1,792,852, 

depending on the filer. The estimated 

total cost of filing and complying with 

Form ETA–9142–B–CAA–5 is about 

$472,316. The estimated total cost of 

conducting additional recruitment is 

about $178,015. The estimated total cost 

of the COVID–19 protection provision is 

approximately $601. The estimated cost 

of the portability provision ranges from 

$339,808 to $366,865, depending on the 

filer. The estimated total cost for 

employers to comply with audits is 

$290,400. The estimated total costs for 

petitioners or their representatives to 

familiarize themselves with this rule 

ranges from $567,986 to $827,774, 

depending on the filer. The total 

estimated cost to petitioners ranges from 

$4,803,155 to $5,324,039, depending on 

the filer.195

Cost to the Federal Government 

The INA provides USCIS with the 

authority for the collection of 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.196 DHS notes 

USCIS establishes its fees by assigning 

costs to an adjudication based on its 

relative adjudication burden and use of 

USCIS resources. Fees are established 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 charge. 

Consequently, since USCIS immigration 

fees are 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. However, DHS expects these costs 

to be recovered by the fees associated 

with the forms, which have been 

accounted for under costs to petitioners 

and serve as proxy of the costs to the 

agency to adjudicate these forms. 

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. While 

most USCIS activities are funded 

through fees and DOL is funded through 

appropriations, it is expected that both 

agencies will be able to shift resources 

to be able to conduct these audits 

without incurring additional costs. As 

previously mentioned, the agencies will 

conduct a total of 500 audits and each 

audit is expected to take 12 hours. This 

results in a total time burden of 6,000 

hours.197 USCIS anticipates that a 

Federal employee at a GS–13 Step 5 

salary will typically conduct these 

audits for each agency. The base pay for 

a GS–13 Step 5 in the Washington, DC 

locality area is $117,516.198 The hourly 

wage for this salary is approximately 

$56.50.199 To estimate the total hourly 

compensation for these positions, we 

multiply the hourly wage ($56.50) by 

the Federal benefits to wage multiplier 

of 1.38.200 This results in an hourly 

opportunity cost of time of $77.97 for 

GS 13–5 Federal employees in the 

Washington, DC locality pay area.201

The total opportunity costs of time for 

Federal workers to conduct audits is 

estimated to be $467,820.202

Benefits to Petitioners 

The Departments assume that 

employers will incur the costs of this 

rule and other costs associated with 

hiring H–2B workers if the expected 

benefits of those workers exceed the 

expected costs. We assume that 

employers expect some level of net 

benefit from being able to hire 

additional H–2B workers. However, the 

Departments do not collect or require 

data from H–2B employers on the 

profits from hiring these additional 

workers to estimate this increase in net 

benefits. 

The inability to access H–2B workers 

for some entities is currently causing 

irreparable harm or will cause their 

businesses to suffer irreparable harm in 

the near future. Temporarily increasing 

the number of available H–2B visas for 

this fiscal year may result in a cost 

savings, because it will allow some 

businesses to hire the additional labor 

resources necessary to avoid such harm. 

Preventing such harm may 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 would assist 

employers that are suffering irreparable 

harm or will suffer impending 

irreparable harm. 

Benefits to Workers 

The Departments assume that workers 

will only incur the costs of this rule and 

other costs associated with obtaining a 


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203See U.S. Bureau of Labor Statistics, Historical 

Consumer Price Index for All Urban Consumers 

(CPI–U): U.S. City Average, All Items, available at 

https://www.bls.gov/cpi/tables/supplemental-files/ 

historical-cpi-u-202103.pdf (last visited December 

8, 2021). 

Calculation of inflation: (1) Calculate the average 

monthly CPI–U for the reference year (1995) and the 

most recent current year available (2020); (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 2020 ¥ Average monthly CPI– 

U for 1995)/(Average monthly CPI–U for 1995)] * 

100 = [(258.811 ¥ 152.383)/152.383] * 100 = 

(106.428/152.383) * 100 = 0.6984 * 100 = 69.84 

percent = 69.8 percent (rounded). 

Calculation of inflation-adjusted value: $100 

million in 1995 dollars * 1.698 = $169.8 million in 

2020 dollars. 

H–2B position if the expected benefits 

of that position exceed the expected 

costs. We assume that H–2B workers 

expect some level of net benefit from 

being able to work for H–2B employers. 

However, the Departments do not have 

sufficient data to estimate this increase 

in net benefits and lack the necessary 

resources to investigate this in a timely 

manner. This rule is not expected to 

impact wages because DOL prevailing 

wage regulations apply to all H–2B 

workers covered by this rule. 

Additionally, the RIA shows that 

employers incur costs in conducting 

additional recruitment of U.S. workers 

and attesting to irreparable harm from 

current labor shortfall. These costs 

suggest employers are not taking 

advantage of a large supply of foreign 

labor at the expense of domestic 

workers. 

The existence of this rule will benefit 

the workers who receive H–2B visas. 

See Arnold Brodbeck et al., Seasonal 

Migrant Labor in the Forest Industry of 

the United States: The Impact of H–2B 

Employment on Guatemalan 

Livelihoods, 31 Society & Natural 

Resources 1012 (2018), and in particular 

this finding: ‘‘Participation in the H–2B 

guest worker program has become a 

vital part of the livelihood strategies of 

rural Guatemalan families and has had 

a positive impact on the quality of life 

in the communities where they live. 

Migrant workers who were landless, 

lived in isolated rural areas, had few 

economic opportunities, and who had 

limited access to education or adequate 

health care, now are investing in small 

trucks, building roads, schools, and 

homes, and providing employment for 

others in their home communities. . . . 

The impact has been transformative and 

positive.’’ 

Some provisions of this rule will 

benefit such workers in particular ways. 

The portability provision of this rule 

will allow nonimmigrants with valid H– 

2B visas who are present in the United 

States to transfer to a new employer 

more quickly and potentially extend 

their stay in the United States and, 

therefore, earn additional wages. 

Importantly, the rule will also increase 

information employees have about equal 

access to COVID–19 vaccinations and 

vaccine distribution sites. 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. 

Note as well that U.S. workers will 

benefit 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 U.S. worker who is willing and able 

to fill the position is not displaced by 

a nonimmigrant worker. 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. 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 expenditure in any 1 

year when adjusted for inflation ($169.8 

million in 2020 dollars),203 and this 

rulemaking does not contain such a 

mandate. The requirements of Title II of 

the Act, therefore, do not apply, and the 

Departments have not prepared a 

statement under the Act. 

E. Executive Order 13132 (Federalism) 

This rule does not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, 64 FR 43255 (Aug. 4, 

1999), this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, 61 FR 

4729 (Feb. 5, 1996). 

G. National Environmental Policy Act 

DHS and its components analyze 

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. 

The CEQ regulations allow Federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) which 

experience has shown do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require an Environmental Assessment 

(EA) or Environmental Impact 

Statement (EIS). 40 CFR 

1507.3(b)(1)(iii), 1508.4. 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 


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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 2022 for 

positions with start dates on or before 

March 31, 2022 based on the Secretary 

of Homeland Security’s determination, 

in consultation with the Secretary of 

Labor, consistent with the FY 2021 

Omnibus and Public Laws 117–43 and 

117–70. 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 determined that this 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 20,000 visas for 

noncitizens who may receive H–2B 

nonimmigrant visas, of which 13,500 

are for returning workers (persons 

issued H–2B visas or were otherwise 

granted H–2B status in Fiscal Years 

2019, 2020, or 2021). 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, 2022 for the cap increase, 

and 180 days from the rule’s effective 

date for the portability provision. DHS 

believes amending applicable 

regulations to authorize up to an 

additional 20,000 H–2B nonimmigrant 

visas will not result in any meaningful, 

calculable change in environmental 

effect with respect to the current H–2B 

limit or in the context of a current U.S. 

population exceeding 332,000,000 

(maximum temporary increase of 

0.0066%). 

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 not a ‘‘major 

rule’’ as defined by the Congressional 

Review Act, 5 U.S.C. 804(2), and thus is 

not subject to a 60-day delay in the rule 

becoming effective. DHS will send this 

temporary final rule to Congress and to 

the Comptroller General under the 

Congressional Review Act, 5 U.S.C. 801 

et seq. 

I. Paperwork Reduction Act 

Attestation for Employers Seeking To 

Employ H–2B Nonimmigrants Workers 

Under Section 105 of Division O of the 

Consolidated Appropriations Act, 2021 

Public Law 116–260, and Public Laws 

117–43 and 117–70 Form ETA–9142–B– 

CAA–5. 

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–5, 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. 

Petitioners will use the new Form 

ETA–9142B–CAA–5 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 Northern Triangle 

countries who is counted against the 

6,500 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, DOL is seeking 

comments on this information 

collection pursuant to 5 CFR 1320.13. 

Comments on the information collection 

must be received by March 29, 2022. 

This process of engaging the public and 

other Federal agencies helps ensure that 

requested data can be provided in the 

desired format, reporting burden (time 

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 

Public Laws 117–43 and 117–70, on the 

same terms as Section 105 of Division 

O of the FY 2021 Omnibus, which 

provided 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 

in [FY] 2021 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 in FY 

2021 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 20,000 visas for FY 2022 for 

certain H–2B workers with start dates 

on or before March 31, 2022, for U.S. 


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businesses who 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 

2019, 2020, or 2021, unless the worker 

is one of the 6,500 nationals of one of 

the Northern Triangle countries and 

Haiti 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 O of the Consolidated 

Appropriations Act, 2021 Public Law 

116–260, and Public Laws 117–43 and 

117–70. 

Agency Form Number: Form ETA– 

9142–B–CAA–5. 

Affected Public: Private Sector— 

businesses or other for-profits. 

Total Estimated Number of 

Respondents: 1,226. 

Average Responses per Year per 

Respondent: 1. 

Total Estimated Number of 

Responses: 1,226. 

Average Time per Response: 9 hours 

per application. 

Total Estimated Annual Time Burden: 

11,034 hours. 

Total Estimated Other Costs Burden: 

$0. 

Application 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, 

Application 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 Public 

Laws 117–43 and 117–70, on the same 

terms as section 105 of Division O, FY 

2021 Omnibus, (which expires on 

September 30, 2022). However, USCIS 

estimates that this temporary rule may 

result in approximately 1,280 additional 

filings of Form I–907 in fiscal year 2022. 

The current OMB-approved estimate of 

the number of annual respondents filing 

a Form I–907 is 319,301. USCIS has 

determined that the OMB-approved 

estimate is sufficient to fully encompass 

the additional respondents who will be 

filing Form I–907 in connection with 

this temporary rule, which represents a 

small fraction of the overall Form I–907 

population. Therefore, DHS is not 

changing the collection instrument or 

increasing its burden estimates in 

connection with this temporary rule and 

is not publishing a notice under the 

PRA or making revisions to the 

currently approved burden for OMB 

control number 1615–0048. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Foreign officials, 

Health professions, Reporting and 

recordkeeping requirements, Students. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Penalties, 

Reporting and recordkeeping 

requirements, Students. 

20 CFR Part 655 

Administrative practice and 

procedure, Employment, Employment 

and training, Enforcement, Foreign 

workers, Forest and forest products, 

Fraud, Health professions, Immigration, 

Labor, Longshore and harbor work, 

Migrant workers, Nonimmigrant 

workers, Passports and visas, Penalties, 

Reporting and recordkeeping 

requirements, Unemployment, Wages, 

Working conditions. 

Department of Homeland Security 

8 CFR Chapter I 

For the reasons discussed in the joint 

preamble, chapter I of title 8 of the Code 

of Federal Regulations is amended as 

follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. Effective January 28, 2022 through 

January 28, 2025, 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 January 28, 2022 through 

January 28, 2025, amend § 214.2 by: 

■ a. Adding paragraph (h)(6)(xi); and 

■ b. Adding paragraph (h)(27). 

The additions read as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(6) * * * 

(xi) Special requirements for 

additional cap allocations under Public 

Laws 116–260, 117–43 and 117–70—(A) 

Public Law 116–260, and 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— 

(1) Supplemental allocation for 

returning workers. Notwithstanding the 

numerical limitations set forth in 

paragraph (h)(8)(i)(C) of this section, for 

fiscal year 2022 only, the Secretary has 

authorized up to an additional 13,500 

visas for aliens who may receive H–2B 

nonimmigrant visas pursuant to section 

105 of Division O of the Consolidated 

Appropriations Act, 2021, Public Law 

116–260, sections 101 and 106(3) of 

Division A of Public Law 117–43, 


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Continuing Appropriations Act, 2022, 

and section 101 of Division A of Public 

Law 117–70, Further Continuing 

Appropriations Act, 2022 through 

February 18, 2022 based on petitions 

requesting FY 2022 employment start 

dates on or before March 31, 2022. An 

alien may be eligible to receive an H– 

2B nonimmigrant visa under this 

paragraph (h)(6)(xi)(A)(1) if she or he is 

a returning worker. The term ‘‘returning 

worker’’ under this paragraph 

(h)(6)(xi)(A)(1) means a person who was 

issued an H–2B visa or was otherwise 

granted H–2B status in fiscal year 2019, 

2020, or 2021. Notwithstanding § 248.2 

of this chapter, an alien may not change 

status to H–2B nonimmigrant under this 

paragraph (h)(6)(xi)(A)(1). 

(2) Supplemental allocation for 

nationals of Guatemala, El Salvador, 

Honduras (Northern Triangle countries), 

or Haiti. Notwithstanding the numerical 

limitations set forth in paragraph 

(h)(8)(i)(C) of this section, for fiscal year 

2022 only, and in addition to the 

allocation described in paragraph 

(h)(6)(xi)(A)(1) of this section, the 

Secretary has authorized up to an 

additional 6,500 aliens who are 

nationals of Guatemala, El Salvador, 

Honduras (Northern Triangle countries), 

or of Haiti who may receive H–2B 

nonimmigrant visas pursuant to section 

105 of Division O of the Consolidated 

Appropriations Act, 2021, Public Law 

116–260, and Public Laws 117–43 and 

117–70, based on petitions with FY 

2022 employment start dates on or 

before March 31, 2022. Such workers 

are not subject to the returning worker 

requirement in paragraph 

(h)(6)(xi)(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)(xi)(A)(1) and must 

declare that they are requesting these 

workers in the attestation required 

under 20 CFR 655.69(a)(1). A petition 

requesting returning workers under 

paragraph (h)(6)(xi)(A)(1), which is 

accompanied by an attestation 

indicating that the petitioner is 

requesting nationals of Northern 

Triangle countries or Haiti, will be 

rejected, denied or, in the case of a nonfrivolous petition, will be approved 

solely for the number of beneficiaries 

that are from the Northern Triangle or 

Haiti. Notwithstanding § 248.2 of this 

chapter, an alien may not change status 

to H–2B nonimmigrant under this 

paragraph (h)(6)(xi)(A)(2). 

(B) Eligibility. In order to file a 

petition with USCIS under this 

paragraph (h)(6)(xi), 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)(xi); 

(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 2019, 

2020, or 2021, unless the H–2B worker 

is a national of Guatemala, El Salvador, 

Honduras, or Haiti who is counted 

towards the 6,500 cap described in 

paragraph (h)(6)(xi)(A)(2) of this section; 

(iii) The employer will comply with 

all Federal, State, and local 

employment-related laws and 

regulations, including, where 

applicable, health and safety laws and 

laws related to COVID–19 worker 

protections; any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site; 

and that the employer will notify any 

H–2B workers approved under the 

supplemental cap in paragraph 

(h)(6)(xi)(A)(2) of this section, in a 

language understood by the worker as 

necessary or reasonable, that all persons 

in the United States, including 

nonimmigrants, have equal access to 

COVID–19 vaccines and vaccine 

distribution sites; 

(iv) The employer will comply with 

obligations and additional recruitment 

requirements outlined in 20 CFR 

655.64(a)(3) through (5); 

(v) The employer will provide 

documentary evidence of the facts in 

paragraphs (h)(6)(xi)(B)(2)(i) through (iv) 

of this section to DHS or DOL upon 

request; and 

(vi) 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 2022 

supplemental allocations outlined in 

paragraph (h)(6)(xi)(B) of this section, as 

a condition for the approval of the 

petition. 

(vii) The employer must attest on 

Form ETA–9142–B–CAA–5 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 2022 

supplemental allocations outlined in 20 

CFR 655.64(a) and 655.69(a), as a 

condition for the approval of the H–2B 

petition. The employer must further 

attest on Form ETA–9142–B–CAA–5 

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. USCIS will reject 

petitions filed pursuant to paragraph 

(h)(6)(xi)(A)(1) or (2) of this section that 

are received after the applicable 

numerical limitation has been reached 

or after March 31, 2022, whichever is 

sooner. USCIS will not approve a 

petition filed pursuant to this paragraph 

(h)(6)(xi) on or after October 1, 2022. 

(D) Numerical limitations under 

paragraphs (h)(6)(xi)(A)(1) and (2) of 

this section. When calculating the 

numerical limitations under paragraphs 

(h)(6)(xi)(A)(1) and (2) of this section as 

authorized under Public Law 116–260, 

as extended by Public Law 117–43, and 

Public Law 117–70, 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)(xi)(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)(xi)(A)(1) and (2), USCIS may 


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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)(xi)(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)(xi)(A)(1) or (2) may be received 

(in other words, if either of the 

numerical limits described in paragraph 

(h)(6)(xi)(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)(xi) 

expires on October 1, 2022. 

(F) Non-severability. The requirement 

to file an attestation under paragraph 

(h)(6)(xi)(B)(2) of this section is 

intended to be non-severable from the 

remainder of this paragraph (h)(6)(xi), 

including, but not limited to, the 

numerical allocation provisions at 

paragraphs (h)(6)(xi)(A)(1) and (2) of 

this section in their entirety. In the 

event that any part of this paragraph 

(h)(6)(xi) is enjoined or held to be 

invalid by any court of competent 

jurisdiction, the remainder of this 

paragraph (h)(6)(xi) 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)(xi), as 

consistent with law. 

* * * * * 

(27) Change of employers and 

portability for H–2B workers. (i) This 

paragraph (h)(27) relates to H–2B 

workers seeking to change employers 

during the time period specified in 

paragraph (h)(27)(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 28, 2022, 

is authorized to begin employment with 

the new petitioner after the petition 

described in this paragraph (h)(27) is 

received by USCIS and before the new 

H–2B petition is approved, but no 

earlier than the start date indicated in 

the new H–2B petition; or 

(B) An alien whose new petitioner 

filed a non-frivolous H–2B petition 

requesting an extension of the alien’s 

stay before January 28, 2022 that 

remains pending on January 28, 2022, 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)(27)(i)(A) of 

this section, and subject to the 

requirements of 8 CFR 274a.12(b)(30), 

the new period of employment 

described in paragraph (h)(27)(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)(27)(i)(B) of 

this section, the new period of 

employment described in paragraph 

(h)(27)(i) of this section may last for up 

to 60 days beginning on the later of 

either January 28, 2022 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)(30) 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)(27) 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 and be 

approved under this paragraph (h)(27), 

the alien must either: 

(A) Have been in valid H–2B 

nonimmigrant status on or after January 

28, 2022 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 28, 2022, 

but no later than July 27, 2022; or 

(B) Be the beneficiary of a nonfrivolous H–2B petition requesting an 

extension of the alien’s stay that is 

pending as of January 28, 2022. 

(C) The petitioner must comply with 

all Federal, State, and local 

employment-related laws and 

regulations, including, where 

applicable, health and safety laws, laws 

related to COVID–19 worker 

protections, any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site; 

and 

(D) 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)(27) begins at 12 a.m. on 

January 28, 2022, and ends at the end 

of July 27, 2022. 

* * * * * 

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 January 28, 2022 through 

January 28, 2025, amend § 274a.12 by 

adding paragraph (b)(31) to read as 

follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

* * * * * 

(b) * * * 

(31)(i) Pursuant to 8 CFR 214.2(h)(27) 

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 

28, 2022, 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 28, 2022; or 

(B) The later of January 28, 2022 or 

the start date of employment indicated 

on the new H–2B petition, for petitions 

that are pending as of January 28, 2022 

(ii) If USCIS adjudicates the new 

petition prior to the expiration of the 60- 

day period in paragraph (b)(31)(i) of this 

section and denies the new petition for 


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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)(31) 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)(27) and paragraph (b)(31)(i) of 

this section begins at 12 a.m. on January 

28, 2022, and ends at the end of July 27, 

2022. 

* * * * * 

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 January 27, 2022 through 

September 30, 2022, add § 655.64 to 

read as follows: 

§ 655.64 Special application filing and 

eligibility provisions for Fiscal Year 2022 

under the January 28, 2022 supplemental 

cap increase. 

(a) An employer filing a petition with 

USCIS under 8 CFR 214.2(h)(6)(xi) to 

request H–2B workers with FY 2022 

employment start dates on or before 

March 31, 2022, must meet the 

following requirements: 

(1) The employer must attest on the 

Form ETA–9142–B–CAA–5 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)(xi). Additionally, the 

employer must attest that it will provide 

documentary evidence of the applicable 

irreparable harm to DHS or DOL upon 

request. 

(2) The employer must attest on Form 

ETA–9142–B–CAA–5 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)(xi), have been issued 

an H–2B visa or otherwise granted H– 

2B status during one of the last three (3) 

fiscal years (fiscal year 2019, 2020, or 

2021), unless the H–2B worker is a 

national of Guatemala, El Salvador, 

Honduras, or Haiti and is counted 

towards the 6,500 cap described in 8 

CFR 214.2(h)(6)(xi)(A)(2). 

(3) The employer must attest on Form 

ETA–9142–B–CAA–5 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) The employer must attest on Form 

ETA–9142–B–CAA–5 that it will 

comply with all Federal, State, and local 

employment-related laws and 

regulations, including, where 

applicable, health and safety laws and 

laws related to COVID–19 worker 

protections; any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site; 

and that the employer will notify any 

H–2B workers approved under the 

supplemental cap in 8 CFR 

214.2(h)(6)(xi)(A)(1) and (2), in a 

language understood by the worker as 

necessary or reasonable, that all persons 

in the United States, including 

nonimmigrants, have equal access to 

COVID–19 vaccines and vaccine 

distribution sites. 

(5) An employer that submits Form 

ETA–9142B–CAA–5 and the I–129 

petition 45 or more days after the 

certified start date of work, as shown on 

its approved Application for Temporary 

Employment, 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, 

inform the SWA 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 ‘‘selfreferrals’’). 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)(5)(i) of this 

section for intrastate clearance, the 

employer must contact, by email or 

other available electronic means, the 

nearest comprehensive American Job 

Center (AJC) serving the area of 

intended employment where work will 

commence, request staff assistance 

advertising and recruiting qualified U.S. 

workers for the job opportunity, and 

provide the unique identification 

number associated with the job order 

placed with the SWA or, if unavailable, 

a copy of the job order. If a 

comprehensive AJC is not available, the 

employer must contact the nearest 

affiliate AJC serving the area of intended 

employment where work will 

commence to satisfy the requirements of 

this paragraph (a)(5)(ii); 

(iii) During the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(5)(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, 2020, until the date 

the I–129 petition required under 8 CFR 


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214.2(h)(6)(xi) 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, and 

solicit their return to the job. The 

contact and disclosures required by this 

paragraph (a)(5)(iii) must be provided in 

a language understood by the worker, as 

necessary or reasonable; 

(iv) During the period of time the 

SWA is actively circulating the job order 

described in paragraph (a)(5)(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)(5)(iv) must be provided in a language 

understood by the worker, as necessary 

or reasonable; and 

(v) 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 

SWA job order is posted, whichever is 

later. Consistent with § 655.40(a), 

applicants can be rejected only for 

lawful job-related reasons. 

(6) The employer must attest on Form 

ETA–9142–B–CAA–5 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 2022 

supplemental allocations outlined in 

this paragraph (a) and § 655.69(a), as a 

condition for the approval of the H–2B 

petition. Pursuant to this subpart and 29 

CFR 503.25, the employer will not 

impede, interfere, or refuse to cooperate 

with an employee of the Secretary who 

is exercising or attempting to exercise 

DOL’s audit or investigative authority. 

(b) This section expires on October 1, 

2022. 

(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 January 28, 2022 through 

September 30, 2025, add § 655.69 to 

read as follows: 

§ 655.69 Special document retention 

provisions for Fiscal Years 2022 through 

2026 under Public Laws 116–260, 117–43, 

and 117–70. 

(a) An employer that files a petition 

with USCIS to employ H–2B workers in 

fiscal year 2022 under authority for the 

temporary increase in the numerical 

limitation provided by Public Law 117– 

43 and Public Law 117–70 on the same 

terms as section 105 of Division O, of 

Public Law 116–260, must maintain for 

a period of three (3) years from the date 

of certification, consistent with 20 CFR 

655.56 and 29 CFR 503.17, the 

following: 

(1) A copy of the attestation filed 

pursuant to the regulations in 8 CFR 

214.2 governing that temporary 

increase; 

(2) Evidence establishing, at the time 

of filing the I–129 petition, that the 

employer’s business is suffering 

irreparable harm or will suffer 

impending irreparable harm (that is, 

permanent and severe financial loss) 

without the ability to employ all of the 

H–2B workers requested on the petition 

filed pursuant to 8 CFR 214.2(h)(6)(xi); 

(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)(xi), have been issued 

an H–2B visa or otherwise granted H– 

2B status during one of the last three (3) 

fiscal years (fiscal year 2019, 2020, or 

2021), unless the H–2B worker(s) is a 

national of El Salvador, Guatemala, 

Honduras, or Haiti and is counted 

towards the 6,500 cap described in 8 

CFR 214.2(h)(6)(xi)(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, or Haiti as defined in 8 CFR 

214.2(h)(6)(xi)(A)(2); and 

(4) If applicable, proof of recruitment 

efforts set forth in § 655.64(a)(5)(i) 

through (iv) 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)(5)(v). 

(b) DOL or DHS may inspect the 

documents in paragraphs (a)(1) through 

(4) of this section upon request. 

(c) This section expires on October 1, 

2025. 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

Martin J. Walsh, 

Secretary, U.S. Department of Labor. 

[FR Doc. 2022–01866 Filed 1–27–22; 8:45 am] 

BILLING CODE 9111–97–P; 4510–FP–P 


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