[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Rules and Regulations]
[Pages 30334-30379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10631]



[[Page 30333]]

Vol. 87

Wednesday,

No. 96

May 18, 2022

Part II





 Department of Homeland Security





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





8 CFR Part 214, 274a





 Department of Labor





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





 Employment and Training Administration and Wage and Hour Division





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

20 CFR Part 655





Exercise of Time-Limited Authority To Increase the Numerical Limitation 
for Second Half of FY 2022 for the H-2B Temporary Nonagricultural 
Worker Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers; Final Rule

Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules 
and Regulations

[[Page 30334]]


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

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2719-22]
RIN 1615-AC79

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2022-0004]
RIN 1205-AC10


Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for Second Half of FY 2022 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers

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 again increasing the total number of noncitizens who 
may receive an H-2B nonimmigrant visa by authorizing the issuance of no 
more than 35,000 additional visas during the second half of FY 2022 for 
positions with start dates on or after April 1, 2022 through September 
30, 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. This number is in addition to the 20,000 H-2B 
visas authorized by the Secretary in consultation with the Secretary of 
Labor in January of 2022 for petitions with start dates on or before 
March 31, 2022. In addition to making the additional 35,000 visas 
available under the FY 2022 time-limited 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 May 18, 2022 through May 
18, 2025. The amendments to title 20 of the Code of Federal Regulations 
in this rule are effective from May 18, 2022 through September 30, 
2022, except for 20 CFR 655.66 which is effective from May 18, 2022 
through September 30, 2025.
    Petition dates: DHS will stop accepting petitions received after 
September 15, 2022. DHS will not approve any H-2B petition under the 
provisions related to the supplemental numerical allocation after 
September 30, 2022. The provisions related to portability are only 
available to petitioners and H-2B nonimmigrant workers initiating 
employment through the end of January 24, 2023.
    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-6 associated with 
this rule until July 18, 2022.

ADDRESSES: You may submit written comments on the new information 
collection Form ETA-9142B-CAA-6, 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-6: 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 2022 Omnibus
    D. Joint Issuance of the Final Rule
III. Discussion
    A. Statutory Determination
    B. Numerical Increase and Allocation of up to 35,000 Visas
    C. Returning Workers
    D. Returning Worker Exemption for up to 11,500 Visas for 
Nationals of Guatemala, El Salvador, and Honduras (Northern Central 
American 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 35,000 H-2B visas 
for the second half of FY 2022 positions with start dates on or after 
April 1, 2022 through September 30, 2022, subject to certain 
conditions. The 35,000 visas are divided into two allocations, as 
follows:
    <bullet> 23,500 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
    <bullet> 11,500 visas reserved for nationals of El Salvador, 
Guatemala, and Honduras (Northern Central American 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

[[Page 30335]]

temporary final rule, eligible petitioners must:
    <bullet> Meet all existing H-2B eligibility requirements, including 
obtaining an approved temporary labor certification (TLC) from DOL 
before filing the Form I-129, Petition for Nonimmigrant Worker, with 
USCIS;
    <bullet> Properly file the Form I-129, Petition for Nonimmigrant 
Worker, with USCIS on or before September 15, 2022, requesting an 
employment start date on or after April 1, 2022 through September 30, 
2022;
    <bullet> 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 
11,500 cap exempt from the returning worker requirement; and
    <bullet> 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 obtain 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.
---------------------------------------------------------------------------

    \1\ The term ``COVID-19 vaccinations'' also includes COVID-19 
booster shots.
---------------------------------------------------------------------------

    Employers filing an H-2B petition 30 or more days after the 
certified start date on the TLC, must attest to engaging in the 
following additional steps to recruit U.S. workers:
    <bullet> 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;
    <bullet> Contact the nearest American Job Center serving the 
geographic area where work will commence and request staff assistance 
in recruiting qualified U.S. workers;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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; and
    <bullet> Where the occupation is traditionally or customarily 
unionized, provide written notification of the job opportunity to the 
nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended 
employment, by providing a copy of the job order and requesting 
assistance in recruiting qualified U.S. workers for the job 
opportunity.
    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.
    Through audits and investigations, both Departments have received 
evidence of employer non-compliance with the terms and conditions of 
the H-2B program, as well as violations of other labor and employment 
laws. USCIS Fraud Detection and National Security (FDNS) Headquarters 
found that instances of non-compliance encountered by field USCIS FDNS 
personnel could be parsed into four areas: (1) Failure to pay the 
promised wage; (2) failure to demonstrate irreparable harm; (3) failure 
to employ returning workers; and (4) failure to work at the listed 
location.
    Such non-compliance can harm U.S. workers by undermining wages and 
working conditions. It also directly harms H-2B workers. Further, H-2B 
workers depend on ongoing employment with the petitioning employer to 
maintain status in the United States. This dependence creates a power 
imbalance between the employer and H-2B worker, making the H-2B worker 
particularly vulnerable to violations. Recognizing the substantial 
impact that non-compliance can have on both U.S. workers and H-2B 
workers, DHS and DOL intend to conduct a significant number of audits 
focusing on irreparable harm and other worker protection provisions. 
DHS will also subject employers that have committed labor law 
violations in the H-2B program to additional scrutiny in the 
supplemental cap petition process. This additional scrutiny is aimed at 
ensuring compliance with H-2B program requirements and obligations.
    Specifically, falsifying information in H-2B program attestation(s) 
can result not only in penalties relating to perjury, but 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-2B 
program and any other foreign labor programs administered by DOL. 
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.

H-2B Portability

    In addition to exercising its time-limited authority to make 
additional FY 2022 H-2B visas available, DHS is again providing 
additional flexibilities to H-2B petitioners under its general 
programmatic authority by allowing nonimmigrant workers in the United 
States \2\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after July 28, 2022, or who are 
the beneficiaries of non-frivolous H-2B petitions that are pending as 
of July 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 provision's effective date of July 28, 2022, in other 
words, after January 24, 2023.
---------------------------------------------------------------------------

    \2\ The term ``United States'' includes the continental United 
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the 
United States, and the Commonwealth of the Northern Mariana Islands. 
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
---------------------------------------------------------------------------

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

[[Page 30336]]

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 the [Secretary] may by regulations 
prescribe.'' INA section 214(a)(1), 8 U.S.C. 1184(a)(1); see also INA 
section 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3) 
(prohibiting employment of noncitizens \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).
---------------------------------------------------------------------------

    \3\ As of March 1, 2003, in accordance with section 1517 of 
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a 
provision of the Immigration and Nationality Act describing 
functions which were transferred from the Attorney General or other 
Department of Justice official to the Department of Homeland 
Security by the HSA ``shall be deemed to refer to the Secretary'' of 
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV, 
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
    \4\ For purposes of this discussion, the Departments use the 
term ``noncitizen'' colloquially to be synonymous with the term 
``alien'' as it is used in the Immigration and Nationality Act.
---------------------------------------------------------------------------

    Finally, under section 101 of 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.
---------------------------------------------------------------------------

    \5\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
---------------------------------------------------------------------------

    The INA also authorizes DHS to impose appropriate remedies against 
an employer for a substantial failure to meet the terms and conditions 
of employing an H-2B nonimmigrant worker, or for a willful 
misrepresentation of a material fact in a petition for an H-2B 
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C. 
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain 
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6). 
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8 
U.S.C. 1184(c)(14)(A)(i) to DOL. See DHS, Delegation of Authority to 
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8 
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to 
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL 
to the Wage and Hour Division (WHD), and is governed by regulations at 
29 CFR part 503.

B. H-2B Numerical Limitations Under the INA

    The 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

[[Page 30337]]

beginning on or after the start of the next fiscal year.
---------------------------------------------------------------------------

    \6\ The Federal Government's fiscal year runs from October 1 of 
the prior year through September 30 of the year being described. For 
example, fiscal year 2022 is from October 1, 2021, through September 
30, 2022.
---------------------------------------------------------------------------

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

    \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.
    \8\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
---------------------------------------------------------------------------

    Because of the strong demand for H-2B visas in recent years, the 
statutorily-limited 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, DOL typically sees a 
significant spike in TLC applications from employers seeking to hire H-
2B temporary or seasonal workers prior to the United States' warm 
weather months. For example, in FY 2022, based on TLC applications 
filed during the 3-day filing window of January 1 through 3, 2022, 
DOL's Office of Foreign Labor Certification (OFLC) received a total of 
7,875 H-2B applications requesting 136,555 worker positions with an 
April 1, 2022, or later, work start date.\11\ USCIS, in turn, received 
sufficient H-2B petitions to reach the second half of the fiscal year 
statutory cap by February 25, 2022.\12\ Though not as early as recent 
years, this date continues to reflect an ongoing trend of higher H-2B 
demand in the second 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; \13\ and 
(2) for the last several 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); \14\ section 105 of Division O of the 
Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 
Omnibus); and section 105 of Division O of the Consolidated 
Appropriations Act, 2021, FY 2021 Omnibus, sections 101 and 106(3) of 
Division A of Public Law 117-43, Continuing Appropriations Act, 2022, 
and section 101 of Division A of Public Law 117-70, Further Continuing 
Appropriations Act, 2022 through February 18, 2022 (together, previous 
FY 2022 authority). The authorization for the current supplemental cap 
is under section 204 of Division O of the Consolidated Appropriations 
Act, 2022, Public Law 117-103 (FY 2022 Omnibus), which is discussed 
below.
---------------------------------------------------------------------------

    \9\ 20 CFR 655.15(b).
    \10\ See 8 CFR 214.2(h)(5)(i)(A).
    \11\ DOL, Announcements, OFLC Conducts Randomization Process on 
H-2B Applications Submitted Requesting an April 1, 2022, Work Start 
Date, https://www.dol.gov/agencies/eta/foreign-labor/news (Jan. 4, 
2022). For historical context, with the FY 2021 statutory cap, DOL 
announced on January 5, 2021 that it received requests to certify 
96,641 worker positions for start dates of work on April 1, 2021. 
DOL, Announcements, OFLC Conducts Randomization Process on H-2B 
Applications Submitted Requesting an April 1, 2021, Work Start Date, 
https://www.dol.gov/agencies/eta/foreign-labor/news (Jan. 5, 2021). 
On February 24, 2021, USCIS announced that it had received a 
sufficient number of petitions to reach the congressionally mandated 
H-2B cap for FY 2021. On February 12, 2021, the number of 
beneficiaries listed on petitions received by USCIS surpassed the 
total number of remaining H-2B visas available against the H-2B cap 
for the second half of FY 2021. In accordance with regulations, 
USCIS determined it was necessary to use a computer generated 
process, commonly known as a lottery, to ensure the fair and orderly 
allocation of H-2B visa numbers to meet, but not exceed, the 
remainder of the FY 2021 cap. 8 CFR 214.2(h)(8)(vii). On February 
17, 2021, USCIS conducted a lottery to randomly select petitions 
from those received on February 12, 2021. USCIS, H-2B Cap Reached 
for Second Half of FY2021, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021 (Feb. 24, 2021).
    \12\ USCIS, H-2B Cap Reached for Second Half of FY2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022 (Mar. 1, 2022).
    \13\ 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 authority expired on September 30, 2016.
    \14\ 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.
---------------------------------------------------------------------------

C. FY 2022 Omnibus

    On March 15, 2022, President Joseph Biden signed the FY 2022 
Omnibus which contains a provision, section 204 of Division O, Title 
II, 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 204 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] 2022 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 2022 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.\15\ The Secretary of 
Homeland Security has consulted with the Secretary of Labor, and this 
rule implements the authority contained in section 204.
---------------------------------------------------------------------------

    \15\ The 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).
---------------------------------------------------------------------------

    Under the authority contained in section 204, DHS and DOL are 
jointly publishing this temporary final rule to authorize the issuance 
of no more than 35,000 additional visas through the end of the second 
half of FY 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 this FY 2022 supplemental cap authority on or 
after October 1, 2022.
    As noted above, since FY 2017, Congress has enacted a series of 
public

[[Page 30338]]

laws providing the Secretary of Homeland Security with the 
discretionary authority to increase the H-2B cap beyond the annual 
numerical limitation set forth in section 214 of the INA. The previous 
statutory provisions were materially identical to section 204 of the FY 
2022 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, as well as during FY 2021 and in the first half of FY 
2022, 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.\16\ 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.\17\ 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.\18\ The vast majority of the H-2B petitions 
received under the FY 2017 and FY 2018 supplemental caps requested 
premium processing \19\ and were adjudicated within 15 calendar days.
---------------------------------------------------------------------------

    \16\ Temporary 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).
    \17\ USCIS 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-information-management-system-claims-3-and.
    \18\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2018 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
    \19\ Premium processing allows for expedited processing for an 
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
---------------------------------------------------------------------------

    On May 8, 2019, DHS and DOL jointly published a temporary final 
rule authorizing an increase of up to 30,000 additional H-2B visas for 
the remainder of FY 2019. The additional visas were limited to 
returning workers who had been counted against the H-2B cap or were 
otherwise granted H-2B status in the previous 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.\20\ 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.\21\ The vast majority of 
these petitions requested premium processing and were adjudicated 
within 15 calendar days.
---------------------------------------------------------------------------

    \20\ Temporary 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).
    \21\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2019 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
---------------------------------------------------------------------------

    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.\22\ On March 13, 2020, then-President Trump declared a 
National Emergency concerning COVID-19, a communicable disease caused 
by the coronavirus SARS-CoV-2.\23\ 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.\24\ DHS also noted that the Department of State had 
suspended routine visa services.\25\
---------------------------------------------------------------------------

    \22\ DHS to Improve Integrity of Visa Program for Foreign 
Workers, March 5, 2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
    \23\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
    \24\ https://twitter.com/DHSgov/status/1245745115458568192?s=20.
    \25\ https://twitter.com/DHSgov/status/1245745116528156673.
---------------------------------------------------------------------------

    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 for FY 2021 coupled with additional 
protections (for example, post-adjudication audits, investigations, and 
compliance checks), based on the demand for H-2B workers in the second 
half of FY 2021, 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.\26\ 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 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.\27\ The total number of H-2B 
workers approved towards the FY 2021 supplemental cap increase was 
30,681.\28\ This total number included approved H-2B petitions for 
23,876

[[Page 30339]]

returning workers, as well as 6,805 beneficiaries from the Northern 
Central American countries.\29\
---------------------------------------------------------------------------

    \26\ 86 FR 28198 (May 25, 2021).
    \27\ https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19, 
2021).
    \28\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2021 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. USCIS H-2B petition approval data pulled from 
CLAIMS3 on March 16, 2022.
    \29\ USCIS H-2B petition approval data pulled from CLAIMS3 on 
March 16, 2022.
---------------------------------------------------------------------------

    Similarly, earlier in FY 2022, DHS in consultation with DOL 
determined it was 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, continuing 
economic growth, increased labor demand, and increased visa processing 
capacity by the Department of State. Accordingly, on January 28, 2022, 
DHS and DOL jointly published a temporary final rule authorizing an 
increase of up to 20,000 additional H-2B visas for the first half of FY 
2022.\30\ These supplemental visas were available only to employers 
that attested they were suffering or would suffer impending irreparable 
harm without the additional workers. The allocation of 20,000 
additional H-2B visas under that rule consisted of 13,500 visas 
available only to H-2B returning workers from one of the last three 
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for 
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were 
exempted from the returning worker requirement. As of March 31, 2022, 
the total number of H-2B workers approved towards the first half FY 
2022 supplemental cap increase was 17,185, including 14,069 workers 
under the returning worker allocation, as well as 3,116 workers 
approved towards the Haitian/Northern Central American allocation.\31\
---------------------------------------------------------------------------

    \30\ 87 FR 4722 (Jan. 28, 2022); 87 FR 6017 (Feb. 3, 2022) 
(correction).
    \31\ USCIS H-2B petition approval data pulled from CLAIMS3 on 
March 31, 2022.
---------------------------------------------------------------------------

    DHS in consultation with DOL believes that it is appropriate to 
further increase the H-2B cap through the end of the second half of FY 
2022 based on the demand for H-2B workers in the second half of FY 
2022, recent and continuing economic growth, increased labor 
demand,\32\ and increased visa processing capacity by the Department of 
State. DHS and DOL also believe that it is appropriate to couple this 
cap increase with additional worker protections, as described below.
---------------------------------------------------------------------------

    \32\ The term ``increased labor demand'' in this context relies 
on the most recently released figure from a Bureau of Labor 
Statistics (BLS) survey at the time this TFR was written. The BLS 
Job Openings and Labor Turnover Survey (JOLTS) reports 11.3 million 
job openings in February 2022 (compared to 7.4 million job openings 
in February 2021). See Bureau of Labor Statistics, Job Openings and 
Labor Turnover Survey released on March 29, 2022 at https://www.bls.gov/news.release/archives/jolts_03292022.pdf, and the 
February 2021 survey released on April 6, 2021 at https://www.bls.gov/news.release/archives/jolts_04062021.pdf.
---------------------------------------------------------------------------

D. Joint Issuance of the Final Rule

    As we did in FY 2017, FY 2018, FY 2019, FY 2021, and for the first 
half of FY 2022, DHS and DOL (the Departments) have determined that it 
is appropriate to jointly issue this temporary final rule.\33\ 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.\34\ Although 
DHS and DOL each have authority to independently issue rules 
implementing their respective duties under the H-2B program,\35\ 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).\36\
---------------------------------------------------------------------------

    \33\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84 
FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021); 87 FR 4722 (Jan. 
28, 2022).
    \34\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec., 
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021); 
see also Temporary Non-Agricultural Employment of H-2B Aliens in the 
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
    \35\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
    \36\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
---------------------------------------------------------------------------

III. Discussion

A. Statutory Determination

    Following consultation with the Secretary of Labor, the Secretary 
of Homeland Security has determined that the needs of some U.S. 
employers cannot be satisfied for the remainder of FY 2022 with U.S. 
workers who are willing, qualified, and able to perform temporary 
nonagricultural labor. In accordance with section 204 of the FY 2022 
Omnibus, the Secretary of Homeland Security has determined that it is 
appropriate, for the reasons stated below, to raise the numerical 
limitation on H-2B nonimmigrant visas through the end of the second 
half of FY 2022 for positions with start dates on or after April 1, 
2022 through September 30, 2022 up to 35,000 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 we did in connection with the FY 2021 and prior FY2022 H-2B 
supplemental visa temporary final rules, and consistent with existing 
authority, DHS and DOL intend to conduct a significant number of audits 
with respect to petitions filed under this TFR requesting supplemental 
H-2B visas, 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. Of the audits completed so far, some audits 
conducted of employers that received visas under the supplemental caps 
in FY 2021 and the first half of FY 2022 revealed concerns surrounding 
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 he 
did in FY 2021 and earlier in FY 2022, 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 11,500 of the 35,000 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.\37\ These H-2B visas are 
being

[[Page 30340]]

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 nationals of the Northern Central American countries.\38\ 
DHS observed robust employer interest in response to the FY 2021 H-2B 
supplemental visa allocation for Salvadoran, Guatemalan, and Honduran 
nationals and the previous FY 2022 supplemental visa allocation for 
Salvadoran, Guatemalan, Honduran, and Haitian nationals, with USCIS 
approving petitions on behalf of 6,805 beneficiaries under the FY 2021 
allocation,\39\ and 3,116 beneficiaries as of March 31, 2022, under the 
FY 2022 allocation for the first half of the fiscal year.\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, Honduras, and Haiti 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 these 
countries.\41\
---------------------------------------------------------------------------

    \37\ These conditions and limitations are not inconsistent with 
sections 214(g)(3) (``first in, first out'' H-2B processing) and 
(g)(10) (fiscal year H-2B allocations) because noncitizens covered 
by the special allocation under section 204 of the FY 2022 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 2022 Omnibus div. O, sec. 204 (``Notwithstanding the 
numerical limitation set forth in section 214(g)(1)(B) of the [INA] 
. . . .'').
    \38\ See Section 3(c) of E.O. 14010, Creating a Comprehensive 
Regional Framework To Address the Causes of Migration, To Manage 
Migration Throughout North and Central America, and To Provide Safe 
and Orderly Processing of Asylum Seekers at the United States 
Border, signed February 2, 2021, https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf. E.O. 14010 referred to the 
three countries of El Salvador, Guatemala, and Honduras as the 
``Northern Triangle'', but this rule refers to these countries 
collectively as the Northern Central American countries.
    \39\ While USCIS approved a greater number of beneficiaries from 
the Northern Central American countries than the 6,000 visas 
allocated under the FY 2021 supplemental cap for those countries, 
the Department of State issued 3,065 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 Northern Central 
American 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 Central American countries, will 
contribute to greater utilization of available visas under this 
allocation during FY 2022.
    \40\ USCIS H-2B petition approval data pulled from CLAIMS3 on 
March 31, 2022.
    \41\ Id.
---------------------------------------------------------------------------

    Similar to the temporary final rules for the FY 2019, FY 2021 and 
previous FY 2022 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,\42\ unless the 
employer indicates on the new attestation form that it is requesting 
workers who are nationals of one of the Northern Central American 
countries or Haiti and who are therefore counted towards the 11,500 
allotment regardless of whether they are new or returning workers. If 
the 11,500 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 Central American 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. Like the temporary final rule for the 
first half of FY 2022, if the 11,500 returning worker exemption cap for 
nationals of the Northern Central American countries and Haiti remains 
unfilled, DHS will not make unfilled visas reserved for Northern 
Central American countries and Haiti available to the general returning 
worker cap.
---------------------------------------------------------------------------

    \42\ For 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.
---------------------------------------------------------------------------

    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.\43\ 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.\44\
---------------------------------------------------------------------------

    \43\ See the docket for this rulemaking for access to these 
letters.
    \44\ Id.
---------------------------------------------------------------------------

    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.\45\ 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.
---------------------------------------------------------------------------

    \45\ See, e.g., Impacts of the H-2B Visa Program for Seasonal 
Workers on Maryland's Seafood Industry and Economy, Maryland 
Department of Agriculture Seafood Marketing Program and Chesapeake 
Bay Seafood Industry Association (March 2, 2020), available at 
https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf (last 
visited Apr. 5, 2022).
---------------------------------------------------------------------------

    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 204 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 35,000 
additional visas, for positions with start dates on or after April 1, 
2022 through September 30, 2022, solely for the businesses facing 
permanent, severe financial loss or those who will face such loss in 
the near future.
    First, DHS interprets section 204's reference to ``the needs of 
American

[[Page 30341]]

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 204 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 
previous fiscal years, and provides protections against adverse effects 
on U.S. workers that may result from a cap increase, including, as in 
previous rules, requiring employers seeking H-2B workers under the 
supplemental cap to engage in additional recruitment efforts for U.S. 
workers. Additionally, 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 
after April 1, 2022 through September 30, 2022, the Secretary of 
Homeland Security has determined that employers may petition for 
supplemental visas on behalf of up to 23,500 workers who were issued an 
H-2B visa or were otherwise granted H-2B status in FY 2019, 2020, or 
2021. 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.\46\ 
Such workers (in other words, those who recently participated in the H-
2B program and who now seek a new H-2B visa from DOS) have previously 
obtained H-2B visas and therefore have been vetted by DOS, would have 
departed the United States as generally required by the terms of their 
nonimmigrant admission, and therefore may obtain their new visas 
through DOS and begin work more expeditiously.\47\ DOS has informed DHS 
that, in general, H-2B visa applicants who are able to demonstrate 
clearly that they have previously abided by the terms of their status 
granted by DHS have a higher visa issuance rate when applying to renew 
their H-2B visas, as compared with the overall visa applicant pool from 
a given country. Furthermore, consular officers are authorized to waive 
the in-person interview requirement for certain nonimmigrant visa 
applicants, including certain H-2B applicants, who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h).\48\ We note that DOS has, in response to the COVID-19 
pandemic, expanded interview waiver eligibility to certain first-time 
H-2 applicants,\49\ 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.
---------------------------------------------------------------------------

    \46\ 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.
    \47\ The previous review of an applicant's qualifications and 
current evidence of lawful travel to the United States will 
generally lead to a shorter processing time of a renewal 
application. In addition, U.S. Department of State consular officers 
temporarily have flexibility to waive the in-person interview 
requirementof certain nonimmigrant visa applicants. See, e.g., 86 FR 
70735 (Dec. 13, 2021); see also 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-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \48\ Some consular sections waive the in-person interview 
requirement for certain H-2B applicants who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h). Through December 31, 2022, certain first-time H-2B visa 
applicants, and certain H-2B visa applicants previously issued any 
type of visa within the last 48 months may be eligible for interview 
waiver. Additionally, certain H-2B applicants renewing visas in the 
same classification within 48 months of the prior visa's expiration 
are eligible for interview waiver. This waiver authorityvisa 
expiring has no sunset date. 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-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \49\ The authority allowing for waiver of interview of certain 
first-time 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/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 
23, 2021).
---------------------------------------------------------------------------

    Limiting the supplemental cap to returning workers is beneficial 
because these workers have generally followed immigration law in good 
faith and demonstrated their willingness to return home when they have 
completed their temporary labor or services or their period of 
authorized stay, which is a condition of H-2B status. The returning 
worker condition therefore provides a basis to believe that H-2B 
workers under this cap increase will again abide by the terms and 
conditions of their visa or nonimmigrant status. The returning worker 
condition also benefits employers that seek to re-hire known and 
trusted workers who have a proven positive employment track record 
while previously employed as workers in this country. While the 
Departments recognize that the returning worker requirement may limit 
to an extent the flexibility of employers that might wish to hire non-
returning workers, the requirement provides an important safeguard 
against H-2B abuse, which DHS considers to be a significant 
consideration.
    In allocating up to 11,500 H-2B visas to nationals of the Northern 
Central American countries and Haiti while making the remaining 
allocation of up to 23,500 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 Central American 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 11,500 supplemental visas only to 
nationals of the Northern Central American countries or Haiti and 
exempting such persons from the returning worker requirement. The

[[Page 30342]]

Secretary of Homeland Security has determined that both the 11,500 
limitation and the exemption from the returning worker requirement for 
nationals of the Northern Central American countries is again 
beneficial in light of 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 nationals of the 
Northern Central American 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. Like the temporary final rule for the first half of FY 2022, 
DHS believes that including nationals of Haiti in this allocation of up 
to 11,500 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.\50\ As 
DHS emphasized in its November 10, 2021 Federal Register 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.\51\
---------------------------------------------------------------------------

    \50\ We note Congress' recent statement, in a separate provision 
within the FY 2022 Omnibus, that it is the policy of the United 
States to support the sustainable rebuilding and development of 
Haiti. See Section 102 of Division V of the Consolidated 
Appropriations Act, 2022, Public Law 117-103. See also 86 FR 62562 
(sustainable development and the stability of Haiti is vital to the 
interests of the United States as a close partner and neighbor).
    \51\ See Identification of Foreign Countries Whose Nationals Are 
Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker 
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
---------------------------------------------------------------------------

    The exemption from the returning worker requirement recognizes the 
small numbers of individuals, approximately 4,750 per year, from the 
three Northern Central American countries and Haiti who were previously 
granted H-2B visas in recent years.\52\ 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 
nationals of the Northern Central American countries and Haiti.
---------------------------------------------------------------------------

    \52\ DOS issued a combined total of approximately 33,275 H-2B 
visas to nationals of the Northern Central American countries and 
Haiti from FY 2015 through FY 2021, or approximately 4,750 per year. 
See DOS, Monthly NIV Issuances, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Mar. 15, 2022); Monthly Nonimmigrant 
Visa Issuance Statistics by Nationality and Visa Class, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html (last visited Mar. 15, 2022).
---------------------------------------------------------------------------

    Finally, like the temporary final rule for the first half of FY 
2022 supplemental cap, this rule does not make available unfilled visas 
from the allocation for nationals of the Northern Central American 
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 
Central American countries and Haiti after September 15, 2022. This end 
date should provide H-2B employers ample time, should they choose, to 
petition for, and bring in, workers under the allocation for the 
Northern Central American 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 35,000 visas for positions with start dates on or before September 
30, 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 Central American countries or Haiti counted 
towards the 11,500 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 35,000 Visas

    The increase of up to 35,000 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 September 
30, 2022.\53\ The determination to allow up to 35,000 additional H-2B 
visas reflects a balancing of a number of factors including the demand 
for H-2B visas for the second half of FY 2022; current economic 
conditions; the general trend

[[Page 30343]]

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 in the fiscal year; 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.
---------------------------------------------------------------------------

    \53\ 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 204 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 204 to 
change to H-2B status from another nonimmigrant status. See INA 
section 248, 8 U.S.C. 1258; see also 8 CFR part 248. If a petitioner 
files a petition seeking H-2B workers in accordance with this rule 
and requests a change of status on behalf of someone in the United 
States, the change of status request will be denied, but the 
petition will be adjudicated in accordance with applicable DHS 
regulations. Any noncitizen authorized for H-2B status under the 
approved petition would need to obtain the necessary H-2B visa at a 
consular post abroad and then seek admission to the United States in 
H-2B status at a port of entry.
---------------------------------------------------------------------------

    Section 204 of the FY 2022 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 2022.\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 during the second 
half of 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 35,000 additional visas 
under the FY 2022 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 nationals 
of the Northern Central American 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 
11,500 of the up to 35,000 additional visas and exempting this number 
from the returning worker requirement for nationals from the Northern 
Central American countries or Haiti would be appropriate.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    In past years, the number of beneficiaries covered by H-2B 
petitions filed exceeded the number of additional visas allocated under 
recent supplemental caps. In FY 2018, USCIS received petitions for 
approximately 29,000 beneficiaries during the first 5 business days of 
filing for the 15,000 supplemental cap. USCIS therefore conducted a 
lottery on June 7, 2018, to randomly select petitions that 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 Central American countries.\56\ Of the petitions 
received, USCIS issued approvals for 30,681 beneficiaries, including 
approvals for 6,805 beneficiaries under the allocation for the 
nationals of the Northern Central American countries.\57\
---------------------------------------------------------------------------

    \55\ USCIS recognizes it may have received petitions for more 
than 29,000 supplemental H-2B workers if the cap had not been 
exceeded within the first 5 days of opening. However, DHS estimates 
that not all of the 29,000 workers requested under the FY 2018 
supplemental cap would have been approved and/or issued visas. For 
instance, although DHS approved petitions for 15,672 beneficiaries 
under the FY 2018 cap increase, the Department of State data shows 
that as of January 15, 2019, it issued only 12,243 visas under that 
cap increase. Similarly, DHS approved petitions for 12,294 
beneficiaries under the FY 2017 cap increase, but the Department of 
State data shows that it issued only 9,160 visas.
    \56\ On 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 Central American countries. See https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-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 Central American countries by 
the July 8 filing deadline, the remaining visas were available to H-
2B returning workers regardless of their country of origin. See 
https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (July 23, 2021).
    \57\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2018, FY 2019, as well as for FY 
2021 to allow for the possibility that some approved workers would 
either not seek a visa or admission, would not be issued a visa, or 
would not be admitted to the United States. Unlike these past 
supplemental cap TFRs, petitions filed under the first half FY 2022 
TFR did not exceed the additional allocation of 20,000 H-2B visas 
provided by that rule. Under the previous FY 2022 supplemental cap 
for petitions with start dates in the first half of FY 2022, as of 
March 31, 2022, USCIS had issued approvals for 17,185 beneficiaries, 
including approvals for 3,116 beneficiaries under the allocation for 
nationals of the Northern Central American countries and Haiti. 
USCIS H-2B petition approval data pulled from CLAIMS3 on March 31, 
2022.
---------------------------------------------------------------------------

    Data for the second half of FY 2022 clearly indicate an immediate 
need for additional supplemental H-2B visas through the end of FY 2022. 
As of March 31, 2022, DOL's Office of Foreign Labor Certification 
(OFLC) reports having approved 4,771 TLC applications with requested 
dates of need in the second half of FY 2022 for 79,947 H-2B 
workers.\58\ Furthermore, USCIS received a sufficient number of H-2B 
petitions to reach the second half of the FY 2022 fiscal year statutory 
cap on February 25, 2022.\59\
---------------------------------------------------------------------------

    \58\ DOL OFLC memo to USCIS Office of Policy and Strategy March 
31, 2022.
    \59\ On March 1, 2022, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the second half 
of fiscal year 2022, and that February 25, 2022 was the final 
receipt date for new cap-subject H-2B worker petitions requesting an 
employment start date on or after April 1, 2022, and before October 
1, 2022. See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022 (Mar. 1, 2022).
---------------------------------------------------------------------------

    In addition, although the public health emergency due to COVID-19 
still exists,\60\ DHS believes that issuing additional H-2B visas 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.
---------------------------------------------------------------------------

    \60\ See HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx (Apr. 12, 2022).
---------------------------------------------------------------------------

    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

[[Page 30344]]

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

    \61\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

    Within these industries, DOL data show increased labor demand over 
the last year. More specifically, DOL data from the March 29, 2022 Job 
Openings and Labor Turnover Survey (JOLTS) show that the rate of job 
openings \62\ increased for all 5 industries between February 2021 and 
February 2022. The job opening rate for NAICS 56 \63\ increased from 
6.7 to 8.7 while the job opening rate for NAICS 71 went from 8.0 to 
8.5. The job opening rate for NAICS 72 went from 6.7 to 10.2 while the 
rate for NAICS 23 went from 3.4 to 4.8. The job opening rate for NAICS 
11 \64\ increased from 3.5 to 5.4.
---------------------------------------------------------------------------

    \62\ The 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/archives/jolts_03292022.htm 
(last visited April 4, 2022).
    \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 March 2022, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 56 accounted for 
just under 43% of employment in Professional Business Services. All 
data accessed April 28, 2022.
    \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 March 2022, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 11 accounted for 
just over 7% of employment in Natural Resources and Mining. All data 
accessed April 28, 2022.

                                 Year-Over-Year Change in Job Opening Rate \65\
----------------------------------------------------------------------------------------------------------------
       NAICS 11               NAICS 23               NAICS 56               NAICS 71              NAICS 72
----------------------------------------------------------------------------------------------------------------
              1.9                    1.4                    2.0                    0.5                    3.5
----------------------------------------------------------------------------------------------------------------

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

    \65\ Year-over-year change was calculated as the difference 
between the February 2022 value for the respective industry and the 
February 2021 value. See https://www.bls.gov/jlt/#data. All data 
accessed March 29, 2022.
---------------------------------------------------------------------------

    Other economy-wide data also indicate that labor-market tightness 
exists. The most recent Employment Situation released by the Bureau of 
Labor Statistics stated that the unemployment rate decreased to 3.6% in 
March 2022.\66\ Historically, the availability of H-2B visas addressed 
a need in the labor market during periods of lower unemployment, 
additionally, when the unemployment rate is below 6% there is greater 
variance of H-2B visas. Chart 1 \67\ shows that the estimated total H-
2B visa issuance for Fiscal Year 2022 \68\ is within past allocations 
of this program. The data presented here is meant to provide additional 
context and to demonstrate that the total allocation of H-2B visas is 
reasonable given labor market conditions.
---------------------------------------------------------------------------

    \66\ https://www.bls.gov/news.release/archives/empsit_04012022.htm.
    \67\ Annual data presented here is on a fiscal year basis. 
Fiscal year averages were calculated by taking the average of the 
monthly unemployment rate for the months in each respective fiscal 
year (October-September). Data for 2022 are based on data for 
October 2021-March 2022.
    \68\ Estimated visas issued for Fiscal Year 2022 is based on the 
sum of the fiscal year statutory cap for H-2B workers (66,000), the 
supplemental allocation for the first half of Fiscal Year 2022 
(20,000), and the supplemental allocation described in this Rule 
(35,000). Additionally, because H-2B visa issuance numbers generally 
exceed the number of allocated H-2B visas due to the cap exemptions 
USCIS estimated total FY2022 visa issuance by first calculating the 
ratio of visas issued to visas allocated over the last 5 fiscal 
years (XXX/YYY=Z) and then applying that ratio to the H-2B visa 
allocations for Fiscal Year 2022.
[GRAPHIC] [TIFF OMITTED] TN18MY22.004


[[Page 30345]]


    In addition, DOS announced in November 2021 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,\69\ 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.\70\ To further streamline nonimmigrant visa processing, 
the Bureau of Consular Affairs used its authority to waive in-person 
visa interviews for certain H-2 applicants through December 31, 2022, 
and beyond 2022 for applicants renewing a visa in the same 
classification within 48 months of the visa's expiration.\71\ We note, 
however, that in response to continued concerns about COVID variants, 
including the highly contagious Omicron variant and its most common 
lineages,\72\ the Centers for Disease Control and Prevention (CDC) 
updated testing requirements for international air travel to the United 
States, which may have an impact on such travel.\73\ Given the level of 
demand for H-2B workers, the continued economic recovery, the continued 
and projected job growth, and the resumption of visa processing 
services, DHS believes it is appropriate to release additional visas at 
this time. Further, DHS believes that 35,000 is an appropriate number 
of visas for the reasons discussed above.
---------------------------------------------------------------------------

    \69\ Proclamation 10294 of Oct. 25, 2021, Advancing the Safe 
Resumption of Global Travel During the COVID-19 Pandemic, 86 FR 
59603 (Oct. 28, 2021).
    \70\ See DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last updated Nov. 19, 2021).
    \71\ See DOS, Important Announcement on Waivers of the Interview 
Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \72\ See CDC, Omicron Variant: What You Need to Know, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html 
(last updated Mar. 29. 2022).
    \73\ See CDC, Requirement for Proof of Negative COVID-19 Test or 
Documentation of Recovery from COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/travelers/testing-international-air-travelers.html (updated Jan. 27, 2022). The amended updates state, 
``All air passengers 2 years or older with a flight departing to the 
U.S. from a foreign country at or after 12:01a.m. EST (5:01a.m. GMT) 
on December 6, 2021, are required [to] show a negative COVID-19 
viral test result taken no more than 1 day before travel, or 
documentation of having recovered from COVID-19 in the past 90 days, 
before they board their flight.'' 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).
---------------------------------------------------------------------------

    Finally, recognizing the high demand for H-2B visas, it is 
plausible that the additional H-2B supplemental allocations provided in 
this rule will be reached prior to the end of the fiscal year. 
Specifically, the following scenarios may still occur:
    <bullet> The 23,500 supplemental cap visas limited to returning 
workers that will be immediately available for employers will be 
reached before September 15, 2022.
    <bullet> The 11,500 supplemental cap visas limited to nationals of 
the Northern Central American countries and Haiti will be reached 
before September 15, 2022.
    DHS regulation, 8 CFR 214.2(h)(6)(xii)(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 computer-
generated selection, from among the petitions received on the final 
receipt date the remaining number of petitions deemed necessary to 
generate the numerical limit of approvals for each of the scenarios 
involving numerical limitations to the supplemental cap. USCIS may, but 
will not necessarily, conduct a lottery if: The 23,500 supplemental cap 
visas for returning workers is reached before September 15, 2022; or 
the 11,500 visas limited to nationals of the Northern Central American 
countries and Haiti is reached before September 15, 2022. Finally, 
similar to the processes applicable to the H-2B semi-annual 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, FY 2021, and the 
first half of FY 2022 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 
Central American countries or Haiti and is counted towards the separate 
11,500 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 as generally required by the terms of their 
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 Central American countries or Haiti and is 
counted towards the 11,500 cap. This attestation will serve as prima 
facie initial evidence to DHS that each worker, unless a national of 
one of the Northern Central American countries or Haiti who is counted 
against the 11,500 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, as 
otherwise discussed in this rule.

[[Page 30346]]

D. Returning Worker Exemption for Up to 11,500 Visas for Nationals of 
Guatemala, El Salvador, and Honduras (Northern Central American 
Countries) and Haiti

    As described above, the Secretary of Homeland Security has 
determined that up to 11,500 additional H-2B visas will be limited to 
workers who are nationals of one of the Northern Central American 
countries or Haiti. These 11,500 visas will be exempt from the 
returning worker requirement. If the 11,500 visa limit has been reached 
and the 23,500 returning worker cap has not, petitioners may continue 
to request workers who are nationals of one of the Northern Central 
American 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 11,500 supplemental H-2B visas 
for nationals of the Northern Central American 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 Central American 
countries and Haiti seeking a legal pathway for temporary employment in 
the United States. DHS also believes its outreach efforts with the 
governments of the Northern Central American countries and Haiti, along 
with efforts in some of these countries by the United States Agency for 
International Development (USAID) to increase access to the H-2B 
program, support the decision to provide a higher reservation of H-2B 
visas for these countries than it has in prior recent TFRs. USAID has 
worked to build government capacity in Northern Central America to 
facilitate access to temporary worker visas under the H-2 program. 
These efforts focus on systematic, orderly, and safe recruitment of 
workers, engagement with U.S. employers, and strengthening worker 
protections. In Fiscal Year 2021, USAID increased funding to expand 
capacity building activities in El Salvador, Guatemala, and Honduras in 
response to the increased demand generated by the supplemental 
allocation of 6,000 H-2B visas for Northern Central American nationals 
included in the FY 2021 TFR. The acceleration of USAID's activities in 
FY 2021 likely helped increase uptake of H-2B visas issuance under the 
FY 2021 TFR, as H-2B visa issuances to Salvadorans, Guatemalans and 
Hondurans exceeded pre-pandemic levels by nearly 40 percent in FY 
2021,\74\ and USAID's assistance helped reduce the average period of 
time to match qualified workers from these three countries to requests 
from U.S. employers--most significantly in Honduras, from 24 days to 
nine days. USAID's programs also strengthen worker protections by 
helping crowd out unethical recruiters and providing labor rights 
education and resources to seasonal workers.
---------------------------------------------------------------------------

    \74\ See DOS, Monthly NIV Issuances by Nationality and Visa 
Class, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Mar. 
15, 2022); Monthly Nonimmigrant Visa Issuance Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html (last visited Mar. 15, 2022).
---------------------------------------------------------------------------

    DOS issued a combined total of approximately 26,630 H-2B visas to 
nationals of the Northern Central American countries or Haiti from FY 
2015 through FY 2020, an average of approximately 4,400 per year.\75\ 
In FY 2021, DOS issued a combined total of more than 6,600 visas to 
nationals of Northern Central American countries. This increase is 
likely due in 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.\76\ In addition, based in part on the vital U.S. 
interest of promoting sustainable development and the stability of 
Haiti, in November 2021, DHS added Haiti to the list of countries whose 
nationals are eligible to participate in the H-2A and H-2B 
programs.\77\ 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 Central American countries and Haiti.
---------------------------------------------------------------------------

    \75\ Id.
    \76\ Id.
    \77\ See Identification of Foreign Countries Whose Nationals Are 
Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker 
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
---------------------------------------------------------------------------

    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 Central 
American 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 
Central American 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 non-protection 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.\78\ The availability of workers from the Northern Central 
American countries and Haiti may promote safe and lawful immigration to 
the United States, as well as help provide U.S. employers with 
additional labor from neighboring countries with whom the Biden 
administration and DHS have engaged in outreach efforts to promote the 
H-2B program.
---------------------------------------------------------------------------

    \78\ See also National Security Council, Collaborative Migration 
Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021) 
(stating that ``The United States has strong national security, 
economic, and humanitarian interests in reducing irregular migration 
and promoting safe, orderly, and humane migration'' within North and 
Central America).
---------------------------------------------------------------------------

    Similar to the discussion above regarding returning workers, DOS 
will work with the relevant countries to facilitate consular 
interviews, as required,\79\ 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

[[Page 30347]]

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

    \79\ As noted previously, some consular sections may waive the 
in-person interview requirement for H-2B applicants whose prior visa 
expired within a specific timeframe and who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h). The authority allowing for waiver of interview of certain 
H-2 (temporary agricultural and non-agricultural workers) applicants 
is extended through the end of 2022. Certain applicants renewing a 
visa in the same classification within 48 months of the prior visa's 
expiration are also eligible for interview waiver. DOS, Important 
Announcement on Waivers of the Interview Requirement for Certain 
Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 
23, 2021).
---------------------------------------------------------------------------

    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 
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.\80\ 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,\81\ and any other necessary documentation. As 
in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and 
first half FY 2022 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.\82\
---------------------------------------------------------------------------

    \80\ An employer may request fewer workers on the H-2B petition 
than the number of workers listed on the TLC. See Instructions for 
Petition for Nonimmigrant Worker, providing that ``the total number 
of workers you request on 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.''
    \81\ Since July 26, 2019, USCIS has been accepting a printed 
copy of the electronic one-page ETA-9142B, Final Determination: H-2B 
Temporary Labor Certification Approval, as an original, approved 
TLC. See Notice of DHS's Requirement of the Temporary Labor 
Certification Final Determination Under the H-2B Temporary Worker 
Program, 85 FR 13178, 13179 (Mar. 6, 2020).
    \82\ The attestation requirement does not apply to workers who 
have already been counted under the H-2B statutory cap for the 
second half of fiscal year 2022 (33,000). Further, the attestation 
requirement 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 that 
are filing on behalf of such workers are not subject to the 
attestation requirement.
---------------------------------------------------------------------------

    Prior to the first half FY 2022 temporary final rule, petitioners 
were only 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. In the previous FY 2022 temporary final rule, the Departments 
changed the standard to require employers to 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 the rule. This change was 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. This standard will be applied to the instant temporary 
final rule, and employers will again be required to attest that they 
are suffering irreparable harm or will suffer impending irreparable 
harm without the ability to employ all of the H-2B workers requested on 
the petition filed under this rule.
    As noted above, Congress authorized the Secretary of Homeland 
Security, in consultation with the Secretary of Labor, to increase the 
total number of H-2B visas available ``upon the determination that the 
needs of American businesses cannot be satisfied'' with U.S. workers 
under the statutory visa cap.\83\ The 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 
(upon request) documentation of that harm, it calls into question 
whether their needs cannot in fact be satisfied without the ability to 
employ H-2B workers.
---------------------------------------------------------------------------

    \83\ Public Law 117-103 Consolidated Appropriations Act, 2022, 
section 204 (Mar. 15, 2022), 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) 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.
---------------------------------------------------------------------------

    The ``are suffering irreparable harm or will suffer impending 
irreparable harm'' standard is also informed by the Departments' 
experiences in implementing the prior business need standard. In the 
Departments' experiences, the ``likely to suffer irreparable harm'' 
standard was difficult to assess and administer in the context of prior 
supplemental cap rules. For example, employers 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 an audit. The Departments therefore believe that 
asking employers to provide evidence of harm, as described in more 
detail later, 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

[[Page 30348]]

document retention period discussed below.
    As with petitions filed under the FY 2021 and prior FY 2022 
Supplemental TFRs, 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)(xii)(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).
    The attestation submitted to USCIS will also state that the 
employer meets all other eligibility criteria for the available visas, 
including the returning worker requirement, unless exempt because the 
H-2B worker is a national of one of the Northern Central American 
countries or Haiti who is counted against the 11,500 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 is a returning worker, or a national of one of 
the Northern Central American 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 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 Central American countries or Haiti who 
is counted against the 11,500 (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 655.66. 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 TLC processing timeframes and the time 
remaining in this fiscal year. However, as noted above, the Departments 
will employ program integrity measures, including additional scrutiny 
by DHS of employers that have committed labor law violations in the H-
2B program and continue to conduct audits, investigations, and/or post-
adjudication compliance reviews on a significant number of H-2B 
petitions. As part of that process, USCIS may issue a request for 
additional evidence, a notice of intent to revoke, or a revocation 
notice, based on the review of such documentation, see 8 CFR 103.2(b) 
and 8 CFR 214.2(h)(11), and DOL's OFLC and WHD will be able to review 
this documentation and enforce the attestations during the course of an 
audit examination or investigation.
    In accordance with the attestation requirements, under which 
petitioners attest that they meet the irreparable harm standard, that 
they are seeking to employ only returning workers (unless exempt as 
described above), and they meet the document retention requirements at 
new 20 CFR 655.66, the petitioner must retain documents and records 
fulfilling their responsibility to demonstrate compliance with this 
rule for 3 years from the date the TLC was approved, and must provide 
the documents and records upon the request of DHS 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 of the attestation 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

[[Page 30349]]

dates of employment and hours worked; and/or
    (4) Evidence that the petitioner is reliant on obtaining a certain 
number of workers to operate, based on the nature and size of the 
business, such as documentation showing the number of workers it has 
needed to maintain its operations in the past, or will in the near 
future need, including but not limited to: A detailed business plan, 
copies of purchase orders or other requests for good and services, or 
other reliable forecast of an impending need for workers.
    (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 Central American countries or Haiti counted towards the 11,500 
cap. Such evidence would include, but is not limited to, a date-stamped 
written communication from the employer to its agent(s) and/or 
recruiter(s) that instructs the agent(s) and/or recruiter(s) to only 
recruit and provide instruction regarding an application for an H-2B 
visa to those foreign workers who were previously issued an H-2B visa 
or granted H-2B status in FY 2019, 2020, or 2021.
    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 a 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 Central American countries or Haiti counted towards the 11,500 
cap, among other attestations. If DHS subsequently finds that the 
evidence does not support the employer's attestations, DHS may deny or, 
if the petition has already been approved, revoke the petition at any 
time consistent with existing regulatory authorities. DHS may also, or 
alternatively, refer to DOL for further investigation. In addition, DOL 
may independently take enforcement action, including by, among other 
things, debarring the petitioner from the H-2B program for not less 
than 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.\84\
---------------------------------------------------------------------------

    \84\ Pursuant to the statutory provisions governing enforcement 
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a 
violation exists 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.
---------------------------------------------------------------------------

    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 Mar. 29, 2022). In addition, if members of 
the public have information that a participating employer may be 
abusing this program, DHS invites them to notify USCIS by completing 
the online fraud tip form, https://www.uscis.gov/report-fraud/uscis-tip-form (last visited Mar. 29, 2022).\85\
---------------------------------------------------------------------------

    \85\ 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.
---------------------------------------------------------------------------

    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 204 
of the FY 2022 Omnibus, 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 2022 Omnibus 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.\86\ 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 new 20 CFR 655.66, 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.
---------------------------------------------------------------------------

    \86\ The Departments' intentions with respect to non-
severability extend to all features of this rule other than the 
portability provision, which is described in the section below.
---------------------------------------------------------------------------

F. Portability

    As an additional option for employers that cannot find U.S. 
workers, and as an additional flexibility for H-2B employees seeking to 
begin work with a new H-2B employer, this rule allows petitioners to 
immediately employ certain H-2B workers who are present in the United 
States in H-2B status without waiting for approval of the H-2B 
petition, generally for a period of up to 60 days. Such workers must be 
beneficiaries of a non-frivolous H-2B petition requesting an extension 
of stay received on or after July 28, 2022 but no later than 180 days 
after that date.\87\ 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 July 
28, 2022 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

[[Page 30350]]

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

    \87\ Individuals who are the beneficiaries of petitions filed on 
the basis of 8 CFR 214.1(c)(4) are not eligible to port to a new 
employer under 8 CFR 214.2(h)(28).
---------------------------------------------------------------------------

    The portability provision at new 8 CFR 214.2(h)(28)(iii)(A)(1)-(2) 
is the same as the portability provision offered in the prior FY2022 H-
2B supplemental visa temporary final rule, which was codified at 8 CFR 
214.2(h)(27)(iii)(A)-(B), and will begin upon the expiration of that 
provision. See new 8 CFR 214.2(h)(28)(iii)(A)(1)-(2). Additionally, the 
provision is similar to temporary flexibilities that DHS has used 
previously to improve employer access to noncitizen workers during the 
COVID-19 pandemic.\88\ The employment authorization provided under this 
provision would end 15 days after USCIS denies the H-2B petition or 
such petition is withdrawn. This 15-day period of employment following 
an H-2B petition denial or withdrawal is consistent with prior H-2B 
supplemental cap temporary final rules, as well as with existing DHS 
regulations at 8 CFR 274a.12(b)(21), which allows certain E-Verify 
participants to employ H-2A workers immediately upon USCIS receipt of 
the H-2A petition without waiting for petition approval. DHS believes 
the 15-day period of employment under this rule's portability provision 
is appropriate, when a petition that has been filed on behalf of an H-2 
worker is denied, given the passage of time between USCIS denial of the 
H-2B petition and the petitioner receiving notice of the denial. In 
addition, the provision is consistent with this temporary rule's goal 
of providing increased protections and flexibility for H-2B workers, as 
DHS believes immediate cessation of employment authorization under this 
provision for denied or withdrawn petitions may lead to undue hardship 
for noncitizens who would have only begun employment for a new H-2B 
employer, and who may have relocated to take on that employment 
opportunity.
---------------------------------------------------------------------------

    \88\ 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, 2020 through June 16, 2021, respectively. 85 FR 51304 
and 85 FR 82291.
---------------------------------------------------------------------------

    The portability provision is in part intended to mitigate the harm 
that petitioners may experience resulting from the continuing 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.
    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).\89\ This 
determination that a public health emergency exists due to COVID-19 has 
subsequently been renewed eight 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, on October 15, 2021, and most recently on January 14, 
2022.\90\ As well, 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.\91\ The proclamation declared 
that the emergency began on March 1, 2020. On February 18, 2022, 
President Biden issued a continuation of the National Emergency 
concerning the COVID-19 pandemic.\92\ As of May 5, 2022, there have 
been over 513 million confirmed cases of COVID-19 identified globally, 
resulting in more than 6.2 million deaths.\93\ Approximately 80,758,644 
cases have been identified in the United States, with about 422,261 new 
cases identified in the 7 days preceding May 5, 2022, and approximately 
988,595 reported deaths due to the disease.\94\
---------------------------------------------------------------------------

    \89\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020).
    \90\ HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx (Jan. 14, 2022).
    \91\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
    \92\ Continuation of the National Emergency Concerning the 
Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (Feb. 23, 
2022); Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337.
    \93\ World Health Organization, WHO Coronavirus (COVID-19) 
Dashboard, https://covid19.who.int/ (last visited May 5, 2022).
    \94\ Id.
---------------------------------------------------------------------------

    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.\95\ 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.\96\ 
Although routine visa services have resumed \97\ subject to local 
conditions and restrictions, and DOS has expanded visa interview waiver 
eligibility,\98\ the COVID-19 pandemic continues to have a significant 
impact on visa processing at embassies and consulates around the 
world.\99\ And as noted above, continued

[[Page 30351]]

concerns about COVID variants prompted updated testing requirements for 
international air travel to the United States, which may have an impact 
on such travel.
---------------------------------------------------------------------------

    \95\ 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).
    \96\ 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-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \97\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last updated Nov. 19, 2021).
    \98\ DOS, Expanded Interview Waivers for Certain Nonimmigrant 
Visa Applicants, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last updated Dec. 23, 
2021).
    \99\ See DOS, U.S. Embassy and Consulates in Mexico, Status of 
Visa Processing at the U.S. Embassy and Consulates in Mexico, 
https://mx.usembassy.gov/visas/ (last updated March 17, 2022). For 
nonimmigrant visas, the U.S. Embassy and consulates in Mexico have 
resumed limited processing of visas, however, they note that, 
``Applicants should expect a longer-than-normal wait time for this 
service and plan accordingly.''
---------------------------------------------------------------------------

    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.\100\ 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.\101\ Providing that flexibility is also equitable and fair.
---------------------------------------------------------------------------

    \100\ The 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.''
    \101\ The White House, The National Action Plan to Combat Human 
Trafficking, Priority Action 1.5.3, at p. 25 (Dec 2021); The White 
House, The National Action Plan to Combat Human Trafficking, 
Priority Action 1.6.3, at p. 20-21 (2020) (Stating that ``[w]orkers 
sometimes find themselves in abusive work situations, but because 
their immigration status is dependent on continued employment with 
the employer in whose name the visa has been issued, workers may be 
left with few options to leave that situation.''). By providing the 
option of changing employers without risking job loss or a loss of 
income through the publication of this rule, DHS believes that H-2B 
workers may be more likely to leave abusive work situations, and 
thereby are afforded greater worker protections.
---------------------------------------------------------------------------

    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. This flexibility (job 
portability) seeks to protect H-2B workers and also provide an 
alternative to H-2B petitioners who have not been able to find U.S. 
workers and who have not been able to obtain H-2B workers subject to 
the statutory or supplemental caps who have the skills to perform the 
job duties. In that sense as well, it is equitable and fair.
    DHS is making this flexibility available for an additional 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.\102\ Evidence suggests some 
variants may spread more quickly and easily than others, and while some 
variants may emerge and disappear others may persist.\103\ DHS will 
continue to monitor the evolving health crisis caused by COVID-19 and 
may address it in future rules.
---------------------------------------------------------------------------

    \102\ See CDC, What You Need to Know about Variants, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last 
updated Feb. 25, 2022); as well as, CDC, Frequently Asked Questions 
About COVID-19 Vaccination, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Feb. 28, 2022).
    \103\ See CDC, What You Need to Know about Variants, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last 
updated Apr. 15, 2022).
---------------------------------------------------------------------------

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.\104\ 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.
---------------------------------------------------------------------------

    \104\ See DHS, Statement on Equal Access to COVID-19 Vaccines 
and Vaccine Distribution Sites, https://www.dhs.gov/news/2021/02/01/dhs-statement-equal-access-covid-19-vaccines-and-vaccine-distribution-sites (Feb. 1, 2021) (last accessed Mar. 23, 2022).
---------------------------------------------------------------------------

    U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and 
Border Protection (CBP) do not conduct enforcement actions at or near 
vaccine distribution sites or clinics. Consistent with DHS' protected 
areas policy, ICE and CBP generally do not carry out enforcement 
actions in or near protected areas, including at medical or mental 
healthcare facilities, 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.\105\
---------------------------------------------------------------------------

    \105\ See ICE, FAQs: Protected Areas and Courthouse Arrests, 
https://www.ice.gov/about-ice/ero/protected-areas (last visited Mar. 
23, 2022).
---------------------------------------------------------------------------

    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 2022 
Omnibus, the Departments are using the DOL Form ETA-9142-B--CAA-6 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-6 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)(xii)(B)(2)(iv) and 20 CFR 655.65(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.\106\ 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

[[Page 30352]]

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

    \106\ See DOL, 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 Mar. 23, 2022).
---------------------------------------------------------------------------

    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.\107\ This obligation is also reflected as a 
condition of H-2B portability under this rule. See new 8 CFR 
214.2(h)(28)(iii)(B).
---------------------------------------------------------------------------

    \107\ 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).
---------------------------------------------------------------------------

    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.'' \108\ More recently, 
President Biden reiterated his call on employers to provide paid time 
off to their employees to get booster shots.\109\ 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.\110\ On January 22, 2022, similar 
requirements entered into force at land ports of entry and ferry 
terminals.\111\ The Departments therefore expect that H-2B 
nonimmigrants who enter the United States under this rule will 
generally be fully vaccinated against COVID-19. The 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.
---------------------------------------------------------------------------

    \108\ See https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/21/remarks-by-president-biden-on-the-covid-19-response-and-the-state-of-vaccinations-2/ (April 21, 2021).
    \109\ See https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-winter/ (December 2, 2021).
    \110\ See 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC 
Order).
    \111\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United 
States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at 
United States-Canada border).
---------------------------------------------------------------------------

    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 Central American 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 Central 
American countries or Haiti under the 11,500 visa allocation that are 
exempt from the returning worker provision must file a separate Form I-
129 for those nationals of the Northern Central American countries and 
Haiti only. See new 8 CFR 214.2(h)(6)(xii). In this regard, a petition 
must be filed with a single Form ETA-9142-B-CAA-6 that clearly 
indicates that the petitioner is only requesting nationals from a 
Northern Central American country or Haiti who are exempt from the 
returning worker requirement. Specifically, if the petitioner checks 
Box #5 of Form ETA-9142-B-CAA-6, then the petition accompanying that 
form must be filed only on behalf of nationals of one or more of the 
Northern Central American 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 Central American 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 Central American countries or Haiti. 
Requiring the filing of separate petitions to request returning workers 
and to request workers who are nationals of the Northern Central 
American 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-6, Attestation for Employers Seeking to Employ H-2B Nonimmigrant 
Workers Under Section 204 of Division O of the Further Consolidated 
Appropriations Act, 2022, Public Law 117-103. See new 20 CFR 655.65. 
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 655.66. Petitions submitted to DHS pursuant to the FY 2022 Omnibus 
will be processed

[[Page 30353]]

in the order in which they were received within the relevant 
supplemental allocation, and pursuant to processes parallel to those in 
place for when numerical limitations are reached under INA section 
214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10).
    Based on the time-limited authority granted to DHS by section 204 
of the under the FY 2022 Omnibus, DHS is notifying the public that 
petitions seeking a visa under this rule may not be approved by USCIS 
on or after October 1, 2022. See new 8 CFR 214.2(h)(6)(xii)(C).
    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)(xii)(C).
    DHS believes that 15 days from the end of the fiscal year is the 
minimum time needed for petitions to be adjudicated, although USCIS 
cannot guarantee the time period will be sufficient in all cases. 
Therefore, even if the supplemental allocations provided in this rule 
have not yet been reached, USCIS will stop accepting petitions received 
after September 15, 2022. See new 8 CFR 214.2(h)(6)(xiii)(C). Such 
petitions will be rejected and the filing fees will be returned.
    Petitioners may choose to request premium processing of their 
petitions under 8 CFR 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 new 20 CFR 655.65(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 non-emergency situation must file a 
completed Application for Temporary Employment Certification with the 
National Processing Center (NPC) designated by the OFLC Administrator 
no more than 90 calendar days and no fewer than 75 calendar days before 
the employer's date of need (i.e., start date for the work). See 20 CFR 
655.15.
    Under 20 CFR 655.17, an employer may request a waiver of the time 
period(s) for filing an Application for Temporary Employment 
Certification based on ``good and substantial'' cause, provided that 
the employer has sufficient time to thoroughly test the domestic labor 
market on an expedited basis and the OFLC certifying officer (CO) has 
sufficient time to make a final determination as required by the 
regulation. To rely on this provision, as the Departments explained in 
the 2015 H-2B Interim Final Rule, the employer must provide the OFLC CO 
with detailed information describing the ``good and substantial cause'' 
necessitating the waiver. Such cause may include the substantial loss 
of U.S. workers due to Acts of God, or a similar unforeseeable human-
made catastrophic event that is wholly outside the employer's control, 
unforeseeable changes in market conditions, or pandemic health issues. 
Thus, to ensure an adequate test of the domestic labor market and to 
protect the integrity of the H-2B program, the Departments clearly 
intended that use of emergency procedures must be narrowly construed 
and permitted in extraordinary and unforeseeable catastrophic 
circumstances that have a direct impact on the employer's need for the 
specific services or labor to be performed. Even under the existing H-
2B statutory visa cap structure, DOL considers USCIS' announcement(s) 
that the statutory cap(s) on H-2B visas has been reached, which may 
occur with regularity every six months depending on H-2B visa need, as 
foreseeable, and therefore not within the meaning of ``good and 
substantial cause'' that would justify a request for emergency 
procedures. Accordingly, employers cannot rely solely on the 
supplemental H-2B visas made available through this rule as good and 
substantial cause to use emergency procedures under 20 CFR 655.17.
    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)(xii), and who file an I-129 petition 30 or more days after 
the certified start date of work on the TLC must conduct additional 
recruitment for U.S. workers. This is particularly important as U.S. 
workers continue to reenter the workforce as they become vaccinated and 
boosted. 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 April 1, 2022, for 
example, likely conducted their positive recruitment beginning around 
late-January and ending around mid-February 2022, and continued to 
consider U.S. worker applicants and referrals only until March 11, 
2022.
    In order to provide U.S. workers a realistic opportunity to pursue 
jobs for which employers will be seeking foreign workers under this 
rule, the Departments have determined that if employers file an I-129 
petition 30 or more days after their 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. In previous 
rules, the Departments had set the point at which new recruitment must 
be conducted as being when an I-129 petition was filed 45 or more days 
after the approved date of need. Under this 45-day requirement, 
recruitment would have concluded 66 or more days prior to the filing of 
the I-129 petition as employers do not have an obligation to provide 
employment to U.S. workers 21 days before the start date of need and 45 
or more days would have transpired after this date of need. After 
careful consideration, the Departments have determined that recruitment 
which concluded 66 or more days (e.g., several months) prior to the 
filing of a visa petition does not adequately afford workers an 
opportunity to apply for jobs closer to when they tend to be searching 
for temporary jobs. Instead, we believe that

[[Page 30354]]

a shortened 30-day requirement better aligns with this goal and the 
2015 H-2B Interim Final Rule, which found that U.S. applicants applying 
for temporary positions typically offered by H-2B employers are often 
not seeking job opportunities, or making informed decisions about such 
work, several months in advance. See 80 FR 24041, 24071.
    We also believe this change is in keeping with the intent of the 
45-day requirement in the previous TFRs. Those rules have generally 
published in late May, meaning all visa petitions with an April 1 start 
date were filed with USCIS more than 45 days after the certified start 
date of need and additional recruitment would have been required. The 
economic analysis for this and the two previous TFRs assumed the number 
of employers that would need to conduct additional recruitment would be 
equal to the total number of anticipated filers for each TFR. See 86 FR 
28223, 28224 and 87 FR 4753. The publication of this TFR in early May 
means this recruitment is limited to petitions that are submitted fewer 
than 45 days after the certified start date of need. By now requiring 
additional recruitment be conducted if the visa petition is submitted 
more than 30 days after the certified start date of need, the intent of 
the previous rules will be maintained even if the rule is published 
earlier than previous years. As such, to provide U.S. workers a better 
opportunity to access available job opportunities, we conclude it is 
prudent to shorten the time between the certified date of need and the 
filing of the I-129 visa petition which triggers the additional 
recruitment requirement.
    An employer that files an I-129 petition under 8 CFR 
214.2(h)(6)(xii) fewer than 30 days after the certified start date of 
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
6, 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 
30 or more days before the date they file a petition will be required 
to conduct recruitment in addition to that conducted prior to being 
granted labor certification and attest that the recruitment will be 
conducted, as follows.
    Employers that are required to engage in additional recruitment 
must place a new job order for the job opportunity with the State 
Workforce Agency (SWA) serving the area of intended employment no later 
than the next business day after submitting an I-129 petition for H-2B 
workers to USCIS, and inform the SWA that the job order is being placed 
in connection with a previously submitted and certified Application for 
Temporary Employment Certification for H-2B workers by providing the 
SWA with the unique OFLC TLC case number.
    The new 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 employer-conducted recruitment 
activity period applicable under 20 CFR 655.40(b).
    Once the SWA places the new job order on its public labor exchange 
system, the SWA will perform its normal employment service activities 
by circulating the job order for intrastate clearance, and in 
interstate clearance by providing a copy of the job order to other SWAs 
with jurisdiction over listed worksites as well as those States the 
OFLC CO designated in the original Notice of Acceptance issued under 20 
CFR 655.33. Where the occupation or industry is traditionally or 
customarily unionized, the SWA will also circulate a copy of the new 
job order to the central office of the State Federation of Labor in the 
State(s) in which work will be performed, and the office(s) of local 
union(s) representing workers in the same or substantially equivalent 
job classification in the area(s) in which work will be performed, 
consistent with its current obligation under 20 CFR 655.33(b)(5). To 
facilitate an effective dissemination of these job opportunities, DOL 
encourages union(s) or hiring halls representing workers in occupations 
typically used in the H-2B program to proactively contact and establish 
partnerships with SWAs in order to obtain timely information on 
available temporary job opportunities. This will aid the SWAs' prompt 
and effective outreach under the rule. DOL's OFLC maintains a 
comprehensive directory of contact information for each SWA at https://www.dol.gov/agencies/eta/foreign-labor/contact.
    The employer also must conduct additional recruitment steps during 
the period of time the SWA is actively circulating the job order for 
intrastate clearance. First, the employer must contact, by email or 
other electronic means, the nearest American Job Center(s) (AJC) 
serving the area of intended employment where work will commence to 
request staff assistance to advertise and recruit U.S. workers for the 
job opportunity. AJCs bring together a variety of programs providing a 
wide range of employment and training services for U.S. workers, 
including job search services and assistance for prospective workers 
and recruitment services for employers through the Wagner-Peyser 
Program. Therefore, AJCs can offer assistance to employers with 
recruitment of U.S. workers, and contact with local AJCs will 
facilitate contemporaneous and effective recruitment activities that 
can broaden dissemination of the employer's job opportunity through 
connections with other partner programs within the One-Stop System to 
locate qualified U.S. workers to fill the employer's labor need. For 
example, the local AJC, working in concert with the SWA, can coordinate 
efforts to contact community-based organizations in the geographic area 
that serve potentially qualified workers or, when a job opportunity is 
in an occupation or industry that is traditionally or customarily 
unionized, the local AJC may be better positioned to identify and 
circulate the job order to appropriate local union(s) or hiring 
hall(s), consistent with 20 CFR 655.33(b)(5). In addition, as a partner 
program in the One-Stop System, AJCs are connected with the State's 
unemployment insurance program, thus an employer's connection with the 
AJC will help facilitate knowledge of the job opportunity to U.S. 
workers actively seeking employment. When contacting the AJC(s), the 
employer must provide staff with the job order number or, if the job 
order number is unavailable, a copy of the job order.
    To increase navigability and to make the process as convenient as 
possible, DOL offers an online service for employers to locate the 
nearest local AJC at https://www.careeronestop.org/ and by selecting 
the ``Find Local Help'' feature on the main homepage. This feature will 
navigate the employer to a search function called ``Find an American 
Job Center'' where the city, state or zip code covering the geographic 
area where work will commence can be entered. Once entered

[[Page 30355]]

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) of new 20 CFR 655.65 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)(xii) 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).
    When a job is in a traditionally or customarily unionized 
occupation or industry and during the time the SWA is actively 
circulating the job order, the employer must affirmatively contact the 
nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended employment 
to provide written notice of the job opportunity and request assistance 
in recruiting qualified U.S. workers who may be interested in applying 
for the job opportunity. The employer must provide the AFL-CIO office 
(by mail, email, or other effective written means) a copy of the job 
order placed with the SWA. To determine which occupations are 
traditionally or customarily unionized, and to obtain information about 
the proper AFL-CIO office to contact,\112\ employers should search the 
resources available on the OFLC website, under the ``Customarily 
Unionized H-2B Occupations'' tab on the lefthand side of the OFLC 
homepage: https://www.dol.gov/agencies/eta/foreign-labor.\113\
---------------------------------------------------------------------------

    \112\ The Departments have determined that the requirement for 
employers to contact the nearest AFL-CIO office properly balances 
the goal of increasing U.S. worker outreach in those H-2B job 
opportunities that are in traditionally or customarily unionized 
occupations, while still providing employers with necessary guidance 
on recruitment requirements. The AFL-CIO is a voluntary federation 
of 57 national and international labor unions coverying a 
substantial number of union employees. AFL-CIO, About Us, https://aflcio.org/about-us (last visited Apr. 21, 2022). The H-2B job 
opportunities in traditionally or customarily unionized occupations 
most frequentlyfall within those industries most likely to be 
organized or represented by AFL-CIO member unions.
    \113\ These resources were developed based on recent information 
received from stakeholders indicating that collective bargaining 
agreements now exist in certain occupations, such as landscaping. In 
addition, the occupations or industries listed are ones in which the 
Department has typically observed substantial union presence in its 
program administration experience, such as occupations involved in 
public sector employment, construction and extraction activities, 
and service related industries, where historical Bureau of Labor 
Statistics data has demonstrated a presence of union affiliated 
workers. See BLS, Economic News Release, Table 3. Union Affiliation 
of Employed Wage and Salary Workers by Occupation and Industry (Jan. 
20, 2022), https://www.bls.gov/news.release/union2.t03.htm.
---------------------------------------------------------------------------

    When applicable, the employer must include information in its 
recruitment report confirming that the AFL-CIO office was contacted and 
notified in writing of the job opportunity or opportunities. In the 
recruitment report, the employer must state whether the nearest AFL-CIO 
office referred qualified U.S. worker(s), including the number of 
referrals, or indicate that it was non-responsive to the employer's 
requests. The employer must retain all documentation establishing that 
it has contacted the AFL-CIO office and submit all such information 
upon request from the Departments. Documentation or evidence that would 
help employers establish that the appropriate AFL-CIO office was 
contacted, may include, but is not limited to: Documentation proving 
the job order was shipped and delivered to the AFL-CIO office (e.g., 
copy of the job order along with the certificate of shipment provided 
by the U.S. Postal Service or other courier mail or parcel delivery 
services and/or any other form of delivery confirmation); evidence 
confirming that the job order, along with a request for assistance to 
recruit workers, was in fact emailed to the appropriate AFL-CIO office 
(e.g., copies of emails); phone records accompanied by proof of a 
follow-up email sending the job order to the appropriate AFL-CIO 
office; or copies of any correspondence exchanged (e.g., letter, email) 
between the employer and the AFL-CIO office regarding worker referrals.
    We believe the requirement that employers contact the AFL-CIO in 
occupations or industries that are traditionally or customarily 
unionized will complement the requirement that SWAs circulate the job 
order to the State Federation of Labor and local unions in such 
situations, thereby increasing the likelihood that a U.S. worker will 
be recruited for the job opportunity. This is because in traditionally 
or customarily unionized industries and occupations,

[[Page 30356]]

unions serve as an essential conduit for communications between U.S. 
workers and hiring employers and have traditionally been recognized as 
a reliable source of referrals of U.S. workers. Unionized applicants 
may additionally share information about the job opportunity with 
nonunionized applicants, resulting in more referrals of qualified 
applicants to the job opportunity. Within this context, the two 
requirements complement each other as the State Federations of Labor 
and local unions that SWAs would circulate relevant job orders to, 
based on their knowledge of the local labor market, are comprised of 
various union organizations and may not always include the AFL-CIO. 
Since H-2B job opportunities in traditionally or customarily unionized 
occupations tend to fall within those industries most likely to be 
organized or represented by AFL-CIO member untions, the new requirement 
increases outreach to qualified U.S. workers. Moreover, the new 
requirement offers a chance for hiring employers to directly contact a 
potential pool of U.S. workers who are qualified and interested in the 
job opportunity, which can strengthen the probability that employers 
will locate U.S. workers suited for the job opportunity. For example, 
potential U.S. workers may be more inclined to contact an employer 
directly upon learning of the job opportunity rather than utilize the 
SWA as an intermediary since the application process could be quicker 
and demonstrate a willingness by employers to consider union workers. 
Direct contact between employers and unions may also initiate a 
dialogue between employers and unions that could lead to a future 
working relationship that fulfills the workforce needs of employers. 
Therefore, in providing timely and meaningful notice of job 
opportunities in traditionally or customarily unionized industries to 
the AFL-CIO, employers build on efforts by SWAs to circulate job orders 
to state and local unions, which may differ from the AFL-CIO, and thus 
broaden the scope of their U.S. worker outreach.
    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 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 30 or more days after 
their dates of need, they have not conducted recruitment recently 
enough for the Departments to reasonably conclude that there are 
currently an insufficient number of U.S. workers qualified, willing, 
and available to perform the work absent additional recruitment.
    Because of the abbreviated timeline for the additional recruitment 
required for employers whose initial recruitment has gone stale, the 
Departments have determined that 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, which ``enhance[s] protections for U.S. workers, 
to the maximum extent possible, while balancing the potential

[[Page 30357]]

costs to employers,'' and is consistent with the Departments' 
responsibility to ensure that these job opportunities are available to 
U.S. workers. 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)(28). 
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 the bargaining representative or AFL-CIO when 
required, contact with former U.S. workers, and compliance with Sec.  
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 655.65. 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; 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 655.66, 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 non-compliance with program requirements and the 
information gathered during the audit assists DOL in determining 
whether it needs to further investigate or debar an employer or its 
agent or attorney from future labor certifications.
    Under this rule, an employer may submit a petition to USCIS, 
including a valid TLC and Form ETA-9142B-CAA-6, 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)(xii), 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-6 to be an appendix to the Application for Temporary 
Employment Certification and the attestations contained on the Form 
ETA-9142B-CAA-6 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

[[Page 30358]]

the veracity of any attestations made on Form ETA-9142B-CAA-6 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-6 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 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 655.66, 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 supplemental cap authority 
in section 204 of Division O of the FY 2022 Omnibus, which was 
authorized only on March 15, 2022, and expires in less than five months 
on September 30, 2022.\114\ The Departments are bypassing advance 
notice and comment because of the exigency that created the new 
enactment, including the timeframe for action, as well as to urgently 
address increased labor demand \115\ and other conditions stemming from 
the economic consequences of the ongoing pandemic. A characteristic of 
the pandemic, the ``Great Resignation'' has resulted in an adverse 
impact on many employers in industries that frequently use the H-2B 
program,\116\ and recent reports suggest

[[Page 30359]]

that this trend is continuing in 2022.\117\ Furthermore, the pandemic 
has had an impact on inflation \118\ and supply chains.\119\ The war in 
Ukraine, has further strained the U.S. economy; U.S. Treasury Secretary 
Janet Yellen warned on April 6, 2022 about the economic shock waves set 
off by the war in Ukraine, including disruptions to the global flow of 
food and energy.\120\
---------------------------------------------------------------------------

    \114\ See Consolidated Appropriations Act, 2022, Division O, 
section 204. Public Law 117-103 (Mar. 15, 2022).
    \115\ Irina Ivanova, America's labor shortage is actually an 
immigrant shortage, CBS News, https://www.cbsnews.com/news/immigration-jobs-workers-labor-shortage/ (Apr. 8, 2022). (``U.S. 
employers say it's a hard time to find and keep talent. Workers are 
decamping at near-record rates, while millions of open jobs go 
unfilled. One reason for this labor crunch that has largely flown 
beneath the radar: Immigration to the U.S. is plummeting, a shift 
with potentially enormous long-term implications for the job 
market.'')
    \116\ See Megan Leonhardt, The Great Resignation is hitting 
these industries hardest, Fortune, https://fortune.com/2021/11/16/great-resignation-hitting-these-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 low-wage 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.'').
    \117\See Greg Iacurci, The Great Resignation continues, as 44% 
of workers look for a new job, CNBC, https://www.cnbc.com/2022/03/22/great-resignation-continues-as-44percent-of-workers-seek-a-new-job.html (Mar 22, 2022) (``Almost half of employees are looking for 
a new job or plan to soon, according to a survey, suggesting the 
pandemic-era phenomenon known as the Great Resignation is continuing 
into 2022. To that point, 44% of employees are ``job seekers,'' 
according to Willis Towers Watson's 2022 Global Benefits Attitudes 
Survey. Of them, 33% are active job hunters who looked for new work 
in the fourth quarter of 2021, and 11% planned to look in the first 
quarter of 2022.'').
    \118\ On April 12, 2022, BLS reported that the CPI-U increased 
1.2 percent in March on a seasonally adjusted basis after rising .8 
percent in February. Over the previous 12 months, the all items 
index increased 8.5 percent before seasonal adjustment. See BLS, 
Economic News Release, Consumer Price Index Summary (Apr. 12, 2022), 
https://www.bls.gov/news.release/archives/cpi_04122022.htm.
    \119\ See, 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-supply-chains-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.'').
    \120\ Anneken Tappe and Matt Egan, Janet Yellen warns of 
`enormous' economic repercussions from war in Ukraine, CNN Business, 
https://www.cnn.com/2022/04/06/economy/treasury-yellen-economic-impact-ukraine/index.html (Apr. 6, 2022)
---------------------------------------------------------------------------

    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,\121\ 
which is a month and a half earlier than when the statutory cap for the 
first half of FY 2020 was reached.\122\ Similarly, on February 25, 
2022, USCIS received sufficient petitions to meet the H-2B visa 
statutory cap for the second half of FY 2022. As discussed elsewhere in 
this preamble, DHS and DOL issued a temporary final rule to address the 
unmet needs of American businesses on January 28, 2022.\123\ Given the 
continued high demand of American businesses for H-2B workers, rapidly 
evolving economic conditions and increased labor demand, and the 
limited time remaining in the fiscal year 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,\124\ a decision to undertake notice and comment rulemaking 
would delay final action on this matter by months, and would, 
therefore, greatly complicate and potentially preclude the Departments 
from successfully exercising the authority created by section 204, 
Public Law 117-103.
---------------------------------------------------------------------------

    \121\ USCIS, USCIS Reaches H-2B Cap for First Half of FY 2022, 
https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021).
    \122\ November 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-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
    \123\ Exercise of Time-Limited Authority To Increase the Fiscal 
Year 2022 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 4722, (Jan. 28, 2022).
    \124\ See 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-disrupts-government-plans-to-lure-migrant-workers-as-labor-shortages-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.'').
---------------------------------------------------------------------------

    The temporary portability and change of employer provisions in 8 
CFR 214.2 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.\125\ This determination that a public health 
emergency exists due to COVID-19 has subsequently been renewed several 
times: On April 21, 2020, on July 23, 2020, on October 2, 2020, January 
7, 2021, on April 15, 2021, on July 19, 2021, on October 15, 2021, on 
January 14, 2022, and most recently, on April 12, 2022.\126\ 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.\127\ 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.\128\ 
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.\129\ 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.\130\ On November 19, 
2021, the Bureau of Consular Affairs announced that it would focus on 
reducing wait times for all consular services at U.S. embassies and 
consulates overseas while also protecting the health and safety of 
government staff and applicants but noted that local conditions and 
restrictions at individual consular posts may continue to fluctuate. 
The Bureau noted that embassies and consulates have broad discretion to 
determine how to prioritize visa appointments among the range of visa 
classes as safely as

[[Page 30360]]

possible, subject to local conditions and restrictions.\131\
---------------------------------------------------------------------------

    \125\ See HHS, 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).
    \126\ See HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx (Apr. 12, 2022).
    \127\ President 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).
    \128\ 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).
    \129\ https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
    \130\ 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-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \131\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Apr. 8, 2022).
---------------------------------------------------------------------------

    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.\132\ On January 22, 2022, similar 
requirements entered into force at land ports of entry and ferry 
terminals.\133\
---------------------------------------------------------------------------

    \132\ See 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC 
Order).
    \133\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United 
States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at 
United States-Canada border).
---------------------------------------------------------------------------

    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.\134\ On December 
28, 2021, the President revoked the November 26 Proclamation.\135\ 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 pre-
departure COVID-19 viral test taken the day before they board their 
flight to the United States, or documentation of recent recovery from 
COVID-19.\136\ Shifting requirements as well as varying availability of 
vaccines and tests in some H-2B nonimmigrants' home countries could 
complicate travel.
---------------------------------------------------------------------------

    \134\ See 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-proclamation-on-suspension-of-entry-as-immigrants-and-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019/.
    \135\ See A Proclamation on Revoking Proclamation 10315 (Dec. 
28, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/.
    \136\ See CDC, Requirement for Proof of Negative COVID-19 Test 
or Documentation of Recovery from COVID-19 (Dec. 2, 2021), published 
in the Federal Register at 86 FR 69256 on December 7, 2021.
---------------------------------------------------------------------------

    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. 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 temporarily 
allow job portability for H-2B workers 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 2022. 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.,\137\ and includes appropriate 
conditions to ensure that it affects only those businesses most in 
need, and also protects H-2B and U.S. workers.
---------------------------------------------------------------------------

    \137\ Because the Departments have issued this rule as a 
temporary final rule, the supplemental cap portion of this rule--
with the sole exception of the document retention requirements--will 
be of no effect after September 30, 2022. The ability to initiate 
emnployment with a new employer pursuant to the portability 
provisions of this rule expires at the end of on January 24, 2023.
---------------------------------------------------------------------------

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.

[[Page 30361]]

1. Summary
    With this temporary final rule (TFR), DHS is authorizing the 
immediate release of an additional 35,000 H-2B visas. By the authority 
given under section 204 of the Consolidated Appropriations Act, 2022, 
Public Law 117-103 (FY 2022 Omnibus), DHS is raising the H-2B cap by an 
additional 35,000 visas during FY 2022 for positions with start dates 
on or after April 1, 2022 through September 30, 2022 to businesses 
that: (1) Show that there are an insufficient number of U.S. workers to 
meet their needs in the second 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 Central American countries or Haiti. Additionally, up to 
11,500 of the 35,000 visas may be granted to workers from the Northern 
Central American 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 $22,107,261 to 
$24,255,601. This includes $12,702,940 in filing fees which are also 
transfers from the petitioners to USCIS to cover the full costs to 
USCIS related to new petitions. The estimated total cost to the Federal 
Government is $333,774. Therefore, DHS estimates that the total cost of 
this rule ranges from $22,441,035 to $24,589,375. 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; \138\
---------------------------------------------------------------------------

    \138\ See, 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).
---------------------------------------------------------------------------

    (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 11,500 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 Central American 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.

                          Table 1--Summary of the TFR's Provisions and Economic Impact
----------------------------------------------------------------------------------------------------------------
                                        Changes resulting from                             Expected benefits of
          Current provision             the provisions of the    Expected costs of the    the  provisions of the
                                                 TFR             provisions of the TFR             TFR
----------------------------------------------------------------------------------------------------------------
--The current statutory cap limits H-  --The amended            --The total estimated    --Form I-129
 2B visa allocations to 66,000          provisions will allow    cost to file Form I-     petitioners would be
 workers a year.                        for an additional        129 by human resource    able to hire temporary
                                        35,000 H-2B temporary    specialists is           workers needed to
                                        workers. Up to 11,500    approximately            prevent their
                                        of the 35,000            $2,886,332. The total    businesses from
                                        additional visas will    estimated cost to file   suffering irreparable
                                        be reserved for          Form I-129 and Form G-   harm.
                                        workers who are          28 will range from      --Businesses that are
                                        nationals of             approximately            dependent on the
                                        Guatemala, Honduras,     $3,214,372 if filed by   success of other
                                        El Salvador, and Haiti   in-house lawyers to      businesses that are
                                        and will be exempt       approximately            dependent on H-2B
                                        from the returning       $4,304,801 if filed by   workers would be
                                        worker requirement.      outsourced lawyers.      protected from the
                                                                 The total estimated      repercussions of local
                                                                 cost associated with     business failures.
                                                                 filing additional       --Some American workers
                                                                 petitions ranges from    may benefit to the
                                                                 $6,100,704 to            extent that they do
                                                                 $7,191,133 depending     not lose jobs through
                                                                 on the filer.            the reduced or closed
                                                                --The total estimated     business activity that
                                                                 costs associated with    might occur if fewer H-
                                                                 filing Form I-907 if     2B workers were
                                                                 it is filed with Form    available.
                                                                 I-129 is $5,015,304 if
                                                                 filed by human
                                                                 resource specialists.
                                                                 The total estimated
                                                                 costs associated with
                                                                 filing Form I-907
                                                                 would range from
                                                                 approximately
                                                                 $4,094,253 if filed by
                                                                 an in-house lawyer to
                                                                 approximately
                                                                 $4,208,844 if filed by
                                                                 an outsourced lawyer.
                                                                 The total estimated
                                                                 costs associated with
                                                                 requesting premium
                                                                 processing ranges from
                                                                 approximately
                                                                 $9,109,557 to
                                                                 approximately
                                                                 $9,224,148.
                                                                --The estimated total
                                                                 costs to petitioners
                                                                 range from $22,107,261
                                                                 to $24,255,601. This
                                                                 includes $12,702,940
                                                                 in filing fees which
                                                                 are also transfers
                                                                 from the petitioners
                                                                 to USCIS to cover the
                                                                 full to USCIS related
                                                                 to new petitions.
                                                                --Included in these
                                                                 costs are $3,845,440
                                                                 in filing fees
                                                                 associated with Form I-
                                                                 129 H-2B petitions and
                                                                 $8,857,500 in filing
                                                                 fees associated with
                                                                 premium processing
                                                                 requests.

[[Page 30362]]

 
                                       --Petitioners will be    --The total estimated    --Form ETA-9142-B-CAA-6
                                        required to fill out     cost to petitioners to   will serve as initial
                                        the newly created Form   complete and file Form   evidence to DHS that
                                        ETA-9142-B-CAA-6,        ETA-9142-B-CAA-6 is      the petitioner meets
                                        Attestation for          approximately            the irreparable harm
                                        Employers Seeking to     $2,574,553.              standard and returning
                                        Employ H-2B                                       worker requirements.
                                        Nonimmigrant Workers
                                        Under Section 105 of
                                        Div. O of the
                                        Consolidated
                                        Appropriations Act,
                                        2021.
                                       --Petitioners would be   --The total estimated    --The additional round
                                        required to conduct an   cost to petitioners to   of recruitment will
                                        additional round of      conduct an additional    ensure that a U.S.
                                        recruitment.             round of recruitment     worker that is willing
                                                                 is approximately         and able to fill the
                                                                 $932,362.                position is not
                                                                                          replaced by a
                                                                                          nonimmigrant worker.
                                       --An H-2B nonimmigrant   --The total estimated    --H-2B workers present
                                        who is physically        cost to file Form I-     in the United States
                                        present in the United    129 by human resource    will be able to port
                                        States may port to       specialists is           to another employer
                                        another employer.        approximately            and potentially extend
                                                                 $249,660. The total      their stay and,
                                                                 estimated cost to file   therefore, earn
                                                                 Form I-129 and Form G-   additional wages.
                                                                 28 will range from      --An H-2B worker with
                                                                 approximately $277,714   an employer that is
                                                                 if filed by in-house     not complying with H-
                                                                 lawyers to               2B program
                                                                 approximately $371,925   requirements would
                                                                 if filed by outsourced   have additional
                                                                 lawyers.                 flexibility in porting
                                                                --The total estimated     to another employer's
                                                                 costs associated with    certified position.
                                                                 filing Form I-907 if    --This provision would
                                                                 it is filed with Form    ensure employers will
                                                                 I-129 is $434,120 if     be able to hire the H-
                                                                 filed by human           2B workers they need.
                                                                 resource specialists.
                                                                 The total estimated
                                                                 costs associated with
                                                                 filing Form I-907
                                                                 would range from
                                                                 approximately $354,190
                                                                 if filed by an in-
                                                                 house lawyer to
                                                                 approximately $364,103
                                                                 if filed by an
                                                                 outsourced lawyer.
                                                                --The total estimated
                                                                 costs associated with
                                                                 the portability
                                                                 provision ranges from
                                                                 $1,315,684 to
                                                                 $1,419,808, 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.
                                       --Employers of H-2B      --The total estimated    --Workers would be
                                        workers would be         cost to petitioners to   given information
                                        required to provide      provide COVID-19         about equal access to
                                        information about        vaccines and             vaccines and
                                        equal access to COVID-   vaccination              vaccination
                                        19 vaccines and          distribution site        distribution.
                                        vaccination              information is
                                        distribution sites.      approximately $1,891.
                                       --DHS and DOL intend to  --Employers will have    --DOL and DHS audits
                                        conduct several audits   to comply with audits    will yield evidence of
                                        during the period of     for an estimated total   the efficacy of
                                        temporary need to        opportunity cost of      attestations in
                                        verify compliance with   time of $207,060.        enforcing compliance
                                        H-2B program            --It is expected both     with H-2B supplemental
                                        requirements,            DHS and DOL will be      cap requirements.
                                        including the            able to shift           --Conducting a
                                        irreparable harm         resources to be able     significant number of
                                        standard as well as      to conduct these         audits will discourage
                                        other key worker         audits without           uncorroborated
                                        protection provisions    incurring additional     attestations.
                                        implemented through      costs. However, the
                                        this rule.               Departments will incur
                                                                 opportunity costs of
                                                                 time. The audits are
                                                                 expected to take a
                                                                 total of approximately
                                                                 4,200 hours and cost
                                                                 approximately $333,774.
Additional Scrutiny..................  --Some petitioners will  --Some employers will    --Additional scrutiny
                                        provide additional       need to print and ship   of employers with past
                                        evidence.                additional evidence to   H-2B program
                                                                 USCIS. The estimated     violations are aimed
                                                                 costs to comply with     at ensuring compliance
                                                                 additional evidentiary   with program
                                                                 requirements is          requirements, reducing
                                                                 $19,375.                 harms to both U.S.
                                                                                          workers and H-2B
                                                                                          workers.
Familiarization Cost.................  --Petitioners or their   --Petitioners or their   --Petitioners will have
                                        representatives will     representatives will     the necessary
                                        familiarize themselves   need to read and         information to take
                                        with the rule.           understand the rule at   advantage of and
                                                                 an estimated total       comply with the
                                                                 opportunity costs of     provisions of this
                                                                 time that ranges from    rule.
                                                                 $1,846,075 to
                                                                 $2,685,271.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.


[[Page 30363]]

2. Background and Purpose of the Temporary Rule
    The H-2B visa classification program was designed to serve U.S. 
businesses that are unable to find enough U.S. workers to perform 
nonagricultural work of a temporary 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.\139\ The current INA statute sets the 
annual number of H-2B visas for workers performing temporary 
nonagricultural work at 66,000 to be distributed semi-annually 
beginning in October (33,000) and in April (33,000).\140\ 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.\141\ 
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.
---------------------------------------------------------------------------

    \139\ Revised effective 1/18/2009; 73 FR 78104; 74 FR 2837.
    \140\ See 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).
    \141\ A Temporary Labor Certification (TLC) approved by the 
Department of Labor must accompany an H-2B petition. The employment 
start date stated on the petition must match the start date listed 
on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
---------------------------------------------------------------------------

    On March 15, 2022, the President signed the FY 2022 Omnibus that 
contains a provision (Sec. 204 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. 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 35,000 visas for FY 2022 positions with start dates 
on or before September 30, 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 the H-2B workers requested on their petition. The Secretary 
has determined that up to 23,500 of the 35,000 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 
11,500 of the 35,000 additional visas will be reserved for workers who 
are nationals of Guatemala, Honduras, El Salvador, and Haiti, and that 
these 11,500 workers will be exempt from the returning worker 
requirement. Once the 11,500 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.
3. 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 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 September 30, 2022,\142\ DHS believes that it is reasonable to 
assume that eligible petitioners for these additional 35,000 visas will 
generally be those employers that have already completed the steps to 
receive an approved TLC prior to the issuance of this rule.
---------------------------------------------------------------------------

    \142\ This 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).
---------------------------------------------------------------------------

    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.
a. Population That Will File a Form I-129, Petition for a Nonimmigrant 
Worker \143\
---------------------------------------------------------------------------

    \143\ Source: DOL OFLC memo to USCIS Office of Policy and 
Strategy March 31, 2022.
---------------------------------------------------------------------------

    According to DOL OFLC's certification data for FY 2022, as of March 
31, 2022, about 9,359 TLCs for 154,525 H-2B positions were received 
with expected work start dates between April 1, 2022 and September 30, 
2022. DOL OFLC has approved 4,771 certifications for 79,947 H-2B 
positions and is still reviewing 3,804 TLC requests for 60,295 H-2B 
positions. DOL OFLC has denied, withdrawn, rejected, or returned 784 
certifications for 14,283 H-2B positions.\144\ However, many of these 
certified worker positions have already been filled under the semi-
annual cap of 33,000 and, for approximately 10.4 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.\145\ Additionally, based on the average TLC requests received 
for work start dates between June 15 and September 30 during FY 2019-
2021, DOL OFLC estimates that it may receive another 75 TLC requests 
covering approximately 1,200 H-2B worker positions for the remainder of 
fiscal year 2022 ending on September 30, 2022. The estimated total of 
approved, pending, and projected future TLCs, as of March 31, 2022, is 
6,304 for 141,442 H-2B worker positions.\146\ Assuming 10.4 percent of 
the approved, pending, and projected 141,442 H-2B worker petitions will 
be exempt from the statutory visa cap, we estimate

[[Page 30364]]

applications requesting approximately 126,732 H-2B beneficiaries.\147\
---------------------------------------------------------------------------

    \144\ As of March 31, 2022, DOL OFLC had denied 176 applications 
for 3,405 positions and rejected 39 applications for 589 positions. 
Employers had withdrawn 569 applications for 10,289 positions. This 
totals 784 applications for 14,283 positions either denied, 
rejected, or withdrawn.
    \145\ Of the 79,947 certified H-2B worker positions, 
approximately 7.4 percent (5,940 certified H-2B worker positions) 
may be employed by employers under a cap exempt status. Of the 
60,295 H-2B workers positions requested for certification and still 
under DOL review, approximately 14.3 percent (8,639 pending H-2B 
worker positions) may be employed by employers under a cap exempt 
status. This totals 14,579 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 10.4 percent of all 
140,242 positions associated with approved and pending TLCs.
    \146\ Calculation for petitioners: 4,771 approved certifications 
+ 3,804 pending certifications + 75 expected certifications = 6,304 
estimated total certifications.
    Calculation for beneficiaries: 79,947 approved TLC positions + 
60,295 pending TLC positions + 1,200 expected TLC positions = 
141,442 total estimated TLC positions.
    \147\ Calculation: 141,442 approved, pending, and projected H-2B 
worker positions * 89.6% of requested workers not being exempt from 
the statutory cap = 126,732 requested H-2B beneficiaries subject to 
the statutory cap.
---------------------------------------------------------------------------

    Of the estimated total 8,650 certified Applications for Temporary 
Employment Certification, USCIS data shows that 2,346 H-2B petitions 
for 39,254 positions with approved certifications were already filed 
toward the first semi-annual cap of 33,000 visas.\148\ Therefore, we 
estimate that approximately 6,304 Applications for Temporary Employment 
Certification may be filed towards this FY 2022 supplemental cap.\149\ 
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 Central American Countries/Haiti cap. At this time, 
USCIS cannot predict how many employers will choose to take advantage 
of this set-aside, and therefore recognize that the number of petitions 
may be underestimated.
---------------------------------------------------------------------------

    \148\ USCIS Claims3 database, queried using the SMART utility by 
the USCIS Office of Policy and Strategy on March 31, 2022.
    \149\ Calculation: 8,650 approved, pending, and projected TLCs-
2,346 petitions for H-2B workers = 6,304 expected additional 
petitions for H-2B workers.
---------------------------------------------------------------------------

b. Population That Files Form G-28, Notice of Entry of Appearance as 
Attorney or Accredited Representative
    If a lawyer or accredited representative submits Form I-129 on 
behalf of the petitioner, Form G-28, Notice of Entry of Appearance as 
Attorney or Accredited Representative, must accompany the Form I-129 
submission.\150\ Using data from FY 2017 to FY 2021, we estimate that 
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 2,801 Forms I-129 and Forms G-28 will be 
filed by in-house or outsourced lawyers, and that 3,503 Forms I-129 
will be filed by human resources (HR) specialists.\151\
---------------------------------------------------------------------------

    \150\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \151\ Calculation: 6,304 estimated additional petitions * 44.43 
percent of petitions filed by a lawyer = 2,801 (rounded) petitions 
filed by a lawyer.
    Calculation: 6,304 estimated additional petitions-2,801 
petitions filed by a lawyer = 3,503 petitions filed by an HR 
specialist.

                 Table 2--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form G-28
                                                 [FY 2017-2021]
----------------------------------------------------------------------------------------------------------------
                                                         Number of Form I-                     Percent of Form I-
                                                              129 H-2B       Total Number of        129 H-2B
                      Fiscal year                            petitions       Form I-129 H-2B       petitions
                                                          accompanied by a      petitions       accompanied by a
                                                             Form G-28           received          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.

c. Population That Files Form I-907, Request for Premium Processing 
Service
    Employers may use Form I-907, Request for Premium Processing 
Service, to request faster processing of their Form I-129 petitions for 
H-2B visas. Table 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 5,905 Forms I-907 will be 
filed with the Forms I-129 as a result of this rule.\152\ Of these 
5,905 premium processing requests, we estimate that 2,624 Forms I-907 
will be filed by in-house or outsourced lawyers and 3,281 will be filed 
by HR specialists.\153\
---------------------------------------------------------------------------

    \152\ Calculation: 6,304 estimated additional petitions * 93.67 
percent premium processing filing rate = 5,905 (rounded) additional 
Form I-907.
    \153\ Calculation: 5,905 additional Form I-907 * 44.43 percent 
of petitioners represented by a lawyer = 2,624 (rounded) additional 
Form I-907 filed by a lawyer.
    Calculation: 5,905 additional Form I-907-2,624 additional Form 
I-907 filed by a lawyer = 3,281 additional Form I-907 filed by an HR 
specialist.

[[Page 30365]]



                Table 3--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form I-907
                                                 [FY 2017-2021]
----------------------------------------------------------------------------------------------------------------
                                                         Number of Form I-                     Percent of Form I-
                                                              129 H-2B       Total number of        129 H-2B
                      Fiscal year                            petitions       Form I-129 H-2B       petitions
                                                           accompanied by       petitions        accompanied by
                                                             Form I-907          received          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.

d. Population That Files Form ETA-9142-B-CAA-6, Attestation for 
Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 204 
of Division O of the Consolidated Appropriations Act, 2022, Public Law 
117-103
    Petitioners seeking to take advantage of this FY 2022 H-2B 
supplemental visa cap will need to file a Form ETA-9142-B-CAA-6 
attesting that their business is suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all the 
H-2B workers requested on the petition, comply with third party 
notification, and maintain required records, among other requirements. 
DOL estimates that each of the 6,304 petitions will need to be 
accompanied by Form ETA-9142-B-CAA-6 and petitioners filing these 
petitions and attestations will need to comply with its provisions.
e. 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, the 20,000 additional H-2B 
workers authorized by the previous supplemental cap, and the 35,000 
additional H-2B workers authorized by this regulation as a proxy for 
the H-2B population that could be currently present in the United 
States.\154\ We use the number of approved, pending, and projected TLCs 
(8,650) 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.
---------------------------------------------------------------------------

    \154\ H-2B workers may have varying lengths in time approved on 
their H-2B visas. This number may overestimate H-2B workers who have 
already completed employment and departed and may underestimate H-2B 
workers not reflected in the current cap and long-term H-2B workers. 
In FY 2021, 735 requests for change of status to H-2B were approved 
by USCIS and 1,341 crossings of visa-exempt H-2B workers were 
processed by Customs and Border Protection (CBP). See 
Characteristics of H-2B Nonagricultural Temporary Workers FY2021 
Report to Congress at https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (accessed 
April 4, 2022). USCIS assumes some of these workers, along with 
current workers with a valid H-2B visa under the cap, could be 
eligible to port under this new provision. USCIS does not know the 
exact number of H-2B workers who would be eligible to port at this 
time but uses the cap and supplemental cap allocations as a possible 
proxy for this population.

 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]
----------------------------------------------------------------------------------------------------------------
                                                                                               Rate of extension
                                                          Form I-129 H-2B                       to  stay due to
                                                          petitions filed    Form I-129 H-2B       change of
                      Fiscal year                        for extension  of   petitions filed    employer filings
                                                            stay  due to         for new        relative  to new
                                                             change of          employment         employment
                                                              employer                              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

[[Page 30366]]

 
2020...................................................                804              3,997              0.201
                                                        --------------------------------------------------------
    FY 2011-2020 Total.................................              4,990             47,389              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 1,114 Forms I-129 filed for extension 
of stay due to change of employer compared to 7,206 Forms I-129 filed 
for new employment.\155\ As of March 31, 2022, another year where the 
H-2B supplemental cap included a portability provision, there have been 
614 Form I-129 filed for extension of stay due to change of employer 
compared to 3,062 Forms I-129 filed for new employment.\156\ Over the 
period when a portability provision was in place for H-2B workers, the 
rate of Form I-129 for extension of stay due to change of employer 
relative to new employment is 16.8 percent.\157\ This is above the 10.5 
percent rate expected without a portability provision. 16.8 percent is 
our estimate of the rate expected in periods with a portability 
provision in the supplemental visa allocation. Using the 8,650 as our 
estimate for the number of Forms I-129 filed for H-2B new employment in 
the second half of FY 2022, we estimate that 908 Forms I-129 for 
extension of stay due to change of employer would be filed in absence 
of this provision.\158\ With this portability provision, we estimate 
that 1,453 Forms I-129 for extension of stay due to change of employer 
would be filed.\159\ This difference results in 545 additional Forms I-
129 as a result of this provision.\160\ As previously estimated, we 
expect that about 44.43 percent of Form I-129 petitions will be filed 
by an in-house or outsourced lawyer. Therefore, we expect that 242 of 
these petitions will be filed by a lawyer and the remaining 303 will be 
filed by a HR specialist.\161\ 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 
portability provision, we expect that an additional 511 Forms I-907 
will be filed.\162\ We expect 227 of those Forms I-907 will be filed by 
a lawyer and the remaining 284 will be filed by an HR specialist.\163\
---------------------------------------------------------------------------

    \155\ USCIS Claims3 database, queried using the SMART utility by 
the USCIS Office of Policy and Strategy on March 31, 2022.
    \156\ USCIS Claims3 database, queried using the SMART utility by 
the USCIS Office of Policy and Strategy on March 31, 2022.
    \157\ Calculation, Step 1: 1,114 Form I-129 petitions for 
extension of stay due to change of employer FY 2021 + 614 Form I-129 
petitions for extension of stay due to change of employer FY 2022 as 
of March 31, 2022 = 1,728 Form I-129 petitions filed extension of 
stay sue to change of employer in portability provision years.
    Calculation, Step 2: 7,206 Form I-129 petitions filed for new 
employment in FY 2021 + 3,062 Form I-129 petitions filed for new 
employment in FY 2022 as of March 31, 2022 = 10,268 Form I-129 
petitions filed for new employment in portability provision years.
    Calculation, Step 3: 1,728 extension of stay due to change of 
employment petitions/10,268 new employment petitions = 16.8 percent 
rate of extension of stay due to change of employment to new 
employment.
    \158\ Calculation: 8,650 Form I-129 H-2B petitions filed for new 
employment * 10.5 percent = 908 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision.
    \159\ Calculation: 8,650 Form I-129 H-2B petitions filed for new 
employment * 16.8 percent = 1,453 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer, 
with a portability provision.
    \160\ Calculation: 1,453 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision-908 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision = 545 Form I-129 H-2B petition increase as a 
result of portability provision.
    \161\ Calculation, Lawyers: 545 additional Form I-129 due to 
portability provision * 44.43 percent of Form I-129 for H-2B 
positions filed by an attorney or accredited representative = 242 
(rounded) estimated Form I-129 filed by a lawyer.
    Calculation, HR specialist: 545 additional Form I-129 due to 
portability provision -242 estimated Form I-129 filed by a lawyer = 
303 estimated Form I-129 filed by an HR specialist.
    \162\ Calculation: 8,650 Form I-129 H-2B petitions * 93.67 
percent premium processing filing rate = 511 Forms I-907.
    \163\ Calculation, Lawyers: 511 Forms I-907 * 44.43 percent 
filed by an attorney or accredited representative = 227 Forms I-907 
filed by a lawyer.
    Calculation, HR specialists: 511 Forms I-907-227 Forms I-907 
filed by a lawyer = 284 Forms I-907 filed by an HR specialist.
---------------------------------------------------------------------------

f. Population Affected by the Audits
    Under this time-limited FY 2022 H-2B supplemental cap rule, DHS 
intends to conduct 250 audits of employers hiring H-2B workers and DOL 
intends to conduct 100 audits of employers hiring H-2B workers. The 
determination of which employers 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 
350 audits on employers that petition for H-2B workers under this TFR 
will be conducted by the Federal Government.\164\
---------------------------------------------------------------------------

    \164\ These 350 audits are separate and distinct from WHD's 
investigations pursuant to its existing enforcement authority.
---------------------------------------------------------------------------

g. Population Affected by Additional Scrutiny
    DHS expects that petitioners who have been cited by WHD for H-2B 
program violations will undergo additional scrutiny from USCIS. To 
estimate the number of firms expected to undergo increased scrutiny, we 
utilize DOL's Wage and Hour Compliance Action Data.\165\ The data 
available here is for concluded cases. Table 5 presents the number of 
employers that were cited for H-2B violations that have a worker 
protection violation end date in FYs 2017-2021.
---------------------------------------------------------------------------

    \165\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed April 6, 2022).
---------------------------------------------------------------------------

    The worker protection violation end date is established based on 
the ``findings end date'' which represents the date that the last 
worker protection

[[Page 30367]]

violation occurred in the concluded case. During FY 2017-2021, on 
average 69 (rounded) employers that were cited for H-2B violations had 
a worker protection violation end date each year. USCIS intends to 
request evidence from employers cited for H-2B violations with a worker 
protection violation end date in the last two years. Therefore, for 
purposes of this analysis, we expect 138 petitioners will undergo 
additional scrutiny from USCIS.\166\
---------------------------------------------------------------------------

    \166\ It is possible not every employer that has been cited for 
an H-2B violation in the last two years will petition for H-2B 
employees under this supplemental cap authority. DHS considers an 
upper limit of 138 to be a reasonable estimate of the number of 
petitioners that would undergo additional scrutiny.

Table 5--Employers With H-2B Violations With Worker Protection Violation
                        End Date in FY 2017-2021
------------------------------------------------------------------------
                                                     Employers cited for
                                                    H-2B violations with
                    Fiscal year                       worker protection
                                                     violation end date
                                                       in fiscal year
------------------------------------------------------------------------
2017..............................................                    62
2018..............................................                    86
2019..............................................                   104
2020..............................................                    65
2021..............................................                    29
                                                   ---------------------
  Five-year Average (rounded).....................                    69
------------------------------------------------------------------------
Source: USCIS analysis of DOL Wage and Hour Compliance Action Data.

h. Population Expected To Familiarize Themselves With This Rule
    DHS expects the population of employers with approved, pending, or 
projected Applications for Temporary Employment Certification will need 
to familiarize themselves with this rule; an estimated 8,650 employers. 
We use the 8,650 population, rather than the estimated 6,304 expected 
to file a petition, because the portability provision is expected to be 
available to 8,650 potential filers. As discussed above, we do not 
expect all of these potential filers to take advantage of the 
portability provision; we do expect that they will read and understand 
the rule to inform a decision about using the portability provision.
    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 3,843 
lawyers will incur familiarization costs and 4,807 HR specialists will 
incur familiarization costs.\167\
---------------------------------------------------------------------------

    \167\ Calculation for lawyers: 8,650 approved, pending, and 
projected applicants * 44.43 percent represents by a lawyer = 3,843 
(rounded) represented by a lawyer.
    Calculation for HR specialists: 8,650 approved, pending, and 
projected applicants -3,843 represented by a lawyer = 4,807 
represented by an HR specialist.
---------------------------------------------------------------------------

4. Cost-Benefit Analysis
    The provisions of this rule require the submission of a Form I-129 
H-2B petition. The costs for this form include 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.\168\ These filing fees are not a 
cost to society but a transfer from the petitioner to USCIS in exchange 
for agency services. In this case the filing fee is a also proxy for 
the total costs incurred by USCIS during the process of adjudicating a 
Form I-129 H-2B petition at the request of the petitioner.
---------------------------------------------------------------------------

    \168\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed March 
30, 2022). See also 8 U.S.C. 1184(c)(13).
---------------------------------------------------------------------------

    The total estimated cost from filing fees for H-2B petitions using 
Form I-129 is $610.\169\ The estimated time to complete and file Form 
I-129 for H-2B classification is 4.34 hours.\170\ 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.
---------------------------------------------------------------------------

    \169\ Calculation: $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.
    \170\ The public reporting burden for this form is 2.34 hours 
for Form I-129 and an additional 2.00 hours for H Classification 
Supplement, totaling 4.34 hours. See Form I-129 instructions at 
https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed March 30, 2022).
---------------------------------------------------------------------------

    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 $34.00 as the base wage rate.\171\ If petitioners 
hire an in-house or outsourced lawyer to file Form I-129 on their 
behalf, DHS uses the mean hourly wage rate $71.71 as the base wage 
rate.\172\ 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.\173\ DHS multiplied the average hourly U.S. wage rate for 
HR specialists and for in-house lawyers by the benefits-to-wage 
multiplier of 1.45 to estimate total compensation to employees. The 
total compensation for an HR specialist is $49.30 per hour, and the 
total compensation for an in-house lawyer is $103.98 per hour.\174\ 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.\175\ DHS estimates the total

[[Page 30368]]

compensation for an outsourced lawyer is $179.28 per hour.\176\ If a 
lawyer submits Form I-129 on behalf of the petitioner, Form G-28 must 
accompany the Form I-129 petition.\177\ DHS estimates the time burden 
to complete and submit Form G-28 for a lawyer is 50 minutes (0.83 hour, 
rounded).\178\ 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.\179\ Therefore, the total opportunity cost of time per petition 
for an HR specialist to complete and file Form I-129 is approximately 
$213.96, for an in-house lawyer to complete and file Forms I-129 and G-
28 is about $537.58, and for an outsourced lawyer to complete and file 
is approximately $926.88.\180\ The total cost, including filing fees 
and opportunity costs of time, per petitioner to file Form I-129 is 
approximately $823.96 if filed by an HR specialist, $1,147.58 if filed 
by an in-house lawyer, and $1,536.88 if filed by an outsourced 
lawyer.\181\
---------------------------------------------------------------------------

    \171\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2021 National Occupational Employment and Wage Statistics'' 
Human Resources Specialist (13-1071), Mean Hourly Wage, available at 
https://www.bls.gov/oes/2021/may/oes131071.htm (accessed March 31, 
2022).
    \172\ U.S. Department of Labor, Bureau of Labor Statistics. 
``May 2021 National Occupational Employment and Wage Estimates'' 
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/oes/2021/may/oes231011.htm (accessed March 31, 2022).
    \173\ Calculation: $40.35 mean Total Employee Compensation per 
hour for civilian workers / $27.83 mean Wages and Salaries per hour 
for civilian workers = 1.45 benefits-to-wage multiplier. See 
Economic News Release, Bureau of Labor Statistics, U.S. Department 
of Labor, Employer Costs for Employee Compensation--December 2021 
Table 1. Employer Costs for Employee Compensation by ownership, 
Civilian workers, available at https://www.bls.gov/news.release/archives/ecec_03182022.pdf (accessed March 30, 2022).
    \174\ Calculation, HR specialist: $34.00 mean hourly wage * 1.45 
benefits-to-wage multiplier = $49.30 hourly total compensation 
(hourly opportunity cost of time).
    Calculation, In-house Lawyer: $71.71 mean hourly wage * 1.45 
benefits-to-wage multiplier = $103.98 hourly total compensation 
(hourly opportunity cost of time).
    \175\ The DHS ICE ``Safe-Harbor Procedures for Employers Who 
Receive a No-Match Letter'' acknowledges that ``the cost of hiring 
services provided by an outside vendor or contractor is two to three 
times more expensive than the wages paid by the employer for that 
service produced by an in-house employee'', based on information 
received in public comment to that rule. We believe the explanation 
and methodology used in the Final Small Entity Impact Analysis 
(SEIA) remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule, October 28, 2008, 73 FR 63843, available 
at https://www.regulations.gov/document/ICEB-2006-0004-0921 
(accessed April 5, 2022). Also see ``Exercise of Time-Limited 
Authority To Increase the Fiscal Year 2022 Numerical Limitation for 
the H-2B Temporary Nonagricultural Worker Program and Portability 
Flexibility for H-2B Workers Seeking To Change Employers.'' January 
28, 2022, 87 FR 4722. Available at https://www.regulations.gov/document/DHS-2022-0010-0001 (accessed April 5, 2022).
    \176\ Calculation, Outsourced Lawyer: $71.71 mean hourly wage * 
2.5 benefits-to-wage multiplier = $179.28 hourly total compensation 
(hourly opportunity cost of time).
    \177\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed April 4, 2022).
    \178\ USCIS, G-28, Instructions for Notice of Entry of 
Appearance as Attorney or Accredited Representative, https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf.
    Calculation: 50 minutes / 60 minutes per hour = 0.83 hour 
(rounded).
    \179\ Calculation: 0.83 hour to file Form G-28 + 4.34 hours to 
file Form I-129 = 5.17 hours to file both forms.
    \180\ Calculation, HR specialist files Form I-129: $49.30 hourly 
opportunity cost of time * 4.34 hours = $213.96 opportunity cost of 
time per petition.
    Calculation, In-house Lawyer files Form I-129 and Form G-28: 
$103.98 hourly opportunity cost of time * 5.17 hours = $537.58 
opportunity cost of time per petition.
    Calculation, Outsourced Lawyer files Form I-129 and Form G-28: 
$179.28 hourly opportunity cost of time * 5.17 hours = $926.88 
opportunity cost of time per petition.
    \181\ Calculation, HR specialist: $213.96 opportunity cost of 
time + $610 filing fees = $823.96 cost per petition.
    Calculation, In-house Lawyer: $537.58 opportunity cost of time + 
$610 filing fees = $1,147.58 cost per petition.
    Calculation, Outsourced Lawyer: $926.88 opportunity cost of time 
+ $610 filing fees = $1,536.88 cost per petition.
---------------------------------------------------------------------------

a. Cost to Petitioners
    As mentioned in Section 3, the estimated population impacted by 
this rule is 6,304 eligible petitioners who are projected to apply for 
the additional 35,000 H-2B visas for the second half of FY 2022, with 
11,500 of the additional visas reserved for employers that will 
petition for workers who are nationals of the Northern Central American 
countries and Haiti, who are exempt from the returning worker 
requirement.
i. Costs to Petitioners To File Form I-129 and Form G-28
    As discussed above, DHS estimates that an additional 3,503 
petitions will be filed by HR specialists using Form I-129 and an 
additional 2,801 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 $2,886,332 (rounded).\182\ DHS 
estimates total cost to file Form I-129 petitions and Form G-28 if 
filed by lawyers will range from $3,214,372 (rounded) if only in-house 
lawyers file these forms to $4,304,801 (rounded) if only outsourced 
lawyers file them.\183\ Therefore, the estimated total cost to file 
Form I-129 and Form G-28 range from $6,100,704 and $7,191,133.\184\
---------------------------------------------------------------------------

    \182\ Calculation, HR specialist: $823.96 cost per petition * 
3,503 Form I-129 = $2,886,332 (rounded) total cost.
    \183\ Calculation, In-house Lawyer: $1,147.58 cost per petition 
* 2,801 Form I-129 and Form G-28 = $3,214,372 (rounded) total cost.
    Calculation, HR specialist: $1,536.88 cost per petition * 2,801 
Form I-129 and Form G-28 = $4,304,801 (rounded) total cost.
    \184\ Calculation: $2,886,332 total cost of Form I-129 filed by 
HR specialists + $3,214,372 total cost of Form I-129 and Form G-28 
filed by in-house lawyers = $6,100,704 estimated total costs to file 
Form I-129 and G-28.
    Calculation: $2,886,332 total cost of Form I-129 filed by HR 
specialists + $4,304,801 total cost of Form I-129 and G-28 filed by 
outsourced lawyers = $7,191,133 estimated total costs to file Form 
I-129 and G-28.
---------------------------------------------------------------------------

ii. Costs to File Form I-907
    Employers may use Form I-907 to request premium processing of Form 
I-129 petitions for H-2B visas. The filing fee for Form I-907 for H-2B 
petitions is $1,500 and the time burden for completing the form is 35 
minutes (0.58 hour).<SUP>185 186</SUP> Using the wage rates established 
previously, the opportunity cost of time to file Form I-907 is 
approximately $28.59 for an HR specialist, $60.31 for an in-house 
lawyer, and $103.98 for an outsourced lawyer.\187\ Therefore, the total 
filing cost to complete and submit Form I-907 per petitioner is 
approximately $1,528.59 for HR specialists, $1,560.31 for in-house 
lawyers, and $1,603.98 for outsourced lawyers.\188\
---------------------------------------------------------------------------

    \185\ The filing fee is a transfer from the petitioner 
requesting premium processing and also a proxy for the total costs 
to USCIS.
    \186\ See Form I-907 instructions at https://www.uscis.gov/i-907 
(accessed December 1, 2021).
    Calculation: 35 minutes/60 minutes per hour = 0.58 (rounded) 
hour.
    \187\ Calculation, HR specialist Form I-907: $49.30 hourly 
opportunity cost of time * 0.58 hour = $28.59 opportunity cost of 
time per request.
    Calculation, In-house Lawyer Form I-907: $103.98 hourly 
opportunity cost of time * 0.58 hour = $60.31 opportunity cost of 
time per request.
    Calculation, Outsourced Lawyer Form I-907: $179.28 hourly 
opportunity cost of time * 0.58 hour = $103.98 opportunity cost of 
time per request.
    \188\ Calculation, HR specialist: $28.59 opportunity cost of 
time + $1,500 filing fee = $1,528.59.
    Calculation, In-house Lawyer: $60.31 opportunity cost of time + 
$1,500 filing fee = $1,560.31.
    Calculation, Outsourced Lawyer: $103.98 opportunity cost of time 
+ $1,500 filing fee = $1,603.98.
---------------------------------------------------------------------------

    As discussed above, DHS estimates that an additional 3,281 Form I-
907 will be filed by HR specialists and an additional 2,624 Form I-907 
will be filed lawyers. DHS estimates the total cost of Form I-907 filed 
by HR specialists is about $5,015,304 (rounded).\189\ DHS estimates 
total cost to file Form I-907 filed by lawyers range from about 
$4,094,253 (rounded) for only in-house lawyers to $4,208,844 (rounded) 
for only outsourced lawyers.\190\ The estimated total cost to file Form 
I-907 range from $9,109,557 and $9,224,148.\191\
---------------------------------------------------------------------------

    \189\ Calculation, HR specialist: $1,528.59 opportunity costs 
plus filing fees * 3,281 Form I-907 = $5,015,304 (rounded) total 
cost of Form I-907 filed by HR specialists.
    \190\ Calculation, In-house Lawyer: $1,560.31 opportunity costs 
plus filing fees * 2,624 Form I-907 = $4,094,253 (rounded) total 
cost of Form I-907 filed by in-house lawyers.
    Calculation: $1,603.98 opportunity costs plus filing fees * 
2,624 Form I-907 = $4,208,844 (rounded) total cost of Form I-907 
filed by outsourced lawyers.
    \191\ Calculation: $5,015,304 total cost of Form I-907 filed by 
HR specialists + $4,094,253 total cost of Form I-907 filed by in-
house lawyers = $9,109,557 estimated total costs to file Form I-907.
    Calculation: $5,015,304 total cost of Form I-129 filed by HR 
specialists + $4,208,844 total cost of Form I-907 filed by 
outsourced lawyers = $9,224,148 estimated total costs to file Form 
I-907.
---------------------------------------------------------------------------

iii. Cost To File Form ETA-9142-B-CAA-6
    Form ETA-9142-B-CAA-6 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 
0.50 hours to comply with the returning workers' attestation, for a 
total time burden of 1 hour. Using the $49.30 hourly total compensation 
for an HR specialist, the opportunity cost of time for an HR specialist 
to complete the attestation form, notify third parties, and retain 
records relating to the returning worker

[[Page 30369]]

requirements is approximately $49.30.\192\
---------------------------------------------------------------------------

    \192\ Calculation: $49.30 hourly opportunity cost of time * 1-
hour time burden for the new attestation form and notifying third 
parties and retaining records related to the returning worker 
requirements = $49.30.
---------------------------------------------------------------------------

    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 mean hourly wage for a financial analyst is $49.53, and the 
estimated hourly total compensation for a financial analyst is 
$71.82.<SUP>193 194</SUP> DOL estimates the time burden for these tasks 
is at least 4 hours, and 1 hour for gathering and retaining documents 
and records, for a total time burden of 5 hours. Therefore, the total 
opportunity cost of time for a financial analyst to assess, document, 
and retain supporting evidence is approximately $359.10.\195\
---------------------------------------------------------------------------

    \193\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2021 National Occupational Employment and Wage Statistics'' 
Financial and Investment Analysts (13-2051), https://www.bls.gov/oes/2021/may/oes132051.htm (accessed March 31, 2022).
    \194\ Calculation: $49.53 mean hourly wage for a financial 
analyst * 1.45 benefits-to-wage multiplier = $71.82.
    \195\ Calculation: $71.82 estimated total compensation for a 
financial analyst * 5 hours to meet the requirements of the 
irreparable harm standard = $359.10.
---------------------------------------------------------------------------

    As discussed previously, DHS believes that the estimated 6,304 
remaining certifications for the second 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 $310,787 (rounded) and for financial 
analysts is about $2,263,766 (rounded).\196\ The estimated total cost 
is approximately $2,574,553.\197\
---------------------------------------------------------------------------

    \196\ Calculations, HR specialists: $49.30 opportunity cost of 
time to comply with attestation requirements * 6,304 estimated 
additional petitions = $310,787 (rounded) total cost to comply with 
attestation requirements.
    Calculation, Financial Analysts: $359.10 opportunity cost of 
time to comply with attestation requirements * 6,304 estimated 
additional petitions = $2,263,766 (rounded) to comply with 
attestation requirements.
    \197\ Calculation: $310,787 total cost for HR specialist to 
comply with attestation requirement + $2,263,766 total cost for 
financial analysts to comply with attestation requirements = 
$2,574,553 total cost to comply with attestation requirements.
---------------------------------------------------------------------------

iv. Cost To Conduct Recruitment
    An employer that files Form ETA-9142B-CAA-6 and the I-129 petition 
30 or more days after the certified start date of work must conduct 
additional recruitment of U.S. workers. This consists of placing a new 
job order with the State Workforce Agency (SWA), contacting the 
American Job Center (AJC), contacting laid-off workers, and, if 
applicable, contacting the AFL-CIO. Employers must place a new job 
order for the job opportunity with the 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 the SWA is actively circulating the job order, 
employers must contact, by email or other available electronic means, 
the nearest local AJC to request staff assistance advertising and 
recruiting qualified U.S. workers for the job opportunity, and to 
provide to the AJC the unique identification number associated with the 
job order placed with the SWA.
    If the occupation is traditionally or customarily unionized, 
employers must provide written notification of the job opportunity to 
the nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended 
employment, by providing a copy of the job order, and request 
assistance in recruiting qualified U.S. workers for the job 
opportunity.
    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 average expected time burden for activities 
related to conducting recruitment is 3 hours.\198\ Assuming this work 
will be done by an HR specialist or an equivalent occupation, the 
estimated cost to each petitioner is approximately $147.90.\199\ Using 
the 6,304 as the estimated number of petitioners, the estimated total 
cost of this provision is approximately $932,362 (rounded).\200\ 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.
---------------------------------------------------------------------------

    \198\ This is the average expected time burden across all 
employers; not all employers will need to notify the AFL-CIO, 
because not all occupation are traditionally or customarily 
unionized. DOL estimates the time burden for placing a new job order 
for the job opportunity with SWA is 1 hour, 0.5 hours for contacting 
the nearest AJC, 1 hour for contacting former U.S. workers, and 0.5 
hours to provide a copy of job order to the bargaining 
representative and written notification of job opportunity to 
nearest AFL-CIO if the occupation is traditionally or customerly 
unionized, for a total time burden of 3 hours.
    \199\ Calculation: $49.30 hourly opportunity cost of time for an 
HR specialist * 3 hours to conduct additional recruitment = $147.90 
per petitioner cost to conduct additional recruitment.
    \200\ Calculation: 6,304 estimated number of petitioners * 
$147.90 per petitioner cost to conduct additional recruitment = 
$932,362 (rounded) total cost to conduct additional recruitment.
---------------------------------------------------------------------------

v. 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 employers will provide a 
printed notification to inform their employees, such as the free 
publicly available posters published by DOL's WHD. We also assume that 
printing and posting the notification can be done during the normal 
course of business and expect that an employer would need to post two 
copies of a one-page notification. One of these copies would be in 
English and a second copy would be in a foreign language. The printing 
cost associated with posting the notifications (assuming that the 
notification is written) is $0.15 per posting.\201\ The estimated total 
cost to petitioners to print copies is approximately $1,891 
(rounded).\202\ Print costs may be higher if employers have to print 
notifications in more than two languages.
---------------------------------------------------------------------------

    \201\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed March 30, 2022). Cost to make black and 
white copies.
    \202\ Calculation: $0.15 per posting * 6,304 estimated number of 
petitioners * 2 copies = $1,891 (rounded) cost of postings.
---------------------------------------------------------------------------

vi. Cost of the Portability Provision
    Petitioners seeking to hire H-2B nonimmigrants who are currently 
present in the United States with a valid H-2B visa would need to file 
a Form I-129 which includes paying the associated fee as discussed 
above. Also previously discussed, we assume that all employers with an 
approved TLC (8,650) would be able to file a petition under this 
provision, and estimate that

[[Page 30370]]

approximately 545 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 
242 of these petitions will be filed by a lawyer and the remaining 303 
will be filed by a HR specialist. As previously discussed, the 
estimated cost to file a Form I-129 H-2B petition is $823.96 for an HR 
specialist; and the estimated cost to file a Form I-129 H-2B petition 
with accompanying Form G-28 is $1,147.58 for an in-house lawyer and 
$1,536.88 for an outsourced lawyer. Therefore, we estimate the cost of 
the additional Forms I-129 from the portability provision for HR 
specialists is $249,660.\203\ The estimated cost of the additional 
Forms I-129 accompanied by Forms G-28 from the portability provision 
for lawyers is $277,714 if filed by in-house lawyers and $371,925 if 
filed by outsourced lawyers.\204\
---------------------------------------------------------------------------

    \203\ Calculation, HR specialist: $823.96 estimated cost to file 
a Form I-129 H-2B petition * 303 petitions = $249,660 (rounded).
    \204\ Calculation, In-house Lawyer: $1,147.58 estimated cost to 
file a Form I-129 H-2B petition and accompanying Form G-28 * 242 
petitions = $277,714 (rounded).
    Calculation, Outsourced Lawyer: $1,536.88 estimated cost to file 
a Form I-129 H-2B petition and accompanying Form G-28 * 242 
petitions = $371,925 (rounded).
---------------------------------------------------------------------------

    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 
511 Forms I-907 will be filed.\205\ We expect 227 of those Forms I-907 
will be filed by a lawyer and the remaining 284 will be filed by an HR 
specialist.\206\ As previously discussed, the estimated cost to file a 
Form I-907 is $1,528.59 for an HR specialist; and the estimated cost to 
file a Form I-907 is approximately $1,560.31 for an in-house lawyer and 
$1,603.98 for an outsourced lawyer. The estimated total cost of the 
additional Forms I-907 if HR specialists file is $434,120.\207\ The 
estimated total cost of the additional Forms I-907 is $354,190 if filed 
by in-house lawyers and $364,103 if filed by outsourced lawyers.\208\
---------------------------------------------------------------------------

    \205\ Calculation: 545 estimated additional Form I-129 H-2B 
petitions * 93.67 percent accompanied by Form I-907 = 511 (rounded) 
additional Form I-907.
    \206\ Calculation, Lawyers: 511 additional Form I-907 * 44.43 
percent = 227 (rounded) Form I-907 filed by a lawyer.
    Calculation, HR specialists: 511 Form I-907 -227 Form I-907 
filed by a lawyer = 284 Form I-907 filed by an HR specialist.
    \207\ Calculation, HR specialist: $1,528.59 to file a Form I-907 
* 284 forms = $434,120 (rounded).
    \208\ Calculation, In-house lawyer: $1,560.31 to file a Form I-
907 * 227 forms = $354,190 (rounded).
    Calculation for an outsourced lawyer: $1,603.98 to file a Form 
I-907 * 227 forms = $364,103 (rounded).
---------------------------------------------------------------------------

    The estimated total cost of this provision ranges from $1,315,684 
to $1,419,808 depending on what share of the forms are filed by in-
house or outsourced lawyers.\209\
---------------------------------------------------------------------------

    \209\ Calculation for HR specialists and in-house lawyers: 
$249,660 for HR specialists to file Form I-129 H-2B petitions + 
$277,714 for in-house lawyers to file Form I-129 and the 
accompanying Form G-28 + $434,120 for HR specialists to file Form I-
907 + $354,190 for in-house lawyers to file Form I-907 = $1,315,684.
    Calculation for HR specialists and outsourced lawyers: $249,660 
for HR specialists to file Form I-129 H-2B petitions + $371,925 for 
outsourced lawyers to file Form I-129 and the accompanying Form G-28 
+ $434,120 for HR specialists to file Form I-907 + $364,103 for 
outsourced lawyers to file Form I-907 = $1,419,808.
---------------------------------------------------------------------------

vii. Cost of Audits to Petitioners
    DHS intends to conduct 250 audits of employers hiring H-2B workers 
and DOL intends to conduct 100 audits of employers hiring H-2B workers, 
for a total of 350 employers. Employers will need to provide requested 
information to comply with the audit. The expected time burden to 
comply with audits conducted by DHS and DOL's Office of Foreign Labor 
Certification is estimated to be 12 hours.\210\ We expect that 
providing these documents will be accomplished by an HR specialist or 
equivalent occupation. Given an hourly opportunity cost of time of 
$49.30, the estimated cost of complying with audits is $591.60 per 
audited employer.\211\ Therefore, the total estimated cost to employers 
to comply with audits is $207,060.\212\
---------------------------------------------------------------------------

    \210\ The number in hours for audits was provided by the USCIS, 
Service Center Operations.
    \211\ Calculation: $49.30 hourly opportunity cost of time for an 
HR specialist * 12 hours to comply with an audit = $591.60 per 
audited employer.
    \212\ Calculation: 350 audited employers * $591.60 opportunity 
cost of time to comply with an audit = $207,060.
---------------------------------------------------------------------------

viii. Cost of Additional Scrutiny
    The Departments expect that petitioners undergoing additional 
scrutiny will need to submit additional evidence to USCIS. In addition 
to the previously described burden to assess, document and retain 
evidence, submission of this evidence is expected to require printing 
and mailing hundreds of pages of documents. To estimate the cost of 
additional scrutiny, we assume 138 petitioners will need to print 500 
pages of documents and mail this to USCIS. These documents are expected 
to be able to fit in a Priority Mail Medium Flat Rate box which costs 
$16.10.\213\ We estimate the costs of printing at $0.15 per page, and 
the cost of printing 500 pages is estimated to be $75.00.\214\ The 
estimated cost for an employer to print and ship evidence to USCIS is 
$91.10.\215\ With an estimated 138 petitioners expected to print and 
ship evidence, the total estimated costs for printing and shipping 
evidence is $12,572.\216\
---------------------------------------------------------------------------

    \213\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed April 5, 2022).
    \214\ Calculation: 500 pages * $0.15 per page = $75.00 in 
printing costs.
    \215\ Calculation: $75.00 in printing costs + $16.10 in shipping 
costs = $91.10 to print and ship evidence.
    \216\ Calculation: 138 petitioners * $91.10 to print and ship 
evidence = $12,572 total printing and shipping costs.
---------------------------------------------------------------------------

    Petitioners are also expected to incur a time burden associated 
with printing and shipping evidence to USCIS. We estimate it will take 
an HR specialist or equivalent employee 1 hour to print and ship 
evidence. Using $49.30 hourly opportunity cost of time for HR 
specialist, we estimate the opportunity cost of time for each 
petitioner is $49.30.\217\ With an estimated 138 petitioners expected 
to print and ship evidence, the total estimated opportunity cost of 
time to print and ship evidence is $6,803.\218\
---------------------------------------------------------------------------

    \217\ Calculation: $49.30 hourly opportunity cost of time for HR 
specialist * 1 hour to print and ship evidence = $49.30 opportunity 
cost of time per petitioner.
    \218\ Calculation: 138 petitioners * $49.30 opportunity cost of 
time per petitioner = $6,508 total estimated opportunity cost of 
time to print and ship evidence.
---------------------------------------------------------------------------

    We do not expect this provision to impose new costs on to USCIS. 
The costs to request and review evidence from petitioners is included 
in the fees paid to the agency.
    The total estimated cost of additional scrutiny is $19,375.\219\
---------------------------------------------------------------------------

    \219\ Calculation: $12,572 total printing and shipping costs + 
$6,803 total opportunity cost of time = $19,375 total estimated cost 
of additional scrutiny.
---------------------------------------------------------------------------

ix. 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

[[Page 30371]]

approximately 8,650 petitioners may take advantage of the provisions of 
this rule, and that 3,843 of these petitioners are expected to be 
represented by a lawyer and 4,807 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.\220\ This rule has approximately 41,000 
words. Using a reading speed of 238 words per minute, DHS estimates it 
will take approximately 2.9 hours to read and understand this 
rule.\221\
---------------------------------------------------------------------------

    \220\ Brysbaert, Marc (2019, April 12). `How many words do we 
read per minute? A review and meta-analysis of reading rate.' 
https://doi.org/10.31234/osf.io/xynwg (accessed March 30, 2022). We 
use the average speed for silent reading of English nonfiction by 
adults.
    \221\ Calculation, Step 1: Roughly 41,000 words/238 words per 
minute = 172 (rounded) minutes.
    Calculation, Step 2: 172 minutes/60 minutes per hour = 2.9 
(rounded) hours.
---------------------------------------------------------------------------

    The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $49.30, $103.98, and $179.28, 
respectively. The estimated opportunity cost of time for each of these 
filers to read and understand the rule are $142.97, $301.54, and 
$519.91, respectively.\222\ The estimated total opportunity cost of 
time for 4,807 HR specialists to familiarize themselves with this rule 
is approximately $687,257.\223\ The estimated total opportunity cost of 
time for 3,843 lawyers to familiarize themselves with this rule is 
approximately $1,158,818 if they are all in-house lawyers and 
$1,998,014 if they are all outsourced lawyers.\224\ The estimated total 
opportunity costs of time for petitioners or their representatives to 
familiarize themselves with this rule ranges from $1,846,075 to 
$2,685,271.\225\
---------------------------------------------------------------------------

    \222\ Calculation, HR Specialists: $49.30 estimated hourly total 
compensation for an HR specialist * 2.9 hours to read and become 
familiar with the rule = $142.97 (rounded) opportunity cost of time 
for an HR specialist to read and understand the rule.
    Calculation, In-house lawyer: $103.98 estimated hourly total 
compensation for an in-house lawyer * 2.9 hours to read and become 
familiar with the rule = $301.54 (rounded) opportunity cost of time 
for an in-house lawyer to read and understand the rule.
    Calculation, Outsourced lawyer: $179.28 estimated hourly total 
compensation for an outsourced lawyer * 2.9 hours to read and become 
familiar with the rule = $519.91 (rounded) opportunity cost of time 
for an outsourced lawyer to read and understand the rule.
    \223\ Calculation, HR specialists: $142.97 opportunity cost of 
time * 4,807 = $687,257 (rounded).
    \224\ Calculation for in-house lawyers: $301.54 opportunity cost 
of * 3,843 = $1,158,818 (rounded).
    Calculation for outsourced lawyers: $519.91 opportunity cost of 
time * 3,843 = $1,998,014 (rounded).
    \225\ Calculation: $687,257 + $1,158,818 = $1,846,075.
    Calculation: $687,257 + $1,998,014 = $2,685,271.
---------------------------------------------------------------------------

x. 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-6, 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 $6,100,704 to $7,191,133, depending on the filer. 
The estimated total cost of filing Form I-907 ranges from $9,109,557 to 
$9,224,148, depending on the filer. The estimated total cost of filing 
and complying with Form ETA-9142-B-CAA-6 is $2,574,553. The estimated 
total cost of conducting additional recruitment is $932,362. The 
estimated total cost of the COVID-19 protection provision is 
approximately $1,891. The estimated cost of the portability provision 
ranges from $1,315,684 to $1,419,808, depending on the filer. The 
estimated total cost for employers to comply with audits is $207,060. 
The estimated total costs for petitioners or their representatives to 
familiarize themselves with this rule ranges from $1,846,075 to 
$2,685,271, depending on the filer. The estimated total cost of 
additional scrutiny is $19,375. The total estimated cost to petitioners 
ranges from $22,107,261 to $24,255,601, depending on the filer.\226\
---------------------------------------------------------------------------

    \226\ Calculation of lower range: $6,100,704 + $9,109,557 + 
$2,574,553 + $932,362 + $1,891 + $1,315,684 + $207,060 + $1,846,075 
+ $19,375 = $22,107,261.
    Calculation of upper range: $7,191,133 + $9,224,148 + $2,574,553 
+ $932,362 + $1,891 + $1,419,808 + $207,060 + $2,685,271 + $19,375 = 
$24,255,601.
---------------------------------------------------------------------------

b. Cost to the Federal Government
    USCIS will incur costs related to the adjudication of petitions as 
a result of this TFR. DHS expects these costs to be recovered by the 
fees associated with the forms, which have been accounted for as a 
transfer from petitioners to USCIS and also serve as a proxy for the 
costs to the agency. The total filing fees associated with Form I-129 
H-2B petitions are $3,845,440 and the total filing fees associated with 
premium processing are $8,857,500.\227\ This is a total filing fee of 
$12,702,940.\228\
---------------------------------------------------------------------------

    \227\ Calculation: 6,304 Form I-129 H-2B petitions * $610 in 
filing fee = $3,845,440.
    Calculation: 5,905 premium processing requests * $1,500 in 
filing fees = $8,857,500.
    \228\ Calculation: $3,845,440 Form I-129 H-2B petition filing 
fees + $8,857,500 premium processing filing fee = $12,702,940 filing 
fees as a result of this rule.
---------------------------------------------------------------------------

    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.\229\ 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.
---------------------------------------------------------------------------

    \229\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

    Both DOL and DHS intend to conduct a significant number of audits 
during the period of temporary need to verify compliance with H-2B 
program requirements, including the irreparable harm standard as well 
as other key worker protection provisions implemented through this 
rule.\230\ 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 350 audits and each audit is expected 
to take 12 hours. This results in a total time burden of 4,200 
hours.\231\ USCIS anticipates that a Federal employee at a GS-13 Step 5 
salary will typically conduct these audits for each agency. The base 
hourly pay for a GS-13 Step 5 in the Washington, DC locality area is 
$58.01.\232\ To estimate the total hourly

[[Page 30372]]

compensation for these positions, we multiply the hourly wage ($58.01) 
by the Federal benefits to wage multiplier of 1.37.\233\ This results 
in an hourly opportunity cost of time of $79.47 for GS-13 Step 5 
Federal employees in the Washington, DC locality pay area.\234\ The 
total opportunity costs of time for Federal workers to conduct audits 
is estimated to be $333,774.\235\
---------------------------------------------------------------------------

    \230\ These audits are distinct from the WHD's authority to 
perform investigations regarding employers' compliance with the 
requirements of the H-2B program.
    \231\ Calculation: 12 hours to conduct an audit * 350 audits = 
4,200 total hours to conduct audits.
    \232\ U.S. Office of Personnel Management, Pay and Leave, 
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA, 2022, Hourly Basic Rate, 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2022/DCB_h.pdf (last accessed March 30, 2022).
    \233\ Calculation, Step 1: $2,070,773 Full-time Permanent 
Salaries + $762,476 Civilian Personnel Benefits = $2,833,249 
Compensation.
    Calculation, Step 2: $2,833,249 Compensation /$2,070,773 Full-
time Permanent Salaries = 1.37 (rounded) Federal employee benefits 
to wage ratio. https://www.uscis.gov/sites/default/files/document/reports/USCIS_FY_2021_Budget_Overview.pdf (accessed March 30, 2022).
    \234\ Calculation: $58.01 hourly wage for a GS 13-5 in the 
Washington, DC locality area * 1.37 Federal employee benefits to 
wage ratio = $79.47 hourly opportunity cost of time for a GS 13-5 
federal employee in the Washington, DC locality area.
    \235\ Calculation: 4,200 hours to conduct audits * $79.47 hourly 
opportunity cost of time = $333,774 total opportunity costs of time 
for Federal employees to conduct audits.
---------------------------------------------------------------------------

c. 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.
d. Benefits to Workers
    The Departments assume that workers will only incur the costs of 
this rule and other costs associated with obtaining a H-2B position if 
the expected benefits of that position exceed the expected costs. We 
assume that H-2B workers expect some level of net benefit from being 
able to work for H-2B employers. However, the Departments do not have 
sufficient data to estimate this increase in net benefits and lack the 
necessary resources to investigate this in a timely manner. This rule 
is not expected to impact wages because DOL prevailing wage regulations 
apply to all H-2B workers covered by this rule. Additionally, the RIA 
shows that employers incur costs in conducting additional recruitment 
of U.S. workers and attesting to irreparable harm from current labor 
shortfall. These costs suggest employers are not taking advantage of a 
large supply of foreign labor at the expense of domestic workers.
    The existence of this rule will benefit the workers who receive H-
2B visas. See Arnold Brodbeck et al., Seasonal Migrant Labor in the 
Forest Industry of the United States: The Impact of H-2B Employment on 
Guatemalan Livelihoods, 31 Society & Natural Resources 1012 (2018), and 
in particular this finding: ``Participation in the H-2B guest worker 
program has become a vital part of the livelihood strategies of rural 
Guatemalan families and has had a positive impact on the quality of 
life in the communities where they live. Migrant workers who were 
landless, lived in isolated rural areas, had few economic 
opportunities, and who had limited access to education or adequate 
health care, now are investing in small trucks, building roads, 
schools, and homes, and providing employment for others in their home 
communities . . . . The impact has been transformative and positive.''
    Some provisions of this rule will benefit such workers in 
particular ways. The portability provision of this rule will allow 
nonimmigrants with valid H-2B visas who are present in the United 
States to transfer to a new employer more quickly and potentially 
extend their stay in the United States and, therefore, earn additional 
wages. 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.\236\ 
This rule is exempt from the written statement requirement because DHS 
did not publish a notice of proposed rulemaking for this rule.
---------------------------------------------------------------------------

    \236\ See 2 U.S.C. 1532(a).
---------------------------------------------------------------------------

    In addition, this rule does not exceed the $100 million in 1995 
expenditure in any 1 year when adjusted for inflation ($178 million in 
2021 dollars based on

[[Page 30373]]

the Consumer Price Index for All Urban Consumers (CPI-U)),\237\ and 
this rulemaking does not contain such a Federal mandate as ther term is 
defined under UMRA.\238\ The requirements of Title II of the Act, 
therefore, do not apply, and the Departments have not prepared a 
statement under the Act.
---------------------------------------------------------------------------

    \237\ See U.S. Department of Labor, BLS, ``Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. city average, all 
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202112.pdf (last visited Jan. 
13, 2022). Calculation of inflation: (1) Calculate the average 
monthly CPI-U for the reference year (1995) and the current year 
(2021); (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 2021-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(270.970 - 152.383)/
152.383] * 100 = (118.587/152.383) * 100 = 0.77821673 * 100 = 77.82 
percent = 78 percent (rounded). Calculation of inflation-adjusted 
value: $100 million in 1995 dollars * 1.78 = $178 million in 2021 
dollars.
    \238\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

    This rule does not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, 61 FR 4729 (Feb. 5, 1996).

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 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 
after April 1, 2022 through September 30, 2022, based on the Secretary 
of Homeland Security's determination, in consultation with the 
Secretary of Labor, consistent with the FY 2022 Omnibus. 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 35,000 visas for noncitizens who 
may receive H-2B nonimmigrant visas, of which 23,500 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 after January 24, 2023 for 
the portability provision. DHS believes amending applicable regulations 
to authorize up to an additional 35,000 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 331,000,000 (maximum temporary increase of 
0.0106 percent).\239\
---------------------------------------------------------------------------

    \239\ U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed April 5, 2022).
    Calculation: 35,000 additional visas/331,000,000 million people 
in the United States = 0.0106 (rounded) percent temporary increase 
in the population.
---------------------------------------------------------------------------

    The amendment to applicable regulations is a stand-alone temporary 
authorization and not a part of any larger action, and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this action is categorically excluded 
and no further NEPA analysis is required.

H. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this temporary final rule is 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.\240\ 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.
---------------------------------------------------------------------------

    \240\ Formally known as Subtitle E of the Small Business 
Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, 
Title II (May 29, 1996).
---------------------------------------------------------------------------

I. Paperwork Reduction Act

Attestation for Employers Seeking To Employ H-2B Nonimmigrants Workers 
Under Section 204 of Division O of the Consolidated Appropriations Act, 
2022, Public Law 117-103, Form ETA-9142-B-CAA-6
    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-6, using emergency clearance procedures 
outlined at 5 CFR 1320.13. The Departments note that while DOL

[[Page 30374]]

submitted the ICR, both DHS and DOL will use the information provided 
by employers in response to this information collection.
    Petitioners will use the new Form ETA-9142B-CAA-6 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 Central American countries or Haiti who is 
counted against the 11,500 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 
July 18, 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 Section 204 of Division O of 
the FY 2022 Omnibus, which provides that ``the Secretary of Homeland 
Security, after consultation with the Secretary of Labor, and upon the 
determination that the needs of American businesses cannot be satisfied 
in [FY] 2022 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 2022 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 
35,000 visas for FY 2022 for certain H-2B workers with start dates on 
or after April 1, 2022 through September 30, 2022, for U.S. businesses 
that attest that they are suffering irreparable harm or will suffer 
impending irreparable harm. As with the previous supplemental rules, 
the Secretary has determined that the additional visas will only be 
available for returning workers, that is workers who were issued H-2B 
visas or otherwise granted H-2B status in FY 2019, 2020, or 2021, 
unless the worker is one of the 11,500 nationals of one of the Northern 
Central American countries and Haiti who are exempt from the returning 
worker requirement.
    Commenters are encouraged to discuss the following:
    <bullet> 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;
    <bullet> 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;
    <bullet> The quality, utility, and clarity of the information to be 
collected; and
    <bullet> 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 204 of Division O of 
the Consolidated Appropriations Act, 2022, Public Law 117-103.
    Agency Form Number: Form ETA-9142-B-CAA-6.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 6,304.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 6,304.
    Average Time per Response: 9 hours per application.
    Total Estimated Annual Time Burden: 56,736 hours.
    Total Estimated Other Costs Burden: $0.
Request for Premium Processing Service, Form I-907
    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by OMB under the PRA 
and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6. Form I-907, Request for Premium Processing 
Service, has been approved by OMB and assigned OMB control number 1615-
0048. DHS is making no changes to the Form I-907 in connection with 
this temporary rule implementing the time-limited authority pursuant to 
Section 204 of Division O of the Consolidated Appropriations Act, 2022, 
Public Law 117-103 (which expires on September 30, 2022). However, 
USCIS estimates that this temporary rule may result in approximately 
5,905 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.

[[Page 30375]]

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.

    For the reasons discussed in the joint preamble, chapter I of title 
8 of the Code of Federal Regulations is amended as follows:

DEPARTMENT OF HOMELAND SECURITY

PART 214--NONIMMIGRANT CLASSES

0
1. Effective May 18, 2022 through May 18, 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).


0
2. Effective May 18, 2022 through May 18, 2025, amend Sec.  214.2 by 
adding paragraphs (h)(6)(xii) and (h)(28) to read as follows:


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

* * * * *
    (h) * * *
    (6) * * *
    (xii) Special requirements for additional cap allocations under the 
Consolidated Appropriations Act, 2022, Public Law 117-103--(A) Public 
Law 117-103--(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 23,500 visas for aliens who may 
receive H-2B nonimmigrant visas pursuant to section 204 of Division O 
of the Consolidated Appropriations Act, 2022, Public Law 117-103, based 
on petitions requesting FY 2022 employment start dates on or after 
April 1, 2022 through September 30, 2022. An alien may be eligible to 
receive an H-2B nonimmigrant visa under this paragraph 
(h)(6)(xii)(A)(1) if she or he is a returning worker. The term 
``returning worker'' under this paragraph (h)(6)(xii)(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 Sec.  248.2 of this 
chapter, an alien may not change status to H-2B nonimmigrant under this 
paragraph (h)(6)(xii)(A)(1).
    (2) Supplemental allocation for nationals of Guatemala, El 
Salvador, Honduras (Northern Central American 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)(xii)(A)(1) of 
this section, the Secretary has authorized up to an additional 11,500 
aliens who are nationals of Guatemala, El Salvador, Honduras (Northern 
Central American countries), or of Haiti who may receive H-2B 
nonimmigrant visas pursuant to section 204 of Division O of the 
Consolidated Appropriations Act, 2022, Public Law 117-103, based on 
petitions with FY 2022 employment start dates on or after April 1, 2022 
through September 30, 2022. Such workers are not subject to the 
returning worker requirement in paragraph (h)(6)(xii)(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)(xii)(A)(1) and must declare that they are requesting 
these workers in the attestation required under 20 CFR 655.66(a)(1). A 
petition requesting returning workers under paragraph 
(h)(6)(xii)(A)(1), which is accompanied by an attestation indicating 
that the petitioner is requesting nationals of Northern Central 
American countries or Haiti, will be rejected, denied or, in the case 
of a non-frivolous petition, will be approved solely for the number of 
beneficiaries that are from the Northern Central American countries or 
Haiti. Notwithstanding Sec.  248.2 of this chapter, an alien may not 
change status to H-2B nonimmigrant under this paragraph 
(h)(6)(xii)(A)(2).
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(xii), 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 655.65, 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)(xii);
    (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 11,500 cap described in paragraph (h)(6)(xii)(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)(xii)(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 655.65(a)(3) through (5);
    (v) The employer will provide documentary evidence of the facts in 
paragraphs (h)(6)(xii)(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

[[Page 30376]]

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)(xii)(B) of this section, as a 
condition for the approval of the petition.
    (vii) The employer must attest on Form ETA-9142-B-CAA-6 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 
655.65(a) and 655.66(a), as a condition for the approval of the H-2B 
petition. The employer must further attest on Form ETA-9142-B-CAA-6 
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)(xii)(A)(1) or (2) of this section that are received 
after the applicable numerical limitation has been reached or after 
September 15, 2022, whichever is sooner. USCIS will not approve a 
petition filed pursuant to this paragraph (h)(6)(xii) on or after 
October 1, 2022.
    (D) Numerical limitations under paragraphs (h)(6)(xii)(A)(1) and 
(2) of this section. When calculating the numerical limitations under 
paragraphs (h)(6)(xii)(A)(1) and (2) of this section as authorized 
under Public Law 117-103, 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)(xii)(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)(xii)(A)(1) and (2), 
USCIS may randomly select from among the petitions received on the 
final receipt dates the remaining number of petitions deemed necessary 
to generate the numerical limit of approvals. This random selection 
will be made via computer-generated selection. Petitions subject to a 
numerical limitation not randomly selected or that were received after 
the final receipt dates that may be applicable under paragraph 
(h)(6)(xii)(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)(xii)(A)(1) or 
(2) may be received (in other words, if either of the numerical limits 
described in paragraph (h)(6)(xii)(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)(xii) expires on October 1, 2022.
    (F) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(xii)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xii), including, 
but not limited to, the numerical allocation provisions at paragraphs 
(h)(6)(xii)(A)(1) and (2) of this section in their entirety. In the 
event that any part of this paragraph (h)(6)(xii) is enjoined or held 
to be invalid by any court of competent jurisdiction, the remainder of 
this paragraph (h)(6)(xii) 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)(xii), as 
consistent with law.
* * * * *
    (28) Change of employers and portability for H-2B workers. (i) This 
paragraph (h)(28) relates to H-2B workers seeking to change employers 
during the time period specified in paragraph (h)(28)(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 July 28, 2022, is authorized to begin 
employment with the new petitioner after the petition described in this 
paragraph (h)(28) 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 July 28, 
2022 that remains pending on July 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)(28)(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)(28)(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)(28)(i)(B) of this section, the new period of employment described 
in paragraph (h)(28)(i) of this section may last for up to 60 days 
beginning on the later of either July 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)(28) 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)(28):
    (A) The alien must either (1) have been in valid H-2B nonimmigrant 
status on or after July 28, 2022 and be the

[[Page 30377]]

beneficiary of a non-frivolous H-2B petition requesting an extension of 
the alien's stay that is received on or after July 28, 2022, but no 
later than January 24, 2023; or (2) be the beneficiary of a non-
frivolous H-2B petition requesting an extension of the alien's stay 
that is pending as of July 28, 2022.
    (B) 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
    (C) 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)(28) begins at 12 a.m. on July 28, 2022, and ends at the 
end of January 24, 2023.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
3. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.


0
4. Effective May 18, 2022 through May 18, 2025, amend Sec.  274a.12 by 
adding paragraph (b)(31) to read as follows:


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

* * * * *
    (b) * * *
    (32)(i) Pursuant to 8 CFR 214.2(h)(28) 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 July 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 July 28, 2022; or
    (B) The later of July 28, 2022 or the start date of employment 
indicated on the new H-2B petition, for petitions that are pending as 
of July 28, 2022.
    (ii) If USCIS adjudicates the new petition prior to the expiration 
of the 60-day period in paragraph (b)(32)(i) of this section and denies 
the new petition for extension of stay, or if the petitioner withdraws 
the new petition before the expiration of the 60-day period, the 
employment authorization under this paragraph (b)(32) 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)(28) and paragraph (b)(32)(i) of this section begins at 12 
a.m. on July 28, 2022, and ends at the end of January 24, 2023.
* * * * *

DEPARTMENT OF LABOR

EMPLOYMENT AND TRAINING ADMINISTRATION

20 CFR Chapter V

    Accordingly, for the reasons stated in the joint preamble, 20 CFR 
part 655 is amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
5. The authority citation for part 655 continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Public Law 106-95, 113 Stat. 1312, 1316 (8 
U.S.C. 1182 note); Public Law 109-423, 120 Stat. 2900; and 8 CFR 
214.2(h).


0
6. Effective May 18, 2022 through September 30, 2022, add Sec.  655.65 
to read as follows:


Sec.  655.65   Special application filing and eligibility provisions 
for Fiscal Year 2022 under the May 18, 2022 supplemental cap increase.

    (a) An employer filing a petition with USCIS under 8 CFR 
214.2(h)(6)(xii) to request H-2B workers with FY 2022 employment start 
dates on or after April 1, 2022 and no later than September 30, 2022, 
must meet the following requirements:
    (1) The employer must attest on the Form ETA-9142-B-CAA-6 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)(xii). 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-6 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)(xii), 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 
11,500 cap described in 8 CFR 214.2(h)(6)(xii)(A)(2).
    (3) The employer must attest on Form ETA-9142-B-CAA-6 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-6 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

[[Page 30378]]

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)(xii)(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-6 and the I-129 
petition 30 or more days after the certified start date of work, as 
shown on its approved Application for Temporary Employment 
Certification, 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 ``self-referrals''). 
The job order must contain the job assurances and contents set forth in 
Sec.  655.18 for recruitment of U.S. workers at the place of 
employment, and remain posted for at least 15 calendar days;
    (ii) During the period of time the SWA is actively circulating the 
job order described in paragraph (a)(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) Where the occupation or industry is traditionally or 
customarily unionized, during the period of time the SWA is actively 
circulating the job order described in paragraph (a)(5)(i) of this 
section for intrastate clearance, the employer must contact (by mail, 
email or other effective means) the nearest American Federation of 
Labor and Congress of Industrial Organizations office covering the area 
of intended employment and provide written notice of the job 
opportunity, by providing a copy of the job order placed pursuant to 
(a)(5)(i) of this section, and request assistance in recruiting 
qualified U.S. workers for the job;
    (iv) During the period of time the SWA is actively circulating the 
job order described in paragraph (a)(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 214.2(h)(6)(xii) 
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)(iv) must be provided in a language understood 
by the worker, as necessary or reasonable;
    (v) 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 Sec.  655.45(a) and (b). The contact and 
disclosures required by this paragraph (a)(5)(v) must be provided in a 
language understood by the worker, as necessary or reasonable; and
    (vi) 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 Sec.  655.40(a), applicants can be rejected only for 
lawful job-related reasons.
    (6) The employer must attest on Form ETA-9142-B-CAA-6 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 Sec.  655.66(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.

0
7. Effective May 18, 2022 through September 30, 2025, add Sec.  655.66 
to read as follows:


Sec.  655.66  Special document retention provisions for Fiscal Years 
2022 through 2026 under the Consolidated Appropriations Act, 2022.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2022 under authority of the temporary increase 
in the numerical limitation under section 204 of Division O, Public Law 
117-103 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)(xii);
    (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)(xii), 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,

[[Page 30379]]

Honduras, or Haiti and is counted towards the 11,500 cap described in 8 
CFR 214.2(h)(6)(xii)(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)(xii)(A)(2); and
    (4) If applicable, proof of recruitment efforts set forth in Sec.  
655.65(a)(5)(i) through (v) and a recruitment report that meets the 
requirements set forth in Sec.  655.48(a)(1) through (4) and (7), and 
maintained throughout the recruitment period set forth in Sec.  
655.65(a)(5)(vi).
    (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. 2022-10631 Filed 5-16-22; 4:15 pm]
BILLING CODE 4410-10-P; 9111-97-P