30334 Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 

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: 

• 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 

• 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 


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Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 30335 

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

includes COVID–19 booster shots. 

2The term ‘‘United States’’ includes the 

continental United States, Alaska, Hawaii, Puerto 

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

and the Commonwealth of the Northern Mariana 

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

1101(a)(38). 

temporary final rule, eligible petitioners 

must: 

• Meet all existing H–2B eligibility 

requirements, including obtaining an 

approved temporary labor certification 

(TLC) from DOL before filing the Form 

I–129, Petition for Nonimmigrant 

Worker, with USCIS; 

• 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; 

• 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 

• 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. 

Employers filing an H–2B petition 30 

or more days after the certified start date 

on the TLC, must attest to engaging in 

the following additional steps to recruit 

U.S. workers: 

• No later than 1 business day after 

filing the petition, place a new job order 

with the relevant State Workforce 

Agency (SWA) for at least 15 calendar 

days; 

• Contact the nearest American Job 

Center serving the geographic area 

where work will commence and request 

staff assistance in recruiting qualified 

U.S. workers; 

• Contact the employer’s former U.S. 

workers, including those the employer 

furloughed or laid off beginning on 

January 1, 2020, and until the date the 

H–2B petition is filed, disclose the 

terms of the job order and solicit their 

return to the job; 

• Provide written notification of the 

job opportunity to the bargaining 

representative for the employer’s 

employees in the occupation and area of 

employment, or post notice of the job 

opportunity at the anticipated worksite 

if there is no bargaining representative; 

• 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 

• 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 timelimited 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. 

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 


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30336 Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 

3As of March 1, 2003, in accordance with section 

1517 of Title XV of the Homeland Security Act of 

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

any reference to the Attorney General in a provision 

of the Immigration and Nationality Act describing 

functions which were transferred from the Attorney 

General or other Department of Justice official to the 

Department of Homeland Security by the HSA 

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

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

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

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

4For purposes of this discussion, the 

Departments use the term ‘‘noncitizen’’ colloquially 

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

used in the Immigration and Nationality Act. 

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

274a.12(b)(9). 

6The Federal Government’s fiscal year runs from 

October 1 of the prior year through September 30 

of the year being described. For example, fiscal year 

2022 is from October 1, 2021, through September 

30, 2022. 

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). 

Finally, under section 101 of HSA, 6 

U.S.C. 111(b)(1)(F), a primary mission of 

DHS is to ‘‘ensure that the overall 

economic security of the United States 

is not diminished by efforts, activities, 

and programs aimed at securing the 

homeland.’’ 

DHS regulations provide that an H–2B 

petition for temporary employment in 

the United States must be accompanied 

by an approved TLC from the U.S. 

Department of Labor (DOL), issued 

pursuant to regulations established at 20 

CFR part 655, or from the Guam 

Department of Labor if the workers will 

be employed on Guam. 8 CFR 

214.2(h)(6)(iii)(A) and (C) through (E), 

(h)(6)(iv)(A); see also INA section 

103(a)(6), 8 U.S.C. 1103(a)(6). The TLC 

serves as DHS’s consultation with DOL 

with respect to whether a qualified U.S. 

worker is available to fill the petitioning 

H–2B employer’s job opportunity and 

whether a foreign worker’s employment 

in the job opportunity will adversely 

affect the wages and working conditions 

of similarly-employed U.S. workers. See 

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

1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and 

(D). 

In order to determine whether to issue 

a TLC, the Departments have 

established regulatory procedures under 

which DOL certifies whether a qualified 

U.S. worker is available to fill the job 

opportunity described in the employer’s 

petition for a temporary nonagricultural 

worker, and whether a foreign worker’s 

employment in the job opportunity will 

adversely affect the wages or working 

conditions of similarly employed U.S. 

workers. See 20 CFR part 655, subpart 

A. The regulations establish the process 

by which employers obtain a TLC and 

rights and obligations of workers and 

employers. 

Once the petition is approved, under 

the INA and current DHS regulations, 

H–2B workers do not have employment 

authorization outside of the validity 

period listed on the approved petition 

unless otherwise authorized, and the 

workers are limited to employment with 

the H–2B petitioner. See 8 U.S.C. 

1184(c)(1), 8 CFR 274a.12(b)(9). An 

employer or U.S. agent generally may 

submit a new H–2B petition, with a 

new, approved TLC, to USCIS to request 

an extension of H–2B nonimmigrant 

status for the validity of the TLC or for 

a period of up to 1 year. 8 CFR 

214.2(h)(15)(ii)(C). Except as provided 

for in this rule, and except for certain 

professional athletes being traded 

among organizations,5 H–2B workers 

seeking to extend their status with a 

new employer may not begin 

employment with the new employer 

until the new H–2B petition is 

approved. 

The INA also authorizes DHS to 

impose appropriate remedies against an 

employer for a substantial failure to 

meet the terms and conditions of 

employing an H–2B nonimmigrant 

worker, or for a willful 

misrepresentation of a material fact in a 

petition for an H–2B nonimmigrant 

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

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

expressly authorizes DHS to delegate 

certain enforcement authority to DOL. 

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

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

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

delegated its authority under INA 

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

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

Delegation of Authority to DOL under 

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

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

(stating that DOL may investigate 

employers to enforce compliance with 

the conditions of an H–2B petition and 

a DOL-approved TLC). This 

enforcement authority has been 

delegated within DOL to the Wage and 

Hour Division (WHD), and is governed 

by regulations at 29 CFR part 503. 

B. H–2B Numerical Limitations Under 

the INA 

The INA sets the annual number of 

noncitizens who may be issued H–2B 

visas or otherwise provided H–2B 

nonimmigrant status to perform 

temporary nonagricultural work at 

66,000, to be distributed semi-annually 

beginning in October and April. See 

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

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

certain exceptions, described below, up 

to 33,000 noncitizens may be issued H– 

2B visas or provided H–2B 

nonimmigrant status in the first half of 

a fiscal year, and the remaining annual 

allocation, including any unused 

nonimmigrant H–2B visas from the first 

half of a fiscal year, will be available for 

employers seeking to hire H–2B workers 

during the second half of the fiscal 

year.6 If insufficient petitions are 

approved to use all H–2B numbers in a 

given fiscal year, the unused numbers 

cannot be carried over for petition 

approvals for employment start dates 


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7 INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), 

see also Consolidated Appropriations Act, 2016, 

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

Warner National Defense Authorization Act for 

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

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

Businesses Act of 2005, Public Law 109–13, div. B, 

tit. IV, sec. 402. 

8See Consolidated Appropriations Act, 2016, 

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

9 20 CFR 655.15(b). 

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

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/foreignlabor/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-fy2021 (Feb. 24, 2021). 

12USCIS, H–2B Cap Reached for Second Half of 

FY2022, https://www.uscis.gov/newsroom/alerts/h2b-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. 

15The 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). 

beginning on or after the start of the 

next fiscal year. 

In FYs 2005, 2006, 2007, and 2016, 

Congress exempted H–2B workers 

identified as returning workers from the 

annual H–2B cap of 66,000.7 A 

returning worker is defined by statute as 

an H–2B worker who was previously 

counted against the annual H–2B cap 

during a designated period of time. For 

example, Congress designated that 

returning workers for FY 2016 needed to 

have been counted against the cap 

during FY 2013, 2014, or 2015.8 DHS 

and the Department of State (DOS) 

worked together to confirm that all 

workers requested under the returning 

worker provision in fact were eligible 

for exemption from the annual cap (in 

other words, were issued an H–2B visa 

or provided H–2B status during one of 

the prior 3 fiscal years) and were 

otherwise eligible for H–2B 

classification. 

Because of the strong demand for H– 

2B visas in recent years, the statutorilylimited semi-annual visa allocation, the 

DOL regulatory requirement that 

employers apply for a TLC 75 to 90 days 

before the start date of work,9 and the 

DHS regulatory requirement that all H– 

2B petitions be accompanied by an 

approved TLC,10 employers that wish to 

obtain visas for their workers under the 

semi-annual allotment must act early to 

receive a TLC and file a petition with 

U.S. Citizenship and Immigration 

Services (USCIS). As a result, 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. 

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 otherwiseestablished 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. 

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 


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16Temporary 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). 

17USCIS data pulled from the Computer Linked 

Application Information Management System 

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

information about CLAIMS 3 is available at https:// 

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

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

18The 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. 

19Premium processing allows for expedited 

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

U.S.C. 1356(u). 

20Temporary 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). 

21The 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. 

22 DHS to Improve Integrity of Visa Program for 

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

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

23Proclamation 9994 of Mar. 13, 2020, Declaring 

a National Emergency Concerning the Coronavirus 

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

18, 2020). 

24https://twitter.com/DHSgov/status/ 

1245745115458568192?s=20. 

25https://twitter.com/DHSgov/status/124574511

6528156673. 

26 86 FR 28198 (May 25, 2021). 

27https://www.uscis.gov/news/alerts/capreached-for-remaining-h-2b-visas-for-returningworkers-for-fy-2021 (Aug. 19, 2021). 

28The 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. 

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. 

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. 

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

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 


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29USCIS H–2B petition approval data pulled from 

CLAIMS3 on March 16, 2022. 

30 87 FR 4722 (Jan. 28, 2022); 87 FR 6017 (Feb. 

3, 2022) (correction). 

31USCIS H–2B petition approval data pulled from 

CLAIMS3 on March 31, 2022. 

32The 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. 

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). 34See 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). 35See Outdoor Amusement Bus. Ass’n, 983 F.3d 

at 684–89. 36See 8 CFR 214.2(h)(6)(iii)(A) and (C), 

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

37These 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 

Continued 

returning workers, as well as 6,805 

beneficiaries from the Northern Central 

American countries.29

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

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. 

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

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 


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

of the [INA] . . . .’’). 

38See 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. 

39While 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. 

40USCIS H–2B petition approval data pulled from 

CLAIMS3 on March 31, 2022. 

41 Id. 

42For 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. 

43See the docket for this rulemaking for access to 

these letters. 44 Id. 45See, 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). 

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

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. 

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

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. 

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 


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46Consolidated 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. 

47The 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/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

48Some 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-ofthe-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23, 

2021). 

49The 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-ofthe-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23, 

2021). 

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. 

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 


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50We 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). 

51See 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). 

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-visastatistics/monthly-nonimmigrant-visaissuances.html (last visited Mar. 15, 2022). 

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. 

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

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. 

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 


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Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 30343 

54 During fiscal years 2005 to 2007, and 2016, 

Congress enacted ‘‘returning worker’’ exemptions to 

the H–2B visa cap, allowing workers who were 

counted against the H–2B cap in one of the three 

preceding fiscal years not to be counted against the 

upcoming fiscal year cap. Save Our Small and 

Seasonal Businesses Act of 2005, Public Law 109– 

13, Sec. 402 (May 11, 2005); John Warner National 

Defense Authorization Act, Public Law 109–364, 

Sec. 1074 (Oct. 17, 2006); Consolidated 

Appropriations Act of 2016, Public Law 114–113, 

Sec. 565 (Dec. 18, 2015). 

55USCIS recognizes it may have received 

petitions for more than 29,000 supplemental H–2B 

workers if the cap had not been exceeded within 

the first 5 days of opening. However, DHS estimates 

that not all of the 29,000 workers requested under 

the FY 2018 supplemental cap would have been 

approved and/or issued visas. For instance, 

although DHS approved petitions for 15,672 

beneficiaries under the FY 2018 cap increase, the 

Department of State data shows that as of January 

15, 2019, it issued only 12,243 visas under that cap 

increase. Similarly, DHS approved petitions for 

12,294 beneficiaries under the FY 2017 cap 

increase, but the Department of State data shows 

that it issued only 9,160 visas. 

56On June 3, USCIS announced that it had 

received enough petitions to reach the cap for the 

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

returning workers only, but that it would continue 

accepting petitions for the additional 6,000 visas 

allotted for nationals of the Northern Central 

American countries. See https://www.uscis.gov/ 

news/alerts/cap-reached-for-additional-returningworker-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-forreturning-workers-for-fy-2021 (July 23, 2021). 

57The number of approved workers exceeded the 

number of additional visas authorized for FY 2018, 

FY 2019, as well as for FY 2021 to allow for the 

possibility that some approved workers would 

either not seek a visa or admission, would not be 

issued a visa, or would not be admitted to the 

United States. 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. 

58 DOL OFLC memo to USCIS Office of Policy and 

Strategy March 31, 2022. 

59On 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-halfof-fy-2022 (Mar. 1, 2022). 

60See HHS, Renewal of Determination That A 

Public Health Emergency Exists, https://aspr.hhs.

gov/legal/PHE/Pages/COVID19-12Apr2022.aspx 

(Apr. 12, 2022). 

61USCIS analysis of DOL OLFC Performance 

data. 

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. 

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. 

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

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

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. 

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 


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30344 Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 

62The JOLTS News Release states that the job 

openings rate is calculated by dividing the number 

of job openings by the sum of employment and job 

openings and multiplying that quotient by 100. See 

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

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. 

66https://www.bls.gov/news.release/archives/ 

empsit_04012022.htm. 

67Annual 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. 

68Estimated 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. 

72 (Arts, Entertainment, and Recreation) 

accounted for 14.5%, NAICS 23 

(Construction) accounted for 9.5%, and 

NAICS 11 (Agriculture, Forestry, 

Fishing and Hunting) accounted for 5% 

of filings. 

Within these industries, DOL data 

show increased labor demand over the 

last year. More specifically, DOL data 

from the 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. 

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. 

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. 


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140,000 

120,000 

100,000 

80,000 

60,000 

40,000 

20,000 

0 

3.00 

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

4.00 5.00 6.00 7.00 8.00 9.00 10.00 
Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 30345 

69Proclamation 10294 of Oct. 25, 2021, 

Advancing the Safe Resumption of Global Travel 

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

28, 2021). 

70See DOS, Visa Services Operating Status 

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

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

71See DOS, Important Announcement on Waivers 

of the Interview Requirement for Certain 

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

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

(last updated Dec. 23, 2021). 

72See CDC, Omicron Variant: What You Need to 

Know, https://www.cdc.gov/coronavirus/2019-ncov/ 

variants/omicron-variant.html (last updated Mar. 

29. 2022). 

73See 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-airtravelers.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). 

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. 

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: 

• The 23,500 supplemental cap visas 

limited to returning workers that will be 

immediately available for employers 

will be reached before September 15, 

2022. 

• 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 computergenerated selection, from among the 

petitions received on the final receipt 

date the remaining number of petitions 

deemed necessary to generate the 

numerical limit of approvals for each of 

the scenarios involving numerical 

limitations to the supplemental cap. 

USCIS may, but will not necessarily, 

conduct a lottery if: The 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. 


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74See 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-visastatistics/monthly-nonimmigrant-visaissuances.html (last visited Mar. 15, 2022). 

75 Id. 

76 Id. 

77See 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). 

78See also National Security Council, 

Collaborative Migration Management Strategy, 

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

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

States has strong national security, economic, and 

humanitarian interests in reducing irregular 

migration and promoting safe, orderly, and humane 

migration’’ within North and Central America). 

79As 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-onwaivers-of-the-interview-requirement-for-certainnonimmigrant-visas.html (last updated Dec. 23, 

2021). 

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. 

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. 

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. 

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 


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Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 30347 

80An 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.’’ 

81Since 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). 

82The 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. 

83Public 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. 

under the U.S. immigration laws, which 

are all valuable protections to the 

immigration system, U.S. employers, 

U.S. workers, and workers entering the 

country on H–2 visas. 

Nothing in this rule will limit the 

authority of DHS or DOS to deny, 

revoke, or take any other lawful action 

with respect to an H–2B petition or visa 

application at any time before or after 

approval of the H–2B petition or visa 

application. 

E. Business Need Standard—Irreparable 

Harm and FY 2022 Attestation 

To file any H–2B petition under this 

rule, petitioners must meet all existing 

H–2B eligibility requirements, including 

having an approved, valid, and 

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

and 20 CFR part 655, subpart A. In 

addition, the petitioner must submit an 

attestation to USCIS in which the 

petitioner affirms, under penalty of 

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

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. 

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 


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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 


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84Pursuant 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. 

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. 

86The 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. 

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). 

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

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-tipform (last visited Mar. 29, 2022).85

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. 

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 


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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. 

89HHS, Determination of Public Health 

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

90HHS, Renewal of Determination That A Public 

Health Emergency Exists, https://aspr.hhs.gov/ 

legal/PHE/Pages/COVID19-14Jan2022.aspx (Jan. 14, 

2022). 

91Proclamation 9994 of Mar. 13, 2020, Declaring 

a National Emergency Concerning the Coronavirus 

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

18, 2020). 

92Continuation 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. 

93World Health Organization, WHO Coronavirus 

(COVID–19) Dashboard, https://covid19.who.int/ 

(last visited May 5, 2022). 

94 Id. 

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/importantannouncement-on-waivers-of-the-interviewrequirement-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-statusupdate.html (last updated Nov. 19, 2021). 

98 DOS, Expanded Interview Waivers for Certain 

Nonimmigrant Visa Applicants, https://

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

updated Dec. 23, 2021). 

99See 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, 

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. 

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. 

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

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 


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‘‘Applicants should expect a longer-than-normal 

wait time for this service and plan accordingly.’’ 

100The 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.’’ 

101The 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. 

102See 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). 

103See CDC, What You Need to Know about 

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

ncov/variants/variant.html (last updated Apr. 15, 

2022). 

104See DHS, Statement on Equal Access to 

COVID–19 Vaccines and Vaccine Distribution Sites, 

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

accessed Mar. 23, 2022). 

105See ICE, FAQs: Protected Areas and 

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

ero/protected-areas (last visited Mar. 23, 2022). 

106See 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). 

concerns about COVID variants 

prompted updated testing requirements 

for international air travel to the United 

States, which may have an impact on 

such travel. 

Further, due to the possibility that 

some H–2B workers may be unavailable 

due to travel restrictions, to include 

those intended to limit the spread of 

COVID–19, or visa processing delays or 

may become unavailable due to COVID– 

19 related illness, U.S. employers that 

have approved H–2B petitions or who 

will be filing H–2B petitions in 

accordance with this rule might not 

receive all of the workers requested to 

fill the temporary positions. 

DHS is strongly committed not only to 

protecting U.S. workers and helping 

U.S. businesses receive the documented 

workers authorized to perform 

temporary nonagricultural services or 

labor that they need, but also to 

protecting the rights and interests of H– 

2B workers (consistent with Executive 

Order 13563 and in particular its 

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

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

Further Consolidated Appropriations 

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

DHS to provide options to improve the 

H–2A and H–2B visa programs, to 

include options that would protect 

worker rights.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. 

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. 

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. 

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

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 


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30352 Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 

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). 

108See https://www.whitehouse.gov/briefingroom/speeches-remarks/2021/04/21/remarks-bypresident-biden-on-the-covid-19-response-and-thestate-of-vaccinations-2/ (April 21, 2021). 

109See https://www.whitehouse.gov/briefingroom/statements-releases/2021/12/02/fact-sheetpresident-biden-announces-new-actions-to-protectamericans-against-the-delta-and-omicron-variantsas-we-battle-covid-19-this-winter/ (December 2, 

2021). 

110See 86 FR 59603 (Oct. 28, 2021) (Presidential 

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

(implementing CDC Order). 

111See 87 FR 3425 (Jan. 24, 2022) (restrictions at 

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

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

part of the petition consistent with 8 

CFR 103.2(b)(1). Accordingly, a petition 

may be denied or revoked, as 

applicable, based on or related to 

statements made in the attestation, 

including, but not limited to, because 

the employer violated an applicable 

employment-related law or regulation, 

or failed to notify workers regarding 

equal access to COVID–19 vaccines and 

vaccine distribution sites. 

Other H–2B Employers: While there is 

no additional attestation with respect to 

H–2B petitioners that do not avail 

themselves of the supplemental H–2B 

visas made available under this rule, the 

Departments remind all H–2B 

employers that they must comply with 

all Federal, State, and local 

employment-related laws and 

regulations, including, where 

applicable, health and safety laws and 

laws related to COVID–19 worker 

protections; any right to time off or paid 

time off for COVID–19 vaccination, or to 

reimbursement for travel to and from 

the nearest available vaccination site. 

Failure to comply with such laws and 

regulations would be contrary to the 

attestation 7 on ETA 9142B—Appendix 

B, and therefore may be a basis for DHS 

to revoke the petition under 8 CFR 

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

and conditions of the approved 

petition.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). 

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. 

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 


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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 nonemergency situation must file a 

completed Application for Temporary 

Employment Certification with the 

National Processing Center (NPC) 

designated by the OFLC Administrator 

no more than 90 calendar days and no 

fewer than 75 calendar days before the 

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

for the work). See 20 CFR 655.15. 

Under 20 CFR 655.17, an employer 

may request a waiver of the time 

period(s) for filing an Application for 

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 lateJanuary and ending around midFebruary 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 


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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 employerconducted recruitment activity period 

applicable under 20 CFR 655.40(b). 

Once the SWA places the new job 

order on its public labor exchange 

system, the SWA will perform its 

normal employment service activities by 

circulating the job order for intrastate 

clearance, and in interstate clearance by 

providing a copy of the job order to 

other SWAs with jurisdiction over listed 

worksites as well as those States the 

OFLC CO designated in the original 

Notice of Acceptance issued under 20 

CFR 655.33. Where the occupation or 

industry is traditionally or customarily 

unionized, the SWA will also circulate 

a copy of the new job order to the 

central office of the State Federation of 

Labor in the State(s) in which work will 

be performed, and the office(s) of local 

union(s) representing workers in the 

same or substantially equivalent job 

classification in the area(s) in which 

work will be performed, consistent with 

its current obligation under 20 CFR 

655.33(b)(5). 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 OneStop System to locate qualified U.S. 

workers to fill the employer’s labor 

need. For example, the local AJC, 

working in concert with the SWA, can 

coordinate efforts to contact 

community-based organizations in the 

geographic area that serve potentially 

qualified workers or, when a job 

opportunity is in an occupation or 

industry that is traditionally or 

customarily unionized, the local AJC 

may be better positioned to identify and 

circulate the job order to appropriate 

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

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

addition, as a partner program in the 

One-Stop System, AJCs are connected 

with the State’s unemployment 

insurance program, thus an employer’s 

connection with the AJC will help 

facilitate knowledge of the job 

opportunity to U.S. workers actively 

seeking employment. When contacting 

the AJC(s), the employer must provide 

staff with the job order number or, if the 

job order number is unavailable, a copy 

of the job order. 

To increase navigability and to make 

the process as convenient as possible, 

DOL offers an online service for 

employers to locate the nearest local 

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

and by selecting the ‘‘Find Local Help’’ 

feature on the main homepage. This 

feature will navigate the employer to a 

search function called ‘‘Find an 

American Job Center’’ where the city, 

state or zip code covering the 

geographic area where work will 

commence can be entered. Once entered 


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112The 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. 

113These 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. 

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

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, 


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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 


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

§ 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 noncompliance with program requirements 

and the information gathered during the 

audit assists DOL in determining 

whether it needs to further investigate 

or debar an employer or its agent or 

attorney from future labor certifications. 

Under this rule, an employer may 

submit a petition to USCIS, including a 

valid TLC and Form ETA–9142B–CAA– 

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 


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30358 Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 

114See 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-workerslabor-shortage/ (Apr. 8, 2022). (‘‘U.S. employers say 

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

decamping at near-record rates, while millions of 

open jobs go unfilled. One reason for this labor 

crunch that has largely flown beneath the radar: 

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

potentially enormous long-term implications for the 

job market.’’) 

116See Megan Leonhardt, The Great Resignation 

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

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

industries hit hardest by quits in September are 

leisure and hospitality—including those who work 

in the arts and entertainment, as well as in 

restaurants and hotels—trade, transportation and 

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

observations made in the preceding source align 

with USCIS analysis of labor demand in industry 

sectors that are most represented in the H–2B 

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

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

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

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

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

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

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

deadly pandemic—forces them out of their rut, they 

realize what they’ve been putting up with. And 

because they can learn from the experience of other 

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

the decision of some workers to quit ends up 

inducing other workers to follow suit.’’). 

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 


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117See Greg Iacurci, The Great Resignation 

continues, as 44% of workers look for a new job, 

CNBC, https://www.cnbc.com/2022/03/22/greatresignation-continues-as-44percent-of-workers-seeka-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.’’). 

118On 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. 

119See, e.g., Mitchell Hartman, Omicron’s impact 

on inflation and supply chains is uncertain, 

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

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

trouble getting to work through lockdowns and 

what have you, and labor gets scarcer—particularly 

for those jobs where being present at work matters. 

Supply goes down and has an upward pressure on 

pricing . . .’’); Alyssa Fowers & Rachel Siegel, Five 

charts explaining why inflation is at a near 40-year 

high, Wash. Post, https://www.washingtonpost.com/ 

business/2021/10/14/inflation-prices-supply-chain/ 

(Oct. 14, 2021, last updated Dec. 10, 2021) (‘‘Prices 

for meat, poultry, fish and eggs have surged in 

particular above other grocery categories. The White 

House has pointed to broad consolidation in the 

meat industry, saying that large companies bear 

some of the responsibility for pushing prices 

higher. . . Meat industry groups disagree, arguing 

that the same supply-side issues rampant in the rest 

of the economy apply to proteins because it costs 

more to transport and package materials, while tight 

labor market has held back meat production.’’). 

120Anneken 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/treasuryyellen-economic-impact-ukraine/index.html (Apr. 

6, 2022) 

121USCIS, USCIS Reaches H–2B Cap for First 

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

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

122November 16, 2020 was the last receipt date 

for the first half of FY 2020. See USCIS, USCIS 

Reaches H–2B Cap for First Half of FY 2021, https:// 

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

123Exercise 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). 

124See Jason Douglas et al., Omicron Disrupts 

Government Plans to Lure Migrant Workers as 

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

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

lost customers because people don’t have the 

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

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

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

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

her congressman to put a sign in his office. She 

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

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

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

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

125See 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). 

126See HHS, Renewal of Determination That A 

Public Health Emergency Exists, https://

aspr.hhs.gov/legal/PHE/Pages/COVID19- 

12Apr2022.aspx (Apr. 12, 2022). 

127President 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). 

129https://travel.state.gov/content/travel/en/ 

News/visas-news/suspension-of-routine-visaservices.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/importantannouncement-on-waivers-of-the-interviewrequirement-for-certain-nonimmigrant-visas.html 

(last updated Dec. 23, 2021). 

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

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. 

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, thenPresident 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 


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131 DOS, Visa Services Operating Status Update, 

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

visas-news/visa-services-operating-statusupdate.html (Apr. 8, 2022). 

132See 86 FR 59603 (Oct. 28, 2021) (Presidential 

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

(implementing CDC Order). 

133See 87 FR 3425 (Jan. 24, 2022) (restrictions at 

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

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

134See A Proclamation on Suspension of Entry as 

Immigrants and Nonimmigrants of Certain 

Additional Persons Who Pose a Risk of 

Transmitting Coronavirus Disease 2019 (Nov. 26, 

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

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

135See A Proclamation on Revoking Proclamation 

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

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

136See 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. 

137Because 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. 

possible, subject to local conditions and 

restrictions.131

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

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 predeparture COVID–19 viral test taken the 

day before they board their flight to the 

United States, or documentation of 

recent recovery from COVID–19.136

Shifting requirements as well as varying 

availability of vaccines and tests in 

some H–2B nonimmigrants’ home 

countries could complicate travel. 

In addition to travel restrictions and 

impacts of the pandemic on visa 

services, as discussed elsewhere in this 

rule, current efforts to curb the 

pandemic in the United States and 

worldwide have been partially 

successful. 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. 

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. 


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138See, 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). 

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

(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

Current provision Changes resulting from the 

provisions of the TFR Expected costs of the provisions of the TFR Expected benefits of the provisions of the TFR 

—The current statutory cap limits H–2B visa allocations to 

66,000 workers a year.

—The amended provisions 

will allow for an additional 

35,000 H–2B temporary 

workers. 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 will be 

exempt from the returning 

worker requirement.

—The total estimated cost to file Form I–129 

by human resource specialists is approximately $2,886,332. The total estimated 

cost to file Form I–129 and Form G–28 will 

range from approximately $3,214,372 if 

filed by in-house lawyers to approximately 

$4,304,801 if filed by outsourced lawyers. 

The total estimated cost associated with filing additional petitions ranges from 

$6,100,704 to $7,191,133 depending on 

the filer.

—The total estimated costs associated with 

filing Form I–907 if it is filed with Form 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.

—Form I–129 petitioners 

would be able to hire temporary workers needed to 

prevent their businesses 

from suffering irreparable 

harm. 

—Businesses that are dependent on the success of 

other businesses that are 

dependent on H–2B workers would be protected from 

the repercussions of local 

business failures. 

—Some American workers 

may benefit to the extent 

that they do not lose jobs 

through the reduced or 

closed business activity that 

might occur if fewer H–2B 

workers were available. 

—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.


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TABLE 1—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued 

Current provision Changes resulting from the 

provisions of the TFR Expected costs of the provisions of the TFR Expected benefits of the provisions of the TFR 

—Petitioners will be required 

to fill out the newly created 

Form ETA–9142–B–CAA–6, 

Attestation for Employers 

Seeking to Employ H–2B 

Nonimmigrant Workers 

Under Section 105 of Div. 

O of the Consolidated Appropriations Act, 2021.

—The total estimated cost to petitioners to 

complete and file Form ETA–9142–B– 

CAA–6 is approximately $2,574,553.

—Form ETA–9142–B–CAA–6 

will serve as initial evidence 

to DHS that the petitioner 

meets the irreparable harm 

standard and returning 

worker requirements. 

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

conduct an additional round of recruitment 

is approximately $932,362.

—The additional round of recruitment will ensure that a 

U.S. worker that is willing 

and able to fill the position 

is not replaced by a nonimmigrant worker. 

—An H–2B nonimmigrant who 

is physically present in the 

United States may port to 

another employer.

—The total estimated cost to file Form I–129 

by human resource specialists is approximately $249,660. The total estimated cost 

to file Form I–129 and Form G–28 will 

range from approximately $277,714 if filed 

by in-house lawyers to approximately 

$371,925 if filed by outsourced lawyers.

—The total estimated costs associated with 

filing Form I–907 if it is filed with Form I– 

129 is $434,120 if filed by human 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.

—H–2B workers present in 

the United States will be 

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

—An H–2B worker with an 

employer that is not complying with H–2B program 

requirements would have 

additional flexibility in 

porting to another employer’s certified position. 

—This provision would ensure 

employers will be able to 

hire the H–2B workers they 

need. 

—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 workers 

would be required to provide information about 

equal access to COVID–19 

vaccines and vaccination 

distribution sites.

—The total estimated cost to petitioners to 

provide COVID–19 vaccines and vaccination distribution site information is approximately $1,891.

—Workers would be given information about equal access to vaccines and vaccination distribution. 

—DHS and DOL intend to 

conduct several audits during the period of temporary 

need to verify compliance 

with H–2B program requirements, including the irreparable harm standard as 

well as other key worker 

protection provisions implemented through this rule.

—Employers will have to comply with audits 

for an estimated total opportunity cost of 

time of $207,060.

—It is expected both DHS and DOL will be 

able to shift resources to be able to conduct these audits without incurring additional costs. However, the Departments will 

incur opportunity costs of time. The audits 

are expected to take a total of approximately 4,200 hours and cost approximately 

$333,774.

—DOL and DHS audits will 

yield evidence of the efficacy of attestations in enforcing compliance with H– 

2B supplemental cap requirements. 

—Conducting a significant 

number of audits will discourage uncorroborated attestations. 

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

additional evidence to USCIS. The estimated costs to comply with additional evidentiary requirements is $19,375.

—Additional scrutiny of employers with past H–2B program violations are aimed 

at ensuring compliance with 

program requirements, reducing harms to both U.S. 

workers and H–2B workers. 

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

themselves with the rule.

—Petitioners or their representatives will 

need to read and understand the rule at an 

estimated total opportunity costs of time 

that ranges from $1,846,075 to $2,685,271.

—Petitioners will have the 

necessary information to 

take advantage of and comply with the provisions of 

this rule. 

Source: USCIS and DOL analysis. 


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139Revised effective 1/18/2009; 73 FR 78104; 74 

FR 2837. 

140See 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). 

141A 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). 

142This 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). 

143Source: DOL OFLC memo to USCIS Office of 

Policy and Strategy March 31, 2022. 

144As 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. 

145Of 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. 

146Calculation 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. 

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 semiannually 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. 

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. 

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

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 semiannual 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 


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147Calculation: 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. 

148USCIS Claims3 database, queried using the 

SMART utility by the USCIS Office of Policy and 

Strategy on March 31, 2022. 

149Calculation: 8,650 approved, pending, and 

projected TLCs¥2,346 petitions for H–2B workers 

= 6,304 expected additional petitions for H–2B 

workers. 150USCIS, Filing Your Form G–28, https:// 

www.uscis.gov/forms/filing-your-form-g-28. 151Calculation: 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. 

152Calculation: 6,304 estimated additional 

petitions * 93.67 percent premium processing filing 

rate = 5,905 (rounded) additional Form I–907. 

153Calculation: 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. 

applications requesting approximately 

126,732 H–2B beneficiaries.147

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. 

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

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

[FY 2017–2021] 

Fiscal year 

Number of 

Form I–129 

H–2B petitions 

accompanied by 

a Form G–28 

Total Number of 

Form I–129 H–2B 

petitions received 

Percent of 

Form I–129 

H–2B petitions 

accompanied by 

a Form G–28 

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

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

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

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

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

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

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021, and December 2, 2021. 

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


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154H–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 3—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM I–907 

[FY 2017–2021] 

Fiscal year 

Number of 

Form I–129 

H–2B petitions 

accompanied by 

Form I–907 

Total number of 

Form I–129 H–2B 

petitions received 

Percent of 

Form I–129 

H–2B petitions 

accompanied by 

Form I–907 

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

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

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

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

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

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

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021, and December 2, 2021. 

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. 

TABLE 4—NUMBERS OF FORM I–129 H–2B PETITIONS FILED FOR EXTENSION OF STAY DUE TO CHANGE OF EMPLOYER

AND FORM I–129 H–2B PETITIONS FILED FOR NEW EMPLOYMENT

[FY 2011–FY 2020] 

Fiscal year 

Form I–129 H–2B 

petitions filed 

for extension 

of stay 

due to 

change of 

employer 

Form I–129 H–2B 

petitions filed 

for new 

employment 

Rate of 

extension to 

stay due to 

change of 

employer filings 

relative 

to new 

employment 

filings 

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

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

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

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

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

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

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

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

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


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155USCIS Claims3 database, queried using the 

SMART utility by the USCIS Office of Policy and 

Strategy on March 31, 2022. 

156USCIS Claims3 database, queried using the 

SMART utility by the USCIS Office of Policy and 

Strategy on March 31, 2022. 

157Calculation, 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. 

158Calculation: 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. 

159Calculation: 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. 

160Calculation: 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. 

161Calculation, 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. 

162Calculation: 8,650 Form I–129 H–2B petitions 

* 93.67 percent premium processing filing rate = 

511 Forms I–907. 

163Calculation, 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. 

164These 350 audits are separate and distinct 

from WHD’s investigations pursuant to its existing 

enforcement authority. 

165Available at https://enforcedata.dol.gov/views/ 

data_catalogs.php (accessed April 6, 2022). 

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—Continued 

[FY 2011–FY 2020] 

Fiscal year 

Form I–129 H–2B 

petitions filed 

for extension 

of stay 

due to 

change of 

employer 

Form I–129 H–2B 

petitions filed 

for new 

employment 

Rate of 

extension to 

stay due to 

change of 

employer filings 

relative 

to new 

employment 

filings 

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

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

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. 

The worker protection violation end 

date is established based on the 

‘‘findings end date’’ which represents 

the date that the last worker protection 


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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. 

167Calculation 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. 

168See 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). 

169Calculation: $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. 

170The 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). 

171U.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). 

172U.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). 

173Calculation: $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). 

174Calculation, 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). 

175The DHS ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ 

acknowledges that ‘‘the cost of hiring services 

provided by an outside vendor or contractor is two 

to three times more expensive than the wages paid 

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

public comment to that rule. We believe the 

explanation and methodology used in the Final 

Small Entity Impact Analysis (SEIA) remains sound 

for using 2.5 as a multiplier for outsourced labor 

wages in this rule, 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:// 

Continued 

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

TABLE 5—EMPLOYERS WITH H–2B 

VIOLATIONS WITH WORKER PROTECTION VIOLATION END DATE IN FY 

2017–2021 

Fiscal year 

Employers cited for 

H–2B violations with 

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

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. 

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. 

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 


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www.regulations.gov/document/DHS-2022-0010- 

0001 (accessed April 5, 2022). 

176Calculation, Outsourced Lawyer: $71.71 mean 

hourly wage * 2.5 benefits-to-wage multiplier = 

$179.28 hourly total compensation (hourly 

opportunity cost of time). 

177USCIS, Filing Your Form G–28, https:// 

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

(accessed April 4, 2022). 

178USCIS, 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). 

179Calculation: 0.83 hour to file Form G–28 + 

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

both forms. 

180Calculation, 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. 

181Calculation, 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. 

182Calculation, HR specialist: $823.96 cost per 

petition * 3,503 Form I–129 = $2,886,332 (rounded) 

total cost. 

183Calculation, 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. 

184Calculation: $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. 

185The filing fee is a transfer from the petitioner 

requesting premium processing and also a proxy for 

the total costs to USCIS. 

186See 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. 

187Calculation, 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. 

188Calculation, 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. 

189Calculation, 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. 

190Calculation, 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. 

191Calculation: $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. 

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 inhouse lawyer, and $1,536.88 if filed by 

an outsourced lawyer.181

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

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).185 186 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 inhouse lawyers, and $1,603.98 for 

outsourced lawyers.188

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

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 


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192Calculation: $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. 193U.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). 

194Calculation: $49.53 mean hourly wage for a 

financial analyst * 1.45 benefits-to-wage multiplier 

= $71.82. 

195Calculation: $71.82 estimated total 

compensation for a financial analyst * 5 hours to 

meet the requirements of the irreparable harm 

standard = $359.10. 

196Calculations, 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. 

197Calculation: $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. 

198This 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. 

199Calculation: $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. 

200Calculation: 6,304 estimated number of 

petitioners * $147.90 per petitioner cost to conduct 

additional recruitment = $932,362 (rounded) total 

cost to conduct additional recruitment. 

201See https://www.montgomerycountymd.gov/ 

Library/services/computerhelp.html (accessed 

March 30, 2022). Cost to make black and white 

copies. 

202Calculation: $0.15 per posting * 6,304 

estimated number of petitioners * 2 copies = $1,891 

(rounded) cost of postings. 

requirements is approximately 

$49.30.192

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 $71.82.193 194 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

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

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. 

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. 

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 


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203Calculation, HR specialist: $823.96 estimated 

cost to file a Form I–129 H–2B petition * 303 

petitions = $249,660 (rounded). 

204Calculation, 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). 

205Calculation: 545 estimated additional Form I– 

129 H–2B petitions * 93.67 percent accompanied by 

Form I–907 = 511 (rounded) additional Form I–907. 

206Calculation, 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. 

207Calculation, HR specialist: $1,528.59 to file a 

Form I–907 * 284 forms = $434,120 (rounded). 

208Calculation, 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). 

209Calculation 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. 

210The number in hours for audits was provided 

by the USCIS, Service Center Operations. 

211Calculation: $49.30 hourly opportunity cost of 

time for an HR specialist * 12 hours to comply with 

an audit = $591.60 per audited employer. 

212Calculation: 350 audited employers * $591.60 

opportunity cost of time to comply with an audit 

= $207,060. 

213USPS, Priority Mail, https://www.usps.com/ 

ship/priority-mail.htm (accessed April 5, 2022). 

214Calculation: 500 pages * $0.15 per page = 

$75.00 in printing costs. 

215Calculation: $75.00 in printing costs + $16.10 

in shipping costs = $91.10 to print and ship 

evidence. 

216Calculation: 138 petitioners * $91.10 to print 

and ship evidence = $12,572 total printing and 

shipping costs. 

217Calculation: $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. 

218Calculation: 138 petitioners * $49.30 

opportunity cost of time per petitioner = $6,508 

total estimated opportunity cost of time to print and 

ship evidence. 

219Calculation: $12,572 total printing and 

shipping costs + $6,803 total opportunity cost of 

time = $19,375 total estimated cost of additional 

scrutiny. 

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

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

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

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

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

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

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

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 


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220Brysbaert, Marc (2019, April 12). ‘How many 

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

osf.io/xynwg (accessed March 30, 2022). We use the 

average speed for silent reading of English 

nonfiction by adults. 

221Calculation, 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. 

222Calculation, 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. 

223Calculation, HR specialists: $142.97 

opportunity cost of time * 4,807 = $687,257 

(rounded). 

224Calculation 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). 

225Calculation: $687,257 + $1,158,818 = 

$1,846,075. 

Calculation: $687,257 + $1,998,014 = $2,685,271. 

226Calculation 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. 227Calculation: 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. 

228Calculation: $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. 

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

230These audits are distinct from the WHD’s 

authority to perform investigations regarding 

employers’ compliance with the requirements of the 

H–2B program. 

231Calculation: 12 hours to conduct an audit * 

350 audits = 4,200 total hours to conduct audits. 

232U.S. Office of Personnel Management, Pay and 

Leave, Salaries and Wages, For the Locality Pay area 

of Washington-Baltimore-Arlington, DC-MD-VAWV-PA, 2022, Hourly Basic Rate, https:// 

Continued 

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

The estimated hourly total 

compensation for a HR specialist, inhouse 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

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

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

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. 

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 


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www.opm.gov/policy-data-oversight/pay-leave/ 

salaries-wages/salary-tables/pdf/2022/DCB_h.pdf 

(last accessed March 30, 2022). 

233Calculation, 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). 

234Calculation: $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. 

235Calculation: 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. 236See 2 U.S.C. 1532(a). 

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

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. 

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 


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237See 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 inflationadjusted value: $100 million in 1995 dollars * 1.78 

= $178 million in 2021 dollars. 

238The term ‘‘Federal mandate’’ means a Federal 

intergovernmental mandate or a Federal private 

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

239U.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. 

240Formally known as Subtitle E of the Small 

Business Regulatory Enforcement Fairness Act of 

1996, Public Law 104–121, Title II (May 29, 1996). 

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. 

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

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. 

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 


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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: 

• Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

• The accuracy of the agency’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• The quality, utility, and clarity of 

the information to be collected; and 

• The burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, for example, 

permitting electronic submission of 

responses. 

The aforementioned information 

collection requirements are summarized 

as follows: 

Agency: DOL–ETA. 

Type of Information Collection: 

Extension of an existing information 

collection. 

Title of the Collection: Attestation for 

Employers Seeking to Employ H–2B 

Nonimmigrants Workers Under Section 

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 timelimited 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. 


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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 

■ 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). 

■ 2. Effective May 18, 2022 through May 

18, 2025, amend § 214.2 by adding 

paragraphs (h)(6)(xii) and (h)(28) to read 

as follows: 

§ 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 § 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 nonfrivolous petition, will be approved 

solely for the number of beneficiaries 

that are from the Northern Central 

American countries or Haiti. 

Notwithstanding § 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 


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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 


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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 

■ 3. The authority citation for part 274a 

continues to read as follows: 

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

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

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

L. 114–74, 129 Stat. 599. 

■ 4. Effective May 18, 2022 through May 

18, 2025, amend § 274a.12 by adding 

paragraph (b)(31) to read as follows: 

§ 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 

■ 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). 

■ 6. Effective May 18, 2022 through 

September 30, 2022, add § 655.65 to 

read as follows: 

§ 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 


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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 ‘‘selfreferrals’’). The job order must contain 

the job assurances and contents set forth 

in § 655.18 for recruitment of U.S. 

workers at the place of employment, 

and remain posted for at least 15 

calendar days; 

(ii) During the period of time the SWA 

is actively circulating the job order 

described in paragraph (a)(5)(i) of this 

section for intrastate clearance, the 

employer must contact, by email or 

other available electronic means, the 

nearest comprehensive American Job 

Center (AJC) serving the area of 

intended employment where work will 

commence, request staff assistance 

advertising and recruiting qualified U.S. 

workers for the job opportunity, and 

provide the unique identification 

number associated with the job order 

placed with the SWA or, if unavailable, 

a copy of the job order. If a 

comprehensive AJC is not available, the 

employer must contact the nearest 

affiliate AJC serving the area of intended 

employment where work will 

commence to satisfy the requirements of 

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

(iii) 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 § 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 § 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 § 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. 

■ 7. Effective May 18, 2022 through 

September 30, 2025, add § 655.66 to 

read as follows: 

§ 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, 


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Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022 / Rules and Regulations 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 § 655.65(a)(5)(i) 

through (v) and a recruitment report that 

meets the requirements set forth in 

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

maintained throughout the recruitment 

period set forth in § 655.65(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 


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