DOL and USCIS Release Final Rule for Supplemental H-2B Visa Numbers for FY 2023

USCIS and DOL have released the joint temporary rule that provides 64,716 additional H-2B temporary nonagricultural worker visas within FY 2023 (from October 1, 2022, to September 30, 2023). 20,000 visas will be reserved for nationals of Haiti and the Northern Triangle countries (El Salvador, Guatemala and Honduras). The remaining 44,716 visas will be available to returning workers who were otherwise granted H-2B status in the past three  fiscal years, and they will be released incrementally based on a schedule outlined by the Department of Labor (DOL) and U.S. Citizenship and Immigration Service (USCIS).

Below are FAQs regarding the additional H-2B visa numbers for FY 2023 Workers that Qualify for Supplemental Visas.

Which workers are eligible for these additional visas?

There are two categories of workers who are eligible for these additional H-2B visas. First, employers may request workers who have been issued H-2B visas or otherwise granted H-2B status in FY 2020, 2021 or 2022. Second, employers may petition for workers from Northern Central America (El Salvador, Guatemala and Honduras) or Haiti.

I am an employer with a season that starts October 1, 2022, to March 31, 2023 (first half of fiscal year). My ETA-9142B has been certified with the DOL, but the H-2B cap has already been met. How does this rule affect me?

Employers who have start dates within the October 1, 2022-March 31, 2023, range but did not make it into the cap may request H-2B supplemental visa numbers for the following group of workers:

There are 18,216 immediately available visas limited to returning workers regardless of country of nationality. These returning workers must have been granted H-2B status in FY 2020, 2021 or 2022.

There are 20,000 visas reserved for the entirety of FY 2023 (October 1, 2022-September 30, 2023) for nationals of El Salvador, Guatemala and Honduras or Haiti.

Employers requesting an employment start date in the first half of FY 2023 may file such petitions starting Dec. 15, 2022. USCIS suspended premium processing until January 3, 2023.

I am an employer with a season that starts April 1 to May 14, 2023 (early second half of FY 2023). I am planning to file my ETA-9142B on or around January 1. How does this rule affect me?

The H-2B randomization process will still proceed as normal. If you submit your H-2B filing between January 1 and January 3, then your petition will be randomly placed into a group. Group A will have 35,000 visa requests (enough to fill the cap). All other groups will have 20,000 visa requests. If you are in Group A, you will likely make it into the “cap,” and once your ETA 9142B is certified with the DOL, you can petition for workers as normal.

However, if you are selected for a later group and you do not make it into the cap, then you will have the additional option of securing workers through this rule. Employers who do not make it to the cap with a start date of need in the early second half of FY 2023 can request H-2B supplemental visa numbers for the following group of workers:

There are 16,500 visas limited to returning workers regardless of country of nationality. These returning workers must have been granted H-2B status in FY 2020, 2021 or 2022.

The remaining visas of the 20,000 visas reserved for the entirety of FY 2023 (October 1, 2022-September 30, 2023) will be for nationals of El Salvador, Guatemala and Honduras or Haiti.

Employers with a start date between April 1, 2023, to May 14, 2023, can petition for additional visas no earlier than 15 days after the second half statutory cap is reached. USCIS will send a notice when the second half of the cap has been reached. This means that the additional visas will be available earlier than the last two years.

I am an employer with a season that starts May 15 to September 30, 2023 (late second half of FY 2023). I am planning to file my ETA-9142B after January 1. How does this rule affect me?

The H-2B randomization process will still proceed as normal. It is likely that the H-2B cap will be reached before you are able to submit your ETA-9142B, as has been the case in past years. This year, there will be additional visas available specifically for employers with start dates from May 15, 2023, to September 30, 2023. This is to ensure that these employers do not lose the opportunity to secure additional visas. Employers who do not make it to the cap with a start date of need in the late second half of FY 2023 will be able to request H-2B supplemental visa numbers for the following group of workers. There are 10,000 visas limited to returning workers regardless of country of nationality. Employers must file these petitions no earlier than 45 days after the second half statutory cap is reached.

The remaining visas of 20,000 visas reserved for the entirety of FY 2023 (October 1, 2022-September 30, 2023) will be for nationals of El Salvador, Guatemala and Honduras or Haiti.

Employers with a start date of May 15, 2023, and later can petition for additional visas no earlier than 45 days after the second half statutory cap is reached. USCIS will send a notice when the second half of the cap has been reached.

How do I prove that I will be seeking workers who qualify for these visas?

USCIS requires that an employer certify that it will only be seeking qualified workers for these visas. Employers may provide evidence that they were only seeking returning workers by keeping evidence on file such as 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 2020, 2021 or 2022.

USCIS Procedures

If I file for these H-2B visas, am I guaranteed to get them?

Filing for an H-2B visa does not necessarily guarantee you will get them. If USCIS receives requests for more than the allotted visas for a certain group, USCIS will conduct a lottery to determine which employers are granted the additional visas.

How will USCIS process the applications filed for the additional H-2B visa numbers?

USCIS will process the applications for the additional numbers on a rolling basis as it receives the applications. It will not process requests for premium processing (which requires USCIS to adjudicate a case within 15 days) until January 3, 2023.

If USCIS approves insufficient petitions to use all the visas allocated to a specific period, will those visas be re-allocated to the later start dates?

No.

Will there be another “supplemental visas” rule released later this year?

No. This year, USCIS has made the decision to release one rule governing the supplemental visas. This is the only rule that will be released this year.

Additional Recruitment

Will I have to conduct new recruitment?

Yes, the employer must take certain recruitment actions if the certified employment start date on the certified ETA 9142B is more than 30 days before the filing date of the petition for the additional visa numbers.

What are the additional recruitment steps that must be conducted?

No later than one business day after filing the I-129 petition, the employer must place a new job order with the relevant State Workforce Agency (SWA) for at least 15 calendar days. In addition, the employer must conduct the following actions:

• Post the job order with the State Workforce Agency (SWA);
• 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 the date on which the last H-2B worker departs for the place of employment, or 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.
• (NEW in 2023) Contact current U.S. employees to request assistance with recruitment.
• (NEW in 2023) Post the Job Order on employer’s website if employer has a website.

Establish Irreparable Harm

What must an employer document to establish irreparable harm?

An employer must complete and submit the correct version of DOL Form ETA 9142-B-CAA-7 (to be released on Thursday, December 15), attesting to irreparable harm and that it will only seek returning/Northern Central American workers. DOL and USCIS are committed to increasing audits for this purpose.

This year, in addition to attesting that your business will suffer “irreparable harm,” employers will also need to write a detailed statement attesting to the irreparable harm that the business would face if not granted H-2B visas, along with evidence.

The employer will also need to keep one of the following types of supporting evidence on file for at least three years:

• 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;
• 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;
• Evidence showing the number of workers needed in the previous three seasons (FY 2020, 2021 and 2022) 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 include the dates of their employment, and their hours worked (for example, payroll records) and evidence showing the number of H-2B workers it claims are needed, and the workers’ actual dates of employment and hours worked; and/or
• 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 goods and services, or other reliable forecasts of an impending need for workers.

H-2B Portability

Will H-2B employees who are transferred to a new employer be able to start employment with the new employer before the H-2B petition is approved?

Yes, H-2B portability has been extended until January 24, 2024.

Additional information can be found on the USCIS website.

For any questions, please contact your Fredrikson H-2 Immigration Solutions Team.