USCIS Reaches H-2B Cap for the Second Half of Fiscal Year 2024 and Announces Filing Dates for Supplemental Visas

On March 7, 2024, U.S. Citizenship and Immigration Services (USCIS) received enough petitions to meet the congressionally mandated H-2B cap for the second half of FY 2024. View the complete announcement here. USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States who wish to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam (until December 31, 2029).

Additionally, USCIS and the Department of Labor (DOL) previously released the joint temporary rule releasing supplemental visas for the FY 2024 seasons. Of those supplemental visas, 20,000 are reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti and Honduras. USCIS and DOL also released 44,716 supplemental visas that are reserved for returning workers based on a schedule outlined by the Department of Labor and U.S. Citizenship and Immigration Service.

• For employers seeking nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica:
  Employers requesting an employment start date of April 1, 2024, or later must file such petitions no earlier than March 22, 2024. USCIS will send out a notice when these visas have been depleted.
• For start dates from April 1, 2024 to May 14, 2024 (early second half of FY 2024)
  There are 19,000 visas limited to returning workers regardless of country of nationality. Employers must file these petitions no earlier than March 22, 2024. USCIS will send out a notice when these visas have been depleted.
• For start dates from May 15, 2024 to Sept. 30, 2024 (late second half of FY 2024):
  There are 5,000 visas limited to returning workers regardless of country of nationality. Employers must file these petitions no earlier than April 22, 2024. USCIS will send out a notice when these visas have been depleted.

FAQs Regarding the Additional H-2B Visa Numbers for FY 2024 Workers that Qualify for Supplemental Visas

Q. Which workers are eligible for these supplemental visas?

A. There are two categories of workers who are eligible for these supplemental H-2B visas. First, employers may request workers who have been issued H-2B visas or otherwise granted H-2B status in FY 2021, 2022 or 2023. Second, employers may petition for workers from Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.

Q. I am an employer with a season that starts April 1, 2024 to May 14, 2024 (early second half of FY 2024). How does the cap being reached affect me?

A. Employers who did not make it to the cap by March 7, 2024, will be able to request H-2B supplemental visa numbers for the following groups: 1) 19,000 visas limited to returning workers regardless of country of nationality. These returning workers must have been granted H-2B status in FY 2021, 2022 or 2023; or 2) the 20,000 visas reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.

Employers with a start date between April 1, 2024 to May 14, 2024, will be able to petition for these supplemental visas on March 22, 2024.

Q. I am an employer with a season that starts May 15, 2024 to Sept. 30, 2024 (late second half of FY 2024). I am planning to file my ETA 9142B after January 1, 2025. How does this rule affect me?

A. Employers who do not make it to the cap with a start date of need in the late second half of FY 2024 will be able to request H-2B supplemental visa numbers for the following group of workers: 1) 5,000 visas limited to returning workers regardless of country of nationality; or 2) the 20,000 visas reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.

Employers with a start date of May 15, 2024, and later will be able to petition for additional visas no earlier than April 22, 2024.

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

A. 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 2021, 2022 or 2023.

USCIS Procedures

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

A. Not necessarily. If USCIS receives requests for more than the allotted visas for a certain group, USCIS can conduct a lottery to determine which employers are granted the additional visas.

Q. 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?

A. No.

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

A. Likely no. This year, as with last year, USCIS has made the decision to release one rule governing the supplemental visas. This will likely be the only rule that will be released this year.

Additional Recruitment for Supplemental Visas

Q. Will I have to conduct new recruitment?

A. Yes, USCIS requires additional recruitment 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.

Q. What are the additional recruitment steps that must be conducted?

A. No later than 1 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 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, 2022, 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;
• Where the occupation is traditionally or customarily unionized, provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment, by providing a copy of the job order and requesting assistance in recruiting qualified U.S. workers for the job opportunity;
• Contact current U.S. employees to request assistance with recruitment; and
• Post the job order on employer’s website if employer has a website.

This material has been prepared by Fredrikson & Byron, P.A. for informational purposes only. This information does not create an attorney-client relationship between the reader and Fredrikson & Byron, its attorneys, or the authors of this material. © 2024 Fredrikson & Byron, P.A. All rights reserved.

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