DEPARTMENT OF LABOR REGULATION ON NUMERICAL LIMITS ON NON-AGRICULTURAL WORKERS
In an effort to address the growing demand for H-2B visas, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have collaborated to introduce a temporary rule for FY 2024. This rule will increase the number of H-2B visas by an impressive 64,716, with 20,000 of these visas specifically allocated for individuals from countries such as Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. However, these additional visas will only be granted to businesses that can demonstrate significant harm or imminent damage.
To further support H-2B workers, the rule also includes provisions for temporary portability flexibility. This means that these workers will have greater flexibility when it comes to changing employers while their H-2B petition is being processed.
The DHS and DOL are actively seeking feedback on the new information collection Form ETA-9142B-CAA-8, and comments will be accepted until January 16, 2024. This demonstrates their commitment to transparency and ensuring that all stakeholders have a voice in the process.
Overall, this temporary rule is a significant step towards meeting the demand for H-2B visas and addressing the needs of businesses that heavily rely on these workers. By providing additional visas and flexibility, the DHS and DOL are working towards creating a more efficient and effective H-2B program.
VISAS FOR RETURNING WORKERS
The rule provides an allocation of 5,000 visas specifically for returning workers in the latter part of FY 2024. Employers are required to submit their petitions no earlier than 45 days after reaching the statutory cap for the second half of the year. Employers who file an H-2B petition 30 days or more after the certified start date must take additional measures to actively recruit U.S. workers. The Department of Homeland Security (DHS) and the Department of Labor (DOL) express concerns about employer non-compliance with the H-2B program and will carry out audits to ensure adherence to the program's regulations. In order to qualify for the supplemental cap, employers must fulfill all existing H-2B eligibility requirements and submit an attestation demonstrating irreparable harm. Employers must petition the DHS for the classification of prospective temporary workers as H-2B nonimmigrants.
H-2B PETITIONS
Starting from October 1, 2024, the Department of Homeland Security (DHS) will no longer approve H-2B petitions associated with the FY 2024 supplemental cap authority. To accompany an H-2B petition, an approved Temporary Labor Certification (TLC) from the U.S. Department of Labor (DOL) or the Guam Department of Labor is required. In an effort to provide more flexibility to H-2B petitioners, DHS allows nonimmigrant workers in the United States to commence work with a new employer while their H-2B petition is still pending. The Immigration and Nationality Act (INA) designates the Secretary of Homeland Security as responsible for administering and enforcing immigration laws. The TLC serves as a consultation between DHS and DOL to determine if a qualified U.S. worker is available to fill the job opportunity requested by the H-2B employer.
DOL has established regulatory procedures to certify the availability of qualified U.S. workers for job opportunities. The maximum annual number of H-2B visas or nonimmigrant statuses that can be issued to noncitizens is 66,000. This annual cap is divided into two semiannual allotments of 33,000 visas each. If DHS does not approve enough petitions to utilize all the H-2B numbers in a particular fiscal year, the unused numbers cannot be carried over for petition approvals with employment start dates in the next fiscal year or later. In recent years, USCIS has received a sufficient number of H-2B petitions to reach the first half of the fiscal year's statutory cap even before the fiscal year begins. The INA empowers DHS to impose appropriate measures against employers who fail to meet the terms and conditions of employing H-2B nonimmigrant workers or who intentionally misrepresent material facts in H-2B petitions. DHS has delegated its authority to DOL, which follows regulations outlined in 29 CFR part 503.
SUPPLEMENTAL CAPS FOR THE H-2B PROGRAM
The document highlights the involvement of key government agencies such as the Department of Homeland Security (DHS), the Department of Labor (DOL), and U.S. Citizenship and Immigration Services (USCIS). Over the past few fiscal years, Congress has authorized additional caps for the H-2B program.
With discretionary authority granted by the Secretary of Homeland Security, the H-2B cap can be increased beyond the annual numerical limitation specified in section 214 of the INA. The regulation provides a clear process for applying for extra visas under the supplemental cap, while also delving into the program's history and the number of visas issued in recent years. In a collaborative effort, DHS and DOL have published a temporary final rule that authorizes an increase of up to 20,000 additional H-2B visas for FY 2022.
ADDITIONAL VISAS ARE LIMITED TO RETURNING WORKERS
The additional visas are specifically designated for returning workers who have either exceeded the H-2B cap or have previously been granted H-2B status within the last three fiscal years. Employers are required to demonstrate a level of need that would result in irreparable harm without the addition of these workers. According to data from USCIS, a total of 17,381 H-2B workers were approved for the first half of FY 2022 supplemental cap increase. In light of this, the Department of Homeland Security (DHS) and the Department of Labor (DOL) have made the decision to increase the H-2B cap for FY 2022 positions with start dates beginning on April 1, 2022. It is important to note that the Secretary of Homeland Security did not exercise discretionary authority to increase the H-2B cap in FY 2020 due to the impact of the COVID-19 pandemic.
To address this need, DHS and DOL have jointly published a temporary final rule that authorizes an increase of up to 35,000 additional H-2B visas for the second half of FY 2022. Out of this allocation, 23,500 visas are exclusively reserved for H-2B returning workers, while 11,500 visas are specifically set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti. This expansion aims to provide opportunities for individuals from these countries and manage irregular migration effectively.
By providing this revised information, employers can have certainty in their ability to access the necessary workforce. The allocation of supplemental visas has been strategically planned, with multiple seasonal allocations and a focus on assisting employers who require workers later in the season. It is worth noting that the Departments of Homeland Security and Labor have opted not to carry over any unused visas to encourage the full utilization of the allocation.
To ensure fairness and meet business needs, the Departments have chosen not to prioritize certain industries for the allocation of supplemental visas. Instead, they have established an "irreparable harm" standard to assess business needs objectively. Furthermore, the allocation has been expanded to include nationals from Ecuador, Colombia, and Costa Rica, in addition to the previous countries. This decision aims to provide a legal pathway for individuals from these countries while also addressing labor market demands.
Transparency is crucial in this process, and the Departments emphasize the significance of data transparency. USCIS's H-2B Employer Data Hub is an excellent resource for detailed information on H-2B petitions. The Departments have responded to concerns regarding the allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti, stating that the decision is supported by growth data.
In response to comments and suggestions, the Departments have provided explanations and justifications for their decisions. They defend the attestation form as necessary to establish eligibility for supplemental H-2B visas. The irreparable harm standard is considered reasonable and clear, and additional recruitment requirements are believed to be essential in ensuring the unavailability of U.S. workers for the given job opportunities.
While commenters proposed alternative models for labor migration and permanent changes to the H-2B program, the Departments have decided not to adopt these suggestions in the temporary final rule. However, they are considering them as part of broader reform efforts. The Departments are actively exploring permanent reforms to the H-2B program, such as grace periods for workers to leave employers, increased employer accountability, and reduced time requirements for staying outside the U.S. after reaching three years in H-2B status.
To protect the rights of vulnerable workers and enhance program integrity, the Departments are involved in an H-2B Worker Protection Taskforce. The task force is taking new actions to strengthen protections for workers, with four federal agencies working together towards this goal.
In conclusion, the Departments of Homeland Security and Labor are committed to providing the maximum number of visas for FY 2024 and aim to release them as early as possible to provide employers with certainty. They are continuously evaluating labor market conditions and the demand for H-2B workers to justify the allocation of supplemental visas. The Departments are dedicated to transparency and will consider suggestions to improve data transparency and the overall H-2B program.
64,716 ADDITIONAL H-2B VISAS FOR THE ENTIRETY OF FY 2023
According to data from USCIS, a total of 43,798 H-2B workers were approved for the supplemental cap increase in the second half of FY 2022. In response to the growing demand for H-2B workers, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule, allowing for an increase of up to 64,716 additional H-2B visas for FY 2023. Out of these additional visas, 44,716 were reserved for returning workers, while 20,000 were set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti. The data from USCIS further reveals that the total number of H-2B workers approved for the FY 2023 supplemental cap increase was 78,302. Taking into consideration the demand for H-2B workers, recent economic growth, and strong labor demand, DHS and DOL believe it is appropriate to increase the H-2B cap for FY 2024.
MAXIMUM NUMBER OF VISAS PROVIDE CERTAINTY TO EMPLOYERS
DHS and DOL have jointly decided to issue this temporary final rule, leaving no room for doubt about the authority behind it. In order to provide employers with certainty, the Departments of Homeland Security and Labor are making the maximum number of visas available for FY 2024, releasing them as early as possible. These supplemental visas will be allocated in multiple seasonal distributions, with two reserved for the second half of the fiscal year. The decision on the number of supplemental visas is backed by labor market conditions and the demand for H-2B workers. To assist employers who require workers later in the season, the Departments have set aside supplemental visas for the late second half of FY 2024. They have chosen not to carry over any unused visas, highlighting operational burdens and the goal of encouraging full utilization of the allocation.
"IRREPARABLE HARM" STANDARD
Furthermore, the Departments have chosen not to prioritize specific industries when allocating supplemental visas, opting instead to prioritize business needs based on the "irreparable harm" standard. In an effort to address irregular migration, the Departments have expanded the allocation to include individuals from Ecuador, Colombia, and Costa Rica, in addition to the Northern Central American countries and Haiti. This expansion is seen as a lawful pathway for individuals from these countries. However, Ukrainian nationals have been excluded from the allocation due to their existing support through other processes and their historically high number of H-2B visas.
IMPORTANCE OF DATA TRANSPARENCY
The Departments strongly emphasize the crucial role of data transparency and shine a spotlight on the USCIS H-2B Employer Data Hub as a valuable resource for obtaining comprehensive information on H-2B petitions. In response to a comment suggesting that the allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti is excessive, the Departments present their argument, backed by growth data, to support their decision. Additionally, the Departments address the requests for more data regarding the H-2B program by acknowledging their ongoing efforts to enhance transparency and assure the commenters that their suggestions will be taken into consideration.
RESPONSE TO COMMENTS
In response to a comment expressing concerns about the attestation form being overly burdensome, the Departments assert its necessity in determining eligibility for supplemental H-2B visas. They address worries regarding the irreparable harm standard, emphasizing that it is reasonable for employers to attest to this requirement and that the standard is adequately clear. The Departments firmly defend the additional recruitment requirements, stating their significance in ensuring the unavailability of U.S. workers for the relevant job opportunity. Furthermore, they dismiss allegations of violating the National Environmental Policy Act by asserting that they have provided ample analysis in the FY 2023 TFR.
NO TO AN "ALTERNATIVE MODEL FOR LABOR MIGRATION"
Two individuals provided an innovative proposal for labor migration called the "Alternative Model for Labor Migration." This model aimed to empower workers by giving them more control over their visas and the ability to self-petition for citizenship. However, the Departments decided against adopting this model, citing its lack of feasibility within the confines of a temporary rule and the fact that it fell outside their authority. Alongside this proposal, commenters also suggested permanent changes to the H-2B program, including enhanced protections for both foreign and U.S. workers, and improvements in program integrity and efficiency. These recommendations encompassed various measures, such as implementing a grace period for workers to transition between employers, ensuring beneficiaries are informed of their immigration status, and facilitating access to deferred action for workers facing labor rights violations. In response to these suggestions, the Departments justified their decision to pair the release of supplemental visas with additional recruitment requirements in a temporary final rule, citing valid reasons for doing so.
GRACE PERIODS FOR WORKERS TO LEAVE EMPLOYERS
3 The Departments are considering permanent reforms to the H-2B program, including providing grace periods for workers to leave employers, increasing employer accountability, and reducing the time required to be outside the U.S. after reaching 3 years in H-2B status. The Departments are also involved in an H-2B Worker Protection Taskforce, which focuses on program integrity and worker vulnerabilities. The Taskforce has announced new actions to be taken by four federal agencies to strengthen protections for vulnerable workers. Commenters suggested a number of changes to the H-2B program, including allocating visas to employers who pay the highest wages, prohibiting visas to employers engaged in labor disputes, and granting work authorization to spouses of H-2 nonimmigrants. The Departments declined to adopt these suggestions in the temporary final rule, but are considering them as part of broader reform efforts.
ADDITIONAL RECRUITMENT STEPS ARE NECESSARY TO ENSURE NO QUALIFIED U.S. WORKERS AVAILABLE FOR THE POSITIONS.
The Secretary of Homeland Security has concluded that additional measures must be taken to ensure that no qualified American workers are available for these positions. As a result, the extra visas will only be granted to returning workers, except for 20,000 visas that will be specifically allocated to H2B workers from select countries in the Western Hemisphere. This distribution of visas aims to support the United States' efforts in managing irregular migration and providing greater visa opportunities for individuals from Northern Central American nations. To ensure compliance with the H-2B program requirements, both the DHS and DOL will conduct a substantial number of audits.
LAWFUL PATHWAY FOR NATIONALS OF EL SALVADOR, GUATEMALA, HONDURAS, AND HAITI TO WORK IN THE UNITED STATES
DHS has granted approval for numerous petitions, benefiting thousands of individuals, under the allocations for FY 2021, FY 2022, and FY 2023. In a joint effort by DHS and the Biden administration, the H-2B program is being promoted as a legal avenue for citizens of El Salvador, Guatemala, Honduras, and Haiti to seek employment opportunities in the United States. However, it's important to note that DHS will not accept petitions for the country-specific allocation if the date of need falls on or after April 1, 2024, unless they are received at least 15 days after the INA section 214(g) cap for the second half of FY 2024 has been met. The Secretary of Homeland Security has decided to restrict the supplemental visas to H-2B returning workers, unless the employer specifically requests workers from the specified countries on the new attestation form. It should be noted that unfilled visas reserved for these nationals will not be made available under the general returning worker cap. This decision by the Secretary of Homeland Security to increase the numerical limitation is based on the understanding that certain businesses are currently facing or will soon face irreparable harm if they are unable to employ all the H-2B workers they have requested through their petitions.
64,716 ADDITIONAL H-2B VISAS FOR FY 2024
The Secretary of Homeland Security has recently made a significant decision to address the pressing needs of U.S. businesses. In order to alleviate the irreparable harm that these businesses are experiencing, or will soon face, due to the lack of H-2B workers, an increase of up to 64,716 additional visas will be allowed for FY 2024. This increase not only aims to support the foreign policy interests of the United States but also ensures that businesses comply with additional worker protections. To further assist U.S. businesses with varying start dates, the supplemental visas will be distributed in several allocations. It's important to note that individuals authorized for H-2B status under section 303 will not be permitted to change their status from another nonimmigrant status to H-2B.
On a related note, USCIS has already received a significant number of petitions, reaching the cap for the first half of FY 2024. This has been a recurring phenomenon in previous years, with the number of beneficiaries covered by H-2B petitions exceeding the additional visas allocated under recent supplemental caps. To address this, DHS has made the supplemental cap available twice in FY 2022, once in January and again in May. As a result, USCIS has already approved a substantial number of beneficiaries, with 61,179 approvals in FY 2022 and 78,302 in FY 2023.
These developments demonstrate the efforts of various government agencies, such as the Department of Homeland Security, the Department of Labor, and U.S. Citizenship and Immigration Services, to address the labor market needs during periods of low unemployment. By analyzing industry unemployment rates and the percentage of H-2B filings by industry, the government aims to ensure a fair and efficient allocation of visas to meet the demand in different sectors.
Overall, the allocation of additional visas for the H-2B temporary nonagricultural worker program in FY 2024 is a crucial step towards providing U.S. employers with the necessary labor force. The decision to allocate separate visas for returning workers, as well as for nationals of specific countries, reflects the government's commitment to safe, orderly, and lawful migration while promoting economic development and stability. Employers must attest to their suffering irreparable harm, and compliance with existing eligibility requirements is essential. This comprehensive approach aims to meet the demand for H-2B workers and further expand lawful immigration, benefiting both businesses and the overall economy.
ADDITIONAL VISAS FOR THE H-2B TEMPORARY NONAGRICULTURAL WORKER PROGRAM.
The document makes references to various government agencies, such as the Department of Homeland Security, the Department of Labor, and U.S. Citizenship and Immigration Services. It highlights the significance of the H-2B program in addressing labor market needs during periods of low unemployment. Additionally, the document provides data on industry unemployment rates and the percentage of H-2B filings by industry. It also discusses the allocation of supplemental H-2B visas to meet the demand in specific industries.
In relation to the H-2B temporary nonagricultural worker program for fiscal year 2024, the Department of Homeland Security (DHS) believes it is essential to release the maximum number of additional visas at this time. This decision is driven by the high demand for H-2B workers, the ongoing economic recovery, and the continuous growth of job opportunities. DHS anticipates that U.S. Citizenship and Immigration Services (USCIS) will reach the statutory cap for the second half of FY 2024, leading to a need for supplemental visas. Data from the Department of Labor (DOL) consistently shows a high demand for H-2B visas, especially during the second half of the fiscal year. Due to the expected demand for supplemental visas in the first half of FY 2024, DHS deems it appropriate to issue a single rule that covers the entire fiscal year. This approach benefits the regulated public by providing them with more notice and certainty regarding the availability of visas for the second half of the fiscal year.
20,716 VISAS AVAILABLE FOR RETURNING WORKERS IN THE FIRST HALF OF FY 2024
DHS has announced the availability of 20,716 visas for returning workers in the first half of FY 2024, with a filing deadline set for September 16, 2024. However, in the event that USCIS approves fewer petitions than the available visas, the unused numbers will not be carried over for the second half allocation. As for the second half of FY 2024, DHS will initially make 19,000 visas exclusively for returning workers, with a filing deadline that may be earlier than September 16, 2024 if the numerical limit is reached beforehand. Additionally, the rule includes a separate allocation of visas for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, which will be available throughout FY 2024.
20,000 ADDITIONAL VISAS SPECIFICALLY FOR NATIONALS OF EL SALVADOR, GUATEMALA, HONDURAS, HAITI, COLOMBIA, ECUADOR, AND COSTA RICA
The Department of Homeland Security (DHS) has allocated an additional 20,000 visas exclusively for individuals from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. These visas are intended for petitioners seeking employment before the end of FY 2024. DHS expects these 20,000 visas to be utilized, as there has been an increase in workers from these countries participating in the H-2B program. However, in the event that these visas are not used, they will not be transferred to other allocations.
3 Furthermore, DHS has designated 44,716 supplemental visas for "returning workers" who have previously participated in the H-2B program. These visas are divided into three allocations: 20,716 visas for employers with dates of need between October 1, 2023, and March 31, 2024; 19,000 visas for employers with dates of need between April 1, 2024, and May 14, 2024; and 5,000 visas for late-season employers with dates of need between May 15, 2024, and September 30, 2024. If any of these allocations are reached before September 16, 2024, the United States Citizenship and Immigration Services (USCIS) will randomly select petitions to fill the remaining visa slots. "Returning workers" are individuals who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022. These workers enjoy a faster processing time for renewal applications and may be eligible for an interview waiver.
HELP PROVIDE U.S. EMPLOYERS WITH ADDITIONAL LABOR FROM THESE COUNTRIES
Additionally, the Department of Homeland Security (DHS) is setting aside an allocation of 20,000 extra H-2B visas specifically for individuals from Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. These visas are exempt from the "returning worker" requirement and aim to facilitate safe and lawful migration to the United States, while providing U.S. employers with a valuable source of labor from these countries. Petitioners seeking H-2B workers under this supplemental cap must ensure that each employee meets the "returning worker" requirement, unless they are from one of the seven specified countries.
Furthermore, DHS has determined that reserving these 20,000 supplemental H-2B visas for specific countries is a reasonable measure considering the growing utilization of H-2B visas in recent years. The United States Agency for International Development (USAID) has been actively involved in bolstering government capacity in Northern Central America to facilitate access to temporary worker visas through the H-2 program. This set-aside of 20,000 visas aligns with the objectives outlined in Executive Order 14010, which calls for the implementation of measures to enhance visa program accessibility for individuals from Northern Central American nations. By allocating these visas to specific countries, DHS aims to further promote the development and economic stability of these nations, ultimately reducing irregular migration across the Western Hemisphere.
EMPLOYERS MUST ATTEST THAT THEY ARE SUFFERING IRREPARABLE HARM
DHS has determined that the additional increase in FY 2024 will not only provide U.S. businesses with a pool of potential workers but also promote the further expansion of lawful immigration. The exemption from the returning worker requirement will significantly enhance the opportunity for workers from specific countries to pursue temporary work in the United States. To qualify for these opportunities, employers must meet all existing H-2B eligibility requirements, including possessing an approved, valid, and unexpired Temporary Labor Certification (TLC). Moreover, employers must provide a detailed written statement explaining the irreparable harm they would suffer without access to the supplemental visas. This statement should be supported by evidence such as financial statements, payroll records, and business plans. While the written statement does not need to be submitted with the petition, employers must attest on the attestation form that they have prepared a comprehensive statement. In case of an audit or investigation, the employer may be required to provide the written statement and supporting evidence to DHS and/or DOL. It is crucial to ensure that all petitions are submitted before September 16, 2024, as USCIS will no longer accept petitions received under the country-specific allocation after this date. USCIS reserves the right to reject or deny a petition if it lacks the required attestation.
EMPLOYERS MUST RETAIN DOCUMENTATION SUPPORTING THE NEW ATTESTATIONS REGARDING THE IRREPARABLE HARM
Employers must maintain proper documentation to support the newly required attestations concerning the irreparable harm standard, the returning worker requirement, and the country-specific allocation. Additionally, employers must retain a recruitment report for any supplementary recruitment needed according to this rule. USCIS reserves the right to request additional evidence or revoke a petition based on the examination of such documentation. Failure to cooperate with any compliance review, evaluation, verification, or inspection could result in the revocation of the petition.
Furthermore, the rule allows petitioners to immediately hire certain H-2B workers without waiting for approval of the H2B petition, typically for a maximum period of 60 days. To qualify for portability, employers must have obtained an approved Temporary Labor Certification (TLC) that demonstrates completion of a U.S. labor market test. The Department of Homeland Security (DHS) is extending this portability option for an additional one-year period. DHS is responsible for determining eligibility for H-2B classification. Any evidence indicating a preference for hiring H-2B workers over U.S. workers may trigger an investigation by other agencies. DHS and the Department of Labor (DOL) emphasize that the attestation requirement, DOL procedures, and all other aspects of this rule are integral and cannot be separated from the rest of the rule.
RULE PROVIDES H-2B NONIMMIGRANT WORKERS WITH THE FLEXIBILITY TO BEGIN WORK WITH A NEW H-2B PETITIONER IMMEDIATELY
DHS is fully committed to safeguarding the interests of both American workers and businesses while also protecting the rights of H2B workers. With the new rule in place, H-2B nonimmigrant workers have the flexibility to start working with a new H-2B petitioner immediately, avoiding any potential loss of income or job opportunities. However, it's important to note that the employment authorization provided under this provision will only last for 15 days after the H2B petition is denied or withdrawn. The Departments have decided that the specific requirements related to COVID-19 are no longer necessary to include. It is crucial for all H-2B employers to comply with federal, state, and local employment-related laws and regulations, including health and safety laws. To request H-2B workers under the supplemental allocations mentioned in this rule, the petitioner must submit a Form I129 at the USCIS Texas Service Center.
Employers have the responsibility to demonstrate that there is a shortage of qualified U.S. workers for the job opportunity and that hiring a foreign worker will not negatively impact wages or working conditions. For nationals from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica, petitioners must file a separate Form I-129. All filings related to the supplemental allocations must be submitted at the USCIS Texas Service Center. USCIS will start accepting returning worker H-2B petitions and petitions for workers under the country-specific allocation at different times, depending on the requested start date. Petitioners must have a valid Temporary Labor Certification (TLC), and the employment start date on the H-2B petition must match the date certified by the Department of Labor (DOL). It is essential for petitioners to keep a copy of their attestations and supporting evidence for a period of 3 years.
USCIS CANNOT APPROVE PETITIONS SEEKING H-2B WORKERS UNDER THIS RULE ON OR AFTER OCTOBER 1, 2024
Furthermore, it is important to note that starting from October 1, 2024, USCIS will no longer be able to approve petitions seeking H-2B workers under this rule. However, employers do have the option to request a waiver of the time period for filing an Application for Temporary Employment Certification if they can demonstrate "good and substantial" cause. In cases where employers file an I-129 petition 30 days or more after their certified start date of work, they are required to conduct additional recruitment efforts to hire U.S. workers. To obtain a valid Temporary Labor Certification (TLC), employers must meet all the requirements outlined in 20 CFR part 655, subpart A.
Moreover, employers must post job orders for a minimum of 15 calendar days to ensure that U.S. workers are aware of the available job opportunities. To facilitate recruitment activities, employers are encouraged to reach out to their local American Job Centers (AJCs). Additionally, employers must place a new job order with the State Workforce Agency (SWA) and provide them with the TLC case number. It is also necessary for employers to notify the Office of Foreign Labor Certification National Processing Center (OFLC NPC) of the TLC case number. The SWA will then circulate the job order for intrastate and interstate clearance. In order to seek assistance in recruiting U.S. workers, employers must contact the nearest AJC.
EMPLOYERS MUST CONTACT THE AFL-CIO FOR TRADITIONALLY OR CUSTOMARILY UNIONIZED OCCUPATIONS OR INDUSTRIES
Employers should make a point of reaching out to the AFL-CIO when it comes to jobs in occupations or industries that are traditionally or customarily unionized. To identify which occupations fall into this category, employers can refer to the OFLC website. It is crucial for employers to provide documentation or evidence of their contact with the AFL-CIO. If needed, employers can seek assistance from the national AFL-CIO in circulating the job order. In the recruitment report, employers must include information that confirms their contact with the AFL-CIO.
5 Employers must also make an effort to contact current and former U.S. workers to inform them about the job opportunity and ask for their help in recruiting qualified U.S. workers. Employers must either provide a copy of the job order to the bargaining representative or post it in accordance with the guidelines stated in 20 CFR 655.45(b). It is important for employers to keep documentation of their contact with current and former U.S. workers. Additionally, employers must ensure that their contact and disclosures are provided in a language that the worker understands.
EXEMPTION FROM TRANSLATING THE JOB ORDER INTO A PARTICULAR LANGUAGE
The Department of Labor (DOL) will take a broad approach in determining the qualifications necessary for an exemption from translating the job order into a specific language. Employers are required to post the job opportunity advertisement on their company website for a minimum of 15 calendar days. It is vital for employers to avoid any form of discrimination against U.S. workers based on race, color, national origin, age, sex, religion, disability, or citizenship. Employers must maintain documentation proving their adherence to regulatory requirements. If U.S. workers encounter difficulties accessing or understanding the job opportunity, they have the right to file complaints with the State Workforce Agency (SWA). Employers are obligated to hire any qualified U.S. worker who applies or is referred for the job opportunity.
EMPLOYERS MUST PREPARE AND RETAIN A RECRUITMENT REPORT
Employers are required to prepare and maintain a comprehensive recruitment report that outlines their efforts to recruit U.S. workers. In the event of any concerns or issues related to the H-2B program, the H-2B Ombudsman Program is available to help resolve them. If an employer fails to comply with the H-2B program requirements, individuals can submit complaints to the Wage and Hour Division (WHD) of the DOL. The WHD has the authority to impose sanctions and provide remedies if an employer is found to have violated the H-2B program requirements. It is essential for employers to retain documentation demonstrating their compliance with this rule for a period of three years.
Furthermore, the WHD has successfully collected millions of dollars in back wages and penalties from employers who have violated the H-2B program requirements. Workers have the option to file complaints with the WHD either through phone or online channels. The DOL has the authority to conduct audits of certifications to ensure compliance with program requirements. Employers are required to attest to their compliance with the requirements for accessing supplemental H-2B visas. To prevent fraud and abuse, the DHS and DOL will share information. The WHD is well-equipped to investigate allegations of violations, including instances of retaliation. Additionally, the DOL's Office of Foreign Labor Certification (OFLC) holds the authority to conduct audit examinations.
DOCUMENTATION EMPLOYERS MUST SUBMIT TO THE CERTIFYING OFFICER (CO)
The rule provides clear guidelines on the necessary documentation that employers must submit to the Certifying Officer (CO) to qualify for supplemental H-2B visas. It emphasizes the importance of avoiding discrimination against U.S. workers based on their citizenship status or national origin. This rule, although temporary, aims to limit eligibility for H-2B supplemental visas to businesses that are genuinely in need. Due to the urgency of the situation, the rule was issued without prior notice and opportunity to comment. Employers who fail to comply with the audit process may face serious consequences such as revocation of certification, debarment, or assisted recruitment. Additionally, the rule includes provisions for portability, allowing H-2B workers to change employers.
The Department of Homeland Security (DHS) foresees receiving a sufficient number of petitions to meet the semiannual cap for the second half of the fiscal year (FY) 2024. This regulation references various government agencies, including the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS). Immediate action is necessary to prevent economic harm to U.S. employers. The regulation also addresses temporary portability and change of employer provisions specified in 8 CFR 214.2 and 274a.12. Furthermore, it refers to Executive Orders (E.O.) 12866, 14094, and 13563, which pertain to regulatory planning and review.
In FY 2024, a total of 64,716 supplemental visas will be available, allocated differently. To be eligible for these visas, businesses must meet specific criteria, including demonstrating their inability to fulfill their needs with U.S. workers and the potential irreparable harm they would suffer without additional H-2B workers. The rule also includes a country-specific allocation of 20,000 visas, exempting workers from certain countries from the returning worker requirement. The regulation outlines the estimated costs and benefits of the rule, highlighting that employers, the Federal Government, and American workers could all benefit in various ways.
FORM I-129 PETITIONERS CAN HIRE TEMPORARY WORKERS TO PREVENT IRREPARABLE HARM.
The regulation explores the current provision that enables Form I-129 petitioners to hire temporary workers to safeguard their businesses from enduring irreparable harm. It highlights that the existing statutory cap restricts H-2B visa allocations to 66,000 workers annually. The regulation provides a breakdown of the estimated costs linked to filing Form I-129 and Form G-28, as well as the potential time lost in submitting additional petitions. Furthermore, it delves into the advantages of the revised provisions, which will permit an additional 64,716 H2B temporary workers, with 20,000 of these visas reserved for workers from specific countries. The regulation emphasizes the diverse ways in which the amended provisions will benefit businesses, American workers, and the Federal Government.
ESTIMATED COSTS ASSOCIATED WITH FILING FORM I-907 TO RANGE FROM $124,560 TO $214,754
Additionally, the regulation provides insight into the anticipated expenses related to submitting Form I-907, which can range from $124,560 to $214,754 depending on the individual submitting the form. It is important to note that an approved Form ETA-9142B is a prerequisite for filing a Form I-129 to request H-2B workers. The regulation also outlines the necessity for petitioners to complete both Form ETA-9142B and Form ETA-9142-B-CAA-8 to make use of the 5,000 late season H-2B visas allocated under this rule. Form ETA-9142-B-CAA-8 will serve as initial evidence to the Department of Homeland Security (DHS) that the petitioner fulfills the criteria for irreparable harm and returning worker requirements.
Moreover, the regulation addresses the requirement for specific petitioners to conduct an additional recruitment round to ensure that U.S. workers are not replaced by nonimmigrant workers. It also highlights the provision for temporary portability, which allows H-2B workers to transfer to a different employer. The regulation also delves into the estimated costs associated with filing Form I-129 and Form G-28, which can range from $81,456 to $140,444 depending on the individual filing the forms. It is worth mentioning that the temporary portability provision offers added flexibility for H-2B workers who may find themselves employed by an employer failing to comply with program requirements.
PORTABILITY PROVISION TO RANGE FROM $128,013 TO $193,042,
The regulation delves into the provision for portability, which offers flexibility for H-2B workers and can range in cost from $128,013 to $193,042, depending on the individual. The Department of Homeland Security (DHS) may incur some additional adjudication costs, but these expenses are expected to be covered by the fees paid for filing Form I-129. Employers must also comply with audits, which will result in an estimated total opportunity cost of approximately $213,948. The audits, conducted by the DHS and the Department of Labor (DOL), aim to verify compliance with the H-2B program requirements. The regulation acknowledges the need for increased scrutiny of employers with a history of H-2B program violations in order to ensure compliance.
Furthermore, the regulation outlines the costs associated with submitting additional evidentiary requirements, as well as the expenses for petitioners to familiarize themselves with the rule. It also addresses the allocation of H-2B visas, emphasizing that any unused visas from one fiscal year cannot be carried over into the next. The regulation provides background information on the H-2B visa classification program, including the requirements for employers to obtain a temporary labor certification and file Form I-129.
In addition, the regulation discusses the decision to extend the rule to cover the entirety of FY 2024, rather than just after reaching the statutory fiscal half-year caps. It references the historical demand for H-2B workers, noting that the number of requested workers on certified TLCs has exceeded the statutorily capped allotment of H-2B visas. The regulation further outlines the distribution of the 64,716 supplemental visas, with 44,716 of them being specifically allocated to returning H-2B workers. It also mentions the inclusion of a visa allocation for petitioners with employment needs starting on or after May 15, in response to trends observed in TLC data.
IMPORTANCE OF DEPARTMENT OF LABOR (DOL)-APPROVED TEMPORARY LABOR CERTIFICATION (TLC)
The regulation emphasizes the importance of employers obtaining a Department of Labor (DOL)-approved Temporary Labor Certification (TLC) before submitting a Form I-129 for H-2B workers to USCIS. It states that petitions received after visas have been allocated will be rejected. The regulation also highlights the impact of the rule on employers and H-2B workers, allowing them to port to another certified employer. Data on H-2B visas and late-season filer allocation are referenced. The regulation provides information on the number of petitions and beneficiaries for each supplemental H-2B visa allocation and estimates the number of forms to be submitted. It discusses the population filing Form G-28 and Form I-907, as well as the costs associated with filing Form I-129 and the option of premium processing. The regulation outlines the requirements for petitioners to meet the irreparable harm standard.
COSTS ASSOCIATED WITH FILING FORM I-129 AND FORM G-28
The regulation discusses the costs associated with filing Form I-129 and Form G-28. It outlines the estimated total compensation for an HR specialist, in-house lawyer, and outsourced lawyer. The regulation provides information on the filing fees and time burden for each form. It estimates the number of petitioners that will file each form, and the total costs associated with each form. The regulation discusses the requirements for petitioners to conduct additional recruitment activities. It outlines the steps that employers must take to recruit U.S. workers, including contacting the State Workforce Agency, the American Job Center, and the AFL-CIO.
The regulation discusses the costs associated with rule familiarization, estimating the time it will take to read and understand the rule. It outlines the costs associated with audits, estimating the time burden and costs for employers to comply. The regulation discusses the costs associated with additional scrutiny, estimating the costs for petitioners to compile and submit evidence. It provides information on the estimated total costs for petitioners to familiarize themselves with the rule.
The regulation discusses the costs and benefits to petitioners and the Federal Government associated with the H-2B visa program. It outlines the costs associated with filing various forms, such as Form I-129, Form G28, Form I-907, and Form ETA-9142B-CAA-8. It discusses the costs associated with additional recruitment, portability, and audits. The regulation also discusses the benefits to petitioners, noting that the ability to hire additional H-2B workers may prevent irreparable harm to businesses. It references the authority of the Department of Homeland Security (DHS) and the Department of Labor (DOL) to collect fees and conduct audits.
RECRUITMENT AND REFERRALS REQUIRED ENSURE NO DISPLACED U.S. WORKERS.
The regulation highlights the benefits of limiting supplemental visas to returning workers and the portability provision for H-2B workers. It states that the rule is exempt from certain requirements and does not have substantial direct effects on states. Employers must attest to irreparable harm and conduct additional recruitment of U.S. workers.
DOCUMENT RETENTION PROVISIONS FOR FISCAL YEARS 2024-2027
The regulation includes provisions for the retention of important documents during fiscal years 2024-2027. Employers are required to keep evidence of irreparable harm, recruitment efforts, and attestations submitted to USCIS. These documents may be inspected by the Department of Labor and the Department of Homeland Security upon request. Additionally, employers must cooperate with any audits or investigations conducted by the Department of Labor. This regulation has been signed by the Secretary of the Department of Homeland Security and the Acting Secretary of the Department of Labor.
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