United States: Temporary Final Rule Provides Details on Additional 64,716 H-2B Visas Available in FY 2023

The additional H-2B visas will be made available in a series of allocations over the course of FY 2023, tied to case type and requested start date. The supplemental visas have been divided into the following four separate allocations:

• Nationals of El Salvador, Guatemala, Honduras, and Haiti: The 20,000 supplemental visas reserved for these nationals are to cover the entirety of FY 2023. Petitions requesting an employment start date in the first half of the fiscal year (prior to April 1, 2023) may be filed starting December 15, 2022. Petitions requesting an employment start date in the second half of the fiscal year (between April 1, 2023 and September 30, 2023) may be filed no earlier than 15 days after the 33,000 statutory cap for the second half of the fiscal year has been reached.
• Returning Workers for the first half of FY 2023: 18,216 supplemental visas have been allocated to returning workers of any nationality for the first half of the fiscal year. Petitions for these workers may be filed starting December 15, 2022, and must request an employment start date in the first half of the fiscal year (prior to April 1, 2023).
• Returning Workers for the early second half of FY 2023: 16,500 supplemental visas have been allocated to returning workers of any nationality with requested employment start dates between April 1, 2023 and May 14, 2023. Petitions for these workers may be filed no earlier than 15 days after the 33,000 statutory cap for the second half of the fiscal year has been reached.
• Returning workers for the late second half of FY 2023: 10,000 supplemental visas have been allocated to returning workers of any nationality with requested employment start dates between May 15, 2023 and September 30, 2023. Petitions for these workers may be filed no earlier than 45 days after the 33,000 statutory cap for the second half of the fiscal year has been reached.

Petitions requesting supplemental H-2B allocations under the new rule must be filed at the California Service Center. No petitions for supplemental H-2B visas may be filed after September 15, 2023, and no such petitions may be approved after September 30, 2023. In addition, USCIS will not allow premium processing of H-2B petitions with a start date in the first half of the fiscal year until January 3, 2023.

Under the new rule, if the numerical limit is reached as to any of the four separate supplemental allocations, USCIS may run a random, computer-generated selection from among the petitions received on the date on which the allocation’s numerical limit is reached to select enough petitions to reach the numerical limit for that allocation. If the numerical limit for any of the allocations is reached on any of the first five business days of that allocation’s filing period, USCIS will run a random, computer-generated selection from among all petitions received under that allocation in the five-day period to reach the numerical limit.

If there are any unused numbers in any of the four allocation groups, the unused numbers will not carry over to any other allocation group.

Existing regulations require employers seeking H-2B workers to test the U.S. labor market and certify that there are not enough U.S. workers who are able, willing, qualified, and available for the offered positions, and that employing H-2B workers will not adversely affect the wages or working conditions of similarly employed U.S. workers. In addition, employers filing an H-2B petition with USCIS thirty or more days after the requested start date specified on the DOL’s temporary labor certification must also take certain additional steps to recruit U.S. workers.

The supplemental H-2B rule includes additional provisions designed to protect both U.S. and H-2B workers. In particular, the regulation provides for additional scrutiny in the supplemental cap petition process for employers that have committed certain labor law violations in the H-2B program. As with supplemental allotments in previous years, DHS and DOL also state that they intend to conduct a significant number of audits of petitions for supplemental FY 2023 H-2B visas to verify compliance with program requirements, and a finding of a substantial violation may result in revocation of the temporary labor certification and/or petition, assessment of a civil monetary penalty, or program debarment.

In addition, DHS and DOL are participating in a White-House-convened H-2B Worker Protection taskforce, announced in October, to address compliance and worker protection issues more broadly. According to DHS, the work of the Taskforce will build on ongoing efforts by DHS and DOL to reform the H-2A and H-2B temporary visa programs, including DHS plans in the coming months to issue a notice of proposed rulemaking to incorporate policies that strengthen protections for H-2 workers. 

To maximize the chance of securing an H-2B visa number before the supply is exhausted, employers with FY 2023 H-2B employment needs should work with their immigration counsel to submit petitions at the earliest opportunity as each tranche of supplemental allocations becomes available. Additional visas will not be available in future years unless a similar supplement is authorized.