On November 16, 2023, the Department of Homeland Security (DHS), through the U.S. Citizenship and Immigration Services (USCIS), and the Department of Labor (DOL) published a temporary final rule making available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024, on top of the statutory cap of 66,000 H-2B visas that are available each fiscal year. American businesses in industries such as hospitality and tourism, landscaping, seafood processing, and more turn to seasonal and other temporary workers in the H-2B program to help them meet demand from consumers. The supplemental visa allocation will help address the need for these workers in areas where too few U.S. workers are available, helping contribute to the American economy.

By making these supplemental visas available at the outset of FY 2024, the Departments will help ensure U.S. businesses with workforce needs are able to plan ahead and find the seasonal and temporary workers they need. At the same time, DHS and DOL are reinforcing robust protections for U.S. and foreign workers alike, including by ensuring that employers first seek out and recruit American workers for the jobs to be filled, as the H-2B program requires, and that foreign workers hired are protected from unscrupulous employers. Recently, both DHS and DOL proposed regulations to further strengthen worker protections in the H-2A and H-2B visa programs, and the White House-led H-2B Worker Protection Taskforce released a report (PDF) detailing new actions to be taken by Federal agencies to strengthen protections for vulnerable H-2B and similarly situated U.S. workers. 

The H-2B supplemental includes an allocation of 20,000 visas to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. In addition to the 20,000 country-specific allocations, 44,716 supplemental visas will be available to returning workers who received H-2B visas or were otherwise granted H-2B status during one of the last three fiscal years. The rule allocates these supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal and other temporary workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the summer season. The semiannual cap of 33,000 H-2B visas authorized under the Immigration and Nationality Act (statutory cap) for the first half of FY 2024 was reached on October 11, 2023.

The supplemental H-2B visas have been divided into the following allocations:

· First half of FY 2024 (October 1 to March 31): 20,716 visas are immediately available to returning workers – those who were issued H-2B visas or held H-2B status in FY 2021, FY 2022, or FY 2023, regardless of country of nationality.  These petitions must request employment start dates on or before March 31, 2024.

· Early second half of FY 2024 (April 1 to May 14): 19,000 visas are limited to returning workers – those who were issued H-2B visas or held H-2B status in FY 2021, FY 2022, or FY 2023, regardless of country of nationality. These early second half of FY 2024 petitions must request employment start dates from April 1, 2024, to May 14, 2024.  

· Late second half of FY 2024 (May 15 to September 30): 5,000 visas are limited to returning workers – those who were issued H-2B visas or held H-2B status in FY 2021, FY 2022, or FY 2023, regardless of country of nationality. These late second half of FY 2024 petitions must request employment start dates from May 15, 2024, to Sept. 30, 2024.

· For the entirety of FY 2024: 20,000 visas are reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, regardless of whether such nationals are returning workers. Employers requesting an employment start date in the first half of FY 2024 may file such petitions immediately after the publication of this temporary final rule.  

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature, such as a one-time occurrence, seasonal need, or intermittent need. Employers seeking H-2B workers must take a series of steps to test the U.S. labor market. They must obtain certification from DOL that there are not enough U.S. workers who are able, willing, qualified, and available to perform the temporary work for which they seek a prospective foreign worker and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The maximum period of stay in the H-2B classification is three years. A person who has held H-2B nonimmigrant status for a total of three years must depart and remain outside of the United States for an uninterrupted period of three months before seeking readmission as an H-2B nonimmigrant.

The temporary final rule implementing this allocation features several provisions to protect both U.S. and H-2B workers. Petitions requesting supplemental allocations under this rule must be filed at the USCIS Texas Service Center. Petitions filed under the supplemental allocations in this rule at any location other than the Texas Service Center will be rejected, and the filing fees will be returned. 

We regularly update our blog section to acquaint the community with the latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.