[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Rules and Regulations]
[Pages 4722-4762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01866]



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Vol. 87

Friday,

No. 19

January 28, 2022

Part II





Department of Homeland Security





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8 CFR Parts 214 and 274a





Department of Labor





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Employment and Training Administration





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20 CFR Part 655





Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 
Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To Change 
Employers; Temporary Rule

  Federal Register / Vol. 87, No. 19 / Friday, January 28, 2022 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2708-21]
RIN 1615-AC77

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2022-0001]
RIN 1205-AC09


Exercise of Time-Limited Authority To Increase the Fiscal Year 
2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To Change 
Employers

AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department 
of Homeland Security (DHS), and Employment and Training Administration 
and Wage and Hour Division, U.S. Department of Labor (DOL).

ACTION: Temporary rule.

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SUMMARY: The Secretary of Homeland Security, in consultation with the 
Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 
2022 authority and increasing the total number of noncitizens who may 
receive an H-2B nonimmigrant visa by authorizing the issuance of no 
more than 20,000 additional visas during FY 2022 for positions with 
start dates on or before March 31, 2022, to those businesses that are 
suffering irreparable harm or will suffer impending irreparable harm, 
as attested by the employer on a new attestation form. In addition to 
making additional visas available under the FY 2022 time-limited 
authority, DHS is exercising its general H-2B regulatory authority to 
again provide temporary portability flexibility by allowing H-2B 
workers who are already in the United States to begin work immediately 
after an H-2B petition (supported by a valid temporary labor 
certification) is received by USCIS, and before it is approved.

DATES: 
    Effective dates: The amendments to title 8 of the Code of Federal 
Regulations in this rule are effective from January 28, 2022 through 
January 28, 2025. The amendments to title 20 of the Code of Federal 
Regulations in this rule are effective from January 28, 2022 through 
September 30, 2022, except for 20 CFR 655.69 which is effective from 
January 28, 2022 through September 30, 2025.
    Petition dates: DHS will not accept any H-2B petition under the 
provisions related to the supplemental numerical allocation after March 
31, 2022, and the provisions related to portability are only available 
to petitioners and H-2B nonimmigrant workers initiating employment 
through the end of July 27, 2022.
    Comment dates: The Office of Foreign Labor Certification within the 
U.S. Department of Labor will be accepting comments in connection with 
the new information collection Form ETA-9142B-CAA-5 associated with 
this rule until March 29, 2022.

ADDRESSES: You may submit written comments on the new information 
collection Form ETA-9142B-CAA-5, identified by Regulatory Information 
Number (RIN) 1205-AC09 electronically by the following method:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions on the website for submitting comments.
    Instructions: Include the agency's name and the RIN 1205-AC09 in 
your submission. All comments received will become a matter of public 
record and will be posted without change to https://www.regulations.gov. Please do not include any personally identifiable 
information or confidential business information you do not want 
publicly disclosed.

FOR FURTHER INFORMATION CONTACT: Regarding 8 CFR parts 214 and 274a: 
Charles L. Nimick, Chief, Business and Foreign Workers Division, Office 
of Policy and Strategy, U.S. Citizenship and Immigration Services, 
Department of Homeland Security, 5900 Capital Gateway Drive, Camp 
Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free 
number).
    Regarding 20 CFR part 655 and Form ETA-9142B-CAA-5: Brian D. 
Pasternak, Administrator, Office of Foreign Labor Certification, 
Employment and Training Administration, Department of Labor, 200 
Constitution Ave. NW, Room N-5311, Washington, DC 20210, telephone 
(202) 693-8200 (this is not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
    A. Legal Framework
    B. H-2B Numerical Limitations Under the INA
    C. FY 2021 Omnibus and FY 2022 Public Laws 117-43 and 117-70
    D. Joint Issuance of the Final Rule
III. Discussion
    A. Statutory Determination
    B. Numerical Increase and Allocation of Up to 20,000 Visas
    C. Returning Workers
    D. Returning Worker Exemption for Up to 6,500 Visas for 
Nationals of Guatemala, El Salvador, and Honduras (Northern Triangle 
Countries) and Haiti
    E. Business Need Standard--Irreparable Harm and FY 2022 
Attestation
    F. Portability
    G. COVID-19 Worker Protections
    H. DHS Petition Procedures
    I. DOL Procedures
IV. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132 (Federalism)
    F. Executive Order 12988 (Civil Justice Reform)
    G. Congressional Review Act
    H. National Environmental Policy Act
    I. Paperwork Reduction Act

I. Executive Summary

FY 2022 H-2B Supplemental Cap

    With this temporary final rule (TFR), the Secretary of Homeland 
Security, following consultation with the Secretary of Labor, is 
authorizing the immediate release of an additional 20,000 H-2B visas 
for FY 2022 positions with start dates on or before March 31, 2022, 
subject to certain conditions. The 20,000 visas are divided into two 
allocations, as follows:
     13,500 visas limited to returning workers, regardless of 
country of nationality, in other words, those workers who were issued 
H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021; and
     6,500 visas reserved for nationals of El Salvador, 
Guatemala, and Honduras (Northern Triangle countries) and Haiti as 
attested by the petitioner (regardless of whether such nationals are 
returning workers).
    To qualify for the FY 2022 supplemental cap provided by this 
temporary final rule, eligible petitioners must:
     Meet all existing H-2B eligibility requirements, including 
obtaining an approved temporary labor certification (TLC) from DOL 
before filing the Form

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I-129, Petition for Nonimmigrant Worker, with USCIS;
     Properly file the Form I-129, Petition for Nonimmigrant 
Worker, with USCIS on or before March 31, 2022, requesting an 
employment start date on or before March 31, 2022;
     Submit an attestation affirming, under penalty of perjury, 
that the employer is suffering irreparable harm or will suffer 
impending irreparable harm without the ability to employ all of the H-
2B workers requested on the petition, and that they are seeking to 
employ returning workers only, unless the H-2B worker is a Salvadoran, 
Guatemalan, Honduran, or Haitian national and counted towards the 6,500 
cap; and
     Agree to comply with all applicable labor and employment 
laws, including health and safety laws pertaining to COVID-19, as well 
as any rights to time off or paid time off to stay up-to-date with 
COVID-19 vaccinations,\1\ or to reimbursement for travel to and from 
the nearest available vaccination site, and notify the workers in a 
language understood by the worker as necessary or reasonable, of equal 
access of nonimmigrants to COVID-19 vaccines and vaccination 
distribution sites.
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    \1\ The term ``COVID-19 vaccinations'' also includes COVID-19 
booster shots.
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    Employers filing an H-2B petition 45 or more days after the 
certified start date on the TLC, must attest to engaging in the 
following additional steps to recruit U.S. workers:
     No later than 1 business day after filing the petition, 
place a new job order with the relevant State Workforce Agency (SWA) 
for at least 15 calendar days;
     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; and
     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.
    Petitioners filing H-2B petitions under this FY 2022 supplemental 
cap must retain documentation of compliance with the attestation 
requirements for 3 years from the date the TLC was approved, and must 
provide the documents and records upon the request of DHS or DOL, as 
well as fully cooperate with any compliance reviews such as audits. 
Both DHS and DOL intend to conduct a significant number of post-
adjudication audits to ascertain compliance with the attestation 
requirements of this TFR.
    Falsifying information in attestation(s) can result not only in 
penalties relating to perjury, but can also result in, among other 
things, a finding of fraud or willful misrepresentation; denial or 
revocation of the H-2B petition requesting supplemental workers; and 
debarment by DOL and DHS from the H-2 program. Falsifying information 
also may subject a petitioner/employer to other criminal penalties.
    DHS will not approve H-2B petitions filed in connection with the FY 
2022 supplemental cap authority on or after October 1, 2022, but DHS 
does not anticipate that petitions filed in connection with this rule 
will remain pending until the end of FY 2022, given the March 31, 2022 
filing deadline.
H-2B Portability
    In addition to exercising time-limited authority to make additional 
FY 2022 H-2B visas available for positions with start dates on or 
before March 31, 2022, DHS is providing additional flexibilities to H-
2B petitioners under its general programmatic authority by allowing 
nonimmigrant workers in the United States \2\ in valid H-2B status and 
who are beneficiaries of non-frivolous H-2B petitions received on or 
after January 28, 2022, or who are the beneficiaries of non-frivolous 
H-2B petitions that are pending as of January 28, 2022, to begin work 
with a new employer after an H-2B petition (supported by a valid TLC) 
is filed and before the petition is approved, generally for a period of 
up to 60 days. However, such employment authorization would end 15 days 
after USCIS denies the H-2B petition or such petition is withdrawn. 
This H-2B portability ends 180 days after the effective date of this 
rule, in other words, after the date this rule is published in the 
Federal Register. This provision clarifies portability eligibility for 
beneficiaries of pending petitions.
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    \2\ The term ``United States'' includes the continental United 
States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the 
United States, and the Commonwealth of the Northern Mariana Islands. 
INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
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II. Background

A. Legal Framework

    The Immigration and Nationality Act (INA), as amended, establishes 
the H-2B nonimmigrant classification for a nonagricultural temporary 
worker ``having a residence in a foreign country which he has no 
intention of abandoning who is coming temporarily to the United States 
to perform . . . temporary [non-agricultural] service or labor if 
unemployed persons capable of performing such service or labor cannot 
be found in this country.'' INA section 101(a)(15)(H)(ii)(b), 8 U.S.C. 
1101(a)(15)(H)(ii)(b). Employers must petition the Department of 
Homeland Security (DHS) for classification of prospective temporary 
workers as H-2B nonimmigrants. INA section 214(c)(1), 8 U.S.C. 
1184(c)(1). Generally, DHS must approve this petition before the 
beneficiary can be considered eligible for an H-2B visa. In addition, 
the INA requires that ``[t]he question of importing any alien as [an H-
2B] nonimmigrant . . . in any specific case or specific cases shall be 
determined by [DHS],\3\ after consultation with appropriate agencies of 
the Government.'' INA section 214(c)(1), 8 U.S.C. 1184(c)(1). The INA 
generally charges the Secretary of Homeland Security with the 
administration and enforcement of the immigration laws, and provides 
that the Secretary ``shall establish such regulations . . . and perform 
such other acts as he deems necessary for carrying out his authority'' 
under the INA. See INA section 103(a)(1), (3), 8 U.S.C. 1103(a)(1), 
(3); see also 6 U.S.C. 202(4) (charging the Secretary with 
``[e]stablishing and administering rules . . . governing the granting 
of visas or other forms of permission . . . to enter the United States 
to individuals who are not a citizen or an alien lawfully admitted for 
permanent residence in the United States''). With respect to 
nonimmigrants in particular, the INA provides that ``[t]he admission to 
the United States of any alien as a nonimmigrant shall be for such time 
and under such conditions as

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the [Secretary] may by regulations prescribe.'' INA section 214(a)(1), 
8 U.S.C. 1184(a)(1); see also INA section 274A(a)(1) and (h)(3), 8 
U.S.C. 1324a(a)(1) and (h)(3) (prohibiting employment of noncitizen \4\ 
not authorized for employment). The Secretary may designate officers or 
employees to take and consider evidence concerning any matter which is 
material or relevant to the enforcement of the INA. INA sections 
287(a)(1), (b), 8 U.S.C. 1357(a)(1), (b) and INA section 235(d)(3), 8 
U.S.C. 1225(d)(3).
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    \3\ As of March 1, 2003, in accordance with section 1517 of 
Title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-
296, 116 Stat. 2135, any reference to the Attorney General in a 
provision of the Immigration and Nationality Act describing 
functions which were transferred from the Attorney General or other 
Department of Justice official to the Department of Homeland 
Security by the HSA ``shall be deemed to refer to the Secretary'' of 
Homeland Security. See 6 U.S.C. 557 (2003) (codifying HSA, Title XV, 
sec. 1517); 6 U.S.C. 542 note; 8 U.S.C. 1551 note.
    \4\ For purposes of this discussion, the Departments use the 
term ``noncitizen'' colloquially to be synonymous with the term 
``alien'' as it is used in the Immigration and Nationality Act.
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    Finally, under section 101 of HSA, 6 U.S.C. 111(b)(1)(F), a primary 
mission of DHS is to ``ensure that the overall economic security of the 
United States is not diminished by efforts, activities, and programs 
aimed at securing the homeland.''
    DHS regulations provide that an H-2B petition for temporary 
employment in the United States must be accompanied by an approved TLC 
from the U.S. Department of Labor (DOL), issued pursuant to regulations 
established at 20 CFR part 655, or from the Guam Department of Labor if 
the workers will be employed on Guam. 8 CFR 214.2(h)(6)(iii)(A) and (C) 
through (E), (h)(6)(iv)(A); see also INA section 103(a)(6), 8 U.S.C. 
1103(a)(6). The TLC serves as DHS's consultation with DOL with respect 
to whether a qualified U.S. worker is available to fill the petitioning 
H-2B employer's job opportunity and whether a foreign worker's 
employment in the job opportunity will adversely affect the wages and 
working conditions of similarly-employed U.S. workers. See INA section 
214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and (D).
    In order to determine whether to issue a TLC, the Departments have 
established regulatory procedures under which DOL certifies whether a 
qualified U.S. worker is available to fill the job opportunity 
described in the employer's petition for a temporary nonagricultural 
worker, and whether a foreign worker's employment in the job 
opportunity will adversely affect the wages or working conditions of 
similarly employed U.S. workers. See 20 CFR part 655, subpart A. The 
regulations establish the process by which employers obtain a TLC and 
rights and obligations of workers and employers.
    Once the petition is approved, under the INA and current DHS 
regulations, H-2B workers do not have employment authorization outside 
of the validity period listed on the approved petition unless otherwise 
authorized, and the workers are limited to employment with the H-2B 
petitioner. See 8 U.S.C. 1184(c)(1), 8 CFR 274a.12(b)(9). An employer 
or U.S. agent generally may submit a new H-2B petition, with a new, 
approved TLC, to USCIS to request an extension of H-2B nonimmigrant 
status for the validity of the TLC or for a period of up to 1 year. 8 
CFR 214.2(h)(15)(ii)(C). Except as provided for in this rule, and 
except for certain professional athletes being traded among 
organizations,\5\ H-2B workers seeking to extend their status with a 
new employer may not begin employment with the new employer until the 
new H-2B petition is approved.
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    \5\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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    The INA also authorizes DHS to impose appropriate remedies against 
an employer for a substantial failure to meet the terms and conditions 
of employing an H-2B nonimmigrant worker, or for a willful 
misrepresentation of a material fact in a petition for an H-2B 
nonimmigrant worker. INA section 214(c)(14)(A), 8 U.S.C. 
1184(c)(14)(A). The INA expressly authorizes DHS to delegate certain 
enforcement authority to DOL. INA section 214(c)(14)(B), 8 U.S.C. 
1184(c)(14)(B); see also INA section 103(a)(6), 8 U.S.C. 1103(a)(6). 
DHS has delegated its authority under INA section 214(c)(14)(A)(i), 8 
U.S.C. 1184(c)(14)(A)(i) to DOL. See DHS, Delegation of Authority to 
DOL under Section 214(c)(14)(A) of the INA (Jan. 16, 2009); see also 8 
CFR 214.2(h)(6)(ix) (stating that DOL may investigate employers to 
enforce compliance with the conditions of an H-2B petition and a DOL-
approved TLC). This enforcement authority has been delegated within DOL 
to the Wage and Hour Division (WHD), and is governed by regulations at 
29 CFR part 503.

B. H-2B Numerical Limitations Under the INA

    The INA sets the annual number of noncitizens who may be issued H-
2B visas or otherwise provided H-2B nonimmigrant status to perform 
temporary nonagricultural work at 66,000, to be distributed semi-
annually beginning in October and April. See INA sections 214(g)(1)(B) 
and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). With certain 
exceptions, described below, up to 33,000 noncitizens may be issued H-
2B visas or provided H-2B nonimmigrant status in the first half of a 
fiscal year, and the remaining annual allocation, including any unused 
nonimmigrant H-2B visas from the first half of a fiscal year, will be 
available for employers seeking to hire H-2B workers during the second 
half of the fiscal year.\6\ If insufficient petitions are approved to 
use all H-2B numbers in a given fiscal year, the unused numbers cannot 
be carried over for petition approvals for employment start dates 
beginning on or after the start of the next fiscal year.
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    \6\ The Federal Government's fiscal year runs from October 1 of 
the prior year through September 30 of the year being described. For 
example, fiscal year 2022 is from October 1, 2021, through September 
30, 2022.
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    In FYs 2005, 2006, 2007, and 2016, Congress exempted H-2B workers 
identified as returning workers from the annual H-2B cap of 66,000.\7\ 
A returning worker is defined by statute as an H-2B worker who was 
previously counted against the annual H-2B cap during a designated 
period of time. For example, Congress designated that returning workers 
for FY 2016 needed to have been counted against the cap during FY 2013, 
2014, or 2015.\8\ DHS and the Department of State (DOS) worked together 
to confirm that all workers requested under the returning worker 
provision in fact were eligible for exemption from the annual cap (in 
other words, were issued an H-2B visa or provided H-2B status during 
one of the prior 3 fiscal years) and were otherwise eligible for H-2B 
classification.
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    \7\ INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A), see also 
Consolidated Appropriations Act, 2016, Public Law 114-113, div. F, 
tit. V, sec 565; John Warner National Defense Authorization Act for 
Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 1074, 
(2006); Save Our Small and Seasonal Businesses Act of 2005, Public 
Law 109-13, div. B, tit. IV, sec. 402.
    \8\ See Consolidated Appropriations Act, 2016, Public Law 114-
113, div. F, tit. V, sec 565.
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    Because of the strong demand for H-2B visas in recent years, the 
statutorily-limited semi-annual visa allocation, the DOL regulatory 
requirement that employers apply for a TLC 75 to 90 days before the 
start date of work,\9\ and the DHS regulatory requirement that all H-2B 
petitions be accompanied by an approved TLC,\10\ employers that wish to 
obtain visas for their workers under the semi-annual allotment must act 
early to receive a TLC and file a petition with U.S. Citizenship and 
Immigration Services (USCIS). As a result, the date on which USCIS has 
received sufficient H-2B petitions to reach the first half of the 
fiscal year statutory cap has been

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trending earlier in recent years.\11\ As of December 1, 2021, DOL's 
Office of Foreign Labor Certification (OFLC) reports having certified 
TLC applications for 65,717 H-2B workers with expected start dates 
between October 1, 2021, and March 1, 2022.\12\ In addition, for fiscal 
year 2022, for the first time in more than a decade, USCIS received 
sufficient H-2B petitions to reach the first half of the fiscal year 
statutory cap before the start of the fiscal year--this year the last 
receipt date for the first half of the fiscal year was September 30, 
2021, and last year it was November 16, 2020--a month and a half 
earlier.\13\ This early date continues to reflect an ongoing trend of 
higher H-2B demand in the first half of the fiscal year compared to the 
statutorily authorized level. Congress, in recognition of historical 
and current demand: (1) Allowed for additional H-2B workers through the 
FY 2016 reauthorization of the returning worker cap exemption; \14\ and 
(2) for the last 6 fiscal years authorized supplemental caps under 
section 543 of Division F of the Consolidated Appropriations Act, 2017, 
Public Law 115-31 (FY 2017 Omnibus); section 205 of Division M of the 
Consolidated Appropriations Act, 2018, Public Law 115-141 (FY 2018 
Omnibus); section 105 of Division H of the Consolidated Appropriations 
Act, 2019, Public Law 116-6 (FY 2019 Omnibus); section 105 of Division 
I of the Further Consolidated Appropriations Act, 2020, Public Law 116-
94 (FY 2020 Omnibus); \15\ section 105 of Division O of the 
Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021), 
and section 105 of Division O of the Consolidated Appropriations Act, 
2021, Public Law 116-260 (FY 2021 Omnibus), and sections 101 and 106(3) 
of Division A of Public Law 117-43, Continuing Appropriations Act, 
2022, and section 101 of Division A of Public Law 117-70, Further 
Continuing Appropriations Act, 2022 through February 18, 2022 
(together, FY 2022 authority), which is discussed below.
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    \9\ 20 CFR 655.15(b).
    \10\ See 8 CFR 214.2(h)(5)(i)(A).
    \11\ In fiscal years 2017 through 2021, USCIS received a 
sufficient number of H-2B petitions to reach or exceed the relevant 
first half statutory cap on January 10, 2017, December 15, 2017, 
December 6, 2018, November 15, 2019, and November 16, 2020, 
respectively. See https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); 
https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 2017); https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 
2018); https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
    \12\ Information provided by DOL OFLC via email sent December 2, 
2021.
    \13\ On October 12, 2021, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2022, and that September 30, 2021 was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2022. See https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021). November 16, 2020 was the last receipt 
date for the first half of FY 2020. See https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 
2020).
    \14\ INA section 214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a), as 
revised by the Consolidated Appropriations Act of 2016 (Pub. L. 114-
113). This program expired on September 30, 2016.
    \15\ DHS, after consulting with DOL, did not publish a temporary 
final rule supplementing the H-2B cap for FY 2020 pursuant to the 
Further Consolidated Appropriations Act, 2020, Public Law 116-94.
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C. FY 2021 Omnibus and FY 2022 Public Laws 117-43 and 117-70

    On December 27, 2020, then-President Donald Trump signed the FY 
2021 Omnibus which contains a provision, section 105 of Division O 
(section 105), permitting the Secretary of Homeland Security, under 
certain circumstances and after consultation with the Secretary of 
Labor, to increase the number of H-2B visas available to U.S. 
employers, notwithstanding the otherwise-established statutory 
numerical limitation set forth in the INA. Specifically, section 105 
provides that ``the Secretary of Homeland Security, after consultation 
with the Secretary of Labor, and upon the determination that the needs 
of American businesses cannot be satisfied in [FY] 2021 with U.S. 
workers who are willing, qualified, and able to perform temporary 
nonagricultural labor,'' may increase the total number of noncitizens 
who may receive an H-2B visa in FY 2021 by not more than the highest 
number of H-2B nonimmigrants who participated in the H-2B returning 
worker program in any fiscal year in which returning workers were 
exempt from the H-2B numerical limitation.\16\ The Secretary of 
Homeland Security consulted with the Secretary of Labor and, on May 25, 
2021, published a temporary final rule implementing the authority 
contained in section 105.\17\
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    \16\ The highest number of returning workers in any such fiscal 
year was 64,716, which represents the number of beneficiaries 
covered by H-2B returning worker petitions that were approved for FY 
2007. DHS also considered using an alternative approach, under which 
DHS measured the number of H-2B returning workers admitted at the 
ports of entry (66,792 for FY 2007).
    \17\ Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2021 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program and Portability Flexibility 
for H-2B Workers Seeking To Change Employers, 86 FR 28198 (May 25, 
2021).
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    On December 3, 2021, Congress passed Public Law 117-70,\18\ which 
authorizes the Secretary of Homeland Security to increase the number of 
H-2B visas available to U.S. employers in FY 2022 under the same terms 
and conditions authorized in section 105 of Division O of the FY 2021 
Omnibus. The authority in Public Law 117-70 permits the Secretary of 
Homeland Security, after consultation with the Secretary of Labor, to 
provide additional H-2B visas for FY 2022, notwithstanding the 
otherwise-established statutory numerical limitation set forth in the 
INA, for eligible employers whose employment needs for FY 2022 cannot 
be met under the general fiscal year statutory cap.\19\ Under the 
Public Law 117-70 authority, DHS and DOL are jointly publishing this 
temporary final rule to authorize the issuance of no more than 20,000 
additional visas during FY 2022 for positions with start dates on or 
before March 31, 2022, to those businesses that are suffering 
irreparable harm or will suffer impending irreparable harm, as attested 
by the employer on a new attestation form. The authority to approve H-
2B petitions under this FY 2022 supplemental cap expires at the end of 
that fiscal year. Therefore, USCIS will not approve H-2B petitions 
filed in connection with the FY 2022

[[Page 4726]]

supplemental cap authority on or after October 1, 2022. Given the March 
31, 2022 filing cutoff, USCIS will process H-2B petitions filed under 
this rule that request premium processing in line with the USCIS 
premium processing rules,\20\ and all other H-2B petitions filed under 
this rule in the normal manner. Accordingly, DHS does not anticipate 
that petitions filed in connection with this rule will remain pending 
until the end of FY 2022.
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    \18\ Public Law 117-70 Further Extending Government Funding Act, 
Division A ``Further Continuing Appropriations Act, 2022'', section 
101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in 
section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law 
117-43 Extending Government Funding and Delivering Emergency 
Assistance Act, Division A ``Continuing Appropriations Act, 2022'', 
Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and 
authorities, including authority under section 105 of title I of 
Division O of Public Law 116-260, through December 3, 2021.
    \19\ Appropriations and authorities provided by the continuing 
resolutions are available for the needs of the entire fiscal year to 
which the continuing resolution applies, although DHS's ability to 
obligate funds or exercise such authorities may lapse at the sunset 
of such resolution. See, e.g., Comments on Due Date and Amount of 
District of Columbia's Contributions to Special Employee Retirement 
Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a 
continuing resolution appropriates the full annual amount regardless 
of its period of duration. . . . Standard continuing resolution 
language makes it clear that the appropriations are available to the 
extent and in the manner which would be provided by the pertinent 
appropriations act that has yet to be enacted (unless otherwise 
provided in the continuing resolution).''). Consistent with this 
principle, DHS interprets the current continuing resolution to 
provide DHS with the ability to authorize additional H-2B visa 
numbers with respect to all of FY 2022 subject to the same terms and 
conditions as the FY 2021 authority at any time before the 
continuing resolution expires, notwithstanding the reference to FY 
2021 in the FY 2021 Omnibus.
    \20\ See 8 CFR 103.7(e) (Oct. 1, 2020). This section was amended 
by a DHS rule published in the Federal Register on August 3, 2020 at 
85 FR 46788 titled U.S. Citizenship and Immigration Services Fee 
Schedule and Changes to Certain Other Immigration Benefit Request 
Requirements with an effective date of October 2, 2021. That rule 
was preliminarily enjoined. DHS is complying with the terms of the 
preliminary injunctions and is not enforcing it. See U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements; Notification 
of Preliminary Injunction, 86 FR 7493 (Jan. 18, 2021).
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    As noted above, since FY 2017, Congress has enacted a series of 
public laws providing the Secretary of Homeland Security with the 
discretionary authority to increase the H-2B cap beyond that set forth 
in section 214 of the INA. The previous four statutory provisions were 
materially identical to section 105 of the FY 2021 Omnibus, which is 
the same authority provided for FY 2022 by the recent continuing 
resolutions. During each fiscal year from FY 2017 through FY 2019, the 
Secretary of Homeland Security, after consulting with the Secretary of 
Labor, determined that the needs of some American businesses could not 
be satisfied in such year with U.S. workers who were willing, 
qualified, and able to perform temporary nonagricultural labor. On the 
basis of these determinations, on July 19, 2017, and May 31, 2018, DHS 
and DOL jointly published temporary final rules for FY 2017 and FY 
2018, respectively, each of which allowed an increase of up to 15,000 
additional H-2B visas for those businesses that attested that if they 
did not receive all of the workers requested on the Petition for a 
Nonimmigrant Worker (Form I-129), they were likely to suffer 
irreparable harm, in other words, suffer a permanent and severe 
financial loss.\21\ A total of 12,294 H-2B workers were approved for H-
2B classification under petitions filed pursuant to the FY 2017 
supplemental cap increase.\22\ In FY 2018, USCIS received petitions for 
more than 15,000 beneficiaries during the first 5 business days of 
filing for the supplemental cap, and held a lottery on June 7, 2018. 
The total number of H-2B workers approved toward the FY 2018 
supplemental cap increase was 15,788.\23\ The vast majority of the H-2B 
petitions received under the FY 2017 and FY 2018 supplemental caps 
requested premium processing \24\ and were adjudicated within 15 
calendar days.
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    \21\ Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2017 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program, 82 FR 32987, 32998 (July 
19, 2017); Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2018 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program, 83 FR 24905, 24917 (May 
31, 2018).
    \22\ USCIS data pulled from the Computer Linked Application 
Information Management System (CLAIMS3) database on Mar. 15, 2021. 
General information about CLAIMS 3 is available at https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-system-claims-3-and.
    \23\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2018 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
    \24\ Premium processing allows for expedited processing for an 
additional fee. See INA 286(u), 8 U.S.C. 1356(u).
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    On May 8, 2019, DHS and DOL jointly published a temporary final 
rule authorizing an increase of up to 30,000 additional H-2B visas for 
the remainder of FY 2019. The additional visas were limited to 
returning workers who had been counted against the H-2B cap or were 
otherwise granted H-2B status in the previous 3 fiscal years, and for 
those businesses that attested to a level of need such that, if they 
did not receive all of the workers requested on the Form I-129, they 
were likely to suffer irreparable harm, in other words, suffer a 
permanent and severe financial loss.\25\ The Secretary determined that 
limiting returning workers to those who were issued an H-2B visa or 
granted H-2B status in the past 3 fiscal years was appropriate, as it 
mirrored the standard that Congress designated in previous returning 
worker provisions. On June 5, 2019, approximately 30 days after the 
supplemental visas became available, USCIS announced that it received 
sufficient petitions filed pursuant to the FY 2019 supplemental cap 
increase. USCIS did not conduct a lottery for the FY 2019 supplemental 
cap increase. The total number of H-2B workers approved towards the FY 
2019 supplemental cap increase was 32,666.\26\ The vast majority of 
these petitions requested premium processing and were adjudicated 
within 15 calendar days.
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    \25\ Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Fiscal Year 2019 Numerical Limitation for the H-2B 
Temporary Nonagricultural Worker Program, 84 FR 20005, 20021 (May 8, 
2019).
    \26\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2019 to allow for the possibility 
that some approved workers would either not seek a visa or 
admission, would not be issued a visa, or would not be admitted to 
the United States. USCIS data pulled from CLAIMS3 on Mar. 15, 2021.
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    Although Congress provided the Secretary of Homeland Security with 
the discretionary authority to increase the H-2B cap in FY 2020, the 
Secretary did not exercise that authority. DHS initially intended to 
exercise its authority and, on March 4, 2020, announced that it would 
make available 35,000 supplemental H-2B visas for the second half of 
fiscal year.\27\ On March 13, 2020, then-President Trump declared a 
National Emergency concerning COVID-19, a communicable disease caused 
by the coronavirus SARS-CoV-2.\28\ On April 2, 2020, DHS announced that 
the rule to increase the H-2B cap was on hold due to economic 
circumstances, and no additional H-2B visas would be released until 
further notice.\29\ DHS also noted that the Department of State had 
suspended routine visa services.\30\
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    \27\ DHS to Improve Integrity of Visa Program for Foreign 
Workers, March 5, 2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers.
    \28\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
    \29\ https://twitter.com/DHSgov/status/1245745115458568192?s=20.
    \30\ Id.
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    In FY 2021, although the COVID-19 public health emergency remained 
in effect, DHS in consultation with DOL determined it was appropriate 
to increase the H-2B cap coupled with additional protections (for 
example, post-adjudication audits, investigations, and compliance 
checks), for FY 2021 based on the demand for H-2B workers in the second 
half of FY 2021, as well as other factors that were occurring at that 
time, including the continuing economic growth, the improving job 
market, and increased visa processing capacity by the Department of 
State. Accordingly, on May 25, 2021, DHS and DOL jointly published a 
temporary final rule authorizing an increase of up to 22,000 additional 
H-2B visas for the remainder of FY 2021.\31\ The supplemental visas 
were available only to employers that attested they were likely to 
suffer irreparable harm without the additional workers. The allocation 
of 22,000 additional H-2B visas under that rule consisted of 16,000 
visas available only to H-2B returning workers from one of the last 
three fiscal years (FY 2018, 2019, or 2020) and 6,000 visas that were 
initially reserved for Salvadoran, Guatemalan, and

[[Page 4727]]

Honduran nationals, who were exempt from the returning worker 
requirement. As of August 13, 2021, USCIS received enough petitions for 
returning workers to reach the additional 22,000 H-2B visas made 
available under the FY 2021 H-2B supplemental visa temporary final 
rule.\32\
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    \31\ 86 FR 28198 (May 25, 2021).
    \32\ https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19, 
2021).
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    Similarly, although the COVID-19 public health emergency is still 
in effect, DHS in consultation with DOL believes that it is appropriate 
to increase the H-2B cap for FY 2022 positions with start dates on or 
before March 31, 2022, based on the demand for H-2B workers in the 
first half of FY 2022, recent and continuing economic growth, increased 
labor demand,\33\ and increased visa processing capacity by the 
Department of State. DHS believes it is appropriate to limit the 
increase for the FY 2022 H-2B cap provided in this temporary final rule 
to those petitions with start dates on or before March 31, 2022, as 
data clearly indicates an immediate need for supplemental H-2B visas in 
FY 2022 for positions with start dates in the first half of the fiscal 
year, as demonstrated by the FY 2022 first half cap being met even 
prior to the start of the fiscal year, the earliest the first half H-2B 
cap has been reached in more than a decade. DHS and DOL also believe 
that it is appropriate to couple this cap increase with additional 
workers protections, as described below.
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    \33\ The term ``increased labor demand'' in this context relies 
on the most recently released figure from the Bureau of Labor 
Statistics (BLS) survey at the time this TFR was written. The BLS 
Job Openings and Labor Turnover Survey (JOLTS) reports 11 million 
job openings in October 2021 (compared to 6.8 million job openings 
in October 2020). See Bureau of Labor Statistics, Job Openings and 
Labor Turnover Survey released on December 8, 2021 at https://www.bls.gov/news.release/archives/jolts_12082021.htm.
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D. Joint Issuance of the Final Rule

    As they did in FY 2017, FY 2018, FY 2019, and FY 2021, DHS and DOL 
(the Departments) have determined that it is appropriate to jointly 
issue this temporary final rule.\34\ The determination to issue the 
temporary final rule jointly follows conflicting court decisions 
concerning DOL's authority to independently issue legislative rules to 
carry out its consultative and delegated functions pertaining to the H-
2B program under the INA.\35\ Although DHS and DOL each have authority 
to independently issue rules implementing their respective duties under 
the H-2B program,\36\ the Departments are implementing the numerical 
increase in this manner to ensure there can be no question about the 
authority underlying the administration and enforcement of the 
temporary cap increase. This approach is consistent with rules 
implementing DOL's general consultative role under INA section 
214(c)(1), 8 U.S.C. 1184(c)(1), and delegated functions under INA 
sections 103(a)(6) and 214(c)(14)(B), 8 U.S.C. 1103(a)(6), 
1184(c)(14)(B).\37\
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    \34\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84 
FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021).
    \35\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec., 
983 F.3d 671 (4th Cir. 2020), cert. denied, ---- S. Ct. ----, 2021 
WL 5043596 (2021); see also Temporary Non-Agricultural Employment of 
H-2B Aliens in the United States, 80 FR 24041, 24045 (Apr. 29, 
2015).
    \36\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
    \37\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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III. Discussion

A. Statutory Determination

    Following consultation with the Secretary of Labor, the Secretary 
of Homeland Security has determined that the needs of some U.S. 
employers cannot be satisfied in the first half of FY 2022 with U.S. 
workers who are willing, qualified, and able to perform temporary 
nonagricultural labor. In accordance with the FY 2022 continuing 
resolution extending the authority provided in section 105 of the FY 
2021 Omnibus, the Secretary of Homeland Security has determined that it 
is appropriate, for the reasons stated below, to raise the numerical 
limitation on H-2B nonimmigrant visas for positions with start dates on 
or before March 31, 2022 up to 20,000 additional visas for those 
American businesses that attest that they are suffering irreparable 
harm or will suffer impending irreparable harm, in other words, a 
permanent and severe financial loss, without the ability to employ all 
of the H-2B workers requested on their petition. These businesses must 
retain documentation, as described below, supporting this attestation.
    As they did in connection with the FY 2021 H-2B supplemental visa 
temporary final rule, and consistent with their existing authority, DHS 
and DOL intend to conduct a significant number of audits with respect 
to petitions filed under this, and previous TFRs, requesting 
supplemental H-2B visas, which may be selected at the discretion of the 
Departments, during the period of temporary need to verify compliance 
with H-2B program requirements, including the irreparable harm standard 
as well as other key worker protection provisions implemented through 
this rule. If an employer's documentation does not meet the irreparable 
harm standard, or if the employer fails to provide evidence 
demonstrating irreparable harm or comply with the audit process, this 
may be considered a substantial violation resulting in an adverse 
agency action on the employer, including revocation of the petition 
and/or TLC or program debarment. Some audits conducted of employers 
that received visas under the supplemental cap in FY 2021 have revealed 
concerns surrounding their documentation of irreparable harm, 
recruitment efforts, and compliance with the audit process, which may 
warrant further review and action.
    The Secretary of Homeland Security has also again determined, as in 
FY 2021, that for certain employers, additional recruitment steps are 
necessary to confirm that there are no qualified U.S. workers available 
for the positions. In addition, the Secretary of Homeland Security has 
determined that the supplemental visas will be limited to returning 
workers, with the exception that up to 6,500 of the 20,000 visas will 
be exempt from the returning worker requirement and will be reserved 
for H-2B workers who are nationals of El Salvador, Guatemala, Honduras, 
and Haiti.\38\ As in FY 2021, these H-2B visas are being reserved for 
nationals of El Salvador, Guatemala, and Honduras to once again further 
the objectives of E.O. 14010, which among other initiatives, instructs 
the Secretary of Homeland Security and the Secretary of State to 
implement measures to enhance access to visa programs for individuals 
from the Northern Triangle countries.\39\ DHS observed robust employer 
interest in response to the FY 2021 H-2B supplemental visa allocation 
for Salvadoran, Guatemalan, and Honduran nationals, with USCIS 
approving petitions on behalf of 6,805 beneficiaries

[[Page 4728]]

under this allocation.\40\ In addition, DHS and the Biden 
administration have continued to conduct outreach efforts promoting the 
H-2B program, among others, as a lawful pathway for nationals of El 
Salvador, Guatemala, and Honduras to work in the United States. The 
decision to again reserve an allocation of supplemental H-2B visas for 
these nationals, while providing an exemption from the returning worker 
requirement, will provide ongoing support for the President's vision of 
expanding access to lawful pathways for protection and opportunity for 
individuals from the Northern Triangle countries.\41\
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    \38\ These conditions and limitations are not inconsistent with 
sections 214(g)(3) (``first in, first out'' H-2B processing) and 
(g)(10) (fiscal year H-2B allocations) because noncitizens covered 
by the special allocation under section 105 of the FY 2021 Omnibus 
are not ``subject to the numerical limitations of [section 
214(g)(1).]'' See, e.g., INA section 214(g)(3); INA section 
214(g)(10); FY 2021 Omnibus div. O, sec. 105 (``Notwithstanding the 
numerical limitation set forth in section 214(g)(1)(B) of the [INA] 
. . . .'').
    \39\ See Section 3(c) of E.O. 14010, Creating a Comprehensive 
Regional Framework To Address the Causes of Migration, To Manage 
Migration Throughout North and Central America, and To Provide Safe 
and Orderly Processing of Asylum Seekers at the United States 
Border, signed February 2, 2021, https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf.
    \40\ While USCIS approved a greater number of beneficiaries from 
the Northern Triangle countries than the 6,000 visas allocated under 
the FY 2021 supplemental cap for those countries, the Department of 
State approved 3,065 visas on behalf of nationals from those 
countries. See DHS, USCIS, Office of Performance and Quality, SAS 
PME C3 Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021, 
TRK 8598. This discrepancy can be attributed to adverse impacts on 
consular processing caused by the COVID-19 pandemic, travel 
restrictions, as well as lack of readily available processes to 
efficiently match workers from Norther Triangle countries with U.S. 
recruiters/employers on an expedited timeline. DHS anticipates that 
the normalization of consular services, easing of travel 
restrictions, the issuance of this rule earlier in the fiscal year, 
as well as the fact that this is the second year that DHS will make 
a specific allocation available for workers from the Northern 
Triangle countries, will contribute to greater utilization of 
available visas under this allocation during FY 2022.
    \41\ Id.
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    Additionally, with this temporary final rule, the 6,500 
supplemental cap allocation exempted from the returning worker 
requirement is now also available to nationals of Haiti. In also 
providing this supplemental cap reservation to nationals of Haiti, DHS 
recognizes the recent challenges, such as political instability, 
increasing gang-related violence, and a 7.2 magnitude earthquake that 
have occurred in that country, and believes that the H-2B program will 
provide a stabilizing lawful channel for Haitian nationals seeking to 
enter the United States for economic opportunities. As DHS emphasized 
in its recent notice adding Haiti to the list of countries whose 
nationals are eligible to participate in the H-2A and H-2B programs, 
sustainable development and the stability of Haiti is vital to the 
interests of the United States as a close partner and neighbor.\42\
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    \42\ See Identification of Foreign Countries Whose Nationals Are 
Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker 
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
---------------------------------------------------------------------------

    Similar to the temporary final rules for the FY 2019 and FY 2021 
supplemental caps, the Secretary of Homeland Security has also 
determined to limit the supplemental visas to H-2B returning workers, 
in other words, workers who were issued H-2B visas or were otherwise 
granted H-2B status in FY 2019, 2020, or 2021,\43\ unless the employer 
indicates on the new attestation form that it is requesting workers who 
are nationals of one of the Northern Triangle countries or Haiti and 
who are therefore counted towards the 6,500 allotment regardless of 
whether they are new or returning workers. If the 6,500 returning 
worker exemption cap for Salvadoran, Guatemalan, Honduran, and Haitian 
nationals has been reached and visas remain available under the 
returning worker cap, the petition would be rejected and any fees 
submitted returned to the petitioner. In such a case, a petitioner may 
continue to request workers who are nationals of one of the Northern 
Triangle countries or Haiti, but the petitioner must file a new Form I-
129 petition, with fee, and attest that these noncitizens will be 
returning workers, in other words, workers who were issued H-2B visas 
or were otherwise granted H-2B status in FY 2019, 2020, or 2021. Unlike 
the temporary final rule for the FY 2021 supplemental cap, if the 6,500 
returning worker exemption cap for nationals of the Northern Triangle 
countries and Haiti remains unfilled, DHS will not make unfilled visas 
reserved for Northern Triangle countries and Haiti available to the 
general returning worker cap.
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    \43\ For purposes of this rule, these returning workers could 
have been H-2B cap exempt or extended H-2B status in FY 2019, 2020, 
or 2021. Additionally they may have been previously counted against 
the annual H-2B cap of 66,000 visas during FY 2019, 2020, or 2021, 
or the supplemental caps in FY 2019 or FY 2021.
---------------------------------------------------------------------------

    The Secretary of Homeland Security's determination to increase the 
numerical limitation is based, in part, on the conclusion that some 
businesses are suffering irreparable harm or will suffer impending 
irreparable harm without the ability to employ all of the H-2B workers 
requested on their petition. Members of Congress have informed the 
Secretaries of Homeland Security and Labor about the needs of some U.S. 
businesses for H-2B workers (after the statutory cap for the relevant 
half of the fiscal year has been reached) and about the potentially 
negative impact on state and local economies if the cap is not 
increased.\44\ U.S. businesses, chambers of commerce, employer 
organizations, and state and local elected officials have also 
expressed concerns to the DHS and Labor Secretaries regarding the 
unavailability of H-2B visas after the statutory cap was reached.\45\
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    \44\ See the docket for this rulemaking for access to these 
letters.
    \45\ Id.
---------------------------------------------------------------------------

    After considering the full range of evidence and diverse points of 
view, the Secretary of Homeland Security has deemed it appropriate to 
take action to prevent further severe and permanent financial loss for 
those employers currently suffering irreparable harm and to avoid 
impending irreparable harm for other employers unable to obtain H-2B 
workers under the statutory cap, including potential wage and job 
losses by their U.S. workers, as well as other adverse downstream 
economic effects.\46\ While the previous standard focused on avoidance 
of irreparable harm in the future, this rule recognizes that some 
employers may already be suffering irreparable harm, that is severe and 
permanent financial loss, and so the aim of the revised irreparable 
harm standard with respect to those employers that will benefit from 
this TFR is to prevent further severe and permanent financial loss by 
allowing these employers to also obtain H-2B workers. At the same time, 
the Secretary of Homeland Security believes it is appropriate to 
condition receipt of supplemental visas on adherence to additional 
worker protections, as discussed below.
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    \46\ See, e.g., Impacts of the H-2B Visa Program for Seasonal 
Workers on Maryland's Seafood Industry and Economy, Maryland 
Department of Agriculture Seafood Marketing Program and Chesapeake 
Bay Seafood Industry Association (March 2, 2020), available at 
https://mda.maryland.gov/documents/2020-H2B-Impact-Study.pdf (last 
visited Dec. 1, 2021).
---------------------------------------------------------------------------

    The decision to afford the benefits of this temporary cap increase 
to U.S. businesses that need H-2B workers because they are suffering 
irreparable harm already or will suffer impending irreparable harm, and 
that will comply with additional worker protections, rather than 
applying the cap increase to any and all businesses seeking temporary 
workers, is consistent with DHS's time-limited authority to increase 
the cap, as explained below. The Secretary of Homeland Security, in 
implementing section 105 and determining the scope of any such 
increase, has broad discretion, following consultation with the 
Secretary of Labor, to identify the business needs that are most 
relevant, while bearing in mind the need to protect U.S. workers. 
Within that context, for the below reasons, the Secretary of Homeland 
Security has determined to allow an overall increase of up to 20,000 
additional visas, for positions with start dates on or before March 31, 
2022, solely for the businesses facing

[[Page 4729]]

permanent, severe financial loss or those who will face such loss in 
the near future.
    First, DHS interprets section 105's reference to ``the needs of 
American businesses'' as describing a need different from the need 
ordinarily required of employers in petitioning for an H-2B worker. 
Under the generally applicable H-2B program, each individual H-2B 
employer must demonstrate that it has a temporary need for the services 
or labor for which it seeks to hire H-2B workers. See 8 CFR 
214.2(h)(6)(ii); 20 CFR 655.6. The use of the phrase ``needs of 
American businesses,'' which is not found in INA section 
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), or the 
regulations governing the standard H-2B cap, authorizes the Secretary 
of Homeland Security in allocating additional H-2B visas under section 
105 to require that employers establish a need above and beyond the 
normal standard under the H-2B program, that is, an inability to find 
sufficient qualified U.S. workers willing and available to perform 
services or labor and that the employment of the H-2B worker will not 
adversely affect the wages and working conditions of U.S. workers, see 
8 CFR 214.2(h)(6)(i)(A). DOL concurs with this interpretation.
    Second, the approach set forth in this rule limits the increase in 
a way that is similar to the implementation of the supplemental caps in 
fiscal years 2017, 2018, 2019, and 2021, and provides protections 
against adverse effects on U.S. workers that may result from a cap 
increase. Although there is not enough time to conduct a more full and 
formal quantitative analysis of such adverse effects, the Secretary has 
determined that in the particular circumstances presented here, it is 
appropriate, within the limits discussed below, to tailor the 
availability of this temporary cap increase to those businesses that 
are suffering irreparable harm or will suffer impending irreparable 
harm, in other words, those facing permanent and severe financial loss.
    As noted above, to address the increased and, in some cases, 
impending need for H-2B workers in positions with start dates on or 
before March 31, 2022, the Secretary of Homeland Security has 
determined that employers may petition for supplemental visas on behalf 
of up to 13,500 workers who were issued an H-2B visa or were otherwise 
granted H-2B status in FY 2019, 2020, or 2021.\47\ The last 3 fiscal 
years' temporal limitation in the returning worker definition in this 
temporary rule mirrors the temporal limitation Congress imposed in 
previous returning worker statutes.\48\ Such workers (in other words, 
those who recently participated in the H-2B program) have previously 
obtained H-2B visas and therefore have been vetted by DOS, would have 
departed the United States after their authorized period of stay as 
generally required by the terms of their nonimmigrant admission, and 
therefore may obtain their new visas through DOS and begin work more 
expeditiously.\49\ DOS has informed DHS that, in general, H-2B visa 
applicants who are able to demonstrate clearly that they have 
previously abided by the terms of their status granted by DHS have a 
higher visa issuance rate when applying to renew their H-2B visas, as 
compared with the overall visa applicant pool from a given country. 
Furthermore, consular officers are authorized to waive the in-person 
interview requirement for certain H-2B applicants seeking to renew 
their visa within a specific timeframe of that visa's expiration, and 
who otherwise meet the strict limitations set out under INA section 
222(h), 8 U.S.C. 1202(h). We note that DOS has, in response to the 
COVID-19 pandemic, expanded interview waiver eligibility to certain 
first-time H-2 applicants \50\ potentially allowing such applicants to 
be processed with increased efficiency. However, there is no indication 
that this temporary measure will necessarily affect the overall visa 
issuance rates of applicants, which DOS has indicated is higher for 
returning workers who can demonstrate prior compliance with the 
program.
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    \47\ DHS believes that this temporal limitation is appropriate 
even though H-2B visa issuances and admissions were lower in FY 2020 
than in previous years, likely due to the impacts of COVID-19, as 
DHS believes that there will still be a sufficient number of 
returning workers available to U.S. employers to use the 13,500 
additional visas authorized by this rule.
    \48\ Consolidated Appropriations Act, 2016, Public Law 114-113, 
div. F, tit. V, sec 565; John Warner National Defense Authorization 
Act for Fiscal Year 2007, Public Law 109-364, div. A, tit. X, sec. 
1074, (2006); Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, div. B, tit. IV, sec. 402.
    \49\ The previous review of an applicant's qualifications and 
current evidence of lawful travel to the United States will 
generally lead to a shorter processing time of a renewal 
application. In addition, U.S. Department of State consular officers 
temporarily have flexibility to waive the personal appearance of 
certain nonimmigrant visa applicants. See, e.g., 86 FR 70735 (Dec. 
13, 2021); see also DOS website, Important Announcement on Waivers 
of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \50\ Some consular sections waive the in-person interview 
requirement for certain H-2B applicants and who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h). The authority allowing for waiver of interview of certain 
H-2 (temporary agricultural and non-agricultural workers) applicants 
is extended through the end of 2022. DOS, Important Announcement on 
Waivers of the Interview Requirement for Certain Nonimmigrant Visas, 
https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
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    Limiting the supplemental cap to returning workers is beneficial 
because these workers have generally followed immigration law in good 
faith and demonstrated their willingness to return home after they have 
completed their temporary labor or services or their period of 
authorized stay, which is a condition of H-2B status. The returning 
worker condition therefore provides a basis to believe that H-2B 
workers under this cap increase will again abide by the terms and 
conditions of their visa or nonimmgrant status. The returning worker 
condition also benefits employers that seek to re-hire known and 
trusted workers who have a proven positive employment track record 
while previously employed as workers in this country. While the 
Departments recognize that the returning worker requirement may limit 
to an extent the flexibility of employers that might wish to hire non-
returning workers, the requirement provides an important safeguard 
against H-2B abuse, which DHS considers to be a significant 
consideration.
    In allocating up to 6,500 H-2B visas to nationals of the Northern 
Triangle countries and Haiti while making the remaining allocation of 
up to 13,500 H-2B visas available to qualified returning workers, 
irrespective of their country of nationality, this rule strikes a 
balance between furthering the U.S. foreign policy interests of 
creating a comprehensive, whole-of-government framework--of which this 
allocation is one piece--to address and manage migration from the 
Northern Triangle countries and Haiti and addressing the needs of 
certain H-2B employers that are suffering irreparable harm or will 
suffer impending irreparable harm. The United States has strong foreign 
policy interests in allocating up to 6,500 supplemental visas only to 
nationals of the Northern Triangle countries or Haiti and exempting 
such persons from the returning worker requirement. The Secretary of 
Homeland Security has determined that both the 6,500 limitation and the 
exemption from the returning worker requirement for nationals of the 
Northern Triangle countries is again beneficial in light of

[[Page 4730]]

President Biden's February 2, 2021 E.O. 14010, which instructed the 
Secretary of Homeland Security and the Secretary of State to implement 
measures to enhance access for individuals of the Northern Triangle 
countries to visa programs, as appropriate and consistent with 
applicable law, and to work toward addressing some of the causes of and 
managing migration throughout North and Central America. In response to 
this executive order, DHS seeks to promote and improve safety, 
security, and economic stability throughout the North and Central 
American region, and work with these countries to stem the flow of 
irregular migration in the region and enhance access to visa programs. 
DHS believes that including nationals of Haiti in this allocation of up 
to 6,500 supplemental visas will further promote and improve safety, 
security, and economic stability throughout this region, and is in the 
interests of the United States as a close partner and neighbor.
    The exemption from the returning worker requirement recognizes the 
small numbers of individuals, approximately 4,400 per year, from the 
three Northern Triangle countries and Haiti who were previously granted 
H-2B visas in recent years.\51\ Absent this exemption, there may be 
insufficient workers from these countries, which means that the rule 
might thereby fail to achieve its intended policy objective to provide 
additional temporary foreign workers for U.S. employers that are 
suffering irreparable harm or will suffer impending irreparable harm, 
while also enhancing access to the H-2B visa classification for 
individuals from the Northern Triangle countries and Haiti.
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    \51\ DOS issued a combined total of approximately 26,630 H-2B 
visas to nationals of the Northern Triangle countries and Haiti from 
FY 2015 through FY 2020, or approximately 4,400 per year. DOS 
Monthly NIV Issuances by Nationality and Visa Class; https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Dec. 03, 2021).
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    Finally, unlike the temporary final rule for the FY 2021 
supplemental cap, this rule does not make available unfilled visas from 
the allocation for nationals of the Northern Triangle countries and 
Haiti to the general supplemental cap for returning workers. As with 
the supplemental cap for returning workers, USCIS will stop accepting 
petitions received under the allocation for the Northern Triangle 
countries and Haiti after March 31, 2022. This end date is intended to 
provide H-2B employers ample time, should they choose, to petition for, 
and bring in, workers under the allocation for the Northern Triangle 
countries and Haiti. This, in turn, provides an opportunity for 
employers to contribute to our country's efforts to promote and improve 
safety, security and economic stability in these countries to help stem 
the flow of irregular migration to the United States.
    For all petitions filed under this rule and the H-2B program, 
generally, employers must establish, among other requirements, that 
insufficient qualified U.S. workers are available to fill the 
petitioning H-2B employer's job opportunity and that the foreign 
worker's employment in the job opportunity will not adversely affect 
the wages or working conditions of similarly-employed U.S. workers. INA 
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and 
(D); 20 CFR 655.1. To meet this standard of protection for U.S. workers 
and, in order to be eligible for additional visas under this rule, 
employers must have applied for and received a valid TLC in accordance 
with 8 CFR 214.2(h)(6)(iv)(A) and (D) and 20 CFR part 655, subpart A. 
Under DOL's H-2B regulations, TLCs are valid only for the period of 
employment certified by DOL and expire on the last day of authorized 
employment. 20 CFR 655.55(a).
    In order to have a valid TLC, therefore, the employment start date 
on the employer's H-2B petition must not be different from the 
employment start date certified by DOL on the TLC. See 8 CFR 
214.2(h)(6)(iv)(D). Under generally applicable DHS regulations, the 
only exception to this requirement applies when an employer files an 
amended visa petition, accompanied by a copy of the previously approved 
TLC and a copy of the initial visa petition approval notice, at a later 
date to substitute workers as set forth under 8 CFR 
214.2(h)(6)(viii)(B). This rule also requires additional recruitment 
for certain petitioners, as discussed below.
    In sum, this rule increases the FY 2022 numerical limitation by up 
to 20,000 visas for positions with start dates on or before March 31, 
2022, but also restricts the availability of those additional visas by 
prioritizing only the most significant business needs, and limiting 
eligibility to H-2B returning workers, unless the worker is a national 
of one of the Northern Triangle countries or Haiti counted towards the 
6,500 allocation that are exempt from the returning worker limitation. 
These provisions are each described in turn below.

B. Numerical Increase and Allocation of Up to 20,000 Visas

    The increase of up to 20,000 visas will help address the urgent 
needs of eligible employers for additional H-2B workers for those 
employers with employment needs for start dates on or before March 31, 
2022.\52\ As noted above, DHS is limiting the numerical increase to 
those petitions with start dates on or before March 31, 2022, because 
current data supports the need for additional H-2B workers with start 
dates during that timeframe.\53\ The determination to allow up to 
20,000 additional H-2B visas reflects a balancing of a number of 
factors including the demand for H-2B visas for the first half of FY 
2022; current economic conditions; the general trend of increased 
demand for H-2B visas from FY 2017 to FY 2021; H-2B returning worker 
data; the amount of time remaining for employers to hire and obtain H-
2B workers with start dates on or before March 31, 2022; concerns from 
Congress, state and local elected officials, U.S. businesses, chambers 
of commerce, and employer organizations expressing a need for 
additional H-2B workers; and the objectives of E.O. 14010. DHS believes 
the numerical increase both addresses the needs of U.S. businesses and, 
as explained in more detail below, furthers the foreign policy 
interests of the United States.
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    \52\ In contrast with section 214(g)(1) of the INA, 8 U.S.C. 
1184(g)(1), which establishes a cap on the number of individuals who 
may be issued visas or otherwise provided H-2B status (emphasis 
added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10), 
which imposes a first half of the fiscal year cap on H-2B issuance 
with respect to the number of individuals who may be issued visas or 
are accorded [H-2B] status'' (emphasis added), section 105 only 
authorizes DHS to increase the number of available H-2B visas. 
Accordingly, DHS will not permit individuals authorized for H-2B 
status pursuant to an H-2B petition approved under section 105 to 
change to H-2B status from another nonimmigrant status. See INA 
section 248, 8 U.S.C. 1258; see also 8 CFR part 248. If a petitioner 
files a petition seeking H-2B workers in accordance with this rule 
and requests a change of status on behalf of someone in the United 
States, the change of status request will be denied, but the 
petition will be adjudicated in accordance with applicable DHS 
regulations. Any noncitizen authorized for H-2B status under the 
approved petition would need to obtain the necessary H-2B visa at a 
consular post abroad and then seek admission to the United States in 
H-2B status at a port of entry.
    \53\ On January 4, 2022, DOL's Office of Foreign Labor 
Certification announced it had received a total of 7,875 H-2B 
temporary labor certification applications requesting 136,555 
workers with the start date of work of April 1, 2022. See https://www.dol.gov/agencies/eta/foreign-labor. DHS is limiting the 
supplemental H-2B visas provided by this TFR to those employers with 
start dates of need on or before March 31, 2022, for the reasons 
described in this TFR.
---------------------------------------------------------------------------

    Section 105 of the FY 2021 Omnibus sets the highest number of H-2B 
returning workers who were exempt from the cap in certain previous 
years as the maximum limit for any increase in the H-2B numerical 
limitation for FY

[[Page 4731]]

2021.\54\ Consistent with the statute's reference to H-2B returning 
workers, in determining the appropriate number by which to increase the 
H-2B numerical limitation, the Secretary of Homeland Security focused 
on the number of visas allocated to such workers in years in which 
Congress enacted returning worker exemptions from the H-2B numerical 
limitation. During each of the years the returning worker provision was 
in force, U.S. employers' standard business needs for H-2B workers 
exceeded the statutory 66,000 cap. The highest number of H-2B returning 
workers approved was 64,716 in FY 2007. In setting the number of 
additional H-2B visas to be made available in this temporary final rule 
for those petitioners with start dates on or before March 31, 2022 
during FY 2022, DHS considered this number, overall indications of 
increased need, and the availability of U.S. workers, as discussed 
below. On the basis of these considerations, DHS determined that it 
would be appropriate to make available up to 20,000 additional visas 
under the FY2022 supplemental cap authority. The Secretary further 
considered the objectives of E.O. 14010, which among other initiatives, 
instructs the Secretary of Homeland Security and the Secretary of State 
to implement measures to enhance access to visa programs for 
individuals from the Northern Triangle countries, as well as to address 
some of the root causes of and manage migration throughout both North 
and Central America, including Haiti, and determined that reserving up 
to 6,500 of the up to 20,000 additional visas and exempting this number 
from the returning worker requirement for nationals from the Northern 
Triangle countries or Haiti would be appropriate.
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    \54\ During fiscal years 2005 to 2007, and 2016, Congress 
enacted ``returning worker'' exemptions to the H-2B visa cap, 
allowing workers who were counted against the H-2B cap in one of the 
three preceding fiscal years not to be counted against the upcoming 
fiscal year cap. Save Our Small and Seasonal Businesses Act of 2005, 
Public Law 109-13, Sec. 402 (May 11, 2005); John Warner National 
Defense Authorization Act, Public Law 109-364, Sec. 1074 (Oct. 17, 
2006); Consolidated Appropriations Act of 2016, Public Law 114-113, 
Sec. 565 (Dec. 18, 2015).
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    In past years, the number of beneficiaries covered by H-2B 
petitions filed exceeded the number of additional visas allocated under 
the three most recent supplemental caps. In FY 2018, USCIS received 
petitions for approximately 29,000 beneficiaries during the first 5 
business days of filing for the 15,000 supplemental cap. USCIS 
therefore conducted a lottery on June 7, 2018, to randomly select 
petitions that would be accepted under the supplemental cap. Of the 
petitions that were selected, USCIS issued approvals for 15,672 
beneficiaries.\55\ In FY 2019, USCIS received sufficient petitions for 
the 30,000 supplemental cap on June 5, 2019, but did not conduct a 
lottery to randomly select petitions that would be accepted under the 
supplemental cap. Of the petitions received, USCIS issued approvals for 
32,717 beneficiaries. In FY 2021, USCIS received a sufficient number of 
petitions for the 22,000 supplemental cap on August 13, 2021, including 
a significant number of workers from Northern Triangle countries.\56\ 
Of the petitions received, USCIS issued approvals for 30,211 
beneficiaries, including approvals for 6,805 beneficiaries under the 
allocation for the nationals of the Northern Triangle.\57\
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    \55\ USCIS recognizes it may have received petitions for more 
than 29,000 supplemental H-2B workers if the cap had not been 
exceeded within the first 5 days of opening. However, DHS estimates 
that not all of the 29,000 workers requested under the FY 2018 
supplemental cap would have been approved and/or issued visas. For 
instance, although DHS approved petitions for 15,672 beneficiaries 
under the FY 2018 cap increase, the Department of State data shows 
that as of January 15, 2019, it issued only 12,243 visas under that 
cap increase. Similarly, DHS approved petitions for 12,294 
beneficiaries under the FY 2017 cap increase, but the Department of 
State data shows that it issued only 9,160 visas.
    \56\ On June 3, USCIS announced that it had received enough 
petitions to reach the cap for the additional 16,000 H-2B visas made 
available for returning workers only, but that it would continue 
accepting petitions for the additional 6,000 visas allotted for 
nationals of the Northern Triangle countries. See https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021 (June 3, 2021). On July 23, 2021, 
USCIS announced that, because it did not receive enough petitions to 
reach the allocation for the Northern Triangle countries by the July 
8 filing deadline, the few remaining visas were available to H-2B 
returning workers regardless of their country of origin. See https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (July 23, 2021).
    \57\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2018, FY 2019, as well as for FY 
2021 to allow for the possibility that some approved workers would 
either not seek a visa or admission, would not be issued a visa, or 
would not be admitted to the United States.
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    Data for the first half of FY 2022 clearly indicate an immediate 
need for supplemental H-2B visas in FY 2022 for positions with start 
dates between October 1, 2021 through March 31, 2022. As of December 1, 
2021, DOL's Office of Foreign Labor Certification (OFLC) reports having 
certified 2,469 TLC applications with requested dates of need in the 
first half of FY 2022 for 65,717 H-2B visas.\58\ Furthermore, as noted 
above, USCIS received a sufficient number of H-2B petitions to reach 
the first half of the FY 2022 fiscal year statutory cap prior to the 
start of the fiscal year.\59\
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    \58\ Processing Times, https://flag.dol.gov/processingtimes 
(last visited Dec. 2, 2021).
    \59\ On October 12, 2021, USCIS announced that it had received 
sufficient petitions to reach the congressionally mandated cap on H-
2B visas for temporary nonagricultural workers for the first half of 
fiscal year 2022, and that Sept. 30, 2021 was the final receipt date 
for new cap-subject H-2B worker petitions requesting an employment 
start date before April 1, 2022. See USCIS, USCIS Reaches H-2B Cap 
for First Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021).
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    In addition, although the public health emergency due to COVID-19 
still exists,\60\ DHS believes that issuing additional H-2B visas for 
positions with start dates on or before March 31, 2022 is appropriate 
in the context of the nation's economic recovery from the ongoing 
pandemic. In March 2020, the U.S. labor market was severely affected by 
the onset of the COVID-19 pandemic, pushing the national unemployment 
rate to near record levels and resulting in millions of U.S. workers 
being displaced from work. In fiscal year 2021, approximately 88 
percent of H-2B filings were for positions within just 5 sectors.\61\ 
NAICS 56 (Administrative and Support and Waste Management and 
Remediation Services) accounted for 41.7% of filings, NAICS 71 
(Accommodation and Food Services) accounted for 17.1%, NAICS 72 (Arts, 
Entertainment, and Recreation) accounted for 14.5%, NAICS 23 
(Construction) accounted for 9.5%, and NAICS 11 (Agriculture, Forestry, 
Fishing and Hunting) accounted for 5% of filings.
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    \60\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
    \61\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

    Within these industries, DOL data show increased labor demand over 
the last year. More specifically, DOL data from the Job Openings and 
Labor Turnover Survey (JOLTS) show that the rate of job openings \62\ 
increased for all 5 industries between October 2020 and October 2021. 
The job opening rate for NAICS 56 \63\ increased from 5.7 to 7.9

[[Page 4732]]

while the job opening rate for NAICS 71 went from 5.2 to 7.6. The job 
opening rate for NAICS 72 went from 6.3 to 10.7 while the rate for 
NAICS 23 went from 3.3 to 5.2. The job opening rate for NAICS 11 \64\ 
increased from 3.4 to 5.3.
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    \62\ The JOLTS News Release states that the job openings rate is 
calculated by dividing the number of job openings by the sum of 
employment and job openings and multiplying that quotient by 100. 
See https://www.bls.gov/news.release/jolts.htm.
    \63\ JOLTS data presented here are for the Professional and 
Business Services Supersector, which is comprised of NAICS 54, NAICS 
55 and NAICS 56. See https://www.bls.gov/iag/tgs/iag60.htm. As such, 
the data presented here should be understood to be the best possible 
proxy for changes in NAICS 56 and not a direct measurement of any 
specific change in the actual underlying sectors. The latest data 
available, for November 2021, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 56 accounted for 
just under 42% of employment in Professional Business Services. All 
data accessed December 22, 2021.
    \64\ JOLTS data presented here are for Mining and Logging, which 
is part of the Natural Resources and Mining Supersector. This 
supersector is comprised of NAICS 11 (Agriculture, Forestry, Fishing 
and Hunting) and NAICS 21 (Mining, Quarrying, and Oil and Gas 
Extraction). See https://www.bls.gov/iag/tgs/iag10.htm. As such, the 
data presented here should be understood to be the best possible 
proxy for changes in NAICS 11 and not a direct measurement of any 
specific change in the actual underlying sectors. The latest data 
available, for November 2021, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 11 accounted for 
just under 7% of employment in Mining and Logging.

                                 Year-Over-Year Change in Job Opening Rate \65\
----------------------------------------------------------------------------------------------------------------
       NAICS 11               NAICS 23               NAICS 56               NAICS 71              NAICS 72
----------------------------------------------------------------------------------------------------------------
                1.9                    1.9                    2.2                    2.4                   4.4
----------------------------------------------------------------------------------------------------------------

    The increase in the job openings rate across these industries is a 
clear indication of increased labor demand within these industries. The 
Departments believe that the supplemental allocation of H-2B visas 
described in this temporary final rule will help to meet increased job 
openings in these industries.
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    \65\ Year-over-year change was calculated as the difference 
between the October 2021 value for the respective industry and the 
October 2020 value. See https://www.bls.gov/jlt/#data. All data 
accessed December 22, 2021.
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    In addition, DOS recently announced that, as worldwide restrictions 
due to the COVID-19 pandemic begin to ease, and in line with the 
President's proclamation regarding the safe resumption of international 
travel,\66\ the Bureau of Consular Affairs is focusing on reducing wait 
times for all consular services at embassies and consulates overseas 
while also protecting health and safety of staff and applicants.\67\ We 
note, however, that amid growing concern about the COVID Omicron 
variant, a highly mutated form of the COVID virus that is now 
documented in dozens of countries and numerous states within the U.S., 
the Centers for Disease Control and Prevention (CDC) recently tightened 
testing requirements for international air travel to the United States, 
which may have an impact on such travel.\68\ Given the level of demand 
for H-2B workers, the continued and projected economic recovery, the 
continued and projected job growth, and the resumption of visa 
processing services, DHS believes it is appropriate at this time to 
release additional visas for positions with start dates on or before 
March 31, 2022. Further, DHS believes that 20,000 is an appropriate 
number of visas for the reasons discussed above.
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    \66\ Proclamation 10294 of Oct. 25, 2021, Advancing the Safe 
Resumption of Global Travel During the COVID-19 Pandemic, 86 FR 
59603 (Oct. 28, 2021).
    \67\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Nov. 19, 2021).
    \68\ See CDC, Requirement for Proof of Negative COVID-19 Test or 
Documentation of Recovery from COVID-19, Requirement for Proof of 
Negative COVID-19 Test or Documentation of Recovery from COVID-19 
(Dec. 2, 2021). Changes made prior to the emergence of Omicron also 
reflect the evolving nature of the pandemic and potential impacts on 
international air travel by H-2B workers. See 86 FR 59603 (Oct. 28, 
2021) (Presidential Proclamation); see also 86 FR 61224 (Nov. 5, 
2021) (implementing CDC Order).
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    Finally, recognizing the high demand for H-2B visas, it is 
plausible that the additional H-2B supplemental allocations provided in 
this rule will be reached before March 31, 2022. Specifically, the 
following scenarios may still occur:
     The 13,500 supplemental cap visas limited to returning 
workers that will be immediately available for employers will be 
reached before March 31, 2022.
     The 6,500 supplemental cap visas limited to nationals of 
the Northern Triangle countries and Haiti will be reached before March 
31, 2022.
    DHS regulation, 8 CFR 214.2(h)(6)(xi)(E), reaffirms the use of the 
processes that are in place when H-2B numerical limitations under INA 
section 214(g)(1)(B) or (g)(10), 8 U.S.C. 1184(g)(1)(B) or (g)(10), are 
reached, as applicable to each of the scenarios described above that 
involve numerical limitations of the supplemental cap. Specifically, 
for each of the scenarios mentioned above, DHS will monitor petitions 
received, and make projections of the number of petitions necessary to 
achieve the projected numerical limit of approvals. USCIS will also 
notify the public of the dates that USCIS has received the necessary 
number of petitions (the ``final receipt dates'') for each of these 
scenarios. The day the public is notified will not control the final 
receipt dates. Moreover, USCIS may randomly select, via computer-
generated selection, from among the petitions received on the final 
receipt date the remaining number of petitions deemed necessary to 
generate the numerical limit of approvals for each of the scenarios 
involving numerical limitations to the supplemental cap. USCIS may, but 
will not necessarily, conduct a lottery if: The 13,500 supplemental cap 
visas for returning workers is reached before March 31, 2022; or the 
6,500 visas limited to nationals of the Northern Triangle countries and 
Haiti is reached before March 31, 2022. Finally, similar to the 
processes applicable to the H-2B semi-annual statutory cap, if the 
final receipt date is any of the first 5 business days on which 
petitions subject to the applicable numerical limit may be received (in 
other words, if the numerical limit is reached on any one of the first 
5 business days that filings can be made), USCIS will randomly apply 
all of the numbers among the petitions received on any of those 5 
business days.

C. Returning Workers

    Similar to the temporary increases in FY 2019 and FY 2021, the 
Secretary of Homeland Security has determined that the supplemental 
visas should be granted to returning workers from the past 3 fiscal 
years, in order to meet the immediate need for H-2B workers, unless the 
H-2B worker is a national of one of the Northern Triangle countries or 
Haiti and is counted towards the separate 6,500 cap for such workers. 
The Secretary has determined that, for purposes of this program, H-2B 
returning workers include those individuals who were issued an H-2B 
visa or were otherwise granted H-2B status in FY 2019, 2020, or 2021. 
As discussed above, the Secretary determined that limiting returning 
workers to those who were issued an H-2B visa or granted H-2B status in 
the past three fiscal years is appropriate as it mirrors the standard 
that Congress designated in previous returning worker provisions. 
Returning workers have previously obtained H-2B visas and therefore 
been vetted by DOS, would have departed the United States after their 
authorized period of stay as generally required by the terms of their

[[Page 4733]]

nonimmigrant admission, and therefore may have a higher likelihood of 
success in obtaining their new visas through DOS, possibly without a 
required interview, and begin work more expeditiously.
    To ensure compliance with the requirement that additional visas 
only be made available to returning workers, petitioners seeking H-2B 
workers under the supplemental cap will be required to attest that each 
employee requested or instructed to apply for a visa under the FY 2022 
supplemental cap was issued an H-2B visa or otherwise granted H-2B 
status in FY 2019, 2020, or 2021, unless the H-2B worker is a national 
of one of the Northern Triangle countries or Haiti and is counted 
towards the 6,500 cap. This attestation will serve as prima facie 
initial evidence to DHS that each worker, unless a national of one of 
the Northern Triangle countries or Haiti who is counted against the 
6,500 cap, meets the returning worker requirement. DHS and DOS retain 
the right to review and verify that each beneficiary is in fact a 
returning worker any time before and after approval of the petition or 
visa. DHS has authority to review and verify this attestation during 
the course of an audit or investigation.

D. Returning Worker Exemption for Up to 6,500 Visas for Nationals of 
Guatemala, El Salvador, and Honduras (Northern Triangle Countries) and 
Haiti

    As described above, the Secretary of Homeland Security has 
determined that up to 6,500 additional H-2B visas will be limited to 
workers who are nationals of one of the Northern Triangle countries or 
Haiti. These 6,500 visas will be exempt from the returning worker 
requirement. If the 6,500 visa limit has been reached and the 13,500 
cap has not, petitioners may continue to request workers who are 
nationals of one of the Northern Triangle countries or Haiti, but these 
noncitizens must be specifically requested as returning workers who 
were issued H-2B visas or were otherwise granted H-2B status in FY 
2019, 2020, or 2021.
    DHS has determined that reserving 6,500 supplemental H-2B visas for 
nationals of the Northern Triangle countries or Haiti--a number higher 
than the average annual number of visas issued to such persons in the 
past 7 fiscal years--will encourage U.S. employers that are suffering 
irreparable harm or will suffer impending irreparable harm to seek out 
workers from such countries, while, at the same time, increase interest 
among nationals of the Northern Triangle countries and Haiti seeking a 
legal pathway for temporary employment in the United States. DOS issued 
a combined total of approximately 26,630 H-2B visas to nationals of the 
Northern Triangle countries or Haiti from FY 2015 through FY 2020, an 
average of approximately 4,400 per year.\69\ In FY 2021, DOS issued a 
combined total of more than 6,600 visas to nationals of Northern 
Triangle countries. This increase is likely due in large part to the 
additional H-2B visas made available to nationals of these countries by 
the FY 2021 H-2B supplemental visa temporary final rule.\70\ In 
addition, based in part on the vital U.S. interest of promoting 
sustainable development and the stability of Haiti, DHS recently added 
Haiti to the list of countries whose nationals are eligible to 
participate in the H-2A and H-2B programs.\71\ Therefore, as previously 
stated, DHS has determined that the additional increase in FY 2022 will 
not only provide U.S. businesses who have been unable to find qualified 
and available U.S. workers with potential workers, but also promote 
further expansion of lawful immigration and lawful employment 
authorization for nationals of Northern Triangle countries and Haiti.
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    \69\ DOS Monthly NIV Issuances by Nationality and Visa Class; 
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited December 
1, 2021).
    \70\ Id.
    \71\ See Identification of Foreign Countries Whose Nationals Are 
Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker 
Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
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    While DHS reiterates the importance of limiting the general 
supplemental cap exclusively to returning workers, for the reasons 
stated previously, the Secretary has determined that the exemption from 
the returning worker requirement for nationals of the Northern Triangle 
countries or Haiti is beneficial for the following reasons. It strikes 
a balance between furthering the U.S. foreign policy interests of 
expanding access to lawful pathways to nationals of the Northern 
Triangle countries and Haiti seeking economic opportunity in the United 
States and addressing the needs of certain H-2B employers that are 
suffering irreparable harm or will suffer impending irreparable harm. 
This policy initiative would also support the strategies for the region 
described in E.O. 14010, which directs DHS to implement efforts to 
expand access to lawful pathways to the United States, including visa 
programs, as appropriate and consistent with the law through both 
protection-related and non-protection related programs. E.O. 14010 
further directs relevant government agencies to create a comprehensive 
regional framework to address the causes of migration, and to manage 
migration throughout North and Central America.\72\ The availability of 
workers from the Northern Triangle countries and Haiti may help provide 
U.S. employers with additional labor from neighboring countries who are 
committed to working with the United States and also promote safe and 
lawful immigration to the United States.
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    \72\ See also National Security Council, Collaborative Migration 
Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021) 
(stating that ``The United States has strong national security, 
economic, and humanitarian interests in reducing irregular migration 
and promoting safe, orderly, and humane migration'' within North and 
Central America).
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    Similar to the discussion above regarding returning workers, DOS 
will work with the relevant countries to facilitate consular 
interviews, as required,\73\ and channels for reporting incidents of 
fraud and abuse within the H-2 programs. Further, each country's own 
consular networks will maintain contact with the workers while in the 
United States and ensure the workers know their rights and 
responsibilities under the U.S. immigration laws, which are all 
valuable protections to the immigration system, U.S. employers, U.S. 
workers, and workers entering the country on H-2 visas.
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    \73\ As noted previously, some consular sections waive the in-
person interview requirement for H-2B applicants whose prior visa 
expired within a specific timeframe and who otherwise meet the 
strict limitations set out under INA section 222(h), 8 U.S.C. 
1202(h). The authority allowing for waiver of interview of certain 
H-2 (temporary agricultural and non-agricultural workers) applicants 
is extended through the end of 2022. Applicants renewing any visa 
within 48 months of expiration are also eligible for interview 
waiver. DOS, Important Announcement on Waivers of the Interview 
Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
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    Nothing in this rule will limit the authority of DHS or DOS to 
deny, revoke, or take any other lawful action with respect to an H-2B 
petition or visa application at any time before or after approval of 
the H-2B petition or visa application.

E. Business Need Standard--Irreparable Harm and FY 2022 Attestation

    To file any H-2B petition under this rule, petitioners must meet 
all existing H-2B eligibility requirements, including having an 
approved, valid, and unexpired TLC. See 8 CFR 214.2(h)(6) and 20 CFR 
part 655, subpart A. In addition, the petitioner must submit an 
attestation to USCIS in which the petitioner affirms, under penalty of

[[Page 4734]]

perjury, that it meets the business need standard. Petitioners must be 
able to establish that they are suffering irreparable harm or will 
suffer impending irreparable harm (that is, permanent and severe 
financial loss) without the ability to employ all of the H-2B workers 
requested on their petition.\74\ The TLC process focuses on 
establishing whether a petitioner has a temporary need for workers and 
whether there are U.S. workers who are able, willing, qualified, and 
available to perform the temporary service or labor, and does not 
address the harm a petitioner is facing or will face in the absence of 
such workers; the attestation addresses this question. The attestation 
must be submitted directly to USCIS, together with Form I-129, the 
approved and valid TLC,\75\ and any other necessary documentation. As 
in the rules implementing the FY 2017, FY 2018, FY 2019, and FY 2021 
temporary cap increases, employers will be required to complete the new 
attestation form which can be found at: https://www.foreignlaborcert.doleta.gov/form.cfm.\76\
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    \74\ An employer may request fewer workers on the H-2B petition 
than the number of workers listed on the TLC. See Instructions for 
Petition for Nonimmigrant Worker, providing that ``the total number 
of workers you request on the petition must not exceed the number of 
workers approved by the Department of Labor or Guam Department of 
Labor, if required, on the temporary labor certification.''
    \75\ Since July 26, 2019, USCIS has been accepting a printed 
copy of the electronic one-page ETA-9142B, Final Determination: H-2B 
Temporary Labor Certification Approval, as an original, approved 
TLC. See, Notice of DHS's Requirement of the Temporary Labor 
Certification Final Determination Under the H-2B Temporary Worker 
Program, 85 FR 13178, 13179 (Mar. 6, 2020).
    \76\ This portion of the temporary rule does not apply to 
workers who have already been counted under the H-2B statutory cap 
for the first half of fiscal year 2022 (33,000). Further, this 
portion of the rule does not apply to noncitizens who are exempt 
from the fiscal year 2022 H-2B statutory cap, including those who 
are extending their stay in H-2B status. Accordingly, petitioners 
who are filing on behalf of such workers are not subject to the 
attestation requirement.
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    In previous years petitioners have only been required to attest 
that they were likely to suffer irreparable harm if they were unable to 
employ all of the H-2B workers requested on their I-129 petition 
submitted under H-2B cap increase rules. The Departments have decided 
to change this standard. Employers must instead attest that they are 
suffering irreparable harm or will suffer impending irreparable harm 
without the ability to employ all of the H-2B workers requested on the 
petition filed under this rule. This change is designed to focus more 
directly on the actual irreparable harm employers are suffering or the 
impending irreparable harm they will suffer as a result of their 
inability to employ H-2B workers, rather than on just the possibility 
of such harm.
    As noted above, Congress authorized the Secretary of Homeland 
Security, in consultation with the Secretary of Labor, to increase the 
total number of H-2B visas available ``upon the determination that the 
needs of American businesses cannot be satisfied'' with U.S. workers 
under the statutory visa cap.\77\ The new irreparable harm standard in 
this rule aligns with the determination that Congress requires DHS to 
make before increasing the number of H-2B visas available to U.S. 
employers. In particular, requiring employers to attest that they are 
suffering irreparable harm or will suffer impending irreparable harm 
without the ability to employ all of the requested H-2B workers is 
directly relevant to the needs of the business--if an employer is 
suffering or will suffer irreparable harm, then their needs are not 
being satisfied. The prior standard, on the other hand, required only 
that the employer attest that harm was likely to occur at some point in 
the future, which created uncertainty as to whether that employer's 
needs were truly unmet or would not be met without being able to employ 
the requested H-2B workers. Because the authority to increase the 
statutory cap is tied to the needs of businesses, the Departments think 
it is reasonable for employers to attest that they are suffering 
irreparable harm or that they will suffer impending irreparable harm 
without the ability to employ all of the H-2B workers requested on 
their petition. If such employers are unable to attest to such harm and 
retain and produce documentation of that harm, it calls into question 
whether their needs cannot in fact be satisfied without the ability to 
employ H-2B workers. As with employers with a current need, an 
employer's inability to attest to impending harm calls into question 
their actual need for the requested H-2B workers.
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    \77\ Public Law 117-70 Further Extending Government Funding Act, 
Division A ``Further Continuing Appropriations Act, 2022'', section 
101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in 
section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law 
117-43 Extending Government Funding and Delivering Emergency 
Assistance Act, Division A ``Continuing Appropriations Act, 2022'', 
Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and 
authorities, including authority under section 105 of title I of 
Division O of Public Law 116-260, through December 3, 2021.
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    The change to the irreparable harm standard is also informed by the 
Departments' experiences in implementing the business need standard. In 
the Departments' experience, the ``likely to suffer irreparable harm'' 
standard has been difficult to assess and administer in the context of 
prior supplemental cap rules. For example, employers have reported 
confusion with the standard, including some employers that were not 
able to provide adequate evidence of the prospective ``likelihood of 
irreparable harm'' when selected for a random audit. The Departments 
therefore believe that asking employers to provide evidence of harm 
that is occurring or is impending without the ability to employ all of 
the H-2B workers requested on their petition is a better means of 
ensuring compliance.
    The attestation form will serve as prima facie initial evidence to 
DHS that the petitioner's business is suffering irreparable harm or 
will suffer impending irreparable harm. Any petition requesting H-2B 
workers under this FY 2022 supplemental cap that is lacking the 
requisite attestation form may be rejected in accordance with 8 CFR 
103.2(a)(7)(ii) or denied in accordance with 8 CFR 103.2(b)(8)(ii), as 
applicable. Although this regulation does not require submission of 
evidence at the time of filing of the petition, other than an 
attestation, the employer must have such evidence on hand and ready to 
present to DHS or DOL at any time starting with the date of filing the 
I-129 petition, through the prescribed document retention period 
discussed below. In fact, as with petitions filed under the FY 2021 
Supplemental TFR, the Departments intend to select a significant number 
of petitions approved for audit examination to verify compliance with 
program requirements, including the irreparable harm standard and 
recruitment provisions implemented through this rule. Failure to 
provide evidence demonstrating irreparable harm or to comply with the 
audit process may be considered a substantial violation resulting in an 
adverse agency action on the employer, including revocation of the 
petition and/or TLC or program debarment. Similarly, failure to 
cooperate with any compliance review, evaluation, verification, or 
inspection conducted by DHS or DOL as required by 8 CFR 
214.2(h)(6)(xi)(B)(2)(vi) and (vii), respectively, may constitute a 
violation of the terms and conditions of an approved petition and lead 
to petition revocation under 8 CFR 214.2(h)(11)(iii)(A)(3).
    In addition to the statement regarding the irreparable harm 
standard, the attestation submitted to USCIS will also state that the 
employer meets all other eligibility criteria for the available visas,

[[Page 4735]]

including the returning worker requirement, unless exempt because the 
H-2B worker is a national of one of the Northern Triangle countries or 
Haiti who is counted against the 6,500 visas reserved for such workers; 
will comply with all assurances, obligations, and conditions of 
employment set forth in the Application for Temporary Employment 
Certification (Form ETA 9142B and appendices) certified by DOL for the 
job opportunity (which serves as the TLC); will conduct additional 
recruitment of U.S. workers in accordance with the requirements of this 
rule and discussed further below; and will document and retain evidence 
of such compliance. Because the attestation will be submitted to USCIS 
as initial evidence with Form I-129, DHS considers the attestation to 
be evidence that is incorporated into and a part of the petition 
consistent with 8 CFR 103.2(b)(1). Accordingly, a petition may be 
denied or revoked, as applicable, based on or related to statements 
made in the attestation, including but not limited to the following 
grounds: (1) Because the employer failed to demonstrate employment of 
all of the requested workers is necessary under the appropriate 
business need standard; and (2) the employer failed to demonstrate that 
it requested and/or instructed that each worker petitioned for was a 
returning worker, or a national of one of the Northern Triangle 
countries or Haiti, as required by this rule. Any denial or revocation 
on such basis, however, would be appealable under 8 CFR part 103, 
consistent with DHS regulations and existing USCIS procedures.
    It is the view of the Secretaries of Homeland Security and Labor 
that requiring a post-TLC attestation to USCIS is the most practical 
approach, given the time remaining in the first half of FY 2022 and the 
need to assemble the necessary documentation. In addition, the employer 
is required to retain documentation, which must be provided upon 
request by DHS or DOL, supporting the new attestations regarding (1) 
the irreparable harm standard, (2) the returning worker requirement, 
or, alternatively, documentation supporting that the H-2B worker(s) 
requested is a national of one of the Northern Triangle countries or 
Haiti who is counted against the 6,500 cap (which may be satisfied by 
the separate Form I-129 that employers are required to file for such 
workers in accordance with this rule) and (3) a recruitment report for 
any additional recruitment required under this rule for a period of 3 
years. See new 20 CFR 655.69. Although the employer must have such 
documentation on hand at the time it files the petition, the 
Departments have determined that, if employers were required to submit 
the attestation form to DOL before filing a petition with DHS, the 
attendant delays would render any visas unlikely to satisfy the needs 
of American businesses given processing timeframes and the time 
remaining in this fiscal year. However, as noted above, the Departments 
will be conducting audits, investigations and/or post-adjudication 
compliance reviews on a significant number of H-2B petitions. As part 
of that process, USCIS may issue a request for additional evidence, a 
notice of intent to revoke, or a revocation notice, based on the review 
of such documentation, and DOL's OFLC and WHD will be able to review 
this documentation and enforce the attestations during the course of an 
audit examination or investigation. See 8 CFR 103.2(b) or 8 CFR 
214.2(h)(11).
    In accordance with the attestation requirements, under which 
petitioners attest that they meet the irreparable harm standard, that 
they are seeking to employ only returning workers (unless exempt as 
described above), and they meet the document retention requirements at 
new 20 CFR 655.69, the petitioner must retain documents and records 
fulfilling their responsibility to demonstrate compliance with this 
rule for 3 years from the date of the attestation, and must provide the 
documents and records upon the request of DHS or DOL. With regard to 
the irreparable harm standard, employers attesting that they are 
suffering irreparable harm must be able to provide concrete evidence 
establishing severe and permanent financial loss that is occurring; the 
scope and severity of the harm must be clearly articulable. Employers 
attesting that they will suffer impending irreparable harm must be able 
to demonstrate that severe and permanent financial loss will occur in 
the near future without access to the supplemental visas; it will not 
be enough to provide evidence suggesting that such harm may or is 
likely to occur; rather, the documentary evidence must show that 
impending harm will occur and document the form of such harm. 
Supporting evidence may include, but is not limited to, the following 
types of documentation:
    (1) 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;
    (2) 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;
    (3) Evidence showing the number of workers needed in the previous 
three seasons (FY 2019, 2020, and 2021) 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 indicate 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;
    (4) 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 good and services, or 
other reliable forecast of an impending need for workers; and/or
    (5) With respect to satisfying the returning worker requirement, 
evidence that the employer requested and/or instructed that each of the 
workers petitioned by the employer in connection with this temporary 
rule were issued H-2B visas or otherwise granted H-2B status in FY 
2019, 2020, or 2021, unless the H-2B worker is a national of one of the 
Northern Triangle countries or Haiti counted towards the 6,500 cap. 
Such evidence would include, but is not limited to, 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 2019, 2020, or 2021.

[[Page 4736]]

    These examples are not exhaustive, nor will they necessarily 
establish that the business meets the irreparable harm or returning 
worker standards; petitioners may retain other types of evidence they 
believe will satisfy these standards. When an approved petition is 
selected for audit examination or investigation, DHS or DOL will review 
all evidence available to it to confirm that the petitioner properly 
attested to DHS, at the time of filing the petition, that their 
business was suffering irreparable harm or would suffer impending 
irreparable harm, and that they petitioned for and employed only 
returning workers, unless the H-2B worker is a national of one of the 
Northern Triangle countries or Haiti counted towards the 6,500 cap. If 
DHS subsequently finds that the evidence does not support the 
employer's attestations, DHS may deny or, if the petition has already 
been approved, revoke the petition at any time consistent with existing 
regulatory authorities. DHS may also, or alternatively, notify DOL. In 
addition, DOL may independently take enforcement action, including by, 
among other things, debarring the petitioner from the H-2B program for 
not less than 1 year or more than 5 years from the date of the final 
agency decision, which also disqualifies the debarred party from filing 
any labor certification applications or labor condition applications 
with DOL for the same period set forth in the final debarment decision. 
See, e.g., 20 CFR 655.73; 29 CFR 503.20, 503.24.\78\
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    \78\ Pursuant to the statutory provisions governing enforcement 
of the H-2B program, INA section 214(c)(14), 8 U.S.C. 1184(c)(14), a 
violation exists under the H-2B program where there has been a 
willful misrepresentation of a material fact in the petition or a 
substantial failure to meet any of the terms and conditions of the 
petition. A substantial failure is a willful failure to comply that 
constitutes a significant deviation from the terms and conditions. 
See, e.g., 29 CFR 503.19.
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    To the extent that evidence reflects a preference for hiring H-2B 
workers over U.S. workers, an investigation by additional agencies 
enforcing employment and labor laws, such as the Immigrant and Employee 
Rights Section (IER) of the Department of Justice's Civil Rights 
Division, may also be warranted. See INA section 274B, 8 U.S.C. 1324b 
(prohibiting certain types of employment discrimination based on 
citizenship status or national origin). Moreover, DHS and DOL may refer 
potential discrimination to IER pursuant to applicable interagency 
agreements. See IER, Partnerships, https://www.justice.gov/crt/partnerships (last visited Nov. 30, 2021). In addition, if members of 
the public have information that a participating employer may be 
abusing this program, DHS invites them to notify USCIS by completing 
the online fraud tip form, https://www.uscis.gov/report-fraud/uscis-tip-form (last visited Nov. 30, 2021).\79\
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    \79\ DHS may publicly disclose information regarding the H-2B 
program consistent with applicable law and regulations. For 
information about DHS disclosure of information contained in a 
system of records, see https://www.dhs.gov/system-records-notices-sorns. Additional general information about DHS privacy policy 
generally can be accessed at https://www.dhs.gov/policy.
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    DHS, in exercising its statutory authority under INA section 
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and section 105 
of the FY 2021 Omnibus as extended by Public Law 117-70, is responsible 
for adjudicating eligibility for H-2B classification. As in all cases, 
the burden rests with the petitioner to establish eligibility by a 
preponderance of the evidence. INA section 291, 8 U.S.C. 1361. Matter 
of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Accordingly, as noted 
above, where the petition lacks initial evidence, such as a properly 
completed attestation, DHS may, as applicable, reject the petition in 
accordance with 8 CFR 103.2(a)(7)(ii) or deny the petition in 
accordance with 8 CFR 103.2(b)(8)(ii). Further, where the initial 
evidence submitted with the petition contains inconsistencies or is 
inconsistent with other evidence in the petition and the underlying 
TLC, DHS may issue a Request for Evidence, Notice of Intent to Deny, or 
Denial in accordance with 8 CFR 103.2(b)(8). In addition, where it is 
determined that an H-2B petition filed pursuant to the FY 2021 Omnibus 
as extended by Public Law 117-70 was granted erroneously, the H-2B 
petition approval may be revoked. See 8 CFR 214.2(h)(11).
    Because of the particular circumstances of this regulation, and 
because the attestation and other requirements of this rule play a 
vital role in achieving the purposes of this rule, DHS and DOL intend 
that the attestation requirement, DOL procedures, and other aspects of 
this rule be non-severable from the remainder of the rule, including 
the increase in the numerical allocations.\80\ Thus, in the event the 
attestation requirement or any other part of this rule is enjoined or 
held invalid, the remainder of the rule, with the exception of the 
retention requirements being codified in 20 CFR 655.69, is also 
intended to cease operation in the relevant jurisdiction, without 
prejudice to workers already present in the United States under this 
regulation, as consistent with law.
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    \80\ The Departments' intentions with respect to non-
severability extend to all features of this rule other than the 
portability provision, which is described in the section below.
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F. Portability

    As an additional option for employers that cannot find U.S. 
workers, this rule allows petitioners to immediately employ certain H-
2B workers who are present in the United States in H-2B status without 
waiting for approval of the H-2B petition. Such workers must be 
beneficiaries of a non-frivolous H-2B petition requesting an extension 
of stay received on or after the effective date of this temporary final 
rule but no later than 180 days after that date.\81\ Additionally, 
petitioners may immediately employ individuals who are beneficiaries of 
a non-frivolous H-2B petition requesting an extension of the worker's 
stay that is pending as of the effective date of this temporary final 
rule without waiting for approval of the H-2B petition. Specifically, 
the rule allows H-2B nonimmigrant workers to begin employment with a 
new H-2B employer or agent upon USCIS's receipt of a timely filed, non-
frivolous H-2B petition, provided the worker was lawfully admitted to 
the United States and has not worked without authorization subsequent 
to such lawful admission. Since every H-2B petition must be accompanied 
by an approved TLC, all H-2B petitioners must have completed a test of 
the U.S. labor market, as a result of which DOL determined that there 
were no qualified U.S. workers available to fill these temporary 
positions.
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    \81\ Aliens who are the beneficiaries of petitions filed on the 
basis of 8 CFR 214.1(c)(4) are not eligible to port to a new 
employer under 8 CFR 214.2(h)(27).
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    This provision is similar to the portability provision in the FY 
2021 H-2B supplemental visa temporary final rule. In addition, the 
provision is similar to temporary flexibilities that DHS has used 
previously to improve employer access to noncitizen workers during the 
COVID-19 pandemic.\82\ DHS

[[Page 4737]]

recognizes the possibility that some beneficiaries were lawfully 
admitted and were in valid H-2B status at the time of the petition 
submission but such status may have lapsed during the pendency of the 
petition. Accordingly, DHS added the provision extending portability 
flexibility to petitioners to immediately employ beneficiaries of 
pending non-frivolous H-2B extension of stay petitions as of the 
effective date of this temporary final rule. See new 8 CFR 
214.2(h)(27)(iii)(B). This provision is intended to mitigate the harm 
that petitioners may experience resulting from the COVID-19 pandemic by 
allowing petitioners to employ such H-2B workers so long as they were 
lawfully admitted to the United States and if they have not worked 
unlawfully after their admission. In the context of this rule, DHS 
believes this flexibility will help some U.S. employers address the 
challenges related to the limitations imposed by the cap, as well as 
due to the ongoing disruptions caused by the COVID-19 pandemic. The 
pandemic has resulted in a variety of travel restrictions and visa 
processing limitations to mitigate the spread of COVID-19.
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    \82\ 86 FR 28198 (May 25, 2021). On May 14, 2020, DHS published 
a temporary final rule in the Federal Register to amend certain H-2B 
requirements to help H-2B petitioners seeking workers to perform 
temporary nonagricultural services or labor essential to the U.S. 
food supply chain. 85 FR 28843 (May 14, 2020). In addition, on April 
20, 2020, DHS issued a temporary final rule which, among other 
flexibilities, allowed H-2A workers to change employers and begin 
work before USCIS approved the new H-2A petition for the new 
employer. 85 FR 21739. DHS has subsequently extended that 
portability provision for H-2A workers through two additional 
temporary final rules, on August 20, 2020, and December 18, 2020, 
which have been effective for H-2A petitions that were received on 
or after August 19, 2020 through December 17, 2020, and on or after 
December 18, 2020 through June 16, 2021, respectively. 85 FR 51304 
and 85 FR 82291.
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    In addition to resulting in a devastating loss of life, the 
worldwide pandemic of COVID-19 has impacted the United States in myriad 
ways, disrupting daily life, travel, and the operation of individual 
businesses and the economy at large. On January 31, 2020, the Secretary 
of the U.S. Department of Health and Human Services (HHS) declared a 
public health emergency dating back to January 27, 2020, under section 
319 of the Public Health Service Act (42 U.S.C. 247d).\83\ This 
determination that a public health emergency exists due to COVID-19 has 
subsequently been renewed seven times: On April 21, 2020, on July 23, 
2020, on October 2, 2020, on January 7, 2021, on April 15, 2021, on 
July 19, 2021 and most recently on October 15, 2021, effective October 
18, 2021.\84\ On March 13, 2020, then-President Trump declared a 
National Emergency concerning the COVID-19 outbreak to control the 
spread of the virus in the United States.\85\ The proclamation declared 
that the emergency began on March 1, 2020. DOS temporarily suspended 
routine immigrant and nonimmigrant visa services at all U.S. Embassies 
and Consulates on March 20, 2020, and subsequently announced a phased 
resumption of visa services in which it would continue to provide 
emergency and mission critical visa services and resume routine visa 
services as local conditions and resources allowed.\86\ Based on the 
importance of the H-2A temporary agricultural worker and H-2B temporary 
nonagricultural worker programs, DOS indicated it would continue 
processing H-2A and H-2B cases to the extent possible, as permitted by 
post resources and local government restrictions, and expanded the 
categories of H-2 visa applicants whose applications can be adjudicated 
without an in-person interview.\87\ Although routine visa services have 
resumed \88\ subject to local conditions and restrictions, and DOS has 
expanded visa interview waiver eligibility,\89\ the COVID-19 pandemic 
continues to have a significant impact on visa processing at embassies 
and consulates around the world.\90\ And as noted above, growing 
concern about the COVID Omicron variant recently prompted tightened 
testing requirements for international air travel to the United States, 
which may have an impact on such travel.
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    \83\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020).
    \84\ See HHS Renewal of Determination That A Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
    \85\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
    \86\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated July 22, 2020).
    \87\ DOS, Important Announcement on Waivers of the Interview 
Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
    \88\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last updated Nov. 19, 2021).
    \89\ DOS, Expansion of Interview Waiver Eligibility, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html (last updated Mar. 11, 2021).
    \90\ Celia Belin, Travel is resuming, but not for everyone, 
Brookings, https://www.brookings.edu/blog/order-from-chaos/2021/11/08/travel-is-resuming-but-not-for-everyone/ (Nov. 8, 2021).
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    Further, due to the possibility that some H-2B workers may be 
unavailable due to travel restrictions, to include those intended to 
limit the spread of COVID-19, or visa processing delays or may become 
unavailable due to COVID-19 related illness, U.S. employers that have 
approved H-2B petitions or who will be filing H-2B petitions in 
accordance with this rule might not receive all of the workers 
requested to fill the temporary positions.
    DHS is strongly committed not only to protecting U.S. workers and 
helping U.S. businesses receive the documented workers authorized to 
perform temporary nonagricultural services or labor that they need, but 
also to protecting the rights and interests of H-2B workers (consistent 
with Executive Order 13563 and in particular its reference to 
``equity,'' ``fairness,'' and ``human dignity''). In the FY 2020 DHS 
Further Consolidated Appropriations Act (Pub. L. 116-94), Congress 
directed DHS to provide options to improve the H-2A and H-2B visa 
programs, to include options that would protect worker rights.\91\ DHS 
has determined that providing H-2B nonimmigrant workers with the 
flexibility of being able to begin work with a new H-2B petitioner 
immediately and avoid a potential job loss or loss of income while the 
new H-2B petition is pending, provides some certainty to H-2B workers 
who may have found themselves in situations that warrant a change in 
employers.\92\ Providing that flexibility is also equitable and fair.
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    \91\ The Joint Explanatory Statement accompanying the Fiscal 
Year (FY) 2020 Department of Homeland Security (DHS) Further 
Consolidated Appropriations Act (Pub. L. 116-94) states, ``Not later 
than 120 days after the date of enactment of this Act, DHS, the 
Department of Labor, the Department of State, and the United States 
Digital Service are directed to report on options to improve the 
execution of the H-2A and H-2B visa programs, including: Processing 
efficiencies; combatting human trafficking; protecting worker 
rights; and reducing employer burden, to include the disadvantages 
imposed on such employers due to the current semiannual distribution 
of H-2B visas on October 1 and April 1 of each fiscal year. USCIS is 
encouraged to leverage prior year materials relating to the issuance 
of additional H-2B visas, to include previous temporary final rules, 
to improve processing efficiencies.''
    \92\ The White House, The National Action Plan to Combat Human 
Trafficking, Priority Action 1.5.3, at p. 25 (Dec. 2021); The White 
House, The National Action Plan to Combat Human Trafficking, 
Priority Action 1.6.3, at p. 20-21 (2020) (Stating that ``[w]orkers 
sometimes find themselves in abusive work situations, but because 
their immigration status is dependent on continued employment with 
the employer in whose name the visa has been issued, workers may be 
left with few options to leave that situation.'') By providing the 
option of changing employers without risking job loss or a loss of 
income through the publication of this rule, DHS believes that H-2B 
workers may be more likely to leave abusive work situations, and 
thereby are afforded greater worker protections.
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    Portability for H-2B workers provides these noncitizens with the 
option of not having to worry about job loss or loss of income between 
the time they leave a current employer and while they await approved 
employment with a new U.S. employer or agent. DHS believes this 
flexibility (job portability) not only protects H-2B workers but also 
provides an alternative to H-2B petitioners who have not been able to 
find U.S. workers and who have not been able to obtain H-2B workers 
subject to the statutory or

[[Page 4738]]

supplemental caps who have the skills to perform the job duties. In 
that sense as well, it is equitable and fair.
    DHS is making this flexibility available for a 180-day period in 
order to provide stability for H-2B employers amidst continuing 
uncertainties surrounding the COVID-19 pandemic. This period is 
justified especially given the possible future impacts of COVID-19 
variants and uncertainty regarding the duration of vaccine-gained 
immunity and how effective currently approved vaccines will be in 
responding to future COVID-19 variants.\93\ DHS will continue to 
monitor the evolving health crisis caused by COVID-19 and may address 
it in future rules.
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    \93\ See CDC, What You Need to Know about Variants, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last 
updated Dec. 13, 2021); CDC, Key Things to Know About COVID-19 
Vaccines, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Jan. 12, 2022).
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G. COVID-19 Worker Protections

    It is the policy of DHS and its Federal partners to support equal 
access to the COVID-19 vaccines and vaccine distribution sites, 
irrespective of an individuals' immigration status.\94\ This policy 
promotes fairness and equity (see Executive Order 13563). Accordingly, 
DHS and DOL encourage all individuals, regardless of their immigration 
status, to receive the COVID-19 vaccine. U.S. Immigration and Customs 
Enforcement (ICE) and U.S. Customs and Border Protection do not conduct 
enforcement operations at or near vaccine distribution sites or 
clinics. Consistent with ICE's protected areas policy, ICE does not and 
will not carry out enforcement operations in or near a medical or 
mental healthcare facility, such as a hospital, doctor's office, health 
clinic, vaccination or testing site, urgent care center, site that 
serves pregnant individuals, or community health center.\95\
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    \94\ See DHS, Statement on Equal Access to COVID-19 Vaccines and 
Vaccine Distribution Sites, https://www.dhs.gov/news/2021/02/01/dhs-statement-equal-access-covid-19-vaccines-and-vaccine-distribution-sites (Feb. 1, 2021) (last accessed Nov. 30, 2021).
    \95\ See ICE, FAQs: Protected Areas and Courthouse Arrests, 
https://www.ice.gov/about-ice/ero/protected-areas (last visited Jan. 
11, 2022).
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    This TFR reflects that policy by providing as follows:
    Supplemental H-2B Visas: With respect to petitioners who wish to 
qualify to receive supplemental H-2B visas pursuant to the FY 2021 
Omnibus as extended by Public Law 117-70, the Departments are using the 
DOL Form ETA-9142-B-CAA-5 to support equal access to vaccines in two 
ways. First, the Departments are requiring such petitioners to attest 
on the DOL Form ETA-9142-B-CAA-5 that, consistent with such 
petitioners' obligations under generally applicable H-2B regulations, 
they will comply with all Federal, State, and local employment-related 
laws and regulations, including, where applicable, health and safety 
laws and laws related to COVID-19 worker protections; any right to time 
off or paid time off for COVID-19 vaccination, or to reimbursement for 
travel to and from the nearest available vaccination site See new 8 CFR 
214.2(h)(6)(xi)(B)(2)(iv) and 20 CFR 655.64(a)(4). Second, the 
Departments are requiring such petitioners to also attest that they 
will notify any H-2B workers approved under the supplemental cap, in a 
language understood by the worker as necessary or reasonable, that all 
persons in the United States, including nonimmigrants, have equal 
access to COVID-19 vaccines and vaccine distribution sites. WHD has 
published a poster for employers' optional use for this 
notification.\96\ Because the attestation will be submitted to USCIS as 
initial evidence with Form I-129, DHS considers the attestation to be 
evidence that is incorporated into and a part of the petition 
consistent with 8 CFR 103.2(b)(1). Accordingly, a petition may be 
denied or revoked, as applicable, based on or related to statements 
made in the attestation, including, but not limited to, because the 
employer violated an applicable employment-related law or regulation, 
or failed to notify workers regarding equal access to COVID-19 vaccines 
and vaccine distribution sites.
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    \96\ See, Employee Rights--H-2B Workers and COVID-19 https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf (English); 
https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf 
(Spanish) (Last visited Dec. 22, 2021).
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    Other H-2B Employers: While there is no additional attestation with 
respect to H-2B petitioners that do not avail themselves of the 
supplemental H-2B visas made available under this rule, the Departments 
remind all H-2B employers that they must comply with all Federal, 
State, and local employment-related laws and regulations, including, 
where applicable, health and safety laws and laws related to COVID-19 
worker protections; any right to time off or paid time off for COVID-19 
vaccination, or to reimbursement for travel to and from the nearest 
available vaccination site. Failure to comply with such laws and 
regulations would be contrary to the attestation 7 on ETA 9142B--
Appendix B, and therefore may be a basis for DHS to revoke the petition 
under 8 CFR 214.2(h)(11)(iii)(A)(3) for violating terms and conditions 
of the approved petition.\97\ This obligation is also reflected as a 
condition of H-2B portability under this rule. See new 8 CFR 
214.2(h)(27)(iii)(C).
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    \97\ During the period of employment specified on the Temporary 
Labor Certification, the employer must comply with all applicable 
Federal, State and local employment-related laws and regulations, 
including health and safety laws. 20 CFR 655.20(z). By submitting 
the Temporary Labor Certification as evidence supporting the 
petition, it is incorporated into and considered part of the benefit 
request under 8 CFR 103.2(b)(1).
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    President Biden, in his speech to Joint Session of Congress on 
April 21, 2021, made the following statement: ``[T]oday, I'm announcing 
a program to address [the issue of COVID vaccinations] . . . 
nationwide. I'm calling on every employer, large and small, in every 
state, to give employees the time off they need, with pay, to get 
vaccinated and any time they need, with pay, to recover if they are 
feeling under the weather after the shot.'' \98\ More recently, 
President Biden reiterated his call on employers to provide paid time 
off to their employees to get booster shots.\99\ Consistent with the 
President's statements, the Departments strongly urge, but do not 
require, that all employers seeking H-2B workers under either the 
Supplemental Cap or portability sections of the TFR, make every effort 
to ensure that all their workers, including nonimmigrant workers, be 
afforded an opportunity to take the time off needed to receive their 
COVID-19 vaccinations, as well as time off, with pay, to recover from 
any temporary side effect. In Proclamation 10294 of October 25, 2021, 
the President barred the entry of nonimmigrants into the United States 
via air transportation unless they are fully vaccinated against COVID-
19, with certain exceptions.\100\ On January 22, 2022, similar 
requirements entered into force at land ports of entry and ferry 
terminals.\101\ The Departments therefore expect that H-2B 
nonimmigrants who enter the United States via air transportation under 
this rule will generally be fully vaccinated against COVID-19. The

[[Page 4739]]

Departments note, however, that some H-2B nonimmigrants (such as 
nonimmigrants who are already in the United States) may not yet be 
vaccinated or may nonetheless be eligible for booster shots.
---------------------------------------------------------------------------

    \98\ See https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/21/remarks-by-president-biden-on-the-covid-19-response-and-the-state-of-vaccinations-2/ (April 21, 2021).
    \99\ See https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-winter/ (December 2, 2021).
    \100\ See 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC 
Order).
    \101\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United 
States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at 
United States-Canada border).
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    As noted, Executive Order 13563 refers to fairness, equity, and 
human dignity, and such efforts, on the part of employers, would be 
consistent with those commitments.
    Petitioners otherwise are strongly encouraged to facilitate and 
provide flexibilities, to the greatest extent possible, to all workers 
who wish to receive COVID-19 vaccinations.

H. DHS Petition Procedures

    To petition for H-2B workers under this rule, the petitioner must 
file a Form I-129 in accordance with applicable regulations and form 
instructions, an unexpired TLC, and the attestation form described 
above. All H-2B petitions must state the nationality of all the 
requested H-2B workers, whether named or unnamed, even if there are 
beneficiaries from more than one country. See 8 CFR 214.2(h)(2)(iii). 
If filing multiple Forms I-129 based on the same TLC (for instance, one 
requesting returning workers and another requesting workers who are 
nationals of one of the Northern Triangle countries or Haiti), each H-
2B petition must include a copy of the TLC and reference all 
previously-filed or concurrently filed petitions associated with the 
same TLC. The total number of requested workers may not exceed the 
total number of workers indicated on the approved TLC. Petitioners 
seeking H-2B classification for nationals of the Northern Triangle 
countries or Haiti under the 6,500 visa allocation that are exempt from 
the returning worker provision must file a separate Form I-129 for 
those nationals of the Northern Triangle countries and Haiti only. See 
new 8 CFR 214.2(h)(6)(xi). In this regard, a petition must be filed 
with a single Form ETA-9142-B-CAA-5 that clearly indicates that the 
petitioner is only requesting nationals from a Northern Triangle 
country or Haiti who are exempt from the returning worker requirement. 
Specifically, if the petitioner checks Box #5 of Form ETA-9142-B-CAA-5, 
then the petition accompanying that form must be filed only on behalf 
of nationals of one or more of the Northern Triangle countries or 
Haiti, and not other countries. In such a case if the Form I-129 
petition is requesting beneficiaries from countries other than Northern 
Triangle countries or Haiti, then USCIS may reject, issue a request for 
evidence, notice of intent to deny, or denial, or, in the case of a 
non-frivolous petition, a partial approval limiting the petition to the 
number of beneficiaries who are from one of the Northern Triangle 
countries or Haiti. Requiring the filing of separate petitions to 
request returning workers and to request workers who are nationals of 
the Northern Triangle countries or Haiti is necessary to ensure the 
operational capability to properly calculate and manage the respective 
additional cap allocations and to ensure that all corresponding visa 
issuances are limited to qualifying applicants, particularly when such 
petitions request unnamed beneficiaries or are relied upon for 
subsequent requests to substitute beneficiaries in accordance with 8 
CFR 214.2(h)(6)(viii). The attestations must be filed on Form ETA-9142-
B-CAA-5, Attestation for Employers Seeking to Employ H-2B Nonimmigrant 
Workers Under Section 105 of Division O of the Further Consolidated 
Appropriations Act, 2021 Public Law 116-260, and Public Laws 117-43 and 
117-70. See 20 CFR 655.64. Petitioners are required to retain a copy of 
such attestations and all supporting evidence for 3 years from the date 
the associated TLC was approved, consistent with 20 CFR 655.56 and 29 
CFR 503.17. See new 20 CFR 655.69. Petitions submitted to DHS pursuant 
to the FY 2021 Omnibus, as extended by Public Law 117-43 and Public Law 
117-70, will be processed in the order in which they were received, and 
pursuant to processes in place for when numerical limitations are 
reached under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C. 
1184(g)(1)(B) or (g)(10).
    Consistent with the intent of this rule to address urgent demand 
from employers for H-2B workers with start dates in the first half of 
the fiscal year, USCIS will not accept petitions received after March 
31, 2022. See new 8 CFR 214.2(h)(6)(xi)(C). Such petitions will be 
rejected and the filing fees will be returned. DHS believes it is 
appropriate to set a final filing date that aligns with the final 
employment start date allowed under this rule, as petitioners under the 
supplemental allocation will attest to a need for H-2B workers to start 
on or before March 31, 2022, without whom they are suffering 
irreparable harm or will suffer impending irreparable harm.\102\
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    \102\ Conversely, DHS believes that allowing petitioners to file 
these petitions during the second half of the fiscal year would be 
inconsistent with the intent to address the already-exceeded first 
half demand for H-2B workers without whom employers would be 
suffering irreparable harm. Allowing petitioners to file so far 
after their start date of need could call into question the 
petitioner's period of temporary need for the services or labor to 
be performed, as well as petitioners' attestations regarding the 
irreparable harm they are suffering or the impending irreparable 
harm they stand to suffer without the ability to employ all of the 
requested workers for that period of need.
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    Based on the time-limited authority granted to DHS by Public Law 
117-43 and Public Law 117-70, on the same terms as section 105 of the 
under the FY 2021 Omnibus, DHS is notifying the public that petitions 
seeking a visa under this rule filed on or before March 31, 2022, may 
not be approved by USCIS on or after October 1, 2022. See new 8 CFR 
214.2(h)(6)(xi). Petitions pending with USCIS that are not approved 
before October 1, 2022 will be denied and any fees will not be 
refunded. See new 8 CFR 214.2(h)(6)(xi).
    Petitioners may choose to request premium processing of their 
petitions under 8 CFR 103.7(e), which allows for expedited processing 
for an additional fee.

I. DOL Procedures

    As noted above, all employers are required to have an approved and 
valid TLC from DOL in order to file a Form I-129 petition with DHS. See 
8 CFR 214.2(h)(6)(iv)(A) and (D). The standards and procedures 
governing the submission and processing of Applications for Temporary 
Employment Certification for employers seeking to hire H-2B workers are 
set forth in 20 CFR part 655, subpart A. An employer that seeks to hire 
H-2B workers must request a TLC in compliance with the application 
filing requirements set forth in 20 CFR 655.15 and meet all the 
requirements of 20 CFR part 655, subpart A, to obtain a valid TLC, 
including the criteria for certification set forth in 20 CFR 655.51. 
See 20 CFR 655.64(a) and 655.50(b). Employers with an approved TLC have 
conducted recruitment, as set forth in 20 CFR 655.40 through 655.48, to 
determine whether U.S. workers are qualified and available to perform 
the work for which H-2B workers are sought.
    The H-2B regulations require that, among other things, an employer 
seeking to hire H-2B workers in a non-emergency situation must file a 
completed Application for Temporary Employment Certification with the 
National Processing Center (NPC) designated by the OFLC Administrator 
no more than 90 calendar days and no fewer than 75 calendar days before 
the employer's date of need (i.e., start date for the work). See 20 CFR 
655.15.
    Under 20 CFR 655.17, an employer may request a waiver of the time 
period(s) for filing an Application for

[[Page 4740]]

Temporary Employment Certification based on ``good and substantial'' 
cause, provided that the employer has sufficient time to thoroughly 
test the domestic labor market on an expedited basis and the OFLC 
certifying officer (CO) has sufficient time to make a final 
determination as required by the regulation. To rely on this provision, 
as the Departments explained in the 2015 H-2B Interim Final Rule,\103\ 
the employer must provide the OFLC CO with detailed information 
describing the ``good and substantial cause'' necessitating the waiver. 
Such cause may include the substantial loss of U.S. workers due to Acts 
of God, or a similar unforeseeable human-made catastrophic event that 
is wholly outside the employer's control, unforeseeable changes in 
market conditions, or pandemic health issues. Thus, to ensure an 
adequate test of the domestic labor market and to protect the integrity 
of the H-2B program, the Departments clearly intended that use of 
emergency procedures must be narrowly construed and permitted in 
extraordinary and unforeseeable catastrophic circumstances that have a 
direct impact on the employer's need for the specific services or labor 
to be performed. Even under the existing H-2B statutory visa cap 
structure, DOL considers USCIS' announcement(s) that the statutory 
cap(s) on H-2B visas has been reached, which may occur with regularity 
every six months depending on H-2B visa need, as foreseeable, and 
therefore not within the meaning of ``good and substantial cause'' that 
would justify a request for emergency procedures.\104\ Accordingly, 
employers cannot rely solely on the supplemental H-2B visas made 
available through this rule as good and substantial cause to use 
emergency procedures under 20 CFR 655.17.
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    \103\ Interim Final Rule, Temporary Non-Agricultural Employment 
of H-2B Aliens in the United States, 80 FR 24041 (Apr. 29, 2015) 
(2015 H-2B Interim Final Rule).
    \104\ See U.S. Department of Labor, Employment and Training 
Administration, Office of Foreign Labor Certification, 2015 H-2B 
Interim Final Rule FAQs, Round 12: Job Order and Application Filing 
and Processing, Emergency Procedures and Post-Certification 
Amendments. Retrieved December 18, 2021, from https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_2015_IFR_FAQs_Round12.pdf.
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    In addition to the recruitment already conducted in connection with 
a valid TLC, in order to ensure the recruitment has not become stale, 
employers that wish to obtain visas for their workers under 8 CFR 
214.2(h)(6)(xi), and who file an I-129 petition 45 or more days after 
the certified start date of work on the TLC must conduct additional 
recruitment for U.S. workers. This is particularly important as U.S. 
workers continue to reenter the workforce as they become vaccinated. As 
noted in the 2015 H-2B Interim Final Rule, U.S. workers seeking 
employment in temporary or seasonal nonagricultural jobs typically do 
not search for work months in advance, and cannot make commitments 
about their availability for employment far in advance of the work 
start date. See 80 FR 24041, 24061, 24071. Given that the temporary 
labor certification process generally begins 75 to 90 days in advance 
of the employer's start date of work, employer recruitment efforts 
typically occur between 40 and 60 days before that date with an 
obligation to provide employment to any qualified U.S. worker who 
applies until 21 days before the date of need. Therefore, employers 
with TLCs containing a start date of work on October 1, 2021, likely 
conducted their positive recruitment beginning around late-July and 
ending around mid-August 2021, and continued to consider U.S. worker 
applicants and referrals only until September 10, 2021.
    In order to provide U.S. workers a realistic opportunity to pursue 
jobs for which employers will be seeking foreign workers under this 
rule, the Departments have determined that if employers file an I-129 
petition 45 or more days after their dates of need, they have not 
conducted recruitment recently enough for the DOL to reasonably 
conclude that there are currently an insufficient number of U.S. 
workers who are qualified, willing, and available to perform the work 
absent taking additional, positive recruitment steps. The 45-day 
threshold for additional recruitment identified in this rule reflects a 
timeframe between the end of the employer's recruitment and filing of 
the petition similar to that provided under the FY 2018, FY 2019, and 
FY 2021 H-2B supplemental cap rules.
    An employer that files an I-129 petition under 8 CFR 
214.2(h)(6)(xi) fewer than 45 days after the certified start date of 
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
5, but is not required to conduct recruitment for U.S. workers beyond 
the recruitment already conducted as a condition of certification. Only 
those employers with still-valid TLCs with a start date of work that is 
45 or more days before the date they file a petition will be required 
to conduct recruitment in addition to that conducted prior to being 
granted labor certification and attest that the recruitment will be 
conducted, as follows.
    Employers that are required to engage in new recruitment must place 
a new job order for the job opportunity with the State Workforce Agency 
(SWA) serving the area of intended employment no later than the next 
business day after submitting an I-129 petition for H-2B workers to 
USCIS, and inform the SWA that the job order is being placed in 
connection with a previously submitted and certified Application for 
Temporary Employment Certification for H-2B workers by providing the 
SWA with the unique OFLC TLC case number.
    The job order must contain the job assurances and contents set 
forth in 20 CFR 655.18 for recruitment of U.S. workers at the place of 
employment, and remain posted for at least 15 calendar days. The 
employer must also follow all applicable SWA instructions for posting 
job orders and receive applications in all forms allowed by the SWA, 
including online applications. The Departments have concluded that 
keeping the job order posted for a period of 15 calendar days, during 
the period the employer is conducting the additional recruitment steps 
explained below, will effectively ensure U.S. workers are apprised of 
the job opportunity and are referred for employment, if they are 
willing, qualified, and available to perform the work. The 15 calendar 
day period also is consistent with the employer-conducted recruitment 
activity period applicable under 20 CFR 655.40(b).
    Once the SWA places the new job order on its public labor exchange 
system, the SWA will perform its normal employment service activities 
by circulating the job order for intrastate clearance, and in 
interstate clearance by providing a copy of the job order to other SWAs 
with jurisdiction over listed worksites as well as those States the 
OFLC CO designated in the original Notice of Acceptance issued under 20 
CFR 655.33. Where the occupation or industry is traditionally or 
customarily unionized, the SWA will also circulate a copy of the new 
job order to the central office of the State Federation of Labor in the 
State(s) in which work will be performed, and the office(s) of local 
union(s) representing workers in the same or substantially equivalent 
job classification in the area(s) in which work will be performed, 
consistent with its current obligation under 20 CFR 655.33(b)(5). 
Common H-2B occupations or industries that are traditionally or 
customarily unionized include, but are not limited to, those covering 
construction and extraction, manufacturing, food and hospitality, 
transportation and distribution, and other production related services. 
To facilitate an effective dissemination of

[[Page 4741]]

these job opportunities, DOL encourages union(s) or hiring halls 
representing workers in occupations typically used in the H-2B program 
to proactively contact and establish partnerships with SWAs in order to 
obtain timely information on available temporary job opportunities. 
This will aid the SWAs' prompt and effective outreach under the rule. 
DOL's OFLC maintains a comprehensive directory of contact information 
for each SWA at https://www.dol.gov/agencies/eta/foreign-labor/contact.
    The employer also must conduct additional recruitment steps during 
the period of time the SWA is actively circulating the job order for 
intrastate clearance. First, the employer must contact, by email or 
other electronic means, the nearest American Job Center(s) (AJC) 
serving the area of intended employment where work will commence to 
request staff assistance to advertise and recruit U.S. workers for the 
job opportunity. AJCs bring together a variety of programs providing a 
wide range of employment and training services for U.S. workers, 
including job search services and assistance for prospective workers 
and recruitment services for employers through the Wagner-Peyser 
Program. Therefore, AJCs can offer assistance to employers with 
recruitment of U.S. workers, and contact with local AJCs will 
facilitate contemporaneous and effective recruitment activities that 
can broaden dissemination of the employer's job opportunity through 
connections with other partner programs within the One-Stop System to 
locate qualified U.S. workers to fill the employer's labor need. For 
example, the local AJC, working in concert with the SWA, can coordinate 
efforts to contact community-based organizations in the geographic area 
that serve potentially qualified workers or, when a job opportunity is 
in an occupation or industry that is traditionally or customarily 
unionized, the local AJC may be better positioned to identify and 
circulate the job order to appropriate local union(s) or hiring 
hall(s), consistent with 20 CFR 655.33(b)(5). In addition, as a partner 
program in the One-Stop System, AJCs are connected with the State's 
unemployment insurance program, thus an employer's connection with the 
AJC will help facilitate knowledge of the job opportunity to U.S. 
workers actively seeking employment. When contacting the AJC(s), the 
employer must provide staff with the job order number or, if the job 
order number is unavailable, a copy of the job order.
    To increase navigability and to make the process as convenient as 
possible, DOL offers an online service for employers to locate the 
nearest local AJC at https://www.careeronestop.org/ and by selecting 
the ``Find Local Help'' feature on the main homepage. This feature will 
navigate the employer to a search function called ``Find an American 
Job Center'' where the city, state or zip code covering the geographic 
area where work will commence can be entered. Once entered and the 
search function is executed, the online service will return a listing 
of the name(s) of the AJC(s) serving that geographic area as well as a 
contact option(s) and an indication as to whether the AJC is a 
``comprehensive'' or ``affiliate'' center. Employers must contact the 
nearest ``comprehensive'' AJC serving the area of intended employment 
where work will commence or, where a ``comprehensive'' AJC is not 
available, the nearest ``affiliate'' AJC. A ``comprehensive'' AJC tends 
to be a large office that offers the full range of employment and 
business services, and an ``affiliate'' AJC typically is a smaller 
office that offers a self-service career center, conducts hiring 
events, and provides workshops or other select employment services for 
workers. Because a ``comprehensive'' AJC may not be available in many 
geographic areas, particularly among rural communities, this rule 
permits employers to contact the nearest ``affiliate'' AJC serving the 
area of intended employment where a ``comprehensive'' AJC is not 
available. As explained on the locator website, some AJCs may continue 
to offer virtual or remote services due to the pandemic with physical 
office locations temporarily closed for in-person and mail processing 
services. Therefore, this rule requires that employers utilize 
available electronic methods for the nearest AJC to meet the contact 
and disclosure requirements in this rule.
    Second, during the period of time the SWA is actively circulating 
the job order described in paragraph (a)(5)(i) for intrastate 
clearance, the employer must make reasonable efforts to contact (by 
mail or other effective means) its former U.S. workers that it employed 
in the occupation at the place of employment (except those who were 
dismissed for cause or who abandoned the worksite) during the period 
beginning January 1, 2020, until the date the I-129 petition required 
under 8 CFR 214.2(h)(6)(xi) is submitted. Among the employees the 
employer must contact are those who have been furloughed or laid off 
during this period. The employer must disclose to its former employees 
the terms of the job order, and solicit their return to the job. The 
contact and disclosures required by this paragraph must be provided in 
a language understood by the worker, as necessary or reasonable.
    Furloughed employees are employees the employer laid off (as the 
term is defined in 20 CFR 655.5 and 29 CFR 503.4), but the layoff is 
intended to last for a temporary period of time. This recruitment step 
will help ensure notice of the job opportunity is disseminated broadly 
to U.S. workers who were laid off or furloughed during the COVID-19 
outbreak and who may be seeking employment as the economy continues to 
recover and as more people are vaccinated. While this requirement goes 
beyond the requirement at 20 CFR 655.43, the Departments believe it is 
appropriate given the evolving conditions of the U.S. labor market, as 
described above, and the increased likelihood that qualified U.S. 
workers will make themselves available for these job opportunities.
    Third, as the employer was required to do when initially applying 
for its labor certification, the employer must provide a copy of the 
job order to the bargaining representative for its employees in the 
occupation and area of intended employment, consistent with 20 CFR 
655.45(a), or if there is no bargaining representative, post the job 
order in the places and manner described in 20 CFR 655.45(b).
    The requirements to contact former U.S. workers and provide notice 
to the bargaining representative or post the job order must be 
conducted in a language understood by the workers, as necessary or 
reasonable. This requirement would apply, for example, in situations 
where an employer has one or more employees who do not speak English as 
their primary language and who have a limited ability to read, write, 
speak, or understand English. This requirement would allow those 
workers to make informed decisions regarding the job opportunity, and 
is a reasonable interpretation of the recruitment requirements in 20 
CFR part 655, subpart A, in light of the need to ensure that the test 
of the U.S. labor market is as comprehensive as possible. Consistent 
with existing language requirements in the H-2B program under 20 CFR 
655.20(l), DOL intends to broadly interpret the necessary or reasonable 
qualification, and apply an exemption only in those situations where 
having the job order translated into a particular language would both 
place an undue burden on an employer

[[Page 4742]]

and not significantly disadvantage the employee.
    The employer must hire any qualified U.S. worker who applies or is 
referred for the job opportunity until 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 on which the SWA job order is posted, whichever is 
later. Additionally, consistent with 20 CFR 655.40(a), applicants may 
be rejected only for lawful job-related reasons. Given that the 
employer, SWA, and AJC(s) will be actively engaged in conducting 
recruitment and broader dissemination of the job opportunity during the 
period of time the job order is active, this requirement provides an 
adequate period of time for U.S. workers to contact the employer or SWA 
for referral to the employer and completion of the additional 
recruitment steps described above. As explained above, the Departments 
have determined that if employers file a petition 45 or more days after 
their dates of need, they have not conducted recruitment recently 
enough for the Departments to reasonably conclude that there are 
currently an insufficient number of U.S. workers qualified, willing, 
and available to perform the work absent additional recruitment.
    Because of the abbreviated timeline for the additional recruitment 
required for employers whose initial recruitment has gone stale, the 
Departments have determined that a longer hiring period is necessary to 
approximate the hiring period under normal recruitment procedures and 
ensure that domestic workers have access to these job opportunities, 
consistent with the Departments' mandate. Additionally, given the 
relatively brief period during which additional recruitment will occur, 
additional time may be necessary for U.S. workers to have a meaningful 
opportunity to learn about the job opportunities and submit 
applications.
    The Departments remind all H-2B employers of the requirement to 
engage in non-discriminatory hiring practices and that the job 
opportunity is, and through the recruitment period set forth in this 
rule must continue to be, open to any qualified U.S. worker regardless 
of race, color, national origin, age, sex, religion, disability, or 
citizenship, as specified under 20 CFR 655.20(r). Further, employers 
that wish to require interviews must conduct those interviews by phone 
or provide a procedure for the interviews to be conducted in the 
location where the worker is being recruited so that the worker incurs 
little or no cost. Employers cannot provide potential H-2B workers with 
more favorable treatment with respect to the requirement for, and 
conduct of, interviews. See 20 CFR 655.40(d).
    Any U.S. worker who applies or is referred for the job opportunity 
and is not considered by the employer for the job opportunity, 
experiences difficulty accessing or understanding the materials terms 
and conditions of the job opportunity, or believes they have been 
improperly rejected by the employer may file a complaint directly with 
the SWA serving the area of intended employment. Each SWA maintains a 
complaint system for public labor exchange services established under 
20 CFR part 658, subpart E, and any complaint filed by, or on behalf 
of, a U.S. worker about a specific H-2B job order will be processed 
under this existing complaint system. Depending on the circumstances, 
the SWA may seek informal resolution by working with the complainant 
and the employer to resolve, for example, miscommunications with the 
employer to be considered for the job opportunity or other concerns or 
misunderstandings related to the terms and conditions of the job 
opportunity. In other circumstances, such as allegations involving 
discriminatory hiring practices, the SWA may need to formally enter the 
complaint and refer the matter to an appropriate enforcement agency for 
prompt action. As mentioned above, DOL's OFLC maintains a comprehensive 
directory of contact information for each SWA that can be used to 
obtain more information on how to file a complaint.
    Although the hiring period may require some employers to hire U.S. 
workers after the start of the contract period, this is not 
unprecedented. For example, in the H-2A program, employers have been 
required to hire U.S. workers through 50 percent of the contract period 
since at least 2010,\105\ which ``enhance[s] protections for U.S. 
workers, to the maximum extent possible, while balancing the potential 
costs to employers,'' and is consistent with the Departments' 
responsibility to ensure that these job opportunities are available to 
U.S. workers.\106\ The Department acknowledges that hiring workers 
after the start of the contract period imposes an additional cost on 
employers, but that cost can be lessened, in part, by the ability to 
discharge the H-2B worker upon hiring a U.S. worker (note, however, 
that an employer must pay for any discharged H-2B worker's return 
transportation, 20 CFR 655.20(j)(1)(ii) and 29 CFR 503.16(j)(1)(ii)). 
Additionally, this rule permits employers to immediately hire H-2B 
workers who are already present in the United States without waiting 
for approval of an H-2B petition, which will reduce the potential for 
harm to H-2B workers as a result of displacement by U.S. workers. See 
new 8 CFR 214.2(h)(27). Most importantly, a longer hiring period will 
ensure that available U.S. workers have a viable opportunity to apply 
for H-2B job opportunities. Accordingly, the Departments have 
determined that in affording the benefits of this temporary cap 
increase to businesses that are suffering irreparable harm or will 
suffer impending irreparable harm, it is necessary to ensure U.S. 
workers who may be seeking employment as the economy continues to 
recover in 2022 have sufficient time to apply for these jobs.
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    \105\ Final Rule, Temporary Agricultural Employment of H-2A 
Aliens in the United States, 75 FR 6884, 6921 (Feb. 12, 2010).
    \106\ NPRM, Temporary Agricultural Employment of H-2A Aliens in 
the United States, 74 FR 45906, 45917 (Sept. 4, 2009); 75 FR at 
6922.
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    As in the temporary rules implementing the supplemental cap 
increases in prior years, employers must retain documentation 
demonstrating compliance with the recruitment requirements described 
above, including placement of a new job order with the SWA, contact 
with AJCs, contact with former U.S. workers, and compliance with Sec.  
655.45(a) or (b). Employers must prepare and retain a recruitment 
report that describes these efforts and meets the requirements set 
forth in 20 CFR 655.48, including the requirement to update the 
recruitment report throughout the recruitment and hiring period set 
forth in paragraph (a)(5)(v) of new 20 CFR 655.64. Employers must 
maintain copies of the recruitment report, attestation, and supporting 
documentation, as described above, for a period of 3 years from the 
date that the TLC was approved, consistent with the document retention 
requirements under 20 CFR 655.56. These requirements are similar to 
those that apply to certain seafood employers that stagger the entry of 
H-2B workers under 20 CFR 655.15(f).
    DOL's WHD has the authority to investigate the employer's 
attestations, as the attestations are a required part of the H-2B 
petition process under this rule and the attestations rely on the 
employer's existing, approved TLC. Where a WHD investigation determines 
that there has been a willful misrepresentation of a material fact or a 
substantial failure to meet the required terms and conditions of the 
attestations, WHD may institute administrative proceedings to impose 
sanctions and remedies, including (but not limited to) assessment of 
civil money penalties;

[[Page 4743]]

recovery of wages due; make-whole relief for any U.S. worker who has 
been improperly rejected for employment, laid off, or displaced; make-
whole relief for any person who has been discriminated against; and/or 
debarment for 1 to 5 years. See 29 CFR 503.19, 503.20. This regulatory 
authority is consistent with WHD's existing enforcement authority and 
is not limited by the expiration date of this rule. Therefore, in 
accordance with the documentation retention requirements at new 20 CFR 
655.69, the petitioner must retain documents and records evidencing 
compliance with this rule, and must provide the documents and records 
upon request by DHS or DOL. In addition to the complaint process under 
20 CFR part 658, subpart E, which is described above, workers who 
believe their rights under the H-2B program have been violated may file 
confidential complaints with WHD by telephone at 1-866-487-9243 or may 
access the telephone number via TTY by calling 1-877-889-5627 or visit 
https://www.dol.gov/agencies/whd to locate the nearest WHD office for 
assistance. Note that an employer is prohibited from intimidating, 
threatening, restraining, coercing, blacklisting, discharging, or in 
any manner discriminating against an employee who has, among other 
actions: Filed a complaint related to H-2B rights and protections; 
consulted with a workers' rights center, community organization, labor 
union, legal assistance program, or attorney on H-2B rights or 
protections; or exercised or asserted H-2B rights and protections on 
behalf of themselves or others. 20 CFR 655.20(n) and 29 CFR 503.16(n).
    DHS has the authority to verify any information submitted to 
establish H-2B eligibility at any time before or after the petition has 
been adjudicated by USCIS. See, e.g., INA sections 103 and 214 (8 
U.S.C. 1103, 1184); see also 8 CFR part 103 and section 214.2(h). DHS' 
verification methods may include, but are not limited to, review of 
public records and information, contact via written correspondence or 
telephone, unannounced physical site inspections, and interviews. USCIS 
will use information obtained through verification to determine H-2B 
eligibility and assess compliance with the requirements of the H-2B 
program. Subject to the exceptions described in 8 CFR 103.2(b)(16), 
USCIS will provide petitioners with an opportunity to address adverse 
information that may result from a USCIS compliance review, 
verification, or site visit after a formal decision is made on a 
petition or after the agency has initiated an adverse action that may 
result in revocation or termination of an approval.
    DOL's OFLC already has the authority under 20 CFR 655.70 to conduct 
audit examinations on adjudicated Applications for Temporary Employment 
Certification, including all appropriate appendices, and verify any 
information supporting the employer's attestations. OFLC uses audits of 
adjudicated Applications for Temporary Employment Certification, as 
authorized by 20 CFR 655.70, to ensure employer compliance with 
attestations made in its Application for Temporary Employment 
Certification and to ensure the employer has met all statutory and 
regulatory criteria and satisfied all program requirements. The OFLC CO 
has sole discretion to choose which Applications for Temporary 
Employment Certification will be audited. See 20 CFR 655.70(a). Post-
adjudication audits can be used to establish a record of employer 
compliance or non-compliance with program requirements and the 
information gathered during the audit assists DOL in determining 
whether it needs to further investigate or debar an employer or its 
agent or attorney from future labor certifications.
    Under this rule, an employer may submit a petition to USCIS, 
including a valid TLC and Form ETA-9142B-CAA-5, in which the employer 
attests to compliance with requirements for access to the supplemental 
H-2B visas allocated through 8 CFR 214.2(h)(6)(xi), including that its 
business is suffering irreparable harm or will suffer impending 
irreparable harm, and that it will conduct additional recruitment, if 
necessary to refresh the TLC's labor market test. DHS and DOL consider 
Form ETA-9142B-CAA-5 to be an appendix to the Application for Temporary 
Employment Certification and the attestations contained on the Form 
ETA-9142B-CAA-5 and documentation supporting the attestations to be 
evidence that is incorporated into and a part of the approved TLC. 
Therefore, DOL's audit authority includes the authority to audit the 
veracity of any attestations made on Form ETA-9142B-CAA-5 and 
documentation supporting the attestations. However, DOL's audit 
authority is independently authorized, and is not limited by the 
expiration date of this rule. In order to make certain that the 
supplemental visa allocation is not subject to fraud or abuse, DHS will 
share information regarding Forms ETA-9142B-CAA-5 with DOL, consistent 
with existing authorities. This information sharing between DHS and 
DOL, along with relevant information that may be obtained through the 
separate SWA and WHD complaint systems, are expected to support DOL's 
identification of TLCs used to access the supplemental visa allocation 
for closer examination of TLCs through the audit process.
    In accordance with the documentation retention requirements in this 
rule, the petitioner must retain documents and records proving 
compliance with this rule, and must provide the documents and records 
upon request by DHS or DOL. Under this rule, DOL will audit a 
significant number of TLCs used to access the supplemental visa 
allocation to ensure employer compliance with attestations, including 
those regarding the irreparable harm standard and additional employer 
conducted recruitment, required under this rule. In the event of an 
audit, the OFLC CO will send a letter to the employer and, if 
appropriate, a copy of the letter to the employer's attorney or agent, 
listing the documentation the employer must submit and the date by 
which the documentation must be sent to the CO. During audits under 
this rule, the CO will request documentation necessary to demonstrate 
the employer conducted all recruitment steps required under this rule 
and truthfully attested to the irreparable harm the employer was 
suffering or would suffer in the near future without the ability to 
employ all of the H-2B workers requested under the cap increase, 
including documentation the employer is required to retain under this 
rule. If necessary to complete the audit, the CO may request 
supplemental information and/or documentation from the employer during 
the course of the audit process. 20 CFR 655.70(c).
    Failure to comply in the audit process may result in the revocation 
of the employer's certification or in debarment, under 20 CFR 655.72 
and 655.73, respectively, or require the employer to undergo assisted 
recruitment in future filings of an Application for Temporary 
Employment Certification, under 20 CFR 655.71. Where an audit 
examination or review of information from DHS or other appropriate 
agencies determines that there has been fraud or willful 
misrepresentation of a material fact or a substantial failure to meet 
the required terms and conditions of the attestations or failure to 
comply with the audit examination process, OFLC may institute 
appropriate administrative proceedings to impose sanctions on the 
employer. Those sanctions may result in revocation of an approved TLC, 
the requirement that the employer undergo assisted recruitment in 
future filings of

[[Page 4744]]

an Application for Temporary Employment Certification for a period of 
up to 2 years, and/or debarment from the H-2B program and any other 
foreign labor certification program administered by DOL for 1 to 5 
years. See 29 CFR 655.71, 655.72, 655.73. Additionally, OFLC has the 
authority to provide any finding made or documents received during the 
course of conducting an audit examination to DHS, WHD, IER, or other 
enforcement agencies. OFLC's existing audit authority is independently 
authorized, and is not limited by the expiration date of this rule. 
Therefore, in accordance with the documentation retention requirements 
at new 20 CFR 655.69, the petitioner must retain documents and records 
proving compliance with this rule, and must provide the documents and 
records upon request by DHS or DOL.
    Petitioners must also comply with any other applicable laws, such 
as avoiding unlawful discrimination against U.S. workers based on their 
citizenship status or national origin. Specifically, the failure to 
recruit and hire qualified and available U.S. workers on account of 
such individuals' national origin or citizenship status may violate INA 
section 274B, 8 U.S.C. 1324b.

IV. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    This rule is issued without prior notice and opportunity to comment 
and with an immediate effective date pursuant to the Administrative 
Procedure Act (APA). 5 U.S.C. 553(b) and (d).
1. Good Cause To Forgo Notice and Comment Rulemaking
    The APA, 5 U.S.C. 553(b)(B), authorizes an agency to issue a rule 
without prior notice and opportunity to comment when the agency, for 
good cause, finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Among other things, 
the good cause exception for forgoing notice and comment rulemaking 
``excuses notice and comment in emergency situations, or where delay 
could result in serious harm.'' Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. 
Cir. 2004). Although the good-cause exception is ``narrowly construed 
and only reluctantly countenanced,'' Tenn. Gas Pipeline Co. v. FERC, 
969 F.2d 1141, 1144 (D.C. Cir. 1992), the Departments have 
appropriately invoked the exception in this case, for the reasons set 
forth below.
    With respect to the supplemental allocations provisions in 8 CFR 
214.2 and 20 CFR part 655, subpart A, as explained above, the 
Departments are acting to give effect to the extension of the 
supplemental cap authority in section 105 of Div. O of the FY 2021 
Omnibus, which was extended by Congress and expires on February 18, 
2022 but extends the supplemental cap authority to FY 2022.\107\ The 
Departments are bypassing advance notice and comment because of the 
exigency created by this short timeframe for action, as well as to 
urgently address increased labor demand and other conditions stemming 
from the rapidly unfolding pandemic. In recent months, the ``Great 
Resignation'' has resulted in an adverse impact on many employers in 
industries that frequently use the H-2B program,\108\ and the emergence 
of the Omicron variant has uncertain implications for public health 
\109\ as well as on inflation \110\ and supply chains.\111\ USCIS 
received more than enough petitions to meet the H-2B visa statutory cap 
for the first half of FY 2022 on September 30, 2021,\112\ which is a 
month and a half earlier than when the statutory cap for the first half 
of FY 2020 was reached.\113\ USCIS rejected and returned the petitions 
and associated filing fees to petitioners for all cap-subject petitions 
received after September 30, 2021. Given high demand by American 
businesses for H-2B workers, rapidly evolving economic conditions and 
labor demand, and the very short time remaining to authorize additional 
visa numbers to help prevent further irreparable harm currently 
experienced by some U.S. employers or avoid impending economic harm for 
others,\114\ a decision to undertake notice and comment rulemaking 
would likely delay final action on this matter by weeks or months, and 
would, therefore, greatly complicate and potentially preclude the 
Departments from successfully exercising the authority created by 
section 105, Public Law 117-43, and Public Law 117-70.
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    \107\ See Public Law 117-70 Further Extending Government Funding 
Act, Division A ``Further Continuing Appropriations Act, 2022'', 
section 101 (Dec. 3, 2021) changing the Public Law 117-43 expiration 
date in section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and 
Public Law 117-43 Extending Government Funding and Delivering 
Emergency Assistance Act, Division A ``Continuing Appropriations 
Act, 2022'', Section 101 and 106(3) (Oct. 3, 2021) extending DHS 
funding, including authority under section 105 of title I of 
Division O of Public Law 116-260 through December 3, 2021.
    \108\ See Megan Leonhardt, The Great Resignation is hitting 
these industries hardest, Fortune, https://fortune.com/2021/11/16/great-resignation-hitting-these-industries-hardest/ (Nov. 16, 2021) 
(``The industries hit hardest by quits in September are leisure and 
hospitality--including those who work in the arts and entertainment, 
as well as in restaurants and hotels--trade, transportation and 
utilities, professional services and retail.''). These observations 
made in the preceding source align with USCIS analysis of labor 
demand in industry sectors that are most represented in the H-2B 
program, as discussed in the E.O. 12866 analysis. See also, e.g., 
Paul Krugman, Wonking Out: Is the Great Resignation a Great 
Rethink?, N.Y. Times, https://www.nytimes.com/2021/11/05/opinion/great-resignation-quit-job.html (Nov. 5, 2021) (``. . . there's 
considerable evidence that `workers at low-wage jobs [have] 
historically underestimated how bad their jobs are.' When 
something--like, say, a deadly pandemic--forces them out of their 
rut, they realize what they've been putting up with. And because 
they can learn from the experience of other workers, there may be a 
`quits multiplier' in which the decision of some workers to quit 
ends up inducing other workers to follow suit.'').
    \109\ See Annika Kim Constantino, Omicron detected in Florida 
and Texas as it takes root in 25 U.S. states, CNBC, https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html (Dec. 10, 2021).
    \110\ On December 10, 2021, BLS reported that the CPI-U 
increased 0.8 percent in November on a seasonally adjusted basis 
after rising 0.9 percent in October. Over the previous 12 months, 
the all items index increased 6.8 percent before seasonal 
adjustment. See BLS, Economic News Release, Consumer Price Index 
Summary (Dec. 20, 2021), https://www.bls.gov/news.release/cpi.nr0.htm.
    \111\ See, e.g., Mitchell Hartman, Omicron's impact on inflation 
and supply chains is uncertain, Marketplace, https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/ (Dec. 1, 2021) (``People have trouble 
getting to work through lockdowns and what have you, and labor gets 
scarcer -- particularly for those jobs where being present at work 
matters. Supply goes down and has an upward pressure on pricing . . 
.''); Alyssa Fowers & Rachel Siegel, Five charts explaining why 
inflation is at a near 40-year high, Wash. Post, https://www.washingtonpost.com/business/2021/10/14/inflation-prices-supply-chain/ (Oct. 14, 2021, last updated Dec. 10, 2021) (``Prices for 
meat, poultry, fish and eggs have surged in particular above other 
grocery categories. The White House has pointed to broad 
consolidation in the meat industry, saying that large companies bear 
some of the responsibility for pushing prices higher . . . Meat 
industry groups disagree, arguing that the same supply-side issues 
rampant in the rest of the economy apply to proteins because it 
costs more to transport and package materials, while tight labor 
market has held back meat production.'').
    \112\ USCIS, USCIS Reaches H-2B Cap for First Half of FY 2022, 
https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021).
    \113\ November 16, 2020 was the last receipt date for the first 
half of FY 2020. See USCIS, USCIS Reaches H-2B Cap for First Half of 
FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
    \114\ See Jason Douglas et al, Omicron Disrupts Government Plans 
to Lure Migrant Workers as Labor Shortages Bite, Wall Street 
Journal, https://www.wsj.com/articles/omicron-disrupts-government-plans-to-lure-migrant-workers-as-labor-shortages-bite-11639132203 
(Dec. 10, 2021) (```I've lost customers because people don't have 
the patience to wait--it's horrible, horrible,'' she said. ``The sad 
part is, if I got my workers, my business would grow exponentially.' 
. . . Ms. Ogden has tried to find locals to fill the jobs. She even 
asked her congressman to put a sign in his office. She offered about 
$18 an hour, plus overtime. No one took a job. Congress raised the 
cap for H-2B visas this year, up to a total of 66,000 for fiscal 
2022, but that still falls far short of demand.'').
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    The temporary portability and change of employer provisions in 8 
CFR 214.2

[[Page 4745]]

and 274a.12 are further supported by conditions created by the COVID-19 
pandemic. On January 31, 2020, the Secretary of Health and Human 
Services declared a public health emergency under section 319 of the 
Public Health Service Act in response to COVID-19 retroactive to 
January 27, 2020.\115\ This determination that a public health 
emergency exists due to COVID-19 has subsequently been renewed seven 
times: On April 21, 2020, on July 23, 2020, on October 2, 2020, January 
7, 2021, on April 15, 2021, on July 19, 2021 and most recently on 
October 15, 2021, effective October 18, 2021.\116\ On March 13, 2020, 
then-President Trump declared a National Emergency concerning the 
COVID-19 outbreak, retroactive to March 1, 2020, to control the spread 
of the virus in the United States.\117\ In response to the Mexican 
government's call to increase social distancing in that country, DOS 
announced the temporary suspension of routine immigrant and 
nonimmigrant visa services processed at the U.S. Embassy in Mexico City 
and all U.S. consulates in Mexico beginning on March 18, 2020, and it 
later expanded the temporary suspension of routine immigrant and 
nonimmigrant visa services at all U.S. Embassies and Consulates.\118\ 
On July 22, 2020, DOS indicated that embassies and consulates should 
continue to provide emergency and mission critical visa services to the 
extent possible and could begin a phased resumption of routine visa 
services as local conditions and resources allow.\119\ On March 26, 
2020 DOS designated the H-2 programs as essential to the economy and 
food security of the United States and a national security priority; 
DOS indicated that U.S. Embassies and Consulates will continue to 
process H-2 cases to the extent possible and implemented a change in 
its procedures, to include interview waivers.\120\
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    \115\ HHS, Determination of Public Health Emergency, 85 FR 7316 
(Feb. 7, 2020). See also, https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (Jan. 31, 2020).
    \116\ See, HHS, Renewal of Determination that a Public Health 
Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
    \117\ President of the United States, Proclamation 9994 of March 
13, 2020, Declaring a National Emergency Concerning the Coronavirus 
Disease (COVID-19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \118\ DOS, Suspension of Routine Visa Services, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated July 22, 2020).
    \119\ https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
    \120\ DOS, Important Announcement on Waivers of the Interview 
Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
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    Travel restrictions have also changed over time as the pandemic has 
continued to evolve. On October 25, 2021, the President issued 
Proclamation 10294, Advancing the Safe Resumption of Global Travel 
During the COVID-19 Pandemic, which, together with other policies, 
advance the safety and security of the air traveling public and others, 
while also allowing the domestic and global economy to continue its 
recovery from the effects of the COVID-19 pandemic. The proclamation 
bars the entry of noncitizen adult nonimmigrants into the United States 
via air transportation unless they are fully vaccinated against COVID-
19, with certain exceptions.\121\ On January 22, 2022, similar 
requirements entered into force at land ports of entry and ferry 
terminals.\122\
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    \121\ See 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC 
Order).
    \122\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United 
States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at 
United States-Canada border).
---------------------------------------------------------------------------

    On November 26, 2021, the President issued another Proclamation 
suspending the entry into the United States, of immigrants or 
nonimmigrants, of noncitizens who were physically present within 
certain Southern African countries during the 14-day period preceding 
their entry or attempted entry into the United States.\123\ On December 
28, 2021, the President revoked the November 26 Proclamation.\124\ And 
on December 2, 2021, CDC announced that, beginning December 6, 2021, 
all air travelers over the age of two, regardless of citizenship or 
vaccination status, will be to be required to show a negative pre-
departure COVID-19 viral test taken the day before they board their 
flight to the United States, or documentation of recent recovery from 
COVID-19.\125\ Shifting requirements as well as varying availability of 
vaccines and tests in some H-2B nonimmigrants' home countries could 
complicate travel.
---------------------------------------------------------------------------

    \123\ See A Proclamation on Suspension of Entry as Immigrants 
and Nonimmigrants of Certain Additional Persons Who Pose a Risk of 
Transmitting Coronavirus Disease 2019 (Nov. 26, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/11/26/a-proclamation-on-suspension-of-entry-as-immigrants-and-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019/.
    \124\ See A Proclamation on Revoking Proclamation 10315 (Dec. 
28, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/.
    \125\ See CDC, Requirement for Proof of Negative COVID-19 Test 
or Documentation of Recovery from COVID-19 (Dec. 2, 2021).
---------------------------------------------------------------------------

    In addition to travel restrictions and impacts of the pandemic on 
visa services, as discussed elsewhere in this rule, current efforts to 
curb the pandemic in the United States and worldwide have been 
partially successful. With the emergence of COVID-19 variants, 
including the uncertainty surrounding the most recent variant, Omicron; 
different rates of vaccination; and other uncertainties associated with 
the evolving pandemic situation, DHS anticipates that H-2B employers 
may need additional flexibilities, beyond supplemental visa numbers, to 
meet all of their labor needs, particularly if some U.S. and H-2B 
workers become unavailable due to illness or other restrictions related 
to the spread of COVID-19. Therefore, DHS is acting expeditiously to 
put in place rules that will facilitate the continued employment of H-
2B workers already present in the United States. This action will help 
employers fill these critically necessary nonagricultural job openings 
and protect U.S. businesses' economic investments in their operations.
    Courts have found ``good cause'' under the APA when an agency is 
moving expeditiously to avoid significant economic harm to a program, 
program users, or an industry. Courts have held that an agency may use 
the good cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v. 
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
    Consistent with the above authorities, the Departments are 
bypassing notice and comment to prevent ``serious economic harm to the 
H-2B community,'' including U.S. employers, associated U.S. workers, 
and related professional associations, that could result from ongoing 
uncertainty over the status of the numerical limitation, in other 
words, the effective termination of the program through the remainder 
of FY 2021. See Bayou Lawn & Landscape Servs. v. Johnson, 173 F. Supp. 
3d 1271, 1285 & n.12 (N.D. Fla. 2016). The Departments note that this 
action is temporary in nature, see id.,\126\ and

[[Page 4746]]

includes appropriate conditions to ensure that it affects only those 
businesses most in need, and also protects H-2B and U.S. workers.
---------------------------------------------------------------------------

    \126\ Because the Departments have issued this rule as a 
temporary final rule, this rule--with the sole exception of the 
document retention requirements--will be of no effect after 
September 30, 2022, even if Congress includes an additional or 
similar authority akin to Public Law 117-43, as extended by Public 
Law 117-70 on the same terms as section 105, in a subsequent act of 
Congress.
---------------------------------------------------------------------------

2. Good Cause To Proceed With an Immediate Effective Date
    The APA also authorizes agencies to make a rule effective 
immediately, upon a showing of good cause, instead of imposing a 30-day 
delay. 5 U.S.C. 553(d)(3). The good cause exception to the 30-day 
effective date requirement is easier to meet than the good cause 
exception for foregoing notice and comment rulemaking. Riverbend Farms, 
Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992); Am. Fed'n of 
Gov't Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981); 
U.S. Steel Corp. v. EPA, 605 F.2d 283, 289-90 (7th Cir. 1979). An 
agency can show good cause for eliminating the 30-day delayed effective 
date when it demonstrates urgent conditions the rule seeks to correct 
or unavoidable time limitations. U.S. Steel Corp., 605 F.2d at 290; 
United States v. Gavrilovic, 511 F.2d 1099, 1104 (8th Cir. 1977). For 
the same reasons set forth above expressing the need for immediate 
action, we also conclude that the Departments have good cause to 
dispense with the 30-day effective date requirement.

B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary and to the extent permitted by law, to proceed 
only if the benefits justify the costs and to select the regulatory 
approach that maximizes net benefits. Executive Order 13563 emphasizes 
the importance of quantifying both costs and benefits; reducing costs; 
simplifying and harmonizing rules; and promoting flexibility through 
approaches that preserve freedom of choice (including through 
``provision of information in a form that is clear and intelligible''). 
It also allows consideration of equity, fairness, distributive impacts, 
and human dignity, even if some or all of these are difficult or 
impossible to quantify.
    The Office of Information and Regulatory Affairs has determined 
that this rule is a ``significant regulatory action,'' although not an 
economically significant regulatory action. Accordingly, the Office of 
Management and Budget has reviewed this regulation.
Summary
    With this temporary final rule (TFR), DHS is authorizing the 
immediate release of an additional 20,000 H-2B visas. By the authority 
given under Public Law 117-43, and extended by Public Law 117-70, on 
the same terms as section 105 of the Further Consolidated 
Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus), DHS is 
raising the H-2B cap by an additional 20,000 visas during FY 2022 for 
positions with start dates on or before March 31, 2022 to businesses 
that: (1) Show that there are an insufficient number of U.S. workers to 
meet their needs in the first half of FY 2022; (2) attest that their 
businesses are suffering irreparable harm or will suffer impending 
irreparable harm without the ability to employ all of the H-2B workers 
requested on their petition; and (3) petition for returning workers who 
were issued an H-2B visa or were otherwise granted H-2B status in FY 
2019, 2020, or 2021, unless the H-2B worker is a national of one of the 
Northern Triangle countries or Haiti. Additionally, up to 6,500 of the 
20,000 visas may be granted to workers from the Northern Triangle 
countries and Haiti who are exempt from the returning worker 
requirement. This TFR aims to prevent irreparable harm to certain U.S. 
businesses by allowing them to hire additional H-2B workers within FY 
2022.
    The estimated total costs to petitioners range from $4,803,155 to 
$5,324,039. The estimated total cost to the Federal Government is 
$467,820. Therefore, DHS estimates that the total cost of this rule 
ranges from $5,270,975 to $5,791,859. The benefits of this rule are 
diverse, though some of them are difficult to quantify. They include:
    (1) Employers benefit from this rule significantly through 
increased access to H-2B workers;
    (2) Customers and others benefit directly or indirectly from that 
increased access;
    (3) H-2B workers benefit from this rule significantly through 
obtaining jobs and earning wages, potential ability to port and earn 
additional wages, and increased information on COVID-19 and vaccination 
distribution. DHS recognizes that some of the effects of these 
provisions may occur beyond the borders of the United States; \127\
---------------------------------------------------------------------------

    \127\ See, e.g., Arnold Brodbeck et al., Seasonal Migrant Labor 
in the Forest Industry of the Southeastern United States: The Impact 
of H-2B Employment on Guatemalan Livelihoods, 31 Society and Natural 
Resources 1012 (2018).
---------------------------------------------------------------------------

    (4) Some American workers may benefit to the extent that they do 
not lose jobs through the reduced or closed business activity that 
might occur if fewer H-2B workers were available;
    (5) The existence of a lawful pathway, for the 6,500 visas set 
aside for new workers from Guatemala, Honduras, El Salvador, and Haiti, 
is likely to provide multiple benefits in terms of U.S. policy with 
respect to the Northern Triangle countries and Haiti; and
    (6) The Federal Government benefits from increased evidence 
regarding attestations. Table 1 provides a summary of the provisions in 
this rule and some of their impacts.

[[Page 4747]]



                          Table 1--Summary of the TFR's Provisions and Economic Impact
----------------------------------------------------------------------------------------------------------------
                                     Changes resulting from                                Expected benefits of
         Current provision            the provisions of the     Expected costs of the      the provisions of the
                                               TFR              provisions of the TFR               TFR
----------------------------------------------------------------------------------------------------------------
--The current statutory cap limits   --The amended           --The total estimated cost   --Form I-129
 H-2B visa allocations to 66,000      provisions will allow   to file Form I-129 by        petitioners would be
 workers a year.                      for an additional       human resource specialists   able to hire
                                      20,000 H-2B temporary   is approximately $558,461.   temporary workers
                                      workers. Up to 6,500    The total estimated cost     needed to prevent
                                      of the 20,000           to file Form I-129 and       their businesses from
                                      additional visas will   Form G-28 will range from    suffering irreparable
                                      be reserved for         approximately $624,952 if    harm.
                                      workers who are         filed by in-house lawyers   --Businesses that are
                                      nationals of            to approximately $836,755    dependent on the
                                      Guatemala, Honduras,    if filed by outsourced       success of other
                                      El Salvador, and        lawyers. The total           businesses that are
                                      Haiti and will be       estimated cost associated    dependent on H-2B
                                      exempt from the         with filing additional       workers would be
                                      returning worker        petitions ranges from        protected from the
                                      requirement.            $1,183,413 to $1,395,216     repercussions of
                                                              depending on the filer.      local business
                                                             --The total estimated costs   failures.
                                                              associated with filing      --Some American
                                                              Form I-907 if it is filed    workers may benefit
                                                              with Form I-129 is           to the extent that
                                                              $974,909 if filed by human   they do not lose jobs
                                                              resource specialists. The    through the reduced
                                                              total estimated costs        or closed business
                                                              associated with filing       activity that might
                                                              Form I-907 would range       occur if fewer H-2B
                                                              from approximately           workers were
                                                              $795,707 if filed by an in-  available.
                                                              house lawyer to
                                                              approximately $817,943 if
                                                              filed by an outsourced
                                                              lawyer. The total
                                                              estimated costs associated
                                                              with requesting premium
                                                              processing ranges from
                                                              approximately $1,770,616
                                                              to approximately
                                                              $1,792,852.
                                                             --DHS may incur additional
                                                              adjudication costs as more
                                                              applicants file Form I-
                                                              129. However, these
                                                              additional costs to USCIS
                                                              are expected to be covered
                                                              by the fees paid for
                                                              filing the form, which
                                                              have been accounted for in
                                                              costs to petitioners.
                                     --Petitioners will be   --The total estimated cost   --Form ETA-9142-B-CAA-
                                      required to fill out    to petitioners to complete   5 will serve as
                                      the newly created       and file Form ETA-9142-B-    initial evidence to
                                      Form ETA-9142-B-CAA-    CAA-5 is approximately       DHS that the
                                      5, Attestation for      $472,316.                    petitioner meets the
                                      Employers Seeking to                                 irreparable harm
                                      Employ H-2B                                          standard and
                                      Nonimmigrant Workers                                 returning worker
                                      Under Section 105 of                                 requirements.
                                      Div. O of the
                                      Consolidated
                                      Appropriations Act,
                                      2021.
                                     --Petitioners would be  --The total estimated cost   --The additional round
                                      required to conduct     to petitioners to conduct    of recruitment will
                                      an additional round     an additional round of       ensure that a U.S.
                                      of recruitment.         recruitment is               worker that is
                                                              approximately $178,015.      willing and able to
                                                                                           fill the position is
                                                                                           not replaced by a
                                                                                           nonimmigrant worker.
                                     --Employers of H-2B     --The total estimated cost   --Workers would be
                                      workers would be        to petitioners to provide    given information
                                      required to provide     COVID-19 vaccines and        about equal access to
                                      information about       vaccination distribution     vaccines and
                                      equal access to COVID-  site information is          vaccination
                                      19 vaccines and         approximately $601.          distribution.
                                      vaccination
                                      distribution sites.
                                     --An H-2B nonimmigrant  --The total estimated cost   --H-2B workers present
                                      who is physically       to file Form I-129 by        in the United States
                                      present in the United   human resource specialists   will be able to port
                                      States may port to      is approximately $63,965.    to another employer
                                      another employer.       The total estimated cost     and potentially
                                                              to file Form I-129 and       extend their stay
                                                              Form G-28 will range from    and, therefore, earn
                                                              approximately $72,242 if     additional wages.
                                                              filed by in-house lawyers   --An H-2B worker with
                                                              to approximately $96,715     an employer that is
                                                              if filed by outsourced       not complying with H-
                                                              lawyers.                     2B program
                                                             --The total estimated costs   requirements would
                                                              associated with filing       have additional
                                                              Form I-907 if it is filed    flexibility in
                                                              with Form I-129 is           porting to another
                                                              $111,549 if filed by human   employer's certified
                                                              resource specialists. The    position.
                                                              total estimated costs       --This provision would
                                                              associated with filing       ensure employers will
                                                              Form I-907 would range       be able to hire the H-
                                                              from approximately $92,052   2B workers they need.
                                                              if filed by an in-house
                                                              lawyer to approximately
                                                              $94,625 if filed by an
                                                              outsourced lawyer.
                                                             --The total estimated costs
                                                              associated with the
                                                              portability provision
                                                              ranges from $339,808 to
                                                              $366,865, depending on the
                                                              filer.
                                                             --DHS may incur some
                                                              additional adjudication
                                                              costs as more petitioners
                                                              file Form I-129. However,
                                                              these additional costs to
                                                              USCIS are expected to be
                                                              covered by the fees paid
                                                              for filing the form, which
                                                              have been accounted for in
                                                              costs to petitioners.

[[Page 4748]]

 
                                     --DHS and DOL intend    --Employers will have to     --DOL and DHS audits
                                      to conduct a number     comply with audits for an    will yield evidence
                                      of audits during the    estimated total              of the efficacy of
                                      period of temporary     opportunity cost of time     attestations in
                                      need to verify          of $290,400.                 enforcing compliance
                                      compliance with H-2B   --It is expected both DHS     with H-2B
                                      program requirements,   and DOL will be able to      supplemental cap
                                      including the           shift resources to be able   requirements.
                                      irreparable harm        to conduct these audits     --Conducting a
                                      standard as well as     without incurring            significant number of
                                      other key worker        additional costs. However,   audits will
                                      protection provisions   the Departments will incur   discourage
                                      implemented through     opportunity costs of time.   uncorroborated
                                      this rule.              The audits are expected to   attestations.
                                                              take a total of
                                                              approximately 6,000 hours
                                                              and cost approximately
                                                              $467,820.
Familiarization Cost...............  --Petitioners or their  --Petitioners or their       --Petitioners will
                                      representatives with    representatives will need    have the necessary
                                      familiarize             to read and understand the   information to take
                                      themselves with the     rule at an estimated total   advantage of and
                                      rule.                   opportunity costs of time    comply with the
                                                              that ranges from $567,986    provisions of this
                                                              to $827,774.                 rule.
----------------------------------------------------------------------------------------------------------------
Source: USCIS and DOL analysis.

Background and Purpose of the Proposed Rule
    The H-2B visa classification program was designed to serve U.S. 
businesses that are unable to find a sufficient number of U.S. workers 
to perform nonagricultural work of a temporary or seasonal nature. For 
a nonimmigrant worker to be admitted into the United States under this 
visa classification, the hiring employer is required to: (1) Receive a 
temporary labor certification (TLC) from the Department of Labor (DOL); 
and (2) file Form I-129 with DHS. The temporary nature of the services 
or labor described on the approved TLC is subject to DHS review during 
adjudication of Form I-129.\128\ The current INA statute sets the 
annual number of H-2B visas for workers performing temporary 
nonagricultural work at 66,000 to be distributed semi-annually 
beginning in October (33,000) and in April (33,000).\129\ Any unused H-
2B visas from the first half of the fiscal year will be available for 
employers seeking to hire H-2B workers during the second half of the 
fiscal year. However, any unused H-2B visas from one fiscal year do not 
carry over into the next and will therefore not be made available.\130\ 
Once the statutory H-2B visa cap limit has been reached, petitioners 
must wait until the next half of the fiscal year, or the beginning of 
the next fiscal year, for additional visas to become available.
---------------------------------------------------------------------------

    \128\ Revised effective 1/18/2009; 73 FR 78104; 74 FR 2837.
    \129\ See 8 U.S.C. 1184(g)(1)(B), INA 214(g)(1)(B) and 8 U.S.C. 
1184(g)(4), INA 214(g)(4).
    \130\ A Temporary Labor Certification (TLC) approved by the 
Department of Labor must accompany an H-2B petition. The employment 
start date stated on the petition must match the start date listed 
on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
---------------------------------------------------------------------------

    On Dec 27, 2020, the President signed the FY 2021 Omnibus that 
contains a provision (Sec. 105 of Div. O) permitting the Secretary of 
Homeland Security, under certain circumstances, to increase the number 
of H-2B visas available to U.S. employers, notwithstanding the 
established statutory numerical limitation. On December 3, 2021, 
Congress extended this authority to eligible employers whose employment 
needs for FY 2022 cannot be met under the general fiscal year statutory 
cap.\131\ After consulting with the Secretary of Labor, the Secretary 
of the Homeland Security has determined it is appropriate to exercise 
his discretion and raise the H-2B cap by up to an additional 20,000 
visas for FY 2022 positions with start dates on or before March 31, 
2022, for those businesses who would qualify under certain 
circumstances.
---------------------------------------------------------------------------

    \131\ Sections 101 and 106(3) of Division A of Public Law 117-
43, Continuing Appropriations Act, 2022, and section 101 of Division 
A of Public Law 117-70, Further Continuing Appropriations Act, 2022 
provide the DHS Secretary with the authority to make available 
additional H-2B visas for FY 2022 on the same terms as Section 105 
of Division O of the Consolidated Appropriations Act, 2021, Public 
Law 116-260 (FY 2021 Omnibus). This authority expires on February 
18, 2022.
---------------------------------------------------------------------------

    These businesses must attest that they are suffering irreparable 
harm or will suffer impending irreparable harm without the ability to 
employ all of the H-2B workers requested on their petition. The 
Secretary has determined that up to 13,500 of the 20,000 these 
supplemental visas will be limited to specified H-2B returning workers 
for nationals of any country. Specifically, these individuals must be 
workers who were issued H-2B visas or were otherwise granted H-2B 
status in fiscal years 2019, 2020, or 2021. The Secretary has also 
determined that up to 6,500 of the 20,000 additional visas will be 
reserved for workers who are nationals of Guatemala, Honduras, El 
Salvador, and Haiti, and that these 6,500 workers will be exempt from 
the returning worker requirement. Once the 6,500 visa limit has been 
reached, a petitioner may continue to request H-2B visas for workers 
who are nationals of Guatemala, Honduras, El Salvador, and Haiti but 
these workers must be returning workers.
Population
    This rule would affect those employers that file Form I-129 on 
behalf of nonimmigrant workers they seek to hire under the H-2B visa 
program. More specifically, this rule would affect those employers that 
can establish that their business is suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all of 
the H-2B workers requested on their petition and without the exercise 
of authority that is the subject of this rule. Due to the temporary 
nature of this rule and the limited time left for employers to begin 
the H-2B filing process for positions with FY 2022 employment start 
dates on or before March 31, 2022,\132\ DHS believes that it is 
reasonable to assume that eligible petitioners for these additional 
20,000 visas will generally be those employers that have already 
completed the steps to receive an

[[Page 4749]]

approved TLC prior to the issuance of this rule.
---------------------------------------------------------------------------

    \132\ This assumption is based on the fact that, under DOL 
regulations, employers must apply for a TLC 75 to 90 days before the 
start date of work. 20 CFR 655.15(b).
---------------------------------------------------------------------------

    This rule would also have additional impacts on the population of 
H-2B employers and workers presently in the United States by permitting 
some H-2B workers to port to another certified employer. These H-2B 
workers would continue to earn wages and gaining employers would 
continue to obtain necessary workers.
Population That Will File a Form I-129, Petition for a Nonimmigrant 
Worker
    According to DOL OFLC's certification data for FY 2021, as of 
December 1, 2021, about 3,257 TLCs for 86,627 H-2B positions were 
received with expected work start dates between October 1, 2021 and 
March 1, 2022. DOL OFLC has approved 2,469 certifications for 65,717 H-
2B positions and is still reviewing the remaining 347 TLC requests for 
7,301 H-2B positions. DOL OFLC has denied, withdrawn, rejected, or 
returned 441 certifications for 13,609 H-2B positions.\133\ However, 
many of these certified worker positions have already been filled under 
the semi-annual cap of 33,000 and, for approximately 16 percent of the 
worker positions certified and still under review by DOL, employers 
indicated on the Form ETA-9142B their intention to employ some or all 
of the H-2B workers under the application who will be exempt from the 
statutory visa cap.\134\ Additionally, based on the average TLC 
requests received for work start dates between March 2 and 31 during FY 
2019-2021, DOL OFLC estimates that it may receive another 65 TLC 
requests covering approximately 2,100 H-2B worker positions for the 
remainder of the first half visa allotment period ending March 31, 
2022. The total universe of approved, pending, and projected future 
TLCs, as of December 1, 2021, is 2,881 for 75,118 H-2B worker 
positions.\135\ Assuming 16 percent of the approved, pending, and 
projected 75,118 H-2B worker petitions will be exempt from the 
statutory visa cap, we estimate applications requesting approximately 
63,099 H-2B beneficiaries.\136\
---------------------------------------------------------------------------

    \133\ As of December 1, 2021, DOL OFLC had denied 235 
applications for 6,375 positions and rejected 74 applications for 
1,063 positions. Employers had withdrawn 132 applications for 6,171 
positions. This totals 441 applications for 13,609 positions either 
denied, rejected, or withdrawn.
    \134\ Of the 65,717 certified H-2B worker positions, 
approximately 14 percent (9,458 certified H-2B worker positions) may 
be employed by employers under a cap exempt status. Of the 7,301 H-
2B workers positions requested for certification and still under DOL 
review, approximately 26 percent (1,933 pending H-2B worker 
positions) may be employed by employers under a cap exempt status. 
This totals 11,391 H-2B workers positions associated with approved 
and pending TLCs where the H-2B worker may be employed by the 
employer under a cap exempt status; or 16 percent of all 73,018 
positions associated with approved and pending TLCs.
    \135\ Calculation for petitioners: 2,469 approved TLCs + 347 
pending + 65 projected future TLCs = 2,881 approved, pending, and 
project future TLCs.
    Calculation for beneficiaries: 65,717 positions associated with 
approved TLCs + 7,301 positions associated with pending TLCs+ 2,100 
positions associated with projected future TLCs = 75,118 positions 
associated with approved, pending, and projected future TLCs.
    \136\ Calculation: 75,118 approved, pending, and projected H-2B 
worker positions * 84% of requested workers not being exempt from 
the statutory cap = 63,099 requested H-2B beneficiaries subject to 
the statutory cap.
---------------------------------------------------------------------------

    Of the expected 2,881 certified Applications for Temporary 
Employment Certification, USCIS data shows that 1,655 H-2B petitions 
for 40,749 positions with approved certifications were already filed 
toward the first semi-annual cap of 33,000 visas.\137\ Therefore, we 
estimate that approximately 1,226 Applications for Temporary Employment 
Certification may be filed towards this FY 2022 supplemental cap.\138\ 
USCIS recognizes that some employers would have to submit two Forms I-
129 if they choose to request H-2B workers under both the returning 
worker and Northern Triangle Countries/Haiti cap. At this time, USCIS 
cannot predict how many employers will choose to take advantage of this 
set-aside, and therefore recognize that the number of petitions may be 
underestimated.
---------------------------------------------------------------------------

    \137\ USCIS, Office of Performance and Quality, Data pulled on 
December 2, 2021.
    \138\ Calculation: 2,881 approved, pending, and projected TLCs - 
1,665 petitions for H-2B workers = 1,226 expected additional 
petitions for H-2B workers.
---------------------------------------------------------------------------

Population That Files Form G-28, Notice of Entry of Appearance as 
Attorney or Accredited Representative
    If a lawyer or accredited representative submits Form I-129 on 
behalf of the petitioner, Form G-28, Notice of Entry of Appearance as 
Attorney or Accredited Representative, must accompany the Form I-129 
submission.\139\ Using data from FY 2017 to FY 2021, we estimate that 
approximately 44.43 percent of Form I-129 petitions will be filed by a 
lawyer or accredited representative (Table 2). Table 2 shows the 
percentage of Form I-129 H-2B petitions that were accompanied by a Form 
G-28. Therefore, we estimate that 545 Forms I-129 and Forms G-28 will 
be filed by in-house or outsourced lawyers, and that 681 Forms I-129 
will be filed by human resources (HR) specialists.\140\
---------------------------------------------------------------------------

    \139\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \140\ Calculation: 1,226 estimated additional petitions * 44.43 
percent of petitions filed by a lawyer = 545 petitions (rounded) 
filed by a lawyer.
    Calculation: 1,226 estimated additional petitions - 545 
petitions filed by a lawyer = 681 petitions filed by an HR 
specialist.

                 Table 2--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form G-28
                                                 [FY 2017-2021]
----------------------------------------------------------------------------------------------------------------
                                                                  Number of Form                    Percent of
                                                                    I-129 H-2B     Total number    Form I-129 H-
                           Fiscal year                               petitions     of Form I-129   2B petitions
                                                                  accompanied by  H-2B petitions  accompanied by
                                                                   a  Form G-28      received      a  Form G-28
----------------------------------------------------------------------------------------------------------------
2017............................................................           2,615           6,112           42.78
2018............................................................           2,626           6,148           42.71
2019............................................................           3,335           7,461           44.70
2020............................................................           2,434           5,422           44.89
2021............................................................           4,229           9,159           46.17
                                                                 -----------------------------------------------
    2017-2021 Total.............................................          15,239          34,302           44.43
----------------------------------------------------------------------------------------------------------------
Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on
  April 8, 2021 and December 2, 2021.


[[Page 4750]]

Population That Files Form I-907, Request for Premium Processing 
Service
    Employers may use Form I-907, Request for Premium Processing 
Service, to request faster processing of their Form I-129 petitions for 
H-2B visas. Table 3 shows the percentage of Form I-129 H-2B petitions 
that were filed with a Form I-907. Using data from FY 2017 to FY 2021, 
USCIS estimates that approximately 93.67 percent of Form I-129 H-2B 
petitioners will file a Form I-907 requesting premium processing, 
though this could be higher because of the timing of this rule. Based 
on this historical data, USCIS estimates that 1,148 Forms I-907 will be 
filed with the Forms I-129 as a result of this rule.\141\ Of these 
1,148 premium processing requests, we estimate that 510 Forms I-907 
will be filed by in-house or outsourced lawyers and 638 will be filed 
by HR specialists.\142\
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    \141\ Calculation: 1,226 estimated additional petitions * 93.67 
percent premium processing filing rate = 1,148 (rounded) additional 
Form I-907.
    \142\ Calculation: 1,148 additional Form I-907 * 44.43 percent 
of petitioners represented by a lawyer = 510 (rounded) additional 
Form I-907 filed by a lawyer.
    Calculation: 1,148 additional Form I-907 - 510 additional Form 
I-907 filed by a lawyer = 638 additional Form I-907 filed by an HR 
specialist.

                Table 3--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form I-907
                                                 [FY 2017-2021]
----------------------------------------------------------------------------------------------------------------
                                                                  Number of Form                    Percent of
                                                                    I-129 H-2B     Total number    Form I-129 H-
                           Fiscal year                               petitions     of Form I-129   2B petitions
                                                                  accompanied by  H-2B petitions  accompanied by
                                                                    Form I-907       received       Form I-907
----------------------------------------------------------------------------------------------------------------
2017............................................................           5,932           6,112           97.05
2018............................................................           5,986           6,148           97.36
2019............................................................           7,227           7,461           96.86
2020............................................................           4,341           5,422           80.06
2021............................................................           8,646           9,159           94.40
                                                                 -----------------------------------------------
    2017-2021 Total.............................................          32,132          34,302           93.67
----------------------------------------------------------------------------------------------------------------
Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on
  April 8, 2021 and December 2, 2021.

Population That Files Form ETA-9142-B-CAA-5, Attestation for Employers 
Seeking To Employ H-2B Nonimmigrant Workers Under Section 105 of 
Division O of the Consolidated Appropriations Act, 2021 Public Law 116-
260 and Public Laws 117-43 and 117-70
    Petitioners seeking to take advantage of the FY 2022 H-2B 
supplemental visa cap will need to file a Form ETA-9142-B-CAA-5 
attesting that their business is suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all of 
the H-2B workers requested on the petition, comply with third party 
notification, and maintain required records, among other requirements. 
DOL estimates that each of the 1,226 petitioners will need to file a 
Form ETA-9142-B-CAA-5 and comply with its provisions.
Population Affected by the Portability Provision
    The population affected by this provision are nonimmigrants in H-2B 
status who are present in the United States and the employers with 
valid TLCs seeking to hire H-2B workers. We use the population of 
66,000 H-2B workers authorized by statute and 20,000 additional H-2B 
workers authorized by this supplemental cap regulation as a proxy for 
the H-2B population that could be currently present in the United 
States.\143\ We use the number of approved, pending, and projected TLCs 
(2,881) to estimate the potential number of Form I-129 H-2B petitions 
that incur impacts associated with this porting provision. USCIS uses 
the number of Forms I-129 filed for extension of stay due to change of 
employer relative to the Forms I-129 filed for new employment from FY 
2011 to FY 2020, the ten years prior to the implementation of first 
portability provision in a H-2B supplemental cap TFR, to estimate the 
baseline rate. We compare the average rate from FY 2011-FY 2020 to the 
rate from FY 2021. Table 4 presents the number of Form I-129 filed 
extensions of stay due to change of employer and Form I-129 filed for 
new employment for Fiscal year 2011 through 2020. The average rate of 
extension of stay due to change of employer compared to new employment 
is approximately 10.5 percent.
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    \143\ H-2B workers may have varying lengths in time approved on 
their H-2B visas. This number may overestimate H-2B workers who have 
already completed employment and departed and may underestimate H-2B 
workers not reflected in the current cap and long-term H-2B workers. 
In FY 2020, 346 requests for change of status to H-2B were approved 
by USCIS and 3,505 crossings of visa-exempt H-2B workers were 
processed by Customs and Border Protection (CBP). See 
Characteristics of H-2B Nonagricultural Temporary Workers FY2020 
Report to Congress at https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf. USCIS assumes 
some of these workers, along with current workers with a valid H-2B 
visa under the cap, could be eligible to port under this new 
provision. USCIS does not know the exact number of H-2B workers who 
would be eligible to port at this time but uses the cap and 
supplemental cap allocations as a possible proxy for this 
population.

[[Page 4751]]



 Table 4--Numbers of Form I-129 H-2B Petitions Filed for Extension of Stay Due to Change of Employer and Form I-
                                   129 H-2B Petitions Filed for New Employment
                                                [FY 2011-FY 2020]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Rate of
                                                                   Form I-129 H-                   extension to
                                                                   2B petitions                     stay due to
                                                                     filed for     Form I-129 H-     change of
                           Fiscal year                             extension of    2B petitions      employer
                                                                    stay due to    filed for new      filings
                                                                     change of      employment      relative to
                                                                     employer                     new employment
                                                                                                      filings
----------------------------------------------------------------------------------------------------------------
2011............................................................             360           3,887           0.093
2012............................................................             293           3,688           0.079
2013............................................................             264           4,120           0.064
2014............................................................             314           4,666           0.067
2015............................................................             415           4,596           0.090
2016............................................................             427           5,750           0.074
2017............................................................             556           5,298           0.105
2018............................................................             744           5,136           0.145
2019............................................................             812           6,251           0.130
2020............................................................             804           3,997           0.201
                                                                 -----------------------------------------------
    Ten-Year Average............................................  ..............  ..............           0.105
----------------------------------------------------------------------------------------------------------------
Source: USCIS, Office of Performance and Quality, Data pulled on December 6, 2021.

    In FY 2021, the first year a H-2B supplemental cap included a 
portability provision, there were 1,113 Forms I-129 filed for extension 
of stay due to change of employer compared to 7,208 Forms I-129 filed 
for new employment.\144\ This is a rate of 15.4 percent, which is above 
our earlier 10.5 percent rate, and is our estimate of the rate expected 
in future years with a portability provision in the supplemental visa 
allocation.\145\ Using the 2,881 as our estimate for the number of 
Forms I-129 filed for H-2B new employment in the first half of FY 2022, 
we estimate that 303 Forms I-129 for extension of stay due to change of 
employer would be filed in absence of this provision.\146\ With this 
portability provision, we estimate that 444 Forms I-129 for extension 
of stay due to change of employer would be filed.\147\ This difference 
results in 141 additional Forms I-129 as a result of this 
provision.\148\
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    \144\ USCIS, Office of Performance and Quality, Data pulled on 
December 6, 2021.
    \145\ Calculation: 1,113 Form I-129 filed for extension of stay 
due to change of employer/7,208 Form I-129 filed for new employment 
= 15.4 percent.
    \146\ Calculation: 2,881 Form I-129 H-2B petitions filed for new 
employment * 10.5 percent = 303 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision.
    \147\ Calculation: 2,881 Form I-129 H-2B petitions filed for new 
employment * 15.4 percent = 444 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision.
    \148\ Calculation: 444 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision - 303 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer, 
no portability provision = 141 Form I-129 H-2B petition increase as 
a result of portability provision.
---------------------------------------------------------------------------

Population Affected by the Audits
    DHS and DOL each intend to conduct 250 audits of employers hiring 
H-2B workers under this time-limited FY 2022 H-2B supplemental cap 
rule. The determination of which employers are audited will be done at 
the discretion of the Departments, though the agencies will coordinate 
so that no employer is audited by both DOL and DHS. Therefore, a total 
of 500 audits on employers that petition for H-2B workers under this 
TFR will be conducted by the Federal Government.
Population Expected To Familiarize Themselves With This Rule
    DHS expects the population that employers with approved, pending, 
or projected Applications for Temporary Employment Certification will 
need to familiarize themselves with this rule; an estimated 2,881 
employers. We expect familiarization with the rule will be performed by 
a HR specialist, in-house lawyer, or outsourced lawyer, and this will 
be done at the same rate as petitioners who file a Form G-28; an 
estimated 44.43 percent performed by lawyers. Therefore we estimate 
that 1,280 lawyers will incur familiarization costs and 1,601 HR 
specialists will incur familiarization costs.\149\
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    \149\ Calculation for lawyers: 2,881 approved, pending, and 
projected applicants * 44.43 percent represents by a lawyer = 1,280 
(rounded) represented by a lawyer.
    Calculation for HR specialists: 2,881 approved, pending, and 
projected applicants--1,280 represented by a lawyer = 1,601 
represented by a HR specialist
---------------------------------------------------------------------------

Cost-Benefit Analysis
    The provisions of this rule require the submission of a Form I-129 
H-2B petition. The costs for this form include filing costs and the 
opportunity cost of time to complete and submit the form. The current 
filing fee for Form I-129 is $460 and employers filing H-2B petitions 
must submit an additional fee of $150.\150\ The total estimated cost 
from filing fees for H-2B petitions using Form I-129 is $610.\151\ The 
estimated time to complete and file Form I-129 for H-2B classification 
is 4.34 hours.\152\ The petition must be filed by a U.S. employer, a 
U.S. agent, or a foreign employer filing through the U.S. agent. DHS 
estimates that 44.43 percent of Form I-129 H-2B petitions will be filed 
by an in-house or outsourced lawyer, and the remainder (55.57 percent) 
will be filed by an HR specialist or equivalent occupation. DHS 
presents estimated costs for HR specialists filing Form I-129 petitions 
and an estimated range of costs for in-house lawyers or outsourced 
lawyers filing Form I-129 petitions.
---------------------------------------------------------------------------

    \150\ See Form I-129 instructions at https://www.uscis.gov/i-129 
(accessed December 1, 2021). See also 8 U.S.C. 1184(c)(13).
    \151\ Calculation: $460 current filing fee for Form I-129 + $150 
additional filing fee for employers filing H-2B petitions = $610 
total estimated filing fees for H-2B petitions using Form I-129.
    \152\ The public reporting burden for this form is 2.34 hours 
for Form I-129 and an additional 2.00 hours for H Classification 
Supplement, totaling 4.34 hours. See Form I-129 instructions at 
https://www.uscis.gov/i-129 (accessed December 1, 2021).
---------------------------------------------------------------------------

    To estimate the total opportunity cost of time to HR specialists 
who complete and file Form I-129, DHS uses the mean hourly wage rate of 
HR specialists of

[[Page 4752]]

$33.38 as the base wage rate.\153\ If petitioners hire an in-house or 
outsourced lawyer to file Form I-129 on their behalf, DHS uses the mean 
hourly wage rate of $71.59 as the base wage rate.\154\ Using the most 
recent Bureau of Labor Statistics (BLS) data, DHS calculated a 
benefits-to-wage multiplier of 1.45 to estimate the full wages to 
include benefits such as paid leave, insurance, and retirement.\155\ 
DHS multiplied the average hourly U.S. wage rate for HR specialists and 
for in-house lawyers by the benefits-to-wage multiplier of 1.45 to 
estimate the full cost of employee wages. The total compensation for an 
HR specialist is $48.40 per hour, and the total compensation for an in-
house lawyer is $103.81 per hour.\156\ In addition, DHS recognizes that 
an entity may not have in-house lawyers and seek outside counsel to 
complete and file Form I-129 on behalf of the petitioner. Therefore, 
DHS presents a second wage rate for lawyers labeled as outsourced 
lawyers. DHS recognizes that the wages for outsourced lawyers may be 
much higher than in-house lawyers and therefore uses a higher 
compensation-to-wage multiplier of 2.5 for outsourced lawyers.\157\ DHS 
estimates the total compensation for an outsourced lawyer is $178.98 
per hour.\158\ If a lawyer submits Form I-129 on behalf of the 
petitioner, Form G-28 must accompany the Form I-129 petition.\159\ DHS 
estimates the time burden to complete and submit Form G-28 for a lawyer 
is 50 minutes (0.83 hour, rounded).\160\ For this analysis, DHS adds 
the time to complete Form G-28 to the opportunity cost of time to 
lawyers for filing Form I-129 on behalf of a petitioner. This results 
in a time burden of 5.17 hours for in-house lawyers and outsourced 
lawyers to complete Form G-28 and Form I-129.\161\ Therefore, the total 
opportunity cost of time per petition for an HR specialist to complete 
and file Form I-129 is approximately $210.06, for an in-house lawyer to 
complete and file Forms I-129 and G-28 is about $536.70, and for an 
outsourced lawyer to complete and file is approximately $925.33.\162\ 
The total cost, including filing fees and opportunity costs of time, 
per petitioner to file Form I-129 is approximately $820.06 if HR 
specialists file, $1,146.70 if an in-house lawyer files, and $1,535.33 
if an outsourced lawyer files the form.\163\
---------------------------------------------------------------------------

    \153\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2020 National Occupational Employment and Wage Statistics'' 
Human Resources Specialist (13-1071), Mean Hourly Wage, available at 
https://www.bls.gov/oes/2020/may/oes_nat.htm#13-0000 (accessed 
December 1, 2021).
    \154\ U.S. Department of Labor, Bureau of Labor Statistics. 
``May 2020 National Occupational Employment and Wage Estimates'' 
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/oes/2020/may/oes_nat.htm#23-0000 (accessed December 1, 
2021).
    \155\ Calculation: $38.91 mean Total Employee Compensation per 
hour for civilian workers/$26.85 mean Wages and Salaries per hour 
for civilian workers = 1.45 benefits-to-wage multiplier. See 
Economic News Release, Bureau of Labor Statistics, U.S. Department 
of Labor, Employer Costs for Employee Compensation--June 2021 Table 
1. Employer Costs for Employee Compensation by ownership, Civilian 
workers, available at https://www.bls.gov/news.release/archives/ecec_09162021.pdf (accessed December 1, 2021).
    \156\ Calculation for the total wage of an HR specialist: $33.38 
x 1.45 = $48.40 (rounded).
    Calculation for the total wage of an in-house lawyer: $71.59 x 
1.45 = $103.81 (rounded).
    \157\ The DHS ICE ``Safe-Harbor Procedures for Employers Who 
Receive a No-Match Letter'' used a multiplier of 2.5 to convert in-
house lawyer wages to the cost of outsourced lawyer based on 
information received in public comment to that rule. We believe the 
explanation and methodology used in the Final Small Entity Impact 
Analysis remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule, see page G-4 [September 1, 2015] [https://www.regulations.gov/document/ICEB-2006-0004-0921]. Also see 
``Exercise of Time-Limited Authority To Increase the Fiscal Year 
2021 Numerical Limitation for the H-2B Temporary Nonagricultural 
Worker Program and Portability Flexibility for H-2B Workers Seeking 
To Change Employers.'' May 25, 2021, 86 FR 28198. Available at 
https://www.regulations.gov/document/USCIS-2021-0007-0001.
    \158\ Calculation: Average hourly wage rate of lawyers x 
benefits-to-wage multiplier for outsourced lawyer = $71.59 x 2.5 = 
$178.98 (rounded).
    \159\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed December 1, 2021).
    \160\ USCIS, G-28, Notice of Entry of Appearance as Attorney or 
Accredited Representative Instructions. See https://www.uscis.gov/g-28.
    \161\ Calculation: 0.83 hours to file Form G-28 + 4.34 hours to 
file Form I-129 = 5.17 hours to file both forms.
    \162\ Calculation if an HR specialist files Form I-129: $48.40 x 
4.34 hours = $210.06 (rounded).
    Calculation if an in-house lawyer files Forms I-129 and G-28: 
$103.81 x 5.17 hours = $536.70 (rounded).
    Calculation if an outsourced lawyer files Forms I-129 and G-28: 
$178.98 x 5.17 hours = $925.33 (rounded).
    \163\ Calculation if an HR specialist files Form I-129 and 
filing fee: $210.06 opportunity cost of time + $610 in filing fees = 
$820.06.
    Calculation if an in-house lawyer files Forms I-129, G-28, and 
filing fee: $536.70 opportunity cost of time + $610 in filing fees = 
$1,146.70.
    Calculation if outsourced lawyer files Forms I-129, G-28 and 
filing fee: $925.33 opportunity cost of time + $610 in filing fees = 
$1,535.33.
---------------------------------------------------------------------------

Cost to Petitioners
    As mentioned in Section 3, the estimated population impacted by 
this rule is 1,226 eligible petitioners who are projected to apply for 
the additional 20,000 H-2B visas for the first half of FY 2022, with 
6,500 of the additional visas reserved for employers that will petition 
for workers who are nationals of the Northern Triangle countries and 
Haiti, who are exempt from the returning worker requirement.
Costs to Petitioners To File Form I-129 and Form G-28
    As discussed above, DHS estimates that an additional 681 petitions 
will be filed by HR specialists using Form I-129 and an additional 545 
petitions will be filed by lawyers using Form I-129 and Form G-28. DHS 
estimates the total cost to file Form I-129 petitions if filed by HR 
specialists is $448,461 (rounded).\164\ DHS estimates total cost to 
file Form I-129 petitions and Form G-28 if filed by lawyers will range 
from $624,952 (rounded) if only in-house lawyers file these forms to 
$836,755 (rounded) if only outsourced lawyers file them.\165\ 
Therefore, the estimated total cost to file Form I-129 and Form G-28 
range from $1,183,413 and $1,395,216.\166\
---------------------------------------------------------------------------

    \164\ Calculation: $820.06 opportunity costs for HR specialist 
plus filing fees * 681 Form I-129 filed by HR specialists = $558,461 
(rounded) total cost of Form I-129 filed by HR specialists.
    \165\ Calculation: $1,146.70 opportunity costs for in-house 
lawyers plus filing fees * 545 Form I-129 and Form G-28 filed by in-
house lawyers = $624,952 (rounded) total cost of Form I-129 and Form 
G-28 filed by in-house lawyers.
    Calculation: $1,535.33 opportunity costs for outsourced lawyers 
plus filing fees * 545 Form I-129 and Form G-28 filed by outsourced 
lawyers = $836,755 (rounded) total cost of Form I-129 and Form G-28 
filed by outsourced lawyers.
    \166\ Calculation: $558,461 total cost of Form I-129 filed by HR 
specialists + $624,952 total cost of Form I-129 and Form G-28 filed 
by in-house lawyers = $1,183,413 estimated total costs to file Form 
I-129 and G-28.
    Calculation: $558,461 total cost of Form I-129 filed by HR 
specialists + $836,755 total cost of Form I-129 and G-28 filed by 
outsourced lawyers = $1,395,216 estimated total costs to file Form 
I-129 and G-28.
---------------------------------------------------------------------------

Costs To File Form I-907
    Employers may use Form I-907 to request premium processing of Form 
I-129 petitions for H-2B visas. The filing fee for Form I-907 for H-2B 
petitions is $1,500 and the time burden for completing the form is 35 
minutes (0.58 hour).\167\ Using the wage rates established previously, 
the opportunity cost of time to file Form I-907 is approximately $28.07 
for an HR specialist, $60.21 for an in-house lawyer, and $103.81 for an 
outsourced lawyer.\168\ Therefore, the total filing cost to complete 
and submit Form I-907 per petitioner is approximately $1,528.07

[[Page 4753]]

for HR specialists, $1,560.21 for in-house lawyers, and $1,603.81 for 
outsourced lawyers.\169\
---------------------------------------------------------------------------

    \167\ See Form I-907 instructions at https://www.uscis.gov/i-907 
(accessed December 1, 2021).
    \168\ Calculation for opportunity cost of time if an HR 
specialist files Form I-907: $48.40 x 0.58 hours = $28.07(rounded).
    Calculation for opportunity cost of time if an in-house lawyer 
files Form I-907: $103.81 x 0.58 hours= $60.21(rounded).
    Calculation for opportunity cost of time if an outsourced lawyer 
files Form I-907: $178.98 x 0.58 hours = $103.81(rounded).
    \169\ Calculation if an HR specialist files: $28.07 + $1,500 = 
$1,528.07.
    Calculation if an in-house lawyer files: $60.21 + $1,500 = 
$1,560.21.
    Calculation if outsourced lawyer files: $103.81 + $1,500 = 
$1,603.81.
---------------------------------------------------------------------------

    As discussed above, DHS estimates that an additional 638 Form I-907 
will be filed by HR specialists and an additional 510 Form I-907 will 
be filed by lawyers. DHS estimates the total cost of Form I-907 filed 
by HR specialists is about $974,909 (rounded).\170\ DHS estimates total 
cost to file Form I-907 filed by lawyers range from about $795,707 
(rounded) for only in-house lawyers to $817,943 (rounded) for only 
outsourced lawyers.\171\ The estimated total cost to file Form I-907 
range from $1,770,616 and $1,792,852.\172\
---------------------------------------------------------------------------

    \170\ Calculation: $1,528.07 opportunity costs for HR specialist 
plus filing fees * 638 Form I-907 filed by HR specialists = $974,909 
(rounded) total cost of Form I-907 filed by HR specialists.
    \171\ Calculation: $1,560.21 opportunity costs for in-house 
lawyers plus filing fees * 510 Form I-907 filed by in-house lawyers 
= $795,707 (rounded) total cost of Form I-907 filed by in-house 
lawyers.
    Calculation: $1,603.81 opportunity costs for outsourced lawyers 
plus filing fees * 510 Form I-907 filed by outsourced lawyers = 
$817,943 (rounded) total cost of Form I-907 filed by outsourced 
lawyers.
    \172\ Calculation: $974,909 total cost of Form I-907 filed by HR 
specialists + $795,707 total cost of Form I-907 filed by in-house 
lawyers = $1,770,616 estimated total costs to file Form I-907.
    Calculation: $974,909 total cost of Form I-129 filed by HR 
specialists + $817,943 total cost of Form I-907 filed by outsourced 
lawyers = $1,792,852 estimated total costs to file Form I-907.
---------------------------------------------------------------------------

Cost To File Form ETA-9142-B-CAA-5
    Form ETA-9142-B-CAA-5 is an attestation form that includes 
recruiting requirements, the irreparable harm standard, and document 
retention obligations. DOL estimates the time burden for completing and 
signing the form is 0.25 hour, 0.25 hours for retaining records, and 
0.5 hours to comply with the returning workers' attestation, for a 
total time burden of 1 hour. Using the total compensation per hour for 
an HR specialist ($48.40), the opportunity cost of time for an HR 
specialist to complete the attestation form, notify third parties, and 
retain records relating to the returning worker requirements is 
approximately $48.40.\173\
---------------------------------------------------------------------------

    \173\ Calculation: $48.40 opportunity cost of time for HR 
specialist x 1-hour time burden for the new attestation form and 
notifying third parties and retaining records related to the 
returning worker requirements = $48.40.
---------------------------------------------------------------------------

    Additionally, the form requires that petitioners assess and 
document supporting evidence for meeting the irreparable harm standard, 
and retain those documents and records, which we assume will require 
the resources of a financial analyst (or another equivalent 
occupation). Using the same methodology previously described for wages, 
the total compensation per hour for a financial analyst is $67.37.\174\ 
DOL estimates the time burden for these tasks is at least 4 hours, and 
1 hour for gathering and retaining documents and records. Therefore, 
the total opportunity cost of time for a financial analyst to assess, 
document, and retain supporting evidence is approximately $336.85.\175\
---------------------------------------------------------------------------

    \174\ Calculation: $46.46 (average per hour wage for a financial 
analyst, based on BLS wages) x 1.45 (benefits-to-wage multiplier) = 
$67.37. U.S. Department of Labor, Bureau of Labor Statistics, ``May 
2020 National Occupational Employment and Wage Statistics'' 
Financial and Investment Analysts, Financial Risk Specialists, and 
Financial Specialists, All Other (13-2098): https://www.bls.gov/oes/2020/may/oes_nat.htm#13-0000 (accessed April 9, 2021).
    \175\ Calculation: $67.37 (fully loaded hourly wage for a 
financial analyst) x 5 hours (time burden for assessing, documenting 
and retention of supporting evidence demonstrating the employer is 
suffering irreparable harm or will suffer impending irreparable 
harm) = $336.85.
---------------------------------------------------------------------------

    As discussed previously, DHS believes that the estimated 1,226 
remaining certifications for the first half of FY 2022 would include 
potential employers that might request to employ H-2B workers under 
this rule. This number of certifications is a reasonable proxy for the 
number of employers that may need to review and sign the attestation. 
Using this estimate for the total number of certifications, we estimate 
the opportunity cost of time for completing the attestation for HR 
specialists is approximately $59,338 (rounded) and for financial 
analysts is about $412,978 (rounded).\176\ The total cost is estimated 
to be approximately $472,316.\177\
---------------------------------------------------------------------------

    \176\ Calculations: Cost for HR Specialists: $48.40 opportunity 
cost of time for an HR specialist to comply with attestation 
requirements * 1,226 estimated additional petitions = $59,338 
(rounded) total cost for HR specialists to comply with attestation 
requirements.
    Calculation: $336.85 opportunity cost of time for a financial 
analyst to comply with attestation requirements * 1,226 estimated 
additional petitions = $412,978 (rounded) for financial analysts to 
comply with attestation requirements.
    \177\ Calculation: $59,338 total cost for HR specialist to 
comply with attestation requirement + $412,978 total cost for 
financial analysts to comply with attestation requirements = 
$472,316 total cost to comply with attestation requirements.
---------------------------------------------------------------------------

Cost To Conduct Recruitment
    An employer that files Form ETA-9142B-CAA-5 and the I-129 petition 
45 or more days after the certified start date of work must conduct 
additional recruitment of U.S. workers. This consists of placing a new 
job order with the State Workforce Agency, contacting the American Job 
Center, and contacting laid-off workers. Employers must place a new job 
order for the job opportunity with the State Workforce Agency (SWA).
    Employers are required to make reasonable efforts to contact, by 
mail or other effective means, their former U.S. workers, including 
those workers who were furloughed and laid off, beginning January 1, 
2020. Employers must also disclose the terms of the job order to these 
workers as required by the rule.
    During the period of time the SWA is actively circulating the job 
order, employers must contact, by email or other available electronic 
means, the nearest local American Job Center (AJC) in order to request 
staff assistance advertising and recruiting qualified U.S. workers for 
the job opportunity, and to provide to the AJC the unique 
identification number associated with the job order placed with the 
SWA.
    Finally, the employer is required to provide a copy of the job 
order to the bargaining representative for its employees in the 
occupation and area of intended employment, consistent with 20 CFR 
655.45(a), or if there is no bargaining representative, post the job 
order in the places and manner described in 20 CFR 655.45(b).
    DOL estimates the total time burden for activities related to 
conducting recruitment is 3 hours. Assuming this work will be done by 
an HR specialist or an equivalent occupation, the estimated cost to 
each petitioner is approximately $145.20.\178\ Using the 1,226 as the 
estimated number of petitioners, the estimated total cost of this 
provision is approximately $178,015 (rounded).\179\ It is possible that 
if U.S. employees apply for these positions, H-2B employers may incur 
some costs associated with reviewing applications, interviewing, 
vetting, and hiring applicants who are referred to H-2B employers by 
the recruiting activities required by this rule. However, DOL is unable 
to quantify the impact.
---------------------------------------------------------------------------

    \178\ Calculation: $48.40 hourly opportunity cost of time for an 
HR specialist * 3-hour time burden = $145.20 per petitioner cost to 
conduct additional recruitment.
    \179\ Calculation: 1,226 estimated number of petitioners * 
$145.20 per petitioner cost to conduct additional recruitment = 
$178,015 (rounded) total cost to conduct additional recruitment.
---------------------------------------------------------------------------

Cost of the COVID Protection Provision
    Employers must notify employees, in a language understood by the 
worker as necessary or reasonable, that all persons in the United 
States, including nonimmigrants, have equal access to COVID-19 vaccines 
and vaccine distribution sites. We assume that

[[Page 4754]]

employers will provide a printed notification to inform their employees 
and that printing and posting the notification can be done during the 
normal course of business. Given that the regulatory text associated 
with this provision is less than 150 words, we expect that an employer 
would only need to post a one-page notification. The printing cost 
associated with posting the notification (assuming that the 
notification is written) is $0.49 per posting.\180\ The estimated total 
cost to petitioners to print copies is approximately $601 
(rounded).\181\ Print costs may be higher if employers have to print 
posters in multiple languages.
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    \180\ Cost to make copies $0.49. See https://www.fedex.com/en-us/office/copy-and-print-services.html (accessed December 6, 2021).
    \181\ Calculation: $0.49 per posting * 1,226 petitioners = $601 
(rounded) cost of notifications copies.
---------------------------------------------------------------------------

Cost of the Portability Provision
    Petitioners seeking to hire H-2B nonimmigrants who are currently 
present in the United States with a valid H-2B visa would need to file 
a Form I-129 which includes paying the associated fee as discussed 
above. Also previously discussed, we assume that all employers with an 
approved TLC (2,881) would be able to file a petition under this 
provision, and estimate that approximately 141 additional Form I-129 H-
2B petitions will be filed as a result of this provision.
    As discussed previously, if a petitioner is represented by a 
lawyer, the lawyer must file Form G-28; if premium processing is 
desired, a petitioner must file Form I-907 and pay the associated fee. 
We expect these actions to be performed by an HR specialist, in-house 
lawyer, or an outsourced lawyer. Moreover, as previously estimated, we 
expect that about 44.43 percent of these Form I-129 petitions will be 
filed by an in-house or outsourced lawyer. Therefore, we expect that 63 
of these petitions will be filed by a lawyer and the remaining 78 will 
be filed by a HR specialist. As previously discussed, the estimated 
cost to file a Form I-129 H-2B petition is $820.06 for an HR 
specialist; and the estimated cost to file a Form I-129 H-2B petition 
with accompanying Form G-28 is approximately $1,146.70 for an in-house 
lawyer and $1,535.33 for an outsourced lawyer. Therefore, we estimate 
the cost of the additional Forms I-129 from the portability provision 
for HR specialists is $63,965.\182\ The estimated cost of the 
additional Forms I-129 accompanied by Forms G-28 from the portability 
provision for lawyers is $72,242 if filed by in-house lawyers and 
$96,726 if filed by outsourced lawyers.\183\
---------------------------------------------------------------------------

    \182\ Calculation: $820.06 estimated cost for an HR specialist 
to file a Form I-129 H-2B petition * 78 petitions = $63,965.
    \183\ Calculation for an in-house lawyer: $1,146.70 estimated 
cost for an in-house lawyer to file a Form I-129 H-2B petition and 
accompanying Form G-28 * 63 petitions = $72,242 (rounded).
    Calculation for an outsourced lawyer: $1,535.33 estimated cost 
for an outsourced lawyer to file a Form I-129 H-2B petition and 
accompanying Form G-28 * 63 petitions = $96,726 (rounded).
---------------------------------------------------------------------------

    Previously in this analysis, we estimated that about 93.67 percent 
of Form I-129 H-2B petitions are filed with Form I-907 for premium 
processing. As a result of this provision, we expect that an additional 
132 Forms I-907 will be filed.\184\ We expect 59 of those Forms I-907 
will be filed by a lawyer and the remaining 73 will be filed by an HR 
specialist.\185\ As previously discussed, the estimated cost to file a 
Form I-907 is $1,528.07 for an HR specialist; and the estimated cost to 
file a Form I-907 is approximately $1,560.21 for an in-house lawyer and 
$1,603.81 for an outsourced lawyer. The estimated total cost of the 
additional Forms I-907 if HR specialists file is $111,549.\186\ The 
estimated total cost of the additional Forms I-907 is $92,052 if filed 
by in-house lawyers and $94,625 if filed by outsourced lawyers.\187\
---------------------------------------------------------------------------

    \184\ Calculation: 144 estimated additional Form I-129 H-2B 
petitions * 93.67 percent accompanied by Form I-907 = 132 (rounded) 
additional Form I-907.
    \185\ Calculation: 132 additional Form I-907 * 44.43 percent 
filed by a lawyer = 59 (rounded) Form I-907 filed by a lawyer. 132 
Form I-907--59 Form I-907 filed by a lawyer = 73 Form I-907 filed by 
a HR specialist.
    \186\ Calculation: $1,528.07 for a HR specialist to file a Form 
I-907 * 73 forms = $111,549 (rounded).
    \187\ Calculation for an in-house lawyer: $1,560.21 for an in-
house lawyer to file a Form I-907 * 59 forms = $92,052 (rounded).
    Calculation for an outsourced lawyer: $1,603.81 for an 
outsourced lawyer to file a Form I-907 * 59 forms = $94,625 
(rounded).
---------------------------------------------------------------------------

    The estimated total cost of this provision ranges from $339,808 to 
$366,865 depending on what share of the forms are filed by in-house or 
outsourced lawyers.\188\
---------------------------------------------------------------------------

    \188\ Calculation for HR specialists and in-house lawyers: 
$63,965 for HR specialists to file Form I-129 H-2B petitions + 
$72,242 for in-house lawyers to file Form I-129 and the accompanying 
Form G-28 + $111,549 for HR specialists to file Form I-907 + $92,052 
for in-house lawyers to file Form I-907 = $339,808.
    Calculation for HR specialists and outsourced lawyers: $63,965 
for HR specialists to file Form I-129 H-2B petitions + $96,726 for 
outsourced lawyers to file Form I-129 and the accompanying Form G-28 
+ $111,549 for HR specialists to file Form I-907 + $94,625 for 
outsourced lawyers to file Form I-907 = $366,865.
---------------------------------------------------------------------------

Cost of Audits to Petitioners
    DHS and DOL will each conduct audits on 250 separate employers of 
H-2B workers hired under this supplemental cap, for a total of 500 
employers. Employers will need to provide requested information to 
comply with the audit. The expected time burden to comply with audits 
is estimated to be 12 hours.\189\ We expect that providing these 
documents will be accomplished by an HR specialist or equivalent 
occupation. Given an hourly opportunity cost of time of $48.40, the 
estimated cost of complying with audits is $580.80 per audited 
employer.\190\ Therefore, the total estimated cost to employers to 
comply with audits is $290,400.\191\
---------------------------------------------------------------------------

    \189\ The number in hours for audits was provided by the USCIS, 
Service Center Operations.
    \190\ Calculation: $48.40 hourly opportunity cost of time for an 
HR specialist * 12 hours to comply with an audit = $580.80 per 
audited employer.
    \191\ Calculation: 500 audited employers * $580.80 opportunity 
cost of time to comply with an audit = $290,400.
---------------------------------------------------------------------------

Familiarization Costs
    We expect that petitioners or their representatives would need to 
read and understand this rule if they seek to take advantage of the 
supplemental cap. As a result we expect this rule would impose one-time 
familiarization costs associated with reading and understanding this 
rule. As shown previously, we estimate that approximately 2,881 
petitioners may take advantage of the provisions of this rule, and that 
1,280 of these petitioners are expected to be represented by a lawyer 
and 1,601 are expected to be represented by a HR representative.
    To estimate the cost of rule familiarization, we estimate the time 
it will take to read and understand the rule by assuming a reading 
speed of 238 words per minute.\192\ This rule has approximately 38,000 
words. Using a reading speed of 238 words per minute, DHS estimates it 
will take approximately 2.7 hours to read and become familiar with this 
rule.\193\
---------------------------------------------------------------------------

    \192\ Brysbaert, Marc (2019, April 12). How many words do we 
read per minute? A review and meta-analysis of reading rate. https://doi.org/10.31234/osf.io/xynwg (accessed July 30, 2021). We use the 
average speed for silent reading of English nonfiction by adults.
    \193\ Calculation: 32,000 words/238 words per minute = 134 
(rounded) minutes. 134 minutes/60 minutes per hour = 2.2 (rounded) 
hours.
---------------------------------------------------------------------------

    The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $48.40, $103.81, and $178.98 
respectively. The estimated opportunity cost of time for each of these 
filers to familiarize themselves with the rule are $130.68, $280.29, 
and $483.25 respectively.\194\ The estimated total

[[Page 4755]]

opportunity cost of time for 1,601 HR specialists to familiarize 
themselves with this rule is approximately $209,219. The estimated 
total opportunity cost of time for 1,280 lawyers to familiarize 
themselves with this rule is approximately $358,767 if they are all in-
house lawyers and $618,555 if they are all outsourced lawyers. The 
estimated total opportunity costs of time for petitioners or their 
representatives to familiarize themselves with this rule ranges from 
$567,986 to $827,774.
---------------------------------------------------------------------------

    \194\ Calculation: Total respective hourly compensation (HR 
$48.40, In-house Lawyer $103.81, or Outsourced Lawyer $178.98)*2.2 
hours.
---------------------------------------------------------------------------

Estimated Total Costs to Petitioners
    The monetized costs of this rule come from filing and complying 
with Form I-129, Form G-28, Form I-907, and Form ETA-9142-B-CAA-5, as 
well as contacting and refreshing recruitment efforts, posting 
notifications, filings to obtain a porting worker, and complying with 
audits. The estimated total cost to file Form I-129 and an accompanying 
Form G-28 ranges from $1,183,413 to $1,395,216, depending on the filer. 
The estimated total cost of filing Form I-907 ranges from $1,770,616 to 
$1,792,852, depending on the filer. The estimated total cost of filing 
and complying with Form ETA-9142-B-CAA-5 is about $472,316. The 
estimated total cost of conducting additional recruitment is about 
$178,015. The estimated total cost of the COVID-19 protection provision 
is approximately $601. The estimated cost of the portability provision 
ranges from $339,808 to $366,865, depending on the filer. The estimated 
total cost for employers to comply with audits is $290,400. The 
estimated total costs for petitioners or their representatives to 
familiarize themselves with this rule ranges from $567,986 to $827,774, 
depending on the filer. The total estimated cost to petitioners ranges 
from $4,803,155 to $5,324,039, depending on the filer.\195\
---------------------------------------------------------------------------

    \195\ Calculation of lower range: $1,183,413 + $1,770,616 + 
$472,316 + $178,015 + $339,808 + $601 + $290,400 + $567,986= 
$4,803,155.
    Calculation of upper range: $1,395,216 + $1,792,852 + $472,316 + 
$178,015 + $366,865 + $601 + $290,400 + $827,774 = $5,324,039.
---------------------------------------------------------------------------

Cost to the Federal Government
    The INA provides USCIS with the authority for the collection of 
fees at a level that will ensure recovery of the full costs of 
providing adjudication and naturalization services, including 
administrative costs, and services provided without charge to certain 
applicants and petitioners.\196\ DHS notes USCIS establishes its fees 
by assigning costs to an adjudication based on its relative 
adjudication burden and use of USCIS resources. Fees are established at 
an amount that is necessary to recover these assigned costs such as 
clerical, officers, and managerial salaries and benefits, plus an 
amount to recover unassigned overhead (for example, facility rent, IT 
equipment and systems among other expenses) and immigration benefits 
provided without a fee charge. Consequently, since USCIS immigration 
fees are based on resource expenditures related to the benefit in 
question, USCIS uses the fee associated with an information collection 
as a reasonable measure of the collection's costs to USCIS. DHS 
anticipates some additional costs in adjudicating the additional 
petitions submitted because of the increase in cap limitation for H-2B 
visas. However, DHS expects these costs to be recovered by the fees 
associated with the forms, which have been accounted for under costs to 
petitioners and serve as proxy of the costs to the agency to adjudicate 
these forms.
---------------------------------------------------------------------------

    \196\ See INA section 286(m), 8 U.S.C. 1356(m).
---------------------------------------------------------------------------

    Both DOL and DHS intend to conduct a significant number of audits 
during the period of temporary need to verify compliance with H-2B 
program requirements, including the irreparable harm standard as well 
as other key worker protection provisions implemented through this 
rule. While most USCIS activities are funded through fees and DOL is 
funded through appropriations, it is expected that both agencies will 
be able to shift resources to be able to conduct these audits without 
incurring additional costs. As previously mentioned, the agencies will 
conduct a total of 500 audits and each audit is expected to take 12 
hours. This results in a total time burden of 6,000 hours.\197\ USCIS 
anticipates that a Federal employee at a GS-13 Step 5 salary will 
typically conduct these audits for each agency. The base pay for a GS-
13 Step 5 in the Washington, DC locality area is $117,516.\198\ The 
hourly wage for this salary is approximately $56.50.\199\ To estimate 
the total hourly compensation for these positions, we multiply the 
hourly wage ($56.50) by the Federal benefits to wage multiplier of 
1.38.\200\ This results in an hourly opportunity cost of time of $77.97 
for GS 13-5 Federal employees in the Washington, DC locality pay 
area.\201\ The total opportunity costs of time for Federal workers to 
conduct audits is estimated to be $467,820.\202\
---------------------------------------------------------------------------

    \197\ Calculation: 12 hours to conduct an audit * 500 audits = 
6,000 total hours to conduct audits.
    \198\ U.S. Office of Personnel Management, Pay and Leave, 
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA, 2021, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/21Tables/html/DCB.aspx (last accessed December 6, 2021).
    \199\ Calculation: $117,516 GS 13-5 Washington, DC locality 
annual salary/2080 annual hours = $56.50 (rounded).
    \200\ Calculation: $1,717,321 Full-time Permanent Salaries + 
$656,748 Civilian Personnel Benefits = $2,374,069 Compensation.
    $2,374,069 Compensation/$1,717,321 Full-time Permanent Salaries 
= 1.38 (rounded) Federal employee benefits to wage ratio.
    https://www.uscis.gov/sites/default/files/document/reports/USCIS_FY_2021_Budget_Overview.pdf (last accessed December 6, 2021).
    \201\ Calculation: $56.50 hourly wage for a GS 13-5 in the 
Washington, DC locality area * 1.38 Federal employee benefits to 
wage ratio = $77.97 hourly opportunity cost of time for a GS 13-5 
federal employee in the Washington, DC locality area.
    \202\ Calculation: 6,000 hours to conduct audits * $77.97 hourly 
opportunity cost of time = $467,820 total opportunity costs of time 
for Federal employees to conduct audits.
---------------------------------------------------------------------------

Benefits to Petitioners
    The Departments assume that employers will incur the costs of this 
rule and other costs associated with hiring H-2B workers if the 
expected benefits of those workers exceed the expected costs. We assume 
that employers expect some level of net benefit from being able to hire 
additional H-2B workers. However, the Departments do not collect or 
require data from H-2B employers on the profits from hiring these 
additional workers to estimate this increase in net benefits.
    The inability to access H-2B workers for some entities is currently 
causing irreparable harm or will cause their businesses to suffer 
irreparable harm in the near future. Temporarily increasing the number 
of available H-2B visas for this fiscal year may result in a cost 
savings, because it will allow some businesses to hire the additional 
labor resources necessary to avoid such harm. Preventing such harm may 
ultimately preserve the jobs of other employees (including U.S. 
workers) at that establishment. Additionally, returning workers are 
likely to be very familiar with the H-2B process and requirements, and 
may be positioned to begin work more expeditiously with these 
employers. Moreover, employers may already be familiar with returning 
workers as they have trained, vetted, and worked with some of these 
returning workers in past years. As such, limiting the supplemental 
visas to returning workers would assist employers that are suffering 
irreparable harm or will suffer impending irreparable harm.
Benefits to Workers
    The Departments assume that workers will only incur the costs of 
this rule and other costs associated with obtaining a

[[Page 4756]]

H-2B position if the expected benefits of that position exceed the 
expected costs. We assume that H-2B workers expect some level of net 
benefit from being able to work for H-2B employers. However, the 
Departments do not have sufficient data to estimate this increase in 
net benefits and lack the necessary resources to investigate this in a 
timely manner. This rule is not expected to impact wages because DOL 
prevailing wage regulations apply to all H-2B workers covered by this 
rule. Additionally, the RIA shows that employers incur costs in 
conducting additional recruitment of U.S. workers and attesting to 
irreparable harm from current labor shortfall. These costs suggest 
employers are not taking advantage of a large supply of foreign labor 
at the expense of domestic workers.
    The existence of this rule will benefit the workers who receive H-
2B visas. See Arnold Brodbeck et al., Seasonal Migrant Labor in the 
Forest Industry of the United States: The Impact of H-2B Employment on 
Guatemalan Livelihoods, 31 Society & Natural Resources 1012 (2018), and 
in particular this finding: ``Participation in the H-2B guest worker 
program has become a vital part of the livelihood strategies of rural 
Guatemalan families and has had a positive impact on the quality of 
life in the communities where they live. Migrant workers who were 
landless, lived in isolated rural areas, had few economic 
opportunities, and who had limited access to education or adequate 
health care, now are investing in small trucks, building roads, 
schools, and homes, and providing employment for others in their home 
communities. . . . The impact has been transformative and positive.''
    Some provisions of this rule will benefit such workers in 
particular ways. The portability provision of this rule will allow 
nonimmigrants with valid H-2B visas who are present in the United 
States to transfer to a new employer more quickly and potentially 
extend their stay in the United States and, therefore, earn additional 
wages. Importantly, the rule will also increase information employees 
have about equal access to COVID-19 vaccinations and vaccine 
distribution sites. DHS recognizes that some of the effects of these 
provisions may occur beyond the borders of the United States. The 
current analysis does not seek to quantify or monetize costs or 
benefits that occur outside of the United States.
    Note as well that U.S. workers will benefit in multiple ways. For 
example, the additional round of recruitment and U.S. worker referrals 
required by the provisions of this rule will ensure that a U.S. worker 
who is willing and able to fill the position is not displaced by a 
nonimmigrant worker. As noted, the avoidance of current or impending 
irreparable harm made possible through the granting of supplemental 
visas in this rule could ensure that U.S. workers--who otherwise may be 
vulnerable if H-2B workers were not given visas--do not lose their 
jobs.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
certain requirements on Federal agency rules that are subject to the 
notice and comment requirements of the APA. See 5 U.S.C. 603(a), 
604(a). This temporary final rule is exempt from notice and comment 
requirements for the reasons stated above. Therefore, the requirements 
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to 
this temporary final rule. Accordingly, the Departments are not 
required to either certify that the temporary final rule would not have 
a significant economic impact on a substantial number of small entities 
nor conduct a regulatory flexibility analysis.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule that includes any 
Federal mandate that may result in $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
tribal governments, in the aggregate, or by the private sector. This 
rule is exempt from the written statement requirement because DHS did 
not publish a notice of proposed rulemaking for this rule.
    In addition, this rule does not exceed the $100 million expenditure 
in any 1 year when adjusted for inflation ($169.8 million in 2020 
dollars),\203\ and this rulemaking does not contain such a mandate. The 
requirements of Title II of the Act, therefore, do not apply, and the 
Departments have not prepared a statement under the Act.
---------------------------------------------------------------------------

    \203\ See U.S. Bureau of Labor Statistics, Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All 
Items, available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202103.pdf (last visited December 8, 2021).
    Calculation of inflation: (1) Calculate the average monthly CPI-
U for the reference year (1995) and the most recent current year 
available (2020); (2) Subtract reference year CPI-U from current 
year CPI-U; (3) Divide the difference of the reference year CPI-U 
and current year CPI-U by the reference year CPI-U; (4) Multiply by 
100 = [(Average monthly CPI-U for 2020 - Average monthly CPI-U for 
1995)/(Average monthly CPI-U for 1995)] * 100 = [(258.811 - 
152.383)/152.383] * 100 = (106.428/152.383) * 100 = 0.6984 * 100 = 
69.84 percent = 69.8 percent (rounded).
    Calculation of inflation-adjusted value: $100 million in 1995 
dollars * 1.698 = $169.8 million in 2020 dollars.
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

    This rule does not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, 64 FR 43255 (Aug. 4, 1999), this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, 61 FR 4729 (Feb. 5, 1996).

G. National Environmental Policy Act

    DHS and its components analyze proposed actions to determine 
whether the National Environmental Policy Act (NEPA) applies to them 
and, if so, what degree of analysis is required. DHS Directive (Dir) 
023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01 
(Instruction Manual) establish the procedures that DHS and its 
components use to comply with NEPA and the Council on Environmental 
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 
through 1508.
    The CEQ regulations allow Federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. 
The Instruction Manual, Appendix A, Table 1 lists Categorical 
Exclusions that DHS has found to have no such effect. Under DHS NEPA 
implementing procedures, for an action to be categorically excluded, it 
must satisfy each of the

[[Page 4757]]

following three conditions: (1) The entire action clearly fits within 
one or more of the categorical exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. 
Instruction Manual, section V.B.2(a-c).
    This rule temporarily amends the regulations implementing the H-2B 
nonimmigrant visa program to increase the numerical limitation on H-2B 
nonimmigrant visas for FY 2022 for positions with start dates on or 
before March 31, 2022 based on the Secretary of Homeland Security's 
determination, in consultation with the Secretary of Labor, consistent 
with the FY 2021 Omnibus and Public Laws 117-43 and 117-70. It also 
allows H-2B beneficiaries who are in the United States to change 
employers upon the filing of a new H-2B petition and begin to work for 
the new employer for a period generally not to exceed 60 days before 
the H-2B petition is approved by USCIS.
    DHS has determined that this rule clearly fits within categorical 
exclusion A3(d) because it interprets or amends a regulation without 
changing its environmental effect. The amendments to 8 CFR part 214 
would authorize up to an additional 20,000 visas for noncitizens who 
may receive H-2B nonimmigrant visas, of which 13,500 are for returning 
workers (persons issued H-2B visas or were otherwise granted H-2B 
status in Fiscal Years 2019, 2020, or 2021). The proposed amendments 
would also facilitate H-2B nonimmigrants to move to new employment 
faster than they could if they had to wait for a petition to be 
approved. The amendment's operative provisions approving H-2B petitions 
under the supplemental allocation would effectively terminate after 
September 30, 2022 for the cap increase, and 180 days from the rule's 
effective date for the portability provision. DHS believes amending 
applicable regulations to authorize up to an additional 20,000 H-2B 
nonimmigrant visas will not result in any meaningful, calculable change 
in environmental effect with respect to the current H-2B limit or in 
the context of a current U.S. population exceeding 332,000,000 (maximum 
temporary increase of 0.0066%).
    The amendment to applicable regulations is a stand-alone temporary 
authorization and not a part of any larger action, and presents no 
extraordinary circumstances creating the potential for significant 
environmental effects. Therefore, this action is categorically excluded 
and no further NEPA analysis is required.

H. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this temporary final rule is not a ``major rule'' as defined by 
the Congressional Review Act, 5 U.S.C. 804(2), and thus is not subject 
to a 60-day delay in the rule becoming effective. DHS will send this 
temporary final rule to Congress and to the Comptroller General under 
the Congressional Review Act, 5 U.S.C. 801 et seq.

I. Paperwork Reduction Act

Attestation for Employers Seeking To Employ H-2B Nonimmigrants Workers 
Under Section 105 of Division O of the Consolidated Appropriations Act, 
2021 Public Law 116-260, and Public Laws 117-43 and 117-70 Form ETA-
9142-B-CAA-5.
    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by OMB under the PRA 
and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6. DOL has submitted the Information Collection 
Request (ICR) contained in this rule to OMB and obtained approval of a 
new form, Form ETA-9142B-CAA-5, using emergency clearance procedures 
outlined at 5 CFR 1320.13. The Departments note that while DOL 
submitted the ICR, both DHS and DOL will use the information.
    Petitioners will use the new Form ETA-9142B-CAA-5 to make 
attestations regarding, for example, irreparable harm and the returning 
worker requirement (unless exempt because the H-2B worker is a national 
of one of the Northern Triangle countries who is counted against the 
6,500 returning worker exemption cap) described above. Petitioners will 
need to file the attestation with DHS until it announces that the 
supplemental H-2B cap has been reached. In addition, the petitioner 
will need to retain all documentation demonstrating compliance with 
this implementing rule, and must provide it to DHS or DOL in the event 
of an audit or investigation.
    In addition to obtaining immediate emergency approval, DOL is 
seeking comments on this information collection pursuant to 5 CFR 
1320.13. Comments on the information collection must be received by 
March 29, 2022. This process of engaging the public and other Federal 
agencies helps ensure that requested data can be provided in the 
desired format, reporting burden (time and financial resources) is 
minimized, collection instruments are clearly understood, and the 
impact of collection requirements on respondents can be properly 
assessed. The PRA provides that a Federal agency generally cannot 
conduct or sponsor a collection of information, and the public is 
generally not required to respond to an information collection, unless 
it is approved by OMB under the PRA and displays a currently valid OMB 
Control Number. See 44 U.S.C. 3501 et seq. In addition, notwithstanding 
any other provisions of law, no person must generally be subject to a 
penalty for failing to comply with a collection of information that 
does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 
1320.6.
    In accordance with the PRA, DOL is affording the public with notice 
and an opportunity to comment on the new information collection, which 
is necessary to implement the requirements of this rule. The 
information collection activities covered under a newly granted OMB 
Control Number 1205-NEW are required under Public Laws 117-43 and 117-
70, on the same terms as Section 105 of Division O of the FY 2021 
Omnibus, which provided that ``the Secretary of Homeland Security, 
after consultation with the Secretary of Labor, and upon the 
determination that the needs of American businesses cannot be satisfied 
in [FY] 2021 with U.S. workers who are willing, qualified, and able to 
perform temporary nonagricultural labor,'' may increase the total 
number of noncitizens who may receive an H-2B visa in FY 2021 by not 
more than the highest number of H-2B nonimmigrants who participated in 
the H-2B returning worker program in any fiscal year in which returning 
workers were exempt from the H-2B numerical limitation. As previously 
discussed in the preamble of this rule, the Secretary of Homeland 
Security, in consultation with the Secretary of Labor, has decided to 
increase the numerical limitation on H-2B nonimmigrant visas to 
authorize the issuance of up to, but not more than, an additional 
20,000 visas for FY 2022 for certain H-2B workers with start dates on 
or before March 31, 2022, for U.S.

[[Page 4758]]

businesses who attest that they are suffering irreparable harm or will 
suffer impending irreparable harm. As with the previous supplemental 
rules, the Secretary has determined that the additional visas will only 
be available for returning workers, that is workers who were issued H-
2B visas or otherwise granted H-2B status in FY 2019, 2020, or 2021, 
unless the worker is one of the 6,500 nationals of one of the Northern 
Triangle countries and Haiti who are exempt from the returning worker 
requirement.
    Commenters are encouraged to discuss the following:
     Whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     the accuracy of the agency's estimate of the burden of the 
proposed collection of information, including the validity of the 
methodology and assumptions used;
     the quality, utility, and clarity of the information to be 
collected; and
     the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, for example, permitting 
electronic submission of responses.
    The aforementioned information collection requirements are 
summarized as follows:
    Agency: DOL-ETA.
    Type of Information Collection: Extension of an existing 
information collection.
    Title of the Collection: Attestation for Employers Seeking to 
Employ H-2B Nonimmigrants Workers Under Section 105 of Division O of 
the Consolidated Appropriations Act, 2021 Public Law 116-260, and 
Public Laws 117-43 and 117-70.
    Agency Form Number: Form ETA-9142-B-CAA-5.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 1,226.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 1,226.
    Average Time per Response: 9 hours per application.
    Total Estimated Annual Time Burden: 11,034 hours.
    Total Estimated Other Costs Burden: $0.
Application for Premium Processing Service, Form I-907
    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by OMB under the PRA 
and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6. Form I-907, Application for Premium Processing 
Service, has been approved by OMB and assigned OMB control number 1615-
0048. DHS is making no changes to the Form I-907 in connection with 
this temporary rule implementing the time-limited authority pursuant to 
Public Laws 117-43 and 117-70, on the same terms as section 105 of 
Division O, FY 2021 Omnibus, (which expires on September 30, 2022). 
However, USCIS estimates that this temporary rule may result in 
approximately 1,280 additional filings of Form I-907 in fiscal year 
2022. The current OMB-approved estimate of the number of annual 
respondents filing a Form I-907 is 319,301. USCIS has determined that 
the OMB-approved estimate is sufficient to fully encompass the 
additional respondents who will be filing Form I-907 in connection with 
this temporary rule, which represents a small fraction of the overall 
Form I-907 population. Therefore, DHS is not changing the collection 
instrument or increasing its burden estimates in connection with this 
temporary rule and is not publishing a notice under the PRA or making 
revisions to the currently approved burden for OMB control number 1615-
0048.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Foreign officials, Health professions, Reporting 
and recordkeeping requirements, Students.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Cultural exchange 
program, Employment, Penalties, Reporting and recordkeeping 
requirements, Students.

20 CFR Part 655

    Administrative practice and procedure, Employment, Employment and 
training, Enforcement, Foreign workers, Forest and forest products, 
Fraud, Health professions, Immigration, Labor, Longshore and harbor 
work, Migrant workers, Nonimmigrant workers, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Unemployment, 
Wages, Working conditions.

Department of Homeland Security

8 CFR Chapter I

    For the reasons discussed in the joint preamble, chapter I of title 
8 of the Code of Federal Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

0
1. Effective January 28, 2022 through January 28, 2025, the authority 
citation for part 214 continues to read as follows:

    Authority:  6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182, 
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372; sec. 
643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 
1477-1480; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901 note and 
1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 115-
218, 132 Stat. 1547 (48 U.S.C. 1806).


0
2. Effective January 28, 2022 through January 28, 2025, amend Sec.  
214.2 by:
0
a. Adding paragraph (h)(6)(xi); and
0
b. Adding paragraph (h)(27).
    The additions read as follows:


Sec.  214.2   Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (h) * * *
    (6) * * *
    (xi) Special requirements for additional cap allocations under 
Public Laws 116-260, 117-43 and 117-70--(A) Public Law 116-260, and 
sections 101 and 106(3) of Division A of Public Law 117-43, Continuing 
Appropriations Act, 2022, and section 101 of Division A of Public Law 
117-70, Further Continuing Appropriations Act, 2022 through February 
18, 2022--
    (1) Supplemental allocation for returning workers. Notwithstanding 
the numerical limitations set forth in paragraph (h)(8)(i)(C) of this 
section, for fiscal year 2022 only, the Secretary has authorized up to 
an additional 13,500 visas for aliens who may receive H-2B nonimmigrant 
visas pursuant to section 105 of Division O of the Consolidated 
Appropriations Act, 2021, Public Law 116-260, sections 101 and 106(3) 
of Division A of Public Law 117-43,

[[Page 4759]]

Continuing Appropriations Act, 2022, and section 101 of Division A of 
Public Law 117-70, Further Continuing Appropriations Act, 2022 through 
February 18, 2022 based on petitions requesting FY 2022 employment 
start dates on or before March 31, 2022. An alien may be eligible to 
receive an H-2B nonimmigrant visa under this paragraph (h)(6)(xi)(A)(1) 
if she or he is a returning worker. The term ``returning worker'' under 
this paragraph (h)(6)(xi)(A)(1) means a person who was issued an H-2B 
visa or was otherwise granted H-2B status in fiscal year 2019, 2020, or 
2021. Notwithstanding Sec.  248.2 of this chapter, an alien may not 
change status to H-2B nonimmigrant under this paragraph 
(h)(6)(xi)(A)(1).
    (2) Supplemental allocation for nationals of Guatemala, El 
Salvador, Honduras (Northern Triangle countries), or Haiti. 
Notwithstanding the numerical limitations set forth in paragraph 
(h)(8)(i)(C) of this section, for fiscal year 2022 only, and in 
addition to the allocation described in paragraph (h)(6)(xi)(A)(1) of 
this section, the Secretary has authorized up to an additional 6,500 
aliens who are nationals of Guatemala, El Salvador, Honduras (Northern 
Triangle countries), or of Haiti who may receive H-2B nonimmigrant 
visas pursuant to section 105 of Division O of the Consolidated 
Appropriations Act, 2021, Public Law 116-260, and Public Laws 117-43 
and 117-70, based on petitions with FY 2022 employment start dates on 
or before March 31, 2022. Such workers are not subject to the returning 
worker requirement in paragraph (h)(6)(xi)(A)(1). Petitioners must 
request such workers in an H-2B petition that is separate from H-2B 
petitions that request returning workers under paragraph 
(h)(6)(xi)(A)(1) and must declare that they are requesting these 
workers in the attestation required under 20 CFR 655.69(a)(1). A 
petition requesting returning workers under paragraph (h)(6)(xi)(A)(1), 
which is accompanied by an attestation indicating that the petitioner 
is requesting nationals of Northern Triangle countries or Haiti, will 
be rejected, denied or, in the case of a non-frivolous petition, will 
be approved solely for the number of beneficiaries that are from the 
Northern Triangle or Haiti. Notwithstanding Sec.  248.2 of this 
chapter, an alien may not change status to H-2B nonimmigrant under this 
paragraph (h)(6)(xi)(A)(2).
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(xi), the petitioner must:
    (1) Comply with all other statutory and regulatory requirements for 
H-2B classification, including, but not limited to, requirements in 
this section, under part 103 of this chapter, and under 20 CFR part 655 
and 29 CFR part 503; and
    (2) Submit to USCIS, at the time the employer files its petition, a 
U.S. Department of Labor attestation, in compliance with this section 
and 20 CFR 655.64, evidencing that:
    (i) Its business is suffering irreparable harm or will suffer 
impending irreparable harm (that is, permanent and severe financial 
loss) without the ability to employ all of the H-2B workers requested 
on the petition filed pursuant to this paragraph (h)(6)(xi);
    (ii) All workers requested and/or instructed to apply for a visa 
have been issued an H-2B visa or otherwise granted H-2B status in 
fiscal year 2019, 2020, or 2021, unless the H-2B worker is a national 
of Guatemala, El Salvador, Honduras, or Haiti who is counted towards 
the 6,500 cap described in paragraph (h)(6)(xi)(A)(2) of this section;
    (iii) The employer will comply with all Federal, State, and local 
employment-related laws and regulations, including, where applicable, 
health and safety laws and laws related to COVID-19 worker protections; 
any right to time off or paid time off for COVID-19 vaccination, or to 
reimbursement for travel to and from the nearest available vaccination 
site; and that the employer will notify any H-2B workers approved under 
the supplemental cap in paragraph (h)(6)(xi)(A)(2) of this section, in 
a language understood by the worker as necessary or reasonable, that 
all persons in the United States, including nonimmigrants, have equal 
access to COVID-19 vaccines and vaccine distribution sites;
    (iv) The employer will comply with obligations and additional 
recruitment requirements outlined in 20 CFR 655.64(a)(3) through (5);
    (v) The employer will provide documentary evidence of the facts in 
paragraphs (h)(6)(xi)(B)(2)(i) through (iv) of this section to DHS or 
DOL upon request; and
    (vi) The employer will agree to fully cooperate with any compliance 
review, evaluation, verification, or inspection conducted by DHS, 
including an on-site inspection of the employer's facilities, interview 
of the employer's employees and any other individuals possessing 
pertinent information, and review of the employer's records related to 
the compliance with immigration laws and regulations, including but not 
limited to evidence pertaining to or supporting the eligibility 
criteria for the FY 2022 supplemental allocations outlined in paragraph 
(h)(6)(xi)(B) of this section, as a condition for the approval of the 
petition.
    (vii) The employer must attest on Form ETA-9142-B-CAA-5 that it 
will fully cooperate with any audit, investigation, compliance review, 
evaluation, verification or inspection conducted by DOL, including an 
on-site inspection of the employer's facilities, interview of the 
employer's employees and any other individuals possessing pertinent 
information, and review of the employer's records related to the 
compliance with applicable laws and regulations, including but not 
limited to evidence pertaining to or supporting the eligibility 
criteria for the FY 2022 supplemental allocations outlined in 20 CFR 
655.64(a) and 655.69(a), as a condition for the approval of the H-2B 
petition. The employer must further attest on Form ETA-9142-B-CAA-5 
that it will not impede, interfere, or refuse to cooperate with an 
employee of the Secretary of the U.S. Department of Labor who is 
exercising or attempting to exercise DOL's audit or investigative 
authority pursuant to 20 CFR part 655, subpart A, and 29 CFR 503.25.
    (C) Processing. USCIS will reject petitions filed pursuant to 
paragraph (h)(6)(xi)(A)(1) or (2) of this section that are received 
after the applicable numerical limitation has been reached or after 
March 31, 2022, whichever is sooner. USCIS will not approve a petition 
filed pursuant to this paragraph (h)(6)(xi) on or after October 1, 
2022.
    (D) Numerical limitations under paragraphs (h)(6)(xi)(A)(1) and (2) 
of this section. When calculating the numerical limitations under 
paragraphs (h)(6)(xi)(A)(1) and (2) of this section as authorized under 
Public Law 116-260, as extended by Public Law 117-43, and Public Law 
117-70, USCIS will make numbers for each allocation available to 
petitions in the order in which the petitions subject to the respective 
limitation are received. USCIS will make projections of the number of 
petitions necessary to achieve the numerical limit of approvals, taking 
into account historical data related to approvals, denials, 
revocations, and other relevant factors. USCIS will monitor the number 
of petitions received (including the number of workers requested when 
necessary) and will notify the public of the dates that USCIS has 
received the necessary number of petitions (the ``final receipt 
dates'') under paragraph (h)(6)(xi)(A)(1) or (2). The day the public is 
notified will not control the final receipt dates. When necessary to 
ensure the fair and orderly allocation of numbers subject to the 
numerical limitations in paragraphs (h)(6)(xi)(A)(1) and (2), USCIS may

[[Page 4760]]

randomly select from among the petitions received on the final receipt 
dates the remaining number of petitions deemed necessary to generate 
the numerical limit of approvals. This random selection will be made 
via computer-generated selection. Petitions subject to a numerical 
limitation not randomly selected or that were received after the final 
receipt dates that may be applicable under paragraph (h)(6)(xi)(A)(1) 
or (2) will be rejected. If the final receipt date is any of the first 
5 business days on which petitions subject to the applicable numerical 
limits described in paragraph (h)(6)(xi)(A)(1) or (2) may be received 
(in other words, if either of the numerical limits described in 
paragraph (h)(6)(xi)(A)(1) or (2) is reached on any one of the first 5 
business days that filings can be made), USCIS will randomly apply all 
of the numbers among the petitions received on any of those 5 business 
days.
    (E) Sunset. This paragraph (h)(6)(xi) expires on October 1, 2022.
    (F) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(xi)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xi), including, 
but not limited to, the numerical allocation provisions at paragraphs 
(h)(6)(xi)(A)(1) and (2) of this section in their entirety. In the 
event that any part of this paragraph (h)(6)(xi) is enjoined or held to 
be invalid by any court of competent jurisdiction, the remainder of 
this paragraph (h)(6)(xi) is also intended to be enjoined or held to be 
invalid in such jurisdiction, without prejudice to workers already 
present in the United States under this paragraph (h)(6)(xi), as 
consistent with law.
* * * * *
    (27) Change of employers and portability for H-2B workers. (i) This 
paragraph (h)(27) relates to H-2B workers seeking to change employers 
during the time period specified in paragraph (h)(27)(iv) of this 
section. Notwithstanding paragraph (h)(2)(i)(D) of this section:
    (A) An alien in valid H-2B nonimmigrant status whose new petitioner 
files a non-frivolous H-2B petition requesting an extension of the 
alien's stay on or after January 28, 2022, is authorized to begin 
employment with the new petitioner after the petition described in this 
paragraph (h)(27) is received by USCIS and before the new H-2B petition 
is approved, but no earlier than the start date indicated in the new H-
2B petition; or
    (B) An alien whose new petitioner filed a non-frivolous H-2B 
petition requesting an extension of the alien's stay before January 28, 
2022 that remains pending on January 28, 2022, is authorized to begin 
employment with the new petitioner before the new H-2B petition is 
approved, but no earlier than the start date of employment indicated on 
the new H-2B petition.
    (ii)(A) With respect to a new petition described in paragraph 
(h)(27)(i)(A) of this section, and subject to the requirements of 8 CFR 
274a.12(b)(30), the new period of employment described in paragraph 
(h)(27)(i) of this section may last for up to 60 days beginning on the 
Received Date on Form I-797 (Notice of Action) or, if the start date of 
employment occurs after the I-797 Received Date, for a period of up to 
60 days beginning on the start date of employment indicated in the H-2B 
petition.
    (B) With respect to a new petition described in paragraph 
(h)(27)(i)(B) of this section, the new period of employment described 
in paragraph (h)(27)(i) of this section may last for up to 60 days 
beginning on the later of either January 28, 2022 or the start date of 
employment indicated in the H-2B petition.
    (C) With respect to either type of new petition, if USCIS 
adjudicates the new petition before the expiration of this 60-day 
period and denies the petition, or if the new petition is withdrawn by 
the petitioner before the expiration of the 60-day period, the 
employment authorization associated with the filing of that petition 
under 8 CFR 274a.12(b)(30) will automatically terminate 15 days after 
the date of the denial decision or 15 days after the date on which the 
new petition is withdrawn. Nothing in this paragraph (h)(27) is 
intended to alter the availability of employment authorization related 
to professional H-2B athletes who are traded between organizations 
pursuant to paragraph (h)(6)(vii) of this section and 8 CFR 
274a.12(b)(9).
    (iii) In addition to meeting all other requirements in paragraph 
(h)(6) of this section for the H-2B classification, to commence 
employment and be approved under this paragraph (h)(27), the alien must 
either:
    (A) Have been in valid H-2B nonimmigrant status on or after January 
28, 2022 and be the beneficiary of a non-frivolous H-2B petition 
requesting an extension of the alien's stay that is received on or 
after January 28, 2022, but no later than July 27, 2022; or
    (B) Be the beneficiary of a non-frivolous H-2B petition requesting 
an extension of the alien's stay that is pending as of January 28, 
2022.
    (C) The petitioner must comply with all Federal, State, and local 
employment-related laws and regulations, including, where applicable, 
health and safety laws, laws related to COVID-19 worker protections, 
any right to time off or paid time off for COVID-19 vaccination, or to 
reimbursement for travel to and from the nearest available vaccination 
site; and
    (D) The petitioner may not impede, interfere, or refuse to 
cooperate with an employee of the Secretary of the U.S. Department of 
Labor who is exercising or attempting to exercise DOL's audit or 
investigative authority under 20 CFR part 655, subpart A, and 29 CFR 
503.25.
    (iv) Authorization to initiate employment changes pursuant to this 
paragraph (h)(27) begins at 12 a.m. on January 28, 2022, and ends at 
the end of July 27, 2022.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
3. The authority citation for part 274a continues to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 
CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 
114-74, 129 Stat. 599.


0
4. Effective January 28, 2022 through January 28, 2025, amend Sec.  
274a.12 by adding paragraph (b)(31) to read as follows:


Sec.  274a.12   Classes of aliens authorized to accept employment.

* * * * *
    (b) * * *
    (31)(i) Pursuant to 8 CFR 214.2(h)(27) and notwithstanding 8 CFR 
214.2(h)(2)(i)(D), an alien is authorized to be employed no earlier 
than the start date of employment indicated in the H-2B petition and no 
earlier than January 28, 2022, by a new employer that has filed an H-2B 
petition naming the alien as a beneficiary and requesting an extension 
of stay for the alien, for a period not to exceed 60 days beginning on:
    (A) The later of the ``Received Date'' on Form I-797 (Notice of 
Action) acknowledging receipt of the petition, or the start date of 
employment indicated on the new H-2B petition, for petitions filed on 
or after January 28, 2022; or
    (B) The later of January 28, 2022 or the start date of employment 
indicated on the new H-2B petition, for petitions that are pending as 
of January 28, 2022
    (ii) If USCIS adjudicates the new petition prior to the expiration 
of the 60-day period in paragraph (b)(31)(i) of this section and denies 
the new petition for

[[Page 4761]]

extension of stay, or if the petitioner withdraws the new petition 
before the expiration of the 60-day period, the employment 
authorization under this paragraph (b)(31) will automatically terminate 
upon 15 days after the date of the denial decision or the date on which 
the new petition is withdrawn. Nothing in this section is intended to 
alter the availability of employment authorization related to 
professional H-2B athletes who are traded between organizations 
pursuant to paragraph (b)(9) of this section and 8 CFR 
214.2(h)(6)(vii).
    (iii) Authorization to initiate employment changes pursuant to 8 
CFR 214.2(h)(27) and paragraph (b)(31)(i) of this section begins at 12 
a.m. on January 28, 2022, and ends at the end of July 27, 2022.
* * * * *

Department of Labor

Employment and Training Administration

20 CFR Chapter V

    Accordingly, for the reasons stated in the joint preamble, 20 CFR 
part 655 is amended as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED 
STATES

0
5. The authority citation for part 655 continues to read as follows:

    Authority:  Section 655.0 issued under 8 U.S.C. 
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102 
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105 
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206, 
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8 
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat. 
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR 
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218, 
132 Stat. 1547 (48 U.S.C. 1806).
    Subpart A issued under 8 CFR 214.2(h).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), 
and 1188; and 8 CFR 214.2(h).
    Subpart E issued under 48 U.S.C. 1806.
    Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note, 
Pub. L. 114-74 at section 701.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and 
(b)(1), 1182(n), and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. 
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), 
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 
note, Pub. L. 114-74 at section 701.
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C. 
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).


0
6. Effective January 27, 2022 through September 30, 2022, add Sec.  
655.64 to read as follows:


Sec.  655.64   Special application filing and eligibility provisions 
for Fiscal Year 2022 under the January 28, 2022 supplemental cap 
increase.

    (a) An employer filing a petition with USCIS under 8 CFR 
214.2(h)(6)(xi) to request H-2B workers with FY 2022 employment start 
dates on or before March 31, 2022, must meet the following 
requirements:
    (1) The employer must attest on the Form ETA-9142-B-CAA-5 that its 
business is suffering irreparable harm or will suffer impending 
irreparable harm (that is, permanent and severe financial loss) without 
the ability to employ all of the H-2B workers requested on the petition 
filed pursuant to 8 CFR 214.2(h)(6)(xi). Additionally, the employer 
must attest that it will provide documentary evidence of the applicable 
irreparable harm to DHS or DOL upon request.
    (2) The employer must attest on Form ETA-9142-B-CAA-5 that each of 
the workers requested and/or instructed to apply for a visa, whether 
named or unnamed, on a petition filed pursuant to 8 CFR 
214.2(h)(6)(xi), have been issued an H-2B visa or otherwise granted H-
2B status during one of the last three (3) fiscal years (fiscal year 
2019, 2020, or 2021), unless the H-2B worker is a national of 
Guatemala, El Salvador, Honduras, or Haiti and is counted towards the 
6,500 cap described in 8 CFR 214.2(h)(6)(xi)(A)(2).
    (3) The employer must attest on Form ETA-9142-B-CAA-5 that the 
employer will comply with all the assurances, obligations, and 
conditions of employment set forth on its approved Application for 
Temporary Employment Certification.
    (4) The employer must attest on Form ETA-9142-B-CAA-5 that it will 
comply with all Federal, State, and local employment-related laws and 
regulations, including, where applicable, health and safety laws and 
laws related to COVID-19 worker protections; any right to time off or 
paid time off for COVID-19 vaccination, or to reimbursement for travel 
to and from the nearest available vaccination site; and that the 
employer will notify any H-2B workers approved under the supplemental 
cap in 8 CFR 214.2(h)(6)(xi)(A)(1) and (2), in a language understood by 
the worker as necessary or reasonable, that all persons in the United 
States, including nonimmigrants, have equal access to COVID-19 vaccines 
and vaccine distribution sites.
    (5) An employer that submits Form ETA-9142B-CAA-5 and the I-129 
petition 45 or more days after the certified start date of work, as 
shown on its approved Application for Temporary Employment, must 
conduct additional recruitment of U.S. workers as follows:
    (i) Not later than the next business day after submitting the I-129 
petition for H-2B worker(s), the employer must place a new job order 
for the job opportunity with the State Workforce Agency (SWA), serving 
the area of intended employment. The employer must follow all 
applicable SWA instructions for posting job orders, inform the SWA that 
the job order is being placed in connection with a previously certified 
Application for Temporary Employment Certification for H-2B workers by 
providing the unique temporary labor certification (TLC) identification 
number, and receive applications in all forms allowed by the SWA, 
including online applications (sometimes known as ``self-referrals''). 
The job order must contain the job assurances and contents set forth in 
Sec.  655.18 for recruitment of U.S. workers at the place of 
employment, and remain posted for at least 15 calendar days;
    (ii) During the period of time the SWA is actively circulating the 
job order described in paragraph (a)(5)(i) of this section for 
intrastate clearance, the employer must contact, by email or other 
available electronic means, the nearest comprehensive American Job 
Center (AJC) serving the area of intended employment where work will 
commence, request staff assistance advertising and recruiting qualified 
U.S. workers for the job opportunity, and provide the unique 
identification number associated with the job order placed with the SWA 
or, if unavailable, a copy of the job order. If a comprehensive AJC is 
not available, the employer must contact the nearest affiliate AJC 
serving the area of intended employment where work will commence to 
satisfy the requirements of this paragraph (a)(5)(ii);
    (iii) During the period of time the SWA is actively circulating the 
job order described in paragraph (a)(5)(i) of this section for 
intrastate clearance, the employer must contact (by mail or other 
effective means) its former U.S. workers, including those who have been 
furloughed or laid off, during the period beginning January 1, 2020, 
until the date the I-129 petition required under 8 CFR

[[Page 4762]]

214.2(h)(6)(xi) is submitted, who were employed by the employer in the 
occupation at the place of employment (except those who were dismissed 
for cause or who abandoned the worksite), disclose the terms of the job 
order, and solicit their return to the job. The contact and disclosures 
required by this paragraph (a)(5)(iii) must be provided in a language 
understood by the worker, as necessary or reasonable;
    (iv) During the period of time the SWA is actively circulating the 
job order described in paragraph (a)(5)(i) of this section for 
intrastate clearance, the employer must engage in the recruitment of 
U.S. workers as provided in Sec.  655.45(a) and (b). The contact and 
disclosures required by this paragraph (a)(5)(iv) must be provided in a 
language understood by the worker, as necessary or reasonable; and
    (v) The employer must hire any qualified U.S. worker who applies or 
is referred for the job opportunity until the date on which the last H-
2B worker departs for the place of employment, or 30 days after the 
last date on which the SWA job order is posted, whichever is later. 
Consistent with Sec.  655.40(a), applicants can be rejected only for 
lawful job-related reasons.
    (6) The employer must attest on Form ETA-9142-B-CAA-5 that it will 
fully cooperate with any audit, investigation, compliance review, 
evaluation, verification, or inspection conducted by DOL, including an 
on-site inspection of the employer's facilities, interview of the 
employer's employees and any other individuals possessing pertinent 
information, and review of the employer's records related to the 
compliance with applicable laws and regulations, including but not 
limited to evidence pertaining to or supporting the eligibility 
criteria for the FY 2022 supplemental allocations outlined in this 
paragraph (a) and Sec.  655.69(a), as a condition for the approval of 
the H-2B petition. Pursuant to this subpart and 29 CFR 503.25, the 
employer will not impede, interfere, or refuse to cooperate with an 
employee of the Secretary who is exercising or attempting to exercise 
DOL's audit or investigative authority.
    (b) This section expires on October 1, 2022.
    (c) The requirements under paragraph (a) of this section are 
intended to be non-severable from the remainder of this section; in the 
event that paragraph (a)(1), (2), (3), (4), or (5) of this section is 
enjoined or held to be invalid by any court of competent jurisdiction, 
the remainder of this section is also intended to be enjoined or held 
to be invalid in such jurisdiction, without prejudice to workers 
already present in the United States under this part, as consistent 
with law.

0
7. Effective January 28, 2022 through September 30, 2025, add Sec.  
655.69 to read as follows:


Sec.  655.69   Special document retention provisions for Fiscal Years 
2022 through 2026 under Public Laws 116-260, 117-43, and 117-70.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2022 under authority for the temporary increase 
in the numerical limitation provided by Public Law 117-43 and Public 
Law 117-70 on the same terms as section 105 of Division O, of Public 
Law 116-260, must maintain for a period of three (3) years from the 
date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, 
the following:
    (1) A copy of the attestation filed pursuant to the regulations in 
8 CFR 214.2 governing that temporary increase;
    (2) Evidence establishing, at the time of filing the I-129 
petition, that the employer's business is suffering irreparable harm or 
will suffer impending irreparable harm (that is, permanent and severe 
financial loss) without the ability to employ all of the H-2B workers 
requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xi);
    (3) Documentary evidence establishing that each of the workers the 
employer requested and/or instructed to apply for a visa, whether named 
or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xi), have 
been issued an H-2B visa or otherwise granted H-2B status during one of 
the last three (3) fiscal years (fiscal year 2019, 2020, or 2021), 
unless the H-2B worker(s) is a national of El Salvador, Guatemala, 
Honduras, or Haiti and is counted towards the 6,500 cap described in 8 
CFR 214.2(h)(6)(xi)(A)(2). Alternatively, if applicable, employers must 
maintain documentary evidence that the workers the employer requested 
and/or instructed to apply for visas are eligible nationals of El 
Salvador, Guatemala, Honduras, or Haiti as defined in 8 CFR 
214.2(h)(6)(xi)(A)(2); and
    (4) If applicable, proof of recruitment efforts set forth in Sec.  
655.64(a)(5)(i) through (iv) and a recruitment report that meets the 
requirements set forth in Sec.  655.48(a)(1) through (4) and (7), and 
maintained throughout the recruitment period set forth in Sec.  
655.64(a)(5)(v).
    (b) DOL or DHS may inspect the documents in paragraphs (a)(1) 
through (4) of this section upon request.
    (c) This section expires on October 1, 2025.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.

Martin J. Walsh,
Secretary, U.S. Department of Labor.
[FR Doc. 2022-01866 Filed 1-27-22; 8:45 am]
BILLING CODE 9111-97-P; 4510-FP-P