[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Rules and Regulations]
[Pages 76816-76879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27236]



[[Page 76815]]

Vol. 87

Thursday,

No. 240

December 15, 2022

Part IV





Department of Homeland Security





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Department of Labor





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Employment and Training Administration





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8 CFR Parts 214 and 274a

20 CFR Part 655





Exercise of Time-Limited Authority To Increase the Numerical Limitation 
for FY 2023 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. 240 / Thursday, December 15, 2022 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2731-22, DHS Docket No. USCIS-2022-0015]
RIN 1615-AC82

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-]
RIN 1205-AC14


Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for FY 2023 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; request for comments.

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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) 
2023 authority and increasing the total number of noncitizens who may 
receive an H-2B nonimmigrant visa by up to, but no more than, a total 
of 64,716 for the entirety of FY 2023. To assist U.S. businesses that 
need workers to begin work on different start dates, the Departments 
have decided to distribute the supplemental visas in several 
allocations, including two separate allocations for the second half of 
fiscal year 2023. Out of the total 64,716 visas made available in this 
rule, the Departments have decided to reserve 20,000 visas for 
nationals of Guatemala, El Salvador, Honduras, or Haiti. The 
Departments will make all 64,716 visas available only 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 the additional 64,716 visas available under 
the FY 2023 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 December 15, 2022 through 
December 15, 2025. The amendments to title 20 of the Code of Federal 
Regulations in this rule are effective from December 15, 2022 through 
September 30, 2023, except for 20 CFR 655.67 which is effective from 
December 15, 2022 through September 30, 2026.
    Petition dates: DHS will not accept any H-2B petitions under 
provisions related to the FY 2023 supplemental numerical allocations 
after September 15, 2023, and will not approve any such H-2B petitions 
after September 30, 2023. The provisions related to portability are 
only available to petitioners and H-2B nonimmigrant workers initiating 
employment through the end of January 24, 2024.
    Submission of public comments: The Departments are accepting 
written comments on the temporary final rule and on the new information 
collection. Please follow the instructions in the ADDRESSES section to 
ensure your comment is submitted to the correct docket.
    Comments on the Rule: All public comments on the temporary final 
rule, identified by DHS Docket No. USCIS-2022-0015, must be submitted 
on or before February 13, 2023. The electronic Federal Docket 
Management System will accept comments prior to midnight eastern time 
at the end of that day.
    Comments on the Information Collection: The Office of Foreign Labor 
Certification within the U.S. Department of Labor will accept comments 
in connection with the new information collection Form ETA-9142B-CAA-7 
associated with this rule until February 13, 2023. The electronic 
Federal Docket Management System will accept comments prior to midnight 
eastern time at the end of that day.

ADDRESSES: You may submit written comments on the temporary final rule 
and/or new information collection. Please follow the instructions 
directly below depending on whether you are submitting a comment on the 
rule or the DOL Information Collection.
    Comments on the rule: You may submit comments on the entirety of 
this temporary final rule package, identified by DHS Docket No. USCIS-
2022-0015, through the Federal eRulemaking Portal: https://www.regulations.gov. Follow the website instructions for submitting 
comments.
    Comments submitted in a manner other than the one listed above, 
including emails or letters sent to USCIS or DHS officials, will not be 
considered comments on the temporary final rule and may not receive a 
response. Please note that USCIS cannot accept any comments that are 
hand-delivered or couriered. In addition, USCIS cannot accept comments 
contained on any form of digital media storage devices, such as CDs/
DVDs and USB drives. USCIS is not accepting mailed comments at this 
time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief, 
Regulatory Coordination Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
by telephone at 240-721-3000 (not a toll-free call) for alternate 
instructions.
    Comments on the Information Collection: You may submit written 
comments on the new information collection Form ETA-9142B-CAA-7, 
identified by Regulatory Information Number (RIN) 1205-AC14, 
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-AC14 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-7: 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

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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 2022 Omnibus and FY 2023 Public Law 117-180
    D. Joint Issuance of the Final Rule
III. Discussion
    A. Statutory Determination
    B. Numerical Increase and Allocations for Fiscal Year 2023
    C. Returning Workers
    D. Returning Worker Exemption for up to 20,000 Visas for 
Nationals of Guatemala, El Salvador, and Honduras (Northern Central 
American Countries) and Haiti
    E. Business Need Standard--Irreparable Harm and FY 2023 
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 2023 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 release of an additional 64,716 H-2B visas for FY 2023, 
subject to certain conditions. The 64,716 visas are divided into the 
following allocations:
     For the first half of FY 2023: 18,216 immediately 
available visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2020, 2021, or 2022, regardless of country of nationality. The-se 
petitions must request employment start dates on or before March 31, 
2023;
     For the early second half of FY 2023 (April 1 to May 14): 
16,500 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2020, 2021, or 2022, regardless of country of nationality. These early 
second half of FY 2023 petitions must request employment start dates 
from April 1, 2023, to May 14, 2023. Furthermore, employers must file 
these petitions no earlier than 15 days after the second half statutory 
cap \1\ is reached;
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    \1\ The term ``statutory cap'' refers to the 66,000 cap set 
forth at INA section 214(g)(1)(B) or the 33,300 semiannual caps at 
INA section 214(g)(10).
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     For the late second half of FY 2023: (May 15 to September 
30): 10,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2020, 2021, or 2022, regardless of country of nationality. These late 
second half of FY2023 petitions must request employment start dates 
from May 15, 2023, to September 30, 2023. Furthermore, employers must 
file these petitions no earlier than 45 days after the second half 
statutory cap is reached; and
     For the entirety of FY 2023: 20,000 visas reserved for 
nationals of El Salvador, Guatemala, and Honduras (Northern Central 
American countries) and Haiti as attested by the petitioner (regardless 
of whether such nationals are returning workers). Employers requesting 
an employment start date in the first half of FY 2023 may file such 
petitions immediately after the publication of this TFR. Employers 
requesting an employment start date in the second half of FY 2023 must 
file such petitions no earlier than 15 days after the second half 
statutory cap is reached.
    To qualify for the FY 2023 supplemental caps 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 I-129, Petition for a Nonimmigrant Worker, with 
USCIS;
     Properly file the Form I-129, Petition for Nonimmigrant 
Worker, with USCIS at its California Service Center on or before 
September 15, 2023;
     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 
20,000 cap exempt from the returning worker requirement;
     Prepare and retain a detailed written statement describing 
how the employer is suffering irreparable harm or will suffer impending 
irreparable harm and how evidence demonstrates irreparable harm and 
supports their application; and
     Agree to comply with all applicable labor and employment 
laws, including health and safety laws pertaining to COVID-19, such as 
any rights to time off or paid time off to obtain COVID-19 vaccinations 
\2\ or rights to reimbursement for travel to and from the nearest 
available vaccination site, and to 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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    \2\ The term ``COVID-19 vaccinations'' also includes COVID-19 
booster shots.
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    Employers filing an H-2B petition 30 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, 2021, 
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;
     Where the occupation is traditionally or customarily 
unionized, provide written notification of the job opportunity to the 
nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended 
employment, by providing a copy of the job order and requesting 
assistance in recruiting qualified U.S. workers for the job 
opportunity;
     Contact in writing and in a language understood by the 
worker, all U.S. workers currently employed at the place of employment, 
disclose the terms of the job order, and request assistance in 
recruiting qualified U.S. workers for the job;
     Where the employer maintains a website for its business 
operations, post

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the job opportunity in a conspicuous location on the employer's 
website; 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 2023 supplemental 
cap must retain documentation of compliance with the attestation 
requirements for 3 years from the date DOL approved the TLC, 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.
    Through audits and investigations, both Departments have received 
evidence of employer non-compliance with the terms and conditions of 
the H-2B program, as well as violations of other labor and employment 
laws. DOL Office of Foreign Labor Certification (OFLC), DOL Wage and 
Hour Division (WHD), and USCIS Fraud Detection and National Security 
(FDNS) personnel have encountered non-compliance issues such as failure 
to pay the promised wage, failure to employ returning workers, failure 
to demonstrate irreparable harm, failure to conduct the additional 
recruitment steps, and failure to accurately disclose the beneficiary's 
work location(s).
    Such non-compliance can harm U.S. workers by undermining wages and 
working conditions. It also directly harms H-2B workers. Further, H-2B 
workers depend on ongoing employment with the petitioning employer to 
maintain status in the United States. This dependence creates a power 
imbalance between the employer and H-2B worker, making the H-2B worker 
particularly vulnerable to exploitation and violations. In recognition 
of the substantial impact that non-compliance can have on both U.S. 
workers and H-2B workers, DHS and DOL again intend to conduct a 
significant number of audits focusing on irreparable harm and other 
worker protection provisions. And as it did as part of the FY 2022 
second half H-2B supplemental cap TFR, DHS will again subject employers 
that have committed labor law violations in the H-2B program to 
additional scrutiny in the supplemental cap petition process.\3\ DHS 
intends for this additional scrutiny to help ensure compliance with H-
2B program requirements and obligations.
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    \3\ See Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Numerical Limitation for Second Half of FY 2022 for the 
H-2B Temporary Nonagricultural Worker Program and Portability 
Flexibility for H-2B Workers Seeking to Change Employers, 87 FR 
30334, 30335 (May 18, 2022).
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    Specifically, falsifying information in H-2B program attestation(s) 
can result not only in penalties relating to perjury, but also 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-2B program and any 
other foreign labor programs administered by DOL. 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 
2023 supplemental cap authority on or after October 1, 2023.

H-2B Portability

    In addition to exercising its time-limited authority to make 
additional FY 2023 H-2B visas available, DHS is again providing 
additional flexibilities to H-2B petitioners under its general 
programmatic authority by allowing nonimmigrant workers in the United 
States \4\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2023, or who 
are the beneficiaries of non-frivolous H-2B petitions that are pending 
as of January 25, 2023, 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 one 
year after the provision's effective date of January 25, 2023, in other 
words, at the end of January 24, 2024.
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    \4\ 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 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],\5\ 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 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 noncitizens \6\ not authorized for 
employment). The Secretary may designate officers or employees to take 
and consider evidence concerning any matter that 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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    \5\ 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.
    \6\ 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 the HSA, 6 U.S.C. 111(b)(1)(F), a 
primary mission

[[Page 76819]]

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 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, must accompany an H-2B petition for temporary 
employment in the United States. 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).
    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 the preceding H-2B 
supplemental cap TFR \7\ and in this rule, and except for certain 
professional athletes being traded among organizations,\8\ 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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    \7\ The FY 2022 second half H-2B supplemental cap TFR included a 
portability provision at 8 CFR 214.2(h)(28)(iii)(A)(1)-(2), which 
remains in effect through January 24, 2023. See Temporary Rule, 
Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for Second Half of FY 2022 for the H-2B Temporary 
Nonagricultural Worker Program and Portability Flexibility for H-2B 
Workers Seeking To Change Employers, 87 FR 30334 (May 18, 2022).
    \8\ 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 maximum annual number (``statutory cap'') of noncitizens to 
whom DHS may issue H-2B visas or otherwise provide H-2B nonimmigrant 
status to perform temporary nonagricultural work is 66,000, distributed 
semiannually 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). 
Accordingly, with certain exceptions as described below, DHS may issue 
H-2B visas or provide H-2B nonimmigrant status to up to 33,000 
noncitizens 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, are available for employers seeking to 
hire H-2B workers during the second half of the fiscal year.\9\ If the 
number of petitions approved by DHS is insufficient to use all H-2B 
numbers in a given fiscal year, DHS cannot carry over the unused 
numbers for petition approvals for employment start dates beginning on 
or after the start of the next fiscal year.
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    \9\ 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 2023 is from October 1, 2022, through September 
30, 2023.
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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.\10\ 
A returning worker is an H-2B worker who was previously counted against 
the annual H-2B cap during a designated period of time.\11\ For 
example, Congress designated that returning workers for FY 2016 needed 
to have been counted against the cap during FY 2013, 2014, or 2015 to 
qualify for the exemption.\12\ 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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    \10\ See 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.
    \11\ Cf. INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A).
    \12\ 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 semiannual visa allocation, the DOL regulatory 
requirement that employers apply for a TLC 75 to 90 days before the 
start date of work,\13\ and the DHS regulatory requirement that an 
approved TLC accompany all H-2B petitions,\14\ employers that wish to 
obtain visas for their workers under the semiannual 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 
reached sufficient H-2B petitions to reach the first half of the fiscal 
year statutory cap has trended earlier in recent years.\15\ For FY 
2022,

[[Page 76820]]

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.\16\ This occurred even earlier in 
FY 2023, when USCIS received enough H-2B petitions to reach the FY 2023 
first-half statutory cap on September 12, 2022.\17\ There has also been 
a trend in recent years of increased demand for H-2B workers in the 
second half of the fiscal year.\18\
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    \13\ See 20 CFR 655.15(b).
    \14\ See 8 CFR 214.2(h)(6)(vi)(A).
    \15\ 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 USCIS, USCIS Reaches the H-2B Cap for the First 
Half of Fiscal Year 2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 
13, 2017); USCIS, USCIS Reaches H-2B Cap for the First Half of 
Fiscal Year 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 2017); USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2019, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap for 
the First Half of Fiscal Year 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 
2019); USCIS, USCIS Reaches H-2B Cap for the First Half of Fiscal 
Year 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
    \16\ 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 USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021).
    \17\ On September 14, 2022, 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 2023, and that September 12, 2022 was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2023. See USCIS, USCIS Reaches 
H-2B Cap for the First Half of Fiscal Year 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (last updated Sept. 14, 2022).
    \18\ In recent years, DOL has received an increasing number of 
TLC applications for an increasing number of H-2B workers with April 
1 start dates: DOL received 4,500 applications on January 1, 2018, 
covering more than 81,600 worker positions; DOL received 5,276 
applications by January 8, 2019, covering more than 96,400 worker 
positions; DOL received 5,677 applications during the initial three-
day filing window in 2020 covering 99,362 worker positions; DOL 
received 5,377 applications during the initial three-day filing 
window in 2021 covering 96,641 worker positions; DOL received 7,875 
applications by January 7, 2022, covering 136,555 worker positions. 
See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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    Congress, in recognition of historical and current demand has, for 
the last several fiscal years, authorized supplemental caps.\19\ The 
authorization for the current supplemental cap is under section 101(6) 
of Division A of Public Law 117-180, Continuing Appropriations and 
Ukraine Supplemental Appropriations Act, 2023 (FY 2023 authority), 
which extended the authorization previously provided in section 204 of 
Division O of the Consolidated Appropriations Act, 2022, Public Law 
117-103 (FY 2022 Omnibus), as discussed below.
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    \19\ See 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); 
section 105 of Division O of the Consolidated Appropriations Act, 
2021, Public Law 116-260 (FY 2021 Omnibus); section 105 of Division 
O of the Consolidated Appropriations Act, 2021, FY 2021 Omnibus, 
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); and section 
204 of Division O of the Consolidated Appropriations Act, 2022, 
Public Law 117-103 (FY 2022 Omnibus).
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C. FY 2022 Omnibus and FY 2023 Public Law 117-180

    On March 15, 2022, President Joseph Biden signed the FY 2022 
Omnibus, which contains a provision, section 204 of Division O, Title 
II, 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 204 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] 2022 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 2022 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. 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.\20\ The Secretary of Homeland Security 
consulted with the Secretary of Labor and, on May 18, 2022, published a 
temporary final rule implementing the authority contained in section 
204.\21\
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    \20\ DHS also considered using an alternative approach of 
calculating the highest number of H-2B nonimmigrants who 
participated in the H-2B returning worker program, under which DHS 
measured the number of H-2B returning workers admitted at the ports 
of entry (66,792 for FY 2007). However, DHS considers USCIS petition 
data more accurate and verifiable than admission data when measuring 
workers approved for a certain fiscal year, as admission data may 
not accurately reflect which cap year the worker was approved for.
    \21\ See Exercise of Time-Limited Authority To Increase the 
Numerical Limitation for Second Half of FY 2022 for the H-2B 
Temporary Nonagricultural Worker Program and Portability Flexibility 
for H-2B Workers Seeking To Change Employers, 87 FR 30334 (May 18, 
2022).
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    On September 30, 2022, Congress passed Public Law 117-180, which 
authorizes the Secretary of Homeland Security to increase the number of 
H-2B visas available to U.S. employers in FY 2023 under the same terms 
and conditions provided in section 204 of Division O of the FY 2022 
Omnibus.\22\ In other words, Public Law 117-180 permits the Secretary 
of Homeland Security, after consultation with the Secretary of Labor, 
to provide up to 64,716 additional H-2B visas for FY 2023, 
notwithstanding the otherwise-established statutory numerical 
limitation set forth in the INA, for eligible employers whose 
employment needs for FY 2023 cannot be met under the general fiscal 
year statutory cap.\23\ Under the Public Law 117-180 authority, DHS and 
DOL are jointly publishing this temporary final rule to authorize the 
issuance of no more than 64,716 additional visas for FY 2023 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 2023 
supplemental cap expires at the end of

[[Page 76821]]

that fiscal year. Therefore, USCIS will not approve H-2B petitions 
filed in connection with this FY 2023 supplemental cap authority on or 
after October 1, 2023.
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    \22\ See Public Law 117-180, Continuing Appropriations and 
Ukraine Supplemental Appropriations Act, 2023, Division A, section 
101(6) (providing DHS funding and other authorities, including the 
authority to issue supplemental H-2B visas that was provided under 
title II of Division O of Pub. L. 117-103, through December 16, 
2022).
    \23\ 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 2023 subject to the same terms and 
conditions as the FY 2022 authority at any time before the 
continuing resolution expires, notwithstanding the reference to FY 
2022 in the FY 2022 Omnibus.
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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 the annual 
numerical limitation set forth in section 214 of the INA. The previous 
statutory provisions were materially identical to section 204 of the FY 
2022 Omnibus, which is the same authority provided for FY 2023 by the 
recent continuing resolution. During each fiscal year from FY 2017 
through FY 2019, as well as during FY 2021 and FY 2022, the Secretary 
of Homeland Security, after consulting with the Secretary of Labor, 
determined that some American businesses could not satisfy their needs 
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.\24\ USCIS approved a 
total of 12,294 H-2B for H-2B classification under petitions filed 
pursuant to the FY 2017 supplemental cap increase.\25\ 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.\26\ The vast 
majority of the H-2B petitions received under the FY 2017 and FY 2018 
supplemental caps requested premium processing (Form I-907) \27\ and 
were adjudicated within 15 calendar days.
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    \24\ See 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).
    \25\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
    \26\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. 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.
    \27\ 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.\28\ 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 three 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.\29\ 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 32,680.\30\ The vast majority of 
these petitions requested premium processing and were adjudicated 
within 15 calendar days.
---------------------------------------------------------------------------

    \28\ See 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).
    \29\ See 84 FR at 20021.
    \30\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. 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.
---------------------------------------------------------------------------

    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 
the fiscal year.\31\ On March 13, 2020, then-President Trump declared a 
National Emergency concerning COVID-19, a communicable disease caused 
by the coronavirus SARS-CoV-2.\32\ On April 2, 2020, DHS announced that 
the rule to increase the H-2B cap was on hold due to economic 
circumstances, and that DHS would not release additional H-2B visas 
until further notice.\33\ DHS also noted that the Department of State 
had suspended routine visa services.\34\
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    \31\ See DHS, 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.
    \32\ See Proclamation 9994 of Mar. 13, 2020, Declaring a 
National Emergency Concerning the Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \33\ See https://twitter.com/DHSgov/status/1245745115458568192?s=20.
    \34\ See https://twitter.com/DHSgov/status/1245745116528156673.
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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 for FY 2021 coupled with additional 
protections (for example, post-adjudication audits, investigations, and 
compliance checks), based on the demand for H-2B workers in the second 
half of FY 2021, 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.\35\ 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 Honduran nationals, 
who were exempt from the returning worker requirement. By August 13, 
2021, USCIS had 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

[[Page 76822]]

rule.\36\ The total number of H-2B workers approved towards the FY 2021 
supplemental cap increase was 30,742.\37\ This total number included 
approved H-2B petitions for 23,937 returning workers, as well as 6,805 
beneficiaries from the Northern Central American countries.\38\
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    \35\ 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, 86 FR 28198 (May 25, 2021).
    \36\ See USCIS, Cap Reached for Remaining H-2B Visas for 
Returning Workers for FY 2021, https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19, 2021).
    \37\ The number of approved workers exceeded the number of 
additional visas authorized 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. See Department of Homeland Security, U.S. 
Citizenship and Immigration Services, Office of Performance and 
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data queried 10/2022, TRK 
10625.
    \38\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
---------------------------------------------------------------------------

    On January 28, 2022, DHS and DOL jointly published a temporary 
final rule authorizing an increase of up to 20,000 additional H-2B 
visas for FY 2022 positions with start dates on or before March 31, 
2022.\39\ These supplemental visas were available only to employers 
that attested they were suffering or would suffer impending irreparable 
harm without the additional workers. The allocation of 20,000 
additional H-2B visas under that rule consisted of 13,500 visas 
available only to H-2B returning workers from one of the last three 
fiscal years (FY 2019, 2020, or 2021) and 6,500 visas reserved for 
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were 
exempted from the returning worker requirement. USCIS data show that 
the total number of H-2B workers approved towards the first half FY 
2022 supplemental cap increase was 17,381, including 14,150 workers 
under the returning worker allocation, as well as 3,231 workers 
approved towards the Haitian/Northern Central American allocation.\40\
---------------------------------------------------------------------------

    \39\ See 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, 87 FR 4722 (Jan. 28, 2022); 87 
FR 6017 (Feb. 3, 2022) (correction).
    \40\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
---------------------------------------------------------------------------

    Finally, DHS in consultation with DOL determined it was appropriate 
to increase the H-2B cap for FY 2022 positions with start dates 
beginning on April 1, 2022 through September 30, 2022, based on the 
continued demand for H-2B workers for the remainder of FY 2022, 
continuing economic growth, increased labor demand, and increased visa 
processing capacity by the Department of State. Accordingly, on May 18, 
2022, DHS and DOL jointly published a temporary final rule authorizing 
an increase of no more than 35,000 additional H-2B visas for the second 
half of FY 2022.\41\ As in the January 2022 TFR, the supplemental visas 
were available only to employers that attested they were suffering or 
would suffer impending irreparable harm without the additional workers. 
The allocation of 35,000 additional H-2B visas under the rule 
applicable to the second half of FY 2022 consisted of 23,500 visas 
available only to H-2B returning workers from one of the last three 
fiscal years (FY 2019, 2020, or 2021) and 11,500 visas reserved for 
Salvadoran, Guatemalan, Honduran, and Haitian nationals, who were 
exempted from the returning worker requirement. By May 25, 2022, USCIS 
had received enough petitions for returning workers to reach the 
additional 23,500 H-2B visas made available under the second half FY 
2022 H-2B supplemental visa temporary final rule.\42\ USCIS data show 
that the total number of H-2B workers approved towards the second half 
FY 2022 supplemental cap increase was 43,798, including 31,480 workers 
under the returning worker allocation, as well as 12,318 workers 
approved towards the Haitian/Northern Central American allocation.\43\
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    \41\ See Temporary Rule, Exercise of Time-Limited Authority To 
Increase the Numerical Limitation for Second Half of FY 2022 for the 
H-2B Temporary Nonagricultural Worker Program and Portability 
Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 
30334 (May 18, 2022).
    \42\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
    \43\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, queried 10/2022, TRK 10710.
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    Once again, DHS in consultation with DOL believes that it is 
appropriate to increase the H-2B cap for FY 2023 based on the demand 
for H-2B workers in the first half of FY 2023, anticipated demand for 
the second half of FY 2023, recent economic growth, and strong labor 
demand.\44\ DHS and DOL also believe that it is appropriate and 
important to couple this cap increase with additional worker 
protections, as described below.
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    \44\ The term ``strong labor demand'' in this context relies on 
the most recently released figure from a Bureau of Labor Statistics 
(BLS) survey at the time this TFR was written. The BLS Job Openings 
and Labor Turnover Survey (JOLTS) reports 10.7 million job openings 
in August 2022. See DOL, BLS, Job Openings and Labor Turnover--
September, https://www.bls.gov/news.release/archives/jolts_11012022.pdf (last visited November 2, 2022).
---------------------------------------------------------------------------

D. Joint Issuance of the Final Rule

    As in FY 2017, FY 2018, FY 2019, FY 2021, and FY 2022, DHS and DOL 
(the Departments) have determined that it is appropriate to jointly 
issue this temporary final rule.\45\ 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.\46\ Although DHS and DOL each have authority 
to independently issue rules implementing their respective duties under 
the H-2B program,\47\ 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).\48\
---------------------------------------------------------------------------

    \45\ See Exercise of Time-Limited Authority To Increase the 
Fiscal Year 2017 Numerical Limitation for the H-2B Temporary 
Nonagricultural Worker Program, 82 FR 32987 (Jul. 19, 2017); 
Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 
Numerical Limitation for the H-2B Temporary Nonagricultural Worker 
Program, 83 FR 24905 (May 31, 2018); Exercise of Time-Limited 
Authority To Increase the Fiscal Year 2019 Numerical Limitation for 
the H-2B Temporary Nonagricultural Worker Program, 84 FR 20005 (May 
8, 2019); 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); 
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, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-
Limited Authority To Increase the Numerical Limitation for Second 
Half of FY 2022 for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To 
Change Employers, 87 FR 30334 (May 18, 2022).
    \46\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec., 
983 F.3d 671 (4th Cir. 2020), cert. denied, 142 S. Ct. 425 (2021); 
see also Temporary Non-Agricultural Employment of H-2B Aliens in the 
United States, 80 FR 24041, 24045 (Apr. 29, 2015).
    \47\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
    \48\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).

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[[Page 76823]]

III. Discussion

A. Statutory Determination

    Following consultation with the Secretary of Labor, the Secretary 
of Homeland Security has determined that some U.S. employers cannot 
satisfy their needs in FY 2023 with U.S. workers who are willing, 
qualified, and able to perform temporary nonagricultural labor. In 
accordance with the FY 2023 continuing resolution extending the 
authority provided in section 204 of the FY 2022 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 through the end of FY 2023 by up to 64,716 
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.\49\ These businesses must retain documentation, as described 
below, supporting this attestation.
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    \49\ The FY 2023 Continuing resolution extending authority 
contained in section 204 of Division O, Title II, of the FY 2022 
Omnibus, DHS, under certain circumstances and after consultation 
with DOL, may increase the number of H-2B visas available to U.S. 
employers. DHS has the authority to establish the irreparable harm 
standard in seeking a supplemental H-2B visa. See, e.g., INA 
sections 103 and 214 (8 U.S.C. 1103, 1184).
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    As in connection with the FY 2021 and FY 2022 H-2B supplemental 
visa temporary final rules, and consistent with existing authority, DHS 
and DOL intend to conduct a significant number of audits with respect 
to petitions filed under this TFR requesting supplemental H-2B visas 
during the period of temporary need. The Departments will use their 
discretion to select which petitions to audit, and the Departments will 
use the audits 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 the Departments 
find that an employer's documentation does not meet the irreparable 
harm standard, or that the employer fails to provide evidence 
demonstrating irreparable harm or comply with the audit process, the 
Departments may consider it to be a substantial violation resulting in 
an adverse agency action against the employer, including revocation of 
the petition and/or TLC or program debarment. Of the audits completed 
so far, some audits conducted of employers that received visas under 
the supplemental caps in FY 2021 and FY 2022 revealed concerns 
surrounding payment of the promised wage, employment of returning 
workers, documentation of irreparable harm, and employment at the 
listed location, which may warrant further review and action.
    As he did in FY 2021 and in FY 2022, the Secretary of Homeland 
Security has also again determined, following consultation with the 
Secretary of Labor, 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, following consultation with the Secretary of 
Labor, that the supplemental visas will be limited to returning 
workers, with the exception that up to 20,000 of the 64,716 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.\50\ DHS is reserving these 20,000 H-2B visas for nationals 
of El Salvador, Guatemala, and Honduras pursuant to INA section 
214(a)(1), 8 U.S.C. 1184(a)(1), as well as to 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 nationals of the Northern Central 
American countries.\51\ DHS is also including Haiti in this allocation 
to further promote and improve safety, security, and economic stability 
throughout the region.\52\ DHS observed robust employer interest in 
response to the FY 2021 H-2B supplemental visa allocation for 
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 
supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and 
Haitian nationals, with USCIS approving petitions on behalf of 6,805 
beneficiaries under the FY 2021 allocation,\53\ 3,231 beneficiaries 
under the FY 2022 first half supplemental allocation,\54\ and 12,318 
beneficiaries for the second half of the fiscal year FY 2022.\55\ In 
addition, DHS and the Biden administration have continued to conduct 
outreach efforts promoting the H-2B program as, among other things, a

[[Page 76824]]

lawful pathway for nationals of El Salvador, Guatemala, Honduras, and 
Haiti to work in the United States.\56\ 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 
these countries.\57\ DHS will not accept and will reject petitions 
submitted for the Northern Central American and Haiti allocation with a 
date of need on or after April 1, 2023 that are received earlier than 
15 days after the INA section 214(g) cap for the second half of FY 2023 
is met or are received after the applicable numerical limitation has 
been reached or after September 15, 2023. Requiring petitioners to wait 
to submit H-2B supplemental cap petitions with start dates of need on 
or after April 1, 2023 is consistent with the supplemental cap 
authority in section 204, as extended to FY 2023 by Public Law 117-180, 
Continuing Appropriations and Ukraine Supplemental Appropriations Act, 
2023, and will facilitate the orderly intake and processing of 
supplemental cap petitions for the Northern Central American countries 
and Haiti. As discussed above, similar limitations apply to the intake 
and processing of returning worker petitions with start dates of need 
on or after April 1, 2023.
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    \50\ 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 204 of the FY 2022 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); Continuing Appropriations Act, 2023, div. A, sec. 101(6) 
(extending the authority provided in FY 2022 Omnibus div. O, sec. 
204 (``Notwithstanding the numerical limitation set forth in section 
214(g)(1)(B) of the [INA] . . . .'')).
    \51\ 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. E.O. 14010 referred to the 
three countries of El Salvador, Guatemala, and Honduras as the 
``Northern Triangle,'' but this rule refers to these countries 
collectively as the Northern Central American countries.
    \52\ See https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw (this supplemental 
allocation to workers from Haiti, Honduras, Guatemala, and El 
Salvador ``advances the Biden Administration's pledge, under the Los 
Angeles Declaration to expand legal pathways as an alternative to 
irregular migration''); The White House, Fact Sheet: The Los Angeles 
Declaration on Migration and Protection U.S, Government and Foreign 
Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's 
commitment to support the people of Haiti.''). We also note 
Congress' recent statement, in a provision within the FY 2022 
Omnibus, that it is the policy of the United States to support the 
sustainable rebuilding and development of Haiti. See Section 102 of 
Division V of the Consolidated Appropriations Act, 2022, Public Law 
117-103. See also DHS, Identification of Foreign Countries Whose 
Nationals Are Eligible To Participate in the H-2A and H-2B 
Nonimmigrant Worker Programs, 86 FR 62562 (Nov. 10, 2021) 
(sustainable development and the stability of Haiti is vital to the 
interests of the United States as a close partner and neighbor).
    \53\ While USCIS approved a greater number of beneficiaries from 
the Northern Central American countries than the 6,000 visas 
allocated under the FY 2021 supplemental cap for those countries, 
the Department of State issued 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 Northern Central 
American countries with U.S. recruiters/employers on an expedited 
timeline.
    \54\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
    \55\ See DHS, USCIS, Office of Performance and Quality, C3 
Consolidated, queried 10/2022, TRK 10710. While USCIS approved a 
greater number of beneficiaries from the Northern Central American 
countries and Haiti than the 11,500 visas allocated under the FY 
2022 second half supplemental cap for those countries, the 
Department of State issued approximately 7,212 visas on behalf of 
nationals from those countries. See DHS, USCIS, Office of 
Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data 
queried 10/2022, TRK 10625. 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 third year that DHS will make a specific allocation available 
for workers from the Northern Central American countries, will 
contribute to even greater utilization of available visas under this 
allocation during FY 2023.
    \56\ See, e.g., USAID, Administrator Samantha Power at the 
Summit of the Americas Fair Recruitment and H-2 Visa Side Event, 
https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (June 9, 2022) (``Our combined efforts [with the labor 
ministries in Honduras and Guatemala, and the Foreign Ministry in El 
Salvador] . . . resulted in a record number of H-2 visas issued in 
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
    \57\ 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.
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    Similar to the previous temporary final rules for the FY 2019, FY 
2021 and FY 2022 supplemental caps, the Secretary of Homeland Security 
has also determined to limit the supplemental visas to H-2B returning 
workers,\58\ unless the employer indicates on the new attestation form 
that it is requesting workers who are nationals of one of the Northern 
Central American countries or Haiti and who are therefore counted 
towards the 20,000 allotment regardless of whether they are new or 
returning workers. If the 20,000 returning worker exemption cap for 
Salvadoran, Guatemalan, Honduran, and Haitian nationals is reached and 
visas remain available under the returning worker cap, USCIS would 
reject a petition seeking workers under the 20,000 allocation and 
return any fees submitted to the petitioner. In such a case, a 
petitioner may continue to request workers who are nationals of one of 
the Northern Central American 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 2020, 
2021, or 2022.\59\ Like the temporary final rules for the first half 
and for the second half of FY 2022, if the 20,000 returning worker 
exemption cap for nationals of the Northern Central American countries 
and Haiti remains unfilled, DHS will not make unfilled visas reserved 
for Northern Central American countries and Haiti available to the 
general returning worker cap. The DHS decision not to make available 
unfilled visas from the allocation for nationals of the Northern 
Central American countries and Haiti to the general supplemental cap 
for returning workers is consistent with the Biden administration's 
goals of providing lawful pathway for nationals of El Salvador, 
Guatemala, Honduras, and Haiti to temporarily work in the United 
States. To that end, not permitting rollover into the returning worker 
allocation provides employers with more time to petition for, and bring 
in, workers from these countries and encourages full use of the 20,000 
allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti 
to meet employer needs. This, in turn, contributes 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.
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    \58\ For purposes of this rule, these returning workers could 
have been H-2B cap exempt or extended H-2B status in FY 2020, 2021, 
or 2022. Additionally, they may have been previously counted against 
the annual H-2B cap of 66,000 visas during FY 2020, 2021, or 2022, 
or the supplemental caps in FY 2019, 2021, or 2022.
    \59\ The returning worker allocations are for workers who were 
issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 
2022, regardless of country of nationality. Therefore, a petitioner 
may choose to petition for Salvadoran, Guatemalan, Honduran, and 
Haitian nationals who meet this requirement under an available 
returning worker allocation, regardless of whether the separate 
allocation for nationals of the Northern Central American countries 
and Haiti has been reached.
---------------------------------------------------------------------------

    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. In recent years, 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.\60\ U.S. businesses, chambers of commerce, employer 
organizations, and state and local elected officials have also 
expressed concerns in recent years to the DHS and Labor Secretaries 
regarding the unavailability of H-2B visas after the statutory cap was 
reached.\61\ In addition, an employer association and a member of 
Congress have urged the Departments to publish one rule covering the 
entire fiscal year for 2023 in order to save time in the second half of 
the fiscal year, conserve limited agency resources, and reduce 
uncertainty for employers.\62\
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    \60\ See the docket for this rulemaking for access to these 
letters.
    \61\ See the docket for this rulemaking for access to these 
letters.
    \62\ See the docket for this rulemaking for access to these 
letters.
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    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.\63\ 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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    \63\ 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 Apr. 5, 2022); H-2B Seasonal Worker Program Challenges 
Threaten Maryland's Crab Industry, Economy and Jobs (February, 
2022), available at  https://governor.maryland.gov/wp-content/uploads/2022/02/2022-H-2B-Economic-Impact-Study.pdf (last visited 
Oct. 2, 2022).

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[[Page 76825]]

    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 204, as extended by Public Law 117-180, 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 64,716 additional visas solely for the businesses 
facing permanent, severe financial loss or those who will face such 
loss in the near future.
    First, DHS interprets the reference to ``the needs of American 
businesses'' in section 204, as extended by Public Law 117-180, 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 204, as extended by Public Law 117-
180, 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. 
Accordingly, the Secretaries have determined that 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.
    Second, the approach set forth in this rule, which is similar to 
the implementation of the supplemental caps in previous fiscal years, 
provides protections against adverse effects on U.S. workers that may 
result from a cap increase, including, as in previous rules, requiring 
employers seeking H-2B workers under the supplemental cap to engage in 
additional recruitment efforts for U.S. workers.
    In sum, this rule increases the numerical limitation by up to 
64,716 additional H-2B visas for the entirety of FY 2023, 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 Central American countries or Haiti counted towards the 20,000 
allocation that are exempt from the returning worker limitation. This 
rule also distributes the supplemental visas in several allocations to 
assist U.S. businesses that need workers to begin work on different 
start dates. These provisions are each described in turn below.

B. Numerical Increase and Allocations for Fiscal Year 2023

Making the Maximum Number of Visas Available
    The increase of up to 64,716 visas will help address the urgent 
needs of eligible employers for additional H-2B workers for those 
employers with employment needs in fiscal year 2023.\64\ The 
determination to allow up to 64,716 additional H-2B visas reflects a 
balancing of a number of factors including: the demand for H-2B visas 
during the first half of FY 2023 and expected demand for the second 
half of FY 2023; current labor market conditions; the general trend of 
increased demand for H-2B visas from FY 2017 to FY 2022; H-2B returning 
worker data; the amount of time for employers to hire and obtain H-2B 
workers in this fiscal year; 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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    \64\ 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 204 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 204 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.
---------------------------------------------------------------------------

    Section 204 of the FY 2022 Omnibus, as extended by Public Law 117-
180, 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 2022.\65\ 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 for FY 2023, 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 is appropriate to make available up to 64,716 
additional visas, which is the maximum allowed, under the FY 2023 
supplemental cap authority. The Secretary further considered the 
objectives of E.O. 14010, which among other initiatives, instructs the 
Secretary of Homeland Security and

[[Page 76826]]

the Secretary of State to implement measures to enhance access to visa 
programs for nationals of the Northern Central American countries, as 
well as to address some of the root causes of and manage migration 
throughout both North and Central America, which includes migration by 
Haitian nationals. Accordingly, the Secretary determined that it is 
appropriate to reserve up to 20,000 of the up to 64,716 additional 
visas and exempt this number from the returning worker requirement for 
nationals of the Northern Central American countries or Haiti.
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    \65\ 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 
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 it would 
accept under the supplemental cap. Of the selected petitions, USCIS 
issued approvals for 15,672 beneficiaries.\66\ 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 it would accept 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 Central American countries.\67\ Of the petitions 
received, USCIS issued approvals for 30,742 beneficiaries, including 
approvals for 6,805 beneficiaries under the allocation for the 
nationals of the Northern Central American countries.\68\
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    \66\ 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.
    \67\ On June 3, 2021, 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 Central American countries. See USCIS, 
Cap Reached for Additional Returning Worker H-2B Visas for FY 2021, 
https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021 (Jun. 3, 2021). On July 23, 
2021, USCIS announced that, because it did not receive enough 
petitions to reach the allocation for the Northern Central American 
countries by the July 8 filing deadline, the remaining visas were 
available to H-2B returning workers regardless of their country of 
origin. See USCIS, Employers May File H-2B Petitions for Returning 
Workers for FY 2021, https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (Jul. 23, 
2021).
    \68\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625. 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. Unlike these past supplemental cap 
TFRs, petitions filed under the first half FY 2022 TFR did not 
exceed the additional allocation of 20,000 H-2B visas provided by 
that rule.
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    In FY 2022, DHS made the supplemental cap available twice, once in 
January 2022 and again in May 2022. Under the earlier FY 2022 
supplemental cap for petitions with start dates in the first half of FY 
2022, USCIS had issued approvals for 17,381 beneficiaries, including 
approvals for 3,231 beneficiaries under the allocation for nationals of 
the Northern Central American countries and Haiti.\69\ For the second 
half of FY 2022, within the first five business days of filing, USCIS 
received petitions for more beneficiaries than the additional 23,500 
supplemental visas made available for returning workers, thus 
necessitating a random selection of petitions to meet the returning 
worker allotment.\70\ Of the petitions received for the second half of 
FY 2022, USCIS issued approvals for 43,798 beneficiaries, including 
approvals for 12,318 beneficiaries under the allocation for nationals 
of the Northern Central American countries and Haiti.\71\
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    \69\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2022, TRK 10625.
    \70\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
    \71\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, queried 10/2022, TRK 10710.
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    Data for the first half of FY 2023 clearly indicate an immediate 
need for additional supplemental H-2B visas for employers with start 
dates on or before March 31, 2023. USCIS received a sufficient number 
of H-2B petitions to reach the first half of the FY 2023 fiscal year 
statutory cap on September 12, 2022.\72\ Further, the date on which 
USCIS received sufficient H-2B petitions to reach the first half 
semiannual statutory cap has trended earlier in recent years. In fiscal 
years 2017 through 2023, 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, November 16, 2020, September 30, 2021, and September 12, 2022, 
respectively.\73\
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    \72\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (last updated Sept. 14, 2022).
    \73\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019, 
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap 
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); 
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); 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); USCIS, 
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022).
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    In addition, although the public health emergency due to COVID-19 
still exists,\74\ DHS believes that issuing additional H-2B visas is 
appropriate in the context of the nation's economic recovery from the 
ongoing pandemic. For example, the unemployment rate declined to 3.7% 
in October 2022 from a pandemic high of 14.7% in April 2020.\75\ 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.\76\
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    \74\ See HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx (Oct. 13, 2022).
    \75\ See BLS Employment Situation News Release, https://www.bls.gov/news.release/archives/empsit_11042022.htm (November 4, 
2022); BLS, Labor Force Statistics from the Current Population 
Survey, https://data.bls.gov/timeseries/LNS14000000 (data extracted 
November 4, 2022).
    \76\ The April 2020 unemployment rate was 14.7%. See https://www.bls.gov/new.release/archives/empsit_05082020.htm (Oct. 21,2022).
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    In fiscal year 2022, approximately 87.7 percent of H-2B filings 
were for positions within just 5 sectors.\77\ NAICS 56 (Administrative 
and Support and Waste Management and Remediation Services) accounted 
for 40.0% of filings,

[[Page 76827]]

NAICS 71 (Accommodation and Food Services) accounted for 11.0%, NAICS 
72 (Arts, Entertainment, and Recreation) accounted for 22.0%, NAICS 23 
(Construction) accounted for 12.0%, and NAICS 11 (Agriculture, 
Forestry, Fishing and Hunting) accounted for 2.7% of filings.
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    \77\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

    Within these industries, DOL data show higher labor demand relative 
to recent history. More specifically, Bureau of Labor Statistics (BLS) 
data from the November 1, 2022 Job Openings and Labor Turnover Survey 
(JOLTS) show that the rate of job openings \78\ for all 5 industries 
was higher in September 2022 than the average over the last 36 months. 
In September 2022 the job opening rate for NAICS 56 \79\ was 7.9 
percent, which is 0.92 percentage points higher than its 3-year average 
of 6.98 percent, while the job opening rate for NAICS 71 was 8.4 
percent which is 3.49 percentage points higher than its 3-year average 
of 4.91 percent. The September 2022 job opening rate for NAICS 72 was 
3.60 percentage points higher than its 3-year average of 5.90 percent 
while the rate for NAICS 23 was 1.09 percentage points higher than its 
3-year average of 4.11 percent. The job opening rate for NAICS 11 \80\ 
was 0.43 percentage points higher than its 3-year average of 3.87 
percent. For comparison, the job opening rate for all industries was 
6.5 percent in September 2022.\81\
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    \78\ 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/archives/jolts_11012022.pdf 
(last visited November 2, 2022).
    \79\ 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 October 2022, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 56 accounted for 
just under 43% of employment in Professional Business Services. All 
data accessed November 16, 2022.
    \80\ 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 October 2022, from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 11 accounted for 
just over 7% of employment in Natural Resources and Mining. All data 
accessed November 16, 2022.
    \81\ See https://www.bls.gov/news.release/archives/jolts_11012022.pdf (last visited November 2, 2022).
[GRAPHIC] [TIFF OMITTED] TR15DE22.013

The continued strength in the job openings rate across these industries 
is a clear indication of a strong 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 demand from 
job openings in these industries.
    Other economy-wide data also indicate that labor-market tightness 
exists. The most recent Employment Situation released by the Bureau of 
Labor Statistics (BLS) stated that the unemployment rate decreased to 
3.7% in October 2022.\82\ Historically, the availability of H-2B visas 
addressed a need in the labor market during periods of lower 
unemployment. Chart 1 \83\ shows that the H-2B visa allocations for 
Fiscal Year 2023 \84\ made by this rule are slightly higher than the 
historical trend, but are generally consistent with what the current 
unemployment rate alone would predict. Additionally, when the 
unemployment rate is below 6%, there is greater variance in the total 
number of H-2B visas issued in a given year; for example, in years 
2022, 2007 and 2006, when the unemployment rate ranged from 
approximately 3.5% to 4.6%, the total number of H-2B visas issued were 
comparable to what is planned for 2023. The data presented in chart 1 
is meant to provide additional context and to demonstrate that the 
total allocation of H-2B visas is reasonable given labor market 
conditions.
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    \82\ See DOL, BLS, The Employment Situation--October 2022, 
https://www.bls.gov/news.release/archives/empsit_11042022.pdf (Nov. 
4, 2022).
    \83\ Annual data presented here is on a fiscal year basis. 
Fiscal year averages were calculated by taking the average of the 
monthly unemployment rate for the months in each respective fiscal 
year (October-September). Data for 2022 are based on data for 
October 2021-September 2022.
    \84\ Estimated visas issued for Fiscal Year 2023 is based on the 
sum of the fiscal year statutory cap for H-2B workers (66,000) and 
the supplemental allocation for this rule (64,716), for a total H-2B 
visa allocation of 130,716.

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[[Page 76828]]

[GRAPHIC] [TIFF OMITTED] TR15DE22.014

    Given the level of demand for H-2B workers, the continued economic 
recovery, and continued job growth, DHS believes it is appropriate to 
release the maximum amount of additional visas at this time.
Making Allocations For All of FY 2023 in a Single Rule
    This rule is the first time that DHS has made supplemental visas 
available for an entire fiscal year in a single rule. DHS believes that 
it is appropriate to issue a single rule for the entire fiscal year for 
multiple reasons.\85\ First, DHS expects that there is demand for 
supplemental visas in the first half of FY 2023. As previously 
discussed, USCIS already received enough petitions to reach the 
congressionally mandated cap on H-2B visas for temporary 
nonagricultural workers for the first half of FY 2023.\86\ Further, the 
date on which USCIS received sufficient H-2B petitions to reach the 
first half semiannual statutory caps has trended earlier in recent 
years. In fiscal years 2017 through 2023, 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, November 16, 2020, September 30, 2021, and September 
12, 2022, respectively.\87\
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    \85\ Further, DHS believes that 64,716 is an appropriate number 
of supplemental visas to make available, as this rule will cover 
both the first and second half of FY 2023.
    \86\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-
for-first-half-of-fy-
2023#:~:text=U.S.%20Citizenship%20and%20Immigration%20Services,fiscal
%20year%20(FY)%202023 (Sep. 14, 2022).
    \87\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2017, https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017); USCIS, USCIS 
Reaches H-2B Cap for First Half of FY 2018, https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 
2017); USCIS, USCIS Reaches H-2B Cap for First Half of FY 2019, 
https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12, 2018); USCIS, USCIS Reaches H-2B Cap 
for First Half of FY 2020, https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); 
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); 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); USCIS, 
USCIS Reaches H-2B Cap for First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022).
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    Second, based on relevant data, DHS expects that USCIS will reach 
the statutory cap for the second half of FY 2023 and that there will 
accordingly be demand for supplemental visas in the second half of FY 
2023. For example, in fiscal years 2017 through 2022, USCIS received a 
sufficient number of H-2B petitions to reach or exceed the relevant 
second half statutory cap on March 13, 2017, February 27, 2018, 
February 19, 2019, February 18, 2020, February 12, 2021, and February 
25, 2022.\88\ In addition, DOL data shows consistently high demand in 
recent years, particularly during the second half of the fiscal year. 
In recent years, DOL has received an increasing number of TLC 
applications for an increasing number of H-2B workers with April 1 
start dates: DOL received 4,500 applications on January 1, 2018, 
covering more than 81,600 worker positions; DOL received 5,276 
applications by January 8, 2019, covering more than 96,400 worker 
positions; DOL received 5,677 applications during the initial three-day 
filing window in 2020 covering 99,362 worker positions; DOL received 
5,377 applications during the initial three-day filing window in 2021 
covering 96,641 worker positions; and DOL received 7,875 applications 
by January 7, 2022, covering 136,555 worker positions.\89\
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    \88\ See USCIS, USCIS Reaches the H-2B Cap for Fiscal Year 2017, 
https://www.uscis.gov/archive-alerts/uscis-reaches-the-h-2b-cap-for-fiscal-year-2017 (Mar. 16, 2017); USCIS, USCIS Completes Random 
Selection Process for H-2B Visa Cap for Second Half of FY 2018, 
https://www.uscis.gov/archive/uscis-completes-random-selection-process-for-h-2b-visa-cap-for-second-half-of-fy-2018 (Mar. 1, 2018); 
USCIS, H-2B Cap Reached for FY 2019, https://www.uscis.gov/archive/h-2b-cap-reached-for-fy-2019 (Feb. 22, 2019); USCIS, H-2B Cap 
Reached for Second Half of FY 2020, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy2020 (Feb. 26, 2020); 
USCIS, H-2B Cap Reached for Second Half of FY 2021, https://www.uscis.gov/news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021 (Feb. 24, 2021); USCIS, H-2B Cap Reached for Second Half of FY 
2022, https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022 (Mar. 1, 2022).
    \89\ See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
---------------------------------------------------------------------------

    Publishing one rule that addresses all the visas available for FY 
2023 benefits the regulated public by giving more notice and certainty 
of what will become available for the second half. This allows 
businesses to better plan ahead for their seasonal workforce needs.\90\
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    \90\ See the letter from the H-2B Workforce Coalition contained 
in the docket for this rulemaking.
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Filing Deadline of September 15, 2023 for all Petitions
    The authority to approve H-2B petitions under this FY 2023 
supplemental cap expires at the end of the fiscal year, i.e., the end 
of September 30, 2023. Therefore, DHS is requiring employers requesting 
any supplemental visas under this TFR, regardless of the employment 
start date(s), to properly file their H-2B petition with USCIS no

[[Page 76829]]

later than September 15, 2023. USCIS will reject any cases that are 
received after September 15, 2023. See new 8 CFR 214.2(h)(6)(xiii)(C). 
Because DHS believes that 15 days from the end of the fiscal year is 
the minimum time needed for petitions to be adjudicated, DHS has set 
September 15, 2023 as the latest filing date to provide USCIS with 
adequate time for petition processing before the expiration of the 
authority at the end of the fiscal year, although USCIS cannot 
guarantee that a 15-day period will be sufficient for adjudication of 
petitions in all cases.
    In addition, the filing deadline will be earlier than September 15, 
2023 if the applicable numerical limit for the relevant supplemental 
visa allocation is reached before that date. See new 8 CFR 
214.2(h)(6)(xiii)(C). In such a case, USCIS will also reject any cases 
that are received after the applicable numerical limitation has been 
reached.
Returning Worker Allocation for the First Half of FY 2023 (October 1, 
2022 Through March 31, 2023)
    For the first half of FY 2023, DHS will make 18,216 visas 
immediately available upon publication of this TFR that are limited to 
returning workers, in other words, those workers who were issued H-2B 
visas or held H-2B status in fiscal years 2020, 2021, or 2022, 
regardless of country of nationality. These petitions must request a 
date of need starting on or before March 31, 2023. See new 8 CFR 
214.2(h)(6)(xiii)(C).
    DHS anticipates that employers will use all of the first half 
allocation for returning workers, given how quickly USCIS reached the 
FY 2023 first half statutory cap. As noted previously, USCIS received 
enough H-2B petitions to reach the FY 2023 first half statutory cap on 
September 12, 2022, which is several weeks earlier than when USCIS 
reached the FY 2022 first half statutory cap on September 30, 2021 \91\ 
and is the earliest the first half cap has been reached since at least 
FY 2017. In addition, the relatively early publication of this rule 
will provide interested employers more time to prepare their petitions, 
increasing the likelihood that the first half allocation for returning 
workers will be used.\92\ To the extent that the first half allocation 
for returning workers is used, this TFR may provide affected employers 
with some relief by making available a separate allocation of visas for 
nationals of El Salvador, Guatemala, Honduras, and Haiti, which will be 
available for the entirety of FY 2023.
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    \91\ See https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021); https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sept. 14, 2022).
    \92\ Compare the publication date of this rule with January 28, 
2022, the date the temporary final rule increasing the supplemental 
cap for the first half of FY2022 was first published.
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    In the event that USCIS approves insufficient petitions to use all 
18,216 visas, the unused numbers will not carry over for the second 
half allocation because DHS believes that the operational burdens of 
calculating and administering a process to carry over unused visas, 
combined with the potential confusion for the public and adjudicators 
that could result from having different filing cutoff dates for the 
different allocations, would outweigh the benefits. In order to make 
any unused first half visas available for employers with second half 
start dates, DHS would need to set a filing cutoff date prior to 
September 15, 2023 for the first half allocation, upon which it would 
stop accepting such petitions and make a calculation of how many visas 
should be re-released for second half employers. Calculating visas to 
be re-released could also entail an additional cap allocation, 
additional announcements to the public, and potentially an additional 
lottery, all of which would significantly increase operational burdens. 
In addition to increasing operational burdens, DHS believes that the 
opening, closing, and potential re-opening of this allocation (and/or 
other cap allocations) could cause confusion for the public and 
adjudicators. Furthermore, not setting a filing cutoff date prior to 
September 15, 2023 will maximize employers' opportunity to avail 
themselves of the first half allocation. While DHS acknowledges that 
this approach could potentially result in some employers with a 
demonstrated business need in the second half of the fiscal year losing 
the opportunity to receive a supplemental visa, it is DHS's expectation 
that there will be sufficient demand from employers with first half 
start dates to use the entire allocation.
Initial Returning Worker Allocation for the Early Second Half (April 1, 
2023, Through May 14, 2023)
    For the second half of FY 2023, DHS will initially make available 
16,500 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2020, 2021, or 2022, regardless of country of nationality. These 
petitions must request a date of need starting on or after April 1, 
2023, through and including May 14, 2023. Limiting this allocation to 
employers with employment start dates on or before May 14, 2023 
reflects DHS's intentions to give employers with needs later in the 
season a better opportunity to access the H-2B program, and to prevent 
employers from petitioning under both of the second-half allocations to 
fill the same need.
    To mitigate complications from concurrent administration of the 
statutory second half cap, these petitions must be filed no earlier 
than 15 days after the second half statutory cap is reached, a date 
that USCIS will identify in a public announcement.\93\ When USCIS 
announces that it has received a sufficient number of petitions to 
reach the second half statutory cap, it will also announce the earliest 
possible filing date (15 days after the second half statutory cap) for 
this allocation. Concurrent administration of the second half statutory 
cap with the second half supplemental cap would pose significant 
operational challenges, particularly considering the volume of H-2B 
petitions USCIS would have to process at the same time. A cushion of 15 
days after the second half statutory cap is reached should provide 
USCIS with sufficient time to process H-2B petitions filed under the 
second half statutory cap and prepare to process petitions under this 
supplemental cap, and should also provide petitioners not selected 
under the statutory cap with enough time to refile under this 
supplemental cap. Furthermore, making this allocation available after 
the second half statutory cap has been reached builds in flexibility to 
account for variations in the timing of that cap being reached. DHS 
cannot predict with certainty when the FY 2023 second half statutory 
cap will be reached (or if it will be reached), and therefore, did not 
specify a date for when to first allow petitioners to file for FY 2023 
second half supplemental visas. In the event that the statutory second 
half FY 2023 cap is not reached, the supplemental allocation for 
returning workers for the second half of FY 2023 will not become 
available.
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    \93\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(2), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(1)(b) of 
this section requesting employment start dates from April 1, 2023 to 
May 14, 2023 that are received earlier than 15 days after the INA 
section 214(g) cap for the second half FY 2023 has been met.
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    Based on historical data showing increasingly high demand for H-2B 
workers with April 1 start dates, DHS expects all 16,500 visas to be 
used quickly once the supplemental allocation becomes available. 
However, in the event that USCIS approves insufficient petitions to use 
all 16,500

[[Page 76830]]

visas, the unused numbers will not carry over for petition approvals 
for employment start dates beginning on or after May 15, 2023. DHS 
chose to limit these 16,500 visas to start dates on or before May 14, 
2023, without the ability for these visas to be carried over into the 
next allocation. As previously stated, DHS believes that the 
operational burdens of calculating and administering a process to carry 
over unused visas, combined with the potential confusion for the public 
and adjudicators that could result from having different filing cutoff 
dates for the different allocations, would outweigh the benefits. In 
order to make any unused visas from this allocation available for late 
second half of FY 2023 petitions, DHS would need to set a filing cutoff 
date that would be after the cutoff for the first half allocation but 
prior to any cutoff for late second half of FY 2023 petitions and prior 
to September 15, 2023, upon which it would stop accepting petitions and 
make a calculation of how many visas should be re-released for late 
second half employers. Calculating visas to be re-released could also 
entail an additional cap allocation, additional announcements to the 
public, and potentially an additional lottery, all of which would 
significantly increase operational burdens. In addition to increasing 
operational burdens, DHS believes that the opening, closing, and 
potential re-opening of this allocation (and/or other cap allocations) 
could cause confusion for the public and adjudicators. Furthermore, not 
setting a filing cutoff date prior to September 15, 2023 will maximize 
employers' opportunity to avail themselves of the early second half 
allocation. While DHS acknowledges that this approach could result in 
employers in the late second half losing the opportunity to receive a 
supplemental visa, it is DHS's expectation that there will be 
sufficient demand from employers to use this entire allocation.
Additional Returning Worker Allocation for the Late Second Half (On or 
After May 15, 2023, Through September 30, 2023)
    For the late second half of FY 2023, DHS will make available an 
additional allocation of 10,000 visas limited to returning workers, in 
other words, those workers who were issued H-2B visas or held H-2B 
status in fiscal years 2020, 2021, or 2022, regardless of country of 
nationality. To assist employers needing workers to begin work during 
the late spring and summer seasons in the fiscal year (also referred to 
as ``late season employers''), these petitions must request a date of 
need starting on or after May 15, 2023. These petitions must be filed 
no sooner than 45 days after the second half statutory cap is reached, 
a date that USCIS will identify in a public announcement.\94\ When 
USCIS announces that it has received a sufficient number of petitions 
to reach the second half statutory cap, it will also announce the 
earliest possible filing date (45 days after the second half statutory 
cap) for this allocation. The cushion of 45 days after the second half 
statutory cap is reached is intended to provide USCIS with sufficient 
time to process H-2B petitions filed under the second half statutory 
cap that remain pending, as well as to process the expected influx of 
petitions under the early second half supplemental cap that will begin 
15 days after the second half statutory cap is reached.\95\ By allowing 
USCIS to manage its workload in this way, the 45-day period will help 
USCIS prepare to process petitions under the late second half 
supplemental cap and to mitigate the complications from concurrent 
administration of these various caps.
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    \94\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(3), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(1)(c) of 
this section requesting employment start dates from May 15, 2023 to 
September 30, 2023, that are received earlier than 45 days after the 
INA section 214(g) cap for the second half FY 2023 has been met.
    \95\ While petitioners may continue to submit petitions under 
the early second half supplemental cap through September 15, DHS 
expects the heaviest filing to occur soon after the visas become 
available. This expectation is based on historical filing patterns, 
as well as an assumption that employers will try act quickly to 
secure workers consistent with their dates of need.
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    This is the first supplemental cap reserved for late season 
employers that need workers to begin work during the late spring and 
summer seasons in the fiscal year. By regulation, employers may only 
apply for a TLC 75 to 90 days before the start date of need,\96\ and, 
as such, employers needing workers to begin work on or after May 15 are 
not eligible to file TLC applications until on or after February 15. In 
past years, because of this requirement and the strong demand for H-2B 
workers in recent years to begin work on the earliest employment start 
date (i.e., April 1), late season employers were unable to receive cap-
subject H-2B workers because they did not have an opportunity to file 
visa petitions for cap-subject H-2B workers before the second 
semiannual statutory cap was reached. Since, based on recent years' 
data,\97\ USCIS has typically received sufficient H-2B petitions to 
meet the statutory cap for the second half of the fiscal year around 
mid-February, many of these late season employers may have decided to 
not file a TLC application. Therefore, DHS, in consultation with DOL, 
has determined that it is appropriate to make a separate allocation 
available for late season employers whose late season labor needs may 
have put them at a disadvantage in accessing H-2B workers in recent 
years. DHS, in consultation DOL, has determined that authorizing two 
allocations for the second half of FY 2023 based on an employer's start 
date of need, in addition to requiring that the employer's start date 
of need on the Form I-129 match the start date of need on the approved 
TLC,\98\ will provide employers with late season needs a better 
opportunity to receive H-2B workers to avoid irreparable harm. 
Specifically, employers with early season needs that need work to begin 
on or after April 1 will have the opportunity to file H-2B petitions 
under both the statutory cap and the first allocation of the 
supplemental cap, while employers with late season needs do not have 
that opportunity.
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    \96\ See 20 CFR 655.15(b).
    \97\ As noted above, in fiscal years 2017 through 2022, USCIS 
received a sufficient number of H-2B petitions to reach or exceed 
the relevant second half statutory cap on March 13, 2017, February 
27, 2018, February 19, 2019, February 18, 2020, February 12, 2021, 
and February 25, 2022, respectively.
    \98\ See 8 CFR 214.2(h)(6)(iv)(D) (``an H-2B petition must state 
an employment start date that is the same as the date of need stated 
on the approved temporary labor certification'').
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    A review of TLC requests for employment start dates on or after May 
15 through September 30 of FY 2016, which was the last year in which 
Congress enacted the returning worker exemption, indicates that OFLC 
received approximately 892 applications from late season employers 
requesting TLCs for more than 17,650 H-2B positions and, of this, 
certified approximately 13,200 H-2B positions. However, for the last 
six fiscal years, Congress has not enacted a returning worker 
exemption, and the statutory second half semiannual visa allocation was 
reached months in advance of May. Accordingly, this has given rise to 
the concern that the intense competition for H-2B visas among employers 
requesting TLCs for the earliest possible employment start date of 
April 1 has resulted in the semiannual allocation of H-2B visas being 
effectively unavailable for many employers who need workers to start 
late in the season.
    To mitigate complications from concurrent administration of the 
additional returning worker allocation for the second half of the 
fiscal year for late season employers and either the statutory second 
half cap or the initial supplemental allocation for returning

[[Page 76831]]

workers for the second half of the fiscal year (or both), these 
petitions must be filed no earlier than 45 days after the second half 
statutory cap is reached. When USCIS announces that it has received a 
sufficient number of petitions to reach the second half statutory cap, 
it will also announce the earliest possible filing date (45 days after 
the second half statutory cap) for this allocation. In the event that 
the statutory second half FY 2023 cap is not reached, this supplemental 
allocation for late season filers workers will not become available. 
Furthermore, in the event that USCIS does not approve sufficient 
petitions to use all 10,000 visas for late season employers, DHS will 
not carry over the unused numbers for petition approvals for any other 
allocation. For example, any unused numbers would not carry over to 
petitions for workers from El Salvador, Guatemala, Honduras, or Haiti. 
As noted above, DHS believes the operational burdens of calculating and 
administering a process to carry over unused visas would outweigh the 
benefits because of the potential confusion for the public and 
adjudicators that could result from having different filing cutoff 
dates for the different allocations. A process to carry over unused 
visas could also entail an additional cap allocation, additional 
announcements to the public, and potentially an additional lottery, all 
of which significantly increase operational burdens and may add further 
confusion to the public and adjudicators.
Allocation for Nationals of El Salvador, Guatemala, Honduras, and Haiti
    DHS will make available 20,000 additional visas that are reserved 
for nationals of El Salvador, Guatemala, and Honduras (Northern Central 
American countries) and Haiti as attested by the petitioner (regardless 
of whether such nationals are returning workers). These 20,000 visas 
will be available for petitioners requesting an employment start date 
before the end of FY 2023, up to and including September 30, 2023.
    While prior years' allocations for nationals of the Northern 
Central American countries and Haiti have not been reached, DHS 
anticipates a higher likelihood that the 20,000 visas allocated for 
these nationals by this rule will be reached by the end of this fiscal 
year. As discussed above, DHS observed robust employer interest in 
response to the FY 2021 H-2B supplemental visa allocation for 
Salvadoran, Guatemalan, and Honduran nationals and the FY 2022 
supplemental visa allocations for Salvadoran, Guatemalan, Honduran, and 
Haitian nationals, and the data show a trend of increased participation 
by Haitian, Salvadoran, Guatemalan, and Honduran workers in the H-2B 
program.\99\ Furthermore, the publication of this rule relatively early 
in the fiscal year, and the availability of this allocation for the 
entirety of FY 2023, also increase the likelihood that the 20,000 visas 
will be used.
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    \99\ As previously noted, USCIS approved petitions on behalf of 
6,805 beneficiaries under the FY 2021 allocation, 3,231 
beneficiaries under the FY 2022 first half supplemental allocation, 
and 12,318 beneficiaries for the second half of the fiscal year FY 
2022. See DHS, USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021, TRK 
8598; DHS, USCIS, Office of Performance and Quality, C3 
Consolidated, queried 10/2022, TRK 10710; DHS, USCIS, Office of 
Performance and Quality, CLAIMS3, VIBE, DOS Visa Issuance Data 
queried 10/2022, TRK 10625.
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    Employers requesting workers from one of the Northern Central 
American countries or Haiti with an employment start date in the first 
half of FY 2023 may file their petitions immediately after the 
publication of this TFR. Employers requesting workers from one of the 
Northern Central American countries or Haiti with an employment start 
date in the second half of FY 2023 must file their petitions no earlier 
than 15 days after the second half statutory cap is reached. The 
requirement to file the petition no earlier than 15 days after the 
second half statutory cap is reached is consistent with the approach 
taken for the initial returning worker allocation for the early second 
half of the fiscal year, and is in line with the Departments' 
interpretation of their authority to make available supplemental (or in 
other words, additional) visas as contingent upon the exhaustion of 
visas under the statutory cap.\100\
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    \100\ Pursuant to new 8 CFR 214.2(h)(6)(xiii)(C)(4), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xii)(A)(2) of 
this section that have a date of need on or after April 1, 2023 and 
are received earlier than 15 days after the INA section 214(g) cap 
for the second half of FY 2023 is met.
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    The Departments have decided not to further divide the 20,000 visas 
for workers from one of the Northern Central American countries or 
Haiti into separate allocations for the first and second half of the 
fiscal year. The Departments intend for this additional flexibility of 
allowing any employment start date within FY 2023 to encourage U.S. 
employers that are suffering irreparable harm or will suffer impending 
irreparable harm to seek out workers from such countries, and, at the 
same time, increase interest among nationals of the Northern Central 
American countries and Haiti seeking a legal pathway for temporary 
employment in the United States. While this approach could potentially 
result in employers with start dates in the first half of FY 2023 using 
all 20,000 visas for nationals of the Northern Central American 
countries and Haiti, and consequently, employers with start dates in 
the second half of FY 2023 losing the opportunity to utilize this 
particular allocation, DHS believes that the benefits of increasing the 
flexibility of this allocation outweighs the potential risk. Moreover, 
employers with start dates in the second half of FY 2023 seeking to 
employ nationals of the Northern Central American countries and Haiti 
may request a visa under one of the two second half supplemental 
allocations which are available for returning workers regardless of 
country of nationality.
    In the event that USCIS does not approve sufficient petitions to 
use all 20,000 visas limited to nationals of the Northern Central 
American countries and Haiti by the end of FY 2023, DHS will not carry 
over the unused numbers for petition approvals for any other 
allocation. For example, any unused numbers would not carry over to 
petitions for returning workers with employment start dates in the 
second half of FY 2023. As noted above, DHS believes the operational 
burdens of calculating and administering a process to carry over unused 
visas would outweigh the benefits because of the potential confusion 
for the public and adjudicators that could result from having different 
filing cutoff dates for the different allocations. A process to carry 
over unused visas could also entail an additional cap allocation, 
additional announcements to the public, and potentially an additional 
lottery, all of which significantly increase operational burdens and 
may add further confusion to the public and adjudicators. Further, this 
single filing cutoff approach provides employers with incentive and 
more time to petition for, and bring in, workers from El Salvador, 
Guatemala, Honduras, and Haiti to meet employer needs, consistent with 
the Biden administration's efforts and outreach to promote and improve 
safety, security, and economic stability in these countries.
Process if Cap Allocations Are Reached
    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 prior to September 15, 2023. Specifically, 
the following scenarios may still occur:
     The 18,216 supplemental cap visas limited to returning 
workers that will be

[[Page 76832]]

immediately available for employers with dates of need on or after 
October 1, 2022, through March 31, 2023, will be reached before 
September 15, 2023;
     The 16,500 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need 
starting on or after April 1, 2023, through May 14, 2023, will be 
reached before September 15, 2023;
     The 10,000 supplemental cap visas limited to returning 
workers that will be available for late season employers with dates of 
need on or after May 15, 2023, through September 30, 2023, will be 
reached before September 15, 2023; or
     The 20,000 supplemental cap visas limited to nationals of 
the Northern Central American countries and Haiti will be reached 
before September 15, 2023.
    Under this rule, new 8 CFR 214.2(h)(6)(xiii)(D) reaffirms the 
existing 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,\101\ 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 
18,216 supplemental cap visas limited to returning workers that will be 
immediately available for employers with dates of need on or after 
October 1, 2022, through March 31, 2023, is reached before September 
15, 2023; the 16,500 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need on or 
after April 1, 2023, through May 14, 2023, is reached before September 
15, 2023; the 10,000 supplemental cap visas limited to returning 
workers that will be available for late season employers with dates of 
need on or after May 15, 2023, through September 30, 2023, is reached 
before September 15, 2023; or the 20,000 visas limited to nationals of 
the Northern Central American countries and Haiti is reached before 
September 15, 2023. Similar to the processes applicable to the H-2B 
semiannual 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.
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    \101\ See 8 CFR 214.2(h)(8)(vii).
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C. Returning Workers

    As noted above, to address the increased and, in some cases, 
impending need for H-2B workers in this fiscal year, the Secretary of 
Homeland Security, in consultation with the Secretary of Labor, has 
determined that employers may petition for supplemental visas on behalf 
of up to 44,716 workers who were issued an H-2B visa or were otherwise 
granted H-2B status in FY 2020, 2021, or 2022. This temporal limitation 
mirrors the prior fiscal year's temporal limitation in the returning 
worker definition \102\ and the temporal limitation Congress imposed in 
previous returning worker statutes.\103\ Such workers (in other words, 
those who recently participated in the H-2B program and who now seek a 
new H-2B visa from DOS) may obtain their new visas through DOS and 
begin work more expeditiously because they have previously obtained H-
2B visas and therefore have been vetted by DOS and would have departed 
the United States as generally required by the terms of their 
nonimmigrant admission.\104\ 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 nonimmigrant visa applicants, 
including certain H-2B applicants renewing visas in the same 
classification within 48 months of the prior visa's expiration, who 
otherwise meet the strict limitations set out under INA section 222(h), 
8 U.S.C. 1202(h).\105\ 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 when 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 nonimmigrant status.
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    \102\ See, e.g., 87 FR 30334 (defining ``returning workers'' as 
``those who were issued H-2B visas or held H-2B status in fiscal 
years 2019, 2020, or 2021'').
    \103\ See INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A); 
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.
    \104\ 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.
    \105\ The interview waiver authority for certain H-2B applicants 
renewing visas in the same classification within 48 months of the 
prior visa's expiration has no sunset date. Currently, certain 
first-time H-2B visa applicants or certain H-2B visa applicants 
previously issued any type of visa within the last 48 months may be 
eligible for an interview waiver; however, the authority for these 
interview waivers are set to expire on December 31, 2022. See 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); DOS, Expanded Interview Waivers for Certain 
Nonimmigrant Visa Applicants, https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last 
updated Dec. 23, 2021).
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    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.
    To ensure compliance with the requirement that additional visas 
only be made available to returning workers, DHS will require 
petitioners seeking H-2B workers under the supplemental cap to attest 
that each employee requested or instructed to apply for a visa under 
the FY 2023 supplemental cap was issued an H-2B visa or otherwise 
granted H-2B status in FY 2020, 2021, or 2022, unless the H-2B worker 
is a national of one of the Northern Central American countries or 
Haiti and is counted towards the 20,000 cap. This

[[Page 76833]]

attestation will serve as prima facie initial evidence to DHS that each 
worker, unless a national of one of the Northern Central American 
countries or Haiti who is counted against the 20,000 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, as otherwise discussed in this rule.
    With respect to satisfying the returning worker requirement, 
employers must maintain 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 2020, 2021, or 2022, unless the H-2B worker 
is a national of one of the Northern Central American countries or 
Haiti counted towards the 20,000 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 2020, 
2021, or 2022.

D. Returning Worker Exemption for up to 20,000 Visas for Nationals of 
Guatemala, El Salvador, and Honduras (Northern Central American 
Countries) and Haiti

    As described above, the Secretary of Homeland Security has 
determined that up to 20,000 additional H-2B visas will be limited to 
workers who are nationals of one of the Northern Central American 
countries or Haiti. These 20,000 visas will be exempt from the 
returning worker requirement. Because the returning worker allocations 
have no restrictions related to a worker's country of nationality, if 
the 20,000 visa limit has been reached and the 44,716 returning worker 
cap has not, petitioners may continue to request workers who are 
nationals of one of the Northern Central American 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 2020, 2021, or 2022.
    While DHS reiterates the benefits of allocating visas under the 
supplemental cap to returning workers, the Secretary of Homeland 
Security has determined that the 20,000 limitation and exemption from 
the returning worker requirement for nationals of the Northern Central 
American countries or Haiti is beneficial for several reasons. First, 
it strikes a balance between furthering the U.S. foreign policy 
interests of expanding access to lawful pathways to nationals of the 
Northern Central American 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. The Secretary has determined that both the 
20,000 limitation and the exemption from the returning worker 
requirement for nationals of the Northern Central American countries is 
again beneficial in light of 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 
nationals of the Northern Central American countries to visa programs, 
as appropriate and consistent with applicable law. Further, E.O. 14010 
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.\106\ The availability of workers 
from the Northern Central American countries and Haiti may promote safe 
and lawful immigration to the United States, as well as help provide 
U.S. employers with additional labor from neighboring countries with 
whom the Biden administration and DHS have engaged in outreach efforts 
to promote the H-2B program.\107\ DHS believes that including nationals 
of Haiti in this allocation of up to 20,000 supplemental visas will 
further promote and improve safety, security, and economic stability 
throughout this region.\108\
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    \106\ 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).
    \107\ See, e.g., USAID, Administrator Samantha Power at the 
Summit of the Americas Fair Recruitment and H-2 Visa Side Event, 
https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (Jun. 9, 2022) (``Our combined efforts [with the labor 
ministries in Honduras and Guatemala, and the Foreign Ministry in El 
Salvador] . . . resulted in a record number of H-2 visas issued in 
2021, including a nearly forty percent increase over the pre-
pandemic levels in H-2B visas issued across all three countries.'').
    \108\ See, e.g., https://twitter.com/DHSgov/status/1580310211931144194?ref_src=twsrc%5Etfw (this supplemental 
allocation to workers from Haiti, Honduras, Guatemala, and El 
Salvador ``advances the Biden Administration's pledge, under the Los 
Angeles Declaration to expand legal pathways as an alternative to 
irregular migration''); The White House, Fact Sheet: The Los Angeles 
Declaration on Migration and Protection U.S, Government and Foreign 
Partner Deliverables, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/ (addressing several measures, including the H-
2B allocation for nationals of Haiti, as part of ``the President's 
commitment to support the people of Haiti'').
---------------------------------------------------------------------------

    Additionally, DOS will work with the relevant countries to 
facilitate consular interviews, if required,\109\ 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. 
DHS has determined that reserving 20,000 supplemental H-2B visas for 
nationals of the Northern Central American countries or Haiti is a 
reasonable allocation given the progressively increasing use of H-2B 
visas among this population in recent years, as noted above. 
Additionally, with the option to apply for visas in this category for 
the entire fiscal year, rather than dividing the allocation in two 
halves, there will be more time to reach the increased allocation. DHS 
believes these aspects 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 Central American countries and Haiti 
seeking a legal pathway for temporary employment in the United States. 
DHS also believes its outreach efforts with the governments of the 
Northern Central American

[[Page 76834]]

countries and Haiti, along with efforts in some of these countries by 
the United States Agency for International Development (USAID) to 
increase access to the H-2B program, support the decision to provide a 
higher reservation of H-2B visas for these countries than it has in 
prior recent TFRs. USAID has worked to build government capacity in 
Northern Central America to facilitate access to temporary worker visas 
under the H-2 program. Collaborating closely with the governments of El 
Salvador, Guatemala, and Honduras, USAID has strengthened the capacity 
of relevant government ministries to transparently and efficiently 
match qualified workers to temporary labor opportunities in the United 
States. In Fiscal Years 2021 and 2022, USAID increased funding to 
expand capacity building activities in El Salvador, Guatemala, and 
Honduras in response to the increased demand generated by the 
supplemental allocations of H-2B visas for Northern Central American 
nationals included in the FY 2021 and FY 2022 TFRs. The acceleration of 
USAID's activities likely helped increase uptake of H-2B visas issuance 
under the FY 2021 and FY 2022 TFRs, as H-2B visa issuances to 
Salvadorans, Guatemalans and Hondurans increased significantly over 
prior years,\110\ and USAID's assistance helped reduce the average 
period of time to match qualified workers from these three countries to 
requests from U.S. employers-- from 42 days to 14 days in El Salvador, 
55 days to 20 days in Guatemala, and 24 days to 8 days in 
Honduras.\111\ USAID's programs also strengthen worker protections by 
helping crowd out unethical recruiters and providing labor rights 
education and resources to seasonal workers.
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    \109\ As noted previously, consular officers may 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 expanded authority allowing for waiver of interview of 
certain H-2 (temporary agricultural and non-agricultural workers) 
applicants is extended through the end of 2022. Certain applicants 
renewing a visa in the same classification within 48 months of the 
prior visa's 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).
    \110\ See 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 Oct. 
15, 2022); Monthly Nonimmigrant Visa Issuance Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html (last visited Oct. 15, 2022).
    \111\ See USAID, Additional H-2B Visa Allocations for Northern 
Central America and Haiti to Address Irregular Migration, https://
www.usaid.gov/news-information/press-releases/oct-12-2022-
additional-h-2b-visa-allocations-northern-central-america-and-
haiti#:~:text=Collaborating%20closely%20with,eight%20in%20Honduras 
(Oct. 12, 2022).
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    DOS issued a combined total of approximately 26,630 H-2B visas to 
nationals of the Northern Central American countries or Haiti from FY 
2015 through FY 2020, an average of approximately 4,400 per year.\112\ 
In FY 2021, the first year in which supplemental H-2B visas were 
reserved for nationals of Northern Central American countries, DOS 
issued a combined total of 6,277 H-2B visas to nationals of those 
countries.\113\ In FY 2022, DOS issued a combined total of 15,058 H-2B 
visas to nationals of Haiti and the Northern Central American 
countries.\114\ This increase is likely due in part to the additional 
H-2B visas made available to nationals of these countries by the FY 
2021 and FY 2022 H-2B supplemental visa temporary final rules. In 
addition, based in part on the vital U.S. interest of promoting 
sustainable development and the stability of Haiti, in November 2021, 
DHS added Haiti to the list of countries whose nationals are eligible 
to participate in the H-2A and H-2B programs.\115\ Therefore, as 
previously stated, DHS has determined that the additional increase in 
FY 2023 will not only provide U.S. businesses that 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 Central American 
countries and Haiti.
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    \112\ The ``combined total'' includes all H-2B visas and are not 
limited to visas issued under supplemental caps. See 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 Mar. 15, 2022); DOS, 
Monthly Nonimmigrant Visa Issuance Statistics, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visastatistics/monthly-nonimmigrant-visaissuances.html 
(last visited Mar. 15, 2022).
    \113\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.
    \114\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, DOS Issuance Data, queried 10/2022, TRK 10698.
    \115\ 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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    The exemption from the returning worker requirement recognizes the 
small, albeit increasing, number of individuals from the three Northern 
Central American countries and Haiti who were previously granted H-2B 
visas in recent years. Absent this exemption, there may be an 
insufficient number of qualifying workers from these countries to use 
the allocated visas. Exempting this population from the returning 
worker requirement will increase the ability of workers from these 
countries to pursue lawful temporary work in the U.S., encourage 
employers to seek out individuals from these countries, and maximize 
the chance of meeting the goal of reaching the full allocation.
    USCIS will stop accepting petitions received under the allocation 
for the Northern Central American countries and Haiti after September 
15, 2023. This end date should provide H-2B employers ample time, 
should they choose, to petition for, and bring in, workers under the 
allocation for the Northern Central American 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. 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 2023 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. 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. In addition, under this rule, the petitioner 
must submit an attestation to USCIS in which the petitioner affirms, 
under penalty of perjury, that it meets the business need standard--
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.\116\ In addition to asserting that it meets the business need 
standard, the employer must attest that, by the time of submission of 
the petition to USCIS, they have prepared and retained a detailed 
written statement describing how the evidence gathered in support of 
their application demonstrates that irreparable harm is occurring or

[[Page 76835]]

impending. The employer must also attest that, upon request, it will 
provide to DHS and/or DOL all documentary evidence that supports its 
claim of irreparable harm, along with the detailed written statement it 
prepared by the time of submitting the petition to USCIS, describing 
how such evidence demonstrates irreparable harm. The petitioner must 
submit the attestation directly to USCIS, together with Form I-129, the 
approved and valid TLC,\117\ and any other necessary documentation. As 
in the rules implementing the FY 2017, FY 2018, FY 2019, FY 2021, and 
the FY 2022 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.\118\
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    \116\ 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.''
    \117\ 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).
    \118\ The attestation requirement does not apply to workers who 
have already been counted under the H-2B statutory cap for the 
second half of fiscal year 2023 (33,000). Further, the attestation 
requirement does not apply to noncitizens who are exempt from the 
fiscal year 2023 H-2B statutory cap, including those who are 
extending their stay in H-2B status. Accordingly, petitioners that 
are filing on behalf of such workers are not subject to the 
attestation requirement.
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    Prior to the first half FY 2022 temporary final rule, petitioners 
were only 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. In the temporary final rule for the first half of FY 2022, the 
Departments changed the standard to require employers to 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 the rule. This change was 
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. The Departments applied this 
standard again in the temporary final rule for the second half of FY 
2022. The Departments are also applying this standard to the instant 
temporary final rule, and are again requiring employers to 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.
    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.\119\ The irreparable harm standard in 
this rule aligns with this 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 (upon request) documentation of that harm, it calls 
into question whether the need set forth in this rule cannot in fact be 
satisfied without the ability to employ H-2B workers.
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    \119\ See section 204 of Pulic aw. 117-103, as extended by 
Public Law 117-180.
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    The ``are suffering irreparable harm or will suffer impending 
irreparable harm'' standard is also informed by the Departments' 
experiences in implementing the prior business need standard. In the 
Departments' experiences, the ``likely to suffer irreparable harm'' 
standard was difficult to assess and administer in the context of prior 
supplemental cap rules. For example, employers 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 an audit. The Departments therefore believe that 
asking employers to provide evidence of harm, as described in more 
detail later, 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.
    In contrast to previous rules, this rule also requires an employer 
to attest that it has prepared a detailed written statement describing 
(i) how the employer's business is suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all H-
2B workers requested on the I-129 petition, and (ii) how each type of 
evidence relied upon by the employer demonstrates the applicable 
irreparable harm. The employer will not submit this detailed written 
statement to DHS with its petition for supplemental visas, but will 
attest on the attestation form to having prepared a detailed written 
statement. The detailed written statement must be provided to DHS and/
or DOL upon request in the event of an audit or during the course of an 
investigation.
    This requirement is informed by the Departments' experiences in 
assessing the irreparable harm standard in previous years. When 
conducting an audit or investigation under the previous temporary final 
rules, DOL has discovered that some employers are unfamiliar with the 
irreparable harm standard and recordkeeping requirements, despite their 
signed attestation. DOL has found that employers either cannot describe 
or explain their irreparable harm (whether it occurred or was impending 
at the time of signing the attestation form), or state that irreparable 
harm neither occurred nor was impending because the employer ultimately 
was able to employ H-2B workers. The latter response reflects a 
misunderstanding of the current irreparable harm standard, because 
irreparable harm must have been occurring or impending at the time the 
employer petitioned for supplemental visas. The attestation that 
irreparable harm is occurring or is impending cannot be based on a 
speculative analysis that permanent or severe financial loss ``may 
occur'' or ``is likely to occur.'' Rather, as of the time of submission 
to DHS, employers must have concrete evidence establishing that severe 
and permanent financial loss is occurring, with the scope and severity 
of harm clearly articulable, or that severe and permanent financial 
loss will occur in the near future without access to the supplemental 
visas. Even if no irreparable harm ultimately occurs because the 
employer is approved for supplemental visas under this rule, the 
employer must be able to articulate how permanent and severe financial 
loss was

[[Page 76836]]

impending at the time of filing. Additionally, in DOL's experience, 
employers sometimes do not retain the documentation they specifically 
attested they would retain, or will not or cannot explain how this 
documentation demonstrates the relevant irreparable harm to which they 
attested, which indicates that some of the employers seeking to benefit 
from hiring H-2B workers are not thoughtfully considering, or 
considering at all, whether their business needs qualify them for 
supplemental H-2B visas under these rules.
    Additionally, the Departments believe that the written statement is 
necessary in the case of an audit or investigation to explain, in 
detail, the employer's reasoning as to why irreparable harm was 
occurring or impending without the ability to employ H-2B workers, and 
how the evidence supports the employer's reasoning. In audits and 
investigations, some employers have provided hundreds of pages of 
evidence without any explanation as to how this evidence demonstrates 
irreparable harm, leaving DOL or DHS to determine how a voluminous 
compilation of complex and seemingly unrelated documents demonstrates 
irreparable harm without any understanding of the employer's intent 
when providing the documents. A detailed, thoughtful explanation from 
the employer will clarify the purpose of these documents and allow the 
employer to clearly make their case that the business was experiencing 
irreparable harm or would experience impending irreparable harm at the 
time of petitioning for supplemental visas.
    As such, the Departments believe that it is prudent to require 
employers to identify how they are suffering irreparable harm (that is, 
permanent or severe financial loss), or will suffer impending 
irreparable harm, and how the evidence they will maintain shows that 
harm was occurring or impending, at the time they petition for H-2B 
visas under this rule. The written statement should identify, in 
detail, the severe and permanent financial loss that is occurring or 
will occur in the near future without access to the supplemental visas, 
and should describe how the information contained in the documentary 
evidence demonstrates this severe and permanent financial loss. A 
written statement explaining that no irreparable harm occurred because 
the employer was approved for supplemental H-2B visas is insufficient; 
if no irreparable harm actually occurred, the employer must be able to 
show that irreparable harm was impending at the time of the petition's 
filing. Supporting evidence of the employer's irreparable harm (either 
occurring or impending) maintained and discussed in the detailed 
written statement 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 2020, 2021, and 2022) 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; 
and/or
    (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.
    These examples are not exhaustive, nor will they necessarily 
establish that the business meets the irreparable harm standard; 
petitioners may retain other types of evidence they believe will 
satisfy these standards. Such evidence must be maintained and provided, 
with the written statement, to DOL or DHS upon request.
    While the employer will not submit the detailed written statement 
nor the supporting evidence to DHS at the time of filing a petition for 
H-2B visas under this rule, the Departments emphasize that the employer 
must prepare the detailed written statement and compile the evidence at 
the time of filing. The employer must complete the analysis as to 
whether the employer is experiencing irreparable harm or will 
experience impending irreparable harm at the time the employer 
petitions for supplemental visas using evidence available at this time. 
In the interest of efficiency, the Departments do not require the 
submission of this statement to DHS at the time of filing the petition. 
Instead, the employer must attest that it has prepared the detailed 
written statement.
    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. USCIS may reject in accordance 
with 8 CFR 103.2(a)(7)(ii) or deny in accordance with 8 CFR 
103.2(b)(8)(ii), as applicable, any petition requesting H-2B workers 
under this FY 2023 supplemental cap that is lacking the requisite 
attestation form. Although this regulation does not require submission 
of evidence and/or a detailed written statement at the time of filing 
of the petition, other than an attestation, the employer must have such 
evidence and the accompanying detailed written statement 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.
    As with petitions filed under the FY 2021 and FY 2022 Supplemental 
TFRs, 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. The Departments 
may consider failure to provide evidence demonstrating irreparable 
harm, to prepare or provide the detailed written statement explaining 
irreparable harm, or to comply with the audit process to be a 
substantial violation resulting in an adverse agency action on the 
employer, including assessment of a civil money penalty, 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)(xiii)(B)(2)(vi) and (vii) may constitute a violation of the 
terms and

[[Page 76837]]

conditions of an approved petition and lead to petition revocation 
under 8 CFR 214.2(h)(11)(iii)(A)(3).
    The attestation submitted to USCIS will also state that the 
employer:
    (1) meets all other eligibility criteria for the available visas, 
including the returning worker requirement, unless exempt because the 
H-2B worker is a national of one of the Northern Central American 
countries or Haiti who is counted against the 20,000 visas reserved for 
such workers;
    (2) 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);
    (3) will conduct additional recruitment of U.S. workers in 
accordance with the requirements of this rule and discussed further 
below; and
    (4) will document and retain evidence of such compliance.
    Because petitioners will submit the attestation 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, USCIS may deny or revoke, as applicable, 
a petition based on or related to statements made in the attestation, 
including but not limited to the following grounds: (1) the employer 
failed to demonstrate employment of all of the requested workers is 
necessary under the appropriate business need standard; or (2) the 
employer failed to demonstrate that it requested and/or instructed that 
each worker petitioned for is a returning worker, or a national of one 
of the Northern Central American countries or Haiti, as required by 
this rule. The petitioner may appeal any denial or revocation on such 
basis, however, 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 to applying the eligibility requirements of this rule without 
causing undue delays in the filing or adjudication processes for those 
employers with start dates in the first half of the fiscal year, many 
of whom will have already begun or completed the TLC application 
process. The Departments have determined that, if such employers were 
required to submit the attestation form to DOL before filing a petition 
with DHS, the attendant delays would negatively impact the ability of 
American businesses to timely get the help that they need given TLC 
processing timeframes. For consistency and to avoid confusion, the 
Departments will also maintain the post-TLC attestation process for 
employers with start dates in the second half of the fiscal year that 
seek supplemental H-2B visas under this rule. This approach, in 
conjunction with additional integrity safeguards, has been used 
consistently in prior supplemental H-2B temporary final rules, and the 
Departments will continue to monitor its effectiveness and sufficiency. 
As in prior years, all employers under this rule are required to retain 
documentation, which the employer must provide 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 Central American countries or Haiti who 
is counted against the 20,000 (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 655.67. Although the employer must have such 
documentation on hand at the time it files the petition, the 
Departments do not believe it is necessary or efficient for all 
employers to submit such documentation to USCIS at the time of filing 
the petition. However, as noted above, the Departments will employ 
program integrity measures, including additional scrutiny by DHS of 
employers that have committed labor law violations in the H-2B program 
and continue to conduct 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, see 8 CFR 103.2(b) 
and 8 CFR 214.2(h)(11), 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.
    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 that they meet the document retention 
requirements at new 20 CFR 655.67, petitioners must retain documents 
and records fulfilling their responsibility to demonstrate compliance 
with this rule for 3 years from the date the TLC was approved, 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 is occurring or will 
occur and document the form of such harm. Examples of possible types of 
evidence to be maintained are listed earlier in this section.
    When a 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 Central American countries or Haiti 
counted towards the 20,000 cap, among other attestations. 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, refer the 
petitioner to DOL for further investigation. 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 one year or more than five 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.\120\
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    \120\ 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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[[Page 76838]]

    Evidence reflecting a preference for hiring H-2B workers over U.S. 
workers may warrant 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. 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 
Oct. 25, 2022). 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 Oct. 25, 
2022).\121\
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    \121\ 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 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 204 
of the FY 2022 Omnibus, as extended by Public Law 117-180, 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 2022 Omnibus, as extended by Public Law 117-180, 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.\122\ Thus, if the 
attestation requirement or any other part of this rule is enjoined or 
held invalid, the Departments intend for the remainder of the rule, 
with the exception of the retention requirements being codified in new 
20 CFR 655.67, 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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    \122\ 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, and as an additional flexibility for H-2B employees seeking to 
begin work with a new H-2B employer, 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, generally for a period of up to 60 days. Such workers must be 
beneficiaries of a timely, non-frivolous H-2B petition requesting an 
extension of stay received on or after January 25, 2023, but no later 
than 1 year after that date.\123\ In addition, such workers must have 
been lawfully admitted to the United States and have not worked without 
authorization subsequent to such lawful admission. 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 January 25, 2023 without waiting for 
approval of the H-2B petition. To be eligible for portability, 
employers must have received an approved TLC demonstrating that they 
have completed a test of the U.S. labor market, and that DOL determined 
that there were no qualified U.S. workers available to fill these 
temporary positions. DHS is making this portability available for an 
additional one-year period in order to provide greater certainty for H-
2B employers and workers, as well as to provide stability for H-2B 
employers amidst continuing uncertainties surrounding the COVID-19 
pandemic including possible future impacts of COVID-19 variants.\124\
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    \123\ Individuals 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)(29).
    \124\ See Carolyn Y. Johnson, XBB, BQ.1.1, BA.2.75.2--a variant 
swarm could fuel a winter surge, Washington Post, https://www.washingtonpost.com/health/2022/10/18/covid-variants-xbb-bq1-bq11/ (Oct. 18, 2022). See also, CDC, Variants of the Virus, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last 
updated Aug. 11, 2021); CDC, Frequently Asked Questions About COVID-
19 Vaccination, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Oct. 13, 2022).
---------------------------------------------------------------------------

    The portability provision at new 8 CFR 214.2(h)(29)(iii)(A)(1)-(2) 
is substantively the same as the portability provision offered in the 
prior second half FY 2022 H-2B supplemental visa temporary final rule, 
which was codified at 8 CFR 214.2(h)(28)(iii)(A)(1)-(2), and will begin 
upon the expiration of that provision. See new 8 CFR 
214.2(h)(29)(iii)(A)(1)-(2). Additionally, the provision is similar to 
temporary flexibilities that DHS has used previously to improve 
employer access to noncitizen workers during the COVID-19 
pandemic.\125\
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    \125\ 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 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. Temporary Changes to 
Requirements Affecting H-2B Nonimmigrants Due to the COVID-19 
National Emergency, 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. Temporary Changes to Requirements Affecting H-2A 
Nonimmigrants Due to the COVID-19 National Emergency, 85 FR 21739 
(April 20, 2020). 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. Temporary Changes to 
Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 
National Emergency: Partial Extension of Certain Flexibilities, 85 
FR 51304 (August 20, 2020) and Temporary Changes to Requirements 
Affecting H-2A Nonimmigrants due to the COVID-19 National Emergency: 
Extension of Certain Flexibilities, 85 FR 82291 (December 18, 2020).
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    The employment authorization provided under this provision would 
end 15 days after USCIS denies the H-2B petition or such petition is 
withdrawn. During the entire period of

[[Page 76839]]

the employment authorization, including this 15-day period, the new 
employer is obligated to comply with all applicable labor laws and 
regulations. This 15-day period of employment following an H-2B 
petition denial or withdrawal is consistent with prior H-2B 
supplemental cap temporary final rules, as well as the 15-day period of 
employment following petition denial under existing DHS regulations at 
8 CFR 274a.12(b)(21) for certain E-Verify participants to employ H-2A 
workers. As in the prior temporary final rules, the 15-day period is 
intended to account for the passage of time between USCIS denial of the 
H-2B petition and the petitioner receiving notice of such denial, but 
the Departments will continue to assess the necessity and effectiveness 
of this grace period.\126\
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    \126\ A similar portability provision exists in DHS regulations 
related to H-1B nonimmigrant workers, but does not include a 15-day 
period. See 8 CFR 214.2(h)(2)(i)(H)(2).
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    The portability provision is in part intended to mitigate the harm 
that petitioners may experience resulting from the continuing 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.
    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).\127\ This 
determination that a public health emergency exists due to COVID-19 has 
subsequently been renewed ten 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, on October 15, 2021, on January 14, 2022, on July 15, 
2022, and most recently on October 13, 2022.\128\ As well, 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.\129\ The proclamation declared that the emergency began on 
March 1, 2020. On February 18, 2022, President Biden issued a 
continuation of the National Emergency concerning the COVID-19 
pandemic.\130\ As of October 4, 2022, there have been over 615 million 
confirmed cases of COVID-19 identified globally, resulting in more than 
6.5 million deaths.\131\ Approximately 95,112,569 cases have been 
identified in the United States, with approximately 1,048,387 reported 
deaths due to the disease.\132\
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    \127\ See HHS, Determination of Public Health Emergency, 85 FR 
7316 (Feb. 7, 2020).
    \128\ See HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-
13Oct2022.aspx (Oct. 13, 2022).
    \129\ See Proclamation 9994 of Mar. 13, 2020, Declaring a 
National Emergency Concerning the Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \130\ See Continuation of the National Emergency Concerning the 
Coronavirus Disease 2019 (COVID-19) Pandemic, 87 FR 10289 (Feb. 23, 
2022); Proclamation 9994 of March 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337.
    \131\ See World Health Organization, WHO Coronavirus (COVID-19) 
Dashboard, https://covid19.who.int (last visited Oct. 5, 2022).
    \132\ See id.
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    Due to the possibility that some H-2B workers may be unavailable 
due to travel restrictions, including those intended to limit the 
spread of COVID-19, or may become unavailable due to COVID-19 related 
illness, U.S. employers that have approved H-2B petitions or that will 
be filing H-2B petitions in accordance with this rule might not receive 
all of the workers requested to fill the temporary positions. 
Portability provides an alternative for such employers by allowing them 
to more expeditiously employ H-2B workers who are already in the United 
States. 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.\133\ 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, is equitable and fair to H-2B workers who 
may have found themselves in situations that warrant a change in 
employers.\134\ This flexibility 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 
supplemental caps who have the skills to perform the job duties. In 
that sense as well, it is equitable and fair to employers.
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    \133\ 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.''
    \134\ 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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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.\135\ 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.
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    \135\ 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 Oct. 17, 2022).
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    U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and 
Border Protection (CBP) do not conduct enforcement actions at or near 
vaccine distribution sites or clinics. Consistent with DHS' protected 
areas policy, ICE and CBP generally do not carry out enforcement 
actions in or near protected areas, including at medical or

[[Page 76840]]

mental healthcare facilities, 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.\136\
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    \136\ See ICE, FAQs: Protected Areas and Courthouse Arrests, 
https://www.ice.gov/about-ice/ero/protected-areas (last visited Oct. 
17, 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 2023 
Omnibus, the Departments are using the DOL Form ETA-9142-B-CAA-7 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-7 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 and 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)(xiii)(B)(2)(iii) and 20 CFR 655.65(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.\137\ Because petitioners will submit the attestation 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, USCIS may deny 
or revoke, as applicable, a petition 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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    \137\ See DOL, Employee Rights--H-2B Workers and COVID-19, 
https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf 
(English) (last visited Oct. 17, 2022); https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf (Spanish) (last visited 
Oct. 17, 2022).
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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 and 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.\138\ This obligation is also reflected as a 
condition of H-2B portability under this rule. See new 8 CFR 
214.2(h)(29)(iii)(B).
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    \138\ 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.'' \139\ More recently, the 
Biden Administration reiterated its call on employers to provide paid 
time off to their employees to get booster shots.\140\ Consistent with 
the President's statements, the Departments strongly urge, but do not 
require, that all employers seeking H-2B workers (not limited to those 
under this 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.\141\ On January 22, 2022, similar requirements entered into 
force at land ports of entry and ferry terminals.\142\ The Departments 
therefore expect that H-2B nonimmigrants who enter the United States 
under this rule will generally be fully vaccinated against COVID-19. 
The 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.
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    \139\ See The White House, Remarks by President Biden on the 
COVID-19 Response and the State of Vaccinations, 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/ (Apr. 21, 2021).
    \140\ See The White House, FACT SHEET: Biden Administration 
Outlines Plan to Get Americans an Updated COVID-19 Vaccine Shot and 
Manage COVID-19 this Fall, https://www.whitehouse.gov/briefing-room/statements-releases/2022/09/08/fact-sheet-biden-administration-outlines-plan-to-get-americans-an-updated-covid-19-vaccine-shot-and-manage-covid-19-this-fall/ (Sept. 8, 2022); see also The White 
House, President Biden Announces New Actions to Protect Americans 
Against the Delta and Omicron Variants as We Battle COVID-19 this 
Winter, 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/ (Dec. 2, 2021).
    \141\ See Advancing the Safe Resumption of Global Travel During 
the COVID-19 Pandemic, 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also Amended Order Implementing Presidential 
Proclamation on Advancing the Safe Resumption of Global Travel 
During the COVID-19 Pandemic, 86 FR 61224 (Nov. 5, 2021) 
(implementing CDC Order).
    \142\ See Notification of Temporary Travel Restrictions 
Applicable to Land Ports of Entry and Ferries Service Between the 
United States and Mexico, 87 FR 3425 (Jan. 24, 2022); Notification 
of Temporary Travel Restrictions Applicable to Land Ports of Entry 
and Ferries Service Between the United States and Canada, 87 FR 3429 
(Jan. 24, 2022); Notification of Temporary Travel Restrictions 
Applicable to Land Ports of Entry and Ferries Service Between the 
United States and Mexico, 87 FR 24048 (Apr. 22, 2022).
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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.
    In addition, the Departments strongly encourage all petitioners to 
facilitate and provide flexibilities, to the greatest extent possible, 
to all their workers who wish to receive COVID-19 vaccinations.

H. DHS Petition Procedures

    To petition for H-2B workers under the supplemental allocations in 
this rule, the petitioner must file a Form I-129 at the USCIS 
California Service Center in accordance with applicable regulations and 
form instructions, along with an unexpired TLC and the attestation Form 
ETA-9142-B-CAA-7. Petitions filed for supplemental allocations under 
this rule at any

[[Page 76841]]

location other than the USCIS California Service Center will be 
rejected and the filing fees will be returned. 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 H-2B 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.
    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 Central American 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 Central American countries or Haiti under the 20,000 visa 
allocation that are exempt from the returning worker provision must 
file a separate Form I-129 for those nationals of the Northern Central 
American countries and Haiti only. See new 8 CFR 214.2(h)(6)(xiii). In 
this regard, a petition must be filed with a single Form ETA-9142-B-
CAA-7 that clearly indicates that the petitioner is only requesting 
nationals from a Northern Central American country or Haiti who are 
exempt from the returning worker requirement. Specifically, if the 
petitioner checks the first box of Form ETA-9142-B-CAA-7, then the 
petition accompanying that form must be filed only on behalf of 
nationals of one or more of the Northern Central American 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 
Central American countries or Haiti, then USCIS may reject it or 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 Central American countries or Haiti. Requiring the filing of 
separate petitions to request returning workers and to request workers 
who are nationals of the Northern Central American 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-7, 
Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers 
Under Section 204 of Division O of the Further Consolidated 
Appropriations Act, 2022, Public Law 117-103, and Public Law 117-180. 
See new 20 CFR 655.65. 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 655.67. Petitions submitted to DHS pursuant 
to Public Law 117-180, which extended the FY 2022 Omnibus, will be 
processed in the order in which they were received within the relevant 
supplemental allocation, and pursuant to processes parallel to those 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).
    USCIS is implementing a change in the filing location for petitions 
filed under the supplemental allocations in this rule, with all such 
filings at a single location. Under standard processes, H-2B petitions 
are filed at one of two USCIS service centers generally based on the 
state in which the petitioner's primary office is located. To manage 
the additional workload from the supplemental allocations provided by 
this rule, all such filings will be centralized at the USCIS California 
Service Center. USCIS will reject petitions filed under the 
supplemental allocations in this rule at any location other than the 
USCIS California Service Center and will return the filing fees for any 
such petition.
    Immediately upon publication of the rule, but no earlier than that 
date, USCIS will begin accepting returning worker H-2B petitions 
requesting dates of need starting on or before March 31, 2023, as well 
as H-2B petitions for workers from the Northern Central American 
Countries and Haiti with dates of need in the first half of FY 
2023.\143\ Beginning no earlier than 15 days after the second half 
statutory cap is reached, USCIS will begin accepting H-2B petitions 
requesting work to begin on or after April 1, 2023, through May 14, 
2023, as well as H-2B petitions for workers from the Northern Central 
American Countries and Haiti with dates of need on or after April 1, 
2023 through September 30, 2023. Finally, beginning no earlier than 45 
days after the second half statutory cap is reached, USCIS will begin 
accepting H-2B petitions requesting work to begin on or after May 15 
through September 30, 2023.
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    \143\ DHS has determined, and USCIS will separately announce on 
its website, consistent with 8 CFR 106.4(g) and historical practice, 
that circumstances prevent the completion of processing of a 
significant number of H-2B supplemental cap petitions with start 
dates of need on or before March 31, 2023 that will be filed on or 
after the effective date of this rule within the 15-day premium 
processing timeframe. USCIS will therefore temporarily suspend 
premium processing for those petitions. This suspension will affect 
H-2B petitions filed under the NCA/Haiti allocation with start dates 
of work on or before March 31, 2023, as well as H-2B petitions filed 
under the returning worker allocation for the first half of FY 2023 
(i.e., those with start dates on or before March 31, 2023). DHS will 
resume premium processing of these petitions on January 3, 2023 at 
which time it will begin to accept premium processing requests for 
these petitions on Form I-907. This temporary suspension was 
considered when establishing filing periods for H-2B supplemental 
cap petitions with start dates on or after April 1, 2023.
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    USCIS will reject any returning worker petition that is received 
after September 15, 2023, or after the applicable numerical limitation 
has been reached. DHS believes that 15 days

[[Page 76842]]

from the end of the fiscal year is the minimum time needed for 
petitions to be adjudicated, although USCIS cannot guarantee the time 
period will be sufficient in all cases. Therefore, even if the Northern 
Central American/Haitian allocation and second half supplemental 
allocations provided in this rule have not yet been reached, USCIS will 
stop accepting petitions under those allocations that are received 
after September 15, 2023. See new 8 CFR 214.2(h)(6)(xiii)(C). Such 
petitions will be rejected and the filing fees will be returned. 
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.
    Based on the time-limited authority granted to DHS by Public Law 
117-180, on the same terms as section 204 of the FY 2022 Omnibus, DHS 
is notifying the public that USCIS cannot approve petitions seeking H-
2B workers under this rule on or after October 1, 2023. See new 8 CFR 
214.2(h)(6)(xiii)(C). Petitions pending with USCIS that are not 
approved before October 1, 2023 will be denied and any fees will not be 
refunded. See new 8 CFR 214.2(h)(6)(xiii)(C).

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 new 20 CFR 655.65(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 employers sought H-2B workers.
    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.
Emergency Procedures
    Under 20 CFR 655.17, an employer may request a waiver of the time 
period(s) for filing an Application for 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, 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. 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.
Additional Recruitment
    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)(xiii), and who file an I-129 petition 30 or more days after 
the certified start date of work on the TLC must conduct additional 
recruitment for U.S. workers. 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 April 1, 2022, 
for example, likely conducted their positive recruitment beginning 
around late-January and ending around mid-February 2022, and continued 
to consider U.S. worker applicants and referrals only until March 11, 
2022.
    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 30 or more days after their certified start dates of work, as 
shown on its approved Form ETA-9142B, Final Determination: H-2B 
Temporary Labor Certification Approval, 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. As noted in the FY 2022 second 
half H-2B supplemental cap TFR, the Departments determined that this 
30-day requirement is consistent with provisions contained in previous 
TFRs and better aligns with the goal of affording workers an adequate 
opportunity to apply for jobs closer to when they tend to search for 
temporary employment, as explained in the 2015 H-2B Interim Final Rule, 
which found that U.S. applicants applying for temporary positions 
typically offered by H-2B employers are often not seeking job 
opportunities, or making informed decisions about such work, several 
months in advance. See 80 FR 24041, 24071; 87 FR 30334, 30353-54.
    An employer that files an I-129 petition under 8 CFR 
214.2(h)(6)(xiii) fewer than 30 days after the certified start date of 
work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
7 but is not required to conduct additional recruitment for U.S. 
workers beyond the recruitment already conducted as a condition of 
certification. Only those employers with

[[Page 76843]]

still-valid TLCs with a certified start date of work that is 30 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 a TLC 
and attest that the recruitment will be conducted, as follows.
Placement of New Job Orders With State Workforce Agencies
    Employers that are required to engage in additional 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. Under this rule, employers 
must also provide the OFLC NPC with the unique TLC case number 
concurrently with their placement of new job orders with the SWAs. This 
notification will allow OFLC to cross reference and repost information 
about the job opportunities that are provided on the employers' 
certified Applications for Temporary Labor Certification and posted by 
OFLC on SeasonalJobs.dol.gov, which is DOL's electronic job registry 
authorized under 20 CFR 655.34. Once posted by OFLC, information about 
the employer's certified job opportunity will remain posted for a 
period of at least 15 calendar days, which is consistent with the 
period of time SWAs post job orders for intrastate and interstate 
clearance to recruit U.S. workers, as discussed below. The Departments 
believe this additional notification is a reasonable and cost-efficient 
method of disseminating available job opportunities to a wider audience 
and those U.S. workers who may be interested in applying. While not 
meant to recreate it, this action will serve the same functional 
purpose as the posting on Seasonal Jobs. To help employers who must 
conduct this notification requirement, DOL encourages employers to 
notify the OFLC NPC, at the same time notification is sent to the SWA, 
by sending an email to [email protected], and including the 
words ``H-2B TFR 2023 Recruitment'' followed by the unique TLC case 
number in the subject line of the email.
    The new job order placed with the SWA 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 at least 15 calendar days, during the period the employer is 
conducting the additional recruitment steps explained below and OFLC 
reposts the job opportunity information, 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 minimum 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). To 
facilitate an effective dissemination of 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.
Contact With American Job Centers
    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''

[[Page 76844]]

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.
Contact With AFL-CIO for Jobs in Traditionally or Customarily Unionized 
Occupation or Industry
    Second, when a job is in a traditionally or customarily unionized 
occupation or industry, during the time the SWA is actively circulating 
the job order the employer must affirmatively contact the nearest 
American Federation of Labor and Congress of Industrial Organizations 
(AFL-CIO) office covering the area of intended employment to provide 
written notice of the job opportunity and request assistance in 
recruiting qualified U.S. workers who may be interested in applying for 
the job opportunity. The employer must provide the AFL-CIO office (by 
mail, email, or other effective written means) a copy of the job order 
placed with the SWA. To determine which occupations are traditionally 
or customarily unionized, and to obtain information about the proper 
AFL-CIO office to contact,\144\ employers should search the resources 
available on the OFLC website, under the ``Customarily Unionized H-2B 
Occupations'' tab on the lefthand side of the OFLC homepage: https://www.dol.gov/agencies/eta/foreign-labor.\145\ In addition, to help 
employers who must conduct this additional recruitment step, employers 
may also contact the national AFL-CIO and request assistance in 
circulating the job order to the nearest AFL-CIO office covering the 
area of intended employment to advertise and recruit U.S. workers for 
the job opportunity. The most effective means of contacting the 
national AFL-CIO is to email the job order and request for assistance 
to [email protected], but employers may also visit https://aflcio.org to 
obtain information on other effective means of contacting the 
organization for assistance. As with the May 2022 TFR, upon receipt, 
the national AFL-CIO will distribute a copy of the job order, on behalf 
of the employer, to the most appropriate AFL-CIO office(s) serving the 
area of intended employment for that job opportunity. The Department 
believes that this approach will be more straightforward and simpler 
for employers, and therefore encourages employers to meet the 
notification requirement by contacting the national AFL-CIO directly.
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    \144\ The Departments have determined that the requirement for 
employers to contact the nearest AFL-CIO office properly balances 
the goal of increasing U.S. worker outreach in those H-2B job 
opportunities that are in traditionally or customarily unionized 
occupations, while still providing employers with necessary guidance 
on recruitment requirements. The AFL-CIO is a voluntary federation 
of 58 national and international labor unions covering a substantial 
number of union employees. AFL-CIO, About Us, https://aflcio.org/about-us (last visited Nov. 9, 2022). The H-2B job opportunities in 
traditionally or customarily unionized occupations most frequently 
fall within those industries most likely to be organized or 
represented by AFL-CIO member unions.
    Additionally, the AFL-CIO's status as the largest federation of 
unions in the United States provides for comprehensive national 
coverage and increases the chances that a U.S. worker will be hired. 
See AFL-CIO Press Release, https://aflcio.org/press/releases/afl-cio-teams-wilmington-trust-and-bny-mellon-expand-retirement-planning-options (last visited Nov. 21, 2022) (noting the AFL-CIO is 
``the nation's largest federation of labor unions''). As discussed 
below, the SWAs circulation of relevant job orders based on their 
knowledge of the local labor market would provide effective outreach 
to other federations of unions and non-affiliated unions.
    \145\ These resources were developed based on recent information 
received from stakeholders indicating that collective bargaining 
agreements now exist in certain occupations, such as landscaping. In 
addition, the occupations or industries listed are ones in which the 
Department has typically observed substantial union presence in its 
program administration experience, such as occupations involved in 
public sector employment, construction and extraction activities, 
and service-related industries, where historical Bureau of Labor 
Statistics data has demonstrated a presence of union affiliated 
workers. See BLS, Economic News Release, Table 3. Union Affiliation 
of Employed Wage and Salary Workers by Occupation and Industry (Jan. 
20, 2022), https://www.bls.gov/news.release/union2.t03.htm.
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    When applicable, the employer must include information in its 
recruitment report confirming that either the national or nearest AFL-
CIO office was contacted and notified in writing of the job opportunity 
or opportunities. In the recruitment report, the employer must state 
whether the nearest AFL-CIO office referred qualified U.S. worker(s), 
including the number of referrals, or indicate that it was non-
responsive to the employer's requests. The employer must retain all 
documentation establishing that it has contacted either the national or 
nearest AFL-CIO office and submit all such information upon request 
from the Departments. Documentation or evidence that would help 
employers establish that the appropriate AFL-CIO office was contacted, 
may include, but is not limited to: documentation proving the job order 
was shipped and delivered to the AFL-CIO office (e.g., copy of the job 
order along with the certificate of shipment provided by the U.S. 
Postal Service or other courier mail or parcel delivery services and/or 
any other form of delivery confirmation); evidence confirming that the 
job order, along with a request for assistance to recruit workers, was 
in fact emailed to the appropriate AFL-CIO office (e.g., copies of 
emails); phone records accompanied by proof of a follow-up email 
sending the job order to the appropriate AFL-CIO office; or copies of 
any correspondence exchanged (e.g., letter, email) between the employer 
and the AFL-CIO office regarding worker referrals.
    We believe the requirement that employers contact the AFL-CIO in 
occupations or industries that are traditionally or customarily 
unionized will complement the requirement that SWAs circulate the job 
order to the State Federation of Labor and local unions in such 
situations, thereby increasing the likelihood that a U.S. worker will 
be recruited for the job opportunity. This is because in traditionally 
or customarily unionized industries and occupations, unions serve as an 
essential conduit for communications between U.S. workers and hiring 
employers and have traditionally been recognized as a reliable source 
of referrals of U.S. workers. Unionized applicants may additionally 
share information about the job opportunity with nonunionized 
applicants, resulting in more referrals of qualified applicants to the 
job opportunity. Within this context, the two requirements complement 
each other as the State Federations of Labor and local unions that SWAs 
would circulate relevant job orders to, based on their knowledge of the 
local labor market, are comprised of various union organizations and 
may not always

[[Page 76845]]

include the AFL-CIO. Since H-2B job opportunities in traditionally or 
customarily unionized occupations tend to fall within those industries 
most likely to be organized or represented by AFL-CIO member unions, 
this requirement increases outreach to qualified U.S. workers. 
Moreover, this requirement offers a chance for hiring employers to 
directly contact a potential pool of U.S. workers who are qualified and 
interested in the job opportunity, which can strengthen the probability 
that employers will locate U.S. workers suited for the job opportunity. 
For example, potential U.S. workers may be more inclined to contact an 
employer directly upon learning of the job opportunity rather than 
utilize the SWA as an intermediary since the application process could 
be quicker and demonstrate a willingness by employers to consider union 
workers. Direct contact between employers and unions may also initiate 
a dialogue between employers and unions that could lead to a future 
working relationship that fulfills the workforce needs of employers. 
Therefore, in providing timely and meaningful notice of job 
opportunities in traditionally or customarily unionized industries to 
the AFL-CIO, employers build on efforts by SWAs to circulate job orders 
to state and local unions, which may differ from the AFL-CIO, and thus 
broaden the scope of their U.S. worker outreach.
Contact With Former U.S. Workers
    Third, during the period of time the SWA is actively circulating 
the job order described in paragraph (a)(5)(i) of new 20 CFR 655.65 for 
intrastate clearance, the employer must make reasonable efforts to 
contact (by mail or other written 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, 2021, until the date 
the I-129 petition required under 8 CFR 214.2(h)(6)(xiii) 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 placed with the SWA, 
and solicit their return to the job. The employer must provide the 
contact and disclosures required by this paragraph in a language 
understood by the worker, as necessary or reasonable, and in writing to 
ensure the recruitment effort is effective and meaningful in reaching 
each former U.S. worker. While previous rules have not specified how 
employers should make the contact and disclosure, the Departments have 
found that employers are often using methods of written disclosure 
(such as emails or letters sent through certified mail), and are 
clarifying in this rule that the contact and disclosure with former 
workers must be written. The Departments believe that written contact 
and disclosure of the terms of the job order is more effective than 
oral disclosure, and provides greater assurance that workers understand 
the terms and working conditions of the job opportunity and can more 
effectively pursue redress if they do not receive the disclosed terms 
and working conditions. The Departments also believe that this change 
will make it easier for employers to establish compliance with this 
requirement, if necessary.
    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 course of 
the COVID-19 pandemic and who may be seeking employment as the economy 
continues to recover and as more people are vaccinated and boosted. 
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.
Contact With the Bargaining Representative or Posting of the Job Order
    Fourth, 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). Similar 
to the requirement to contact former U.S. workers, discussed above, the 
employer must provide the contact and disclosures required by this 
paragraph in a language understood by the worker, as necessary or 
reasonable, and in writing to ensure the recruitment effort is 
effective and meaningful in reaching each former U.S. worker.
New Recruitment Requirements for FY 2023
    Finally, as discussed below and as a change from prior TFRs, 
employers under this rule must expand their recruitment efforts by 
contacting U.S. workers currently employed at the place of employment 
to inform them of the job opportunity and request their assistance in 
recruiting qualified U.S. workers who may be seeking employment and, 
where employers maintain a company website, by posting the job 
opportunity in a conspicuous location on that site. Given the number of 
current U.S. workers who remain unemployed, including those marginally 
attached to the labor force, and mainstream estimates that labor 
shortages may ease somewhat due to rising unemployment during 2023, the 
Departments believe it is reasonable and appropriate to require 
employers seeking to access the supplemental visas during FY 2023 to 
expand their efforts in attracting qualified U.S. workers who are 
likely to apply for the job opportunity.
    Although the unemployment rate has remained historically low and in 
a narrow range of 3.5% to 3.7% since March 2022, the BLS recently 
reported that the number of unemployed persons rose by 306,000 to 6.1 
million in October 2022. The BLS also noted that there were another 5.7 
million persons in the labor force, including those marginally attached 
to the labor force, who are not counted as unemployed and currently 
want a job.\146\ The number of discouraged workers, a subset of all 
persons marginally attached to the labor force and who believed that no 
jobs were available for them, decreased by 114,000 to 371,000 in 
October 2022, providing evidence that an increasing number of U.S. 
workers are making decisions to reenter the workforce.
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    \146\ U.S. Department of Labor, Bureau of Labor Statistics, The 
Employment Situation Report--October 2022, available at https://www.bls.gov/news.release/archives/empsit_11042022.htm (accessed Nov. 
6, 2022). BLS reports that the number of persons not in the labor 
force who currently want a job was little changed at 5.7 million in 
October and remains above its pre-pandemic February 2020 level of 
5.0 million. These individuals were not counted as unemployed 
because they were not actively looking for work during the 4 weeks 
preceding the survey or were unavailable to take a job. Among those 
not in the labor force who wanted a job, the number of persons 
marginally attached to the labor force was little changed in October 
at 1.5 million. These individuals wanted and were available for work 
and had looked for a job sometime in the prior 12 months but had not 
looked for work in the 4 weeks preceding the survey.
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    Concurrently, some employers have been responding to recent trends 
in the labor market by intensifying and expanding their efforts to 
attract

[[Page 76846]]

qualified U.S. workers. For example, a recent report published by the 
Federal Reserve Bank of Richmond, which leveraged data based on a June 
2022 survey of employer hiring behavior, noted that the intensity of 
employer recruiting has substantially increased, with more employers 
reporting expansions of their recruiting efforts in the past year and 
compared to pre-pandemic levels.\147\ In particular, the report noted 
that tightness of the labor market has resulted in not only an increase 
in the number of open jobs per unemployed worker but, as employers 
continue to compete for a smaller pool of qualified applicants, they 
are exerting more effort and using a broader array of recruiting 
methods to reach qualified candidates for job vacancies. Additionally, 
a majority of employers reported expanding the geographic scope of 
their recruitment efforts and using enhanced word-of-mouth recruiting 
(e.g., recommendations from professional contacts, friends and family), 
targeting different job fairs, and holding virtual career fairs to 
reach qualified candidates. The Federal Reserve Bank of Richmond noted 
that these changes in employer hiring behavior were broad-based and 
consistent across industry and firm size as well as the level of skills 
required for the job opportunities.
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    \147\ Claudia Macaluso, and Sonya Ravindranath Waddell, Changing 
Recruiting Practices and Methods in a Tight Labor Market, Federal 
Reserve Bank of Richmond Economic Brief, No. 22-36, September 2022, 
available at https://www.richmondfed.org/publications/research/economic_brief/2022/eb_22-36 (accessed Nov. 6, 2022). The report is 
based on the Federal Reserve Bank of Richmond's Survey of Employer 
Recruiting Behavior, which was conducted jointly with the Richmond 
chapter of the Society for Human Resources Management and surveyed 
155 in-house recruiters and HR professionals from a variety of 
industries and firm sizes between June 1 to June 17, 2022.
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    Finally, while the Departments cannot predict with certainty what 
labor market conditions will be during calendar year 2023, mainstream 
estimates of labor market conditions for calendar year 2023 suggest 
that labor shortages may ease somewhat due to rising unemployment 
(although they are expected to persist to some degree in the coming 
years). For example, in conjunction with its Federal Open Market 
Committee meeting held on September 20 and 21, 2022, the Federal 
Reserve Board released its projections of the most likely outcomes for 
the U.S. economy and labor market, predicting that the unemployment 
rate will increase from an estimated average of 3.8% in 2022 to 
approximately 4.4% in 2023.\148\ Similarly, in its October 12, 2022 
publication, the Conference Board predicts that the unemployment rate 
will likely rise to an estimated 3.9% by the end of this year and peak 
at 4.4% during 2023. Although unemployment will remain low by 
historical standards, these estimates suggest that an increasing number 
of U.S. workers will likely be unemployed and actively searching for 
work during 2023, when compared to labor conditions within the past 
year.
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    \148\ Federal Reserve Board, Federal Open Market Committee, 
Summary of Economic Projections, September 21, 2022, available at 
https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20220921.htm (access Nov. 6, 2022). Projections for the 
unemployment rate are for the average civilian unemployment rate in 
the fourth quarter of the year indicated. The Federal Reserve Board 
forecasts a 4.4% median unemployment rate for 2023, which represents 
the middle projection when the projections are arranged from lowest 
to highest, and 4.1% to 4.5% central tendency unemployment rate 
range for 2023, which excludes the three highest and three lowest 
projections in each calendar year.
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    Given the most recent labor market data, mainstream estimates of 
labor market conditions for calendar year 2023, and evidence that 
employers have been responding to recent labor market dynamics by 
intensifying and expanding their recruitment efforts, the Departments 
believe it is reasonable and appropriate, at this time, to require 
employers seeking H-2B workers under this rule to expand their 
recruitment efforts both in methods to locate qualified U.S. workers, 
especially as the supplemental visas are meant for those businesses 
that have encountered or would encounter truly dire circumstances due 
to an inability to access the supplemental visas. Without these 
additional, reasonable recruitment actions, it is possible that the 
supplemental visas could be provided to employers that could find 
qualified U.S. workers, frustrating Congress' intent.
New Recruitment Requirement for FY 2023: Contact With Current U.S. 
Workers
    During the period of time the SWA is actively circulating the job 
order described in paragraph (a)(5)(i) of new 20 CFR 655.65 for 
intrastate clearance, the employer must make reasonable efforts to 
contact (by mail or other effective written means) all U.S. workers it 
currently employs at the place(s) of employment under the certified 
TLC. The employer must disclose to each of its current U.S. workers the 
terms of the job order placed with the SWA, and request assistance in 
recruiting qualified U.S. workers who may be interested in applying for 
the job opportunity. The contacts, disclosures, and requests for 
assistance required by this paragraph must be provided in a language 
understood by the worker, as necessary or reasonable, and in writing to 
ensure the recruitment effort is effective and meaningful in reaching 
each current U.S. worker.
    The employer must retain all documentation establishing that it has 
contacted each U.S. worker it currently employs at the place(s) of 
employment under the certified TLC and submit all such information upon 
request from the Departments. Documentation or evidence that would help 
employers establish compliance with this regulatory requirement may 
include, but is not limited to the following: documentation proving the 
job order, along with a request for assistance to recruit workers, was 
shipped and delivered to each current U.S. worker's address (e.g., copy 
of the job order and request for assistance along with the certificate 
of shipment provided by the U.S. Postal Service or other courier mail 
or parcel delivery services and/or any other form of delivery 
confirmation); evidence confirming that the job order, along with a 
request for assistance to recruit workers, was emailed to the current 
U.S. worker (e.g., copies of emails); or copies of any correspondence 
exchanged (e.g., letter, email) between the employer and the current 
U.S. worker regarding referrals of other qualified U.S. workers.
    Given the evolving conditions of the U.S. labor market and changing 
behavior by employers to intensify and expand their recruitment 
efforts, as described above, the Departments believe this recruitment 
step is a reasonable and cost-effective method of broadening 
dissemination of available job opportunities and increasing the 
likelihood that qualified U.S. workers will apply. We believe the 
requirement that employers contact their current U.S. workers employed 
at the place(s) of employment and solicit their assistance in 
recruiting other qualified U.S. workers will complement the requirement 
that employers post the job order in the places and manner described in 
20 CFR 655.45(b), enhance word-of-mouth recruiting that is a common 
method of soliciting referrals of qualified U.S. workers, and increase 
the likelihood of locating U.S. workers suited for the job opportunity 
more quickly and efficiently. U.S workers currently employed by the 
employer, who are more likely to be familiar with the nature of the 
employer's business operations and services or labor to be performed, 
will generally refer other U.S. workers who are qualified and may be 
more inclined to contact an employer

[[Page 76847]]

directly upon learning of the job opportunity from a family, friend, or 
colleague with experience working for the employer.
    The requirements to contact current and 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 and not significantly disadvantage 
the employee.
New Recruitment Requirement for FY 2023: Posting of the Job Opportunity 
on the Employer's Website If the Employer Has a Website
    Where the employer maintains a company website for its business 
operations, the employer must post an electronic advertisement of the 
job opportunity in a conspicuous location on this website. Although the 
vast majority of small businesses in the United States maintain a 
website, the Departments acknowledge that not all employers maintain a 
company website.\149\ Although there is no parallel requirement for 
employers without a website, requiring employers with websites to post 
the job announcement on their website is reasonable because this 
population of employers uses their websites to inform the public about 
their existence and/or the services they may provide. Thus, these 
employers' advertisement of the job opportunity, via their websites, is 
consistent with these employers' use of the internet/electronic means 
to communicate with the public. Accordingly, this recruitment 
requirement will apply only to employers that maintain a website for 
business operations. For employers who must conduct this additional 
recruitment step, the electronic advertisement of the job opportunity 
on the company website must be posted in a conspicuous location. This 
means access to the electronic advertisement on the company website 
must be clearly visible on the website's homepage or easily accessible 
from the website's homepage using any job search tool(s) or direct 
links from the homepage to a subsequent web page where other available 
jobs or careers are normally posted by the employer.
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    \149\ The U.S. Chamber of Commerce reports that 71% of small 
businesses have a website and, of those with websites, 79% of survey 
respondents claimed that their websites are mobile-friendly. 
According to the survey results, 92% of the 29% of small businesses 
without a website reported planning to have one up and running by 
the end of 2018. See U.S. Chamber of Commerce, Small Business 
Statistics, available at https://www.chamberofcommerce.org/small-business-statistics/#marketing-statistics (accessed Nov. 6, 2022).
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    The Departments have concluded that keeping the electronic 
advertisements on company websites posted for a period of at least 15 
calendar days, along with the other additional recruitment steps 
discussed above, will effectively ensure that 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 minimum 15 
calendar day period is also consistent with the employer-conducted 
recruitment activity period applicable under 20 CFR 655.40(b).
    The employer must retain all documentation establishing that it has 
posted the electronic advertisement of the job opportunity in 
compliance with regulatory requirements and submit all such information 
upon request from the Departments. Documentation or evidence for 
employers to establish compliance with these regulatory requirements 
can include screenshots of the company website on which the 
advertisement appears for a period of no less than 15 days and screen 
shots of the web pages establishing the path that U.S. workers must 
follow to access the advertisement on the website.
Hiring U.S. Workers
    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 30 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 this 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 that the job opportunity 
must be, through the recruitment period set forth in this rule, 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 material 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

[[Page 76848]]

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, 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. 74 
FR 45917. 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)(29). 
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 and 
2023, have sufficient time to apply for these jobs.
    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 the bargaining representative or AFL-CIO when 
required, 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 655.65. 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).
    The Departments are committed to ensuring that all recruitment 
conducted in conjunction with this rule complies with the additional 
recruitment requirements discussed above and encourages individuals 
with information about that recruitment to contact DOL through the OFLC 
H-2B Ombudsman Program email box ([email protected]). The H-2B 
Ombudsman Program facilitates the fair and equitable resolution of 
concerns that arise within the H-2B filing community, by conducting 
independent and impartial inquiries into issues related to the 
administration of the H-2B program. The H-2B Ombudsman Program also 
receives concerns and information relevant to case processing from 
employers, unions, and worker advocate organizations and ensures such 
information is appropriately referred within OFLC or to SWAs, as 
appropriate.
    DOL actively monitors the H-2B Ombudsman Program email box, which 
is the best method for the public to provide information to the 
Department that is relevant to the processing of H-2B applications. 
Such information may include information about an in-process TLC 
application, information regarding the employer's compliance with H-2B 
recruitment of U.S. workers, or information bearing on an employer's 
irreparable harm justification. When the H-2B Ombudsman Program 
receives information relevant to its review of an H-2B TLC application, 
the information will be forwarded to the H-2B processing center. The H-
2B processing center will review the information it receives and will 
consider it, as appropriate.
    The H-2B Ombudsman Program, however, is not an alternative to the 
employment service complaint system administered by the Employment and 
Training Administration under regulations at 20 CFR 658, subpart E. Any 
information relevant to an employment service complaint will be 
forwarded to the appropriate SWA. The public may also submit employment 
service complaints directly to the appropriate SWA; the contact 
information for each SWA is available at the following web page: 
https://www.dol.gov/agencies/eta/foreign-labor/contact.
    Complaints regarding an employer's failure to comply with the H-2B 
program requirements may also be submitted to DOL's WHD. 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; 
recovery of wages due to workers; 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 655.67, 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.
    When conducting an investigation, WHD will generally review the 
employer's compliance with this rule, the H-2B program obligations in

[[Page 76849]]

general, and any other Federal labor laws that WHD enforces (such as 
the Fair Labor Standards Act, which establishes minimum wage, overtime, 
recordkeeping and child labor obligations for most employers in the 
United States) and to which the employer is subject. WHD's 
investigations generally involve meeting with the employer, touring the 
worksite, conducting confidential interviews with employees, reviewing 
records (including those required by new 20 CFR 655.67 evidencing 
compliance with this rule), and, when appropriate, imposing sanctions 
and remedies (including back wages). For example, in the past five 
years (Fiscal Years 2018-2022), WHD collected more than $13.8 million 
in H-2B back wages owed to 8,654 workers, and assessed more than $10.6 
million in H-2B civil money penalties.
    Within the context of this rule, WHD's investigative tools are 
particularly adept for the review of alleged violations that may result 
in back wages and/or that require intensive fact-finding at the 
worksite. Additionally, WHD is well suited to investigate alleged 
violations that occur after the job order has closed and H-2B workers 
are already in the United States. For example, WHD's tools are well 
suited to investigate allegations that U.S. applicants were improperly 
rejected for the job opportunity (if supplemental recruitment was 
required as outlined in 20 CFR 655.65(a)(5)) after the job order has 
closed, as WHD may conduct employee interviews, question the employer 
as to why the applicant was not hired, review recruitment records, and, 
if a violation is substantiated, compute back wages for the improperly 
rejected U.S. applicant. Similarly, WHD is well suited to investigate 
an allegation that an employer is not complying with the obligations in 
Sec.  655.65(a)(4) (meaning that the employer is not complying with 
applicable employment related laws or regulations, or is not notifying 
the workers that all persons in the United States have equal access to 
COVID-19 vaccines and vaccine distribution sites), as substantiating 
this allegation may involve interviews with affected H-2B workers or 
the employer and a tour of the worksite.
    Additionally, WHD is well suited to investigate allegations of 
retaliation, as these cases involve complex fact finding and, if 
allegations are substantiated, may result in make-whole relief or back 
wages owed to the worker. An employer is prohibited from intimidating, 
threatening, restraining, coercing, blacklisting, discharging, or in 
any manner discriminating against any person 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). 
Examples of protected activity include making a complaint to a manager, 
employer, or WHD; cooperating with a WHD investigation; requesting 
payment of wages; refusing to return back wages to the employer; 
consulting with WHD or workers' rights organization; and testifying in 
a trial. If other laws are applicable (such as the Fair Labor Standards 
Act), the anti-retaliation provisions of those laws may also be 
applicable.
    In addition to the H-2B Ombudsman Program and the complaint process 
under 20 CFR part 658, subpart E, which are described above, workers or 
U.S. applicants for job opportunities who believe their rights under 
the H-2B program have been violated may file 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. Complainants should be 
prepared to provide their name and contact information; name, address, 
and contact information for the employer; and details about the alleged 
violation. WHD maintains all complaints as confidential unless the 
complainant provides WHD with permission to use their name when 
speaking to the employer.
    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 that occurs 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-7, 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)(xiii), 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-7 to be an appendix to the Application for Temporary 
Employment Certification and the attestations contained on the Form 
ETA-9142B-CAA-7 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-7 and 
documentation supporting the attestations. In order to make certain 
that the supplemental visa allocation is not subject to fraud or abuse, 
DHS will continue to share information regarding Forms ETA-9142B-CAA-7 
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

[[Page 76850]]

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 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 655.67, 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). 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. See, e.g., Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982) (holding that an 
agency may use the good cause exception to address ``a serious threat 
to the financial stability of [a government] benefit program''); Am. 
Fed'n of Gov't Emps. v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981) 
(finding good cause when an agency bypassed notice and comment to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices).
    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 due to the time exigencies resulting from 
the unique procedural history of the Department's authority for this 
action and the ongoing economic need for this rulemaking, as described 
further below. Overall, 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 the failure to 
provide supplemental visas as authorized by Congress. 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.,\150\ and limits eligibility for H-2B supplemental 
visas to only those businesses most in need, and also protects H-2B and 
U.S. workers.
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    \150\ Because the Departments have issued this rule as a 
temporary final rule, the supplemental cap portion of this rule--
with the sole exception of the document retention requirements--will 
be of no effect after September 30, 2023. The ability to initiate 
employment with a new employer pursuant to the portability 
provisions of this rule expires at the end of on January 24, 2024.
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    The Departments are bypassing advance notice and comment in order 
to prevent economic harm resulting from American businesses suffering 
irreparable harm due to a lack of a sufficient labor force, that would 
ensue if the Departments do not exercise the authority provided by the 
extension of supplemental cap authority in Section 204 of the 
Consolidated Appropriations Act, 2022 by section 101(6) of the FY 2023 
Continuing Appropriations Act, 2023 (authorized on September 30, 2022) 
to FY 2023 before it expires on December 16, 2022.\151\ The deadline 
for exercising the FY 2023 supplemental

[[Page 76851]]

cap authority under the Continuing Appropriations Act, 2023 is December 
16, 2022, the date on which the Continuing Appropriations Act, 2023 
expires.\152\ The Departments must give effect to this authority prior 
to its expiration in order to urgently address increased labor demand 
\153\ and insufficient labor supply, and other conditions stemming from 
the ongoing economic consequences of the ongoing COVID-19 \154\ 
pandemic, including high inflation. A characteristic of the pandemic, 
the ``Great Resignation,'' has resulted in an adverse impact on many 
employers in industries that frequently use the H-2B program,\155\ and 
reports suggest this trend has continued in 2022. Furthermore, the 
pandemic has had an impact on inflation \156\ and supply chains.\157\ 
The war in Ukraine has further strained the U.S. economy; U.S. Treasury 
Secretary Janet Yellen warned on April 6, 2022 about the economic shock 
waves set off by the war in Ukraine, including disruptions to the 
global flow of food and energy which further aggravates inflation.\158\
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    \151\ See Section 204, Consolidated Appropriations Act, 2022, 
Division O, Public Law 117-103 (Mar. 15, 2022), extended by section 
101(6) of the Continuing Appropriations and Ukraine Supplemental 
Appropriations Act, 2023, Division A (``Continuing Appropriations 
Act, 2023''), Public Law 117-180 (Sep. 30, 2022). Pursuant to 
section 106 of the Continuing Appropriations Act, 2023, Division A, 
Public Law 117-180, the deadline for exercising the FY 2023 
supplemental cap authority under this act is Dec. 16, 2022, the date 
on which the Continuing Appropriations Act expires.
    \152\ In addition, it would not be possible to publish a notice 
of proposed rulemaking, collect comments, review those comments, and 
issue a final rule prior to the expiration of the authority that 
supports this rule.
    \153\ See Irina Ivanova, America's labor shortage is actually an 
immigrant shortage, CBS News, https://www.cbsnews.com/news/immigration-jobs-workers-labor-shortage/ (Apr. 8, 2022). (``U.S. 
employers say it's a hard time to find and keep talent. Workers are 
decamping at near-record rates, while millions of open jobs go 
unfilled. One reason for this labor crunch that has largely flown 
beneath the radar: Immigration to the U.S. is plummeting, a shift 
with potentially enormous long-term implications for the job 
market.'')
    \154\ ``The U.S. has extended the Covid public health emergency 
through Jan. 11, a clear demonstration that the Biden administration 
still views Covid as a crisis despite President Joe Biden's recent 
claim that the pandemic is over.'' See Spencer Kimball, U.S. extends 
Covid public health emergency even though Biden says pandemic is 
over, CNBC Health & Science, https://www.cnbc.com/2022/10/13/us-extends-covid-public-health-emergency-.html (last visited Oct. 25, 
2022).
    \155\ 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 Greg 
Iacurci, The Great Resignation continues, as 44% of workers look for 
a new job, CNBC, https://www.cnbc.com/2022/03/22/great-resignation-continues-as-44percent-of-workers-seek-a-new-job.html (Mar 22, 2022) 
(``Almost half of employees are looking for a new job or plan to 
soon, according to a survey, suggesting the pandemic-era phenomenon 
known as the Great Resignation is continuing into 2022.'' To that 
point, 44% of employees are ``job seekers,'' according to Willis 
Towers Watson's 2022 Global Benefits Attitudes Survey. Of them, 33% 
are active job hunters who looked for new work in the fourth quarter 
of 2021, and 11% planned to look in the first quarter of 2022.''); 
Bureau of Labor Statistics, Monthly Labor Review, Great Resignation 
in Perspective, July 2022, https://www.bls.gov/opub/mlr/2022/article/the-great-resignation-in-perspective.htm (last visited Oct. 
25, 2022) (``Over the last year, the rate of job quitting in the 
United States has reached highs not seen since the start of the U.S. 
Bureau of Labor Statistics Job Openings and Labor Turnover Survey 
program in December 2000. This recent phenomenon has been called the 
``Great Resignation.'').
    \156\ See Tom Barkin, What's Driving Inflation (``The pandemic 
(and the responses to it) unleashed a series of physical and human 
supply shocks that have pushed prices and wages up and lasted far 
longer than anyone anticipated.''), https://www.richmondfed.org/press_room/speeches/thomas_i_barkin/2022/barkin_speech_20220930 
(Sep. 30, 2022). On October 20, 2022, BLS reported that the CPI-U 
increased 0.4 percent in September on a seasonally adjusted basis 
after rising 0.1 percent in August. Over the previous 12 months, the 
all items index increased 8.2 percent as of September 2022 before 
seasonal adjustment. See also BLS, Economic News Release, Consumer 
Price Index Summary (Oct. 20, 2022), https://www.bls.gov/news.release/archives/cpi_10132022.htm.
    \157\ 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.''). See also Reuters, Supply 
chain data eases, giving some hope for U.S. inflation relief 
(``Supply-related issues have been a major problem for the economy 
and for monetary policymakers for some time now. Supply disruptions 
tied to the pandemic have now been joined by disruptions related to 
Russia's war on Ukraine . . . . Last week, Fed second-in-command 
Lael Brainard cautioned it could take a while for supply chains to 
help with inflation, and noted in a speech that ``global supply 
chains have eased significantly, but by some measures they are still 
more constrained than at nearly any time since the late 1990s.''), 
https://www.reuters.com/markets/us/supply-chain-data-eases-giving-some-hope-us-inflation-relief-2022-10-17/ (last visited Oct. 25, 
2022); U.S. Department of the Treasury, Remarks by Secretary of the 
Treasury Janet L. Yellen at the Securities Industry and Financial 
Markets Association's Annual Meeting https://home.treasury.gov/news/press-releases/jy1045 (last visited Oct. 25, 2022) (``Our economic 
potential had been weighed down by sluggish productivity growth and 
declining labor force participation. Inequality had soared, with 
profound disparities by race and geography. And our economy had been 
over-exposed to the actions of malicious geopolitical actors . . ., 
vulnerabilities in our supply chain, and the growing impacts of 
climate change.'').
    \158\ See Anneken Tappe and Matt Egan, Janet Yellen warns of 
`enormous' economic repercussions from war in Ukraine, CNN Business, 
https://www.cnn.com/2022/04/06/economy/treasury-yellen-economic-impact-ukraine/index.html (Apr. 6, 2022)
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    USCIS received more than enough petitions to meet the H-2B visa 
statutory cap for the first half of FY 2023 on September 12, 2022,\159\ 
more than two weeks earlier than when the semiannual cap for the first 
half of FY 2022 was reached.\160\ Based on past years' experience, DHS 
anticipates that it will also receive sufficient petitions to meet the 
semiannual cap for the second half of the FY 2023; last year on 
February 25, 2022, USCIS received sufficient petitions to meet the H-2B 
visa statutory cap for the second half of FY 2022. Given the continued 
high demand of American businesses for H-2B workers, rapidly evolving 
economic conditions and historically high labor demand, and the limited 
time remaining until the expiration of the continuing resolution 
authorizing supplemental cap authority to help prevent further 
irreparable harm currently experienced by some U.S. employers or avoid 
impending economic harm for others,\161\ a decision to undertake notice 
and comment rulemaking, which would delay final action on this matter 
by months, would greatly complicate and potentially preclude the 
Departments from successfully exercising the authority created by 
section 204, Public Law 117-103 as extended to FY 2023 by secs. 101(g) 
and 106, Public Law 117-180.
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    \159\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2023 https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2023 (Sep. 14, 2022).
    \160\ 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).
    \161\ 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 and 274a.12 are also supported by ongoing effects of the 
COVID-19 pandemic, including labor market

[[Page 76852]]

demands. 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.\162\ This determination that a public health 
emergency exists due to COVID-19 has subsequently been renewed several 
times: on April 21, 2020, on July 23, 2020, on October 2, 2020, January 
7, 2021, on April 15, 2021, on July 19, 2021, on October 15, 2021, on 
January 14, 2022, April 12, 2022, and most recently, on October 13, 
2022.\163\ 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.\164\
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    \162\ See 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).
    \163\ See HHS, Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/covid19-13Oct2022.aspx (Oct. 20, 2022).
    \164\ See 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).
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    Travel restrictions have 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.\165\ On January 22, 2022, similar 
requirements entered into force at land ports of entry and ferry 
terminals.\166\ Varying availability of vaccines in some H-2B 
nonimmigrants' home countries could also complicate travel.
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    \165\ See Advancing the Safe Resumption of Global Travel During 
the COVID-19 Pandemic, 86 FR 59603 (Oct. 28, 2021) (Presidential 
Proclamation); see also Amended Order Implementing Presidential 
Proclamation on Advancing the Safe Resumption of Global Travel 
During the COVID-19 Pandemic, 86 FR 61224 (Nov. 5, 2021).
    \166\ See Notification of Temporary Travel Restrictions 
Applicable to Land Ports of Entry and Ferries Service Between the 
United States and Mexico, 87 FR 3425 (Jan. 24, 2022); Notification 
of Temporary Travel Restrictions Applicable to Land Ports of Entry 
and Ferries Service Between the United States and Canada, 87 FR 3429 
(Jan. 24, 2022).
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    In addition to travel restrictions, as discussed elsewhere in this 
rule, current efforts to curb the pandemic in the United States and 
worldwide have only been partially successful. 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 temporarily allow job portability for H-2B 
workers 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 in similar 
situations 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).
    The Departments recognize that the temporary nature of supplemental 
cap authority coupled with cyclical enactments and short timeframes for 
action, and the exigencies surrounding COVID-19 have not provided an 
opportunity for the public to weigh in on the implementation of this 
authority. While it is not possible to provide an opportunity for 
public comment prior to the implementation of this year's authority, 
and as explained above, the Departments have good cause to forgo notice 
and comment rulemaking, the Departments nevertheless recognize the 
importance of public input and believe they could receive valuable 
feedback that may lead to future improvements in the supplemental cap 
program. Therefore, DHS and DOL are accepting post-promulgation public 
comments for 60 days after the effective date of this rule as indicated 
in the DATES section.
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 an economically significant regulatory action. 
Accordingly, the Office of Management and Budget has reviewed this 
regulation.
1. Summary
    With this temporary final rule (TFR), DHS is authorizing the 
release of an additional 64,716 total H-2B visas to be allocated 
throughout FY 2023. In accordance with the FY 2023 continuing 
resolution extending the authority provided in section 204 of the FY 
2022 Omnibus, DHS is allocating the

[[Page 76853]]

supplemental visas in the following manner:
[GRAPHIC] [TIFF OMITTED] TR15DE22.015

    As with previous H-2B visa supplements, these visas will be 
available to businesses that: (1) show that there are an insufficient 
number of U.S. workers to meet their needs throughout FY 2023; (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 2020, 2021, or 2022, unless the H-2B worker 
is a national of one of the Northern Central American countries or 
Haiti. Additionally, up to 20,000 visas may be granted to workers from 
the Northern Central American 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 2023.
    The estimated total costs to petitioners range from $6,538,620 to 
$8,568,381. The estimated total cost to the Federal Government is 
$333,774. Therefore, DHS estimates that the total cost of this rule 
ranges from $6,872,394 to $8,902,155. Total transfers from filing fees 
made by petitioners to the Government are $9,126,020.\167\ The benefits 
of this rule are diverse, though some of them are difficult to 
quantify. Some of these benefits include:
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    \167\ DHS has determined, and USCIS will separately announce on 
its website, consistent with 8 CFR 106.4(g) and historical practice, 
that circumstances prevent the completion of processing of a 
significant number of H-2B supplemental cap petitions with start 
dates of need on or before March 31, 2023 that will be filed on or 
after the effective date of this rule within the 15-day premium 
processing timeframe. USCIS will therefore temporarily suspend 
premium processing for those petitions. This suspension will affect 
H-2B petitions filed under the NCA/Haiti allocation with start dates 
of work on or before March 31, 2023, as well as H-2B petitions filed 
under the returning worker allocation for the first half of FY 2023 
(i.e. those with start dates on or before March 31, 2023). DHS will 
resume premium processing of these petitions on January 3, 2023 at 
which time it will begin to accept premium processing requests for 
these petitions on Form I-907. DHS cannot quantify to what extent, 
if any, some petitioners may modify their behavior in response to 
this temporary suspension of premium processing. Therefore, DHS 
believes that analyzing historical trends in premium processing 
requests is the best method for estimating the population that may 
request premium processing due to this rule, and DHS recognizes the 
estimates made for both costs and transfers in the analysis could be 
on the higher end due to the possibility that the temporary 
suspension in premium processing could modify filing behavior.
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     Employers benefit from this rule significantly through 
increased access to H-2B workers;
     Customers and others benefit directly or indirectly from 
increased access;
     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; \168\
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    \168\ 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).
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     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;
     The existence of 20,000 visas set aside for workers from 
Guatemala, Honduras, El Salvador and Haiti gives lawful pathways for 
nationals from these countries to travel to and work in the U.S. and, 
therefore, provides multiple benefits in terms of U.S. policy with 
respect to the Northern Central American countries and Haiti; and
     The Federal Government benefits from increased evidence 
regarding attestations. Table 2 provides a summary of the provisions in 
this rule and some of their impacts.
BILLING CODE 9111-97-P

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[[Page 76855]]


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[[Page 76856]]


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[GRAPHIC] [TIFF OMITTED] TR15DE22.019


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[GRAPHIC] [TIFF OMITTED] TR15DE22.020

BILLING CODE 9111-97-C
2. Background and Purpose of the Temporary Rule
    The H-2B visa classification program was designed to serve U.S. 
businesses that are unable to find enough 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.\169\ The INA sets the annual number of H-2B 
visas for workers performing temporary nonagricultural work at 66,000 
to be distributed semiannually beginning in October (33,000) and in 
April (33,000).\170\ Any unused H-2B visas from the first half of the 
fiscal year are 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 would 
therefore not be made available.\171\ 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.
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    \169\ Revised effective 1/18/2009; Changes to Requirements 
Affecting H-2B Nonimmigrants and Their Employers; Correction, 73 FR 
78104 (Jan. 19, 2009); Changes to Requirements Affecting H-2B 
Nonimmigrants and Their Employers; Correction, 74 FR 2837 (Jan 18, 
2009).
    \170\ See INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B) and INA 
214(g)(4), 8 U.S.C. 1184(g)(4).
    \171\ 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).
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    On September 30, 2022, the President signed the Continuing 
Appropriations and Ukraine Supplemental Appropriations Act, 2023 that 
contains a provision reauthorizing Sec. 204 of Div. O of the FY 2022 
Omnibus, 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. 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 a total of 64,716 visas 
for FY 2023. The total supplemental allocation will be divided into 
four separate allocations: one for the first half of FY 2023, two for 
the second half of FY 2023 (a first one for employment from April 1 
through May 14, 2023, and a second one for those with filing dates 
after May 15, 2023), and a full fiscal year allocation for workers from 
NCA countries and Haiti. As with previous supplemental allocations, 
USCIS will make these supplemental visas available only to businesses 
that qualify and meet the requirements for the supplemental vias. These 
businesses must attest that they are suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all the 
H-2B workers requested on their petition.
    In contrast to previously issued H-2B TFRs which codified the 
availability of supplemental H-2B visas only after the relevant 
statutory fiscal half-year caps had been reached, the Secretaries have 
determined that this TFR will cover the entirety of FY 2023. While the 
Departments cannot predict with certainty what labor market conditions 
will be during the second half of FY 2023, they believe that the 
structure of this TFR is reasonable because (1) the

[[Page 76859]]

availability of the second half FY supplemental visas is contingent on 
the exhaustion of the second half FY statutory cap, (2) strong 
historical demand for H-2B workers, and (3) mainstream estimates of 
labor market conditions for FY 2023 indicate a continuation of labor 
market tightness from a historical perspective.\172\
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    \172\ September 2022 Federal Open Market Committee (FOMC) 
projections for unemployment rate in 2023 ranged from 3.7 to 5.0% 
with central tendency more tightly clustered between 4.1 and 4.5%. 
See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20220921.htm (last accessed Oct. 19, 2022).
[GRAPHIC] [TIFF OMITTED] TR15DE22.021

    With respect to historical demand for H-2B workers, Table 3 makes 
two important points supporting the Departments' decision to structure 
this rule in a manner that covers the entire fiscal year. First, Table 
3 shows that H-2B demand, as represented by the number of workers 
requested on certified TLCs, has outpaced the statutorily capped 
allotment of H-2B visas. This demonstrates that, in aggregate, there is 
sufficient demand for the entire supplementary allocation that the 
Departments are making available. To that end, the 5-year average of 
workers requested on certified TLCs, 136,947, would still completely 
exhaust the total supplemental allocation made available by the TFR. 
Second, Table 3 demonstrates that within a given fiscal year, demand 
for H-2B workers is particularly strong in the second half of the 
fiscal year. On average over the last 5 fiscal year, H-2B employers 
have requested 87,356 employees with start dates on April 1 or later, 
which would completely exhaust the 26,500 \175\ total supplemental H-2B 
visas explicitly set aside for workers with employment start dates in 
the first portion of the second half of FY 2023. Given these 
conditions, the Departments believe that the decision to authorize a 
second half supplement is reasonable.
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    \173\ USCIS analysis of OFLC Performance data. All data are for 
applications listed as having a case status of ``Certification'', 
``Partial Certification'', ``Determination--Certification'', or 
``Determination--Partial Certification''. Furthermore, data have 
been adjusted to a fiscal year using the employment being date 
provided on the TLC application. As such, counts differ from counts 
based on the Disclosure Files of OFLC h-2B Performance data. This 
adjustment was made so that the OFLC data more closely align to 
USCIS I-129 data.
    \174\ Averages are rounded to the nearest whole number.
    \175\ 16,500 visas for returning workers and 10,000 visas for 
filers with employment start dates May 15, 2023 or later.
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    In terms of the actual distribution of the visas being made 
available by the Rule, the Departments have determined that up to 
44,716 of the 64,716 these supplemental visas will be limited to 
returning H-2B returning workers for nationals of any country. These 
individuals must be workers who were issued H-2B visas or were 
otherwise granted H-2B status in fiscal years 2020, 2021, or 2022. The 
44,716 visas for returning workers will be divided into three separate 
allocations that will be available to petitioners over the fiscal year. 
The first allocation is comprised of 18,216 visas for returning workers 
with requested start dates between October 1, 2022, and March 31, 2023. 
These visas will be available to petitioners immediately upon the 
publication of the rule. The second allocation is comprised of 16,500 
visas for returning workers with requested start dates between April 1, 
2023, and May 14, 2023. These visas will be available to petitioners 15 
calendar days after the second half statutory cap of 33,000 visas is 
reached. The third allocation is comprised of 10,000 visas for 
returning workers with requested start dates between May 15, 2023, and 
September 30, 2023. These visas will be available to petitioners 45 
calendar days after the second half statutory cap of 33,000 visas is 
reached.
    The inclusion of an allocation of visas specifically for those 
petitioners with employment needs starting on or after May 15 is in 
response to trends in TLC data since FY 2016, illustrated in Table 4 
and Table 5. More specifically, the increase in the relative prevalence 
of April 1 start dates since 2016 gives rise to concerns that 
petitioners with employment needs later in the fiscal year may not have 
the opportunity to utilize the H-2B program because the supply of 
supplemental visas is already exhausted by the time a petitioner with a 
later start date can file a TLC and receive eligibility to request 
workers on Form I-129. Under DOL regulations, employers must apply for 
a TLC 75 to 90 days before the start date of work.\176\ Employers must 
have a DOL-approved TLC before filing their Form I-129 request for H-2B 
workers with USCIS. Because the availability of H-2B visas is limited 
by statute and regulation, USCIS generally announces to the public when 
it has received a sufficient number I-129 petitions, and by extension 
H-2B beneficiaries, to exhaust the respective H-2B visa 
allocation.\177\ USCIS rejects H-2B I-129 petitions that are received 
after USCIS has determined that a given allocation has been fully 
utilized. Functionally, this means that a subset of petitioners that 
would utilize H-2B workers given the chance may not be able to do so 
because the available visas have already been allocated before they can 
petition USCIS for the necessary workers. Using OFLC TLC data, Table 4 
illustrates that since 2016, when employers of returning workers had 
greater flexibility in determining TLC-requested start dates, requested 
H-2B

[[Page 76860]]

employment start dates have become increasingly concentrated in 
April.\178\
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    \176\ See 20 CFR 655.15(b).
    \177\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for Second Half of FY 2022, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022 (May 31, 2022).
    \178\ Tables 4 and 5 contain USCIS analysis of OFLC Performance 
data. All data are for applications listed as having a case status 
of ``Certification'', ``Partial Certification'', ``Determination--
Certification'', or ``Determination--Partial Certification.'' 
Furthermore, data have been adjusted to a fiscal year using the 
employment begin date provided on the TLC application. As such, 
counts differ from counts based on the Disclosure Files of OFLC H-2B 
Performance data. This adjustment was made so that the OFLC data 
more closely align to USCIS I-129 data.
[GRAPHIC] [TIFF OMITTED] TR15DE22.022

    This has given rise to the concern that this proliferation of April 
start dates has crowded out employers with labor needs later in the 
season (shown in Table 5). These data suggest that there may be 
structural barriers that preclude employers with later start dates from 
being able to utilize needed workers through the H-2B program. To 
illustrate, in FY 2016, a temporary statutory provision exempted 
certain H-2B visas from the cap that had been counted against the cap 
in any of the three prior fiscal years. Data from FY 2016 show a much 
higher incidence of employers that request relatively later start 
dates, suggesting that employers with later season needs would utilize 
the H-2B program but for the unavailability of visas. By making an 
allocation of visas available only to this subset of petitioners whose 
late season labor needs may have put them at a disadvantage in 
accessing H-2B workers in recent years, the Departments hope to both 
address this potentially inequitable situation and to take concrete 
steps towards collecting information through this rule to determine 
whether such a structural barrier exists. To that end, USCIS intends to 
analyze the results of this TFR as soon as feasible with the goal of 
determining whether those petitioners that utilize the late season 
filing allocation are materially different from those petitioners that 
have utilized fiscal year second half supplemental allocations for 
employment beginning on or after April 1, both via this TFR and via 
previously issued supplemental H-2B visa allocations.
    The Secretaries have also determined that up to 20,000 of the 
64,716 additional visas will be reserved for workers who are nationals 
of Guatemala, Honduras, El Salvador, and Haiti, and that these 20,000 
workers will be exempt from the returning worker requirement. These 
visas will be available for the entirety of the fiscal year and do not 
have limitations regarding the requested start date of the H-2B 
beneficiaries' employment within the fiscal year. If the 20,000 visa 
limit has been reached, a petitioner may request H-2B visas for workers 
who are nationals of Guatemala, Honduras, El Salvador, and Haiti but 
these workers must be returning workers.
3. Population
    This rule will 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 will affect those employers that 
can establish that their business is suffering irreparable harm or will 
suffer impending irreparable harm

[[Page 76861]]

without the ability to employ all the H-2B workers requested on their 
petition and without the exercise of authority that is the subject of 
this rule. Due to historical trends and strong demand for the H-2B 
program (see Table 3), the Departments believe that it is reasonable to 
assume that the population of eligible petitioners for these additional 
64,716 visas will generally be the same population as those employers 
that would already complete the steps to receive an approved TLC 
irrespective of this rule. One exception is the population of late 
season employers, described below.
    This rule will 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 H-2B employer. These H-
2B workers will continue to earn wages and gaining employers will 
continue to obtain necessary workers.
a. Population That Will File a Form I-129, Petition for a Nonimmigrant 
Worker
    As discussed above, the population that will file a Form I-129 is 
necessarily limited to those business that have already established 
that their business is suffering irreparable harm or will suffer 
impending irreparable harm without the ability to employ all the H-2B 
workers requested on their petition and without the exercise of 
authority that is the subject of this rule. Because the number of 
supplementary visas available is finite, USCIS has generally informed 
the public when the number of submitted Form I-129 petitions and, by 
extension, the number of respective beneficiaries is enough to exhaust 
the supply of supplemental visas.\179\
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    \179\ See, e.g., https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022.
[GRAPHIC] [TIFF OMITTED] TR15DE22.023

    Table 6 shows the total supplemental H-2B visa allocations issued 
by the Departments in each fiscal year since 2017,\182\ including the 
total number of petitions and the total number of beneficiaries 
submitted under a supplement in each fiscal year. Using the historical 
average of 15.01 beneficiaries per petition for supplemental visas 
derived in Table 6, USCIS anticipates that 4,312 Forms I-129 will be 
submitted as a result of this temporary final rule.\183\
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    \180\ In Fiscal Year 2021, the Departments authorized a single 
supplemental allocation which was divided between returning workers 
and workers from specific countries. See https://www.federalregister.gov/documents/2021/05/25/2021-11048/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2021-numerical-limitation-for-the
    \181\ In Fiscal Year 2022, the Departments authorized two 
separate supplemental allocations of H-2B Visas, with each being 
further divided between returning workers and workers from specific 
countries. See https://www.federalregister.gov/documents/2022/01/28/2022-01866/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2022-numerical-limitation-for-the; https://www.federalregister.gov/documents/2022/05/18/2022-10631/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-second-half-of-fy-2022.
    \182\ FY2020 was not included due to the suspension of 
additional H-2B visas to be released in 2020. DHS also noted that 
the Department of State had suspended routine visa services.
    \183\ Calculation for expected petitions. If each I-129 requests 
15.01 workers, we'd expect to see 4,312 petitioners exhausting the 
64,716 supplement allocated this year: 64,716/15.01 = 4,312 
(rounded)
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    Using the estimates in Table 6, the Departments further estimate 
that the allocation of 10,000 visas for late season filers made by this 
TFR, addressing the disadvantage these employers face in accessing 
scarce H-2B visas, will result in 667 \184\ additional DOL-ETA-9142-B 
requests assuming each late season visa requestor submits a TLC and 
Form I-129 for the historic average of 15.01 beneficiaries. The number 
of additional DOL-ETA-9142-B requests could be lower if some 
petitioners that would have filed for April 1 start dates in the 
absence of this TFR change their behavior to request late season 
workers as a result of this allocation. Alternatively, this number 
could be higher if late season filers are at a larger disadvantage in 
accessing H-2B workers than recent data suggests. The Departments 
commit to monitoring the utilization of these late season FY23 visas to 
determine if this carve-out promotes access, as anticipated, to 
employers with needs for workers later in the second half of the fiscal 
year but that have faced obstacles to accessing H-2B workers in the 
past.
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    \184\ Calculation for expected late season TLCs: 10,000 visas/
15.01 beneficiaries per petition = 667 TLCs (rounded up).
---------------------------------------------------------------------------

    USCIS recognizes that some employers will have to submit two I-129 
Forms if they choose to request H-2B workers under both the returning 
worker and Northern Central American Countries/Haiti caps. At this 
time, USCIS cannot predict how many employers will choose to take 
advantage of more than one allocation, and therefore recognizes that 
the number of petitions may be underestimated.
b. 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

[[Page 76862]]

Attorney or Accredited Representative, must accompany the Form I-129 
submission.\185\ Using data from FY 2018 to FY 2022, we estimate that a 
lawyer or accredited representative will file 45.84 percent of Form I-
129 petitions. Table 7 shows the percentage of Form I-129 H-2B 
petitions that were accompanied by a Form G-28. Therefore, we estimate 
that in-house or outsourced lawyers will file 1,977 Forms I-129 and 
Forms G-28, and that human resources (HR) specialists will file 2,335 
Forms I-129.\186\
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    \185\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \186\ Calculation: 4,312 estimated additional petitions * 45.84 
percent of petitions filed by a lawyer = 1,977 (rounded) petitions 
filed by a lawyer.
    Calculation: 4,312 estimated additional petitions--1,977 
petitions filed by a lawyer = 2,335 petitions filed by an HR 
specialist.
[GRAPHIC] [TIFF OMITTED] TR15DE22.024

c. 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.\187\ Table 8 shows the percentage of Form I-129 H-2B 
petitions that were filed with a Form I-907. Using data from FY 2018 to 
FY 2022, USCIS estimates that approximately 93.57 percent of Form I-129 
H-2B petitioners will file a Form I-907 requesting premium processing. 
Based on this historical data, USCIS estimates that 4,035 Forms I-907 
will be filed with the Forms I-129 as a result of this rule.\188\ Of 
these 4,035 premium processing requests, we estimate that in-house or 
outsourced lawyers will file 1,850 Forms I-907 and HR specialists or an 
equivalent occupation will file 2,185.\189\
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    \187\ As explained above, DHS has elected to pause the receipt 
of premium processing requests until January 3, 2023. Due to the 
timing of the pause only a subset of the overall population of 
petitioners would be affected. DHS cannot quantify to what extent, 
if any, affected petitioners may modify their behavior in response 
to such pauses of premium processing. Therefore, DHS believes that 
analyzing historical trends in premium processing requests is the 
best method for estimating the population that may request premium 
processing due to this rule, and DHS recognizes that the estimates 
for costs and transfers made in this analysis could be on the higher 
end due to modified behavior as a result of the pause in premium 
processing.
    \188\ Calculation: 4,312 estimated additional petitions * 93.57 
percent premium processing filing rate = 4,035 (rounded) additional 
Form I-907.
    \189\ Calculation: 4,035 additional Form I-907 * 45.84 percent 
of petitioners represented by a lawyer = 1,850 (rounded) additional 
Form I-907 filed by a lawyer.
    Calculation: 4,035 additional Form I-907--1,850 additional Form 
I-907 filed by a lawyer = 2,185 additional Form I-907 filed by an HR 
specialist.

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[[Page 76863]]

[GRAPHIC] [TIFF OMITTED] TR15DE22.025

d. Population That Files Form ETA-9142-B-CAA-7, Attestation for 
Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 204 
of Division O of the Consolidated Appropriations Act, 2022, Public Law 
117-103, and Public Law 117-180
    Petitioners seeking to take advantage of this FY 2023 H-2B 
supplemental visa cap will need to file a Form ETA-9142-B-CAA-7 
attesting that their business is suffering irreparable harm or will 
suffer impending irreparable harm without the ability to employ all 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 4,312 petitions will need to be 
accompanied by Form ETA-9142-B-CAA-7 and petitioners filing these 
petitions and attestations will incur burdens complying with the 
evidentiary requirements.
e. Population of Late Season Employers That File Form ETA-9142-B, 
Application for Temporary Employment Certification
    As Table 3 demonstrated, historical data strongly indicate that 
there will be sufficient demand such that only those petitioners that 
utilize the late season allocation of supplemental visas will need to 
file an additional Form ETA-9142-B. Assuming that the historical 
average of 15.01 beneficiaries per I-129 petition holds, 667 \190\ 
petitioners will need to file Form ETA-9142-B as a direct result of the 
provision reserving 10,000 visas for beneficiaries of these employers. 
Given estimates from Table 7 of the percentage of Form I-129 H-2B 
petitions accompanied by a Form G-28, we estimate that in-house or 
outsourced lawyers will file 306 of these Forms ETA-9142-B, and that 
human resources (HR) specialists will file 361 Forms ETA-9142-B.\191\
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    \190\ Calculation for expected late season TLCs: 10,000 late 
season visas/15.01 beneficiaries per petition = 667 TLCs (rounded 
up).
    \191\ Calculation: 667 estimated additional requests * 45.84 
percent of petitions filed by a lawyer (see Table 5) = 306 (rounded) 
ETA-9142-B requests filed by a lawyer.
    Calculation: 667 estimated additional requests--306 requests 
filed by a lawyer = 361 requests filed by an HR specialist.
---------------------------------------------------------------------------

f. Population That Must Undergo Additional Recruitment Activities
    An employer that files Form ETA-9142B-CAA-7 and the I-129 petition 
30 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 (SWA), contacting the 
relevant American Job Center (AJC), contacting former U.S. workers, 
contacting the bargaining representative or posting the job order in 
the places and manner described in 20 CFR 655.45(b) if there is no 
bargaining representative, contacting current U.S. workers, posting the 
job to the company's website if it maintains one and, if applicable, 
contacting the AFL-CIO.
    The Departments assume that, due to the timing of the publication 
of the rule, only petitioners that file for H-2B workers under the 
first half supplemental allocation of 18,216 workers will incur burdens 
associated with this additional recruitment. By utilizing the average 
number of beneficiaries per Form I-129 petition established in Table 6, 
the Departments estimate that the population of petitioners that would 
need to fulfil the additional recruitment requirements would be 
1,214.\192\
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    Calculation: 667 estimated additional requests--306 requests 
filed by a lawyer = 361 requests filed by an HR specialist.
    \192\ Calculation: 18,216 workers in the 1st half returning 
working supplemental allocation/15.01 workers per petitioner = 1,214 
(rounded) petitioners required to undertake additional recruitment.
---------------------------------------------------------------------------

g. 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 the 64,716 additional H-
2B workers authorized by this rule as a proxy for the H-2B population 
that could be currently present in the United States.\193\ USCIS uses 
the number of Forms I-129 filed for extension of stay due to change of

[[Page 76864]]

employer relative to the Forms I-129 filed for new employment from FY 
2016 to FY 2020, the five years prior to the implementation of the 
first portability provision in a H-2B supplemental cap TFR, to estimate 
the baseline rate. We compare the average rate from FY 2016-FY 2020 to 
the average rate from FY 2021-FY 2022. Table 9 presents the number of 
Forms I-129 filed for extensions of stay due to change of employer and 
Forms I-129 filed for new employment for Fiscal year 2016 FY through FY 
2020. The average rate of extension of stay due to change of employer 
compared to new employment is approximately 12.6 percent.
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    \193\ 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 2021, USCIS approved 735 requests for change of status to H-
2B, and Customs and Border Protection (CBP) processed 1,341 
crossings of visa-exempt H-2B workers. See Characteristics of H-2B 
Nonagricultural Temporary Workers FY2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (accessed April 4, 2022). 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.
[GRAPHIC] [TIFF OMITTED] TR15DE22.026

    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 7,207 Forms I-129 filed 
for new employment.\194\ In FY 2022, there were 1,791 Forms I-129 filed 
for extension of stay due to change of employer compared to 9,233 Forms 
I-129 filed for new employment.\195\ Over the period when a portability 
provision was in place for H-2B workers, the rate of Form I-129 for 
extension of stay due to change of employer relative to new employment 
is 17.7 percent.\196\ This is above the 12.6 percent rate expected 
without a portability provision. 17.7 percent is our estimate of the 
rate expected in periods with a portability provision in the 
supplemental visa allocation. Using the 4,312 as our estimate for the 
number of Forms I-129 filed for H-2B new employment in FY 2023, we 
estimate that 543 Forms I-129 for extension of stay due to change of 
employer would be filed in absence of this provision.\197\ With this 
portability provision, we estimate that 763 Forms I-129 for extension 
of stay due to change of employer would be filed.\198\ This difference 
results in 220 additional Forms I-129 as a result of this 
provision.\199\ As previously estimated, we expect that about 45.84 
percent of Form I-129 petitions will be filed by an in-house or 
outsourced lawyer. Therefore, we expect that a lawyer will file 101 of 
these petitions and an HR specialist or equivalent occupation will file 
the remaining 119.\200\ Previously in this analysis, we estimated that 
about 93.57 percent of Form I-129 H-2B petitions are filed with Form I-
907 for premium processing. As a result of this portability provision, 
we expect that an additional 206 Forms I-907 will be filed.\201\ We 
expect a lawyer to file 94 of those Forms I-907 and an HR specialist to 
file the remaining 112.\202\
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    \194\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 10/2022, TRK 10638.
    \195\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 10/2022, TRK 10638.
    \196\ Calculation, Step 1: 1,113 Form I-129 petitions for 
extension of stay due to change of employer FY 2021 + 1,791 Form I-
129 petitions for extension of stay due to change of employer in FY 
2022 = 2,904 Form I-129 petitions filed extension of stay due to 
change of employer in portability provision years.
    Calculation, Step 2: 7,207 Form I-129 petitions filed for new 
employment in FY 2021 + 9,233 Form I-129 petitions filed for new 
employment in FY 2022 = 16,440 Form I-129 petitions filed for new 
employment in portability provision years
    Calculation, Step 3: 2,904 extension of stay due to change of 
employment petitions/16,440 new employment petitions = 17.7 percent 
rate of extension of stay due to change of employment to new 
employment (rounded).
    \197\ Calculation: 4,312 Form I-129 H-2B petitions filed for new 
employment * 12.6 percent = 543 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision.
    \198\ Calculation: 4,312 Form I-129 H-2B petitions filed for new 
employment * 17.7 percent = 763 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision.
    \199\ Calculation: 763 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision--543 estimated number of Form I-129 H-
2B petitions filed for extension of stay due to change of employer, 
no portability provision = 220 Form I-129 H-2B petition increase as 
a result of portability provision.
    \200\ Calculation, Lawyers: 220 additional Form I-129 due to 
portability provision * 45.83 percent of Form I-129 for H-2B 
positions filed by an attorney or accredited representative = 101 
(rounded) estimated Form I-129 filed by a lawyer.
    Calculation, HR specialist: 220 additional Form I-129 due to 
portability provision--101 estimated Form I-129 filed by a lawyer = 
119 estimated Form I-129 filed by an HR specialist.
    \201\ Calculation: 220 Form I-129 H-2B petitions * 93.57 percent 
premium processing filing rate = 206 (rounded) Forms I-907.
    \202\ Calculation, Lawyers: 206 Forms I-907 * 45.84 percent 
filed by an attorney or accredited representative = 94 (rounded) 
Forms I-907 filed by a lawyer.
    Calculation, HR specialists: 206 Forms I-907--94 Forms I-907 
filed by a lawyer = 112 Forms I-907 filed by an HR specialist.

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[[Page 76865]]

h. Population Affected by the Audits
    Under this time-limited FY 2023 H-2B supplemental cap rule, DHS 
intends to conduct 250 audits of employers hiring H-2B workers, and DOL 
intends to conduct 100 audits of employers hiring H-2B workers. The 
determination of which employers will be 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, the Federal 
Government expects to conduct a total of 350 audits on employers that 
petition for H-2B workers under this TFR.\203\
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    \203\ These 350 audits are separate and distinct from WHD's 
investigations pursuant to its existing enforcement authority.
---------------------------------------------------------------------------

i. Population Affected by Additional Scrutiny
    DHS expects that petitioners that have been cited by WHD for H-2B 
program violations will undergo additional scrutiny from USCIS. To 
estimate the number of firms expected to undergo increased scrutiny, we 
utilize DOL's Wage and Hour Compliance Action Data.\204\ The data 
available here is for concluded cases. Table 10 presents the number of 
employers that were cited for H-2B violations that have a worker 
protection violation end date in FYs 2017-2021. The worker protection 
violation end date is established based on the ``findings end date,'' 
which represents the date that the last worker protection violation 
occurred in the concluded case. During FY 2017-2021, on average 76 
(rounded) employers that were cited for H-2B violations had a worker 
protection violation end date each year. USCIS intends to request 
evidence from employers cited for H-2B violations with a worker 
protection violation end date in the last two years. Therefore, for 
purposes of this analysis, we expect 152 petitioners will undergo 
additional scrutiny from USCIS.\205\
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    \204\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed October 5, 2022).
    \205\ It is possible not every employer that has been cited for 
an H-2B violation in the last two years will petition for H-2B 
employees under this supplemental cap authority. DHS considers an 
upper limit of 152 to be a reasonable estimate of the number of 
petitioners that will undergo additional scrutiny.
[GRAPHIC] [TIFF OMITTED] TR15DE22.027

j. Population Expected To Familiarize Themselves With This Rule
    DHS expects employers that have filed for TLCs to familiarize 
themselves with this rule. Table 3 shows that the average number of 
certifications over the last five FYs is 6,839. We use the TLC 
population, rather than the estimated 4,312 expected to file a Form I-
129 petition, because employers that have applied for TLCs would need 
to familiarize themselves with the rule in order to determine whether 
or not to subsequently file a Form I-129 petition.
    We expect a HR specialist, in-house lawyer, or outsourced lawyer 
will perform familiarization with the rule at the same rate as 
petitioners that file a Form G-28. As discussed above, an estimated 
45.84 percent of petitioners are submitted by lawyers. Therefore, we 
estimate that 3,135 lawyers and 3,704 HR specialists will incur 
familiarization costs.\206\
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    \206\ Calculation for lawyers: 6,839 estimated applicants * 
45.84 percent represents by a lawyer = 3,135 (rounded) represented 
by a lawyer.
    Calculation for HR specialists: 6,839 approved, pending, and 
projected applicants--3,135 represented by a lawyer = 3,704 
represented by an HR specialist.
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4. 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 the opportunity cost of 
time to complete and submit the form.\207\ The estimated time to 
complete and file Form I-129 for H-2B classification is 4.34 
hours.\208\ A U.S. employer, a U.S. agent, or a foreign employer filing 
through the U.S. agent must file the petition. DHS estimates that an 
in-house or outsourced lawyer will file 45.84 percent of Form I-129 H-
2B petitions, and an HR specialist or equivalent occupation will file 
the remainder (54.16 percent). 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.
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    \207\ Filing fees are not considered costs to society. These 
fees have been accounted for as a transfer from petitioners to 
USCIS.
    \208\ 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/sites/default/files/document/forms/i-129instr.pdf (accessed Oct. 17, 2022).
---------------------------------------------------------------------------

    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 $34.00 as the base wage rate.\209\ If petitioners 
hire an in-house or outsourced lawyer to file Form I-129 on their 
behalf, DHS uses the mean hourly wage rate $71.71 as the base wage 
rate.\210\ Using the most recent BLS data, DHS calculated a benefits-
to-wage

[[Page 76866]]

multiplier of 1.45 to estimate the full wages to include benefits such 
as paid leave, insurance, and retirement.\211\ 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 total 
compensation to employees. The total compensation for an HR specialist 
is $49.30 per hour, and the total compensation for an in-house lawyer 
is $103.98 per hour.\212\ In addition, DHS recognizes that an entity 
may not have an in-house lawyer and may 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.\213\ DHS 
estimates the total compensation for an outsourced lawyer is $179.28 
per hour.\214\ If a lawyer submits Form I-129 on behalf of the 
petitioner, Form G-28 must accompany the Form I-129 petition.\215\ DHS 
estimates the time burden to complete and submit Form G-28 for a lawyer 
is 50 minutes (0.83 hour, rounded).\216\ 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.\217\ Therefore, the total 
opportunity cost of time per petition for an HR specialist to complete 
and file Form I-129 is approximately $213.96, for an in-house lawyer to 
complete and file Forms I-129 and G-28 is about $537.58, and for an 
outsourced lawyer to complete and file is approximately $926.88.\218\
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    \209\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2021 National Occupational Employment and Wage Statistics'' 
Human Resources Specialist (13-1071), Mean Hourly Wage, available at 
https://www.bls.gov/oes/2021/may/oes131071.htm (accessed Oct. 17, 
2022).
    \210\ U.S. Department of Labor, Bureau of Labor Statistics. 
``May 2021 National Occupational Employment and Wage Estimates'' 
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/oes/2021/may/oes231011.htm (accessed Oct. 17, 2022).
    \211\ Calculation: $41.03 mean Total Employee Compensation per 
hour for civilian workers/$28.31 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--December 2021 
Table 1. Employer Costs for Employee Compensation by ownership, 
Civilian workers, available at https://www.bls.gov/news.release/archives/ecec_09202022.pdf (accessed Oct. 17, 2022).
    \212\ Calculation, HR specialist: $34.00 mean hourly wage * 1.45 
benefits-to-wage multiplier = $49.30 hourly total compensation 
(hourly opportunity cost of time).
    Calculation, In-house Lawyer: $71.71 mean hourly wage * 1.45 
benefits-to-wage multiplier = $103.98 hourly total compensation 
(hourly opportunity cost of time).
    \213\ The DHS ICE ``Safe-Harbor Procedures for Employers Who 
Receive a No-Match Letter'' acknowledges that ``the cost of hiring 
services provided by an outside vendor or contractor is two to three 
times more expensive than the wages paid by the employer for that 
service produced by an in-house employee,'' based on information 
received in public comment to that rule. We believe the explanation 
and methodology used in the Final Small Entity Impact Analysis 
(SEIA) remains sound for using 2.5 as a multiplier for outsourced 
labor wages in this rule: Safe Harbor Procedures for Employers Who 
Receive a No-Match Letter: Clarification; Final Regulatory 
Flexibility Analysis, 73 FR 63843 (Oct. 28, 2008), available at 
https://www.regulations.gov/document/ICEB-2006-0004-0921 (accessed 
Oct. 25, 2022). See also 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, 87 FR 4722 (Jan. 28, 
2022), available at https://www.regulations.gov/document/DHS-2022-0010-0001 (accessed Oct. 26, 2022).
    \214\ Calculation, Outsourced Lawyer: $71.71 mean hourly wage * 
2.5 benefits-to-wage multiplier = $179.28 hourly total compensation 
(hourly opportunity cost of time).
    \215\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed October 17, 2022).
    \216\ USCIS, G-28, Instructions for Notice of Entry of 
Appearance as Attorney or Accredited Representative, https://www.uscis.gov/sites/default/files/document/forms/g-28instr.pdf.
    Calculation: 50 minutes/60 minutes per hour = 0.83 hour 
(rounded).
    \217\ Calculation: 0.83 hour to file Form G-28 + 4.34 hours to 
file Form I-129 = 5.17 hours to file both forms.
    \218\ Calculation, HR specialist files Form I-129: $49.30 hourly 
opportunity cost of time * 4.34 hours = $213.96 opportunity cost of 
time per petition.
    Calculation, In-house Lawyer files Form I-129 and Form G-28: 
$103.98 hourly opportunity cost of time * 5.17 hours = $537.58 
opportunity cost of time per petition.
    Calculation, Outsourced Lawyer files Form I-129 and Form G-28: 
$179.28 hourly opportunity cost of time * 5.17 hours = $926.88 
opportunity cost of time per petition.
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a. Transfers
i. Transfers From Petitioners to the Government
    The provisions of this rule require the submission of a Form I-129 
H-2B petition. The transfers for this form include the filing costs to 
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.\219\ These filing fees are not a cost to society or an 
expenditure of new resources but a transfer from the petitioner to 
USCIS in exchange for agency services. DHS anticipates that petitioners 
will file 4,312 Forms I-129 due to the rule's supplemental visa 
allocation and an additional 220 Forms I-129 due to the rule's 
portability provision. The total value of transfers from petitioners to 
the Government for Form I-129 filings due to the rule is 
$2,764,520.\220\
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    \219\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed Oct. 17, 
2022). See also 8 U.S.C. 1184(c)(13).
    \220\ Calculation: (4,312 petitions + 220 petitions) * $610 per 
petition = $2,764,520.
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    Additionally, 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. Based upon historical trends, 
USCIS expects that 93.57 percent of petitioners will file a Form I-907 
in addition to their Form I-129. Applying that rate to the expected 
number of Forms I-129 would result in 4,241 Forms I-907 filed due to 
the rule.\221\ Transfers from petitioners to the Government related to 
the filing of Forms I-907 as a result of the rule are $6,361,500.\222\ 
Total transfers from petitioners to the Government are $9,126,020.\223\
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    \221\ Calculation (4,312 petitions + 220 petitions) * 93.57 Form 
I-907 rate = 4,241 Forms I-907.
    \222\ Calculation: $1,500 per petition * 4,241 Forms I-907 = 
$6,361,500.
    \223\ Calculation: $2,764,520 + $6,361,500 = $9,126,020.
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b. Cost to Petitioners
    As mentioned in Section 3, the estimated population impacted by 
this rule is 4,312 eligible petitioners that are projected to apply for 
the additional 64,716 H-2B visas, with 20,000 of those additional visas 
reserved for employers that will petition for workers who are nationals 
of the Northern Central American countries and Haiti, who are exempt 
from the returning worker requirement.
ii. Costs to Petitioners To File Form I-129 and Form G-28
    As discussed above, DHS estimates that HR specialists will file an 
additional 2,335 petitions using Form I-129 and lawyers will file an 
additional 1,977 petitions 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 $499,597 (rounded).\224\ DHS estimates the total cost to 
file Form I-129 petitions and Form G-28 if filed by lawyers will range 
from $1,062,796 (rounded) if only in-house lawyers file these forms, to 
$1,832,442 (rounded) if only outsourced lawyers file them.\225\ 
Therefore, the estimated total cost to file Form I-129 and Form G-28 
range from $1,562,393 and $2,332,039.\226\
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    \224\ Calculation, HR specialist: $213.96 cost per petition * 
2,335 Form I-129 = $499,597 (rounded) total cost.
    \225\ Calculation, In-house Lawyer: $537.58 cost per petition * 
1,977 Form I-129 and Form G-28 = $1,062,796 (rounded) total cost.
    Calculation, Outsourced Lawyer: $926.88 cost per petition * 
1,977 Form I-129 and Form G-28 = $1,832,442 (rounded) total cost.
    \226\ Calculation: $499,597 total cost of Form I-129 filed by HR 
specialists + $1,062,796 total cost of Form I-129 and Form G-28 
filed by in-house lawyers = $1,562,393 estimated total costs to file 
Form I-129 and G-28.
    Calculation: $499,597 total cost of Form I-129 filed by HR 
specialists + $1,832,442 total cost of Form I-129 and G-28 filed by 
outsourced lawyers = $2,332,039 estimated total costs to file Form 
I-129 and G-28.

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[[Page 76867]]

iii. 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).227 228 Using the wage rates established 
previously, the opportunity cost of time to file Form I-907 is 
approximately $28.59 for an HR specialist, $60.31 for an in-house 
lawyer, and $103.98 for an outsourced lawyer.\229\
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    \227\ The filing fee is a transfer from the petitioner 
requesting premium processing and proxy for the total costs to 
USCIS.
    \228\ See Form I-907 instructions at https://www.uscis.gov/i-907 
(accessed October 17, 2022).
    Calculation: 35 minutes/60 minutes per hour = 0.58 (rounded) 
hour.
    \229\ Calculation, HR specialist Form I-907: $49.30 hourly 
opportunity cost of time * 0.58 hour = $28.59 opportunity cost of 
time per request.
    Calculation, In-house Lawyer Form I-907: $103.98 hourly 
opportunity cost of time * 0.58 hour = $60.31 opportunity cost of 
time per request.
    Calculation, Outsourced Lawyer Form I-907: $179.28 hourly 
opportunity cost of time * 0.58 hour = $103.98 opportunity cost of 
time per request.
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    As discussed above, DHS estimates that HR specialists will file an 
additional 2,185 Form I-907 and lawyers will file an additional 1,850 
Form I-907.\230\ DHS estimates the total cost of Form I-907 filed by HR 
specialists is about $62,469 (rounded).\231\ DHS estimates the total 
cost to file Form I-907 filed by lawyers range from about $111,574 
(rounded) for only in-house lawyers, to $192,363 (rounded) for only 
outsourced lawyers.\232\ The estimated total cost to file Form I-907 
range from $174,043 and $254,832.\233\
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    \230\ As explained above, DHS has elected to pause the receipt 
of premium processing requests until January 3, 2023. Due to the 
timing of the pause only a subset of the overall population of 
petitioners would be affected. DHS cannot quantify to what extent, 
if any, affected petitioners may modify their behavior in response 
to such pauses of premium processing. Therefore, DHS believes that 
analyzing historical trends in premium processing requests is the 
best method for estimating the population that may request premium 
processing due to this rule, and DHS recognizes that the estimates 
for costs and transfers made in this analysis could be on the higher 
end due to modified behavior as a result of the pause in premium 
processing.
    \231\ Calculation, HR specialist: $28.59 opportunity cost of 
time per request * 2,185 Form I-907 = $62,469 (rounded) total cost 
of Form I-907 filed by HR specialists.
    \232\ Calculation, In-house Lawyer Form I-907: $60.31 hourly 
opportunity cost of time * 1,850 applications = $111,574.
    Calculation, Outsourced Lawyer Form I-907: $103.98 hourly 
opportunity cost of time * 1,850 applications = $192,363.
    \233\ Calculation: $62,469 total cost of Form I-907 filed by HR 
specialists + $111,574 total cost of Form I-907 filed by in-house 
lawyers = $174,043 estimated total costs to file Form I-907.
    Calculation: $62,469 total cost of Form I-129 filed by HR 
specialists + $192,363 total cost of Form I-907 filed by outsourced 
lawyers = $254,832 estimated total costs to file Form I-907.
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iv. Cost to Late Season Employers Filing Form ETA-9142-B
    In addition to the costs for employers projected to request TLCs 
irrespective of this rule, the population of 667 late season employers 
that would not otherwise request H-2B workers will file Form ETA-9142-B 
as a precondition to utilizing the late season allocation of H-2B visas 
made available by the rule. There is no filing fee for Form ETA-9142-B, 
and the time burden for completing the form, including Appendix A, 
Appendix B, Appendix C, Appendix D, and record keeping, is 2 hours and 
10 minutes (2.17 hours).\234\ DHS estimates the total cost of Form ETA-
9142-B filed by HR specialists is about $38,620 (rounded).\235\ DHS 
estimates the total cost to file Form ETA-9142-B by lawyers range from 
about $69,045 (rounded) for only in-house lawyers, to $119,046 
(rounded) for only outsourced lawyers.\236\ The estimated total cost to 
file Form ETA-9142-B range from $107,665 and $157,666.
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    \234\ The 130 minute burden estimate is as follows: 9142-B--55 
minutes, Appendix A--15 minutes, Appendix B--15 minutes, Appendix 
C--20 minutes, Appendix D--10 minutes, Record Keeping--15 minutes. 
See Form ETA-9142-B at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA_Form_9142B.pdf (last accessed Oct. 24, 2022).
    \235\ Calculation, HR specialist: $49.30 per hour * 2.17 hours * 
361 Form ETA-9142-B = $38,620 (rounded) total cost of Form ETA-9142-
B filed by HR specialists.
    \236\ Calculation, In-house Lawyer Form ETA-9142-B: $103.98 per 
hour * 2.17 hours * 306 applications = $69,045 (rounded). 
Calculation, Outsourced Lawyer Form ETA-9142-B: $179.28 per hour * 
2.17 hours * 306 applications = $119,046 (rounded).
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v. Cost To File Form ETA-9142-B-CAA-7
    Form ETA-9142-B-CAA-7 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 hours, 0.25 hours for retaining records, and 
0.50 hours to comply with the returning workers' attestation, for a 
total time burden of 1 hour. Using the $49.30 hourly total compensation 
for an HR specialist, 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 
$49.30.\237\ Employers are also required to send OFLC and AFL-CIO the 
ETA case number when filing a petition with DHS. DOL estimates the time 
burden for this task is 10 minutes (0.17 hours) for an HR specialist. 
The opportunity cost of time for an HR specialist to send OFLC and AFL 
the ETA case number is approximately $8.38.\238\ The total opportunity 
cost of time for filing Form ETA-9142-B-CAA-7 and emailing the ETA case 
number to both OFLC and the AFL-CIO is $57.68.\239\
---------------------------------------------------------------------------

    \237\ Calculation: $49.30 hourly opportunity cost of time * 1-
hour time burden for the new attestation form and notifying third 
parties and retaining records related to the returning worker 
requirements = $49.30.
    \238\ Calculation: $49.30 hourly opportunity cost of time * 0.17 
hours to send OFLC and AFL-CIO the ETA case number = $8.38 
(rounded).
    \239\ Calculation: $49.30 + $8.38 = $57.68.
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    Additionally, the form requires that petitioners assess, prepare a 
detailed written statement, 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 mean hourly wage for a financial 
analyst is $49.53,\240\ and the estimated hourly total compensation for 
a financial analyst is $71.82.\241\ DOL estimates the time burden for 
these tasks is at least 4 hours, and 1 hour for gathering and retaining 
documents and records, for a total time burden of 5 hours. Therefore, 
the total opportunity cost of time for a financial analyst to assess, 
document, and retain supporting evidence is approximately $359.10.\242\
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    \240\ See U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2021 National Occupational Employment and Wage Statistics'' 
Financial and Investment Analysts (13-2051), https://www.bls.gov/oes/2021/may/oes132051.htm (accessed Oct. 17, 2022).
    \241\ Calculation: $49.53 mean hourly wage for a financial 
analyst * 1.45 benefits-to-wage multiplier = $71.82 (rounded).
    \242\ Calculation: $71.82 estimated total compensation for a 
financial analyst * 5 hours to meet the requirements of the 
irreparable harm standard = $359.10.
---------------------------------------------------------------------------

    As discussed previously, DHS believes that the 4,312 Form I-129 
petitions required to exhaust the number of supplemental visas made 
available in this rule represents the number of potential employers 
that will request to employ H-2B workers under this rule. This number 
of petitions is a reasonable proxy for the number of employers that may 
need to review and sign the attestation. Using this estimate

[[Page 76868]]

for the total number of certifications, we estimate the opportunity 
cost of time for completing the attestation and sending the ETA case 
number to OFLC and AFL-CIO for HR specialists is approximately $248,716 
(rounded) and for financial analysts is about $1,548,439 
(rounded).\243\
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    \243\ Calculations, HR specialists: $57.68 opportunity cost of 
time to comply with attestation requirements and to send the ETA 
case number to OFLC and AFL-CIO * 4,312 estimated additional 
petitions = $248,716 (rounded) total cost to comply with attestation 
requirements.
    Calculation, Financial Analysts: $359.10 opportunity cost of 
time to comply with attestation requirements * 4,312 estimated 
additional petitions = $1,548,439 (rounded) to comply with 
attestation requirements
---------------------------------------------------------------------------

    The estimated total cost to file Form ETA-9142-B-CAA-7 and comply 
with the attestation is approximately 1,797,155.\244\
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    \244\ Calculation: $248,716 total cost for HR specialist to 
comply with attestation requirement and to send the ETA case number 
to OFLC and AFL-CIO + $1,548,439 total cost for financial analysts 
to comply with attestation requirements = $1,797,155 total cost to 
comply with attestation requirements.
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vi. Cost To Conduct Recruitment
    An employer that files Form ETA-9142B-CAA-7 and the I-129 petition 
30 or more days after the certified start date of work must conduct 
additional recruitment of U.S. workers. This consists of (1) placing a 
new job order with the State Workforce Agency (SWA), (2) contacting the 
relevant American Job Center (AJC), (3) contacting laid-off workers, 
(4) contacting current employees for referrals, (5) placing the 
available job opportunity on the employer's website if the employer 
maintains a website for its business, and (6) contacting the AFL-CIO if 
applicable and providing a copy of the job order to the bargaining 
representative for its employees in the occupation and area of intended 
employment.
    Specifically, during the period the SWA is actively circulating the 
job order, employers must also contact, by email or other available 
electronic means, the nearest local AJC 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.
    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 disclose the terms of the job order to these 
workers as required by the rule. Employers are also required to contact 
current employees regarding available job opportunities for referrals.
    Employers are required to post the available job opportunity on the 
employer's website if the employer maintains a website for its 
business.
    If the occupation is traditionally or customarily unionized, 
employers must provide written notification of the job opportunity to 
the nearest American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) office covering the area of intended 
employment, by providing a copy of the job order, and request 
assistance in recruiting qualified U.S. workers for the job 
opportunity.
    Finally, 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).
    DOL estimates the average expected time burden for activities 
related to conducting recruitment is 4 hours.\245\ Assuming this work 
will be done by an HR specialist or an equivalent occupation, the 
estimated cost to each petitioner is approximately $197.20.\246\ Using 
1,214 as the estimated number of petitioners required to undergo 
additional recruitment activities, the estimated total cost of this 
provision is approximately $239,401 (rounded).\247\
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    \245\ This is the average expected time burden across all 
employers; not all employers will need to notify the AFL-CIO, 
because not all occupation are traditionally or customarily 
unionized. DOL estimates the time burden for placing a new job order 
for the job opportunity with SWA is 1 hour, 0.5 hours for contacting 
the nearest AJC, 1 hour for contacting former U.S. workers, 0.5 
hours for contacting current employees for referrals, 0.5 hours for 
placing the available job opportunity on the employer's website, and 
0.5 hours to provide a copy of job order to the bargaining 
representative and written notification of job opportunity to 
nearest AFL-CIO if the occupation is traditionally or customarily 
unionized, for a total time burden of 4 hours.
    \246\ Calculation: $49.30 hourly opportunity cost of time for an 
HR specialist * 4 hours to conduct additional recruitment = $197.20 
per petitioner cost to conduct additional recruitment.
    \247\ Calculation: 1,214 estimated number of petitioners subject 
to additional recruitment requirements * $197.20 per petitioner cost 
to conduct additional recruitment = $239,401 (rounded) total cost to 
conduct additional recruitment.
---------------------------------------------------------------------------

    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.
vii. 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 employers will provide a 
printed notification to inform their employees, such as the free 
publicly available posters published by DOL's WHD. We also assume that 
printing and posting the notification can be done during the normal 
course of business and expect that an employer would need to post two 
copies of a one-page notification. One of these copies would be in 
English and a second copy would be in a foreign language. The printing 
cost associated with posting the notifications (assuming that the 
notification is written) is $0.15 per posting.\248\ The estimated total 
cost to petitioners to print copies is approximately $1,294 
(rounded).\249\ Employers may incur higher print costs if they have to 
print notifications in more than two languages.
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    \248\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed October 17, 2022). Cost to make black 
and white copies.
    \249\ Calculation: $0.15 per posting * 4,312 estimated number of 
petitioners * 2 copies = $1,294 (rounded) cost of postings.
---------------------------------------------------------------------------

viii. 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 estimate that approximately 220 
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. In addition, if a petitioner 
desires premium processing, the petitioner must file Form I-907 and pay 
the associated fee. We expect an HR specialist, in-house lawyer, or an 
outsourced lawyer will perform these actions. Moreover, as previously 
estimated, we expect that an in-house or outsourced lawyer will file 
about 45.84 percent of these Form I-129 petitions. Therefore, we expect 
that a lawyer will file 101 of these petitions and an HR specialist or 
equivalent occupation will file the remaining 119. As previously 
discussed, the opportunity cost of time to file a Form

[[Page 76869]]

I-129 H-2B petition is $213.96 for an HR specialist; and the 
opportunity cost of time to file a Form I-129 H-2B petition with 
accompanying Form G-28 is $537.58 for an in-house lawyer and $926.88 
for an outsourced lawyer. Therefore, we estimate the cost of the 
additional Forms I-129 from the portability provision for HR 
specialists is $25,461.\250\ The estimated cost of the additional Forms 
I-129 accompanied by Forms G-28 from the portability provision for 
lawyers is $54,296 if filed by in-house lawyers and $93,615 if filed by 
outsourced lawyers.\251\
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    \250\ Calculation, HR specialist: $213.96 estimated cost to file 
a Form I-129 H-2B petition * 119 petitions = $25,461 (rounded).
    \251\ Calculation, In-house Lawyer: $537.58 estimated cost to 
file a Form I-129 H-2B petition and accompanying Form G-28 * 101 
petitions = $54,296 (rounded).
    Calculation, Outsourced Lawyer: $926.88 estimated cost to file a 
Form I-129 H-2B petition and accompanying Form G-28 * 101 petitions 
= $93,615 (rounded).
---------------------------------------------------------------------------

    Previously in this analysis, we estimated that about 93.57 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 
206 Forms I-907 will be filed.\252\ We expect a lawyer will file 94 of 
those Forms I-907 and an HR specialist or equivalent occupation will 
file the remaining 112.\253\ As previously discussed, the estimated 
opportunity cost of time to file a Form I-907 is $28.59 for an HR 
specialist; and the estimated opportunity cost of time to file a Form 
I-907 is approximately $60.31 for an in-house lawyer and $103.98 for an 
outsourced lawyer. The estimated total cost of the additional Forms I-
907 if HR specialists file is $3,202.\254\ The estimated total cost of 
the additional Forms I-907 is $5,669 if filed by in-house lawyers and 
$9,774 if filed by outsourced lawyers.\255\
---------------------------------------------------------------------------

    \252\ Calculation: 220 estimated additional Form I-129 H-2B 
petitions * 93.57 percent accompanied by Form I-907 = 206 (rounded) 
additional Form I-907.
    \253\ Calculation, Lawyers: 206 additional Form I-907 * 45.84 
percent = 94 (rounded) Form I-907 filed by a lawyer.
    Calculation, HR specialists: 206 Form I-907--94 Form I-907 filed 
by a lawyer = 112 Form I-907 filed by an HR specialist.
    \254\ Calculation, HR specialist: $28.59 to file a Form I-907 * 
112 forms = $3,202 (rounded).
    \255\ Calculation, In-house lawyer: $60.31 to file a Form I-907 
* 94 forms = $5,669 (rounded).
    Calculation for an outsourced lawyer: $103.98 to file a Form I-
907 * 94 forms = $9,774 (rounded).
---------------------------------------------------------------------------

    The estimated total cost of this provision ranges from $88,628 to 
$132,052 depending on what share of the forms are filed by in-house or 
outsourced lawyers.\256\
---------------------------------------------------------------------------

    \256\ Calculation for HR specialists and in-house lawyers: 
$25,461 for HR specialists to file Form I-129 H-2B petitions + 
$54,296 for in-house lawyers to file Form I-129 and the accompanying 
Form G-28 + $3,202 for HR specialists to file Form I-907 + $5,669 
for in-house lawyers to file Form I-907 = $88,628.
    Calculation for HR specialists and outsourced lawyers: $25,461 
for HR specialists to file Form I-129 H-2B petitions + $93,615 for 
outsourced lawyers to file Form I-129 and the accompanying Form G-28 
+ $3,202 for HR specialists to file Form I-907 + $9,774 for 
outsourced lawyers to file Form I-907 = $132,052.
---------------------------------------------------------------------------

ix. Cost of Audits to Petitioners
    As discussed above, DHS intends to conduct 250 audits of employers 
hiring H-2B workers, and DOL intends to conduct 100 audits of employers 
hiring H-2B workers, for a total of 350 employers. Employers will need 
to provide requested information to comply with the audit. We estimate 
that the expected time burden to comply with audits conducted by DHS 
and DOL's Office of Foreign Labor Certification is 12 hours.\257\ We 
expect that an HR specialist or equivalent occupation will provide 
these documents. Given an hourly opportunity cost of time of $49.30, 
the estimated cost of complying with audits is $591.60 per audited 
employer.\258\ Therefore, the total estimated cost to employers to 
comply with audits is $207,060.\259\
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    \257\ The number in hours for audits was provided by the USCIS, 
Service Center Operations.
    \258\ Calculation: $49.30 hourly opportunity cost of time for an 
HR specialist * 12 hours to comply with an audit = $591.60 per 
audited employer.
    \259\ Calculation: 350 audited employers * $591.60 opportunity 
cost of time to comply with an audit = $207,060.
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x. Cost of Additional Scrutiny
    The Departments expect that petitioners undergoing additional 
scrutiny will need to submit additional evidence to USCIS. In addition 
to the previously described burden to assess, document and retain 
evidence, submission of this evidence is expected to require printing 
and mailing hundreds of pages of documents. To estimate the cost of 
additional scrutiny, we assume 152 petitioners will need to print 500 
pages of documents and mail this to USCIS. We expect these documents to 
be able to fit in a Priority Mail Medium Flat Rate box, which costs 
$17.05.\260\ We estimate the costs of printing at $0.15 per page and 
the cost of printing 500 at $75.00.\261\ The estimated cost for an 
employer to print and ship evidence to USCIS is $92.05.\262\ With an 
estimated 152 petitioners expected to print and ship evidence, the 
total estimated costs for printing and shipping evidence is 
$13,992.\263\
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    \260\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed October 17, 2022).
    \261\ Calculation: 500 pages * $0.15 per page = $75.00 in 
printing costs.
    \262\ Calculation: $75.00 in printing costs + $17.05 in shipping 
costs = $92.05 to print and ship evidence.
    \263\ Calculation: 152 petitioners * $92.05 to print and ship 
evidence = $13,992 total printing and shipping costs.
---------------------------------------------------------------------------

    We also expect petitioners to incur a time burden associated with 
printing and shipping evidence to USCIS. We estimate it will take an HR 
specialist or equivalent employee 1 hour to print and ship evidence. 
Using the $49.30 hourly opportunity cost of time for HR specialist, we 
estimate the opportunity cost of time for each petitioner is 
$49.30.\264\ With an estimated 152 petitioners expected to print and 
ship evidence, the total estimated opportunity cost of time to print 
and ship evidence is $7,494.\265\
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    \264\ Calculation: $49.30 hourly opportunity cost of time for HR 
specialist * 1 hour to print and ship evidence = $49.30 opportunity 
cost of time per petitioner.
    \265\ Calculation: 152 petitioners * $49.30 opportunity cost of 
time per petitioner = $7,494 total estimated opportunity cost of 
time to print and ship evidence.
---------------------------------------------------------------------------

    We do not expect this provision to impose new costs on to USCIS. 
The costs to request and review evidence from petitioners is included 
in the fees paid to the agency.
    The total estimated cost of additional scrutiny is $21,486.\266\
---------------------------------------------------------------------------

    \266\ Calculation: $13,992 total printing and shipping costs + 
$7,494 total opportunity cost of time = $21,486 total estimated cost 
of additional scrutiny.
---------------------------------------------------------------------------

xi. Familiarization Costs
    We expect that petitioners or their representatives will need to 
read and understand this rule if they seek to take advantage of the 
supplemental cap. As a result, we expect this rule will impose one-time 
familiarization costs associated with reading and understanding this 
rule. As shown previously, we estimate that approximately 6,839 
petitioners may take advantage of the provisions of this rule, and that 
a lawyer will represent 3,135 of these petitioners and an HR specialist 
or equivalent occupation will represent 3,704.
    To estimate the costs 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.\267\ This rule has approximately 66,000 
words. Using a reading speed of 238 words per minute, DHS estimates it 
will take

[[Page 76870]]

approximately 4.6 hours to read and understand this rule.\268\
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    \267\ 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 March 30, 2022). We 
use the average speed for silent reading of English nonfiction by 
adults.
    \268\ Calculation, Step 1: roughly 66,000 words/238 words per 
minute = 277 (rounded) minutes.
    Calculation, Step 2: 277 minutes/60 minutes per hour = 4.6 
(rounded) hours.
---------------------------------------------------------------------------

    The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $49.30, $103.98, and $179.28, 
respectively. The estimated opportunity cost of time for each of these 
filers to read and understand the rule are $142.97, $301.54, and 
$519.91, respectively.\269\ The estimated total opportunity cost of 
time for 3,704 HR specialists to familiarize themselves with this rule 
is approximately $839,993.\270\ The estimated total opportunity cost of 
time for 3,135 lawyers to familiarize themselves with this rule is 
approximately $1,499,502 if they are all in-house lawyers and 
$2,585,403 if they are all outsourced lawyers.\271\ Accordingly, the 
estimated total opportunity costs of time for petitioners' 
representatives to familiarize themselves with this rule ranges from 
$2,339,495 to $3,425,396.\272\
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    \269\ Calculation, HR Specialists: $49.30 estimated hourly total 
compensation for an HR specialist * 4.6 hours to read and become 
familiar with the rule = $226.78 opportunity cost of time for an HR 
specialist to read and understand the rule.
    Calculation, In-house lawyer: $103.98 estimated hourly total 
compensation for an in-house lawyer * 4.6 hours to read and become 
familiar with the rule = $478.31 (rounded) opportunity cost of time 
for an in-house lawyer to read and understand the rule.
    Calculation, Outsourced lawyer: $179.2 estimated hourly total 
compensation for an outsourced lawyer * 4.6 hours to read and become 
familiar with the rule = $824.69 (rounded) opportunity cost of time 
for an outsourced lawyer to read and understand the rule.
    \270\ Calculation, HR specialists: $226.78 opportunity cost of 
time * 3,704 = $839,993 (rounded).
    \271\ Calculation for in-house lawyers: $478.31 opportunity cost 
of * 3,135 = $1,499,502 (rounded).
    Calculation for outsourced lawyers: $824.69 opportunity cost of 
time * 3,135 = $2,585,403 (rounded).
    \272\ Calculation: $839,993 + $1,499,502 = $2,339,495.
    Calculation: $839,993 + $2,585,403 = $3,425,396.
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xii. Estimated Total Costs to Petitioners
    In sum, the monetized costs of this rule come from time spent 
filing and complying with Form I-129, Form G-28, Form I-907, and Form 
ETA-9142-B-CAA-7, as well as contacting and refreshing recruitment 
efforts, posting notifications, time spent filing 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 $1,562,393 to 
$2,332,039, depending on the filer. The estimated total cost of filing 
Form I-907 ranges from $174,043 to $254,832, depending on the filer. 
The estimated cost for late season employers to file Form ETA-9142-B 
ranges from $107,665 to $157,666 depending on the filer. The estimated 
total cost of filing and complying with Form ETA-9142-B-CAA-7 is 
$1,797,155. The estimated total cost of conducting additional 
recruitment is $850,326. The estimated total cost of the COVID-19 
protection provision is approximately $1,294. The estimated cost of the 
portability provision ranges from $88,628 to $132,052, depending on the 
filer. The estimated total cost for employers to comply with audits is 
$207,060. The estimated total costs for petitioners or their 
representatives to familiarize themselves with this rule ranges from 
$2,339,495 to $3,425,396, depending on the filer. The estimated total 
cost of additional scrutiny is $21,486. The total estimated cost to 
petitioners ranges from $6,538,620 to $8,568,381, depending on the 
filer.\273\
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    \273\ Calculation of lower range: $1,562,393 + $174,043 + 
$107,665 + $1,797,155 + $239,401 + $1,294 + $88,628 + $207,060 + 
$2,339,495 + $21,486 = $6,538,620.
    Calculation of upper range: $2,332,039 + $254,832 + $157,666 + 
$1,797,155 + $239,401 + $1,294 + $132,052 + $207,060 + $3,425,396 + 
$21,486 = $8,568,381.
---------------------------------------------------------------------------

c. Cost to the Federal Government
    USCIS will incur costs related to the adjudication of petitions as 
a result of this TFR. DHS expects USCIS to recover these costs by the 
fees associated with the forms, which have been accounted for as a 
transfer from petitioners to USCIS and serve as a proxy for the costs 
to the agency. The total filing fees associated with Form I-129 H-2B 
petitions are $2,764,520,\274\ and the total filing fees associated 
with premium processing are $6,361,500.\275\ Total transfers from 
petitioners to the Government are $9,126,020.\276\
---------------------------------------------------------------------------

    \274\ Calculation: (4,312 + 220 Form I-129 petitions) * $610 per 
petition = $2,764,520
    \275\ Calculation: (4,035 + 206 Forms I-907) * $1,500 per form = 
$6,361,500.
    \276\ Calculation: $2,764,520 + $6,361,500 = $9,126,020.
---------------------------------------------------------------------------

    The INA provides USCIS with the authority to collect 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.\277\ DHS notes USCIS establishes its fees by assigning 
costs to an adjudication based on its relative adjudication burden and 
use of USCIS resources. USCIS establishes fees 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 charged. Consequently, since USCIS immigration fees are primarily 
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.
---------------------------------------------------------------------------

    \277\ 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.\278\ While fees fund most USCIS activities and appropriations 
fund DOL, we expect both agencies will be able to shift resources to 
conduct these audits without incurring additional costs. As previously 
mentioned, the agencies will conduct a total of 350 audits, and we 
expect each audit to take 12 hours. This results in a total time burden 
of 4,200 hours.\279\ USCIS anticipates that a Federal employee at a GS-
13 Step 5 salary will typically conduct these audits for each agency. 
The base hourly pay for a GS-13 Step 5 in the Washington, DC locality 
area is $58.01.\280\ To estimate the total hourly compensation for 
these positions, we multiply the hourly wage ($58.01) by the Federal 
benefits to wage multiplier of 1.37.\281\ This results in an hourly 
opportunity cost of time of $79.47 for GS-13 Step 5 Federal employees 
in the

[[Page 76871]]

Washington, DC locality pay area.\282\ The total opportunity costs of 
time for Federal workers to conduct audits is estimated to be 
$333,774.\283\
---------------------------------------------------------------------------

    \278\ These audits are distinct from the WHD's authority to 
perform investigations regarding employers' compliance with the 
requirements of the H-2B program.
    \279\ Calculation: 12 hours to conduct an audit * 350 audits = 
4,200 total hours to conduct audits.
    \280\ See U.S. Office of Personnel Management, Pay and Leave, 
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-A-WV-PA, 2022, Hourly Basic Rate, https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2022/DCB_h.pdf (last accessed October 17, 2022).
    \281\ Calculation, Step 1: $2,070,773 Full-time Permanent 
Salaries + $762,476 Civilian Personnel Benefits = $2,833,249 
Compensation.
    Calculation, Step 2: $2,833,249 Compensation/$2,070,773 Full-
time Permanent Salaries = 1.37 (rounded) Federal employee benefits 
to wage ratio. See https://www.uscis.gov/sites/default/files/document/reports/USCIS_FY_2021_Budget_Overview.pdf (accessed October 
17, 2022).
    \282\ Calculation: $58.01 hourly wage for a GS 13-5 in the 
Washington, DC locality area * 1.37 Federal employee benefits to 
wage ratio = $79.47 hourly opportunity cost of time for a GS 13-5 
federal employee in the Washington, DC locality area.
    \283\ Calculation: 4,200 hours to conduct audits * $79.47 hourly 
opportunity cost of time = $333,774 total opportunity costs of time 
for Federal employees to conduct audits.
---------------------------------------------------------------------------

    This final rule implements changes to the DOL's mechanisms to 
receive complaints from advocates, unions, and other stakeholders about 
jobs posted on seasonaljobs.gov. DOL expects that the changes to the 
DOL's mechanisms to receive complaints may result in some additional 
costs to DOL. However, DOL is unable to quantify such costs due to lack 
of data.
d. 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 will assist employers that are suffering 
irreparable harm or will suffer impending irreparable harm.
e. Benefits to Workers
    The Departments assume that workers will only incur the costs of 
this rule and other costs associated with obtaining a 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 help ensure 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.
    U.S. workers will also benefit from this rule 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 nonimmigrant 
worker does not displace a U.S. worker who is willing and able to fill 
the position. 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.\284\ 
This rule is exempt from the written statement requirement because DHS 
did not publish a notice of proposed rulemaking for this rule.
---------------------------------------------------------------------------

    \284\ See 2 U.S.C. 1532(a)
---------------------------------------------------------------------------

    In addition, this rule does not exceed the $100 million in 1995 
expenditure in any 1 year when adjusted for inflation ($178 million in 
2021 dollars based on the Consumer Price Index for All Urban Consumers 
(CPI-U)),\285\ and this

[[Page 76872]]

rulemaking does not contain such a federal mandate as the term is 
defined under UMRA.\286\ The requirements of Title II of the Act, 
therefore, do not apply, and the Departments have not prepared a 
statement under the Act.
---------------------------------------------------------------------------

    \285\ See U.S. Department of Labor, BLS, ``Historical Consumer 
Price Index for All Urban Consumers (CPI-U): U.S. city average, all 
items, by month,'' available at https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202209.pdf (last visited Nov. 4, 
2022). Calculation of inflation: (1) Calculate the average monthly 
CPI-U for the reference year (1995) and the current year (2021); (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 2021-Average monthly CPI-U for 1995)/(Average monthly CPI-
U for 1995)] * 100 = [(270.970-152.383)/152.383] * 100 = (118.587/
152.383) * 100 = 0.77821673 * 100 = 77.82 percent = 78 percent 
(rounded). Calculation of inflation-adjusted value: $100 million in 
1995 dollars * 1.78 = $178 million in 2021 dollars.
    \286\ The term ``Federal mandate'' means a Federal 
intergovernmental mandate or a Federal private sector mandate. See 2 
U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

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 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 2023, based on the Secretary of Homeland 
Security's determination, in consultation with the Secretary of Labor, 
consistent with the FY 2022 Omnibus and Public Law 117-180. 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 temporary final 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 64,716 visas for 
noncitizens who may receive H-2B nonimmigrant visas, of which 44,716 
are for returning workers (persons issued H-2B visas or were otherwise 
granted H-2B status in Fiscal Years 2020, 2021, or 2022). 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, 2023 for the cap increase, and at the end of 
January 24, 2024 for the portability provision. DHS believes amending 
applicable regulations to authorize up to an additional 64,716 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 331,893,745 (maximum 
temporary increase of 0.0195 percent).\287\
---------------------------------------------------------------------------

    \287\ See U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed October, 26 2022).
    Calculation: 64,716 additional visas/331,893,745 million people 
in the United States = 0.0195 (rounded) percent temporary increase 
in the population.
---------------------------------------------------------------------------

    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 a ``major rule'' as defined by the 
Congressional Review Act (``CRA'') in 5 U.S.C. 804(2)(a) and is subject 
to both the CRA's reporting requirement and the delayed effective date 
requirement, pursuant to 5 U.S.C. 801. However, as stated in section 
IV.A of this rule, the Departments have good cause to forgo APA's 
requirements for notice and public comment (and a delayed effective 
date), pursuant to 5 U.S.C. 553. Therefore, the Departments also have 
good cause to forgo the CRA's 60-day delayed effective date 
requirement, pursuant to 5 U.S.C. 808(2). This rule is effective upon 
publication. DHS has complied with the CRA's reporting requirements and 
has sent this rule to Congress and to the Comptroller General as 
required by 5 U.S.C. 801(a)(1).

I. Paperwork Reduction Act

Attestation for Employers Seeking To Employ H-2B Nonimmigrants Workers 
Under Section 204 of Division O of the Consolidated Appropriations Act, 
2022, Public Law 117-103, and Public Law 117-180, Form ETA-9142-B-CAA-7
    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

[[Page 76873]]

OMB and obtained approval of a new form, Form ETA-9142B-CAA-7, 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 provided by employers in response to this 
information collection.
    Petitioners will use the new Form ETA-9142B-CAA-7 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 Central American countries or Haiti who is 
counted against the 20,000 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 pursuant to 5 
CFR 1320.13, DOL is seeking comments on this information collection 
pursuant to 44 U.S.C. 3506(c)(2)(A). Comments on the information 
collection must be received by February 13, 2023. 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 Section 204 of Division O of 
the FY 2022 Omnibus, which 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] 2022 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 2022 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 
64,716 visas for FY 2023 for certain H-2B workers, for U.S. businesses 
that 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 2020, 2021, or 2022, 
unless the worker is one of the 20,000 nationals of one of the Northern 
Central American 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 204 of Division O of 
the Consolidated Appropriations Act, 2022, Public Law 117-103, and 
Public Law 117-180.
    Agency Form Number: Form ETA-9142-B-CAA-7.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 4,312.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 4,312.
    Average Time per Response: 10.17 hours per application.
    Total Estimated Annual Time Burden: 43,853 hours.
    Total Estimated Other Costs Burden: $2,647,484
Request 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, Request 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 
Section 204 of Division O of the Consolidated Appropriations Act, 2022, 
Public Law 117-103 as extended by Public Law 117-180 (which expires on 
December 16, 2022). However, USCIS estimates that this temporary rule 
may result in approximately 4,035 additional filings of Form I-907 in 
fiscal year 2022.\288\

[[Page 76874]]

The current OMB-approved estimate of the number of annual respondents 
filing a Form I-907 is 815,773. 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.
---------------------------------------------------------------------------

    \288\ As explained above, DHS has elected to pause the receipt 
of premium processing requests until January 3, 2023. Due to the 
timing of the pause only a subset of the overall population of 
petitioners would be affected. DHS cannot quantify to what extent, 
if any, affected petitioners may modify their behavior in response 
to such pauses of premium processing. Therefore, DHS believes that 
analyzing historical trends in premium processing requests is the 
best method for estimating the population that may request premium 
processing due to this rule, and DHS recognizes that the estimates 
made in this analysis could be on the higher end due to modified 
behavior as a result of the pause in premium processing.
---------------------------------------------------------------------------

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.

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

DEPARTMENT OF HOMELAND SECURITY

PART 214--NONIMMIGRANT CLASSES

0
1. Effective December 15, 2022 through December 15, 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 December 15, 2022 through December 15, 2025, amend Sec.  
214.2 by:
0
a. Amending Table 3 to paragraph (h) by adding row (29); and
0
b. Adding paragraphs (h)(6)(xiii) and (h)(29).
    The additions read as follows:


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

* * * * *
    (h) * * *

              Table 3 to Paragraph (h)--Paragraph Contents
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
 
                              * * * * * * *
(29) Change of employers and portability for H-2B workers (January 25,
 2023 through January 24, 2024).
------------------------------------------------------------------------

* * * * *
    (6) * * *
    (xiii) Special requirements for additional cap allocations under 
Public Laws 117-103 and 117-180--(A) Public Law 117-103 and section 
101(6) of Division A of Public Law 117-180, Continuing Appropriations 
and Ukraine Supplemental Appropriations Act, 2023--(1) Supplemental 
allocation for returning workers. Notwithstanding the numerical 
limitations set forth in paragraph (h)(8)(i)(C) of this section, for 
fiscal year 2023 only, the Secretary has authorized up to an additional 
64,716 visas for aliens who may receive H-2B nonimmigrant visas 
pursuant to section 204 of Division O of Public Law 117-103, the 
Consolidated Appropriations Act, 2022, and section 101(6) of Division A 
of Public Law 117-180, Continuing Appropriations and Ukraine 
Supplemental Appropriations Act, 2023. An alien may be eligible to 
receive an H-2B nonimmigrant visa under this paragraph 
(h)(6)(xiii)(A)(1) if she or he is a returning worker. The term 
``returning worker'' under this paragraph (h)(6)(xiii)(A)(1) means a 
person who was issued an H-2B visa or was otherwise granted H-2B status 
in fiscal year 2020, 2021, or 2022. Notwithstanding Sec.  248.2 of this 
chapter, an alien may not change status to H-2B nonimmigrant under this 
paragraph (h)(6)(xiii)(A)(1). The additional H-2B visas authorized 
under this paragraph will be made available to returning workers as 
follows:
    (i) Up to an additional 18,216 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2023 employment 
start dates on or before March 31, 2023.
    (ii) Up to an additional 16,500 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2023 employment 
start dates from April 1, 2023 to May 14, 2023.
    (iii) Up to an additional 10,000 visas available for aliens with 
employment start dates from May 15, 2023 to September 30, 2023.
    (2) Supplemental allocation for nationals of Guatemala, El 
Salvador, Honduras (Northern Central American countries), or Haiti. 
Notwithstanding the numerical limitations set forth in paragraph 
(h)(8)(i)(C) of this section, for fiscal year 2023 only, and in 
addition to the allocation described in paragraph (h)(6)(xiii)(A)(1) of 
this section, the Secretary has authorized up to an additional 20,000 
visas for aliens who are nationals of Guatemala, El Salvador, Honduras 
(Northern Central American countries), or Haiti, who may receive H-2B 
nonimmigrant visas pursuant section 204 of Division O of the 
Consolidated Appropriations Act, 2022, Public Law 117-103, and section 
101(6) of Division A of Public Law 117-180 Continuing Appropriations 
and Ukraine Supplemental Appropriations Act, 2023, based on petitions 
with FY 2023 employment start dates. Such workers are not subject to 
the returning worker requirement in paragraph (h)(6)(xiii)(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)(xiii)(A)(1) and

[[Page 76875]]

must declare that they are requesting these workers in the attestation 
required under 20 CFR 655.67(a)(1). A petition requesting returning 
workers under paragraph (h)(6)(xiii)(A)(1), which is accompanied by an 
attestation indicating that the petitioner is requesting nationals of 
Northern Central American 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 Central 
American countries or Haiti. Notwithstanding Sec.  248.2 of this 
chapter, an alien may not change status to H-2B nonimmigrant under this 
paragraph (h)(6)(xiii)(A)(2).
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(xiii), 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 655.65, 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)(xiii);
    (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 2020, 2021, or 2022, unless the H-2B worker is a national 
of Guatemala, El Salvador, Honduras, or Haiti who is counted towards 
the 20,000 cap described in paragraph (h)(6)(xiii)(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 
and 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)(xiii)(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 655.65(a)(3) through (5);
    (v) The employer will provide documentary evidence of the facts in 
paragraphs (h)(6)(xiii)(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 2023 supplemental allocations outlined in paragraph 
(h)(6)(xiii)(B) of this section, as a condition for the approval of the 
petition.
    (vii) The employer 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 2023 supplemental 
allocations outlined in 20 CFR 655.65(a) and 655.67(a), as a condition 
for the approval of the H-2B petition. The employer must attest to this 
on Form ETA-9142-B-CAA-7 and must further attest on Form ETA-9142-B-
CAA-7 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--(1) Petitions filed pursuant to paragraph 
(h)(6)(xiii)(A)(1)(i) requesting FY 2023 employment start dates on or 
before March 31, 2023. USCIS will reject petitions filed pursuant to 
paragraph (h)(6)(xiii)(A)(1)(a) of this section requesting employment 
start dates on or before March 31, 2023 that are received after the 
applicable numerical limitation has been reached or after September 15, 
2023.
    (2) Petitions filed pursuant to paragraph (h)(6)(xiii)(A)(1)(ii) 
requesting FY 2023 employment start dates from April 1, 2023 to May 14, 
2023. USCIS will reject petitions filed pursuant to paragraph 
(h)(6)(xii)(A)(1)(ii) of this section requesting employment start dates 
from April 1, 2023 to May 14, 2023 that are received earlier than 15 
days after the INA section 214(g) cap for the second half FY 2023 has 
been met or after the applicable numerical limitation has been reached 
or after September 15, 2023.
    (3) Petitions filed pursuant to paragraph (h)(6)(xiii)(A)(1)(iii) 
of this section requesting FY 2023 employment start dates from May 15, 
2023 and September 30, 2023. USCIS will reject petitions filed pursuant 
to paragraph (h)(6)(xiii)(A)(1)(iii) of this section requesting 
employment start dates from May 15, 2023 to September 30, 2023, that 
are received earlier than 45 days after the INA section 214(g) cap for 
the second half FY 2023 has been met, or after the applicable numerical 
limitation has been reached or after September 15, 2023.
    (4) Petitions filed pursuant to paragraph (h)(6)(xiii)(A)(2) of 
this section requesting nationals of Guatemala, El Salvador, Honduras 
(Northern Central American countries), or Haiti with FY 2023 employment 
start dates. USCIS will reject petitions filed pursuant to paragraph 
(h)(6)(xiii)(A)(2) of this section that have a date of need on or after 
April 1, 2023 and are received earlier than 15 days after the INA 
section 214(g) cap for the second half of FY 2023 is met, or after the 
applicable numerical limitation has been reached or after September 15, 
2023.
    (5) USCIS will not approve a petition filed pursuant to paragraph 
(h)(6)(xiii) of this section on or after October 1, 2023.
    (D) Numerical limitations under paragraphs (h)(6)(xiii)(A)(1) and 
(2) of this section. When calculating the numerical limitations under 
paragraphs (h)(6)(xiii)(A)(1) and (2) of this section as authorized 
under Public Law 117-103, as extended by Public Law 117-180, 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

[[Page 76876]]

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)(xiii)(A)(1) or (2) 
of this section. 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)(xiii)(A)(1) and (2) of this section, USCIS may 
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)(xiii)(A)(1) 
or (2) of this section 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)(xiii)(A)(1) 
or (2) of this section may be received (in other words, if either of 
the numerical limits described in paragraph (h)(6)(xiii)(A)(1) or (2) 
of this section 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)(xiii) expires on October 1, 2023.
    (F) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(xiii)(B)(2) of this section is intended to be non-
severable from the remainder of paragraph (h)(6)(xiii), including, but 
not limited to, the numerical allocation provisions at paragraphs 
(h)(6)(xiii)(A)(1) and (2) of this section in their entirety. In the 
event that any part of this paragraph (h)(6)(xiii) is enjoined or held 
to be invalid by any court of competent jurisdiction, the remainder of 
this paragraph (h)(6)(xiii) 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)(xiii), as 
consistent with law.
* * * * *
    (29) Change of employers and portability for H-2B workers. (i) This 
paragraph (h)(29) relates to H-2B workers seeking to change employers 
during the time period specified in paragraph (h)(29)(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 25, 2023, is authorized to begin 
employment with the new petitioner after the petition described in this 
paragraph (h)(29) 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 25, 
2023 that remains pending on January 25, 2023, 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)(29)(i)(A) of this section, and subject to the requirements of 8 CFR 
274a.12(b)(33), the new period of employment described in paragraph 
(h)(29)(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)(29)(i)(B) of this section, the new period of employment described 
in paragraph (h)(29)(i) of this section may last for up to 60 days 
beginning on the later of either January 25, 2023 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)(33) 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)(29) 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 under this paragraph (h)(29):
    (A) The alien must either have been in valid H-2B nonimmigrant 
status on or after January 25, 2023 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 25, 2023, but no later than 
January 24, 2024; or be the beneficiary of a non-frivolous H-2B 
petition requesting an extension of the alien's stay that is pending as 
of January 25, 2023.
    (B) 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
    (C) 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)(29) begins at 12 a.m. on January 25, 2023, and ends at 
the end of January 24, 2024.
* * * * *

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 December 15, 2022 through December 15, 2025, amend Sec.  
274a.12 by adding paragraph (b)(33) to read as follows:


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

* * * * *
    (b) * * *
    (33) (i) Pursuant to 8 CFR 214.2(h)(29) 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 25, 2023, 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:

[[Page 76877]]

    (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 25, 2023; or
    (B) The later of January 25, 2023 or the start date of employment 
indicated on the new H-2B petition, for petitions that are pending as 
of January 25, 2023.
    (ii) If USCIS adjudicates the new petition prior to the expiration 
of the 60-day period in paragraph (b)(33)(i) of this section and denies 
the new petition for 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)(33) 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)(29) and paragraph (b)(33)(i) of this section begins at 12 
a.m. on January 25, 2023, and ends at the end of January 24, 2024.
* * * * *

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 December 15, 2022 through September 30, 2023, add Sec.  
655.65 to read as follows:


Sec.  655.65  Special application filing and eligibility provisions for 
Fiscal Year 2023 under the December 15, 2022 supplemental cap increase.

    (a) An employer filing a petition with USCIS under 8 CFR 
214.2(h)(6)(xiii) to request H-2B workers with FY 2023 employment start 
dates on or before September 30, 2023, must meet the following 
requirements:
    (1) The employer must attest on the Form ETA-9142-B-CAA-7 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)(xiii). Additionally, the employer's 
attestation must identify the types of evidence the employer is relying 
on and will retain to meet the irreparable harm standard, attest that 
the employer has created a detailed written statement describing how it 
is suffering irreparable harm or will suffer impending irreparable harm 
and describing how such evidence demonstrates irreparable harm, and 
attest that the employer will provide all documentary evidence of the 
applicable irreparable harm and the written statement describing how 
such evidence demonstrates irreparable harm to DHS or DOL upon request.
    (2) The employer must attest on Form ETA-9142-B-CAA-7 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)(xiii), have been issued an H-2B visa or otherwise granted 
H-2B status during one of the last three (3) fiscal years (fiscal year 
2020, 2021, or 2022), unless the H-2B worker is a national of 
Guatemala, El Salvador, Honduras, or Haiti and is counted towards the 
20,000 cap described in 8 CFR 214.2(h)(6)(xiii)(A)(2).
    (3) The employer must attest on Form ETA-9142-B-CAA-7 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-7 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)(xiii)(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-7 and the I-129 
petition 30 or more days after the certified start date of work, as 
shown on its approved Form ETA-9142B, Final Determination: H-2B 
Temporary Labor Certification Approval, 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, concurrently inform 
the SWA and NPC 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

[[Page 76878]]

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) Where the occupation or industry is traditionally or 
customarily unionized, 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, 
email or other effective means) the nearest American Federation of 
Labor and Congress of Industrial Organizations office covering the area 
of intended employment and provide written notice of the job 
opportunity, by providing a copy of the job order placed pursuant to 
(a)(5)(i) of this section, and request assistance in recruiting 
qualified U.S. workers for the job;
    (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 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, 2021, 
until the date the I-129 petition required under 8 CFR 
214.2(h)(6)(xiii) 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 placed pursuant to (a)(5)(i) of this section, and 
solicit their return to the job. 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 in writing;
    (v) 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)(v) must be provided in a 
language understood by the worker, as necessary or reasonable, in 
writing; and
    (vi) 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 written means) all U.S. workers currently employed at the 
place of employment, disclose the terms of the job order placed 
pursuant to (a)(5)(i) of this section, and request assistance in 
recruiting qualified U.S. workers for the job. The contact, disclosure, 
and request for assistance required by this paragraph (a)(5)(iv) must 
be provided in a language understood by the worker, as necessary or 
reasonable, and in writing;
    (vii) Where the employer maintains a website for its business 
operations, 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 post the job opportunity in a 
conspicuous location on the website. The job opportunity posted on the 
website must disclose the terms of the job order placed pursuant to 
(a)(5)(i) of this section, and remain posted for at least 15 calendar 
days;
    (viii) 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-7 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 2023 supplemental allocations outlined in this 
paragraph (a) and Sec.  655.67(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, 2023.
    (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 December 15, 2022 through September 30, 2026, add Sec.  
655.67 to read as follows:


Sec.  655.67  Special document retention provisions for Fiscal Years 
2023 through 2026 under the Consolidated Appropriations Act, 2022, as 
extended by Public Law 117-180.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2023 under authority of the temporary increase 
in the numerical limitation under section 204 of Division O, Public Law 
117-103 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)(xiii), 
including a detailed written statement describing the irreparable harm 
and how such evidence shows irreparable harm;
    (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)(xiii), 
have been issued an H-2B visa or otherwise granted H-2B status during 
one of the last three (3) fiscal years (fiscal year 2020, 2021, or 
2022), unless the H-2B worker(s) is a national of El Salvador, 
Guatemala, Honduras, or Haiti and is counted towards the20,000 cap 
described in 8 CFR 214.2(h)(6)(xiii)(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)(xiii)(A)(2); and
    (4) If applicable, proof of recruitment efforts set forth in Sec.  
655.65(a)(5)(i) through (viii) and a recruitment report

[[Page 76879]]

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.  655.65(a)(5)(ix).
    (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, 2026.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Martin J. Walsh,
Secretary, U.S. Department of Labor.
[FR Doc. 2022-27236 Filed 12-12-22; 5:15 pm]
BILLING CODE 9111-97-P; 4510-FP-P