[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80394-80460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25493]



[[Page 80393]]

Vol. 88

Friday,

No. 221

November 17, 2023

Part II





Department of Homeland Security





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8 CFR Parts 214 and 274a





Department of Labor





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Employment and Training Administration





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20 CFR Part 655





Exercise of Time-Limited Authority To Increase the Numerical Limitation 
for FY 2024 for the H-2B Temporary Nonagricultural Worker Program and 
Portability Flexibility for H-2B Workers Seeking To Change Employers; 
Temporary Rule

  Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 / 
Rules and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2764-24]
RIN 1615-AC89

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2023-0005]
RIN 1205-AC18


Exercise of Time-Limited Authority To Increase the Numerical 
Limitation for FY 2024 for the H-2B Temporary Nonagricultural Worker 
Program and Portability Flexibility for H-2B Workers Seeking To Change 
Employers

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

ACTION: Temporary rule.

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SUMMARY: DHS, in consultation with DOL, is exercising time-limited 
Fiscal Year (FY) 2024 authority and increasing the total number of 
noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 
for the entirety of FY 2024. These supplemental visas will be 
distributed in several allocations. 20,000 visas made available in this 
rule will be reserved for nationals of Guatemala, El Salvador, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. All visas will be 
available only to businesses that are suffering or will suffer 
impending irreparable harm, as attested by the employer. In addition, 
DHS is again providing temporary portability flexibility.

DATES: Effective dates: The amendments at instructions 1, 3, and 5 are 
effective November 17, 2023; at instructions 2 and 4 amending 8 CFR 
214.2 and 274a.12, respectively, are effective from November 17, 2023, 
through November 17, 2026; at instruction 6, adding 20 CFR 655.64, is 
effective from November 17, 2023, through September 30, 2024; and at 
instruction 7, adding 20 CFR 655.65, is effective from November 17, 
2023, through September 30, 2027.
    Petition dates: DHS will not accept any H-2B petitions under 
provisions related to the FY 2024 supplemental numerical allocations 
after September 16, 2024, and will not approve any such H-2B petitions 
after September 30, 2024. The provisions related to portability are 
only available to petitioners and H-2B nonimmigrant workers initiating 
employment through the end of January 24, 2025.
    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-8 
associated with this rule until January 16, 2024. 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 new information 
collection Form ETA-9142B-CAA-8, identified by Regulatory Information 
Number (RIN) 1205-AC18, 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-AC18 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-8: Brian D. 
Pasternak, Administrator, Office of Foreign Labor Certification, 
Employment and Training Administration, Department of Labor, 200 
Constitution Ave NW, Room N-5311, Washington, DC 20210, telephone (202) 
693-8200 (this is not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone numbers above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. Legal Framework
    B. H-2B Numerical Limitations Under the INA
    C. FY 2023 Omnibus and FY 2024 Public Law 118-15
    D. Joint Issuance of the Final Rule
    E. Comments and Responses to Comments on the FY 2023 TFR
III. Discussion
    A. Statutory Determination
    B. Numerical Increase and Allocations for Fiscal Year 2024
    C. Returning Workers
    D. 20,000 Allocation for Nationals of Guatemala, El Salvador, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica
    E. Business Need Standard--Irreparable Harm and FY 2024 
Attestation
    F. Portability
    G. Compliance With Employment-Related Laws
    H. DHS Petition Procedures
    I. DOL Procedures
IV. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 14094: Modernizing Regulatory Review; and Executive 
Order 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. National Environmental Policy Act
    H. Congressional Review Act
    I. Paperwork Reduction Act

I. Executive Summary

FY 2024 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 2024, 
subject to certain conditions. The 64,716 visas are divided into the 
following allocations:
     For the first half of FY 2024: 20,716 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 
2021, 2022, or 2023, regardless of country of nationality. These 
petitions must request employment start dates on or before March 31, 
2024;
     For the early second half of FY 2024 (April 1 to May 14): 
19,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2021, 2022, or 2023 regardless of country of nationality. These early 
second half of FY 2024 petitions must request employment start dates 
from April 1, 2024, to May 14, 2024. Furthermore, employers must file 
these petitions no earlier than 15 days after

[[Page 80395]]

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 2024: (May 15 to September 
30): 5,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2021, 2022, or 2023 regardless of country of nationality. These late 
second half of FY 2024 petitions must request employment start dates 
from May 15, 2024, to September 30, 2024. 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 2024: 20,000 visas reserved for 
nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica (country-specific allocation) 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 2024 may file such petitions immediately after the 
publication of this TFR. Employers requesting an employment start date 
in the second half of FY 2024 must file such petitions no earlier than 
15 days after the second half statutory cap is reached.
    To qualify for the FY 2024 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 a Nonimmigrant 
Worker, with USCIS at its Texas Service Center on or before September 
16, 2024;
     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, Haitian, Colombian, Ecuadorian, or Costa Rican 
national and counted towards the 20,000 cap exempt from the returning 
worker requirement; and
     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.
    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, 2022, 
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 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 2024 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 and the FY 2023 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.\2\ DHS intends for this additional 
scrutiny to help ensure compliance with H-2B program requirements and 
obligations.
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    \2\ 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, 30335 
(May 18, 2022); 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, 87 FR 76816, 76818 (Dec. 15, 
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

[[Page 80396]]

programs administered by DOL. Falsifying information also may subject a 
petitioner/employer to other criminal and/or civil penalties.
    DHS will not approve H-2B petitions filed in connection with the FY 
2024 supplemental cap authority on or after October 1, 2024.

H-2B Portability

    In addition to exercising its time-limited authority to make 
additional FY 2024 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 \3\ in valid H-2B status and who are beneficiaries of non-
frivolous H-2B petitions received on or after January 25, 2024, or who 
are the beneficiaries of non-frivolous H-2B petitions that are pending 
as of January 25, 2024, 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, 2024, in other 
words, at the end of January 24, 2025.\4\
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    \3\ 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).
    \4\ On September 20, 2023, DHS issued a Modernizing H-2 Program 
Requirements, Oversight, and Worker Protections Notice of Proposed 
Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public comment 
period that ends on November 20, 2023. In that NPRM, DHS proposed to 
extend portability to H-2A and H-2B workers on a permanent basis. 
The Department's proposal does not interfere with the portability 
provision of this rule, however, should DHS publish a final rule 
making H-2 portability permanent, any such provision would not 
expire on a specific date, unlike the portability provision made 
effective by this temporary final rule.
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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 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 TFRs \7\ and in this rule, and except

[[Page 80397]]

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\ For instance, the FY 2023 H-2B supplemental cap TFR included 
a portability provision at 8 CFR 214.2(h)(29)(iii)(A)(1)-(2), which 
remains in effect through January 24, 2024. See e.g., 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, 87 FR 76816 (Dec. 15, 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 who 
may be issued H-2B visas or otherwise provided 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, up to 33,000 
noncitizens may be issued H-2B visas or provided H-2B nonimmigrant 
status in the first half of a fiscal year, and the remaining annual 
allocation, including any unused nonimmigrant H-2B visas from the first 
half of a fiscal year, 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 2024 is from October 1, 2023, through September 
30, 2024.
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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\ See 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 generally trended earlier in recent years.\15\ 
For FY 2022, for the first time in more than a decade, USCIS received 
sufficient H-2B petitions to reach the first half of the fiscal year 
statutory cap before the start of the fiscal year.\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\ 
For FY 2024, USCIS received sufficient H-2B petitions to reach the 
first half of the fiscal year statutory cap on October 11, 2023.\18\ 
While this date was slightly later than the prior two years, the 
Departments note that DOL received 2,157 applications for the first 
half of the FY 2024 statutory cap during the initial three-day filing 
window of July 3-5, 2023, covering 40,947 worker positions; a 59% 
increase in TLC workload when compared to the same time period in 
2022.\19\ This trend in recent years of increased demand for H-

[[Page 80398]]

2B workers is even more apparent in the second half of the fiscal 
year.\20\
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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 (Sept. 14, 2022).
    \18\ On October 13, 2023, 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 2024, and that October 11, 2023 was the final receipt 
date for new cap-subject H-2B worker petitions requesting an 
employment start date before April 1, 2024. See USCIS, USCIS Reaches 
H-2B Cap for First Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (October 13, 
2023).
    \19\ See DOL, OFLC Publishes List of Randomized H-2B 
Applications Submitted July 3-5, 2023, for Employers Seeking H-2B 
Workers Starting October 1, 2023, https://www.dol.gov/agencies/eta/foreign-labor/news (July 10, 2023).
    \20\ 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; 
and DOL received 8,693 applications during the initial three-day 
filing window in 2023, covering 142,796 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.\21\ The 
authorization for the current supplemental cap is under sections 101(6) 
and 106 of Division A of Public Law 118-15, Continuing Appropriations 
Act, 2024 and Other Extensions Act (FY 2024 authority), which extended 
the authorization previously provided in section 303 of Division O of 
the Consolidated Appropriations Act, 2023, Public Law 117-328 (FY 2023 
Omnibus), as discussed below.
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    \21\ 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 2023 Omnibus and FY 2024 Public Law 118-15

    On December 29, 2022, President Joseph Biden signed the FY 2023 
Omnibus, which contains a provision, section 303 of Division O, Title 
III, 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.\22\ Specifically, section 303 provides 
that ``the Secretary of Homeland Security, after consultation with the 
Secretary of Labor, and upon determining that the needs of American 
businesses cannot be satisfied in [FY] 2023 with United States 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 2023 by 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.
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    \22\ The Department of Homeland Security Appropriations Act, 
2023, Public Law 117-328 (Dec. 29, 2022).
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    On September 30, 2023, Congress passed Public Law 118-15, which 
extends authorization under the same terms and conditions provided in 
section 303 of Division O of the FY 2023 Omnibus permitting the 
Secretary of Homeland Security to increase the number of H-2B visas 
available to U.S. employers in FY 2024.\23\ In other words, Public Law 
118-15 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 2024, notwithstanding the otherwise-established statutory 
numerical limitation set forth in the INA, for eligible employers whose 
employment needs for FY 2024 cannot be met.\24\ Under the Public Law 
118-15 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 2024 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 2024 supplemental cap expires at the end of 
that fiscal year. Therefore, USCIS will not approve H-2B petitions 
filed in connection with this FY 2024 supplemental cap authority on or 
after October 1, 2024.
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    \23\ See Public Law 118-15, Continuing Appropriations Act, 2024 
and Other Extensions Act, Division A, sections 101(6) and 106 
(extending into 2024 DHS funding and other authorities, including 
the authority to issue supplemental H-2B visas that was provided 
under title III of Division O of Pub. L. 117-328, through November 
17, 2023).
    \24\ 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 2024 subject to the same terms and 
conditions as the FY 2023 authority at any time before the 
continuing resolution expires, notwithstanding the reference to FY 
2023 in the FY 2023 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 303 of the FY 
2023 Omnibus, which is the same authority provided for FY 2024 by the 
recent continuing resolution. During each fiscal year from FY 2017 
through FY 2019, and FY 2021 through FY 2023, 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.\25\ USCIS approved a 
total of 12,294 workers for H-2B classification under petitions filed 
pursuant to the FY 2017 supplemental cap increase.\26\ 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.\27\ The vast 
majority

[[Page 80399]]

of the H-2B petitions received under the FY 2017 and FY 2018 
supplemental caps requested premium processing (Form I-907) \28\ and 
were adjudicated within 15 calendar days.
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    \25\ 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, 32998 (July 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, 24917 (May 31, 2018).
    \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.
    \27\ 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.
    \28\ 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.\29\ 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.\30\ 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.\31\ The vast majority of 
these petitions requested premium processing and were adjudicated 
within 15 calendar days.
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    \29\ See 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).
    \30\ See 84 FR at 20021.
    \31\ 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.
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    Although Congress provided the Secretary of Homeland Security with 
the discretionary authority to increase the H-2B cap in FY 2020, the 
Secretary did not exercise that authority. DHS initially intended to 
exercise its authority and, on March 4, 2020, announced that it would 
make available 35,000 supplemental H-2B visas for the second half of 
the fiscal year.\32\ On March 13, 2020, then-President Trump declared a 
National Emergency concerning COVID-19, a communicable disease caused 
by the coronavirus SARS-CoV-2.\33\ 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.\34\ DHS also noted that the Department of State 
had suspended routine visa services.\35\
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    \32\ 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.
    \33\ See Proclamation 9994 of Mar. 13, 2020, Declaring a 
National Emergency Concerning the Coronavirus Disease (COVID-19) 
Outbreak, 85 FR 15337 (Mar. 18, 2020).
    \34\ See https://twitter.com/DHSgov/status/1245745115458568192?s=20.
    \35\ See https://twitter.com/DHSgov/status/1245745116528156673.
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    In FY 2021, 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.\36\ 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 nationals of the Northern 
Central American countries of El Salvador, Guatemala, and Honduras, 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 rule.\37\ The total number of H-2B 
workers approved towards the FY 2021 supplemental cap increase was 
30,707.\38\ 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.\39\
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    \36\ 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).
    \37\ 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).
    \38\ 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 10/2023, TRK 
13122, H-2B Visa Issuance Report September 30, 2023.
    \39\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
---------------------------------------------------------------------------

    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.\40\ 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.\41\
---------------------------------------------------------------------------

    \40\ 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).
    \41\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
---------------------------------------------------------------------------

    For the second half of FY 2022, 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

[[Page 80400]]

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.\42\ 
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.\43\ 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.\44\
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    \42\ See Temporary Final 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).
    \43\ 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).
    \44\ The number of approved workers exceeded the number of 
additional visas authorized for the second half of FY 2022 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, C3 Consolidated, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
---------------------------------------------------------------------------

    Finally, on December 15, 2022, DHS and DOL jointly published a 
temporary final rule authorizing an increase of up to 64,716 additional 
H-2B visas for the entirety of FY 2023. As in the FY 2022 TFRs, the 
additional visas were available only to employers that attested they 
were suffering or would suffer impending irreparable harm without the 
additional workers.\45\ The 64,716 additional visas included 44,716 
reserved for returning workers from one of the last three fiscal years 
(FY 2020, 2021, or 2022), which were distributed in several allocations 
based on date of employer need: 18,216 for employers with requested 
employment start dates on or before March 31, 2023; 16,500 for 
employers with requested employment start dates from April 1, 2023, to 
May 14, 2023 (early second half allocation); and 10,000 for employers 
with requested employment start dates from May 15, 2023, to Sept. 30, 
2023 (late second half allocation). The remaining 20,000 visas were 
available for the entirety of FY 2023, and were set aside for nationals 
of El Salvador, Guatemala, Honduras, and Haiti, who were exempt from 
the returning worker requirement. By January 30, 2023, USCIS received 
enough petitions to reach the cap for the additional 18,216 H-2B visas 
made available for returning workers for the first half of fiscal year, 
and by March 30, 2023, USCIS received enough petitions to reach the cap 
for the additional 16,500 H-2B visas made available for returning 
workers for the early second half of fiscal year.\46\ USCIS data show 
that the total number of H-2B workers approved towards the FY 2023 
supplemental cap increase was 78,302, including 54,470 workers under 
the returning worker allocation, as well as 23,832 workers approved 
towards the Haitian/Northern Central American allocation.\47\
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    \45\ See 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, 87 FR 76816 (Dec. 15, 2022); 87 
FR 77979 (Dec. 21, 2022).
    \46\ See USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap Reached for 
Additional Returning Worker H-2B Visas for the Early Second Half of 
FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
    \47\ The number of approved workers exceeded the number of 
additional visas authorized for FY 2023 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 DHS, USCIS, Office of Performance and 
Quality, CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 
13122, H-2B Visa Issuance Report September 30, 2023.
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    Once again, DHS in consultation with DOL believes that it is 
appropriate to increase the H-2B cap for FY 2024 based on the demand 
for H-2B workers in the first half of FY 2024, anticipated demand for 
the second half of FY 2024, recent economic growth, and strong labor 
demand.\48\ Similar to the preceding temporary rule, 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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    \48\ 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 9.6 million job openings 
in August 2023. See DOL, BLS, Job Openings and Labor Turnover--
August 2023, https://www.bls.gov/news.release/archives/jolts_10032023.htm.
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D. Joint Issuance of the Final Rule

    As in FY 2017, FY 2018, FY 2019, FY 2021, FY 2022, and FY 2023, DHS 
and DOL (the Departments) have determined that it is appropriate to 
jointly issue this temporary final rule.\49\ 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.\50\ Although DHS and DOL each have authority 
to independently issue rules implementing their respective duties under 
the H-2B program,\51\ the Departments are implementing the numerical 
increase in this manner to ensure there can be no question about the 
authority underlying the

[[Page 80401]]

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).\52\
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    \49\ 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); 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, 87 FR 76816 (Dec. 15, 2022).
    \50\ 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).
    \51\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
    \52\ See 8 CFR 214.2(h)(6)(iii)(A) and (C), (h)(6)(iv)(A).
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E. Comments and Responses to Comments on the FY 2023 TFR

    In connection with the FY 2023 TFR, the Departments solicited 
public comments for 60 days. During that comment period, the 
Departments received 10 substantive comments. In the following 
discussion, the Departments discuss and respond to those comments by 
topic.
Timing and Distribution of Visas
    Comment: Several commenters expressed support for the Departments' 
release of the maximum number of visas authorized by Congress. In 
addition, these commenters indicated appreciation for the earlier 
release of supplemental visas in 2023 than in prior years, noting that 
the FY 2023 TFR offered certainty that was beneficial to employers. The 
commenters encouraged the Departments to similarly make future 
supplemental visas available early in the relevant fiscal year.
    Response: The Departments thank the commenters for their feedback. 
The Departments are again making the maximum number of visas available 
for FY 2024 and worked diligently to release these visas as early as 
possible.
    Comment: One commenter stated that the number of supplemental visas 
was not sufficiently justified by labor market conditions. The 
commenter asserted that the United States is not experiencing a labor 
shortage and disagreed with the Departments' usage of official 
unemployment rate data to justify the decision to release 64,716 
supplemental visas for FY 2023. The comment centers on a critique of 
official government statistics produced by the Department of Labor. 
More specifically, the comment noted the long-term decline in the labor 
force participation rate and, further, alleges that the official 
unemployment rate is flawed because it excludes persons who are 
considered to no longer be in the labor force.
    Response: The Departments appreciate the comment regarding 
justification for the number of supplemental visas. However, the 
Departments disagree that the rule did not sufficiently justify the 
number of supplemental visas. Specifically, the Departments disagree 
with the assertion that official government statistics are incorrect or 
inadequate. Furthermore, the Departments (as branches of the Federal 
Government) believe that it is reasonable to rely on official labor 
market statistics produced by subject-matter experts within the U.S. 
Government when assessing the labor market. Additionally, the 
Departments note that did they not rely on any single statistic to 
determine either the general need for supplemental visas or the 
specific number of supplemental visas, but rather considered a number 
of factors including demand for H-2B workers (in the form of TLC data) 
and labor market conditions (in the form of multiple labor market 
statistics). Finally, the Departments believe that aspects of this 
comment, specifically the discussion regarding long-term labor force 
trends that (by the commenter's description) are impacted by multiple 
variables other than short-term labor needs, are out of the scope of 
the FY 2023 Temporary Final Rule.
    Comment: Some commenters expressed support for the Departments' FY 
2023 distribution of the supplemental H-2B visas in multiple seasonal 
allocations including two allocations for the second half of the fiscal 
year. These commenters noted that this distribution was beneficial to 
employers who hire later in the fiscal year.
    Response: The Departments thank the commenters for their feedback 
and will again make multiple allocations available including two 
allocations for the second half of FY 2024.
    Comment: One commenter requested that the Departments consider 
combining the supplemental allocations for the second half of the 
fiscal year into a single allocation in future TFRs. The commenter 
stated that administering multiple allocations creates more work for 
the Departments when they are already struggling to process 
applications and petitions in a timely manner. The commenter also 
stated that the allocations for the second half of the fiscal year were 
``woefully insufficient'' to meet employer demand.
    Response: The Departments have again decided to reserve 
supplemental visas for the late second half of FY 2024. As noted by the 
commenter, administering multiple allocations involves some level of 
additional work. This includes both the work performed by USCIS in the 
actual administration of each allocation cap, as well as a potential 
increase in DOL workload as TLC requests may increase. However, the 
Departments have attempted to balance such workload challenges with the 
importance of addressing the needs of U.S. employers, including those 
late season employers who otherwise may not have the opportunity to 
file for cap-subject H-2B workers. As explained in last year's TFR and 
again in this TFR, the intense competition for employers requesting an 
April 1 start date has resulted in H-2B visas being effectively 
unavailable for many employers who need workers to start late in the 
season, and thus the late season allocation is intended to directly 
assist those employers.\53\ For FY 2024, as in FY 2023, the Departments 
believe that there is sufficient demand and need for the late second 
half to justify the additional work and potential impact on processing 
times.
---------------------------------------------------------------------------

    \53\ 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, 87 FR 76816, 76830 (Dec. 15, 
2022).
---------------------------------------------------------------------------

    Regarding the claim that the total allocation for the second half 
of FY 2023 was inadequate, the Departments reiterate that the 33,000 
cap was statutory, and the second half's total returning worker 
supplemental allocation of 26,500 visas was more than the first half's 
returning worker allocation of 18,216. In addition, while the 20,000 
allocation for nationals of El Salvador, Guatemala, Honduras, and Haiti 
was available for start dates throughout FY 2023, the majority of visas 
issued under that allocation went to workers with second half start 
dates.\54\ As with the FY 2023 TFR, the Departments will continue to 
make more total visas available for the second half of FY 2024 than the 
first half.
---------------------------------------------------------------------------

    \54\ Under the FY 2023 TFR allocation for nationals of Northern 
Central America and Haiti, a total of over 16,700 visas were issued, 
with around 5,000 of those visas issued to workers with first half 
start dates and the remainder issued to workers with second half 
start dates. See DHS, USCIS, Office of Performance and Quality, 
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, 
FY 2023 H-2B Northern Central American Cap Approvals by Validity 
Start Date Month.
---------------------------------------------------------------------------

    Comment: One commenter recommended reallocating unused visas from 
one sub-allocation to another if there were unused visas, such as 
unused visas from the allocation for nationals of El Salvador, 
Guatemala, Honduras, and Haiti, to the returning worker allocation. 
Another commenter more specifically suggested that the Departments 
coordinate with DOS to verify all visas under the first half allocation 
are actually used and roll over any supplemental visas that were 
``used'' (counted on a petition) but not issued (by DOS) from the first 
half cap to the second half cap, or from the early

[[Page 80402]]

second half cap to the late second half cap.
    Response: The Departments again decline to roll over any unused 
visas. As explained in this and the prior TFR, calculating and 
administering a process to carry over unused visas would significantly 
increase operational burdens. Also, not permitting rollover from the 
allocation for nationals of certain countries into the returning worker 
allocation provides employers seeking to hire workers from these 
countries with more time to petition for, and bring in those workers 
and encourages full use of the 20,000 allocation.\55\ This, in turn, 
contributes to the United States Government'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. 
Further, DHS anticipates that the issuance of this rule early in the 
fiscal year, the fact that this is the fourth year that DHS will make a 
specific allocation available for workers from the Northern Central 
American countries and Haiti, as well as the inclusion of nationals 
from Ecuador, Colombia, and Costa Rica, will contribute to even greater 
utilization of available visas under this allocation during FY 2024 
such that a rollover would not be beneficial or necessary. Similarly, 
it is the Departments' expectation that there will be sufficient demand 
from employers with first half and early second half start dates to use 
the entirety of these allocations in FY 2024, rendering rollover 
unnecessary.
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    \55\ In FY 2021, 3,079 visas out of 6,000 authorized were issued 
under the allocation for nationals of Northern Central America in 
the FY 2021 TFR, which published on May 25, 2021--to use a visa 
under this allocation the petition had to have been received by July 
8, 20211. In FY 2022, 2,481 visas out of 6,500 authorized were 
issued under the allocation for nationals of Northern Central 
America and Haiti in the first half FY 2022 TFR, which published on 
January 22, 2022; 7,405 visas out of 11,500 authorized were issued 
under the allocation for nationals of Northern Central America and 
Haiti in the second half FY 2022 TFR, which published on May 18, 
2022; and 16,713 visas were issued out of 20,000 authorized under 
the allocation for nationals of Northern Central America and Haiti 
in the FY 2023 TFR, which published on December 15, 2022. See DHS, 
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa 
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report 
September 30, 2023.
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    With respect to the suggestion to roll over any supplemental visas 
that were ``used'' but not issued by DOS, the Departments note that DHS 
already accounts for visa usage rates (among other factors) in its 
administration of the caps by using projections of the number of 
petitions necessary to achieve the numerical limit of approvals. See 
new 8 CFR 214.2(h)(6)(xiv)(D). Further, any rollover process would be 
operationally burdensome as noted above.
    Comment: A commenter requested the Departments to prioritize the 
allocation of late second half visas to essential and critical 
infrastructure employers, including seafood processors, as designated 
by DHS. Another commenter similarly requested the Departments to 
prioritize critical and essential infrastructure seafood industry jobs.
    Response: The Departments decline the suggestion to prioritize 
certain industries or jobs in the allocation of supplemental cap visas. 
As noted in the FY 2023 TFR and this TFR, the Departments interpret the 
use of the phrase ``the needs of American businesses'' in the relevant 
statutory authority for the supplemental caps as providing discretion 
to identify the business needs that are most relevant, while bearing in 
mind the need to protect U.S. workers. The Departments have implemented 
the irreparable harm standard in order to prioritize the most pressing 
business needs. Prioritizing certain industries as ``essential and 
critical,'' separate from the irreparable harm consideration already in 
use, could also harm industries DHS does not designate as such. The 
Departments believe considering the irreparable harm to individual 
employers better addresses the needs of employers than designating 
entire industries for prioritization. In addition, the Departments do 
not believe such prioritization is necessary as the decision to provide 
a late second half allocation again for FY 2024 should provide some 
relief to seafood processors (one of the industries highlighted in the 
comments) and other similar companies facing a need for additional 
workers in the late second half.
FY 23 Allocation for Nationals of El Salvador, Guatemala, Honduras, and 
Haiti
    Comment: Two commenters expressed general opposition to the 
allocation of supplemental visas for nationals of El Salvador, 
Guatemala, Honduras, and Haiti. These commenters opined that the H-2B 
program is not an appropriate strategy for addressing humanitarian 
needs and that the H-2B program would not provide permanent, durable 
solutions for these countries' nationals.
    Response: The country-specific allocation within the H-2B program 
is an important part of the administration's overall strategy to expand 
access to lawful pathways for individuals from these countries to stem 
irregular migration. These allocations are just one of the additional 
lawful pathways offered to these nationals and others, including new 
family reunification parole processes for certain nationals of El 
Salvador,\56\ Guatemala,\57\ Honduras,\58\ Colombia,\59\ and 
Ecuador,\60\ and modernized family reunification parole processes for 
certain nationals of Haiti \61\ and Cuba.\62\
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    \56\ Implementation of a Family Reunification Parole Process for 
Salvadorans, 88 FR 43611 (July 10, 2023).
    \57\ Implementation of a Family Reunification Parole Process for 
Guatemalans, 88 FR 43581 (July 10, 2023).
    \58\ Implementation of a Family Reunification Parole Process for 
Hondurans, 88 FR 43601 (July 10, 2023).
    \59\ Implementation of a Family Reunification Parole Process for 
Colombians, 88 FR 43591 (July 10, 2023).
    \60\ DHS announced a forthcoming family reunification parole 
program for Ecuador on October 18, 2023. DHS, DHS Announces Family 
Reunification Parole Process for Ecuador (Oct. 18, 2023), https://www.uscis.gov/newsroom/news-releases/dhs-announces-family-reunification-parole-process-for-ecuador (announcing that the 
Federal Register notice for this process will be published soon). As 
of October 27, 2023, the program is not yet active.
    \61\ Implementation of Changes to the Haitian Family 
Reunification Parole Process, 88 FR 54635 (Aug. 11, 2023).
    \62\ Implementation of Changes to the Cuban Family Reunification 
Parole Process, 88 FR 54639 (Aug. 11, 2023).
---------------------------------------------------------------------------

    The root causes of migration from these regions are multifold. 
Political instability and insecurity, poverty and economic inequality, 
pervasive crime and corruption, and other factors all contribute to 
irregular migration.\63\ The diversity of the root causes of irregular 
migration requires a multi-pronged strategy, as employed by this 
administration, to address them. As such, this rule and the allocation 
for certain countries provide an additional lawful pathway for 
individuals seeking an economic opportunity in the United States who 
would eventually return to contribute to the development of their own 
community and country. However, the Departments recognize other 
programs and efforts are also needed to

[[Page 80403]]

address other drivers to irregular migration.
---------------------------------------------------------------------------

    \63\ See National Security Council, U.S. Strategy for Addressing 
the Root Causes of Migration in Central America, at 4 (Jul. 2021), 
https://www.whitehouse.gov/wp-content/uploads/2021/07/Root-Causes-Strategy.pdf (Poverty and economic inequality, among other factors, 
contribute to irregular migration). See also The White House, Fact 
Sheet: Update on the U.S. Strategy for Addressing the Root Causes of 
Migration in Central America (Feb. 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/02/06/fact-sheet-update-on-the-u-s-strategy-for-addressing-the-root-causes-of-migration-in-central-america-2/ (economic challenges is 
one of the drivers of irregular migration); Diana Roy and Amelia 
Cheatham, Central America's Turbulent Northern Triangle (July 13, 
2023), Council on Foreign Relations, https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle (``Many 
interrelated factors drive people from the Northern Triangle, 
including lack of economic opportunity. . . .'').
---------------------------------------------------------------------------

    Comment: A commenter stated that the allocation of supplemental 
visas for nationals of El Salvador, Guatemala, Honduras, and Haiti was 
too high for H-2B employers to take full advantage of this set aside. 
The commenter stated that visa processing times in those countries 
cause employers to fear that they will not be able to obtain H-2B 
workers from these countries efficiently.
    Response: The Departments disagree that the 20,000 allocation for 
nationals of El Salvador, Guatemala, Honduras, and Haiti was too high. 
The Departments have again decided to set aside 20,000 supplemental 
visas for nationals of certain countries and believe all 20,000 visas 
will be utilized in FY 2024 for the following reasons. First, H-2B visa 
issuance growth data for nationals of these countries for the past 
several years supports the Departments' decision. Under the dedicated 
allocations in prior TFRs, H-2B visas were issued to 3,079 out of 6,000 
authorized for nationals of Northern Central America under the FY 2021 
TFR; 9,886 out of 11,500 authorized for nationals of Northern Central 
America and Haiti under the two FY 2022 TFRs; and 16,713 out of 20,000 
authorized for nationals of Northern Central America and Haiti under 
the FY 2023 TFR.\64\ These numbers show a steady increase in 
utilization over time. In addition, the issuance of this rule early in 
the fiscal year and the fact that this is the fourth year that DHS will 
make a specific allocation available for workers from the Northern 
Central American countries and Haiti, as well as the inclusion of 
nationals from Colombia, Ecuador, and Costa Rica, will increase the 
likelihood that all 20,000 set-aside visas for FY 2024 will be used.
---------------------------------------------------------------------------

    \64\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
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    Comment: A commenter requested including nationals of Ukraine in 
the same priority allocation as nationals of El Salvador, Guatemala, 
Honduras, and Haiti.
    Response: The Departments thank the commenter but will decline this 
suggestion. While DHS is committed to providing support to Ukrainian 
nationals, the allocation for Northern Central American/Haitian 
nationals was intended to support the administration's efforts to 
reduce irregular migration and expand lawful pathways from across the 
Western Hemisphere, and the Departments are making a similar separate 
allocation for nationals of specified countries this year for the same 
reasons. DHS continues to support Ukrainian nationals through other 
processes, such as Uniting for Ukraine.\65\ The Departments further 
note that, historically, Ukrainian nationals have received relatively 
high numbers of H-2B visas compared to nationals of other 
countries.\66\ Including Ukrainian nationals in the 20,000 allocation 
would take away from the number of supplemental visas available to help 
achieve the administration's overall goal of expanding lawful pathways 
from the Americas.
---------------------------------------------------------------------------

    \65\ USCIS, Uniting for Ukraine, https://www.uscis.gov/ukraine; 
DHS, Fact Sheet: DHS Efforts to Assist Ukrainian Nationals, https://www.dhs.gov/news/2022/03/31/fact-sheet-dhs-efforts-assist-ukrainian-nationals (last visited Oct. 31, 2023).
    \66\ Ukraine was among the top ten H-2B visa issuance countries 
in FY 2022 and among the top five H-2B visa issuance countries in FY 
2021 and FY 2020. See USCIS, Characteristics of H-2B Nonagricultural 
Temporary Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023) (Ukrainian 
nationals were issued 1,085 H-2B visas in FY22); Characteristics of 
H-2B Nonagricultural Temporary Workers Fiscal Year 2021 Report to 
Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (Mar. 10, 2022) 
(Ukrainian nationals were issued 2,222 H-2B visas in FY21); 
Characteristics of H-2B Nonagricultural Temporary Workers Fiscal 
Year 2020 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY20-Characteristics-Report.pdf (Feb. 
22, 2021) (Ukrainian nationals were issued 1,585 H-2B visas in 
FY20).
---------------------------------------------------------------------------

Data Transparency
    Comment: Several commenters requested the Departments disclose more 
data about the H-2B program. Specifically, commenters requested that 
DHS post ``close to real time'' data about jobs for which employers are 
seeking H-2B workers including the employer name, wages and working 
conditions and dates of need; provide more information through the 
USCIS H-2B Employer Data Hub including information on cap-exempt 
petitions; and provide additional information on usage of the 
allocation for Northern Central American and Haitian nationals, 
including the number of visas that were issued to nationals from each 
country, as well as which industries, employers and recruiters were 
involved. With regard to suggestions for DOL, commenters recommended 
enhancing the seasonaljobs.gov website's utility, including by ensuring 
that workers know in real time when an employer is actively hiring.
    Response: The Departments appreciate these comments and note that 
transparency and access to data and information continue to be among 
our priorities.\67\ DHS/USCIS has sought to increase transparency in 
employment-based visa programs, including through the USCIS H-2B 
Employer Data Hub which provides detailed information on H-2B petitions 
including employer name, state, worksite state, industry, occupation, 
and wage levels.\68\ Notably, the goal of improving data transparency 
is among the objectives included in a recently published report by the 
H-2B Worker Protection Taskforce.\69\ Specifically, one of the action 
items described in the report is the leveraging of existing data to 
increase transparency and reduce the vulnerability of H-2B and H-2A 
workers, including by improving interagency data sharing; improving 
publicly available data to inform outreach and advocacy efforts, 
including through new anonymized quarterly data reports and on DHS's H-
2B Data Hub; and by publishing anonymized, aggregated data by gender, 
sector, and occupation to provide an additional transparency to the H-2 
programs and aid efforts to prevent gender discrimination.
---------------------------------------------------------------------------

    \67\ USCIS, Annual Statistical Report FY 2022, https://www.uscis.gov/sites/default/files/document/reports/FY2022_Annual_Statistical_Report.pdf. Since FY 2008, DOL continues 
to publish selected statistical factsheets and individual TLC case 
record data cumulated on a quarterly and annual basis useful to a 
wide range of stakeholders and the general public at https://www.dol.gov/agencies/eta/foreign-labor/performance.
    \68\ USCIS, H-2B Employer Data Hub, https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub (last visited Oct. 17, 
2023). The data in the H-2B Employer Data Hub comes from fields on 
an employer's Form I-129, from USCIS' adjudicative decisions, and 
from the DOL H-2B Application for Temporary Employment Certification 
(Form ETA-9142B). USCIS, Understanding our H-2B Employer Data Hub, 
https://www.uscis.gov/tools/reports-and-studies/h-2b-employer-data-hub/understanding-our-h-2b-employer-data-hub (last visited Oct. 17, 
2023).
    \69\ See The White House, Strengthening Protections for H-2B 
Temporary Workers, Report of the H-2B Worker Protection Taskforce, 
https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf (Oct. 19, 2023).
---------------------------------------------------------------------------

    In addition, USCIS included some data about visas allocated under 
the FY 2022 allocation for nationals of Northern Central American 
countries and Haiti in its most recent report to Congress (which is 
available to the public) about characteristics of the H-2B program.\70\ 
The Departments will consider the suggestions provided by these 
commenters as they seek to improve clarity and transparency of data for 
the public. However, the Departments believe that many of the

[[Page 80404]]

suggestions, as well as other data enhancements, can be accomplished 
outside of the regulatory process. Therefore, DHS declines to adopt 
these suggestions as part of this temporary final rule.
---------------------------------------------------------------------------

    \70\ USCIS, Characteristics of H-2B Nonagricultural Temporary 
Workers Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023).
---------------------------------------------------------------------------

Irreparable Harm Standard
    Comment: Two commenters expressed concerns related to the 
irreparable harm standard as articulated. One commenter stated that the 
standard is unclear, overly burdensome, applied inconsistently by the 
Departments, and disruptive to business operations. The commenter felt 
that, if the standard is retained, the Departments should provide 
clearer guidance on what specific documents are required and 
sufficient, and recommended that the Departments issue step-by-step 
instructions for participating in the program to assist employers with 
understanding their obligations and reducing the risk of noncompliance.
    Response: As discussed in greater detail below, 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 and to retain and be able 
to produce (upon request) documentation of that harm as well as a 
statement describing the harm and explaining the relevance of the 
documentation. The Departments also think that the standard is 
sufficiently clear to allow compliance, and that listing out specific 
documents that must be provided in each case is not an appropriate 
approach. Each determination of irreparable harm is made on a case-by-
case basis. This inherently means that some documentation presented in 
one case may not be sufficient in another case presenting a different 
set of facts. In addition, not listing specific documents provides more 
flexibility for employers across occupations and industries to provide 
documentation that is relevant to their types of businesses.
Recruitment Requirements
    Comment: One commenter stated that the additional recruitment 
requirements included in the TFR create an undue burden for 
participating employers. Specifically, the commenter stated that the 
requirement to provide a copy of the job notice to the AFL-CIO is 
unnecessary, and ``purely duplicative, given the steps already required 
of petitioners to recruit U.S. workers.'' The commenter also asserted 
that the requirement failed to acknowledge the rate at which workers 
are unionized, noting the low rate of unionization in the residential 
construction industry, and suggested that in some areas alternative 
organizations--such as state and local trade associations or workforce 
boards--may be better positioned to conduct recruitment efforts in 
place of the AFL-CIO.
    Response: As discussed in the FY 2023 TFR and below, while the 
Departments recognize that the recruitment requirements create some 
burden on employers, the Departments believe they are necessary to 
ensure that the employer's recruitment has not become stale and that 
there are no U.S. workers available for the relevant job opportunity. 
The Departments reiterate that the additional recruitment requirements 
are only applicable if an employer files their I-129 petition 30 or 
more days after their certified start dates of work. The Departments, 
as discussed in the FY 2023 TFR and below, believe that the requirement 
to provide a copy of the job notice to the AFL-CIO is complementary to, 
rather than duplicative of, the other recruitment requirements for 
several reasons. For example, the Departments explained in the prior 
TFR that the State Federations of Labor and local unions to which SWAs 
would circulate relevant job orders, based on their knowledge of the 
local labor market, are composed of various union organizations and may 
not always include the AFL-CIO. At the same time, the requirement to 
contact the AFL-CIO increases outreach to qualified U.S. workers as 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. See 87 FR 76816, 
76844-45. The Departments disagree that they have not taken the rate of 
unionization into account as the Departments previously provided, and 
will continue to provide, a list of occupations that they believe are 
typically or customarily unionized. See, e.g., 87 FR 76816, 76844 n.145 
(noting the occupations or industries listed are ones in which the 
Department has typically observed substantial union presence). Finally, 
the Departments agree that other organizations in addition to the AFL-
CIO are well positioned to assist employers with recruitment activities 
as demonstrated by the requirement to post a new job order with the SWA 
and to engage with the local AJC to assist with recruitment.
Attestation Form
    Comment: One commenter stated that the attestation form that is 
required ``to demonstrate irreparable harm'' under the TFR is ``overly 
burdensome and may discourage employer participation when noncitizen 
workers are needed to address labor shortages,'' and urged the 
Departments to exclude the attestation form from subsequent 
rulemakings. The commenter indicated the Departments should recognize 
that a petitioner's investment of resources into seeking a TLC and 
filing Form I-129 with accompanying documentation shows ``the implied 
need for H-2B workers.''
    Response: The Departments disagree with this comment. The 
attestation form contains information needed to establish eligibility 
for supplemental H-2B visas that is not captured on other forms. It 
also contains information that the Departments need to properly 
administer the allocations under this rule. For example, among other 
things, the petitioner must indicate which allocation they are 
requesting workers under, attest that they are suffering or will suffer 
impending irreparable harm and indicate the types of evidence that they 
have retained to demonstrate irreparable harm. The Departments believe 
that the additional attestation is the least burdensome way to collect 
information needed to establish eligibility and to properly administer 
the supplemental visa allocations. The Departments also disagree that 
the attestation form is overly burdensome as DOL estimated that the 
total time burden for the ETA-9142-B-CAA-7 is 1 hour.\71\ It is 
unlikely that an employer would be discouraged from seeking H-2B 
workers because of this 1 hour burden, especially if the employer is 
suffering irreparable harm or will suffer impending irreparable harm 
without the ability to employ those workers.
---------------------------------------------------------------------------

    \71\ The Departments are retaining the attestation form 
requirement, and the total time burden for the FY 2024 attestation 
form, ETA-9142-B-CAA-8, remains 1 hour.
---------------------------------------------------------------------------

Legal Issues
    Comment: One commenter stated that DHS violated the National 
Environmental Policy Act (NEPA) by failing to provide any analysis to 
justify its assertion that adding up to 64,716 visas would not result 
in ``meaningful, calculable change in environment effect,'' or to 
justify its conclusion that the FY 2023 TFR therefore fits within a 
categorical exclusion.
    Response: The Departments disagree with the commenter regarding the 
sufficiency of the NEPA analysis in the FY 2023 TFR. As explained in 
the FY

[[Page 80405]]

2023 TFR, 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, which represents a maximum temporary 
increase of 0.0195 percent. As further explained, the FY 2023 TFR 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.
    Comment: While a commenter agreed with DHS that there was good 
cause to immediately increase the cap, the commenter opined that there 
was not good cause for the other ``ancillary policy provisions,'' 
particularly the requirement to ``affirmatively contact'' the nearest 
AFL-CIO office and provide written notice of the job order placed with 
the SWA when the employment is in a traditionally or customarily 
unionized occupation or industry. Accordingly, the commenter urged the 
Departments to reissue the FY 2023 TFR as two separate rules, a final 
rule to release the supplemental visas and a proposed rule that 
contains the other provisions.
    Response: The Departments maintain there was good cause to couple 
the release of supplemental visas with additional provisions, such as 
the additional recruitment requirements, in a temporary final rule. The 
Departments provided their rationale for the recruitment requirements 
in the FY 2023 TFR \72\ and articulated sufficient good cause to forgo 
notice and comment rulemaking for all aspects of the temporary final 
rule. As indicated in the FY 2023 temporary final rule, the duration of 
the authorization to make supplemental cap visas available, combined 
with the urgent need of American businesses for H-2B workers did not 
provide sufficient time to conduct pre-promulgation notice and comment 
rulemaking on any aspect of the TFRs, including additional recruitment 
requirements.
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    \72\ 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, 87 FR 76816, 76842-47 (Dec. 15, 
2022).
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Suggestions Outside the Departments' Authority
    Comment: Two commenters urged the administration to consider an 
``Alternative Model for Labor Migration'' that would give workers in 
the H-2B visa program, and more broadly in all work visa programs, more 
control over their visas by allowing them to self-petition and be 
matched with employers via a government database, and would enable 
workers to petition for citizenship. The commenters set forth a 
detailed plan regarding how the model would function, including 
specific DOL and USCIS procedures, and they provided an analysis of the 
benefits of the alternative model relative to the current program.
    The commenters asserted that the supplemental cap TFR represents an 
opportunity for the Departments to ``partially implement'' the model 
described. Specifically, the commenters suggested that the Departments 
could implement a lottery open to all returning workers by which they 
could apply to be assigned a priority ranking. Employers approved 
through the TLC and petition processes would be required to post the 
number of open H-2B positions and procedures for applying publicly on 
seasonaljobs.dol.gov, and any returning H-2B worker would be eligible 
to apply directly to the employer or the employer's designated agent. 
If the applications from returning H-2B workers exceeded the vacancies, 
workers' priority would be based on their assigned lottery rank.
    Response: As implicitly acknowledged by the commenters in their 
suggestions that the proposed model could be ``partially'' implemented 
by regulation, many aspects of the commenters' proposed ``Alternative 
Model for Labor Migration,'' such as enabling workers to self-petition 
and to pursue citizenship, are clearly outside the Departments 
authority under the current statutory scheme. It is unclear whether the 
Departments have authority to otherwise ``partially implement'' the 
model as suggested. Regardless, even assuming such authority, the 
Departments note that the proposal would not be feasible in the context 
of a temporary and time-limited statutory authority and rule such as 
the current TFR, due to the level of changes to existing processes and 
the development of new systems and processes that would be required for 
implementation.
Broader Program Reforms
    Some commenters made suggestions for broader program reforms that 
would require Congressional action. For example, commenters made 
suggestions relating to permanently increasing the H-2B annual 
statutory cap, exempting certain workers from that cap, and increasing 
funding for DOL's H-2B enforcement. However, the Departments decline to 
further detail and respond to these comments, as the recommendations 
are all outside of the Departments' authority to accomplish.
    In addition to the issues discussed above, the public comments 
included numerous suggestions for the Departments to make permanent 
changes to the H-2B program, with several commenters expressing that 
the Departments should not exercise their authority to increase the 
number of H-2B visas unless and until the program is more broadly 
reformed. The recommendations for permanent program reforms included 
suggestions for both DHS and DOL regarding ways to increase protections 
for both foreign and U.S. workers, and to improve the overall integrity 
and efficiency of the program. Specifically, commenters suggested that 
one or both Departments should implement the following changes to the 
H-2B program before or instead of authorizing supplemental visas:
     Provide a grace period with employment authorization so 
workers can leave employers for any reason;
     Notify beneficiaries about their own immigration status;
     Provide workers access to information about their rights 
and about available resources to enforce those rights;
     Improve access to deferred action for H-2 workers who 
experience or witness labor rights violations, including an expedited 
process for issuance of statements of interest from government 
entities;
     Fully implement the existing provision at 8 CFR 
214.2(h)(17)(iii) to protect workers who leave abusive employers from 
accruing unlawful presence;
     Do more to prevent discrimination and discriminatory 
hiring practices in the H-2B program;
     Collect and release more and better data about the H-2B 
program; \73\
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    \73\ See above comment and response under the heading ``Data 
Transparency'' for further discussion on this topic.
---------------------------------------------------------------------------

     Provide increased real-time information about available 
job opportunities;
     Require employers to give priority to anyone in the U.S. 
with employment authorization (including ``individuals with unexpired 
valid H-2B visas'') for any open unfilled position for which an 
employer sought or obtained H-2B labor certification;
     Prioritize petitions for industries with the lowest 
unemployment rate(s) instead of using a lottery system;

[[Page 80406]]

     Allocate visas to employers who pay the highest wages 
instead of using a random lottery system;
     Do not issue H-2B visas to employers who are engaged in 
labor disputes, and only issue visas to direct employers and end 
outsourcing and labor contractors; \74\
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    \74\ These recommendations were specifically for USCIS, however, 
the Departments note that visas are issued by the Department of 
State.
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     Grant work authorization to spouses of H-2 nonimmigrants;
     Impose greater employer accountability for actions of 
contractors, recruiters, and agents;
     Seek ways to enforce the ban on recruitment fees without 
penalizing workers;
     Allow H-2B workers to pursue permanent labor certification 
or ``other applications for permanent residence;''
     Prohibit the imposition of unnecessary requirements for 
entry-level positions;
     Improve health and safety standards at H-2B workplaces;
     Require employers to undertake both local and national 
recruitment efforts before looking abroad;
     Require employers to pay for housing and daily 
transportation to and from the worksite for both U.S. and H-2B workers;
     Require full contract compliance, including all hours 
promised;
     Cease issuance of H-2B labor certifications for work in 
certain areas, such as ``labor surplus areas or occupations'' or ``high 
unemployment regions and industries;''
     Create a streamlined process for reporting program 
violations;
     Create an avenue for stakeholders, including U.S. workers, 
to raise concerns about job orders and labor certifications;
     Reinstate the Interagency Working Group for the Consistent 
Enforcement of Federal Labor, Employment and Immigration Laws to 
strengthen deconfliction efforts between key agencies and support 
affirmative protections for immigrant and nonimmigrant workers;
     Create a civil society advisory group to promote decent 
work in the Central American regional strategy;
     Update the H-2B prevailing wage methodology in various 
ways;
     Implement the additional U.S. recruitment requirements;
     Improve language access for workers;
     Keep job postings active until all positions are actually 
filled, and require employers to update the job postings with new 
information;
     Keep labor violators out of the program, including by 
creating an employer screening and/or registration program;
     Establish a formal registration process for international 
recruiters, as well as U.S. agents;
     Require employers to disclose every person authorized to 
engage in recruitment on their behalf;
     Work with Department of State to enhance consulates' H-2B 
job verification services by verifying recruiters associated with the 
job order;
     Increase enforcement in various ways, such as by debarring 
all recruiters that engage in any prohibited practice, creating stiffer 
penalties for employer violations, and/or instituting processing fees 
at sufficient levels to fund robust enforcement;
     Change the visa allocation procedures for the statutory 
66,000 cap, including allocation in 4 different increments, and using 
less than 33,000 visas during the first half of the fiscal year;
     Modify the current process for randomizing H-2B TLC 
applications in such a manner as to give H-2B employers opportunities 
to participate without regard to the date specified as the first date 
for employment;
     Reduce the period a worker is required to be outside the 
United States following 3 years in H-2B status to 60 days;
     Provide notice of seasonal job openings to unions 
representing workers in relevant occupations so that they may dispatch 
members in response;
     Limit the duration of H-2B eligible job orders to 7 
months;
     Cap at 100 the number of visas that any single employer 
can receive;
    The permanent changes to the H-2B program that commenters have 
suggested are not appropriate for inclusion in a rule of temporary 
duration such as the current TFR, and the Departments therefore decline 
to discuss each of these suggestions with further specificity. The 
Departments appreciate the thoughtful recommendations for permanent 
program reforms, however, and note that they are actively engaged in 
reform efforts outside of this rulemaking, including efforts to address 
some of the issues discussed in the suggestions.
    Notably, on September 20, 2023, DHS published a notice of proposed 
rulemaking (NPRM) to modernize and improve both the H-2B and H-2A 
programs by providing greater flexibility and protections for 
participating workers, and improving the program's efficiency.\75\ The 
NPRM contains discussions and proposals related to some of the reform 
concepts included in the commenters' suggestions including, for 
example, providing grace periods during which an H-2 worker can leave 
work to seek new employment, ensuring greater accountability for 
employers and recruiters with past violations, reducing the required 
amount of time to be spent outside the United States after reaching 3 
years in H-2B status, and allowing workers to take steps toward 
permanent residence without violating their nonimmigrant status on that 
basis. DHS is currently accepting public comments specific to the NPRM 
through November 20, 2023, and will consider all such comments in 
developing a subsequent final rule. In addition, both Departments are 
involved in an H-2B Worker Protection Taskforce, convened by the White 
House, which focuses on threats to H-2B program integrity, H-2B 
workers' fundamental vulnerabilities, and the impermissible use of the 
program to avoid hiring U.S. workers.\76\ On October 19, 2023, the H-2B 
Worker Protection Taskforce published a report announcing new actions 
to be taken by four federal agencies--DHS, DOL, DOS, and the U.S. 
Agency for International Development (USAID)-- to strengthen 
protections for vulnerable workers.\77\
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    \75\ Modernizing H-2 Program Requirements, Oversight, and Worker 
Protections, 88 FR 65040 (Sep. 20, 2023).
    \76\ See DHS, DHS to Supplement H-2B Cap with Nearly 65,000 
Additional Visas for Fiscal Year 2023 (Oct. 12, 2022), https://www.dhs.gov/news/2022/10/12/dhs-supplement-h-2b-cap-nearly-65000-additional-visas-fiscal-year-2023 (announcing the creation of the H-
2B Worker Protection Taskforce).
    \77\ See The White House, Strengthening Protections for H-2B 
Temporary Workers, Report of the H-2B Worker Protection Taskforce, 
https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf (Oct. 19, 2023).
---------------------------------------------------------------------------

    With regard to commenters' specific recommendation that the 
Departments decline to provide supplemental H-2B visas unless and until 
the program is broadly reformed, the Departments disagree with that 
recommendation. While permanent reforms to the relevant DHS regulations 
are being considered outside of this rulemaking as noted above, the 
Departments have determined, as discussed in greater detail below, that 
an increase in H-2B visas for businesses facing irreparable harm is 
warranted and justified under the authority provided in section 303 of 
the FY 2023 Omnibus, as extended by Public Law 118-15.

[[Page 80407]]

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 2024 with U.S. workers who are willing, 
qualified, and able to perform temporary nonagricultural labor. In 
accordance with the FY 2024 continuing resolution extending the 
authority provided in section 303 of the FY 2023 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 2024 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. These businesses must retain documentation, as described 
below, supporting this attestation.
    As in connection with the FY 2021, FY 2022, and FY 2023 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, FY 2022, and FY 
2023 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, FY 2022, and FY 2023, 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, Haiti, Colombia, Ecuador, and Costa Rica.\78\ DHS is 
reserving these 20,000 H-2B visas for nationals of these countries to 
further the United States' objectives in the Western Hemisphere to 
manage irregular migration through various lines of efforts including 
increasing and expanding access to lawful pathways for nationals of 
countries that have extensively collaborated with the United States on 
migration issues, such as through endorsing the Los Angeles Declaration 
on Migration and Protection (L.A. Declaration),\79\ joining the United 
States to ramp up efforts to address the irregular migration flows 
through the Darien,\80\ and hosting Safe Mobility Offices so that 
migrants do not trek north to the U.S. Southwest Border.\81\ The 20,000 
set-aside will also deliver on 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.\82\ DHS is also allocating these visas to specific countries 
to further promote development and economic stability of these 
countries to reduce irregular migration throughout the Western 
Hemisphere.\83\
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    \78\ 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 303 of the FY 2023 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, 2024, div. A, sec. 101(6) 
(extending the authority provided in FY 2023 Omnibus div. O, sec. 
303 (``Notwithstanding the numerical limitation set forth in section 
214(g)(1)(B) of the [INA] . . . .'')).
    \79\ The White House, Los Angeles Declaration on Migration and 
Protection, June 10, 2022, https://www.whitehouse.gov/briefing-room/statements-releases/2022/06/10/los-angeles-declaration-on-migration-and-protection/.
    \80\ Trilateral Joint Statement, April 11, 2023, https://www.dhs.gov/news/2023/04/11/trilateral-joint-statement.
    \81\ The White House, Joint Statement from the United States and 
Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/; United States 
Department of State, U.S.-Colombia Joint Commitment to Address the 
Hemispheric Challenge of Irregular Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; The White House, 
Readout of Principal Deputy National Security Advisor Jon Finer's 
Meeting with Colombian Foreign Minister Alvaro Leyva (June 11, 
2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/; 
United States Department of State, U.S.-Costa Rica Joint Commitment 
to Address the Hemispheric Challenge of Irregular Migration (June 
12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; United 
States Department of State, Announcement of Safe Mobility Office in 
Ecuador (October 19, 2023), https://www.state.gov/announcement-of-
safe-mobility-office-in-ecuador/
#:~:text=The%20United%20States%20is%20pleased,authorized%20channels%2
0of%20lawful%20migration.
    \82\ 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.
    \83\ 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 
L.A. 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).
---------------------------------------------------------------------------

    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 and FY 2023 supplemental visa 
allocations for Salvadoran, Guatemalan, Honduran, and Haitian 
nationals, with USCIS

[[Page 80408]]

approving petitions on behalf of 6,805 beneficiaries under the FY 2021 
allocation,\84\ 3,231 beneficiaries under the FY 2022 first half 
supplemental allocation,\85\ 12,318 beneficiaries for the second half 
of the fiscal year FY 2022, and 23,832 beneficiaries under the FY 2023 
allocation.\86\ In addition, DHS and the Biden administration have 
continued to conduct outreach efforts promoting the H-2B program as, 
among other things, a lawful pathway for nationals of El Salvador, 
Guatemala, Honduras, and Haiti to work in the United States.\87\
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    \84\ 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 3,079 visas to nationals from those 
countries. See DHS, USCIS, Office of Performance and Quality, 
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, 
H-2B Visa Issuance Report September 30, 2023. 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.
    \85\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
    \86\ See DHS, USCIS, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023. 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 7,405 visas to nationals from those countries. 
Similarly, while USCIS approved a greater number of beneficiaries 
from the Northern Central American countries and Haiti than the 
20,000 visas allocated under the FY 2023 supplemental cap for those 
countries, the Department of State issued approximately 16,713 visas 
to nationals from those countries. DHS anticipates that the issuance 
of this rule early in the fiscal year, the fact that this is the 
fourth year that DHS will make a specific allocation available for 
workers from the Northern Central American countries, as well as the 
inclusion of nationals from several additional countries, will 
contribute to even greater utilization of available visas under this 
allocation during FY 2024.
    \87\ 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.'').
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    DHS will not accept and will reject petitions submitted for the 
country-specific allocation with a date of need on or after April 1, 
2024 that are received earlier than 15 days after the INA section 
214(g) cap for the second half of FY 2024 is met or are received after 
the applicable numerical limitation has been reached or after September 
16, 2024. Requiring petitioners to wait to submit H-2B supplemental cap 
petitions with start dates of need on or after April 1, 2024 is 
consistent with the supplemental cap authority in section 303, as 
extended to FY 2024 by Public Law 118-15, Continuing Appropriations 
Act, 2023 and Other Extensions Act, and will facilitate the orderly 
intake and processing of supplemental cap petitions for the country-
specific allocation. 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, 2024.
    Similar to the previous temporary final rules for the FY 2019, FY 
2021, FY 2022, and FY 2023 supplemental caps, the Secretary of Homeland 
Security has also determined to limit the supplemental visas to H-2B 
returning workers,\88\ unless the employer indicates on the new 
attestation form that it is requesting workers who are nationals of one 
of the specified countries and who are therefore counted towards the 
20,000 country-specific allocation regardless of whether they are new 
or returning workers. If the 20,000 country-specific allocation 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 these countries, 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 2021, 2022, or 2023.\89\ Like the 
temporary final rules for the first half and for the second half of FY 
2022 and FY 2023, if the 20,000 returning worker exemption cap for 
specific nationals remains unfilled, DHS will not make unfilled visas 
reserved for these nationals available to the general returning worker 
cap. The DHS decision not to make available unfilled visas from the 
country-specific allocation to the general supplemental cap for 
returning workers is consistent with the administration's goal of 
providing a lawful pathway for such nationals 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 country-specific allocation 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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    \88\ For purposes of this rule, these returning workers could 
have been H-2B cap exempt or extended H-2B status in FY 2021, 2022, 
or 2023. Additionally they may have been previously counted against 
the annual H-2B cap of 66,000 visas during FY 2021, 2022, or 2023, 
or the supplemental caps in FY 2021, 2022, or 2023.
    \89\ The returning worker allocations are for workers who were 
issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 
2023, regardless of country of nationality. Therefore, a petitioner 
may choose to petition for Salvadoran, Guatemalan, Honduran, 
Haitian, Colombian, Ecuadorian, or Costa Rican nationals who meet 
this requirement under an available returning worker allocation, 
regardless of whether the separate 20,000 allocation for these 
nationals has been reached.
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    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.\90\ 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.\91\ In addition, several commenters on the FY 2023 TFR 
supported the Departments' decision to publish one rule covering the 
entire fiscal year for 2023, and urged the Departments to once again 
publish one rule covering the entire fiscal year for 2024 in order to 
save time in the second half of the fiscal year, conserve limited 
agency resources, and reduce uncertainty for employers.\92\
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    \90\ See the docket for this rulemaking for access to these 
letters.
    \91\ See the docket for this rulemaking for access to these 
letters.
    \92\ See the docket for this rulemaking for access to these 
comments.
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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

[[Page 80409]]

workers under the statutory cap, including potential wage and job 
losses by their U.S. workers, as well as other adverse downstream 
economic effects.\93\ 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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    \93\ 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 Sept. 29, 2023); Hospitality Employment Rose in May, But 
Hoteliers Report Lingering Labor Woes, Hotel Dive (Jun. 7, 2023), 
https://www.hoteldive.com/news/hotel-employment-labor-shortage-increased-wage/652308/(last visited Oct. 2, 2023).
---------------------------------------------------------------------------

    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 303, as extended by Public Law 118-15, 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 303, as extended by Public Law 118-15, 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 303, as extended by Public Law 118-
15, 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 
temporary 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 2024, 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 
countries included in the 20,000 country-specific allocation that is 
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 2024

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 2024.\94\ 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 2024 and expected demand for the second 
half of FY 2024; current labor market conditions; the general trend of 
increased demand for H-2B visas from FY 2017 to FY 2023; H-2B returning 
worker data; the amount of time for employers to hire and obtain H-2B 
workers in this fiscal year; and the objectives of E.O. 14010 and the 
L.A. Declaration. 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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    \94\ 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 303 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 303 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.
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    Section 303 of the FY 2023 Omnibus, as extended by Public Law 118-
15, 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 2024.\95\ 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

[[Page 80410]]

additional H-2B visas to be made available for FY 2024, 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 2024 supplemental cap authority. The Secretary further considered 
the objectives of E.O. 14010 and the L.A. Declaration, both of which 
focus in part on addressing the root causes of irregular migration and 
managing migration through lawful pathways. 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 El Salvador, Guatemala, Honduras, 
Haiti, Colombia, Ecuador, or Costa Rica.
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    \95\ 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.\96\ 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 for 
workers from Northern Central American countries.\97\ Of the petitions 
received, USCIS issued approvals for 30,707 beneficiaries, including 
approvals for 6,805 beneficiaries under the allocation for the 
nationals of the Northern Central American countries.\98\
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    \96\ 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.
    \97\ 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).
    \98\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122. 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.\99\ 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.\100\ 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.\101\
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    \99\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122.
    \100\ 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).
    \101\ See Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, C3 
Consolidated, queried 10/2023, TRK 13122. The number of approved 
workers exceeded the number of additional visas authorized for the 
second half of FY 2022 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.
---------------------------------------------------------------------------

    In FY 2023, USCIS received enough petitions to reach the cap for 
the additional 18,216 H-2B visas made available for returning workers 
for the first half of fiscal year by January 30, 2023, and USCIS 
received enough petitions to reach the cap for the additional 16,500 H-
2B visas made available for returning workers for the early second half 
of fiscal year by March 30, 2023.\102\ Of the petitions for 
supplemental H-2B visas in FY 2023, USCIS issued approvals for 78,302 
beneficiaries, including 7,157 beneficiaries under the allocation of 
10,000 visas made available for returning workers for the late second 
half of the fiscal year and 23,832 beneficiaries under the allocation 
of 20,000 visas reserved for nationals of the Northern Central American 
countries and Haiti.\103\
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    \102\ See USCIS, Cap Reached for Additional Returning Worker H-
2B Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023); USCIS, Cap 
Reached for Additional Returning Worker H-2B Visas for the Early 
Second Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-early-second-half-of-fy-2023 (Mar. 31, 2023).
    \103\ See DHS, USCIS, Office of Performance and Quality, 
CLAIMS3, VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, 
H-2B Visa Issuance Report September 30, 2023. The number of approved 
workers exceeded the number of additional visas authorized for FY 
2023 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.
---------------------------------------------------------------------------

    Data for the first half of FY 2024 clearly indicate an immediate 
need for additional supplemental H-2B visas for employers with start 
dates on or before March 31, 2024. USCIS received a sufficient number 
of H-2B petitions to reach the first half of the FY 2024 fiscal year 
statutory cap on October 11, 2023.\104\ Further, the date on which 
USCIS received sufficient H-2B petitions to reach the first half 
semiannual statutory cap has generally trended earlier in recent years. 
In fiscal years 2017 through 2024, 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, September

[[Page 80411]]

12, 2022, and October 11, 2023, respectively.\105\
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    \104\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
    \105\ 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); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
---------------------------------------------------------------------------

    Through the third quarter of FY 2023, approximately 85.2 percent of 
H-2B filings were for positions within just 5 sectors.\106\ NAICS 56 
(Administrative and Support and Waste Management and Remediation 
Services) accounted for 39.5% of filings, NAICS 71 (Accommodation and 
Food Services) accounted for 11.2%, NAICS 72 (Arts, Entertainment, and 
Recreation) accounted for 18.00%, NAICS 23 (Construction) accounted for 
12.4%, and NAICS 11 (Agriculture, Forestry, Fishing and Hunting) 
accounted for 4.1% of filings.
---------------------------------------------------------------------------

    \106\ USCIS analysis of DOL OLFC Performance data.
---------------------------------------------------------------------------

    Within these industries, DOL data show higher labor demand relative 
to recent history. More specifically, industry unemployment data from 
the Bureau of Labor Statistics (BLS) show that the industry 
unemployment rate in each of these industries is lower than the long 
term (10-year) average.\107\
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    \107\ USCIS has elected to use a long-term average as a 
reference point so as to minimize the impact that the Covid-19 
pandemic has on the comparison of the industry employment rate. All 
data are taken from the respective BLS ``Industry at a Glance'' 
pages. See https://www.bls.gov/iag/tgs/iag11.htm, https://www.bls.gov/iag/tgs/iag23.htm, https://www.bls.gov/iag/tgs/iag60.htm, https://www.bls.gov/iag/tgs/iag71.htm, https://www.bls.gov/iag/tgs/iag72.htm. All data accessed September 20, 2023.
[GRAPHIC] [TIFF OMITTED] TR17NO23.020

[GRAPHIC] [TIFF OMITTED] TR17NO23.021

    In August 2023, the industry unemployment for NAICS 56 \108\ was 
3.7 percent, which is 1.31 points lower than its 10-year average of 
5.01 percent, while the industry unemployment rate for NAICS 71 was 4.5 
percent which is 3.85 points lower than its 10-year average of 8.35 
percent. The August 2023 industry unemployment rate for NAICS 72 (6.10 
percent) was 2.13 points lower than its 10-year average of 8.23 percent 
while the rate for NAICS 23 (3.9 percent) was 2.53 points lower than 
its 10-year average of 6.43 percent. The industry unemployment rate for 
NAICS 11 (5.80 percent) was 1.96 points lower than its 10-year average 
of 7.76 percent. The relatively low unemployment 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 in these industries.
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    \108\ 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 July, 2023 from the Department of Labor's Current 
Employment Statistics program indicates that NAICS 56 accounted for 
just under 42% of employment in Professional Business Services. All 
data accessed September 27, 2023.
---------------------------------------------------------------------------

    Economy-wide data also indicate that labor-market tightness 
continues to exist. The most recent Employment Situation released by 
the Bureau of Labor Statistics (BLS) stated that the unemployment rate 
was 3.8 percent in September 2023.\109\ Historically, the availability 
of H-2B visas addressed a need in the labor market during periods of 
lower unemployment. Chart 1 \110\ shows that the H-2B visa allocations 
for Fiscal Year 2024 \111\ 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 percent, 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 percent to 4.6 percent, the total number of H-2B 
visas issued were comparable to what is planned for 2024. 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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    \109\ See DOL, BLS, The Employment Situation--September 2023, 
https://www.bls.gov/news.release/archives/empsit_10062023.pdf (Oct. 
6, 2023).
    \110\ 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 fiscal year 2023 are for October 
2022-August 2023. Unemployment rate for 2024 is based on median 
Federal Reserve projections See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm (accessed September 29, 
2023).
    \111\ The number of estimated visas issued for Fiscal Year 2024 
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 80412]]

[GRAPHIC] [TIFF OMITTED] TR17NO23.022

    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 2024 in a Single Rule
    As in FY 2023, DHS believes that it is appropriate to issue a 
single rule for the entire fiscal year for multiple reasons.\112\ 
First, DHS expects that there is demand for supplemental visas in the 
first half of FY 2024. 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 
2024.\113\ Further, the date on which USCIS received sufficient H-2B 
petitions to reach the first half semiannual statutory caps has 
generally trended earlier in recent years. In fiscal years 2017 through 
2024, 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, September 12, 2022, and October 11, 2023, 
respectively.\114\
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    \112\ 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 2024.
    \113\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
    \114\ 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); USCIS, USCIS Reaches H-2B Cap for First 
Half of FY 2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
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    Second, based on relevant data, DHS expects that USCIS will reach 
the statutory cap for the second half of FY 2024 and that there will 
accordingly be demand for supplemental visas in the second half of FY 
2024. For example, in fiscal years 2017 through 2023, 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, February 25, 
2022, and February 27, 2023.\115\ 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; DOL received 
7,875 applications by January 7, 2022, covering 136,555 worker 
positions; and DOL received 8,693 applications during the initial 
three-day filing window in 2023, covering 142,796 worker 
positions.\116\
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    \115\ 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); USCIS, USCIS Reaches H-2B 
Cap for Second Half of FY 2023 and Announces Filing Dates for the 
Second Half of FY 2023 Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-second-half-of-fy-2023-and-announces-filing-dates-for-the-second-half-of (Mar. 2, 2023).
    \116\ See DOL, Announcements, https://www.dol.gov/agencies/eta/foreign-labor/news.
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    Finally, publishing one rule that addresses all the visas available 
for FY 2024 benefits the regulated public by giving more notice and 
certainty of what will become available for the second

[[Page 80413]]

half. As noted in comments received in response to the FY 2023 TFR, 
this approach allows businesses to better plan ahead for their seasonal 
workforce needs.\117\
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    \117\ See the docket for this rulemaking for access to these 
comments.
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Filing Deadline of September 16, 2024 for All Petitions
    The authority to approve H-2B petitions under this FY 2024 
supplemental cap expires at the end of the fiscal year, i.e., the end 
of September 30, 2024. 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 later 
than September 16, 2024. USCIS will reject any cases that are received 
after September 16, 2024. See new 8 CFR 214.2(h)(6)(xiv)(C). Because 
DHS believes that 15 days from the end of the fiscal year is generally 
the minimum time needed for petitions to be adjudicated, but also to 
account for the fact that September 15, 2024 falls on a Sunday,\118\ 
DHS has set September 16, 2024 as the last day to file in order 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 the time period will be sufficient for 
adjudication of petitions in all cases.
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    \118\ In prior rules, USCIS used September 15th as the cutoff 
date for accepting petitions filed under the supplemental cap. 
However, in FY 2024, September 15th is on a Sunday when USCIS does 
not accept petitions. DHS has revised this date accordingly to avoid 
potential confusion and frustration from petitioners who might have 
otherwise expected their petitions to be received on the 15th but 
would instead face rejection.
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    In addition, the filing deadline will be earlier than September 16, 
2024 if the applicable numerical limit for the relevant supplemental 
visa allocation is reached before that date. See new 8 CFR 
214.2(h)(6)(xiv)(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 2024 (October 1, 
2023 Through March 31, 2024)
    For the first half of FY 2024, DHS will make 20,716 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 2021, 2022, or 2023, 
regardless of country of nationality. These petitions must request a 
date of need starting on or before March 31, 2024. See new 8 CFR 
214.2(h)(6)(xiv)(C).
    DHS anticipates that employers will use all of the first half 
allocation for returning workers, given how quickly USCIS reached the 
FY 2024 first half statutory cap and the first half supplemental 
allocation for FY 2023. As noted previously, USCIS received enough H-2B 
petitions to reach the FY 2024 first half statutory cap on October 11, 
2023.\119\ Under the FY 2023 TFR, which published on December 15, 2022, 
USCIS received enough petitions to reach the 18,216 first half 
allocation by January 31, 2023.\120\ Similarly, 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.\121\ 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, Haiti, Colombia, Ecuador, and Costa Rica, which will be 
available for the entirety of FY 2024.
---------------------------------------------------------------------------

    \119\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2024 (Oct. 13, 2023).
    \120\ USCIS, Cap Reached for Additional Returning Worker H-2B 
Visas for the First Half of FY 2023, https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-the-first-half-of-fy-2023 (Jan. 31, 2023).
    \121\ Compare the publication date of this rule with December 
15, 2022, the date the FY 2023 TFR was first published, and January 
28, 2022, the date the temporary final rule making available 
additional H-2B visas for the first half of FY 2022 was first 
published.
---------------------------------------------------------------------------

    In the event that USCIS approves insufficient petitions to use all 
20,716 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 16, 2024 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 16, 2024 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, 
2024, Through May 14, 2024)
    For the second half of FY 2024, DHS will initially make available 
19,000 visas limited to returning workers, in other words, those 
workers who were issued H-2B visas or held H-2B status in fiscal years 
2021, 2022, or 2023, regardless of country of nationality. These 
petitions must request a date of need starting on or after April 1, 
2024, through and including May 14, 2024. Limiting this allocation to 
employers with employment start dates on or before May 14, 2024 
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.\122\ 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

[[Page 80414]]

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 2024 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 2024 second half supplemental visas. In the 
event that the statutory second half FY 2024 cap is not reached, the 
supplemental allocation for returning workers for the second half of FY 
2024 will not become available.
---------------------------------------------------------------------------

    \122\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(2), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii) 
of this section requesting employment start dates from April 1, 2024 
to May 14, 2024 that are received earlier than 15 days after the INA 
section 214(g) cap for the second half FY 2024 has been met.
---------------------------------------------------------------------------

    Based on historical data showing increasingly high demand for H-2B 
workers with April 1 start dates, DHS expects all 19,000 visas to be 
used quickly once the supplemental allocation becomes available. 
However, in the event that USCIS approves insufficient petitions to use 
all 19,000 visas, the unused numbers will not carry over for petition 
approvals for employment start dates beginning on or after May 15, 
2024. DHS chose to limit these 19,000 visas to start dates on or before 
May 14, 2024, 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 2024 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 2024 petitions and prior 
to September 16, 2024, 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 16, 2024, 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, 2024, Through September 30, 2024)
    For the late second half of FY 2024, DHS will make available an 
additional allocation of 5,000 visas limited to returning workers, in 
other words, those workers who were issued H-2B visas or held H-2B 
status in fiscal years 2021, 2022, or 2023, 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, 2024. 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.\123\ 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.\124\ 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 mitigate the complications from concurrent 
administration of these various caps.
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    \123\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(3), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii) 
of this section requesting employment start dates from May 15, 2024 
to September 30, 2024, that are received earlier than 45 days after 
the INA section 214(g) cap for the second half FY 2024 has been met.
    \124\ While petitioners may continue to submit petitions under 
the early second half supplemental cap through September 16, 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.
---------------------------------------------------------------------------

    This is the second supplemental cap reserved for late season 
employers that need workers to begin work during the late spring and 
summer seasons in the fiscal year.\125\ By regulation, employers may 
only apply for a TLC 75 to 90 days before the start date of need,\126\ 
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. As noted in the FY 2023 TFR, in past years, because of this 
requirement and the strong demand for & 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,\127\ 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.
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    \125\ See 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, 87 FR 76816 (Dec. 15, 2022).
    \126\ See 20 CFR 655.15(b).
    \127\ As noted above, in fiscal years 2017 through 2023, 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, 
February 25, 2022, and February 27, 2023 respectively.
---------------------------------------------------------------------------

    DHS, in consultation with DOL, has again 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. While there was 
significant demand for the late second half allocation in FY 2023, the 
full allocation of 10,000 visas was not reached. As of October 6, 2023, 
DOS has issued 5,071 visas towards the late second half allocation, 
while USCIS approved 7,157 beneficiaries towards the late second half 
allocation.\128\

[[Page 80415]]

Therefore, in order to meet the employer demand in the late second half 
of FY 2024, while still maximizing the overall usage of supplemental 
visas, DHS has determined it is appropriate to limit the late second 
half allocation for FY 2024 to up to 5,000 visas. DHS, in consultation 
with DOL, has determined that authorizing two allocations for the 
second half of FY 2024 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,\129\ 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.
---------------------------------------------------------------------------

    \128\ Department of Homeland Security, U.S. Citizenship and 
Immigration Services, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data queried 10/2023, TRK 13122, H-2B Visa 
Issuance Report September 30, 2023.
    \129\ 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'').
---------------------------------------------------------------------------

    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 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, 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 2024 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 5,000 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 under the 
country-specific allocation. 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, Haiti, 
Colombia, Ecuador, and Costa Rica
    DHS will make available 20,000 additional visas that are reserved 
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica, 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 2024, up to and including September 30, 2024.
    While prior fiscal 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 
certain 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 and FY 
2023 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.\130\ Furthermore, the inclusion of nationals from 
the additional countries of Colombia, Ecuador, and Costa Rica also 
increases the likelihood that the 20,000 visas will be used.
---------------------------------------------------------------------------

    \130\ 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, 
12,318 beneficiaries for the second half of the fiscal year FY 2022, 
and 23,832 beneficiaries under the FY 2023 allocation. See DHS, 
USCIS, Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa 
Issuance Data, queried 10/2023, TRK 13122, H-2B Visa Issuance Report 
September 30, 2023.
---------------------------------------------------------------------------

    Employers requesting workers under the country-specific allocation 
with an employment start date in the first half of FY 2024 may file 
their petitions immediately after the publication of this TFR. 
Employers requesting workers under the country-specific allocation with 
an employment start date in the second half of FY 2024 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.\131\
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    \131\ Pursuant to new 8 CFR 214.2(h)(6)(xiv)(C)(4), USCIS will 
reject petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) of 
this section that have a date of need on or after April 1, 2024 and 
are received earlier than 15 days after the INA section 214(g) cap 
for the second half of FY 2024 is met.
---------------------------------------------------------------------------

    As in FY 2023, the Departments have decided not to further divide 
the 20,000 visas for workers from specific countries 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 2024 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, Haiti, Colombia, Ecuador, and Costa Rica 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 2024 using all 20,000 visas for nationals of the 
specified countries, and consequently, employers with start dates in 
the second half of FY 2024 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 2024 seeking to 
employ nationals under the country-specific allocation 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 under the country-specific allocation by the end 
of FY 2024, 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 2024. 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

[[Page 80416]]

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, Haiti, Colombia, Ecuador, and Costa Rica to meet employer 
needs, consistent with the 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 16, 2024. Specifically, 
the following scenarios may still occur:
     The 20,716 supplemental cap visas limited to returning 
workers that will be immediately available for employers with dates of 
need on or after October 1, 2023, through March 31, 2024, will be 
reached before September 16, 2024;
     The 19,000 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need 
starting on or after April 1, 2024, through May 14, 2024, will be 
reached before September 16, 2024;
     The 5,000 supplemental cap visas limited to returning 
workers that will be available for late season employers with dates of 
need on or after May 15, 2024, through September 30, 2024, will be 
reached before September 16, 2024; or
     The 20,000 supplemental cap visas limited to nationals of 
El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa 
Rica will be reached before September 16, 2024.
    Under this rule, new 8 CFR 214.2(h)(6)(xiv)(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,\132\ 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 
20,716 supplemental cap visas limited to returning workers that will be 
immediately available for employers with dates of need on or after 
October 1, 2023, through March 31, 2024, is reached before September 
16, 2024; the 19,000 supplemental cap visas limited to returning 
workers that will be available for employers with dates of need on or 
after April 1, 2024, through May 14, 2024, is reached before September 
16, 2024; the 5,000 supplemental cap visas limited to returning workers 
that will be available for late season employers with dates of need on 
or after May 15, 2024, through September 30, 2024, is reached before 
September 16, 2024; or the 20,000 visas limited to certain nationals is 
reached before September 16, 2024. 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.
---------------------------------------------------------------------------

    \132\ See 8 CFR 214.2(h)(8)(vii).
---------------------------------------------------------------------------

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 2021, 2022, or 2023. This temporal limitation 
mirrors the prior fiscal year's temporal limitation in the returning 
worker definition \133\ and the temporal limitation Congress imposed in 
previous returning worker statutes.\134\ 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.\135\ 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).\136\ 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

[[Page 80417]]

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.
---------------------------------------------------------------------------

    \133\ See e.g., 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, 87 FR 76816 (Dec. 15, 2022) 
(defining ``returning workers'' as those who were issued H-2B visas 
or held H-2B status in fiscal years 2020, 2021, or 2022).
    \134\ 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.
    \135\ 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.
    \136\ 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 is set to expire on December 31, 2023. 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, 2022); DOS, Extension of Interview Waivers for 
Certain Nonimmigrant Visa Applicants, https://www.state.gov/extension-of-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last updated Dec. 23, 2022).
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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 2024 supplemental cap was issued an H-2B visa or otherwise 
granted H-2B status in FY 2021, 2022, or 2023, unless the H-2B worker 
is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, or Costa Rica and is counted towards the 20,000 cap. This 
attestation will serve as prima facie initial evidence to DHS that each 
worker, unless a national of one of these countries who is counted 
against the 20,000 country-specific 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 2021, 2022, or 2023, unless the H-2B worker 
is a national of one of the specific countries 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 2021, 2022, or 2023.

D. 20,000 Allocation for Nationals of Guatemala, El Salvador, Honduras, 
Haiti, Colombia, Ecuador, or Costa Rica

    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 Guatemala, El Salvador, Honduras, Haiti, 
Colombia, Ecuador, or Costa Rica. 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 these countries, but the workers 
must be specifically requested as returning workers who were issued H-
2B visas or were otherwise granted H-2B status in FY 2021, 2022, or 
2023.
    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 country-specific allocation 
which is exempted from the returning worker requirement is beneficial 
for following reasons. First, this country-specific allocation furthers 
the U.S. foreign policy objective of managing irregular migration with 
partner countries through expanding access to lawful pathways to 
nationals of these countries seeking economic opportunity in the United 
States. Several of these countries have extensively collaborated with 
the United States on migration issues such as through endorsing the 
L.A. Declaration, joining the United States to ramp up efforts to 
address the irregular migration flows through the Darien and hosting 
Safe Mobility Offices (SMOs) to facilitate access to lawful pathways to 
the United States and other countries, including expedited refugee 
processing and other humanitarian pathways. After a series of 
negotiations, on June 1, 2023, the United States and Guatemala issued a 
joint statement to commit to take a series of critical steps to 
humanely reduce irregular migration and expand lawful pathways under 
the L.A. Declaration.\137\ As the first step of a comprehensive program 
to manage irregular migration, both countries have been implementing a 
six-month pilot phase of SMOs since June 12, 2023.\138\ On June 4, 
2023, the United States and Colombia announced the impending 
establishment of SMOs that would identify, register, and categorize the 
reasons for irregular migration and channel those who qualify through 
lawful pathways from Colombia to the United States.\139\ The Safe 
Mobility initiative launched in Colombia on June 28, 2023, with SMOs 
currently operational in three cities. Furthermore, on June 12, 2023, 
the United States and the Government of Costa Rica, in furtherance of 
bilateral partnership and addressing hemispheric challenge of irregular 
migration, launched an exploratory six-month implementation of 
SMOs.\140\ On October 19, 2023, the United States and Ecuador announced 
their partnership in establishing SMOs in Ecuador.\141\ This allocation 
for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, 
Ecuador, and Costa Rica will promote safe, orderly and lawful migration 
to the United States, as well as help provide U.S. employers with 
additional labor from these countries with whom the United States 
Government has engaged in outreach efforts to promote the H-2B 
program.\142\
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    \137\ See The White House, Joint Statement from the United 
States and Guatemala on Migration (June 1, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/01/joint-statement-from-the-united-states-and-guatemala-on-migration/.
    \138\ Id.
    \139\ See United States Department of State, U.S.-Colombia Joint 
Commitment to Address the Hemispheric Challenge of Irregular 
Migration (June 4, 2023), https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/. See The White House, Readout of Principal Deputy 
National Security Advisor Jon Finer's Meeting with Colombian Foreign 
Minister Alvaro Leyva (June 11, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/11/readout-of-principal-deputy-national-security-advisor-jon-finers-meeting-with-colombian-foreign-minister-alvaro-leyva/.
    \140\ See United States Department of State, U.S.-Costa Rica 
Joint Commitment to Address the Hemispheric Challenge of Irregular 
Migration (June 12, 2023), https://www.state.gov/u-s-costa-rica-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/.
    \141\ See United States Department of State, Announcement of 
Safe Mobility Office in Ecuador (Oct. 19, 2023), https://www.state.gov/announcement-of-safe-mobility-office-in-ecuador/.
    \142\ 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.'').
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    Second, in addition to the allocation for returning workers, the 
country-specific allocation will also address the needs of certain H-2B 
employers that

[[Page 80418]]

are suffering irreparable harm or will suffer impending irreparable 
harm.
    Third, the 20,000 set-aside will deliver on 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 for nationals of the Northern Central American countries 
to visa programs, as appropriate and consistent with applicable law. 
E.O. 14010 also 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.\143\
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    \143\ 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).
---------------------------------------------------------------------------

    Fourth, DHS is allocating these visas to specific countries to 
further promote development and economic stability of these countries 
to reduce irregular migration throughout the Western Hemisphere.\144\
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    \144\ 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 
L.A. 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'').
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    As in prior years, DOS will work with the relevant countries to 
facilitate consular interviews, if required,\145\ 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 
towards the country-specific allocation and inclusion of additional 
countries this fiscal year is reasonable given the progressively 
increasing use of H-2B visas in recent years among the Northern Central 
American and Haitian populations, as noted above. 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 such 
nationals seeking a legal pathway for temporary employment in the 
United States. DHS also believes its outreach efforts with the 
governments of these countries, along with efforts in some of these 
countries by USAID to increase access to the H-2B program, support the 
decision to provide this allocation of 20,000 visas. 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, 2022, 
and 2023 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, FY 2022, 
and FY 2023 TFRs. The acceleration of USAID's activities likely helped 
increase uptake of H-2B visas issuance under the FY 2021, FY 2022, and 
FY 2023 TFRs, as H-2B visa issuances to Salvadorans, Guatemalans and 
Hondurans increased significantly over prior years,\146\ 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.\147\ 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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    \145\ As noted previously, some consular sections 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 authority allowing for waiver of interview of certain 
H-2 (temporary agricultural and non-agricultural workers) applicants 
is extended through the end of 2023. 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, 2022); DOS, Extension of Interview Waivers for Certain 
Nonimmigrant Visa Applicants, https://www.state.gov/extension-of-interview-waivers-for-certain-nonimmigrant-visa-applicants/ (last 
updated Dec. 23, 2022).
    \146\ See DOS, Nonimmigrant Visa Issuance Statistics, 
Nonimmigrant Visa Issuances by Visa Class and by Nationality, 
https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited Sept. 26, 
2023); U.S. Dep't of Homeland Security, U.S. Citizenship and Immigr. 
Servs., Office of Performance and Quality, CLAIMS3, VIBE, DOS Visa 
Issuance Data, queried 10/2023, TRK 13122, Issuances for FY 2023 H-
2Bs By Requested Nationality Code.
    \147\ 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 and Haiti from FY 
2015 through FY 2020, an average of approximately 4,400 per year.\148\ 
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.\149\ In FY 2022, DOS issued a combined total of 15,058 H-2B 
visas to nationals of Haiti and the Northern Central American 
countries.\150\ In FY 2023, DOS issued a combined total of 23,816 H-2B 
visas to nationals of Haiti and the Northern Central American 
countries.\151\ This increase is likely due in part to the additional 
H-2B visas made available to nationals of these countries by the FY 
2021, FY 2022, and FY 2023 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

[[Page 80419]]

H-2B programs.\152\ Therefore, as previously stated, DHS has determined 
that the additional increase in FY 2024 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 
the specified countries.
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    \148\ The ``combined total'' includes all H-2B visas and are not 
limited to visas issued under supplemental caps. See DOS, 
Nonimmigrant Visa Issuance Statistics, Nonimmigrant Visa Issuances 
by Visa Class and by Nationality, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html.
    \149\ 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.
    \150\ 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.
    \151\ DHS, USCIS, Office of Performance and Quality, CLAIMS3, 
VIBE, DOS Visa Issuance Data, queried 10/2023, TRK 13122, Issuances 
for FY 2023 H-2Bs By Requested Nationality Code.
    \152\ 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, and the small number of 
individuals from Colombia, Ecuador, and Costa Rica,\153\ 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.
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    \153\ During fiscal years 2021 and 2022, the Department of State 
issued 74 and 247 H-2B visas respectively to Colombian nationals, 35 
and 115 H-2B visas respectively to Ecuadorian nationals, and 204 and 
283 H-2B visas respectively to Costa Rican nationals. See 
Characteristics of H-2B Nonagricultural Temporary Workers Fiscal 
Year 2021 Report to Congress, https://www.uscis.gov/sites/default/files/document/reports/H-2B-FY21-Characteristics-Report.pdf (Mar. 
10, 2022); Characteristics of H-2B Nonagricultural Temporary Workers 
Fiscal Year 2022 Report to Congress, https://www.uscis.gov/sites/default/files/document/data/USCIS_H2B_FY22_Characteristics_Report.pdf (Feb. 14, 2023).
---------------------------------------------------------------------------

    USCIS will stop accepting petitions received under the country-
specific allocation after September 16, 2024. This end date should 
provide H-2B employers ample time, should they choose, to petition for, 
and bring in, workers under the country-specific allocation. 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 2024 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.\154\ 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 petition demonstrates that irreparable harm is occurring or 
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,\155\ and any other necessary documentation. As 
in the rules implementing prior years' 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.\156\
---------------------------------------------------------------------------

    \154\ 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.''
    \155\ 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).
    \156\ The attestation requirement does not apply to workers who 
have already been counted under the H-2B statutory caps for fiscal 
year 2024. Further, the attestation requirement does not apply to 
noncitizens who are exempt from the fiscal year 2024 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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    The irreparable harm standard is the same as in the temporary final 
rule for the second half of FY 2022 and the temporary final rule for FY 
2023. The irreparable harm standard requires 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.\157\ 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. 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.
---------------------------------------------------------------------------

    \157\ See section 303 of Public Law 117-328, as extended by 
Public Law 118-15.
---------------------------------------------------------------------------

    As in the FY 2023 rule, 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

[[Page 80420]]

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 was first introduced in the FY 2023 TFR 
to provide additional clarity informed by the Departments' experiences 
in assessing the irreparable harm standard in previous years.
    As explained in the FY 2023 TFR, 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 
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 continue to 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, sometimes, 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 2021, 2022, and 2023) 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 and/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 2024 supplemental cap that is lacking the requisite 
attestation

[[Page 80421]]

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 and/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, FY 2022, and FY 2023 
Supplemental TFRs, the Departments intend to select a significant 
number of petitions 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 and/or DOL as required by 8 CFR 
214.2(h)(6)(xiv)(B)(2)(v) and (vi) may constitute a violation of the 
terms and conditions of an approved petition and lead to petition 
revocation under 8 CFR 214.2(h)(11)(iii)(A)(3).
    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 El Salvador, Guatemala, Honduras, Haiti, 
Colombia, Ecuador, or Costa Rica 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 specified countries, 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 and/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 specified countries who is 
counted against the 20,000 country-specific allocation (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 20 CFR 655.65. 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 20 CFR 655.65, 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 and/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 and/or DOL will review all evidence

[[Page 80422]]

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 specific countries 
counted towards the 20,000 country-specific allocation, 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.\158\
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    \158\ 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., INA section 214(c)(14)(D), 8 U.S.C. 1184(c)(14)(D); see 
also 29 CFR 503.19.
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    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 
Sept. 26, 2023). 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 Sept. 26, 
2023).\159\
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    \159\ 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 303 
of the FY 2023 Omnibus, as extended by Public Law 118-15, 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, USCIS 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, USCIS 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 2023 Omnibus, as extended by Public Law 118-15, 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.\160\ 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 20 
CFR 655.65, 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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    \160\ 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, 2024, but no later 
than 1 year after that date.\161\ 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, 2024 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.\162\
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    \161\ 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)(31).
    \162\ On September 20, 2023, DHS issued a Modernizing H-2 
Program Requirements, Oversight, and Worker Protections Notice of 
Proposed Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public 
comment period that ends on November 20, 2023. In that NPRM, DHS 
proposed to extend portability to H-2A and H-2B workers on a 
permanent basis. The Department's proposal does not interfere with 
the portability provision of this rule, however, should DHS publish 
a final rule making H-2 portability permanent, any such provision 
will not expire on a specific date, unlike the portability provision 
made effective by this temporary final rule.
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    The portability provision at new 8 CFR 214.2(h)(31) is 
substantively the same as the portability provision offered in the FY 
2023 H-2B supplemental visa temporary final rule, which was codified at 
8 CFR 214.2(h)(29), and will begin upon the expiration of that 
provision. See new 8 CFR 214.2(h)(31). Additionally, the provision is 
similar to temporary flexibilities that DHS has used previously to 
improve employer

[[Page 80423]]

access to noncitizen workers during the COVID-19 pandemic.\163\
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    \163\ 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. 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.\164\
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    \164\ 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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    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.\165\ DHS 
has determined that providing H-2B nonimmigrant workers with the 
flexibility of being able to begin work with a new H-2B petitioner 
immediately and avoid a potential job loss or loss of income while the 
new H-2B petition is pending, provides some certainty to H-2B workers 
who may have found themselves in situations that warrant a change in 
employers.\166\ 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.
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    \165\ 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.''
    \166\ 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. Compliance With Employment-Related Laws

    In recent supplemental cap TFRs issued during the COVID-19 public 
health emergency, the Departments have specifically required 
petitioners to attest that they will comply with all Federal, State, 
and local employment-related laws and regulations, including, where 
applicable, with 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 vaccination site. See, 
e.g., 8 CFR 214.2(h)(29)(iii)(B). In addition, the Departments have 
required petitioners to attest that they would 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. As the public health emergency is no 
longer in effect,\167\ the Departments no longer believe it is 
necessary to include the requirements that are specific to COVID-19.
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    \167\ See HHS, Fact Sheet: End of the COVID-19 Public Health 
Emergency (May 9, 2023), https://www.hhs.gov/about/news/2023/05/09/fact-sheet-end-of-the-covid-19-public-health-emergency.html.
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    In addition, after removing the language related to COVID-19, the 
Departments believe that the remaining attestation from these prior 
rules would overlap with the general requirement found at 20 CFR 
655.20(z) and 29 CFR 503.16(z) that all employers, as a condition of 
their labor certification, comply with employment-related laws 
including health and safety laws. To avoid confusion the Departments 
are also removing this attestation from the TFR. 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 health and safety laws. To the extent that 
Federal, State, or local laws and regulations relating to COVID-19 
remain in effect, the Departments note that an employer remains 
obligated to comply with them. 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.\168\
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    \168\ During the period of employment specified on the TLC, 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 TLC 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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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 Texas 
Service Center \169\ in accordance with applicable regulations and form 
instructions, along

[[Page 80424]]

with an unexpired TLC and the attestation Form ETA-9142-B-CAA-8. 
Petitions filed for supplemental allocations under this rule at any 
location other than the USCIS Texas Service Center will be rejected and 
the filing fees will be returned.\170\ 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).
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    \169\ This is a different filing location from the FY 2023 TFR.
    \170\ On Nov. 1, 2023, USCIS changed the service center filing 
location for all petitioners filing Forms I-129, Petition for a 
Nonimmigrant Worker, to request H-2B workers. Those petitions should 
now be filed at the Texas Service Center. Although USCIS provided a 
60-day grace period for H-2B petitions that are filed at the 
California and Vermont Service Centers during which they could still 
be accepted (through Dec. 31, 2023), this grace period does not 
apply to petitions filed for supplemental allocations under this 
rule.
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    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 under the 
country-specific allocation), 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 under the 
20,000 country-specific visa allocation that are exempt from the 
returning worker provision must file a separate Form I-129 for those 
nationals only. See new 8 CFR 214.2(h)(6)(xiv). In this regard, a 
petition must be filed with a single Form ETA-9142-B-CAA-8 that clearly 
indicates that the petitioner is only requesting nationals from El 
Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica 
who are exempt from the returning worker requirement. Specifically, if 
the petitioner checks the first box of Form ETA-9142-B-CAA-8, then the 
petition accompanying that form must be filed only on behalf of 
nationals of one or more of these and not other countries. In such a 
case, if the Form I-129 petition is requesting beneficiaries from 
countries other than one of these countries, 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 
Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa 
Rica. Requiring the filing of separate petitions to request returning 
workers and to request workers who are nationals of the specified 
countries 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-8, 
Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers 
Under Section 303 of Division O of the Consolidated Appropriations Act, 
2023, Public Law 117-328, as extended by sections 101(6) and 106 of 
Division A of the Continuing Appropriations Act, 2024 and Other 
Extensions Act, Public Law 118-15. See 20 CFR 655.64. Petitioners are 
required to retain a copy of such attestations and all supporting 
evidence for 3 years from the date the associated TLC was approved, 
consistent with 20 CFR 655.56 and 29 CFR 503.17. See 20 CFR 655.65. 
Petitions submitted to DHS pursuant to Public Law 118-15, which 
extended the FY 2023 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).
    All filings under the supplemental allocations in this rule must be 
filed at the USCIS Texas Service Center. USCIS will reject petitions 
filed under the supplemental allocations in this rule at any location 
other than the USCIS Texas 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, 2024, as well 
as H-2B petitions for workers under the country-specific allocation 
with dates of need in the first half of FY 2024. Beginning no earlier 
than 15 days after the second half statutory cap is reached, USCIS will 
begin accepting returning worker H-2B petitions requesting work to 
begin on or after April 1, 2024, through May 14, 2024, as well as H-2B 
petitions for workers under the country-specific allocation with dates 
of need on or after April 1, 2024 through September 30, 2024. Finally, 
beginning no earlier than 45 days after the second half statutory cap 
is reached, USCIS will begin accepting returning worker H-2B petitions 
requesting work to begin on or after May 15 through September 30, 2024.
    USCIS will reject any returning worker petition that is received 
after September 16, 2024, or after the applicable numerical limitation 
has been reached. DHS believes that 15 days 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 country-specific 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 16, 2024. See new 8 CFR 
214.2(h)(6)(xiv)(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 106.4, which allows for 
expedited processing for an additional fee.
    Based on the time-limited authority granted to DHS by Public Law 
118-15, on the same terms as section 303 of the

[[Page 80425]]

FY 2023 Omnibus, DHS is notifying the public that USCIS cannot approve 
petitions seeking H-2B workers under this rule on or after October 1, 
2024. See new 8 CFR 214.2(h)(6)(xiv)(C). Petitions pending with USCIS 
that are not approved before October 1, 2024 will be denied and any 
fees will not be refunded. See new 8 CFR 214.2(h)(6)(xiv)(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 20 CFR 655.64(a) and 655.50(b). Employers with an approved TLC have 
conducted recruitment, as set forth in 20 CFR 655.40 through 655.48, to 
determine whether U.S. workers are qualified and available to perform 
the work for which 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, to ensure the recruitment has not become stale, employers 
that wish to obtain visas for their workers under 8 CFR 
214.2(h)(6)(xiv), 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 nonagricultural jobs 
typically do not search for work months in advance and cannot make 
commitments about their availability for employment far in advance of 
the work start date. See 80 FR 24041, 24061, 24071. Given that the 
temporary labor certification process generally begins 75 to 90 days in 
advance of the employer's start date of work, employer recruitment 
efforts typically occur between 40 and 60 days before that date with an 
obligation to provide employment to any qualified U.S. worker who 
applies until 21 days before the date of need. Therefore, employers 
with TLCs containing a start date of work on October 1, 2023, for 
example, likely conducted their positive recruitment beginning around 
late-July and ending around mid-August 2023, and continued to consider 
U.S. worker applicants and referrals only until September 10, 2023.
    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. The 
Departments continued to use this 30-day requirement in the FY 2023 H-
2B supplemental cap TFR based on the rationale provided in the FY 2022 
second half H-2B supplemental cap TFR. See 87 FR 76816, 76842-76843. 
The Departments have determined that this requirement is necessary to 
provide U.S. workers an opportunity to pursue jobs for which employers 
are seeking supplemental visas.
    An employer that files an I-129 petition under 8 CFR 
214.2(h)(6)(xiv) 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-
8 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 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.

[[Page 80426]]

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 
continue to 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 2024 
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'' 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

[[Page 80427]]

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. In 
order to facilitate efficient access to AJC services, this rule 
requires that employers utilize available electronic methods to contact 
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
    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,\171\ 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.\172\ 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. 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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    \171\ 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 more than 60 national and international labor unions covering a 
substantial number of union employees. AFL-CIO, About Us, https://aflcio.org/about-us (last visited October 11, 2023). 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 October 11, 2023) (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.
    \172\ 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 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

[[Page 80428]]

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 demonstrates 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
    During the period of time the SWA is actively circulating the job 
order described in paragraph (a)(4)(i) of 20 CFR 655.64 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, 2022 until the date the I-129 petition 
required under 8 CFR 214.2(h)(6)(xiv) is submitted. Among the employees 
the employer must contact are those who have been furloughed \173\ 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. The Departments are requiring written communication 
because they 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. Written communication and disclosure will also make it 
easier for employers to establish compliance with this requirement, if 
necessary.
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    \173\ 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.
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Contact With the Bargaining Representative or Posting of the Job Order
    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.
Contact With Current U.S. Workers
    As was required in the FY 2023 H-2B supplemental visa TFR, 
employers must again contact 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. The Departments continue to 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, which 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 directly upon learning of the job 
opportunity from a family, friend, or colleague with experience working 
for the employer.
    Accordingly, during the period of time the SWA is actively 
circulating the job order described in paragraph (a)(4)(i) of 20 CFR 
655.64 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.
    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

[[Page 80429]]

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.
Posting of the Job Opportunity on the Employer's Website If the 
Employer Has a Website
    Finally, as was required in the FY 2023 H-2B supplemental visa TFR, 
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.\174\ As discussed in the prior TFR, 
although there is no parallel requirement for employers without a 
website, the Departments believe that continuing to require 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 continue to 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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    \174\ 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 October 11, 
2023).
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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 CFR part 658, subpart E, and any complaint filed with the SWA 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; or issue a formal, written determination where 
informal

[[Page 80430]]

resolution cannot be reached. In other circumstances, such as 
allegations involving discriminatory hiring practices or violations of 
other employment-related laws, the SWA will 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 45906, 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)(31). 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 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. Under this TFR, in accordance with 20 CFR 655.65, employers must 
retain documentation that demonstrates 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, compliance with 20 CFR 655.45(a) or (b), contact with current 
U.S. workers at the place of employment, and posting of the job 
opportunity on the employer's website, if the employer has a website. 
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)(4)(viii) 
of 20 CFR 655.64. Employers must maintain copies of the recruitment 
report, attestation, and supporting documentation, as described above, 
for a period of 3 years from the date that the TLC was approved, 
consistent with the document retention requirements under 20 CFR 
655.65, 20 CFR 655.56, and 29 CFR 503.17. 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 separate and distinct from 
the employment service complaint system administered by the Employment 
and Training Administration under regulations at 20 CFR part 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 20 CFR 655.65, 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 
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

[[Page 80431]]

with the employer, touring the worksite, conducting confidential 
interviews with employees, reviewing records (including those required 
by 20 CFR 655.65 evidencing compliance with this rule), and, when 
appropriate, imposing sanctions and remedies (including back wages). 
For example, in the past five years (Fiscal Years 2019-2023), WHD 
collected more than $16.7 million in H-2B back wages owed to 10,778 
workers, and assessed more than $12.4 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 655.64(a)(4)) 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.
    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 employment 
service complaint system 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-8, 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)(xiv), 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-8 to be an appendix to the Application for Temporary 
Employment Certification and the attestations contained on the Form 
ETA-9142B-CAA-8 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-8 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-8 
with DOL, consistent with existing authorities. This information 
sharing between DHS and DOL, along with relevant information that may 
be obtained through the separate SWA and WHD complaint systems, are 
expected to support DOL's identification of TLCs used to access the 
supplemental visa allocation for closer examination of TLCs through the 
audit process.
    In accordance with the documentation retention requirements in this 
rule, the petitioner must retain documents and records proving 
compliance with this rule, and must provide the documents and records 
upon request by DHS or DOL. Under this rule, DOL will audit a 
significant number of TLCs used to access the supplemental visa 
allocation to ensure employer compliance with attestations, including 
those regarding the irreparable harm standard and additional employer 
conducted recruitment, required under this rule. In the event of an 
audit, the OFLC CO will send a letter to the employer and, if 
appropriate, a copy of the letter to the

[[Page 80432]]

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 20 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 20 CFR 655.65, 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 in similar 
situations 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.,\175\ 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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    \175\ 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, 2024. 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, 2025.
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    With respect to the supplemental allocations provisions in 8 CFR 
214.2 and 20 CFR part 655, subpart A, as explained above, the 
Departments are acting pursuant to the extension of supplemental cap 
authority in Section 303 of the Consolidated Appropriations Act, 2023 
by sections 101(6) and 106 of the Continuing Appropriations Act, 2024 
and Other Extensions Act (authorized on September 30, 2023) to FY 
2024.\176\ The deadline for exercising the FY 2024 supplemental cap 
authority under the Continuing Appropriations Act, 2023 is November 17, 
2023, the date on which the Continuing Appropriations Act, 2024 
expires.\177\ This timing concern is critical since the Departments are 
bypassing advance notice and comment in order to urgently address 
increased labor demand.\178\ Acting expeditiously is intended to 
prevent economic harm resulting from American businesses suffering 
irreparable harm due to a lack of a sufficient labor force. This harm 
would ensue if the Departments do not exercise the authority provided 
by the extension of supplemental cap authority. USCIS

[[Page 80433]]

received more than enough petitions to meet the H-2B visa statutory cap 
for the first half of FY 2024 on October 11, 2023.\179\ 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 
2024; last year on February 27, 2023, USCIS received sufficient 
petitions to meet the H-2B visa statutory cap for the second half of FY 
2023.\180\ Given the continued high demand of American businesses for 
H-2B workers (as discussed in this preamble), 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, 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 303, Public 
Law 117-328 as extended to FY 2024 by secs. 101(6) and 106, Public Law 
118-15. If the Departments are precluded from exercising this 
authority, substantial economic harm will result for the reasons stated 
above.
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    \176\ See Section 303, Consolidated Appropriations Act, 2023, 
Division O, Public Law 117-328 (Dec. 29, 2022), extended by sections 
101(6) and 106 of the Continuing Appropriations Act, 2024 and Other 
Extensions Act, Division A (``Continuing Appropriations Act, 
2024''), Public Law 118-15 (Sep. 30, 2023).
    \177\ Pursuant to section 101(6) and 106 of the Continuing 
Appropriations Act, 2024, Division A, Public Law 118-15, the 
deadline for exercising the FY 2024 supplemental cap authority under 
this act is Nov. 17, 2023, the date on which the Continuing 
Appropriations Act expires.
    \178\ 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.'')
    \179\ See USCIS, USCIS Reaches H-2B Cap for First Half of FY 
2024, https://www.uscis.gov/newsroom/alerts/uscis-reaches-H-2B-cap-
for-first-half-of-fy-2024 (Oct 13, 2023).
    \180\ See USCIS, USCIS Reaches H-2B Cap for Second Half of FY 
2023 and Announces Filing Dates for the Second Half of FY 2023 
Supplemental Visas, https://www.uscis.gov/newsroom/alerts/uscis-
reaches-H-2B-cap-for-second-half-of-fy-2023-and-announces-filing-
dates-for-the-second-half-of (Mar. 2, 2023).
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    The temporary portability and change of employer provisions in 8 
CFR 214.2 and 274a.12 are also supported by labor market demands. 
Courts have found ``good cause'' under the APA when an agency is moving 
expeditiously to avoid significant economic harm to a program, program 
users, or an industry. Courts have held that an agency may use the good 
cause exception to address ``a serious threat to the financial 
stability of [a government] benefit program,'' Nat'l Fed'n of Fed. 
Emps. v. Devine, 671 F.2d 607, 611 (D.C. Cir. 1982), or to avoid 
``economic harm and disruption'' to a given industry, which would 
likely result in higher consumer prices, Am. Fed'n of Gov't Emps. v. 
Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981).
    Finally, taking public comments on this year's temporary final rule 
before implementation may have limited utility given that the 
Departments took post-promulgation public comments during a 60-day 
comment period on last year's (FY 2023) nearly identical TFR. Those 
comments are discussed in detail above in the preamble of this 
temporary final rule. In addition, DHS is separately pursuing broader 
programmatic improvements in the H-2B and H-2A programs through a 
separate notice and comment rulemaking which includes a proposal to 
make portability permanent for all H-2 workers.\181\
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    \181\ On September 20, 2023, DHS issued a Modernizing H-2 
Program Requirements, Oversight, and Worker Protections Notice of 
Proposed Rulemaking (NPRM), 88 FR 65040, 65066, with a 60-day public 
comment period that ends on November 20, 2023. In that NPRM, DHS 
proposed to extend portability to H-2A and H-2B workers on a 
permanent basis.
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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 Order 12866: Regulatory Planning and Review; Executive 
Order 14094: Modernizing Regulatory Review; and Executive Order 13563: 
Improving Regulation and Regulatory Review

    Under E.O. 12866, OMB's Office of Information and Regulatory 
Affairs (OIRA) determines whether a regulatory action is significant 
and, therefore, subject to the requirements of the E.O. and review by 
OMB. 58 FR 51735. Section 3(f) of E.O. 12866, as amended by E.O. 14094, 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule that: (1) has an annual effect on the economy of 
$200 million or more, or adversely affects in a material way a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities; (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the E.O. 88 FR 
21879.
    The Office of Management and Budget (OMB) has designated this 
temporary final rule a significant regulatory action under section 
3(f)(1) of Executive Order 12866, as amended by Executive Order 14094, 
because its annual effects on the economy exceed $200 million in any 
year of the analysis. Accordingly, OMB has reviewed this rule.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider (and discuss qualitatively) 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
1. Summary
    With this temporary final rule (TFR), DHS is authorizing the 
release of up to an additional 64,716 total H-2B visas to be allocated 
throughout FY 2024. In accordance with the FY 2024 continuing 
resolution extending the authority provided in section 303 of the FY 
2023 Omnibus, DHS is allocating the supplemental visas in the following 
manner:

[[Page 80434]]

[GRAPHIC] [TIFF OMITTED] TR17NO23.023

    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 2024; (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 2021, 2022, or 2023, unless the H-2B worker 
is a national of one of the countries included in the country-specific 
allocation. Additionally, up to 20,000 visas may be granted to workers 
from countries included in the country-specific allocation 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 2024.
    The estimated total costs to petitioners range from $7,530,484 to 
$10,043,625. The estimated total cost to the Federal Government is 
$350,028. Therefore, DHS estimates that the total cost of this rule 
ranges from $7,880,512 to $10,393,653. Total transfers from filing fees 
made by petitioners to the Government are $9,214,500. The benefits of 
this rule are diverse, though some of them are difficult to quantify. 
Some of these benefits include:
     Employers benefit from this rule significantly through 
increased access to H-2B workers;
     Customers and others benefit directly or indirectly from 
increased access;
     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;
     Some American workers may benefit from the additional 
recruitment activities that the rule requires certain petitioners to 
complete, to the extent that these activities could result in some U.S. 
workers being hired.
     The existence of a lawful pathway for up to 20,000 
temporary workers from countries included in the country-specific 
allocation is likely to provide multiple benefits in terms of U.S. 
policy with respect to those countries; 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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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 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.\182\ 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).\183\ 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.\184\ 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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    \182\ 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).
    \183\ 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).
    \184\ A temporary labor certification (TLC) approved by the 
Department of Labor must accompany an H-2B petition. The employment 
start date stated on the petition must match the start date listed 
on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and (D).
---------------------------------------------------------------------------

    On September 30, 2023, the President signed the Continuing 
Appropriations Act, 2024 and Other Extensions Act. Sections 101(6) and 
106 reauthorize Sec. 303 of Div. O of the Consolidated Appropriations 
Act FY 2023, 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 2024. The total supplemental allocation will be divided into 
four separate allocations: one for the first half of FY 2024, two for 
the second half of FY 2024 (a first one for employment from April 1 
through May 14, 2024, and a second one for those with start dates on or 
after May 15, 2024), and a full fiscal year allocation for workers from 
the countries included in the country-specific allocation. As with 
previous supplemental allocations, USCIS will make these supplemental 
visas available only to businesses that qualify and meet the 
requirements for the supplemental visas. 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.

[[Page 80440]]

    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 2024. While the 
Departments cannot predict with certainty what labor market conditions 
will be during the second half of FY 2024, they believe that the 
structure of this TFR is reasonable because: (1) the 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 2024 indicate a continuation of labor market tightness from a 
historical perspective.\185\
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    \185\ September 2023 Federal Open Market Committee (FOMC) 
projections for unemployment rate in 2024 ranged from 3.7 to 4.5% 
with central tendency more tightly clustered between 3.9 and 4.4%. 
See https://www.federalreserve.gov/monetarypolicy/fomcprojtabl20230920.htm (last accessed Sept. 29, 2023).
    \186\ 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. Data for FY 2023 include data through the end of 
quarter 3.
    \187\ Averages are rounded to the nearest whole number.
    [GRAPHIC] [TIFF OMITTED] TR17NO23.029
    
    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, 154,636, 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 years, H-2B employers 
have requested 97,182 employees with start dates on April 1 or later, 
which would completely exhaust the 24,000 \188\ total supplemental H-2B 
visas explicitly set aside for workers with employment start dates in 
the second half of FY 2024. Given these conditions, the Departments 
believe that the decision to authorize a second half supplement is 
reasonable.
---------------------------------------------------------------------------

    \188\ 19,000 visas for returning workers and 5,000 visas for 
filers with employment start dates May 15, 2024 or later.
---------------------------------------------------------------------------

    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 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 2021, 2022, or 2023. 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 20,716 visas for returning workers with 
requested start dates between October 1, 2023, and March 31, 2024. 
These visas will be available to petitioners immediately upon the 
publication of the rule. The second allocation is comprised of 19,000 
visas for returning workers with requested start dates between April 1, 
2024, and May 14, 2024. 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 5,000 visas for returning 
workers with requested start dates between May 15, 2024, and September 
30, 2024. These visas will be available to petitioners 45 calendar days 
after the second half statutory cap of 33,000 visas is reached.
---------------------------------------------------------------------------

    \189\ See https://www.federalregister.gov/documents/2022/12/15/2022-27236/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-fy-2023-for-the-h-2b (accessed September 
26, 2023).
---------------------------------------------------------------------------

    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. As stated in the FY 2023 H-2B TFR, the 
relative demand in FY 2016 for workers with start dates later in the 
fiscal year was higher relative to recent years. More specifically, 
data for FY 2016 show that approximately 45.51 percent of certified 
TLCs requested workers with start dates in April while 17.93 percent of 
certified TLCs requested workers with start dates after April.\189\ 
Table 4 and Table 5 demonstrate that the 5-year average for these 
values skew toward April start dates. The increase in the relative 
prevalence of April 1 start dates since 2016 raises the question 
whether 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

[[Page 80441]]

date of work.\190\ 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 of I-129 petitions, and by extension H-2B beneficiaries, to 
exhaust the respective H-2B visa allocation.\191\ 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 relative to 2016, when 
employers of returning workers had greater flexibility in determining 
TLC-requested start dates, requested H-2B employment start dates have 
become increasingly concentrated in April.\192\
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    \190\ See 20 CFR 655.15(b).
    \191\ 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).
    \192\ 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.
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[GRAPHIC] [TIFF OMITTED] TR17NO23.031


[[Page 80442]]


    This has given rise to the concern that this proliferation of April 
start dates may be crowding out employers with labor needs later in the 
season (shown in Table 5). These data suggest there may be structural 
barriers that preclude employers with later start dates from being able 
to employ 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 late-season needs would use the H-2B program but for the 
unavailability of visas.
    As part of the FY 2023 TFR, USCIS made 10,000 visas available to 
petitioners with start dates later in the season (after May 15). The 
goal for this separate allocation was to address this potentially 
inequitable situation and to take steps towards collecting information 
through that rule to determine whether such a structural barrier 
exists. As of September 2023, approximately 72 percent of the late-
season filer allocation was used.\193\ Preliminary analysis of Form I-
129 filings under the late-season filer allocation suggests some 
variation in the demand by industry appeared for this allocation. 
Specifically, petitioners in the Seafood Product Preparation and 
Packaging industry (NAICS 3117), appeared to respond to the 
availability of the late-season filer allocation. This industry 
historically requested temporary H-2B workers during the first half of 
the fiscal year for both statutory caps and any available supplemental 
allocations, such that well over 50 percent of the total industry 
beneficiaries were for the first half of a given fiscal year.\194\ For 
FY 2023, however, approximately 47 percent of industry beneficiaries 
were requested under first half caps while almost 22 percent were 
requested under the late-season filer allocation.\195\ This data point, 
while limited, provides some evidence that certain industries may be 
able to more efficiently fulfill their temporary labor needs by 
petitioning for beneficiaries under this cap.
---------------------------------------------------------------------------

    \193\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 09/2023, TRK 12921. Calculation: 7,198 
beneficiaries granted visas under the late-season filer allocation/
10,000 visas allocated = 71.98% utilization.
    \194\ For Fiscal Years 2018 through 2022, Petitioners in NAICS 
3117 were approved for 49,332 non cap-exempt beneficiaries. Of that 
total, 31,204 were approved for the 1st half of a fiscal year, 
yielding a rate of 63% (rounded).
    \195\ USCIS Analysis as of 7/29/2023, Office of Performance and 
Quality, SAS PME C3 Consolidated, Data queried 07/2023, TRK 12149.
---------------------------------------------------------------------------

    While DOL TLC data indicates that there was sufficient employer 
demand to exhaust the late-season filer allocation, the Form I-129 
filing data mentioned above indicates that fewer employers took the 
subsequent (and necessary) step of filing for supplemental workers 
under this cap.\196\ Therefore, the Departments' experience with the 
late-season filer allocation under the prior TFR confirms that the 
demand for workers with later start dates exists, though it may not be 
fully reflected in petition filings. To that end, USCIS has elected to 
scale down this allocation, as mentioned in the preamble.
---------------------------------------------------------------------------

    \196\ See DOL H-2B public disclosure data for FY 2023 covering 
applications processed on and after October 1, 2022, through June 
30, 2023, at Performance Data [verbar] U.S. Department of Labor 
(https://www.dol.gov/agencies/eta/foreign-labor/performance).
---------------------------------------------------------------------------

    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 the countries included in the country-specific allocation 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 the countries included in the 
country-specific allocation but these workers must be returning 
workers.
    The Departments note that they are committed to analyzing the 
results and impacts of this and future H-2B supplemental visa TFRs in a 
holistic manner, and have attempted to fully quantify the potential 
impacts of the FY 2024 TFR, where time and data allow.
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 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 rulee 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.
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    \197\ See, e.g., https://www.uscis.gov/newsroom/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-second-half-of-fy-2022.
---------------------------------------------------------------------------

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.\197\

[[Page 80443]]

[GRAPHIC] [TIFF OMITTED] TR17NO23.032

    Table 6 shows the total supplemental H-2B visa allocations issued 
by the Departments in each fiscal year since 2017,\200\ 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 14.85 beneficiaries per petition for supplemental visas 
derived in Table 6, USCIS anticipates that 4,358 Forms I-129 will be 
submitted as a result of this temporary final rule.\201\
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    \198\ 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 (accessed October 6, 2023).
    \199\ 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.
    \200\ FY 2020 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.
    \201\ Calculation for expected petitions. If each I-129 requests 
14.85 workers, we'd expect to see 4,358 petitioners exhausting the 
64,716 supplement allocated this year: 64,716 / 14.85 = 4,358 
(rounded).
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    Using the estimates in Table 6, the Departments further estimate 
that the allocation of 5,000 visas for late season filers made by this 
TFR, addressing the disadvantage these employers face in accessing 
scarce H-2B visas, will result in 337 \202\ additional Form ETA-9142B 
requests to DOL, assuming each late season visa requestor submits a TLC 
and Form I-129 for the historic average of 14.85 beneficiaries. The 
number of additional Form ETA-9142B 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 FY24 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.
---------------------------------------------------------------------------

    \202\ Calculation for expected late season TLCs: 5,000 visas / 
14.85 beneficiaries per petition = 337 TLCs (rounded down).
---------------------------------------------------------------------------

    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 country-specific 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 
Attorney or Accredited Representative, must accompany the Form I-129 
submission.\203\ Using data from FY 2018 to FY 2022, we estimate that a 
lawyer or accredited representative will file 47.21 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 2,057 Forms I-129 and 
Forms G-28, and that human resources (HR) specialists will file 2,301 
Forms I-129.\204\
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    \203\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
    \204\ Calculation: 4,358 estimated additional petitions * 47.21 
percent of petitions filed by a lawyer = 2,057 (rounded) petitions 
filed by a lawyer.
    Calculation: 4,358 estimated additional petitions-2,057 
petitions filed by a lawyer = 2,301 petitions filed by an HR 
specialist.

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[[Page 80444]]

[GRAPHIC] [TIFF OMITTED] TR17NO23.033

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. 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 91.43 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 3,985 Forms I-907 will be 
filed with the Forms I-129 as a result of this rule.\205\ Of these 
3,985 premium processing requests, we estimate that in-house or 
outsourced lawyers will file 1,881 Forms I-907 and HR specialists or an 
equivalent occupation will file 2,104.\206\
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    \205\ Calculation: 4,358 estimated additional petitions * 91.43 
percent premium processing filing rate = 3,985 (rounded) additional 
Form I-907.
    \206\ Calculation: 3,985 additional Form I-907 * 47.21 percent 
of petitioners represented by a lawyer = 1,881 (rounded) additional 
Form I-907 filed by a lawyer.
    Calculation: 3,985 additional Form I-907-1,881 additional Form 
I-907 filed by a lawyer = 2,104 additional Form I-907 filed by an HR 
specialist.
[GRAPHIC] [TIFF OMITTED] TR17NO23.034


[[Page 80445]]


d. Population That Files Form ETA-9142-B-CAA-8, Attestation for 
Employers Seeking To Employ H-2B Nonimmigrant Workers Under Section 303 
of Division O of the Consolidated Appropriations Act, 2023, Public Law 
117-328, as Extended by Sections 101(6) and 106 of Division A of the 
Continuing Appropriations Act, 2024 and Other Extensions Act, Public 
Law 118-15
    Petitioners seeking to take advantage of this FY 2024 H-2B 
supplemental visa cap will need to file a Form ETA-9142-B-CAA-8 
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 4,358 petitions will need to be 
accompanied by Form ETA-9142-B-CAA-8 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-9142B, 
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-9142B. Assuming that the historical average 
of 14.85 beneficiaries per I-129 petition holds, 337 \207\ petitioners 
will need to file Form ETA-9142B as a direct result of the provision 
reserving 5,000 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 159 of these Forms ETA-9142B, and that human 
resources (HR) specialists will file 178 Forms ETA-9142B.\208\
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    \207\ Calculation for expected late season TLCs: 5,000 late 
season visas/14.85 beneficiaries per petition = 337 TLCs (rounded 
up).
    \208\ Calculation: 337 estimated additional requests * 47.21 
percent of petitions filed by a lawyer (see Table 5) = 159 (rounded) 
ETA-9142-B requests filed by a lawyer.
    Calculation: 337 estimated additional requests-159 requests 
filed by a lawyer = 178 requests filed by an HR specialist.
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f. Population That Must Undergo Additional Recruitment Activities
    An employer that files Form ETA-9142B-CAA-8 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 20,716 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 fulfill the additional recruitment requirements would be 
1,395.\209\
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    \209\ Calculation: 20,716 workers in the 1st half returning 
working supplemental allocation/14.85 workers per petitioner = 1,395 
(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.\210\ USCIS uses 
the number of Forms I-129 filed for extension of stay due to change of 
employer relative to the Forms I-129 filed for new employment from FY 
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 2023. 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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    \210\ 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.

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[[Page 80446]]

[GRAPHIC] [TIFF OMITTED] TR17NO23.035

    In FY 2021, the first year an 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 7,206 Forms I-129 filed 
for new employment.\211\ In FY 2022, there were 1,795 Forms I-129 filed 
for extension of stay due to change of employer compared to 9,231 Forms 
I-129 filed for new employment.\212\ In FY 2023, there were 2,113 Forms 
I-129 filed for extension of stay due to change of employer compared to 
9,579 Forms I-129 filed for new employment.\213\ 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 19.3 percent.\214\ This is above the 12.6 percent rate 
expected without a portability provision. 19.3 percent is our estimate 
of the rate expected in periods with a portability provision in the 
supplemental visa allocation. Using the 4,358 as our estimate for the 
number of Forms I-129 filed for H-2B new employment in FY 2024, we 
estimate that 549 Forms I-129 for extension of stay due to change of 
employer would be filed in absence of this provision.\215\ With this 
portability provision, we estimate that 841 Forms I-129 for extension 
of stay due to change of employer would be filed.\216\ This difference 
results in 292 additional Forms I-129 as a result of this 
provision.\217\ As previously estimated, we expect that about 47.21 
percent of Form I-129 petitions will be filed by an in-house or 
outsourced lawyer. Therefore, we expect that a lawyer will file 138 of 
these petitions and an HR specialist or equivalent occupation will file 
the remaining 154.\218\ Previously in this analysis, we estimated that 
about 91.43 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 267 Forms I-907 will be filed.\219\ We 
expect a lawyer to file 126 of those Forms I-907 and an HR specialist 
to file the remaining 141.\220\
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    \211\ USCIS, Office of Performance and Quality, SAS PME C3 
Consolidated, Data queried 09/2023, TRK 12921
    \212\ See Id.
    \213\ See Id.
    \214\ Calculation, Step 1: 1,113 Form I-129 petitions for 
extension of stay due to change of employer FY 2021 + 1,795 Form I-
129 petitions for extension of stay due to change of employer in FY 
2022 + 2,113 Form I-129 petitions for extension of stay due to 
change of employer FY 2023 = 5,021 Form I-129 petitions filed 
extension of stay due to change of employer in portability provision 
years.
    Calculation, Step 2: 7,206 Form I-129 petitions filed for new 
employment in FY 2021 + 9,231 Form I-129 petitions filed for new 
employment in FY 2022 + 9,579 Form I-129 petitions filed for new 
employment in FY 2023 = 26,016 Form I-129 petitions filed for new 
employment in portability provision years.
    Calculation, Step 3: 5,021 extension of stay due to change of 
employment petitions/26,016 new employment petitions = 19.3 percent 
rate of extension of stay due to change of employment to new 
employment (rounded).
    \215\ Calculation: 4,358 Form I-129 H-2B petitions filed for new 
employment * 12.6 percent = 549 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision.
    \216\ Calculation: 4,358 Form I-129 H-2B petitions filed for new 
employment * 19.3 percent = 841 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision.
    \217\ Calculation: 841 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, 
with a portability provision-549 estimated number of Form I-129 H-2B 
petitions filed for extension of stay due to change of employer, no 
portability provision = 292 Form I-129 H-2B petition increase as a 
result of portability provision.
    \218\ Calculation, Lawyers: 292 additional Form I-129 due to 
portability provision * 47.21 percent of Form I-129 for H-2B 
positions filed by an attorney or accredited representative = 138 
(rounded) estimated Form I-129 filed by a lawyer.
    Calculation, HR specialist: 292 additional Form I-129 due to 
portability provision-138 estimated Form I-129 filed by a lawyer = 
154 estimated Form I-129 filed by an HR specialist.
    \219\ Calculation: 292 Form I-129 H-2B petitions * 91.43 percent 
premium processing filing rate = 267 (rounded) Forms I-907.
    \220\ Calculation, Lawyers: 267 Forms I-907 * 47.21 percent 
filed by an attorney or accredited representative = 126 (rounded) 
Forms I-907 filed by a lawyer.
    Calculation, HR specialists: 267 Forms I-907-126 Forms I-907 
filed by a lawyer = 141 Forms I-907 filed by an HR specialist.
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h. Population Affected by the Audits
    Under this time-limited FY 2024 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

[[Page 80447]]

on employers that petition for H-2B workers under this TFR.\221\
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    \221\ These 350 audits are separate and distinct from WHD's 
investigations pursuant to its existing enforcement authority.
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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.\222\ 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 2018-2022. 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 2018-2022, on average 77 
(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 154 petitioners will undergo 
additional scrutiny from USCIS.\223\
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    \222\ Available at https://enforcedata.dol.gov/views/data_catalogs.php (accessed September 22, 2023).
    \223\ 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 154 to be a reasonable estimate of the number of 
petitioners that will undergo additional scrutiny.
[GRAPHIC] [TIFF OMITTED] TR17NO23.036

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 7,739. We use the TLC 
population, rather than the estimated 4,358 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 
47.21 percent of petitioners are submitted by lawyers. Therefore, we 
estimate that 3,654 lawyers and 4,085 HR specialists will incur 
familiarization costs.\224\
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    \224\ Calculation for lawyers: 7,739 estimated applicants * 
47.21 percent represents by a lawyer = 3,654 (rounded) represented 
by a lawyer.
    Calculation for HR specialists: 7,739 approved, pending, and 
projected applicants-3,654 represented by a lawyer = 4,085 
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.\225\ The estimated time to 
complete and file Form I-129 for H-2B classification is 4.34 
hours.\226\ 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 47.21 percent of Form I-129 H-
2B petitions, and an HR specialist or equivalent occupation will file 
the remainder (52.79 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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    \225\ Filing fees are not considered costs to society. These 
fees have been accounted for as a transfer from petitioners to 
USCIS.
    \226\ 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 September 28, 2023).
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    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 $35.13 as the base wage rate.\227\ If petitioners 
hire an in-house or outsourced lawyer to file Form I-129 on their 
behalf, DHS uses the mean hourly wage rate $78.74 as the base wage 
rate.\228\ Using the most recent BLS data, DHS calculated a benefits-
to-wage multiplier of 1.45 to estimate the full wages to include 
benefits such as paid leave, insurance, and retirement.\229\ DHS 
multiplied the average hourly U.S. wage rate for HR specialists and for 
in-house lawyers by the benefits-to-wage

[[Page 80448]]

multiplier of 1.45 to estimate total compensation to employees. The 
total compensation for an HR specialist is $50.94 per hour, and the 
total compensation for an in-house lawyer is $114.17 per hour.\230\ 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.\231\ DHS estimates the total compensation for an 
outsourced lawyer is $196.85 per hour.\232\ If a lawyer submits Form I-
129 on behalf of the petitioner, Form G-28 must accompany the Form I-
129 petition.\233\ DHS estimates the time burden to complete and submit 
Form G-28 for a lawyer is 50 minutes (0.83 hour, rounded).\234\ 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.\235\ Therefore, the total opportunity cost of time per petition 
for an HR specialist to complete and file Form I-129 is approximately 
$221.08, for an in-house lawyer to complete and file Forms I-129 and G-
28 is about $590.26, and for an outsourced lawyer to complete and file 
is approximately $1,017.71.\236\
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    \227\ U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2022 National Occupational Employment and Wage Statistics'' 
Human Resources Specialist (13-1071), Mean Hourly Wage, available at 
https://www.bls.gov/oes/2022/may/oes131071.htm (accessed September 
13, 2023).
    \228\ U.S. Department of Labor, Bureau of Labor Statistics. 
``May 2022 National Occupational Employment and Wage Estimates'' 
Lawyers (23-1011), Mean Hourly Wage, available at https://www.bls.gov/oes/2022/may/oes231011.htm (accessed September 13, 
2023).
    \229\ Calculation: $42.48 mean Total Employee Compensation per 
hour for civilian workers/$29.32 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 2022 
Table 1. Employer Costs for Employee Compensation by ownership, 
Civilian workers, available at https://www.bls.gov/news.release/archives/ecec_03172023.pdf (accessed September 13, 2023).
    \230\ Calculation, HR specialist: $35.13 mean hourly wage * 1.45 
benefits-to-wage multiplier = $50.94 hourly total compensation 
(hourly opportunity cost of time).
    Calculation, In-house Lawyer: $78.74 mean hourly wage * 1.45 
benefits-to-wage multiplier = $114.17 hourly total compensation 
(hourly opportunity cost of time).
    \231\ 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 
Sep. 29, 2023). 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 September 29, 2023).
    \232\ Calculation, Outsourced Lawyer: $78.74 mean hourly wage * 
2.5 benefits-to-wage multiplier = $196.85 hourly total compensation 
(hourly opportunity cost of time).
    \233\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed October 11, 2023).
    \234\ 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).
    \235\ Calculation: 0.83 hour to file Form G-28 + 4.34 hours to 
file Form I-129 = 5.17 hours to file both forms.
    \236\ Calculation, HR specialist files Form I-129: $50.94 hourly 
opportunity cost of time * 4.34 hours = $221.08 opportunity cost of 
time per petition.
    Calculation, In-house Lawyer files Form I-129 and Form G-28: 
$114.17 hourly opportunity cost of time * 5.17 hours = $590.26 
opportunity cost of time per petition.
    Calculation, Outsourced Lawyer files Form I-129 and Form G-28: 
$196.85 hourly opportunity cost of time * 5.17 hours = $1,017.71 
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.\237\ 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 4,358 Forms I-129 due to the rule's supplemental visa 
allocation and an additional 292 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 
$2,836,500.\238\
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    \237\ See Form I-129 instructions at https://www.uscis.gov/sites/default/files/document/forms/i-129instr.pdf (accessed 
September 28, 2023). See also 8 U.S.C. 1184(c)(13).
    \238\ Calculation: (4,358 petitions + 292 petitions) * $610 per 
petition = $2,836,500.
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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 91.43 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 4,252 Forms I-907 filed due to 
the rule.\239\ Transfers from petitioners to the Government related to 
the filing of Forms I-907 as a result of the rule are $6,378,000.\240\ 
Total transfers from petitioners to the Government are $9,214,500.\241\
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    \239\ Calculation (4,358 petitions + 292 petitions) * 91.43 Form 
I-907 rate = 4,252 Forms I-907.
    \240\ Calculation: $1,500 per petition * 4,252 Forms I-907 = 
$6,378,000
    \241\ Calculation: $2,836,500 + $6,378,000 = $9,214,500.
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b. Cost to Petitioners
    As mentioned in Section 3, the estimated population impacted by 
this rule is 4,358 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 countries included in the country-specific allocation, who are 
exempt from the returning worker requirement.
i. Costs to Petitioners To File Form I-129 and Form G-28
    As discussed above, DHS estimates that HR specialists will file an 
additional 2,301 petitions using Form I-129 and lawyers will file an 
additional 2,057 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 $508,705 (rounded).\242\ DHS estimates the total cost to 
file Form I-129 petitions and Form G-28 if filed by lawyers will range 
from $1,214,165 (rounded) if only in-house lawyers file these forms, to 
$2,093,429 (rounded) if only outsourced lawyers file them.\243\ 
Therefore, the estimated total cost to file Form I-129 and Form G-28 
range from $1,722,870 and $2,602,134.\244\
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    \242\ Calculation, HR specialist: $221.08 cost per petition * 
2,301 Form I-129 = $508,705 (rounded) total cost.
    \243\ Calculation, In-house Lawyer: $590.26 cost per petition * 
2,057 Form I-129 and Form G-28 = $1,214,165 (rounded) total cost.
    Calculation, Outsourced Lawyer: $1,017.71 cost per petition * 
2,057 Form I-129 and Form G-28 = $2,093,429 (rounded) total cost.
    \244\ Calculation: $508,705 total cost of Form I-129 filed by HR 
specialists + $1,214,165 total cost of Form I-129 and Form G-28 
filed by in-house lawyers = $1,722,870 estimated total costs to file 
Form I-129 and G-28.
    Calculation: $508,705 total cost of Form I-129 filed by HR 
specialists + $2,093,429 total cost of Form I-129 and G-28 filed by 
outsourced lawyers = $2,602,134 estimated total costs to file Form 
I-129 and G-28.
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ii. 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).245 246 Using the wage rates

[[Page 80449]]

established previously, the opportunity cost of time to file Form I-907 
is approximately $29.55 for an HR specialist, $66.22 for an in-house 
lawyer, and $114.17 for an outsourced lawyer.\247\
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    \245\ The filing fee is a transfer from the petitioner 
requesting premium processing and proxy for the total costs to 
USCIS.
    \246\ See Form I-907 instructions at https://www.uscis.gov/i-907 
(accessed September 22, 2023).
    Calculation: 35 minutes/60 minutes per hour = 0.58 (rounded) 
hour.
    \247\ Calculation, HR specialist Form I-907: $50.94 hourly 
opportunity cost of time * 0.58 hour = $29.55 opportunity cost of 
time per request.
    Calculation, In-house Lawyer Form I-907: $114.17 hourly 
opportunity cost of time * 0.58 hour = $66.22 opportunity cost of 
time per request.
    Calculation, Outsourced Lawyer Form I-907: $196.85 hourly 
opportunity cost of time * 0.58 hour = $114.17 opportunity cost of 
time per request.
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    As discussed above, DHS estimates that HR specialists will file an 
additional 2,104 Form I-907 and lawyers will file an additional 1,881 
Form I-907. DHS estimates the total cost of Form I-907 filed by HR 
specialists is about $62,173 (rounded).\248\ DHS estimates the total 
cost to file Form I-907 filed by lawyers range from about $124,560 
(rounded) for only in-house lawyers, to $214,754 (rounded) for only 
outsourced lawyers.\249\ The estimated total cost to file Form I-907 
range from $186,733 and $276,927.\250\
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    \248\ Calculation, HR specialist: $29.55 opportunity cost of 
time per request * 2,104 Form I-907 = $62,173 (rounded) total cost 
of Form I-907 filed by HR specialists.
    \249\ Calculation, In-house Lawyer Form I-907: $66.22 hourly 
opportunity cost of time * 1,881 applications = $124,560.
    Calculation, Outsourced Lawyer Form I-907: $114.17 hourly 
opportunity cost of time * 1,881 applications = $214,754.
    \250\ Calculation: $62,173 total cost of Form I-907 filed by HR 
specialists + $124,560 total cost of Form I-907 filed by in-house 
lawyers = $186,733 estimated total costs to file Form I-907.
    Calculation: $62,173 total cost of Form I-129 filed by HR 
specialists + $214,754 total cost of Form I-907 filed by outsourced 
lawyers = $276,927 estimated total costs to file Form I-907.
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iii. Cost to Late Season Employers Filing Form ETA-9142B
    In addition to the costs for employers projected to request TLCs 
irrespective of this rule, the population of 337 late season employers 
that would not otherwise request H-2B workers will file Form ETA-9142B 
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-9142B, 
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).\251\ DHS estimates the total cost of Form ETA-
9142B filed by HR specialists is about $19,676 (rounded).\252\ DHS 
estimates the total cost to file Form ETA-9142B by lawyers range from 
about $39,392 (rounded) for only in-house lawyers, to $67,919 (rounded) 
for only outsourced lawyers.\253\ The estimated total cost to file Form 
ETA-9142B range from $59,068 and $87,595.\254\
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    \251\ 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 Sep. 22, 2023).
    \252\ Calculation, HR specialist: $50.94 per hour * 2.17 hours * 
178 Form ETA-9142-B = $19,676 (rounded) total cost of Form ETA-9142-
B filed by HR specialists.
    \253\ Calculation, In-house Lawyer Form ETA-9142-B: $114.17 per 
hour * 2.17 hours * 159 applications = $39,392 (rounded). 
Calculation, Outsourced Lawyer Form ETA-9142-B: $196.85 per hour * 
2.17 hours * 159 applications = $67,919 (rounded).
    \254\ Calculation: $19,676 total cost of Form ETA-9142-B filed 
by HR specialist + $39,392 total cost of Form ETA-9142-B filed by 
In-house Lawyer = $59,068 estimated total costs to file Form ETA-
9142-B.
    Calculation: $19,676 total cost of Form ETA-9142-B filed by HR 
specialist + $67,919 total cost of Form ETA-9142-B filed by 
Outsourced Lawyer = $87,595 estimated total costs to file Form ETA-
9142-B.
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iv. Cost to File Form ETA-9142-B-CAA-8
    Form ETA-9142-B-CAA-8 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 $50.94 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 
$50.94.\255\ 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 $8.66.\256\ The total opportunity 
cost of time for filing Form ETA-9142-B-CAA-8 and emailing the ETA case 
number to both OFLC and the AFL-CIO is $59.60.\257\
---------------------------------------------------------------------------

    \255\ Calculation: $50.94 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 = $50.94.
    \256\ Calculation: $50.94 hourly opportunity cost of time * 0.17 
hours to send OFLC and AFL-CIO the ETA case number = $8.66 
(rounded).
    \257\ Calculation: $50.94 + $8.66 = $59.60.
---------------------------------------------------------------------------

    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 $52.30,\258\ and the estimated hourly total compensation for 
a financial analyst is $75.84.\259\ 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 $379.20.\260\
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    \258\ See U.S. Department of Labor, Bureau of Labor Statistics, 
``May 2022 National Occupational Employment and Wage Statistics'' 
Financial and Investment Analysts (13-2051), https://www.bls.gov/oes/2022/may/oes132051.htm (accessed September 13, 2023).
    \259\ Calculation: $52.30 mean hourly wage for a financial 
analyst * 1.45 benefits-to-wage multiplier = $75.84 (rounded).
    \260\ Calculation: $75.84 estimated total compensation for a 
financial analyst * 5 hours to meet the requirements of the 
irreparable harm standard = $379.20.
---------------------------------------------------------------------------

    As discussed previously, DHS believes that the 4,358 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 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 $259,737 (rounded) 
and for financial analysts is about $1,652,554 (rounded).\261\
---------------------------------------------------------------------------

    \261\ Calculations, HR specialists: $59.60 opportunity cost of 
time to comply with attestation requirements and to send the ETA 
case number to OFLC and AFL-CIO * 4,358 estimated additional 
petitions = $259,737 (rounded) total cost to comply with attestation 
requirements.
    Calculation, Financial Analysts: $379.20 opportunity cost of 
time to comply with attestation requirements * 4,358 estimated 
additional petitions = $1,652,554 (rounded) to comply with 
attestation requirements.
---------------------------------------------------------------------------

    The estimated total cost to file Form ETA-9142-B-CAA-8 and comply 
with the attestation is approximately 1,912,291.\262\
---------------------------------------------------------------------------

    \262\ Calculation: $259,737 total cost for HR specialist to 
comply with attestation requirement and to send the ETA case number 
to OFLC and AFL-CIO + $1,652,554 total cost for financial analysts 
to comply with attestation requirements = $1,912,291 total cost to 
comply with attestation requirements.

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[[Page 80450]]

v. Cost To Conduct Recruitment
    An employer that files Form ETA-9142B-CAA-8 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 the AFL-CIO if 
applicable, (4) contacting former U.S. workers, (5) recruiting U.S. 
workers as provided in Sec.  655.45(a) and (b), (6) contacting current 
employees for referrals, and (7) placing the available job opportunity 
on the employer's website if the employer maintains a website for its 
business and.
    Specifically, the employer must place a new job order for the job 
opportunity with the SWA serving the area of intended employment. 
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.
    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.
    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, 
2022. Employers must disclose the terms of the job order to these 
workers as required by the rule.
    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).
    Employers are also required to contact current employees regarding 
available job opportunities for referrals.
    Finally, employers are required to post the available job 
opportunity on the employer's website if the employer maintains a 
website for its business.
    DOL estimates the average expected time burden for activities 
related to conducting recruitment is 4 hours.\263\ Assuming this work 
will be done by an HR specialist or an equivalent occupation, the 
estimated cost to each petitioner is approximately $203.76.\264\ Using 
1,395 as the estimated number of petitioners required to undergo 
additional recruitment activities, the estimated total cost of this 
provision is approximately $284,245 (rounded).\265\
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    \263\ 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.
    \264\ Calculation: $50.94 hourly opportunity cost of time for an 
HR specialist * 4 hours to conduct additional recruitment = $203.76 
per petitioner cost to conduct additional recruitment.
    \265\ Calculation: 1,395 estimated number of petitioners subject 
to additional recruitment requirements * $203.76 per petitioner cost 
to conduct additional recruitment = $284,245 (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.
vi. 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 292 
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 47.21 percent of these Form I-129 petitions. Therefore, we expect 
that a lawyer will file 138 of these petitions and an HR specialist or 
equivalent occupation will file the remaining 154. As previously 
discussed, the opportunity cost of time to file a Form I-129 H-2B 
petition is $221.08 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 
$590.26 for an in-house lawyer and $1,017.71 for an outsourced lawyer. 
Therefore, we estimate the cost of the additional Forms I-129 from the 
portability provision for HR specialists is $34,046.\266\ The estimated 
cost of the additional Forms I-129 accompanied by Forms G-28 from the 
portability provision for lawyers is $81,456 if filed by in-house 
lawyers and $140,444 if filed by outsourced lawyers.\267\
---------------------------------------------------------------------------

    \266\ Calculation, HR specialist: $221.08 estimated cost to file 
a Form I-129 H-2B petition * 154 petitions = $34,046 (rounded).
    \267\ Calculation, In-house Lawyer: $590.26 estimated cost to 
file a Form I-129 H-2B petition and accompanying Form G-28 * 138 
petitions = $81,456 (rounded).
    Calculation, Outsourced Lawyer: $1,017.71 estimated cost to file 
a Form I-129 H-2B petition and accompanying Form G-28 * 138 
petitions = $140,444 (rounded).
---------------------------------------------------------------------------

    Previously in this analysis, we estimated that about 91.43 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 
267 Forms I-907 will be filed.\268\ We expect a lawyer will file 126 of 
those Forms I-907 and an HR specialist or equivalent occupation will 
file the remaining 141.\269\ As previously discussed, the estimated 
opportunity cost of time to file a Form I-907 is $29.55 for an HR 
specialist; and the estimated opportunity cost of time to file a Form 
I-907 is approximately $66.22 for an in-house lawyer and $114.17 for an 
outsourced lawyer. The estimated total cost of the additional Forms I-
907 if HR specialists file is $4,167.\270\ The estimated total cost of 
the additional Forms I-907 is $8,344 if filed by in-house lawyers and 
$14,385 if filed by outsourced lawyers.\271\
---------------------------------------------------------------------------

    \268\ Calculation: 292 estimated additional Form I-129 H-2B 
petitions * 91.43 percent accompanied by Form I-907 = 267 (rounded) 
additional Form I-907.
    \269\ Calculation, Lawyers: 267 additional Form I-907 * 47.21 
percent = 126 (rounded) Form I-907 filed by a lawyer. Calculation, 
HR specialists: 267 Form I-907-126 Form I-907 filed by a lawyer = 
141 Form I-907 filed by an HR specialist.
    \270\ Calculation, HR specialist: $29.55 to file a Form I-907 * 
141 forms = $4,167 (rounded).
    \271\ Calculation, In-house lawyer: $66.22 to file a Form I-907 
* 126 forms = $8,344 (rounded).
    Calculation for an outsourced lawyer: $114.17 to file a Form I-
907 * 126 forms = $14,385 (rounded).

---------------------------------------------------------------------------

[[Page 80451]]

    The estimated total cost of this provision ranges from $128,013 to 
$193,042 depending on what share of the forms are filed by in-house or 
outsourced lawyers.\272\
---------------------------------------------------------------------------

    \272\ Calculation for HR specialists and in-house lawyers: 
$34,046 for HR specialists to file Form I-129 H-2B petitions + 
$81,456 for in-house lawyers to file Form I-129 and the accompanying 
Form G-28 + $4,167 for HR specialists to file Form I-907 + $8,344 
for in-house lawyers to file Form I-907 = $128,013.
    Calculation for HR specialists and outsourced lawyers: $34,046 
for HR specialists to file Form I-129 H-2B petitions + $140,444 for 
outsourced lawyers to file Form I-129 and the accompanying Form G-28 
+ $4,167 for HR specialists to file Form I-907 + $14,385 for 
outsourced lawyers to file Form I-907 = $193,042.
---------------------------------------------------------------------------

vii. 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.\273\ We 
expect that an HR specialist or equivalent occupation will provide 
these documents. Given an hourly opportunity cost of time of $50.94, 
the estimated cost of complying with audits is $611.28 per audited 
employer.\274\ Therefore, the total estimated cost to employers to 
comply with audits is $213,948.\275\
---------------------------------------------------------------------------

    \273\ The number in hours for audits was provided by the USCIS, 
Service Center Operations.
    \274\ Calculation: $50.94 hourly opportunity cost of time for an 
HR specialist * 12 hours to comply with an audit = $611.28 per 
audited employer.
    \275\ Calculation: 350 audited employers * $611.28 opportunity 
cost of time to comply with an audit = $213,948.
---------------------------------------------------------------------------

viii. Cost of Additional Scrutiny
    The Departments expect that petitioners undergoing additional 
scrutiny will need to submit additional evidence to USCIS. The costs 
associated with additional scrutiny include the opportunity cost of 
time to assess, document, and compile evidence and the costs (both 
explicit costs and opportunity costs of time) of submitting the 
compiled evidence.
    The opportunity costs of time associated with compiling such 
evidence are unavailable due to the unique fact pattern in each 
instance and a lack of data at this time regarding the time to comply. 
To estimate the explicit costs of additional scrutiny, we assume 154 
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 $17.10.\276\ We estimate the costs of 
printing at $0.15 per page and the cost of printing 500 at $75.00.\277\ 
The estimated cost for an employer to print and ship evidence to USCIS 
is $92.10.\278\ With an estimated 154 petitioners expected to print and 
ship evidence, the total estimated costs for printing and shipping 
evidence is $14,183.\279\
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    \276\ USPS, Priority Mail, https://www.usps.com/ship/priority-mail.htm (accessed September 23, 2023).
    \277\ See https://www.montgomerycountymd.gov/Library/services/computerhelp.html (accessed September 20, 2023). Cost to make black 
and white copies. Calculation: 500 pages * $0.15 per page = $75.00 
in printing costs.
    \278\ Calculation: $75.00 in printing costs + $17.10 in shipping 
costs = $92.10 to print and ship evidence.
    \279\ Calculation: 154 petitioners * $92.10 to print and ship 
evidence = $14,183 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 $50.94 hourly opportunity cost of time for HR specialist, we 
estimate the opportunity cost of time for each petitioner is 
$50.94.\280\ With an estimated 154 petitioners expected to print and 
ship evidence, the total estimated opportunity cost of time to print 
and ship evidence is $7,845.\281\
---------------------------------------------------------------------------

    \280\ Calculation: $50.94 hourly opportunity cost of time for HR 
specialist * 1 hour to print and ship evidence = $50.94 opportunity 
cost of time per petitioner.
    \281\ Calculation: 154 petitioners * $50.94 opportunity cost of 
time per petitioner = $7,845 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 $22,028.\282\
---------------------------------------------------------------------------

    \282\ Calculation: $14,183 total printing and shipping costs + 
$7,845 total opportunity cost of time = $22,028 total estimated cost 
of additional scrutiny.
---------------------------------------------------------------------------

ix. 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 7,739 
petitioners may take advantage of the provisions of this rule, and that 
a lawyer will represent 3,654 of these petitioners and an HR specialist 
or equivalent occupation will represent 4,085.
    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.\283\ This rule has approximately 69,000 
words.\284\ Using a reading speed of 238 words per minute, DHS 
estimates it will take approximately 4.8 hours to read and understand 
this rule.\285\
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    \283\ 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 September 22, 2023). 
We use the average speed for silent reading of English nonfiction by 
adults.
    \284\ Please note that this number represents that Departments' 
best estimate of the final word count, given that the actual word 
may change during the promulgation of the Rule.
    \285\ Calculation, Step 1: roughly 69,000 words/238 words per 
minute = 290 (rounded) minutes.
    Calculation, Step 2: 290 minutes/60 minutes per hour = 4.8 
(rounded) hours.
---------------------------------------------------------------------------

    The estimated hourly total compensation for a HR specialist, in-
house lawyer, and outsourced lawyer are $50.94, $114.17, and $196.85, 
respectively. The estimated opportunity cost of time for each of these 
filers to read and understand the rule are $244.51, $548.02, and 
$944.88, respectively.\286\ The estimated total opportunity cost of 
time for 4,085 HR specialists to familiarize themselves with this rule 
is approximately $998,823.\287\ The estimated total opportunity cost of 
time for 3,654 lawyers to familiarize themselves with this rule is 
approximately $2,002,465 if they are all in-house lawyers and 
$3,452,592 if they are all outsourced lawyers.\288\ Accordingly, the 
estimated total opportunity costs of time for petitioners' 
representatives to familiarize themselves with this rule

[[Page 80452]]

ranges from $3,001,288 to $4,451,415.\289\
---------------------------------------------------------------------------

    \286\ Calculation, HR Specialists: $50.94 estimated hourly total 
compensation for an HR specialist * 4.8 hours to read and become 
familiar with the rule = $244.51 opportunity cost of time for an HR 
specialist to read and understand the rule.
    Calculation, In-house lawyer: 114.17 estimated hourly total 
compensation for an in-house lawyer * 4.8 hours to read and become 
familiar with the rule = 548.02 (rounded) opportunity cost of time 
for an in-house lawyer to read and understand the rule.
    Calculation, Outsourced lawyer: $196.85 estimated hourly total 
compensation for an outsourced lawyer * 4.8 hours to read and become 
familiar with the rule = $944.88 (rounded) opportunity cost of time 
for an outsourced lawyer to read and understand the rule.
    \287\ Calculation, HR specialists: $244.51 opportunity cost of 
time * 4,085 = $998,823 (rounded).
    \288\ Calculation for in-house lawyers: $548.02 opportunity cost 
of * 3,654 = $2,002,465 (rounded).
    Calculation for outsourced lawyers: 944.88 opportunity cost of 
time * 3,654 = $3,452,592 (rounded).
    \289\ Calculation: $998,823 + $2,002,465 = $3,001,288.
    Calculation: $998,823 + $3,452,592 = $4,451,415.
---------------------------------------------------------------------------

x. 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-8, 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 $1,722,870 to 
$2,602,134, depending on the filer. The estimated total cost of filing 
Form I-907 ranges from $186,733 to $276,927, depending on the filer. 
The estimated cost for late season employers to file Form ETA-9142B 
ranges from $59,068 to $87,595 depending on the filer. The estimated 
total cost of filing and complying with Form ETA-9142-B-CAA-8 is 
$1,912,291. The estimated total cost of conducting additional 
recruitment is $284,245. The estimated cost of the portability 
provision ranges from $128,013 to $193,042, depending on the filer. The 
estimated total cost for employers to comply with audits is $213,948. 
The estimated total costs for petitioners or their representatives to 
familiarize themselves with this rule ranges from $3,001,288 to 
$4,451,415, depending on the filer. The estimated total cost of 
additional scrutiny is $22,028. The total estimated cost to petitioners 
ranges from $7,530,484 to $10,043,625, depending on the filer.\290\
---------------------------------------------------------------------------

    \290\ Calculation of lower range: $1,722,870 + $186,733 + 
$59,068 + $1,912,291 + $284,245 + $128,013 + $213,948 + $3,001,288 + 
$22,028 = $7,530,484.
    Calculation of upper range: $2,602,134 + $276,927 + $87,595 + 
$1,912,291 + $284,245 + $$193,042 + $213,948 + $4,451,415 + $22,028 
= $10,043,625.
---------------------------------------------------------------------------

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 $2,836,500,\291\ and the total filing fees associated 
with premium processing are $6,378,000.\292\ Total transfers from 
petitioners to the Government are $9,214,500.\293\
---------------------------------------------------------------------------

    \291\ Calculation: (4,358 + 292 Form I-129 petitions) * $610 per 
petition = $2,836,500.
    \292\ Calculation: (3,985 + 267 Forms I-907) * $1,500 per form = 
$6,378,000.
    \293\ Calculation: $2,836,500 + $6,378,000 = $9,214,500.
---------------------------------------------------------------------------

    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.\294\ 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.
---------------------------------------------------------------------------

    \294\ 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.\295\ 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.\296\ 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 $60.83.\297\ To estimate the total hourly compensation for 
these positions, we multiply the hourly wage ($60.83) by the Federal 
benefits to wage multiplier of 1.37.\298\ This results in an hourly 
opportunity cost of time of $83.34 for GS-13 Step 5 Federal employees 
in the Washington, DC locality pay area.\299\ The total opportunity 
costs of time for Federal workers to conduct audits is estimated to be 
$350,028.\300\
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    \295\ These audits are distinct from the WHD's authority to 
perform investigations regarding employers' compliance with the 
requirements of the H-2B program.
    \296\ Calculation: 12 hours to conduct an audit * 350 audits = 
4,200 total hours to conduct audits.
    \297\ See U.S. Office of Personnel Management, Pay and Leave, 
Salaries and Wages, For the Locality Pay area of Washington-
Baltimore-Arlington, DC-MD-VA-WV-PA, 2023, Hourly Basic Rate, 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf (last accessed September 14, 2023).
    \298\ Calculation, Step 1: $2,342,954 Full-time Permanent 
Salaries + $860,318 Civilian Personnel Benefits = $3,203,272 
Compensation.
    Calculation, Step 2: $3,203,272 Compensation/$2,342,954 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 
September 13, 2023).
    \299\ Calculation: $60.83 hourly wage for a GS 13-5 in the 
Washington, DC locality area * 1.37 Federal employee benefits to 
wage ratio = $83.34 hourly opportunity cost of time for a GS 13-5 
federal employee in the Washington, DC locality area.
    \300\ Calculation: 4,200 hours to conduct audits * $83.34 hourly 
opportunity cost of time = $350,028 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 benefit, 
because it will allow some businesses to hire the additional labor 
resources necessary to avoid such harm. Preventing such harm may also 
result in cost savings by ultimately preserve the jobs of other 
employees (including U.S. workers) at that establishment.

[[Page 80453]]

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.
    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 and may result in some U.S. workers being hired. 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.\301\ 
This rule is exempt from the written statement requirement because DHS 
did not publish a notice of proposed rulemaking for this rule.
---------------------------------------------------------------------------

    \301\ 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 ($192 million in 
2022 dollars based on the Consumer Price Index for All Urban Consumers 
(CPI-U)),\302\ and this rulemaking does not contain such a Federal 
mandate as the term is defined under UMRA.\303\ The requirements of 
Title II of the Act, therefore, do not apply, and the Departments have 
not prepared a statement under the Act.
---------------------------------------------------------------------------

    \302\ 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-202308.pdf (last visited 
September 27, 2023). Calculation of inflation: (1) Calculate the 
average monthly CPI-U for the reference year (1995) and the current 
year (2022); (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 2022-Average monthly CPI-U for 1995)/
(Average monthly CPI-U for 1995)] * 100 = [(292.655-152.4)/152.4] * 
100 = (140.255/152.4) * 100 = 0.9203 (rounded) * 100 = 92.03 percent 
= 92 percent (rounded). Calculation of inflation-adjusted value: 
$100 million in 1995 dollars * 1.92 = $192 million in 2022 dollars.
    \303\ 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 their 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

[[Page 80454]]

and the Council on Environmental Quality (CEQ) regulations for 
implementing NEPA, 40 CFR parts 1500 through 1508.
    NEPA and the CEQ regulations allow Federal agencies to establish 
categories of actions (``categorical exclusions'') that normally do not 
significantly affect the quality of the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 42 U.S.C. 4336e(1), 42 U.S.C. 
4336(a)(2); 40 CFR 1501.4, 40 CFR 1508.1(d). 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 2024, based on the Secretary of Homeland 
Security's determination, in consultation with the Secretary of Labor, 
consistent with the FY 2023 Omnibus and Public Law 118-15. 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 considered in accordance with its NEPA implementing 
procedures and 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 2021, 2022, or 2023). 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, 2024 for the cap increase, and at the end of 
January 24, 2025 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 reasonably foreseeable effects 
that would necessitate an environmental assessment or environmental 
impact statement with respect to the current H-2B limit or in the 
context of a current U.S. population exceeding 333,287,557 (maximum 
temporary increase of 0.0194 percent).\304\ DHS has also considered and 
determined that this action would not have extraordinary circumstances 
that would require the preparation of an environmental assessment or 
environmental impact statement.
---------------------------------------------------------------------------

    \304\ See U.S. Census Bureau Quick Facts, available at https://www.census.gov/quickfacts/US (accessed September 28, 2023).
    Calculation: 64,716 additional visas/333,287,557 million people 
in the United States = 0.0194 (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 303 of Division O of the Consolidated Appropriations Act, 
2023, Public Law 117-328, as Extended by Sections 101(6) and 106 of 
Division A of the Continuing Appropriations Act, 2024 and Other 
Extensions Act, Public Law 118-15, Form ETA-9142-B-CAA-8
    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., provides 
that a Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by OMB under the PRA 
and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6. DOL has submitted the Information Collection 
Request (ICR) contained in this rule to OMB and obtained approval of a 
new form, Form ETA-9142B-CAA-8, 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-8 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 countries included in the country-specific allocation 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 January 16, 2024. 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

[[Page 80455]]

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 303 of Division O of 
the FY 2023 Omnibus as extended by Public Law 118-15, 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 . . . 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 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 2024 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 2021, 
2022, or 2023, unless the worker is one of the 20,000 nationals of one 
of the countries included in the country-specific allocation 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 303 of Division O of 
the Consolidated Appropriations Act, 2023, Public Law 117-328, as 
extended by sections 101(6) and 106 of Division A of the Continuing 
Appropriations Act, 2024 and Other Extensions Act, Public Law 118-15.
    Agency Form Number: Form ETA-9142-B-CAA-8.
    Affected Public: Private Sector--businesses or other for-profits.
    Total Estimated Number of Respondents: 4,358.
    Average Responses per Year per Respondent: 1.
    Total Estimated Number of Responses: 4,358.
    Average Time per Response: 10.17 hours per application.
    Total Estimated Annual Time Burden: 32,469 hours.
    Total Estimated Other Costs Burden: $2,195,689.
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 303 of Division O of the Consolidated Appropriations Act, 2023, 
Public Law 117-328 as extended by Public Law 118-15 (which expires on 
November 17, 2023). However, USCIS estimates that this temporary rule 
may result in approximately 4,325 additional filings of Form I-907 in 
fiscal year 2024. 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.

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.


[[Page 80456]]


    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. 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 November 17, 2023, through November 17, 2026, amend Sec.  
214.2 by adding entries for ``(30)'' and ``(31)'' to table 3 to 
paragraph (h) and adding paragraph (h)(6)(xiv), a reserved paragraph 
(h)(30), and paragraph (h)(31) to read as follows:


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

* * * * *
    (h) * * *

              Table 3 to Paragraph (h)--Paragraph Contents
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
 
                              * * * * * * *
(30) [Reserved]
(31) Change of employers and portability for H-2B workers (January 25,
 2024 through January 24, 2025).
------------------------------------------------------------------------

* * * * *
    (6) * * *
    (xiv) Special requirements for additional cap allocations under 
Public Laws 117-328 and 118-15--(A) Public Law 117-328 and section 
101(6) of Division A of Public Law 118-15, Continuing Appropriations 
Act, 2024 and Other Extensions Act--(1) Supplemental allocation for 
returning workers. Notwithstanding the numerical limitations set forth 
in paragraph (h)(8)(i)(C) of this section, for fiscal year 2024 only, 
the Secretary has authorized up to an additional 64,716 visas for 
aliens who may receive H-2B nonimmigrant visas pursuant to section 303 
of Division O of Public Law 117-328, the Consolidated Appropriations 
Act, 2023, and section 101(6) of Division A of Public Law 118-15, 
Continuing Appropriations Act, 2024 and Other Extensions Act. An alien 
may be eligible to receive an H-2B nonimmigrant visa under this 
paragraph (h)(6)(xiv)(A)(1) if she or he is a returning worker. The 
term ``returning worker'' under this paragraph (h)(6)(xiv)(A)(1) means 
a person who was issued an H-2B visa or was otherwise granted H-2B 
status in fiscal year 2021, 2022, or 2023. Notwithstanding Sec.  248.2 
of this chapter, an alien may not change status to H-2B nonimmigrant 
under this paragraph (h)(6)(xiv)(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 20,716 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2024 employment 
start dates on or before March 31, 2024.
    (ii) Up to an additional 19,000 visas for aliens who may receive H-
2B nonimmigrant visas based on petitions requesting FY 2024 employment 
start dates from April 1, 2024 to May 14, 2024.
    (iii) Up to an additional 5,000 visas available for aliens with 
employment start dates from May 15, 2024 to September 30, 2024.
    (2) Supplemental allocation for nationals of Guatemala, El 
Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. 
Notwithstanding the numerical limitations set forth in paragraph 
(h)(8)(i)(C) of this section, for fiscal year 2024 only, and in 
addition to the allocation described in paragraph (h)(6)(xiv)(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, 
Haiti, Colombia, Ecuador, or Costa Rica, who may receive H-2B 
nonimmigrant visas pursuant section 303 of Division O of the 
Consolidated Appropriations Act, 2023, Public Law 117-328, and section 
101(6) of Division A of Public Law 118-15 Continuing Appropriations 
Act, 2024 and Other Extensions Act, based on petitions with FY 2024 
employment start dates. Such workers are not subject to the returning 
worker requirement in paragraph (h)(6)(xiv)(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)(xiv)(A)(1) and must declare that they are requesting these 
workers in the attestation Form ETA-9142-B-CAA-8 required under 20 CFR 
655.65(a)(1). A petition requesting returning workers under paragraph 
(h)(6)(xiv)(A)(1), which is accompanied by an attestation indicating 
that the petitioner is requesting nationals of Guatemala, El Salvador, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica, will be rejected, 
denied or, in the case of a non-frivolous petition, approved solely for 
the number of beneficiaries that are from the Guatemala, El Salvador, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica. Notwithstanding 
Sec.  248.2 of this chapter, an alien may not change status to H-2B 
nonimmigrant under this paragraph (h)(6)(xiv)(A)(2).
    (B) Eligibility. In order to file a petition with USCIS under this 
paragraph (h)(6)(xiv), the petitioner must:
    (1) Comply with all other statutory and regulatory requirements for 
H-2B classification, including, but not limited to, requirements in 
this section, under part 103 of this chapter, and under 20 CFR part 655 
and 29 CFR part 503; and
    (2) Submit to USCIS, at the time the employer files its petition, a 
U.S. Department of Labor attestation, in compliance with this section 
and 20 CFR 655.64, evidencing that:
    (i) Its business is suffering irreparable harm or will suffer 
impending irreparable harm (that is, permanent and severe financial 
loss) without the ability to employ all of the H-2B workers requested 
on the petition filed pursuant to this paragraph (h)(6)(xiv);
    (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 2021, 2022, or 2023, unless the H-2B worker is a national 
of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa 
Rica who is counted towards the 20,000 cap described in paragraph 
(h)(6)(xiv)(A)(2) of this section;

[[Page 80457]]

    (iii) The employer will comply with obligations and additional 
recruitment requirements outlined in 20 CFR 655.64(a)(3) through (5);
    (iv) The employer will provide documentary evidence of the facts in 
paragraphs (h)(6)(xiv)(B)(2)(i) through (iii) of this section to DHS 
and/or DOL upon request; and
    (v) 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 2024 supplemental allocations outlined in paragraph 
(h)(6)(xiv)(B) of this section, as a condition for the approval of the 
petition.
    (vi) 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 2024 supplemental 
allocations outlined in 20 CFR 655.64(a) and 655.65(a), as a condition 
for the approval of the H-2B petition. The employer must attest to this 
on Form ETA-9142-B-CAA-8 and must further attest on Form ETA-9142-B-
CAA-8 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)(xiv)(A)(1)(a) requesting FY 2024 employment start dates on or 
before March 31, 2024. USCIS will reject petitions filed pursuant to 
paragraph (h)(6)(xiv)(A)(1)(a) of this section requesting employment 
start dates on or before March 31, 2024 that are received after the 
applicable numerical limitation has been reached or after September 16, 
2024.
    (2) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(ii) of 
this section requesting FY 2024 employment start dates from April 1, 
2024 to May 14, 2024. USCIS will reject petitions filed pursuant to 
paragraph (h)(6)(xiv)(A)(1)(ii) of this section requesting employment 
start dates from April 1, 2024 to May 14, 2024 that are received 
earlier than 15 days after the INA section 214(g) cap for the second 
half FY 2024 has been met, or after the applicable numerical limitation 
has been reached or after September 16, 2024.
    (3) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(1)(iii) of 
this section requesting FY 2024 employment start dates from May 15, 
2024 and September 30, 2024. USCIS will reject petitions filed pursuant 
to paragraph (h)(6)(xiv)(A)(1)(iii) of this section requesting 
employment start dates from May 15, 2024 to September 30, 2024 that are 
received earlier than 45 days after the INA section 214(g) cap for the 
second half FY 2024 has been met, or after the applicable numerical 
limitation has been reached or after September 16, 2024.
    (4) Petitions filed pursuant to paragraph (h)(6)(xiv)(A)(2) 
requesting nationals of Guatemala, El Salvador, Honduras, Haiti, 
Colombia, Ecuador, or Costa Rica with FY 2024 employment start dates. 
USCIS will reject petitions filed pursuant to paragraph 
(h)(6)(xiv)(A)(2) of this section that have a date of need on or after 
April 1, 2024 and are received earlier than 15 days after the INA 
section 214(g) cap for the second half of FY 2024 is met, or after the 
applicable numerical limitation has been reached or after September 16, 
2024.
    (5) USCIS will not approve a petition filed pursuant to this 
paragraph (h)(6)(xiv) on or after October 1, 2024.
    (D) Numerical limitations under paragraphs (h)(6)(xiv)(A)(1) and 
(2) of this section. When calculating the numerical limitations under 
paragraphs (h)(6)(xiv)(A)(1) and (2) of this section as authorized 
under Public Law 117-328, as extended by Public Law 118-15, USCIS will 
make numbers for each allocation available to petitions in the order in 
which the petitions subject to the respective limitation are received. 
USCIS will make projections of the number of petitions necessary to 
achieve the numerical limit of approvals, taking into account 
historical data related to approvals, denials, revocations, and other 
relevant factors. USCIS will monitor the number of petitions received 
(including the number of workers requested when necessary) and will 
notify the public of the dates that USCIS has received the necessary 
number of petitions (the ``final receipt dates'') under paragraph 
(h)(6)(xiv)(A)(1) or (2). The day the public is notified will not 
control the final receipt dates. When necessary to ensure the fair and 
orderly allocation of numbers subject to the numerical limitations in 
paragraphs (h)(6)(xiv)(A)(1) and (2), 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)(xiv)(A)(1) or (2) will be 
rejected. If the final receipt date is any of the first 5 business days 
on which petitions subject to the applicable numerical limits described 
in paragraph (h)(6)(xiv)(A)(1) or (2) may be received (in other words, 
if either of the numerical limits described in paragraph 
(h)(6)(xiv)(A)(1) or (2) is reached on any one of the first 5 business 
days that filings can be made), USCIS will randomly apply all of the 
numbers among the petitions received on any of those 5 business days.
    (E) Sunset. This paragraph (h)(6)(xiv) expires on October 1, 2024.
    (F) Non-severability. The requirement to file an attestation under 
paragraph (h)(6)(xiv)(B)(2) of this section is intended to be non-
severable from the remainder of this paragraph (h)(6)(xiv), including, 
but not limited to, the numerical allocation provisions at paragraphs 
(h)(6)(xiv)(A)(1) and (2) of this section in their entirety. In the 
event that any part of this paragraph (h)(6)(xiv) is enjoined or held 
to be invalid by any court of competent jurisdiction, the remainder of 
this paragraph (h)(6)(xiv) 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)(xiv), as 
consistent with law.
* * * * *
    (30) [Reserved]
    (31) Change of employers and portability for H-2B workers. (i) This 
paragraph (h)(31) relates to H-2B workers seeking to change employers 
during the time period specified in paragraph (h)(31)(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, 2024,

[[Page 80458]]

is authorized to begin employment with the new petitioner after the 
petition described in this paragraph (h)(31) 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, 
2024, that remains pending on January 25, 2024, 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)(31)(i)(A) of this section, and subject to the requirements of 8 CFR 
274a.12(b)(34), the new period of employment described in paragraph 
(h)(31)(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)(31)(i)(B) of this section, the new period of employment described 
in paragraph (h)(31)(i) of this section may last for up to 60 days 
beginning on the later of either January 25, 2024, 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)(34) 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)(31) 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)(31):
    (A) The alien must either:
    (1) Have been in valid H-2B nonimmigrant status on or after January 
25, 2024 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, 2024, but no later than January 24, 2025; or
    (2) 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, 
2024; and
    (B) 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)(31) begins at 12 a.m. on January 25, 2024, and ends at 
the end of January 24, 2025.
* * * * *

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 November 17, 2023, through November 17, 2026, amend Sec.  
274a.12 by adding paragraph (b)(34) to read as follows:


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

* * * * *
    (b) * * *
    (34)(i) Pursuant to 8 CFR 214.2(h)(31) 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, 2024, by a new employer that has filed an H-2B 
petition naming the alien as a beneficiary and requesting an extension 
of stay for the alien, for a period not to exceed 60 days beginning on:
    (A) The later of the ``Received Date'' on Form I-797 (Notice of 
Action) acknowledging receipt of the petition, or the start date of 
employment indicated on the new H-2B petition, for petitions filed on 
or after January 25, 2024; or
    (B) The later of January 25, 2024, or the start date of employment 
indicated on the new H-2B petition, for petitions that are pending as 
of January 25, 2024.
    (ii) If USCIS adjudicates the new petition prior to the expiration 
of the 60-day period in paragraph (b)(34)(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)(34) 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)(31) and paragraph (b)(34)(i) of this section begins at 12 
a.m. on January 25, 2024, and ends at the end of January 24, 2025.
* * * * *

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),

[[Page 80459]]

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 November 17, 2023, through September 30, 2024, add Sec.  
655.64 to read as follows:


Sec.  655.64  Special application filing and eligibility provisions for 
Fiscal Year 2024 under the November 17, 2023 supplemental cap increase.

    (a) An employer filing a petition with USCIS under 8 CFR 
214.2(h)(6)(xiv) to request H-2B workers with FY 2024 employment start 
dates on or before September 30, 2024, must meet the following 
requirements:
    (1) The employer must attest on the Form ETA-9142-B-CAA-8 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)(xiv). 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 and/or DOL upon 
request.
    (2) The employer must attest on Form ETA-9142-B-CAA-8 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)(xiv), have been issued an H-2B visa or otherwise granted H-
2B status during one of the last three (3) fiscal years (fiscal year 
2021, 2022, or 2023), unless the H-2B worker is a national of 
Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa 
Rica and is counted towards the 20,000 cap described in 8 CFR 
214.2(h)(6)(xiv)(A)(2).
    (3) The employer must attest on Form ETA-9142-B-CAA-8 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) An employer that submits Form ETA-9142B-CAA-8 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)(4)(i) of this section for 
intrastate clearance, the employer must contact, by email or other 
available electronic means, the nearest comprehensive American Job 
Center (AJC) serving the area of intended employment where work will 
commence, request staff assistance advertising and recruiting qualified 
U.S. workers for the job opportunity, and provide the unique 
identification number associated with the job order placed with the SWA 
or, if unavailable, a copy of the job order. If a comprehensive AJC is 
not available, the employer must contact the nearest affiliate AJC 
serving the area of intended employment where work will commence to 
satisfy the requirements of this paragraph (a)(4)(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)(4)(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)(4)(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)(4)(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, 2022, 
until the date the I-129 petition required under 8 CFR 214.2(h)(6)(xiv) 
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)(4)(i) of this section, and solicit their return to the 
job. The contact and disclosures required by this paragraph (a)(4)(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)(4)(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)(4)(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)(4)(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)(4)(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)(4)(vi) 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)(4)(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)(4)(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

[[Page 80460]]

SWA job order is posted, whichever is later. Consistent with Sec.  
655.40(a), applicants can be rejected only for lawful job-related 
reasons.
    (5) The employer must attest on Form ETA-9142-B-CAA-8 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 2024 supplemental allocations outlined in this 
paragraph (a) and Sec.  655.65(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, 2024.
    (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 November 17, 2023, through September 30, 2027, add Sec.  
655.65 to read as follows:


Sec.  655.65  Special document retention provisions for Fiscal Years 
2024 through 2027 under the Consolidated Appropriations Act, 2023, as 
extended by Public Law 118-15.

    (a) An employer that files a petition with USCIS to employ H-2B 
workers in fiscal year 2024 under authority of the temporary increase 
in the numerical limitation under section 303 of Division O, Public Law 
117-328, as extended by Public Law 118-15 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)(xiv), 
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)(xiv), have 
been issued an H-2B visa or otherwise granted H-2B status during one of 
the last three (3) fiscal years (fiscal year 2021, 2022, or 2023), 
unless the H-2B worker(s) is a national of El Salvador, Guatemala, 
Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted 
towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xiv)(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, Haiti, Colombia, Ecuador, or Costa Rica as defined in 8 CFR 
214.2(h)(6)(xiv)(A)(2); and
    (4) If applicable, proof of recruitment efforts set forth in Sec.  
655.64(a)(4)(i) through (vii) and a recruitment report that meets the 
requirements set forth in Sec.  655.48(a)(1) through (4) and (7), and 
maintained throughout the recruitment period set forth in Sec.  
655.64(a)(4)(viii).
    (b) DOL and/or DHS may inspect the documents in paragraphs (a)(1) 
through (4) of this section upon request.
    (c) This section expires on October 1, 2027.

Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
Julie A. Su,
Acting Secretary, U.S. Department of Labor.
[FR Doc. 2023-25493 Filed 11-16-23; 8:45 am]
BILLING CODE 9111-97-P; 4510-FP-P