March 13, 2023. The Department of Labor Reminds Employers About Requirements for Fiscal Year 2023 Supplemental H-2B Visas

On December 15, 2022, the Department of Labor (Department) and Department of Homeland Security (DHS) published a temporary final rule (TFR) increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of no more than 64,716 additional visas for Fiscal Year (FY) 2023 positions to employers that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase ("FY 2023 cap"). Of the 64,716 visas available, up to 44,716 are limited to H-2B returning workers, and up to 20,000 are reserved for nationals of Guatemala, El Salvador, Honduras, and Haiti.

The FY 2023 cap has been allocated in the following manner:

  • For the first half of FY 2023, DHS made 18,216 visas immediately available upon publication of this TFR on December 15, 2022, limited to returning workers (e.workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality). These petitions must have requested a date of need starting on or before March 31, 2023.
  • For the second half of FY 2023, DHS will initially make available 16,500 visas limited to returning workers. These petitions must request a date of need starting on or after April 1, 2023, through and including May 14, 2023.
  • For the late second half of FY 2023, DHS will make available an additional allocation of 10,000 visas limited to returning workers. To assist employers needing workers to begin work during the late spring and summer seasons in the fiscal year, these petitions must request a date of need starting on or after May 15, 2023.

DHS will make available 20,000 additional visas that are reserved for foreign nationals of the Northern Triangle countries, or Haiti, as attested by the petitioner (regardless of whether such nationals are returning workers). These 20,000 visas will be available for petitioners requesting an employment start date before the end of FY 2023, up to and including September 30, 2023.

The TFR provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers. This is the first year a TFR has been published covering both H-2B cap periods, so the Department is reminding employers who may now be considering accessing authorized the supplemental visas about those protections, flexibilities and requirements.

The TFR requires employers to complete the Department’s Form ETA-9142-B-CAA-7, which includes an attestation that the employer is suffering from or will suffer irreparable harm without the ability to hire all of the H-2B workers requested on the Form I-129 submitted to the United States Citizenship and Immigration Services (USCIS) and that it has evidence to support its claim of irreparable harm which it will submit to the Department or DHS upon request.

Employers with a certified start date 30 or more days prior to submitting their petition to USCIS must attest that they conducted additional recruitment, including working with American Job Centers and State Workforce Agencies for recruitment assistance, provide notice of the job opportunity at worksites or to bargaining representatives, and 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. When contacting the AFL-CIO, employers must provide a copy of the job order and request assistance in recruiting qualified U.S. workers for the job opportunity. Employers must also contact and rehire former employees, including those who were laid off or furloughed since January 1, 2021.

The TFR further requires employers to attest that they will comply with health and safety laws and laws related to COVID-19 worker protections and any right to time off or paid time off for COVID-19 vaccination, or to reimbursement for travel to and from the nearest available vaccination site, and that they will notify any H-2B workers, in a language the workers understand, as necessary or reasonable, that they have equal access to COVID-19 vaccines and vaccine distribution sites.

The TFR once again includes a portability provision which provides H-2B workers and their employers more flexibility by allowing H-2B workers to more quickly, change employers and avoid disruptions and uncertainty in visa processing and travel caused by COVID-19.

PLEASE NOTE: The TFR requires employers with a certified start date which is 30 or more days prior to the submission of their visa petition to USCIS to engage in additional recruitment of U.S. workers. Employers required to conduct additional recruitment must provide the Office of Foreign Labor Certification (OFLC) with the case number for each temporary certification which will be used in support of a visa petition to USCIS concurrently with their placement of new job orders with the State Workforce Agency. Employers who must conduct this concurrent notification requirement are encouraged to notify OFLC by sending an email to H-2Bsupplementalvisas@dol.gov, and including the words “H-2B TFR 2023 Recruitment” followed by the unique TLC case number in the subject line of the email.