The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), has released a temporary final rule that authorizes the release of 64,716 supplemental H-2B visas for FY 2024. The supplemental visas will be distributed in the following allocations:
- Now – March 31, 2024: 20,716 visas will be made immediately available to returning workers regardless of country of nationality. Petitions for the first allotment of visas must request employment start dates on or before March 31, 2024
- April 1 – May 14, 2024: 19,000 visas will be made immediately available to returning workers regardless of country of nationality. Petitions for these visas must request employment start dates from April 1, 2024 to May 14, 2024, and these must be filed no earlier than 15 days after the second half statutory cap is reached (33,000 visas).
- May 15 – September 30, 2024: 5,000 visas will be made immediately available to returning workers regardless of country of nationality. Petitions must request employment start dates from May 15, 2024 to September 30, 2024, and these must be filed no earlier than 45 days after the second half statutory cap is reached.
For the entirety of FY 2024, 20,000 visas will be reserved for workers (they do not have to be returning workers) from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador and Costa Rica.
The final rule creates a new standard for employers to qualify for the supplemental visas: petitioners must demonstrate that they suffer or will suffer “irreparable harm” without all H-2B workers requested on their petition. Additionally, petitioners are required to prove they are only employing returning workers unless those workers are coming from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador or Costa Rica and will count toward the 20,000 visa cap.
If a workplace is unionized, the final rule requires employers to notify the employee’s bargaining representative of the job opportunity that the employer is seeking to fill with an H-2B worker. If not, employers must post a notice of the job opportunity. Additionally, if the employer’s occupation is normally unionized, the petitioner must provide written notification of the job to the nearest American Federation of Labor and Congress of Industrial Organizations, and request assistance in recruiting U.S. workers.
Considering the Biden Administration’s recent actions to strengthen protections for H-2B workers, the final rule includes several provisions intended to strengthen oversight of employers. For example, DHS and DOL will conduct a significant number of audits to guarantee compliance with the rule’s attestation requirements. Additionally, employers that have committed past labor law violations in the H-2B program will receive additional scrutiny in the supplemental cap petition process.
Contact NCA President & CEO Joe Trauger at [email protected] if you have any questions or comments.