H-2B Supplemental 64,716 Visa Rule Publishes

via NALP

On Thursday morning, the Department of Homeland Security and Department of Labor released the pre-publication copy of the temporary final rule (TFR) relating to supplemental visas. The official version should be published in the Federal Register by Friday or early next week. This is a great win for the industry as this rule has never published in November and provides seasonal businesses with greater certainty than any previous year. Once our RWE language was stripped from FY 24 appropriations we remained very focused on urging the Administration to swiftly take this action.

The Secretary of Homeland Security and the Secretary of Labor have authorized the release of 64,716 H-2B visas for FY 2024, subject to certain conditions. Temporary portability will also be provided through this tranche of visas. The visas are divided into three allocations: 20,716 for the first half of FY 2024, 19,000 for the early second half of FY 2024, and 5,000 for the late second half of FY 2024. The first half of FY 2024 requires employers to request employment start dates by March 31, 2024, and file petitions no earlier than 15 days after the second half cap is reached. Late second half of FY 2024 petitions must request employment start dates from May 15, 2024, to September 30, 2024, and must be filed 45 days after the second half statutory cap is reached.

20,000 visas are reserved for nationals of the Northern Countries plus a few more countries have been added to the list (El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica), regardless of whether they are returning workers. Employers can file the first half petitions immediately after the publication of the TFR, and second half petitions 15 days after the cap is reached. To qualify for FY 2024 supplemental caps, petitioners must meet H-2B eligibility requirements, obtain an approved temporary labor certification (TLC), file Form I-129 with USCIS, submit an attestation affirming irreparable harm or impending harm, only employ returning workers, and prepare a detailed written statement demonstrating irreparable harm and supporting their application.

Employers filing an H-2B petition 30 or more days after the certified start date on the TLC must take additional steps to recruit U.S. workers. Petitioners filing H-2B petitions under the FY 2024 supplemental cap must retain documentation of compliance for three years from the date DOL approved the TLC. They must cooperate with compliance reviews and audits.

DHS will not approve H-2B petitions filed after October 1, 2024. DHS is providing additional flexibilities to H-2B petitioners, allowing nonimmigrant workers in valid H-2B status to begin work with a new employer after an H-2B petition is filed and before the petition is approved, for up to 60 days.

Since the cap has already been hit if you have already filed for a date of need between October 1st and 90 days from tomorrow you should be able to immediately begin the supplemental vias process, application and attestation. If you have a date of need past 90 days you should promptly file (think mid February to March) and you are likely in a very strong position to access the supplemental visas. For March filers I think there will be uncertainty on whether there will be any supplemental visas left.