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The Department of Homeland Security (DHS) has issued a Final Rule for the H-2A and H-2B temporary worker programs that will become effective on Jan. 17, 2025.

The Rule is aimed at modernizing the regulations governing the H-2A and H-2B temporary worker programs — programs that are essential for U.S. employers seeking foreign labor for temporary agricultural (H-2A) and non-agricultural (H-2B) work when domestic labor is unavailable.

Below are the main takeaways.

Improving Program Efficiency:

  • Elimination of Eligible Countries List: Employers are able to hire workers from any country. DHS will no longer be publishing annual lists of H-2 eligible countries, streamlining the process for employers.
  • Simplified Period of Stay Calculations: The Rule standardizes the period that resets a worker’s three-year maximum stay in the United States to a uniform absence of at least 60 days, eliminating complex “interrupted” stay provisions.

Increasing Flexibility for Workers:

  • Grace Period Extensions: H-2 workers are granted a 10-day grace period before employment begins and up to 30 days after employment ends. Additionally, a new grace period of up to 60 days is introduced following employment cessation, allowing workers to seek new employment or prepare for departure without violating their status. The worker remains in status but does not have work authorization during the grace period.
  • Employment Portability: Eligible H-2 workers can commence new employment with a different employer upon the filing of a non-frivolous H-2 petition, providing greater job mobility. This is a dramatic change; previously, the H-2 worker needed to wait for the petition to be approved before starting work with the new employer.

Strengthening Worker Protections and Increasing Program Integrity:

  • Prohibition of Fees: The Rule reinforces the ban on charging certain fees to H-2 workers and introduces penalties for employers who violate this provision.
  • Mandatory Denial Grounds: USCIS is authorized to deny H-2 petitions from employers found to have committed specific labor violations or misused the H-2 programs.
  • Whistleblower Protections: H-2 workers have protections comparable to those in the H-1B program, safeguarding them against retaliation for reporting violations.
  • Compliance Reviews and Inspections: The Rule clarifies USCIS’s authority to conduct compliance reviews and site inspections, ensuring adherence to program requirements.

An H-2A rule that was finalized in April 2024 and rolled out incrementally offered additional worker protections. The rule faced lawsuits and patchwork injunctions covering various states and organizations before being enjoined nationwide by the U.S. District Court for the Eastern District of Kentucky in November.

Jackson Lewis attorneys are available to help with applications and strategies for hiring H-2A and H-2B workers.

The Department of Homeland Security has released an additional 64,716 H-2B temporary visas for non-agricultural workers. The additional visas will help employers in hospitality, tourism, landscaping, construction, seafood processing, and others that employ temporary seasonal workers.

Of the newly released visas, 44,716 are divided in three allocations (between Oct. 1, 2024, and Sept. 30, 2025) for returning workers only. The other 20,000 will be allotted to workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, regardless of whether those individuals are returning workers.

These additional H-2B visas are only for employers that can show they will suffer irreparable harm without the ability to employ the H-2B workers they are requesting. The employers will have to follow the full H-2B process: pass a labor market test and show that employing the H-2B workers they are requesting will not adversely affect the wages or working conditions of similarly employed U.S. workers. Any employers that have committed certain labor law violations in the H-2B program will be subject to additional scrutiny.

Jackson Lewis attorneys are available to assist employers in employing both H-2A farm and H-2B non-agricultural workers.

Congress has approved an additional 64,716 H-2B visas for fiscal year 2024, supplementing the 66,000 available annually. As in prior years, restrictions will apply. A temporary final rule has been published in the Federal Register setting out the procedures involved.

H-2B visas for temporary, seasonal nonagricultural workers are used primarily for jobs in tourism and hospitality, landscaping and construction, and food processing. Once the annually available 66,000 visas run out, employers are forced to continue operations without sufficient number of workers. The initial allocation of H-2B visas for FY 2024 ran out on October 11, 2023, just days after USCIS began accepting applications.

The supplemental visas are available to employers who can provide evidence they are suffering or will suffer irreparable harm if they are unable to supplement their permanent staff with temporary H-2B workers. The additional visas are going to be distributed in several allocations throughout the year.   

The plan is to have four allocations:

  • First half of FY 2024 (October 1 – March 31): 20,716 for returning workers with start dates on or before March 31, 2024 (regardless of nationality)
  • Early second half of FY 2024 (April 1 – May 14): 19,000 for returning workers with start dates from April 1, 2024, to May 14, 2024 (regardless of nationality)
  • Late second half of FY 2024: 5,000 for returning workers with start dates from May 15, 2024, to September 30, 2024 (regardless of nationality)
  • For the entirety of FY 2024: 20,000 visas reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, and Haiti without regard to whether they are returning workers

When adjudicating cases for the additional visas, the Departments of Homeland Security and Labor have indicated they will also consider the impact on U.S. workers and make every effort to protect the H-2B workers from exploitation through rulemaking.

Individuals from 89 countries are eligible to apply for H-2B visas. This year, Bolivia was added to the list.

Jackson Lewis attorneys are available to assist in navigating the H-2B process, which involves not only capturing one of the limited number of visas available, but also following complex rules regarding filing dates, labor market tests, visa applications, and proving irreparable harm.

The Department of Homeland Security (DHS) has provided guidance on the additional 64,716 H-2B temporary nonagricultural worker visas available for fiscal year 2023.

H-2B visas allow employers to bring workers to the United States to perform temporary nonagricultural seasonal work. The statute limits the total number of H-2B visas per year to 66,000. In recent years, there has been more demand than visas available. In October 2022, DHS announced that an additional 64,716 H-2B temporary nonagricultural worker visas would be available for fiscal year 2023. Now, DHS is setting out exactly for whom and when those visas will be available during the fiscal year.

Details for the additional allocation include:

  • 20,000 of the additional visas are reserved for nationals from El Salvador, Guatemala, Haiti, and Honduras.
    • Employers requesting start dates in the first half of FY 2023 may file petitions immediately after December 15, 2022.
      • Premium processing is not available until January 3, 2023.
    • Employers requesting start dates in the second half of FY 2023 may file no earlier than 15 days after the second half statutory cap is met. USCIS will identify this date in a public announcement.
  • 18,216 additional visas are immediately available for returning workers from any eligible country.
    • These petitions must request a start date on or before March 31, 2023.
      • Premium processing is not available until January 3, 2023.
  • 16,500 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from April 1, 2023, to May 14, 2023.
    • Petitions may be filed no earlier than 15 days after the second half of the statutory cap is met. USCIS will identify this date in a public announcement.
  • 10,000 additional visas are available for returning workers from any eligible country.
    • These petitions must request a start date from May 15, 2023, to September 30, 2023.
    • Petitions may be filed no earlier than 45 days after the second half statutory cap is reached. USCIS will identify this date in a public announcement.

All petitions filed under the additional allocation must be filed at the California Service Center. Among other requirements, all employers requesting visas under the additional allocation must attest:

  • That they are suffering or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested on the petition; and
  • That employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Jackson Lewis attorneys are available to assist in strategizing and filing these petitions.

The Department of Homeland Security (DHS) in conjunction with the Department of Labor (DOL) will be starting the fiscal year by making an additional 64,716 H-2B temporary nonagricultural worker visas available. This is on top of the 66,000 normally available.

This move represents a change in strategy. Instead of waiting, the agencies announced the additional allocation at the start of the federal fiscal year to allow employers to plan for peak season needs. In exchange, the agencies are instituting more robust protections for U.S. workers and implementing a new White House-convened Worker Protection Taskforce to ensure that H-2B workers are protected from exploitation and abuse. DHS and DOL are expected to issue a new rule explaining how the visas will be distributed.

Of the 64,716 visas, 20,000 will be reserved for workers from Haiti and the Central American Northern Triangle countries of El Salvador, Guatemala, and Honduras. The remaining 44,716 visas will be available to returning workers who have received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The additional visas will be split between the first and second halves of the year – reserving visas to fill the peak summer season needs.

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. They are employed by various industries, including hospitality, tourism, landscaping, and seafood processing. The need for workers always exceeds the number of visas available, but hit a critical mass in the last few years due to labor shortage issues and economic growth. While grateful for the additional allocation, some employers like the crab processors in Maryland have noted that this is just a temporary fix and that, even with the additional visas, there may likely be an “overwhelming demand.”

Jackson Lewis attorneys are available to assist you to undertake the three-step H-2B process and will provide updates on the new allocation as they become available.

As they did for last summer, the Department of Homeland Security (DHS) and the Department of Labor (DOL) will make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of FY 2022. This more than doubles the usual 33,000 allocation or cap for the summer.

Of the new 35,000 visas, 23,500 will be allocated to returning workers (those who received H-2B status within the past three years) and 11,500 will be allocated to nationals from El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they are returning workers. Last year, the special allocation included only the Northern Triangle countries. This year, Haiti has been added.

Secretary of DHS Alejandro J. Mayorkas said the new release is due to demand in the labor market and is meant to “support American businesses and expand legal pathways for workers seeking to come to the United States.” This should please some businesses, such as hotels, restaurants, and other service providers in summer tourist areas. However, last year, despite the additional allocation, all the extra visas were snatched up quickly (except for a few left over from the Northern Triangle allocation).

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. There is a three-step process involved. First, the employer must prove to DOL that there are not enough U.S. workers available to do the job and that bringing in foreign nationals for these positions will not adversely affect the wages and working conditions of U.S. workers. Then, a petition must be filed with USCIS. Finally, if all of that is approved, the worker must apply for an H-2B visa abroad.

Some workers are exempt from the cap:

  • Workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of their employment;
  • Fish roe processors, fish roe technicians, and their supervisors;
  • Workers who will be doing jobs in the Commonwealth of Northern Mariana Islands or Guam.

For more information on bolstering workforces with H-2B workers, listen to Jessica Feinstein’s and Brenda Oliver’s podcast on the subject.

 

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

By June 1, 2021, Department of Homeland Security (DHS) had received more H-2B visas petitions than the allotted 16,000 slots for returning workers. A lottery will be conducted to determine which petitions will be accepted for processing.

DHS announced in April that it will release 22,000 more H-2B visas for the summer season. Of those, 16,000 are available to returning workers and 6,000 are allotted to nationals from the Northern Triangle countries (El Salvador, Guatemala, and Honduras). Petitions were accepted by USCIS starting on May 25, 2021.

The 6,000 allotment for Northern Triangle countries has not yet been met and USCIS is still accepting these petitions through July 8. If all 6,000 spots are not filled, DHS will announce by July 23, 2021, that the remaining spots will be released and available to returning workers of any nationality. DHS encourages employers whose petitions were not selected under the returning worker quota to refile for workers from the Northern Triangle.

There are certain workers who are exempt from the cap and DHS will continue to accept petitions from them:

  • Current H-2B workers in the United States petitioning to extend their stay;
  • Workers associated with fish roe processing; and
  • Certain workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam.

For help with H-2B visas, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) has announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

U.S. employers may bring foreign nationals to this country to fill temporary, non-agricultural jobs in H-2B status. H-2B visas are relied on heavily by the tourist, hospitality, landscaping, seafood, and construction industries. In recent years, all the visas have been used up and businesses have gone begging for more – often just to be able to remain afloat.

Annually, 66,000 H-2B visas are available, half for the winter season and half for the summer season. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. For the summer of 2021, the Department of Labor received applications for a total of 98,000 workers, all vying for one of the coveted 33,000 spots. Due to the overwhelming demand, the 33,000 H-2B visas were used by February 12, 2021. The prospect of thousands of jobs unfilled for their busiest season panicked many industries.

For years, employers have advocated for additional H-2B visas. In response, Congress authorized DHS to release more visas. In 2020, DHS planned to release an additional 35,000 visas, with 10,000 specifically reserved for nationals of Guatemala, El Salvador, and Honduras, but that was put on hold due to high unemployment rates resulting from the COVID-19 pandemic.

It could be a few months before USCIS issues the final rule and obligations for employers to obtain one of the 22,000 new H-2B visas. If it is like last year, U.S. employers likely will need to perform additional recruitment before applying for the visas.

Jackson Lewis attorneys are available to assist you through the process of applying for the newly released H-2B visas and bringing new workers to the United States.

The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.