DHS and DOL to Supplement the H-2B Cap With Additional Visas for Second Half of Fiscal Year 2022

On March 31, 2022, the Department of Homeland Security (DHS) and the Department of Labor (DOL) announced the forthcoming publication of a joint temporary final rule to make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of fiscal year (FY) 2022. These visas will be set aside for U.S. employers seeking to employ additional workers on or after April 1, 2022, through Sept. 30, 2022.

“Informed by current demand in the labor market, today we are announcing the availability of an additional 35,000 H-2B visas that will help to support American businesses and expand legal pathways for workers seeking to come to the United States,” said Secretary Alejandro N. Mayorkas. “Recognizing the importance of strong worker protections, we will apply greater scrutiny to those employers who have a record of violating obligations to their workers and the H-2B program.”

The supplemental H-2B visa allocation consists of 23,500 visas available to returning workers, who received an H-2B visa or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 11,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, Honduras, Guatemala, and El Salvador.

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be for a limited period of time, such as a one-time occurrence, seasonal, or intermittent need. Employers seeking to hire H-2B workers must take a series of steps to test the U.S. labor market. They must provide certification from the Department of Labor that proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker, and that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. 

In January 2022, the Departments announced the availability of 20,000 additional H-2B temporary nonagricultural worker visas for the first half of fiscal year (FY) 2022. Additional details about how the supplemental allocation will be implemented, including the worker protections, will be provided in the forthcoming temporary final rule.

Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.