DHS and DOL Announce Temporary Rule Authorizing Additional H-2B Visas for FY 2023

The Department of Homeland Security (DHS) and the Department of Labor (DOL) have issued a temporary rule authorizing 64,176 additional H-2B temporary nonagricultural visas for the fiscal year 2023. These supplemental H-2B visas will allow U.S. employers to petition for additional workers at peak periods of the 2023 fiscal year before September 15, 2023.

The supplemental visas consist of the following:

• • 44,700 visas for returning workers who received H-2B visas or otherwise were granted H-2B status during one of the last three fiscal years
    • 18,216 visas are immediately available for employment start dates on or before March 31, 2023
    • 16,500 visas are available for employment start dates from April 1, 2023, to May 14, 2023

    • • 10,000 visas are available for employment start dates from May 15, 2023, to September 30, 2023

• • 20,000 visas for nationals of El Salvador, Guatemala, Honduras, and Haiti

This temporary rule marks the first time that DHS and DOL have issued a single rulemaking H-2B supplemental visas available for several allocations throughout the fiscal year and a specific allocation for the late second half.

Under the H-2B program, U.S. employers may temporarily hire foreign workers to perform nonagricultural labor or services in the U.S. However, the employer must need the labor or services for a limited period, such as a one-time occurrence, a peak season, or intermittently.

Employers seeking to hire H-2B workers must meet the following requirements:

• • They must attest that they are suffering or will suffer irreparable harm without the ability to employ all the H-2B workers requested;

• • They must provide certification from DOL that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they need workers; and

• • They must certify that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Additionally, those employers who file an H-2B petition 30 or more days after the certified start date on the temporary labor certification first must take other steps to recruit U.S. workers.

The temporary final rule also contains various provisions to protect H-2B workers from abuse and exploitation. For example, employers who have committed past labor law violations while participating in the H-2B program will be subject to additional scrutiny when submitting petitions for supplemental H-2B visas. DHS and DOL also are participating in the H-2B Worker Protection Taskforce that the White House has newly convened.

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