In conjunction with the Department of Labor, DHS has issued a joint temporary final rule to increase the number of H-2B foreign worker visas for fiscal year 2023. The temporary final rule was made available for public inspection and will formally publish in the Federal Register on Dec. 15, 2022. The rule will make an additional 67,716 H-2B temporary worker visas available for the next fiscal year.
This marks the first time DHS and DOL have issued a single rulemaking additional H-2B visas available. DHS states in a press release, “The supplemental H-2B visa allocation consists of roughly 44,700 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 20,000 visas are reserved for El Salvador, Guatemala, Honduras, and Haiti nationals, regardless of whether they are returning workers.”
The H-2B visa program allows U.S. employers to temporarily import foreign nationals to perform nonagricultural labor or services within the U.S. To comply with the program’s rules, the employment must be for a limited period of time, and the petitioner must have a temporary need for the labor or services to be performed.
U.S. employers seeking to hire foreign H-2B workers must prove that they are suffering or will suffer “impending irreparable harm” without the ability to employ all of the H-2B workers requested on their petition.
The DHS press release continues:
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 DOL 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. Employers filing an H-2B petition 30 or more days after the certified start date on the temporary labor certification must also take certain additional steps to recruit U.S. workers.
The additional H-2B visas will be divided into several allocations; for example, employers seeking nationals of El Salvador, Guatemala, Honduras, and Haiti will have 20,000 visas reserved for the entirety of FY 2023. For the first half of FY 2023, there are 18,216 immediately available visas limited to returning workers regardless of country of nationality. For the early second half of FY 2023, there are 16,500 visas limited to returning workers regardless of country of nationality. And finally, for the late second half of FY 2023, there are 10,000 visas limited to returning workers irrespective of country of nationality.
You can read the complete press release here.
