Temporary Increase in H-2B Nonimmigrant Visas for FY 2023

Only U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm (permanent and severe financial loss) if they cannot employ all the H-2B workers that they request on their Form I-129 petition may file H-2B petitions under this temporary increase. In addition, employers may only request workers who have been issued an H-2B visa or otherwise granted H-2B status in FY 2020, 2021, or 2022, unless they are petitioning for workers under the 20,000 Northern Central American/Haiti allotment.

The joint temporary final rule provisions pertaining to the 64,716 supplemental visas do not apply to petitions that are not subject to the H-2B cap, including those petitions filed for an H-2B extension of stay request or on behalf of certain fish roe processors. Those petitions may continue to be filed under the normal rules of the H-2B program.

The 64,716 visas are divided into the following allocations:

• For the first half of FY 2023 (Oct. 1, 2022 – March 31, 2023): 18,216 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These petitions must have requested employment start dates on or before March 31, 2023.  On January 31, 2023, USCIS announced that it had received enough petitions to reach the cap for this allocation;
• For the early second half of FY 2023 (April 1 to May 14): 16,500 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These early second half of FY 2023 petitions must have requested employment start dates from April 1, 2023, to May 14, 2023. Furthermore, employers must have filed these petitions no earlier than March 14, 2023. On March 31, 2023, USCIS announced that it had received enough petitions to reach the cap for this allocation;
• For the late second half of FY 2023 (May 15 to Sept. 30): 10,000 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2020, 2021, or 2022, regardless of country of nationality. These late second half of FY 2023 petitions must have requested employment start dates from May 15, 2023, to Sept. 30, 2023. Furthermore, employers must have filed these petitions no earlier than April 13, 2023. As of September 16, 2023, USCIS is no longer accepting petitions for this allocation; and
• For employers seeking nationals of El Salvador, Guatemala, Honduras, and Haiti: There are 20,000 visas reserved for the entirety of FY 2023. Employers requesting an employment start date in the first half of FY 2023 (on or before March 31, 2023) may file such petitions immediately on or after Dec. 15, 2022. Employers requesting an employment start date in the second half of FY 2023 (on or after April 1, 2023) must file such petitions no earlier than March 14, 2023.  As of September 16, 2023, USCIS is no longer accepting petitions for this allocation.

There are 20,000 H-2B visas (from the 64,716 supplemental cap visas) that are reserved for FY 2023 for nationals of El Salvador, Guatemala, Honduras, and Haiti, who are exempt from the returning worker requirement. Employers requesting an employment start date for such nationals in the first half of FY 2023 (on or before March 31, 2023) may file petitions on or after Dec. 15, 2022. Employers requesting an employment start date for such nationals in the second half of FY 2023 (on or after April 1, 2023) must file such petitions no earlier than 15 days after the second half statutory cap is reached. The statutory cap for the second half of FY2023 was reached on Feb. 27, 2023, therefore such petitions must have been filed no earlier than March 14, 2023.

To assist U.S. businesses that need workers to begin work on different start dates, the supplemental visas will be distributed in several allocations, including two separate allocations for the second half of FY 2023. The “Allocation of Supplemental Visas” section above explains when employers can submit their petitions. All petitions requesting the additional H-2B visas made available for FY 2023 must be filed at the California Service Center.

To qualify for H-2B supplemental cap visas, petitioners must:

• Meet all existing H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from DOL that is valid for the entire employment period stated on the petition). As a reminder, the employment start date on the petition must match the employment start date on the TLC, even if that date has passed;
• If applicable, refresh recruitment for U.S. workers, as described in the temporary final rule (if Form I-129 is filed 30 or more days after the certified start date of work on the TLC);
• Submit an attestation on the DOL Form ETA 9142-B-CAA-7 (PDF) in which the petitioner affirms, under penalty of perjury, that its business is suffering irreparable harm or will suffer impending irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employ returning workers only, unless the worker is eligible under the Northern Central American/Haiti allotment. Please follow the DOL Form ETA 9142-B-CAA-7 (PDF) Instructions when completing the attestation; and
• Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations, or to reimbursement for travel to and from the nearest available vaccination site, and notify the workers in a language understood by the worker as necessary or reasonable, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

NOTE: USCIS will not accept the expired ETA 9142-B-CAA from FY 2017, ETA 9142-B-CAA-2 from FY 2018, ETA 9142-B-CAA-3 from FY 2019, ETA 9142-B-CAA-4 from FY 2021, ETA-9142-B-CAA-5 from the first half of FY 2022, or ETA-9142-B-CAA-6 from the second half of FY 2022. We will reject any petition that does not include the new ETA 9142-B-CAA-7 (PDF) attestation form for FY 2023 (or a copy of this new form) but is seeking H-2B workers under this FY 2023 supplemental allocation.

Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is suffering irreparable harm or will suffer impending irreparable harm if they are unable to employ all the H-2B workers requested in their petition. Additionally, petitioners must attest that they have prepared and retained a detailed written statement describing how the evidence demonstrates irreparable harm or would demonstrate irreparable harm for those instances involving impending irreparable harm. The retention requirements under the rule require petitioners to retain evidence for a period of three years that the employer requested and/or instructed that each of the H-2B workers petitioned under this rule were issued H-2B visas or otherwise granted H-2B status in FY 2020, 2021, or 2022 unless the petition requests H-2B workers under the Northern Central American/Haiti allotment, who are not subject to a returning worker requirement. Petitioners must provide the documentation if DHS or DOL request it, as well as fully cooperate with any compliance reviews such as audits. Both DHS and DOL intend to conduct a significant number of post-adjudication audits to ascertain compliance with the attestation requirements as well as key worker protection provisions implemented through this temporary final rule.

DHS will also subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. These measures are aimed at ensuring compliance with H-2B program requirements and obligations.

USCIS is implementing a change in the filing location for petitions filed under the supplemental allocations in this rule, with all such filings at the California Service Center. Under standard processes, H-2B petitions are filed at one of two USCIS service centers generally based on the state in which the petitioner’s primary office is located. To manage the additional workload from the supplemental allocations provided by this rule, all such filings will be centralized at the California Service Center. Petitions filed under the supplemental allocations in this rule at any location other than the California Service Center will be rejected and the filing fees will be returned.

For petitions requesting returning workers, or workers from Haiti, El Salvador, Guatemala, or Honduras, with a start date in the first half of the fiscal year, USCIS will not accept any requests for premium processing until Jan. 3, 2023. USCIS will reject the I-907 and return the premium processing filing fee, if the I-907 was received before Jan. 3, 2023.

Generally, the employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC. See 8 CFR 214.2(h)(6)(iv)(D). Petitions with employment start dates that do NOT match the TLC’s employment start date will be rejected and returned with fees. However, for purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed if the TLC is otherwise valid. USCIS may deny or reject a petition submitted without the required attestation.

H-2B petitions filed for the supplemental visa allocation may generally request unnamed workers, but such workers will be subject to the returning worker requirement or the limitation to nationals of Northern Central American countries and Haiti.

A petition may be filed with only a single Form ETA 9142-B-CAA-7 (PDF). A petitioner requesting both returning workers and Northern Central American/Haitian nationals who are exempt from the returning worker requirement must do so on separate petitions.

On the Form ETA 9142-B-CAA-7 (PDF), the petitioner must indicate the supplemental visa allocation under which H-2B nonimmigrant workers are requested. A petitioner must only indicate a single allocation and must only request workers who qualify for this allocation. If more than one box is checked or the petition is requesting workers who do not qualify for the requested allocation, USCIS may reject, or deny, or take other adverse action with respect to the petition.

If a petitioner files a petition seeking H-2B workers under this supplemental visa allocation and requests a change of status for a worker in the U.S., USCIS will deny the change of status request but will adjudicate the petition to determine eligibility for H-2B classification.

If USCIS approves the H-2B petition, the worker would need to obtain the H-2B visa, if applicable, at a consular post abroad before seeking admission to the U.S. in H-2B status at a port of entry. Check the Department of State processing times webpage to ensure that workers have sufficient time to apply for a visa.

USCIS will stop accepting petitions under this temporary final rule received after Sept. 15, 2023, or after the applicable cap has been reached, whichever occurs first. We will reject any petitions received after Sept. 15 or after the cap is reached, whichever is earlier. USCIS will deny all pending petitions not approved before Oct. 1, 2023, and will not refund any fees.

We will consider petitions requesting an employment start date after Sept. 30, 2023, towards the first half statutory FY 2024 H-2B cap, subject to all eligibility requirements for FY 2024 H-2B cap filings.

In addition to making additional visas available under the FY 2023 time-limited authority, DHS is exercising its general H-2B regulatory authority to temporarily extend portability flexibility that allows certain H-2B workers who are already in the United States to begin work with a new employer after USCIS receives the H-2B petition (supported by a valid temporary labor certification) filed on their behalf, and before the H-2B petition is approved. Portability enables certain H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. With disruptions and uncertainty surrounding the COVID-19 pandemic, including possible future impacts of COVID-19 variants, this additional flexibility allows U.S. employers to meet their labor needs, while allowing H-2B workers to change employers more quickly. This effective extension of a current and temporary flexibility is available if a nonfrivolous H-2B petition requesting an extension of stay is received on or after Jan. 25, 2023, but no later than 1 year after that date.

Petitions filed to extend the stay of H-2B workers who are already in the U.S. as H-2B workers are not subject to the cap. Thus, petitioners requesting to have these current H-2B workers immediately work for them after they file their petition with USCIS and before the petition is approved, under the portability provision of the temporary final rule, are not subject to the irreparable harm requirement. These petitioners, who are only seeking portability flexibilities for cap-exempt workers, are also not required to conduct a fresh round of recruitment or to submit Form ETA 9142-B-CAA-7 (PDF). Eligibility for this portability provision does not require the petitioner to file at the California Service Center.

To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.