DHS to Nearly Double the Number of H-2B Visas Available in FY 2023

DHS has announced that it will make available an additional 64,716 H-2B visas in Fiscal Year 2023, nearly doubling the number of H-2B visas that would otherwise be available this fiscal year. Of the additional visas, 20,000 will be reserved for nationals of El Salvador, Guatemala, Haiti, and Honduras, with the remaining 44,716 reserved for certain returning H-2B workers. The initiative will also include provisions designed to protect both U.S. and H-2B workers, along with the creation of a new “H-2B Worker Protection Taskforce.” DHS is expected to publish details on the initiative in the coming weeks.

A closer look

On October 12, 2022, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced that it will be issuing a regulation that will make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2023, to supplement the 66,000 H-2B visas that are normally available each fiscal year. The full year allocation of these supplemental visas will be available at the outset of the fiscal year, which began on October 1, 2022.

Of the 64,716 additional H-2B visas, 20,000 will be set aside for workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will be 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 new regulation will allocate the supplemental visas for returning workers between the first and second halves of the fiscal year, to account for the need for additional seasonal workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season.

The supplemental increase applies to FY 2023 only and does not affect the H-2B program in future fiscal years.

Worker protections and new task force

Existing regulations require employers seeking H-2B workers to test the U.S. labor market and certify that there are not enough U.S. workers who are able, willing, qualified, and available for the offered positions, and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The forthcoming temporary final rule will include additional provisions designed to protect both U.S. and H-2B workers. As one example, the DHS announcement states that the upcoming regulation will subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. Details on other worker protections will be contained in the forthcoming regulation.

DHS and DOL also announced the creation of a new H-2B Worker Protection Taskforce, to be convened by the White House. According to the DHS announcement, the new Task Force “will bolster worker protections to safeguard the integrity of the program from unscrupulous employers who would seek to exploit the workers by paying substandard wages and maintaining unsafe work conditions.” The Taskforce is expected to focus on threats to H-2B program integrity, H-2B workers’ vulnerabilities, and attempts to use the program to avoid hiring U.S. workers. 

The DHS announcement notes that the work of the Taskforce will build on ongoing efforts by DHS and DOL to reform the H-2 temporary visa programs, including DHS plans in the coming months to issue a notice of proposed rulemaking to incorporate policies that strengthen protections for H-2 workers. 

Further details expected soon

In the coming weeks, DHS is expected to publish a temporary final rule setting forth eligibility and filing requirements for the supplemental H-2B visas and detailing the additional worker protections.