DHS to supplement H-2B cap with nearly 65,000 additional visas for fiscal year 2023

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The increase will help meet the need for seasonal workers and reduce irregular migration

WASHINGTON—Today, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced that it will issue regulations that will make available to employers an additional 64,716 temporary H-2B visas for non-farm workers for fiscal year (FY) 2023, in addition to the 66,000 H-2B visas that are normally available each fiscal year. By making these additional visas available at the start of the fiscal year, which began October 1, 2022, DHS is moving quickly to meet employers’ needs for additional seasonal workers. At the same time, DHS and DOL are working together to establish strong protections for U.S. and foreign workers, including ensuring that employers seek and recruit U.S. workers first for job vacancies, such as the requires the visa program, and that foreign hired workers are not exploited by unscrupulous employers. To bolster these efforts, DHS and DOL also announced the creation of a new Worker Protections Task Force convened by the White House, as described below.

“The Department of Homeland Security is moving with unprecedented speed to meet the needs of American businesses,” said Homeland Security Secretary Alejandro N. Mayorkas. “At a time of record employment growth, this full-year allowance at the very start of the fiscal year will allow businesses to plan their peak-season labor needs. We will also strengthen worker protections to preserve the integrity of the program against unscrupulous employers who would seek to exploit workers by paying substandard wages and maintaining unsafe working conditions.

The H-2B supplement includes a 20,000 visa allowance for workers from Haiti and the Central American countries of Honduras, Guatemala and El Salvador. This advances the Biden administration’s commitment, under the Los Angeles Declaration for Migration and Protection, to expand legal pathways as an alternative to irregular migration. This is also in line with the joint commitment made in July by President Biden and President López Obrador of Mexico to work together to expand seasonal and circular work opportunities and ensure that migration is a choice, not a necessity. It’s one of the many ways the United States and Mexico are partnering to manage migration and fuel economic growth, as discussed in the bilateral Labor Mobility Task Force.

American businesses in industries as diverse as hospitality and tourism, landscaping, seafood processing, and more depend on seasonal workers to meet consumer demand. The allocation of additional visas will address the need for seasonal workers in areas where too few American workers are available, thereby contributing to the American economy.

In addition to the 20,000 visas reserved for nationals of Haiti and northern Central American countries, the remaining 44,716 additional visas will be available to returning workers who have received an H-2B visa or who have been granted status. H-2B during one of the last three exercises. The settlement will distribute these remaining additional visas for returning workers between the first half and the second half of the fiscal year to take into account the need for additional seasonal workers during the year, part of the second half allocation being reserved to meet the demand for labor during the high summer season.

The H-2B program allows employers to temporarily hire non-nationals to perform non-agricultural work or services in the United States. Employment must be temporary in nature, such as a one-time event, seasonal need, or intermittent need. Employers looking for H-2B workers should take a series of steps to test the US labor market. They must also certify in their petitions that there are not enough capable, willing, qualified, and available U.S. workers to perform the temporary work for which they are seeking a prospective foreign worker. Additionally, employers must certify that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

DHS and DOL recognize that H-2B workers are structurally deterred from reporting or leaving abusive conditions, and often lack the power to exercise their rights in the face of abusive employment situations. The departments stress the importance of protecting all H-2B workers from exploitation and abuse and ensuring, in accordance with the law, that employers do not refuse to hire or appropriately recruit American workers. who are able, willing, qualified and available to perform the temporary work. The next temporary final rule implementing this allowance will include several provisions to protect U.S. and H-2B workers. For example, DHS will subject employers who have committed certain labor law violations under the H-2B program to additional scrutiny as part of the additional cap application process. This additional review is intended to ensure compliance with H-2B program requirements and obligations.

To address these issues more broadly, the departments are announcing the creation of the H-2B Worker Protection Taskforce (“Taskforce”). Convened by the White House, the task force will focus on (1) threats to the integrity of the H-2B program, (2) the fundamental vulnerabilities of H-2B workers, including their limited ability to leave abusive employment without compromising their immigration status, and (3) impermissible use of the program to avoid hiring American workers. Departments will assess a variety of policy options to address these issues and provide affected stakeholders with an opportunity to provide feedback. The work of the task force will build on ongoing efforts in both departments to reform temporary H-2 visa programs. In the coming months, DHS also plans to issue a Notice of Proposed Rulemaking for H-2 Programs, which will incorporate policies that strengthen protections for H-2 workers.

Additional details about H-2B program safeguards, as well as eligibility and filing requirements, will be available in the temporary final rule and the Cap Count for H-2B Nonimmigrants web page.

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