DHS and DOL Temporary Rule Authorizing 64,716 Additional H-2B Visas for FY2023

DOL posted the following notice on its website:
December 15, 2022. The Departments of Labor and Homeland Security Publish Rule Increasing the Number of H-2B Visas Available in Fiscal Year 2023

The U.S. Departments of Labor and Homeland Security have published a temporary final rule (TFR) increasing the numerical limitation on H-2B nonimmigrant visas to authorize the issuance of no more than 64,716 additional visas for Fiscal Year (FY) 2023 positions to employers that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. Of the 64,716 visas available, up to 44,716 are limited to H-2B returning workers, and up to 20,000 are reserved for nationals of the Northern Triangle Countries (Guatemala, El Salvador, and Honduras) and Haiti. The TFR provides additional protections for U.S. workers, flexibility for foreign workers, and additional recruitment requirements for certain employers.

• View the TFR, Exercise of Time-Limited Authority to Increase the Numerical Limitation for Fiscal Year 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking to Change Employers

In support of this rule, the Office of Foreign Labor Certification (OFLC) has posted the new Form ETA-9142-B-CAA-7 and the accompanying instructions. The TFR requires an employer to attest, among other things, to the fact that it is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested under the cap increase. This attestation must be submitted to the United States Citizenship and Immigration Services (USCIS) along with Form I-129, in support of an H-2B application subject to the H-2B cap on or before September 15, 2023. Upon OMB providing final approval, OFLC will issue a separate announcement informing the public that the Form ETA-9142-B-CAA-7 is available for immediate public use.

PLEASE NOTE: The TFR requires employers with a certified start date which is 30 or more days prior to the submission of their visa petition to USCIS to engage in additional recruitment of U.S. workers. Employers required to conduct additional recruitment must provide OFLC with the case number for each temporary certification which will be used in support of a visa petition to USCIS concurrently with their placement of new job orders with the State Workforce Agency. Employers who must conduct this concurrent notification requirement are encouraged to notify OFLC NPC by sending an email to H-2Bsupplementalvisas@dol.gov, and including the words “H-2B TFR 2023 Recruitment” followed by the unique TLC case number in the subject line of the email.