The Department of Homeland Security (DHS) and the Department of Labor (DOL) will issue a temporary final rule this week making additional H-2B temporary nonagricultural worker visas available for fiscal year 2023.

Key Points:

  • DHS and the DOL are issuing a temporary final rule, making an additional 64,716 H-2B temporary nonagricultural worker visas available for the 2023 fiscal year, which began Oct. 1. The additional allotment will come on top of the 66,000 cap-subject H-2B visas that are typically available each fiscal year.
  • The H-2B supplemental allocation incudes about 44,700 visas for returning workers who received an H-2B visa or were granted H-2B status in the last three fiscal years and an allocation of 20,000 visas to workers from El Salvador, Guatemala, Haiti and Honduras.
  • These supplemental H-2B visas are for U.S. employers seeking to petition for additional workers at certain periods of the fiscal year before Sept. 15, 2023.
  • Employers requesting an employment start date in the first half of fiscal year 2023 may file petitions as of Dec. 15, 2022, and must request employment start dates before April 1, 2023.
  • Employers requesting an employment start date for the early second half of fiscal year 2023 must file petitions within 15 days after the second half statutory cap is reached and must request employment start dates between April 1, 2023, and May 14, 2023.
  • Employers requesting an employment start date for the late second half of fiscal year 2023 must file petitions within 45 days after the second half statutory cap is reached and must request employment start dates between May 15, 2023, and Sept. 30, 2023.
  • Petitions requesting supplemental allocations under this rule must be filed at the California Service Center. U.S. Citizenship and Immigration Services will not accept any requests for premium processing until Jan. 3, 2023, for petitions requesting returning workers, or workers from El Salvador, Guatemala, Haiti or Honduras with a start date in the first half of the fiscal year.

Additional Information: The temporary final rule features several provisions to protect both U.S. and H-2B workers, including both Departments participating in the H-2B Worker Protection Taskforce, announced in October, to address labor law issues more broadly. More information regarding the available of H-2B visas for fiscal year 2023 is available here.

This is the first time DHS and DOL have issued a single rule making available H-2B supplemental visas for several allocations throughout the entire fiscal year, including an allocation for the late second half. BAL will continue following H-2B program developments and will provide updates as information becomes available.

This alert has been provided by the BAL U.S. Practice Group. For additional information, please contact berryapplemanleiden@bal.com.

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