U.S. Citizenship and Immigration Service (USCIS) and the Department of Labor (DOL) have released the joint temporary rule implementing the process for employers who have a certified ETA 9142B with an employment start within fiscal year (FY) 2024 (from October 1, 2023, to September 30, 2024) to apply for the 64,716 additional H-2B visa numbers. 20,000 will be reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica. The remaining 44,716 visas will be released for returning workers incrementally based on a schedule outlined by the DOL and USCIS. To obtain these supplemental visas, employers must prove that their business is suffering or will suffer impending irreparable harm without the ability to employ all of the H-2B employees requested.

  • For employers seeking nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras and Haiti:

There are 20,000 visas reserved for the entirety of FY 2024 (October 1, 2023, to September 30, 2024). Employers requesting an employment start date in the first half of FY 2024 may file such petitions starting November 17, 2023. Employers requesting an employment start date in the second half of FY 2024 must file such petitions no earlier than 15 days after the second half statutory cap is reached.

  • For start dates from October 1, 2023, to March 31, 2024 (first half of FY 2024)

There are 20,716 immediately available visas limited to returning workers regardless of country of nationality. Employers requesting an employment start date in the first half of FY 2023 may file such petitions starting November 17, 2023.

  • For start dates from April 1, 2024, to May 14, 2024 (early second half of FY 2024)

There are 19,000 visas limited to returning workers regardless of country of nationality. Employers must file these petitions no earlier than 15 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached.

  • For start dates from May 15, 2024, to September 30, 2024 (late second half of FY 2024):

There are 5,000 visas limited to returning workers regardless of country of nationality. Employers must file these petitions no earlier than 45 days after the second half statutory cap is reached.

Below are FAQs regarding the additional H-2B visa numbers for FY 2024 Workers that Qualify for Supplemental Visas.

  • Which workers are eligible for these additional visas? There are two categories of workers who are eligible for these supplemental H-2B visas. First, employers may request workers who have been issued H-2B visas or otherwise granted H-2B status in FY 2021, 2022. or FY 2023. Second, employers may petition for workers from Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.
  • I am an employer with a season that starts October 1, 2023, to March 31, 2024 (first half of FY 2024). My ETA-9142B has been certified with the DOL, but the H-2B cap has already been met. How does this rule affect me? Employers who have start dates within the October 1, 2023, to March 31, 2024, range but did not make it into the cap may request H-2B supplemental visa numbers for the following groups:
  1. 20,716 visas for returning workers; or
  2. 20,000 visas reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.

Employers with a start date of October 1, 2023, to March 31, 2024, will be able to petition for additional visas immediately.

  • I am an employer with a season that starts April 1 to May 14, 2024 (early second half of FY 2023). I am planning to file my ETA-9142B on or around January 1. How does this rule affect me? The H-2B randomization process will still proceed as normal. If you submit your H-2B filing between January 2 to 4, then your petition will be randomly placed into a group. Group A will have 35,000 visa requests (enough to fill the cap). All other groups will have 20,000 visa requests. If you are in Group A, you will likely make it into the “cap,” and once your ETA 9142B is certified with the DOL, you can petition for workers as normal.However, if are selected for a later group, and you do not make it into the cap, then you will have the additional option of securing workers through this rule. Employers who do not make it to the cap with a start date of need in the early second half of FY 2024 will be able to request H-2B supplemental visa numbers for the following groups:
  1. 19,000 visas limited to returning workers regardless of country of nationality. These returning workers must have been granted H-2B status in FY 2021, 2022 or 2023; or
  2. the 20,000 visas reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador, and Costa Rica.

Employers with a start date between April 1, 2024, to May 14, 2024, will be able to petition for these supplemental visas no earlier than 15 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached.

  • I am an employer with a season that starts May 15, 2024, to September 30, 2024 (late second half of FY 2024). I am planning to file my ETA-9142B after January 1. How does this rule affect me? The H-2B randomization process will still proceed as normal. It is likely that the H-2B cap will be reached before you are able to submit your ETA-9142B, as has been the case in past years. This year, there will be additional visas available specifically for employers with start dates from May 15, 2024, to September 30, 2024. Employers who do not make it to the cap with a start date of need in the late second half of FY 2023 will be able to request H-2B supplemental visa numbers for the following group of workers:
  1. 5,000 visas limited to returning workers regardless of country of nationality; or
  2. the 20,000 visas reserved for nationals of Haiti, El Salvador, Guatemala, Honduras, Colombia, Ecuador and Costa Rica.

Employers with a start date of May 15, 2024, and later will be able to petition for additional visas no earlier than 45 days after the second half statutory cap is reached. USCIS will send out a notice when the second half of the cap has been reached.

  • How do I prove that my business is suffering or will suffer impending irreparable harm if I am not granted the H-2B visas I request? Each employer must attest to the fact that its business is suffering or will suffer impending irreparable harm if it is not granted the H-2B visas. To prove this, each employer must provide a detailed written statement of irreparable harm, to be signed concurrently with the H-2B supplemental visa petition filed with USCIS. Additionally, each employer must retain evidence of irreparable harm to support this written statement and attestation. USCIS may audit an employer and request this statement and supporting evidence.
  • How do I prove that I will be seeking workers who qualify for these visas? USCIS requires that an employer certify that it will only be seeking qualified workers for these visas. Employers may provide evidence that they were only seeking returning workers by keeping evidence on file such as a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H-2B visa to those foreign workers who were previously issued an H-2B visa or granted H-2B status in FY 2021, 2022 or 2023.

USCIS Procedures

  • If I file for these H-2B visas, am I guaranteed to get them? Not necessarily. If USCIS receives requests for more than the allotted visas for a certain group, USCIS will conduct a lottery to determine which employers are granted the additional visas.
  • If USCIS approves insufficient petitions to use all the visas allocated to a specific period, will those visas be re-allocated to the later start dates? No.
  • Will there be another “supplemental visas” rule released later this year? Likely no. This year, as with last year, USCIS has made the decision to release one rule governing the supplemental visas. This will likely be the only rule that will be released this year.

Additional Recruitment for Supplemental Visas

  • Will I have to conduct new recruitment? It depends on when the application is filed. The employer must take certain recruitment actions if the certified employment start date on the certified ETA 9142B is more than 30 days before the filing date of the petition for the additional visa numbers.
  • What are the additional recruitment steps that must be conducted? No later than one business day after filing the I-129 petition, the employer must place a new job order with the relevant State Workforce Agency (SWA) for at least 15 calendar days. In addition, the employer must conduct the following actions:
  1. Post the job order with the SWA;
  2. Contact the nearest American Job Center serving the geographic area where work will commence and request staff assistance in recruiting qualified U.S. workers;
  3. Contact the employer’s former U.S. workers, including those the employer furloughed or laid off beginning on January 1, 2020, and until the date the H-2B petition is filed, disclose the terms of the job order and solicit their return to the job;
  4. Provide written notification of the job opportunity to the bargaining representative for the employer’s employees in the occupation and area of employment, or post notice of the job opportunity at the anticipated worksite if there is no bargaining representative;
  5. Hire any qualified U.S. worker who applies or is referred for the job opportunity until the later of either the date on which the last H-2B worker departs for the place of employment or 30 days after the last date of the SWA job order posting;
  6. Where the occupation is traditionally or customarily unionized, provide written notification of the job opportunity to the nearest American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) office covering the area of intended employment, by providing a copy of the job order and requesting assistance in recruiting qualified U.S. workers for the job opportunity;
  7. Contact current U.S. employees to request assistance with recruitment; and
  8. Post the job order on employer’s website if employer has a website.