DHS to Supplement H-2B Cap with Nearly 65,000 Additional Visas for Fiscal Year 2025

The Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a temporary final rule (TFR) making available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2025. These supplemental visas are aimed at helping U.S. employers who are unable to find U.S. workers who are available, willing, and qualified to do the temporary work in industries such as hospitality and tourism, landscaping, seafood processing, and many other sectors. DHS, in coordination with DOL, has authorized supplemental cap numbers in FY 2017, FY 2018, FY 2019, FY 2021, FY 2022, FY 2023, and FY 2024 in accordance with the time-limited statutory authority granted for each of those fiscal years by Congress.

The supplemental H-2B visa allocation consists of roughly 44,700 visas available to returning workers who received an H-2B visa or held H-2B status in FY 2022, FY 2023, or FY 2024, regardless of their country of nationality. The remaining 20,000 visas are reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they are returning workers.

The supplemental H-2B visas have been divided into the following four allocations:

• First half of FY 2025 (Oct. 1, 2024, to March 31, 2025): 20,716 immediately available visas are limited to returning workers – those who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These petitions must request employment start dates on or before March 31, 2025.

• Early second half of FY 2025 (April 1, 2025, to May 14, 2025): 19,000 visas are limited to returning workers – those who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These early second half of FY 2025 petitions must request employment start dates from April 1, 2025, to May 14, 2025.

• Late second half of FY 2025 (May 15, 2025, to Sept. 30, 2025): 5,000 visas are limited to returning workers - those who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024, regardless of country of nationality. These late second half of FY 2025 petitions must request employment start dates from May 15, 2025, to Sept. 30, 2025.

• Entirety of FY 2025: 20,000 visas immediately available are reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, regardless of whether those nationals are returning workers. Employers requesting an employment start date in the first half of FY 2025 may file their petitions immediately after the publication of this TFR. Employers requesting an employment start date in the second half of FY 2025 must file their petitions no earlier than 15 days after the second half statutory cap is reached.

Employers seeking to hire H-2B workers under the FY 2025 supplemental cap must attest that they are suffering or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition. Employers seeking to hire H-2B workers must take a series of steps to test the U.S. labor market. They must provide certification from DOL that proves there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker, and that employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

It is critically important to protect H-2B workers from exploitation and abuse. The temporary final rule features several provisions to protect H-2B workers. DHS will subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations. Further, on Sept. 20, 2023, DHS published a notice of proposed rulemaking to modernize and improve both the H-2B and H-2A programs, including by providing greater flexibility and protections for participating workers.

The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be for a limited period of time, and the petitioner must have a temporary need for services or labor to be performed, that is, a one-time occurrence, peak load need, seasonal need, or intermittent need.

Additional details on H-2B program safeguards, as well as eligibility and filing requirements, is available in the temporary final rule.