Temporary Increase in H-2B Nonimmigrant Visas for FY 2024
ALERT: As of Jan. 9, 2024, USCIS has received enough petitions to reach the additional 20,716 H-2B visas made available for returning workers for the first half of FY 2024 with start dates on or before March 31, 2024, under the FY 2024 H-2B supplemental visa temporary final rule.
We will reject and return any cap-subject petitions received after Jan. 9, 2024, for H-2B returning workers with start dates on or before March 31, 2024, together with any accompanying fees. Read more: Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2024.
On Nov. 17, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 64,716 additional visas for all of fiscal year (FY) 2024.
These supplemental visas are available only to U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all the H-2B workers requested in their petition, as attested by the employer on a new attestation form.
This rule authorizes H-2B supplemental visas for the entirety of FY 2024. To assist U.S. businesses that need workers to begin work on different start dates, the supplemental visas will be distributed in several allocations, including two separate allocations for the second half of FY 2024. See “Allocation of Supplemental Visas” below.
Of the 64,716 additional visas, 44,716 are available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 20,000 visas are set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) who are exempt from the returning worker requirement. See “Who Can Petition for the Additional Visas” below. To qualify for the additional 64,716 visas, petitions must be received at the Texas Service Center by Sept. 16, 2024.
This increase is based on time-limited statutory authority that does not affect the H-2B program in future fiscal years.
This increase in the cap is in accordance with Section 303 of Division O of the Consolidated Appropriations Act, 2023, Public Law 117- 328, as extended by sections 101(6) and 106 of Division A of the Continuing Appropriations Act, 2024 and Other Extensions Act, Public Law 118-15, which gave the secretary of DHS the authority to make available additional H-2B visas for FY 2024. Before authorizing the additional visa numbers, the secretary of homeland security, in consultation with the secretary of labor, considered the needs of businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program. In addition to addressing the needs of business with these supplemental visas, recognizing the critical importance of protecting H-2B workers from exploitation and abuse, the Departments are actively engaged in reform efforts. For more information, see the Oct. 19, 2023, the H-2B Worker Protection Taskforce, convened by the White House, report (PDF) announcing new actions to be taken by four federal agencies—DHS, DOL, Department of State, and the U.S. Agency for International Development (USAID)— to strengthen protections for vulnerable workers. 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.
Only U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm (permanent and severe financial loss) if they cannot employ all the H-2B workers that they request on their Form I-129 petition may file H-2B petitions under this temporary increase. In addition, employers may only request workers who have been issued an H-2B visa or otherwise granted H-2B status in FY 2021, 2022, or 2023, unless they are petitioning for workers under the 20,000 country-specific allocation.
The joint temporary final rule provisions pertaining to the 64,716 supplemental visas do not apply to petitions that are not subject to the H-2B cap, including those petitions filed for an H-2B extension of stay request or on behalf of certain fish roe processors. Those petitions may continue to be filed under the normal rules of the H-2B program.
The 64,716 visas are divided into the following allocations:
- For the first half of FY 2024 (Oct. 1 – March 31) 20,716 immediately available visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These petitions must request employment start dates on or before March 31, 2024;
- For the early second half of FY 2024 (April 1 to May 14) 19,000 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These early second half of FY 2024 petitions must request employment start dates from April 1, 2024, to May 14, 2024. Furthermore, employers must file these petitions no earlier than 15 days after the second half statutory cap is reached;
- For the late second half of FY 2024: (May 15 to Sept. 30) 5,000 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These late second half of FY 2024 petitions must request employment start dates from May 15, 2024, to Sept. 30, 2024. Furthermore, employers must file these petitions no earlier than 45 days after the second half statutory cap is reached; and
- For the entirety of FY 2024 20,000 visas reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) as attested by the petitioner, regardless of whether such nationals are returning workers. Employers requesting an employment start date in the first half of FY 2024 (on or before March 31, 2024) may file such petitions immediately on or after November 17, 2023. Employers requesting an employment start date in the second half of FY 2024 (on or after April 1, 2024) must file such petitions no earlier than 15 days after the second half statutory cap is reached.
| FY24 Supplemental Cap Allocations | Visas Available | Dates of Need (Start date) | When Petitioners May Start Filing |
|---|---|---|---|
| FY24 First Half Returning Worker Allocation | 20,716 | Oct. 1, 2023 – March 31, 2024 | Nov. 17, 2023 |
| FY24 Second Half Returning Worker Allocation #1 | 19,000 | April 1, 2024 – May 14, 2024 | 15 days after the second half statutory cap is reached |
| FY24 Second Half Returning Worker Allocation #2 (Late-Season Filers) | 5,000 | May 15, 2024 – Sept. 30, 2024 | 45 days after the second half statutory cap is reached |
| FY24 Country-Specific Allocation (available whole FY) | 20,000 | Oct. 1, 2023 – Sept. 30, 2024 | For start dates on or before March 31, 2024: Nov. 17, 2023 For start dates on or after April 1, 2024: 15 days after the second half statutory cap is reached |
There are 20,000 H-2B visas (from the 64,716 supplemental cap visas) that are reserved for FY 2024 for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica who are exempt from the returning worker requirement. Employers requesting an employment start date for such nationals in the first half of FY 2024 (on or before March 31, 2024) may file petitions on or after Nov. 17, 2023. Employers requesting an employment start date for such nationals in the second half of FY 2024 (on or after April 1, 2024) must file such petitions no earlier than 15 days after the second half statutory cap is reached.
USCIS will update the chart below as H-2B petitions for the FY 2024 country-specific allocation are received.
| FY24 Cap Allocation | Cap Amount | Beneficiaries Approved | Beneficiaries Pending | Total Beneficiaries¹ | Date of Last Count |
|---|---|---|---|---|---|
| H-2B: Country-Specific Allocation | 20,000 | 2,564 | 766 | 3,330 | 01/04/24 |
Note: The figures above are preliminary estimates and are only meant to give the public an approximate count of beneficiaries of H-2B visas who would be counted towards the country-specific allocation for FY 2024.
¹ Refers to the total number of beneficiaries of approved or pending petitions filed with USCIS that could potentially be counted towards this allocation. This number will typically exceed the actual cap to allow for withdrawals, denials, and approvals for which no visa is issued.
To assist U.S. businesses that need workers to begin work on different start dates, the supplemental visas will be distributed in several allocations, including two separate allocations for the second half of FY 2024. The “Allocation of Supplemental Visas” section above explains when employers can submit their petitions. All petitions requesting the additional H-2B visas made available for FY 2024 must be filed at the Texas Service Center.
To qualify for H-2B supplemental cap visas, petitioners must:
Meet all existing H-2B eligibility requirements (including obtaining an approved temporary labor certification [TLC] from DOL that is valid for the entire employment period stated on the petition). As a reminder, the employment start date on the petition must match the employment start date on the TLC, even if that date has passed;
If applicable, refresh recruitment for U.S. workers, as described in the temporary final rule (if Form I-129 is filed 30 or more days after the certified start date of work on the TLC); and
Submit an attestation on the DOL Form ETA 9142-B-CAA-8 in which the petitioner affirms, under penalty of perjury, that its business is suffering irreparable harm or will suffer impending irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employ returning workers only, unless the worker is eligible under the country-specific allocation. Please follow the DOL Form ETA 9142-B-CAA-8 Instructions when completing the attestation.
NOTE: USCIS will not accept the expired ETA 9142-B-CAA from FY 2017, ETA 9142-B-CAA-2 from FY 2018, ETA 9142-B-CAA-3 from FY 2019, ETA 9142-B-CAA-4 from FY 2021, ETA-9142-B-CAA-5 from the first half of FY 2022, ETA-9142-B-CAA-6 from the second half of FY 2022, or ETA-9142-B-CAA-7 from FY 2023. We will reject any petition that does not include the new ETA 9142-B-CAA-8 attestation form for FY 2024 (or a copy of this new form) but is seeking H-2B workers under this FY 2024 supplemental allocation.
Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is suffering irreparable harm or will suffer impending irreparable harm if they are unable to employ all the H-2B workers requested in their petition. Additionally, petitioners must attest that they have prepared and retained a detailed written statement describing how the evidence demonstrates irreparable harm or would demonstrate irreparable harm for those instances involving impending irreparable harm. The retention requirements under the rule require petitioners to retain evidence for a period of three years that the employer requested and/or instructed that each of the H-2B workers petitioned under this rule were issued H-2B visas or otherwise granted H-2B status in FY 2021, 2022, or 2023 unless the petition requests H-2B workers under the country-specific allocation, who are not subject to a returning worker requirement. Petitioners must provide the documentation if DHS or DOL request it, as well as fully cooperate with any compliance reviews such as audits. Both DHS and DOL intend to conduct a significant number of post-adjudication audits to ascertain compliance with the attestation requirements as well as key worker protection provisions implemented through this temporary final rule.
DHS will also subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. These measures are aimed at ensuring compliance with H-2B program requirements and obligations.
USCIS is implementing a change in the filing location for petitions filed under the supplemental allocations in this rule, with all such filings now to be filed at the Texas Service Center. On Nov. 1, 2023, USCIS changed the filing location for all H-2B petitions to the Texas Service Center. Although USCIS provided a 60-day grace period for H-2B petitions that were previously filed at the California and Vermont Service Centers during which such petitions could still be accepted at these locations (through Dec. 31, 2023), this grace period does not apply to petitions filed under the supplemental allocations in this rule. Petitions filed under the supplemental allocations in this rule at any location other than the Texas Service Center will be rejected and the filing fees will be returned.
Generally, the employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC. See 8 CFR 214.2(h)(6)(iv)(D). Petitions with employment start dates that do NOT match the TLC’s employment start date will be rejected and returned with fees. However, for purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed if the TLC is otherwise valid. USCIS may deny or reject a petition submitted without the required attestation.
H-2B petitions filed for the supplemental visa allocation may generally request unnamed workers, but such workers will be subject to the returning worker requirement or the limitation to nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica under the country-specific allocation.
A petition may be filed with only a single Form ETA 9142-B-CAA-8. A petitioner requesting both returning workers and workers under the country-specific allocation who are exempt from the returning worker requirement must do so on separate petitions.
On the Form ETA 9142-B-CAA-8, the petitioner must indicate the supplemental visa allocation under which H-2B nonimmigrant workers are requested. A petitioner must only indicate a single allocation and must only request workers who qualify for this allocation. If more than one box is checked or the petition is requesting workers who do not qualify for the requested allocation, USCIS may reject, or deny, or take other adverse action with respect to the petition.
If a petitioner files a petition seeking H-2B workers under this supplemental visa allocation and requests a change of status for a worker in the U.S., USCIS will deny the change of status request but will adjudicate the petition to determine eligibility for H-2B classification.
If USCIS approves the H-2B petition, the worker would need to obtain the H-2B visa, if applicable, at a consular post abroad before seeking admission to the U.S. in H-2B status at a port of entry. Check the Department of State processing times webpage to ensure that workers have sufficient time to apply for a visa.
USCIS will stop accepting petitions under this temporary final rule received after Sept. 16, 2024, or after the applicable cap has been reached, whichever occurs first. We will reject any petitions received after Sept. 16 or after the cap is reached, whichever is earlier. USCIS will deny all pending petitions not approved before Oct. 1, 2024, and will not refund any fees.
We will consider petitions requesting an employment start date after Sept. 30, 2024, towards the first half statutory FY 2025 H-2B cap, subject to all eligibility requirements for FY 2025 H-2B cap filings.
In addition to making additional visas available under the FY 2024 time-limited authority, DHS is exercising its general H-2B regulatory authority to temporarily extend portability flexibility that allows certain H-2B workers who are already in the United States to begin work with a new employer after USCIS receives the H-2B petition (supported by a valid temporary labor certification) filed on their behalf, and before the H-2B petition is approved. Portability enables certain H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. This effective extension of a current and temporary flexibility is available if a nonfrivolous H-2B petition requesting an extension of stay is received on or after Jan. 25, 2024, but no later than 1 year after that date.
Petitions filed to extend the stay of H-2B workers who are already in the U.S. as H-2B workers are not subject to the cap. Thus, petitioners requesting to have these current H-2B workers immediately work for them after they file their petition with USCIS and before the petition is approved, under the portability provision of the temporary final rule, are not subject to the irreparable harm requirement. These petitioners, who are only seeking portability flexibilities for cap-exempt workers, are also not required to conduct a fresh round of recruitment or to submit Form ETA 9142-B-CAA-8.
To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.