On December 2, a Temporary Final Rule (TFR) from the Departments of Labor (DOL) and Homeland Security (DHS) to make an additional 64,716 H-2B visas available for Fiscal Year (FY) 2025, subject to certain conditions, took effect. This follows a November announcement from the Departments promising additional visas after U.S. Citizenship and Immigration Services (USCIS) stated, in September, that it had already reached the Congressionally-mandated visa cap for the first half of FY 2025 and would no longer accept H-2B visa applications for temporary work before April 1, 2025.
The H-2B visa program provides U.S. employers the opportunity to apply for visas to hire temporary workers to meet seasonal demand when the American labor supply is not available or sufficient. Under current law, Congress has set the H-2B cap at 66,000 visas per Fiscal Year, divided into two halves (33,000 each for October 1 – March 31 and April 1 – September 30) to ensure that temporary labor is available for different seasonal work. If the cap for the first half of the Fiscal Year is not reached the remaining visas roll over to the second half however, for the last few years, the number of visa petitions has significantly outnumbered each half cap. In FY 2025, the first half cap was reached approximately three weeks earlier than in FY 2024, demonstrating the growing labor supply issue for H-2B employers.
To address the increasing need for temporary workers, DHS and DOL have, in recent years, jointly issued temporary final rules providing for additional H-2B visas. Since FY 2017, this authority has been granted by Congress through appropriations language allowing for supplemental visas if it is determined that the needs of U.S. employers cannot be met by the available U.S. labor supply.
Though the gap between H-2B visa petitions and the FY cap continues to widen, the 64,716 additional H-2B visas made available by the TFR equal those made available under the Biden Administration in FY 2024. Just like FY 2024, 44,716 of the additional visas for FY 2025 will be available to returning workers who received an H-2B visa or were granted H-2B status during the previous three fiscal years. Further, from January 25, 2025 to January 24, 2026, workers present in the United States with H-2B status will be permitted to begin employment with a new employer after a petition has been filed for up to 60 days, rather than waiting for petition approval to start work. The remaining 20,000 supplemental visas are reserved for Colombian, Costa Rican, Ecuadorian, El Salvadorian, Guatemalan, Haitian and Honduran nationals. The visas will be divided into different allocations throughout FY 2025.
As in the past, employers seeking supplemental visas must attest to suffering or impending suffering from irreparable harm due to limited labor supply. Additionally, the TFR includes provisions to protect U.S. and H-2B workers, including scrutiny for employers that have committed labor law violations within the H-2B program.
For more information regarding supplemental H-2B visas and the Temporary Final Rule please visit the USCIS and DOL Office of Foreign Labor Certification (OFLC) webpages. OFLC will also be hosting a webinar on December 18 to update stakeholders on the process for filing H-2B applications with a start date of April 1, 2025, or later (use this link to access the webinar directly). Further, any TCIA members who wish to file for supplemental visas may download the irreparable harm attestation and submit a completed copy of the form to USCIS.
