DHS and DOL Issue Temporary Rule to Allocate 64,716 Additional H-2B Visas for FY 2025

The U.S. Department of Homeland Security (DHS) and the Department of Labor (DOL) have introduced a temporary final rule (TFR) for the fiscal year (FY) 2025, which will provide 64,716 additional H-2B temporary nonagricultural worker visas. These supplementary visas are designed to assist U.S. employers struggling to find qualified domestic workers for seasonal or temporary positions in industries such as hospitality, tourism, landscaping, seafood processing, and other sectors reliant on nonagricultural labor.

The decision to allocate these visas follows previous years’ allocations under similar temporary rules, issued by DHS in coordination with DOL. These provisions were granted for fiscal years 2017 through 2024, based on the time-limited statutory authority granted by Congress for each fiscal year.

As Secretary of Homeland Security Alejandro N. Mayorkas explained, “There are employers across the country that would suffer greatly without H-2B workers. Authorizing these supplemental visas helps U.S. employers fill those positions. It helps fuel our economy and reduce irregular migration while also providing a safe and lawful pathway to the United States for noncitizens who are prepared to work.”

The allocation of the supplemental visas for FY 2025 is split into distinct categories aimed at addressing the needs of various employers across the country. A total of about 44,700 visas will be made available to returning workers who were granted an H-2B visa or held H-2B status during the fiscal years 2022, 2023, or 2024. These workers are eligible regardless of their country of nationality. Meanwhile, an additional 20,000 visas are specifically reserved for nationals of seven countries: Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras, who may be first-time or returning workers.

The distribution of the 64,716 visas is as follows:

1. First Half of FY 2025 (October 1, 2024, to March 31, 2025): 20,716 visas will be available exclusively to returning workers from the 2022, 2023, or 2024 visa years. Employers submitting petitions during this period must request employment start dates on or before March 31, 2025.
2. Early Second Half of FY 2025 (April 1, 2025, to May 14, 2025): A further 19,000 visas will be allotted, again limited to returning workers from the previous three fiscal years. These petitions must request start dates from April 1, 2025, to May 14, 2025.
3. Late Second Half of FY 2025 (May 15, 2025, to September 30, 2025): 5,000 visas will be available to returning workers. The employment start dates for these petitions must fall between May 15, 2025, and September 30, 2025.
4. Entirety of FY 2025: The remaining 20,000 visas will be set aside for nationals of the seven countries mentioned earlier, regardless of whether the workers are returning from previous years. Employers seeking H-2B workers during the first half of FY 2025 may file their petitions immediately after the publication of this TFR, while those requesting workers for the second half must wait until 15 days after the statutory cap for that period is reached.

To obtain these supplemental H-2B visas, employers must demonstrate that they are facing a potential for irreparable harm without the ability to employ the number of H-2B workers requested. As part of the application process, employers must also attest to the absence of available, willing, qualified, and ready U.S. workers for the positions in question. In addition, they must prove that hiring foreign workers will not negatively affect the wages and working conditions of U.S. workers.

Furthermore, protections for H-2B workers are a key part of this rule. DHS has outlined several provisions designed to prevent the exploitation and abuse of these workers. For example, employers who have violated labor laws in the past will face additional scrutiny during the petition process. This heightened review aims to ensure that employers comply with the program’s requirements and fulfill their obligations to the workers they hire.

On September 20, 2023, DHS published a notice of proposed rulemaking that seeks to modernize and improve both the H-2B and H-2A programs, with the intention of offering greater flexibility and enhanced protections for the workers involved.

The H-2B program, which has been in place for many years, allows employers in the U.S. to temporarily hire noncitizens to perform nonagricultural labor or services. To qualify for an H-2B worker, the employment must be for a temporary need—whether due to a one-time occurrence, peak load, seasonal need, or intermittent demand. The petitioner must show that their need for labor is temporary in nature, and that they have attempted to hire U.S. workers without success.

By issuing this temporary final rule, DHS and DOL aim to help meet the demand for temporary workers in essential industries, while also maintaining protections for both U.S. workers and foreign nationals. Secretary Mayorkas emphasized the economic importance of this allocation: “It helps fuel our economy and reduce irregular migration while also providing a safe and lawful pathway to the United States for noncitizens who are prepared to work.”

Employers hoping to hire H-2B workers under the FY 2025 supplemental cap must comply with these legal requirements, which include proving the unavailability of qualified U.S. workers and submitting the necessary attestations and certifications from DOL. These steps are crucial to ensuring that the H-2B program remains a viable option for employers who need to meet temporary labor needs while safeguarding the interests of domestic workers and foreign nationals alike.

In addition to the labor protections, DHS has committed to enforcing compliance with the regulations. The department will subject employers with past violations of labor laws in the H-2B program to stricter oversight to ensure that they meet all legal obligations related to wages, working conditions, and treatment of workers. These measures are part of a broader effort to strengthen worker protections under the H-2B program.

This temporary rule is part of the ongoing efforts by the U.S. government to manage temporary foreign labor in a way that supports economic growth, addresses labor shortages, and prevents abuse. While these supplemental visas are temporary, their impact on the U.S. economy and workforce is significant, offering employers the flexibility they need to address staffing shortages in critical industries.

Through these actions, the DHS and DOL aim to balance the needs of U.S. employers with the protection of workers, both domestic and foreign, ensuring that the H-2B program serves its intended purpose while maintaining a fair and lawful approach to temporary immigration.