Introduction

FY2022 is the seventh year in a row that Congress has enacted a special provision to allow for the issuance of H-2B visas beyond the annual statutory cap of 66,000. For FY2016, Congress exempted certain H-2B workers from the statutory cap. For the six most recent fiscal years (FY2017-FY2022), Congress authorized the Department of Homeland Security (DHS) to make additional H-2B visas available subject to certain conditions. DHS has exercised this authority in each of these years except FY2020. For FY2022, DHS has released a total of 55,000 supplemental H-2B visas.

H-2B Nonagricultural Worker Visa

The Immigration and Nationality Act (INA) of 1952, as amended,¹ enumerates categories of aliens,² known as nonimmigrants, who are admitted to the United States for a temporary period of time and a specific purpose. Nonimmigrant visa categories are identified by letters and numbers, based on the sections of the INA that established them.³ Among the major nonimmigrant visa categories is the "H" category for temporary workers. Included in this category is the H-2B visa for temporary nonagricultural workers.⁴

The H-2B program allows for the temporary admission of foreign workers to the United States to perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are not available. H-2B workers perform a wide variety of jobs. Top H-2B occupations in recent years have included landscaping worker, forest worker, housekeeper, amusement park worker, and meat cutter. By regulation, participation in the H-2B program is limited to designated countries, and DHS publishes a list of eligible countries each year.⁵

Bringing workers into the United States under the H-2B program is a multiagency process involving the U.S. Department of Labor (DOL), DHS, and the Department of State (DOS). The program itself is administered by DHS's U.S. Citizenship and Immigration Services (USCIS) and DOL's Employment and Training Administration (ETA). DOL's Wage and Hour Division (WHD) also has certain concurrent enforcement responsibilities. The H-2B program operates mainly under regulations issued by DHS in 2008 on H-2B requirements, by DHS and DOL jointly in 2015 on H-2B wages, and by DHS and DOL jointly in 2015 and 2019 on H-2B employment.⁶

For work to qualify as temporary under the H-2B visa under DHS regulations, the employer's need for the duties to be performed by the worker must "end in the near, definable future" and must be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.⁷ The employer's need for workers generally must be for a period of one year or less, but in the case of a one-time occurrence, can be for up to three years.

In order to bring H-2B workers into the United States, an employer must first receive labor certification from DOL. An interim final rule on H-2B employment that was issued jointly by DHS and DOL in April 2015 establishes a new registration requirement as a preliminary step in the labor certification process; once it is implemented, prospective H-2B employers would demonstrate their temporary need to DOL through this registration process before submitting a labor certification application. (As of the cover date of this report, however, the registration requirement has not been implemented, and DOL continues to make determinations about temporary need during the processing of labor certification applications.)⁸

At the same time that the employer submits the temporary labor certification application to DOL, the employer must submit a job order to the state workforce agency (SWA) serving the area of intended employment. The job order is used to recruit U.S. workers. The employer also must conduct its own recruitment.

In order to grant labor certification to an employer, DOL must determine that (1) there are not sufficient U.S. workers who are qualified and available to perform the work, and (2) the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. To prevent an adverse effect on U.S. workers, H-2B employers must offer and provide required wages and benefits to H-2B workers and workers in corresponding employment.⁹ H-2B employers must pay their workers the highest of the prevailing wage rate or the federal, state, or local minimum wage. They must provide a "three-fourths guarantee"; that is, they must guarantee to offer workers employment for at least three-fourths of the contract period.¹⁰ H-2B employers also must pay worker visa fees and certain worker transportation costs. They are not required to provide health insurance coverage.¹¹

After receiving labor certification, a prospective H-2B employer can submit an application, known as a petition, to DHS to bring in foreign workers. If the foreign workers are already in the United States, the employer can request a change of status to H-2B status on the petition. In the typical case, however, the workers are abroad. If the petition is approved, they can visit a U.S. embassy or consulate to apply for H-2B nonimmigrant visas from DOS. If the visa applications are approved, the workers are issued visas that they can use to apply for admission to the United States at a port of entry. H-2B workers can be accompanied by eligible spouses and children, who are issued H-4 visas.¹²

An alien's total period of stay as an H-2B worker may not exceed three consecutive years. An H-2B alien who has spent three years in the United States may not seek an extension of stay or be readmitted to the United States as an H-2B worker until he or she has been outside the country for at least three months.

The INA grants enforcement authority with respect to the H-2B program to DHS, but allows for the delegation of that authority to DOL.¹³ DHS has delegated that authority to DOL, and now DOL's WHD has responsibility for enforcing compliance with the conditions of an H‐2B petition and temporary labor certification.

Seafood Industry Staggered Entry Provision

As part of the labor certification process, prospective H-2B employers must indicate the starting and ending dates of their period of need for H-2B workers. According to the preamble to the 2015 DHS-DOL interim final rule on H-2B employment: "An application with an accurate date of need will be more likely to attract qualified U.S. workers to fill those open positions, especially when the employer conducts recruitment closer to the actual date of need."¹⁴ If within a season an employer has more than one date of need for workers to perform the same job, the employer must file a separate labor certification application for each date of need. The employer is not allowed to stagger the entry of H-2B workers based on one date of need.

There is an exception to this prohibition on the staggered entry of H-2B workers, however, that applies to employers in the seafood industry. First enacted as part of the Consolidated Appropriations Act, 2014,¹⁵ and subsequently incorporated into the 2015 DHS-DOL interim final rule on H-2B employment,¹⁶ this provision permits an employer in the seafood industry with an approved H-2B petition to bring in the H-2B workers under that petition any time during the 120 days beginning on the employer's starting date of need. In order to bring in the workers between day 90 and day 120, though, the employer must conduct additional U.S. worker recruitment. This provision has been reenacted in DOL appropriations acts for each year from FY2015 through FY2022.¹⁷

Numerical Limitations

The H-2B program is subject to an annual statutory numerical limit. Under the INA, as amended by the Immigration Act of 1990, the total number of aliens who may be issued H-2B visas or otherwise provided with H-2B nonimmigrant status in any fiscal year may not exceed 66,000.¹⁸ Since FY2006 there also has been a cap of 33,000 on the number of aliens subject to H-2B numerical limits who may enter the United States on an H-2B visa or be granted H-2B status during the first six months of a fiscal year.¹⁹ This INA amendment, enacted as part of the REAL ID Act of 2005, effectively divided the annual H-2B cap of 66,000 into two semiannual caps of 33,000, respectively covering work in the first and second halves of the fiscal year.²⁰

The intent of the semiannual caps was to establish "a fair allocation of visas." As explained in introductory remarks on a related Senate bill that included this same provision: "We reserve half of the visas for the winter and half for the summer. Allocating visas ensures that, until a long-term solution is reached, all employers will have an equal chance of getting the workers that they need."²¹ In practice, however, in times of high demand for H-2B workers, employers whose start dates of need do not fall early in a semiannual period may not have a chance to get workers. In a 2018 report, prepared in response to a congressional reporting requirement, DHS provided Congress with options to improve late season access to H-2B workers. Among the options presented were moving from semiannual to quarterly H-2B caps and giving preferential access to H-2B visas to employers in industries determined to be in the national interest.²²

Not all categories of H-2B workers are subject to the statutory cap. Certain categories are exempt, including the following:

• current H-2B workers seeking an extension of stay, change of employer, or change in the terms of employment;
• H-2B workers previously counted toward the cap in the same fiscal year;
• fish roe processors, fish roe technicians, and/or supervisors of fish roe processing;²³ and
• H-2B workers performing labor in the U.S. territories of the Commonwealth of the Northern Mariana Islands (CNMI) and/or Guam until December 31, 2029.

As noted, spouses and children who are accompanying H-2B workers are issued H-4 visas and, as such, are not counted against the H-2B cap.

Special H-2B Cap-Related Provisions

Legislation is regularly introduced in Congress concerning the H-2B cap. In the 116^th Congress, one such bill—the Labor, Health and Human Services, Education, Defense, State, Foreign Operations, and Energy and Water Development Appropriations Act, 2020 (H.R. 2740), as passed by the House—proposed to replace the current semiannual allocation of H-2B visas, as described above, with a type of quarterly allocation. In addition, in quarters in which requests for H-2B workers by employers (whose petitions met the requirements for approval) exceeded the availability of visas, H-2B visas would have been allocated proportionally among these employers.²⁴

H-2B cap-related bills introduced in the 117^th Congress include measures to establish exemptions from the statutory cap for workers engaged in certain types of work. For example, S. 2207 would exempt forestry workers engaged in specified activities from H-2B numerical limitations for five years. H.R. 401 would establish a permanent H-2B cap exemption for landscaping or groundskeeping workers. It proposes to do so by rewriting the existing statutory cap exemption for fish roe workers and supervisors (mentioned in the prior section of this report) to instead cover landscaping workers. Another bill (S. 495) would establish an occupation-neutral permanent cap exemption. It would exempt from the statutory cap an H-2B worker employed in a state with an unemployment rate below a specified level. Unlike the other two measures, S. 495 would place limits on the number of workers who could receive exemptions in any state.

Most H-2B cap-related bills introduced over the years, including the three 117^th Congress measures described above, have not seen legislative action beyond committee referral. There have been some temporary cap-related provisions, however, that have been enacted since 2005—in all cases as part of larger appropriations or other bills. These provisions, which authorized the issuance of H-2B visas and/or the granting of H-2B status beyond the statutory cap, have been of two main types.

Returning Worker Exemptions

The INA was amended during the 109^th Congress to add a provision establishing a temporary exemption from the H-2B statutory cap for certain H-2B returning workers. The provision, initially in effect for FY2005 and FY2006, exempted from the cap persons who were returning to the United States as H-2B workers and had been counted against the cap in any one of the three prior fiscal years.²⁵ This H-2B returning worker provision was subsequently extended for FY2007,²⁶ and expired at the end of that fiscal year.²⁷ An H-2B returning worker exemption of the same type was reinstated for FY2016. It provided that an H-2B returning worker who had been counted against the statutory cap in FY2013, FY2014, or FY2015 would not be counted again in FY2016.²⁸ Several bills have been introduced in the 117^th Congress to enact a permanent H-2B returning worker exemption from the statutory cap.²⁹

Provisions Authorizing Additional H-2B Visas

From FY2017 to FY2022, a different type of H-2B cap-related provision was enacted. In each of these years, provisions in year-end omnibus appropriations laws authorized DHS to make additional H-2B visas available beyond the statutory cap after consultation with DOL and "upon the determination that the needs of American businesses cannot be satisfied" with available U.S. workers. Under these provisions, the number of additional workers who could receive H-2B visas annually was limited to "not more than the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program in any fiscal year in which returning workers were exempt from such numerical limitation."³⁰

DHS and DOL jointly published final rules to implement these provisions for each year except FY2020. Regarding implementation of the FY2020 provision, DHS announced on March 5, 2020, that it would release 35,000 supplemental H-2B visas. It had planned to designate 10,000 of these visas for nationals of the Latin American Northern Triangle countries of Guatemala, El Salvador, and Honduras "in support of these countries efforts to work with the U.S. to stem the flow of illegal migration in the region and encourage lawful migration to the United States."³¹ DHS, however, never exercised this authority.³²

Common Elements of Implementing Rules

As detailed below, there are various differences among the final rules implementing the statutory provisions authorizing DHS, after consultation with DOL, to make supplemental H-2B visas available. For example, the authorized number of supplemental visas has differed. Certain elements, however, that were first described in connection with the rule implementing the FY2017 provision have remained the same in the subsequent rules issued by the Trump and Biden Administrations. These commonalities have included the limitation of the supplemental numbers to H-2B workers issued visas, the interpretation of the statutory maximum number of visas, and the requirement that employers seeking supplemental visas submit an attestation evidencing irreparable harm.

In the preambles to the FY2017 rule and each subsequent rule, DHS explained that the statutory provision applied only to H-2B workers entering the United States on visas and not to persons in the United States who were seeking a change of status to H-2B status.³³

DHS acknowledged in the preamble to the FY2017 rule that the statutory definition of the maximum authorized number (i.e., "the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program in any fiscal year") could be interpreted in different ways. It determined, however, that 64,716 was the most appropriate maximum number of additional H-2B visas authorized under the statutory provision, this being "the number of beneficiaries covered by H–2B returning worker petitions that were approved for FY 2007."³⁴ All subsequent rules have likewise cited 64,716 as the statutorily allowable maximum.

In implementing the FY2017 statutory provision, DHS decided to limit eligibility for the additional H-2B workers to certain U.S. businesses. The FY2017 rule required each prospective H-2B employer to submit to DHS, along with the H-2B petition, a new attestation form "evidencing that without the ability to employ all of the H–2B workers requested on the petition ... its business is likely to suffer irreparable harm (that is, permanent and severe financial loss)."³⁵ Each subsequent rule has included a version of this requirement.

FY2017 Rule

In July 2017, DHS and DOL jointly published a final rule to implement the FY2017 provision. The rule temporarily amended DHS regulations on the H-2B visa to state that for FY2017, DHS "has authorized up to an additional 15,000 aliens who may receive H–2B nonimmigrant visas."³⁶

The preamble to the rule included the following explanation for limiting the FY2017 numerical increase to 15,000:

Most recently, in FY 2016, 18,090 returning workers were approved for H–2B petitions, despite Congress having reauthorized the returning worker program with more than three-quarters of the fiscal year remaining. Of those 18,090 workers authorized for admission, 13,382 were admitted into the United States or otherwise acquired H–2B status.... [T]he Secretary, in consideration of the statute's reference to returning workers, determined that it would be appropriate to use these recent figures as a basis for the maximum numerical limitation under section 543. This rule therefore authorizes up to 15,000 additional H–2B visas (rounded up from 13,382) for FY 2017.³⁷

FY2018 Rule

In May 2018, DHS and DOL jointly published a final rule to implement the FY2018 H-2B cap-related provision.³⁸ The FY2018 rule temporarily amended DHS H-2B regulations to authorize the issuance of up to 15,000 additional H–2B visas.³⁹ In the preamble to the FY2018 rule, DHS explained its decision to authorize up to 15,000 additional visas despite the fact that all 15,000 additional visas authorized in FY2017 were not used.

Out of a maximum of 15,000 supplemental H–2B visas for FY 2017, a total of 12,294 beneficiaries were approved for H–2B classification.... [T]he Secretary has determined that it is appropriate to authorize 15,000 additional visas again, as employers will have a longer period in which to submit their petitions due to the earlier publication date of this rule, thereby allowing for the possibility of more petitions being filed this fiscal year than in FY 2017.⁴⁰

FY2019 Rule

In May 2019, DHS and DOL jointly published a final rule to implement the FY2019 provision.⁴¹ The FY2019 rule temporarily amended DHS H-2B regulations to authorize the issuance of up to 30,000 additional H–2B visas.⁴² DHS explained this decision as follows:

In setting the number of additional H–2B visas to be made available during FY 2019, DHS considered this number [i.e., 64,716], overall indications of increased need, and the time remaining in FY 2019, and determined that it would be appropriate to limit the supplemental cap to approximately half of the highest number for returning workers, or up to 30,000.⁴³

The FY2019 rule imposed a limitation not applicable under the FY2017 or FY2018 rules. It stipulated that an employer could request supplemental visas only for H-2B workers "who were issued H–2B visas or were otherwise granted H–2B status in Fiscal Years 2016, 2017, or 2018."⁴⁴ DHS offered the following rationale for limiting the additional visas to these H-2B returning workers:

Such workers (i.e., those who recently participated in the H–2B program) have previously obtained H– 2B visas and therefore been vetted by DOS, would have departed the United States after their authorized period of stay as generally required by the terms of their nonimmigrant admission, and therefore may obtain their new visas through DOS and begin work more expeditiously.⁴⁵

The preamble to the rule highlighted the importance, in particular, of returning workers' proven "willingness to return home after they have completed their temporary labor or services or their period of authorized stay."⁴⁶ It stated:

The returning workers condition therefore provides a basis to believe that H–2B workers under this cap increase will likely return home again after another temporary stay in the United States. That same basis does not exist for non-returning workers, not all of whom have a track record of returning home. Although the returning worker requirement limits the flexibility of employers, the requirement provides an important safeguard, which DHS deems paramount.⁴⁷

FY2021 Rule

In May 2021, DHS and DOL jointly published a final rule to implement the FY2021 provision.⁴⁸ In the preamble, DHS explained that, despite the COVID–19 public health emergency, it thought it was "appropriate to increase the H–2B cap coupled with additional protections."⁴⁹ The FY2021 rule temporarily amended DHS H-2B regulations to authorize the issuance of up to 22,000 additional H–2B visas.⁵⁰ DHS characterized this decision as the product of "a balancing of a number of factors," among them "the demand for H-2B visas for the second half of FY 2021; current economic conditions; the increased demand for supplemental visas from FY2017 to FY 2019; H–2B returning worker data;" and congressional concern about "the unavailability of H–2B visas for late-season employers."⁵¹

In a change from prior rules, the FY2021 rule's 22,000 supplemental visas were divided into two separate allocations. One allocation (of 16,000 visas) was limited to H-2B returning workers. The rule defined these workers as persons issued H–2B visas or otherwise granted H–2B status in FY2018, FY2019, or FY2020.⁵²

The remaining 6,000 visas comprised a separate allocation, which was reserved for nationals of Guatemala, El Salvador, and Honduras.⁵³ As noted, DHS had planned to set aside supplemental H-2B visas for these Northern Triangle countries in FY2020 but did not end up authorizing any supplemental visas that year. In the preamble to the FY2021 rule, DHS discussed its reasons for choosing the number 6,000, describing it as "a number significantly higher than the average annual number of visas issued to such persons in the past 6 fiscal years."⁵⁴ According to DHS, this set-aside

will encourage U.S. employers who face a likelihood of irreparable harm to seek out workers from such countries, while, at the same time, increase interest among nationals of the Northern Triangle countries seeking temporary employment in the United States.⁵⁵

The 6,000 visas allocated for the Northern Triangle under the FY2021 rule were not subject to the returning worker requirement. The rule required, however, that petitions for these visas be received by July 8, 2021. After that date, any remaining visas would be made available to H-2B returning workers of any nationality eligible to participate in the H-2B program.

The FY2021 rule included more expansive employer attestation requirements than its predecessors. In addition to evidencing that without the requested H-2B workers its business was likely to suffer irreparable harm, an employer seeking supplemental visas had to attest that it would "comply with all Federal, State, and local employment-related laws and regulations, including health and safety laws and laws related to COVID–19 worker protections" and would "fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL,"⁵⁶ among other items.

FY2022 Rule

DHS and DOL jointly published two FY2022 final rules to exercise authority to make supplemental H-2B visas available for both the first and second halves of the fiscal year. This marked the first time that DHS had authorized supplemental H-2B visas for the first half of a fiscal year.

The first FY2022 rule was published in January 2022.⁵⁷ It temporarily amended DHS H-2B regulations to authorize the issuance of up to 20,000 additional H–2B visas based on petitions requesting employment start dates on or before March 31, 2022 (the last day of the first half of FY2022). As under the FY2021 rule, the supplemental visas were divided into two separate allocations: 13,500 visas for returning workers who had been issued an H-2B visa or granted H-2B status in FY2019, FY2020, or FY2021; and 6,500 visas for nationals of the Northern Triangle countries or Haiti.⁵⁸ Also consistent with the FY2021 rule, the latter allocation was not subject to a returning-worker requirement.

The second FY2022 rule, which was issued in May 2022, again temporarily amended DHS regulations, in this case to authorize the issuance of up to 35,000 additional H-2B visas.⁵⁹ As under the first FY2022 rule, there were two separate allocations: 23,500 visas for returning workers who had been issued an H-2B visa or granted H-2B status in FY2019, FY2020, or FY2021; and 11,500 visas for nationals of the Northern Triangle countries or Haiti, which was not subject to a returning-worker requirement.⁶⁰ Notably, unlike the FY2021 rule, neither of the FY2022 rules provided for any unused visas in the allocation for the Northern Triangle and Haiti to be made available for returning workers.

Like its predecessors, the FY2022 rules included attestation requirements, including one concerning irreparable harm. As discussed, under the prior rules, an employer petitioning for H-2B workers under the supplemental allocations had to attest that without the ability to employ the requested workers, its business was likely to suffer irreparable harm (see the "Common Elements of Implementing Rules" section). The FY2022 rules revised this language to require an employer to attest instead that "its business is suffering irreparable harm or will suffer impending irreparable harm ... without the ability to employ all of the H–2B workers requested."⁶¹ According to the preamble to the first FY2022 rule

This change is designed to focus more directly on the actual irreparable harm employers are suffering or the impending irreparable harm they will suffer as a result of their inability to employ H–2B workers, rather than on just the possibility of such harm.⁶²

This preamble also noted that ''the 'likely to suffer irreparable harm' standard has been difficult to assess and administer in the context of prior supplemental cap rules."⁶³ The FY2022 attestation requirements otherwise mirrored those in the FY2021 rule.

Implementation of H-2B Numerical Limits

USCIS is responsible for implementing the numerical limits on the H-2B visa, which it does at the petition receipt stage. Under DHS regulations

When calculating the numerical limitations ... USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the date that USCIS has received the necessary number of petitions (the "final receipt date").⁶⁴

The regulations provide for the use of random selection procedures (lotteries) "when necessary to ensure the fair and orderly allocation of numbers subject to the numerical limitations." Under the regulations, "USCIS may randomly select from among the petitions received on the final receipt date the remaining number of petitions deemed necessary to generate the numerical limit of approvals." The regulations also direct USCIS to use random selection procedures when the final receipt date (the date on which the applicable H-2B cap is reached) falls on one of the first five business days on which petitions subject to the cap can be filed. In such a case, "USCIS will randomly apply all of the numbers among the petitions received on any of those five business days."⁶⁵

In one recent year, the final receipt date announced by USCIS ended up being too early. For FY2015, USCIS announced on April 2, 2015, that March 26, 2015, was the final receipt date for new H-2B petitions. The agency had accepted about 3,900 H-2B petitions for FY2015 through March 26, 2015, which it believed to be sufficient to reach the annual 66,000 cap. In early June 2015, however, USCIS announced that it would reopen the H-2B cap for the second half of FY2015 and accept additional petitions for new H-2B workers. It offered the following public explanation:

USCIS continues to work in collaboration with DOS to monitor the issuance of H-2B visas and has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas. A recent analysis of DOS H-2B visa issuance and USCIS petition data reveals that the number of actual H-2B visas issued by DOS is substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS has determined that there are still available H-2B visa numbers remaining for the second half of the FY15 cap.⁶⁶

Following a brief reopening, USCIS announced that June 11, 2015, was the final receipt date for new H-2B worker petitions for FY2015.

Since FY2015, the semiannual cap of 33,000 has been reached in each half of the fiscal year. Employer demand has been particularly strong for H-2B visas for the second half of the year (for employment beginning April 1 to September 30), with the final receipt date for new H-2B worker petitions falling in March in FY2017⁶⁷ and in February in each year from FY2018 to FY2022.⁶⁸

Developments Since FY2018

Employer demand for H-2B workers has reached new heights since FY2018, especially in the second half of the fiscal year. This growth has particularly impacted DOL, which does not cut off labor certification application processing once DHS determines that the H-2B cap has been reached.

For FY2018, in accordance with H-2B regulations, January 1, 2018, was the first date that employers could submit H-2B temporary labor certifications to DOL requesting a work start date of April 1, 2018 (the first start date in the second half of FY2018). On January 1, DOL received about 4,498 applications requesting an April 1 start date; those applications covered 81,008 workers. In response, DOL announced a change in its procedures. It indicated in a Federal Register notice that it would not begin releasing certified H–2B applications, which employers need in order to petition USCIS for H-2B workers (see the "H-2B Nonagricultural Worker Visa" section), until February 20, 2018, and on that date, it would issue such certified applications in order of receipt.⁶⁹ DOL offered the following explanation for adopting this procedure:

This process change will allow employers who filed promptly on January 1, 2018, sufficient time to meet regulatory requirements, including the recruitment and hiring of qualified and available U.S. workers, thus preserving the sequential order of filing that took place on January 1, 2018, to the extent possible.⁷⁰

On March 1, 2018, USCIS announced that in the first five business days of accepting H-2B petitions for the second half of FY2018, it had received petitions requesting about 47,000 cap-subject H-2B workers, more than could be accommodated under the 33,000 limitation for the second half of FY2018. This was the first time that the final receipt date for H-2B petitions had ever fallen within the first five days of filing, thus triggering a lottery to randomly select a sufficient number of these petitions to meet the statutory cap.⁷¹

As discussed, on May 31, 2018, USCIS published a final rule authorizing the issuance of up to 15,000 additional H–2B visas for FY2018. In the first five business days of accepting petitions under this supplemental cap, USCIS received petitions for more beneficiaries than the number of H-2B visas available. As a result, it conducted a second FY2018 H-2B lottery on June 7, 2018, to randomly select a sufficient number of petitions to meet the supplemental cap.⁷²

Demand for H-2B workers continued to increase in FY2019. January 1, 2019, was the first day that employers could file H-2B labor certification applications for the second half of FY2019. On January 2, 2019, DOL announced that due to high demand its iCERT online application filing system had "experienced a system disruption" on January 1, 2019, that prevented some employers from submitting their H-2B certification applications: "Within the first five minutes of opening the semi-annual H-2B certification process on January 1, 2019, the U.S. Department of Labor iCERT system had an unprecedented demand for H-2B certifications with more than 97,800 workers requested in pending applications for the 33,000 available visas."⁷³ When the system reopened on January 7, 2019, it "handled the submission of approximately 4,749 H-2B applications covering more than 87,900 workers positions for an April 1, 2019, start date of work within the first one hour of operation."⁷⁴

Revised DOL Procedures

In February 2019, in light of its experience with H-2B submissions in January 2019 and the resulting unanticipated "burdens" placed on "its electronic filing system, network infrastructure, and staff resources," DOL announced new H-2B temporary labor certification application processing changes for FY2020.⁷⁵ It indicated that beginning with H-2B certification applications for the first half of FY2020, it would randomly order and assign for processing all applications submitted within designated groups. The first group would consist of applications requesting the earliest start date of work (e.g., October 1, 2019, for the first half of FY2020) and filed during the first three calendar days of the filing period (e.g., July 3-5, 2019, for the first half of FY2020). DOL maintained that this new process "balances employers' interest in utilizing the H-2B program with OFLC's [DOL's Office of Foreign Labor Certification's] interest in ensuring that access to its filing system is equitable and occurs with no user disruption."⁷⁶

These new DOL procedures took effect on July 3, 2019, the earliest filing date for the first half of FY2020. In the first three filing days, DOL received 493 H-2B labor certification applications requesting a work start date of October 1, 2019. These applications covered 12,098 worker positions, less than the 33,000 semiannual H-2B allotment for the first half of FY2020. DOL assigned all the applications to Group A for processing.⁷⁷

During the first three filing days for the second half of FY2020 (January 2-4, 2020), DOL received 5,677 H-2B labor certification applications requesting the earliest work start date of April 1, 2020. These applications covered 99,362 worker positions. DOL randomly assigned these applications to assignment groups in accordance with its new procedures. It reported that Group A included a sufficient number of workers to reach the 33,000 allotment for the second half of FY2020. It also indicated that it had randomly assigned the remaining applications to four other groups (Groups B-E), each including no more than 20,000 worker positions.⁷⁸

This same pattern of labor certification filing and group assignment continued for FY2021, FY2022, and the first half of FY2023⁷⁹ with the number of requested positions for the earliest work start date falling below the semiannual cap for the first half of the fiscal year (and associated applications all being assigned to the same group) and exceeding the cap for the second half (and associated applications being randomly assigned to multiple groups). Filings for FY2022 provide an example. For the first half of FY2022, DOL received 873 H-2B applications requesting 21,116 worker positions during the initial three-day filing window (July 3-5, 2021) with an October 1, 2021, work start date. For the second half of FY2022, DOL received 7,875 H-2B applications requesting 136,555 worker positions during the initial three-day filing window (January 1-3, 2022) with an April 1, 2022, start date.⁸⁰

Data on Grants of H-2B Status

In any year, most, but not all, foreign nationals who obtain H-2B status acquire that status through admission to the United States on H-2B visas. Those who obtain H-2B status but are not issued visas include H-2B workers who are admitted to the United States without visas (mostly Canadians) and individuals who change to H-2B status while in the United States.⁸¹ Regarding the latter category, USCIS data show that about 1,900 persons in FY2006 and about 2,200 in FY2007 were approved for a change to H-2B status; since then, from FY2008 to FY2021, the number of individuals approved for a change to H-2B status each year ranged from about 110 (in FY2017) to about 700 (in FY2021).⁸²

H-2B Visa Issuances

Figure 1 provides data on H-2B visa issuances from FY1992 through FY2021. These data offer one way to measure the growth of the H-2B program over the years. As explained above, the visa application and issuance process occurs after DOL has granted labor certification and DHS has approved the visa petition.

Figure 1. H-2B Visas Issued, FY1992-FY2021

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.

As illustrated in Figure 1, the number of H-2B visas issued generally increased from FY1992 until FY2007, when H-2B visa issuances reached a highpoint of 129,547 (see the Appendix for yearly visa issuance data). H-2B visa issuances fell after FY2007 with the start of the economic recession, but, as shown in Figure 1, have generally been increasing since FY2009.

In FY2005-FY2007 and FY2016-FY2021, as discussed, temporary provisions authorized visa issuances above the statutory annual cap of 66,000. In some other years in which visa issuances surpassed 66,000, it seems reasonable to assume that the H-2B cap was exceeded given the magnitude of the numbers.⁸³

Conclusion

With employer demand for H-2B visas exceeding supply, H-2B admissions and the statutory cap are once again receiving attention from policymakers. While previous Congresses considered broad immigration reform bills that included proposals for new temporary worker programs to address any perceived shortfalls in the supply of foreign workers, any legislative efforts to address the numerical limitations on nonagricultural guest workers in the near term seem likely to be focused on the existing H-2B program.

Appendix. H-2B Visa Issuances