60-day Federal Register Notice (1205-0547) published

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2689–21]
RIN 1615–AC72

DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Part 655
[DOL Docket No. ETA–2021–0005]
RIN 1205–AC07

Exercise of Time-Limited Authority To
Increase the Fiscal Year 2021
Numerical Limitation for the H–2B
Temporary Nonagricultural Worker
Program and Portability Flexibility for
H–2B Workers Seeking To Change
Employers
U.S. Citizenship and
Immigration Services (USCIS),
Department of Homeland Security
(DHS) and Employment and Training
Administration and Wage and Hour
Division, U.S. Department of Labor
(DOL).
ACTION: Temporary rule.
AGENCY:

The Secretary of Homeland
Security, in consultation with the
Secretary of Labor, is exercising his
time-limited Fiscal Year (FY) 2021
authority and increasing the numerical
limitation on H–2B nonimmigrant visas
to authorize the issuance of no more
than 22,000 additional visas through the
end of the second half of FY 2021 to
those businesses likely to suffer
irreparable harm, as attested by the
employer on a new attestation form. In
addition to making additional visas
available under the FY 2021 timelimited authority, DHS is exercising its
general H–2B regulatory authority to
temporarily provide portability
flexibility by allowing H–2B workers
who are already in the United States to
begin work immediately after an H–2B
petition (supported by a valid temporary
labor certification) is received by USCIS,
and before it is approved.
DATES: The amendments to title 8 of the
Code of Federal Regulations in this rule
are effective from May 25, 2021 through
May 28, 2024, although DHS will not
approve any H–2B petition under the
provisions related to the supplemental
numerical allocation after September 30,
2021, and the provisions related to
portability are only available to
petitioners and H–2B nonimmigrant
workers initiating employment through

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SUMMARY:

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the end of November 22, 2021. The
amendments to title 20 of the Code of
Federal Regulations in this rule are
effective from May 25, 2021 through
September 30, 2021, except for 20 CFR
655.68 which is effective from May 25,
2021 through September 30, 2024.
The Office of Foreign Labor
Certification within the U.S. Department
of Labor will be accepting comments in
connection with the new information
collection Form ETA–9142B–CAA–4
associated with this rule until July 26,
2021.
ADDRESSES: You may submit written
comments on the new information
collection Form ETA–9142B–CAA–4,
identified by Regulatory Information
Number (RIN) 1205–AC07 electronically
by the following method:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions on the website for
submitting comments.
Instructions: Include the agency’s
name and the RIN 1205–AC07 in your
submission. All comments received will
become a matter of public record and
will be posted without change to http://
www.regulations.gov. Please do not
include any personally identifiable
information or confidential business
information you do not want publicly
disclosed.
FOR FURTHER INFORMATION CONTACT:

Regarding 8 CFR parts 214 and 274a:
Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD
20746; telephone 240–721–3000 (not a
toll-free call).
Regarding 20 CFR part 655 and Form
ETA–9142B–CAA–4: Brian D.
Pasternak, Administrator, Office of
Foreign Labor Certification,
Employment and Training
Administration, Department of Labor,
200 Constitution Ave NW, Room N–
5311, Washington, DC 20210, telephone
(202) 693–8200 (this is not a toll-free
number).
Individuals with hearing or speech
impairments may access the telephone
numbers above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Legal Framework
B. H–2B Numerical Limitations Under the
INA
C. FY 2021 Omnibus

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D. Joint Issuance of the Final Rule
III. Discussion
A. Statutory Determination
B. Numerical Increase and Allocation of up
to 22,000 Visas
C. Returning Workers
D. Returning Worker Exemption for up to
6,000 Visas for Nationals of Guatemala,
El Salvador, and Honduras (Northern
Triangle Countries)
E. Business Need Standard—Irreparable
Harm and FY 2021 Attestation
F. Portability
G. COVID–19 Worker Protections
H. DHS Petition Procedures
I. DOL Procedures
IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act
B. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act of 1995
E. Small Business Regulatory Enforcement
Fairness Act of 1996
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice
Reform)
H. Congressional Review Act
I. National Environmental Policy Act
J. Paperwork Reduction Act

I. Executive Summary
FY 2021 H–2B Supplemental Cap
With this temporary final rule (TFR),
the Secretary of Homeland Security,
following consultation with the
Secretary of Labor, is authorizing the
immediate release of an additional
22,000 H–2B visas through the end of
FY 2021, subject to certain conditions.
The 22,000 visas are divided into two
allocations, as follows:
• 16,000 visas limited to returning
workers, regardless of country of
nationality, in other words, those
workers who were issued H–2B visas or
held H–2B status in fiscal years 2018,
2019, or 2020; and
• 6,000 visas initially reserved for
nationals of the Northern Triangle
countries as attested by the petitioner
(regardless of whether such nationals
are returning workers). However, if all
6,000 visas reserved for nationals of the
Northern Triangle countries are not
allocated by July 8, 2021, USCIS will
announce by July 23, 2021, on its
website, that such unused Northern
Triangle country visas will be made
available to employers regardless of the
beneficiary’s country of nationality,
subject to the returning worker
limitation.
To qualify for the FY 2021
supplemental cap, eligible petitioners
must:
• Meet all existing H–2B eligibility
requirements, including obtaining an
approved temporary labor certification

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
(TLC) from DOL before filing the Form
I–129, Petition for Nonimmigrant
Worker, with USCIS;
• Submit an attestation affirming,
under penalty of perjury, that the
employer will likely suffer irreparable
harm if it cannot employ the requested
H–2B workers, and that it is seeking to
employ returning workers only, unless
the H–2B worker is a Northern Triangle
national and counted towards the 6,000
cap (during such time as when the
Northern Triangle cap reservation
allocation is applicable); and
• Agree to comply with all applicable
labor and employment laws, including
health and safety laws pertaining to
COVID–19, as well as any rights to time
off or paid time off to obtain COVID–19
vaccinations, and notify the workers in
a language understood by the worker, as
necessary or reasonable, of equal access
of nonimmigrants to COVID–19
vaccines and vaccination distribution
sites.
Employers filing an H–2B petition 45
or more days after the certified start date
on the TLC, must attest to engaging in
the following additional steps to recruit
U.S. workers:
• No later than 1 business day after
filing the petition, place a new job order
with the relevant State Workforce
Agency (SWA) for at least 15 calendar
days;
• Contact the nearest American Job
Center serving the geographic area
where work will commence and request
staff assistance in recruiting qualified
U.S. workers;
• Contact the employer’s former U.S.
workers, including those the employer
furloughed or laid off beginning on
January 1, 2019, and until the date the
H–2B petition is filed, disclose the
terms of the job order and solicit their
return to the job;
• Provide written notification of the
job opportunity to the bargaining
representative for the employer’s
employees in the occupation and area of
employment, or post notice of the job
opportunity at the anticipated worksite
if there is no bargaining representative;
and
• Hire any qualified U.S. worker who
applies or is referred for the job
opportunity until the later of either (1)
the date on which the last H–2B worker
departs for the place of employment, or
(2) 30 days after the last date of the SWA
job order posting.
Petitioners filing H–2B petitions
under the FY 2021 supplemental cap
must retain documentation of
compliance with the attestation
requirements for 3 years from the date
the TLC was approved, and must
provide the documents and records

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upon the request of DHS or DOL, 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 of this TFR.
Falsifying information in attestation(s)
can result not only in penalties relating
to perjury, but can also result in, among
other things, a finding of fraud or willful
misrepresentation; denial or revocation
of the H–2B petition requesting
supplemental workers; debarment by
DOL and DHS from the H–2 program;
and may subject petitioner/employer to
other criminal penalties.
The authority to approve H–2B
petitions under the FY 2021
supplemental cap expires on September
30, 2021.
H–2B Portability
In addition to exercising time limited
authority to make additional H–2B visas
available in FY 2021, DHS is providing
additional flexibilities to H–2B
petitioners under its general
programmatic authority by allowing
nonimmigrant workers in the United
States in valid H–2B status to begin
work with a new employer after an H–
2B petition (supported by a valid TLC)
is filed and before the petition is
approved generally for a period of up to
60 days. However, such employment
authorization would end 15 days after
USCIS denies the H–2B petition or such
petition is withdrawn. This H–2B
portability ends 180 days after the
effective date of this rule, in other
words, after the date this rule is
published in the Federal Register.
II. Background
A. Legal Framework
The Immigration and Nationality Act
(INA), as amended, establishes the H–2B
nonimmigrant classification for a
nonagricultural temporary worker
‘‘having a residence in a foreign country
which he has no intention of
abandoning who is coming temporarily
to the United States to perform . . .
temporary [non-agricultural] service or
labor if unemployed persons capable of
performing such service or labor cannot
be found in this country.’’ INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Employers must
petition the Department of Homeland
Security (DHS) for classification of
prospective temporary workers as H–2B
nonimmigrants. INA section 214(c)(1), 8
U.S.C. 1184(c)(1). Generally, DHS must
approve this petition before the
beneficiary can be considered eligible
for an H–2B visa. In addition, the INA

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requires that ‘‘[t]he question of
importing any alien as [an H–2B]
nonimmigrant . . . in any specific case
or specific cases shall be determined by
[DHS],1 after consultation with
appropriate agencies of the
Government.’’ INA section 214(c)(1), 8
U.S.C. 1184(c)(1). The INA generally
charges the Secretary of Homeland
Security with the administration and
enforcement of the immigration laws,
and provides that the Secretary ‘‘shall
establish such regulations . . . and
perform such other acts as he deems
necessary for carrying out his authority’’
under the INA. See INA section
103(a)(1), (3), 8 U.S.C. 1103(a)(1), (3);
see also 6 U.S.C. 202(4) (charging the
Secretary with ‘‘[e]stablishing and
administering rules . . . governing the
granting of visas or other forms of
permission . . . to enter the United
States to individuals who are not a
citizen or an alien lawfully admitted for
permanent residence in the United
States’’). With respect to nonimmigrants
in particular, the INA provides that
‘‘[t]he admission to the United States of
any alien as a nonimmigrant shall be for
such time and under such conditions as
the [Secretary] may by regulations
prescribe.’’ INA section 214(a)(1), 8
U.S.C. 1184(a)(1); see also INA section
274A(h)(1) and (3), 8 U.S.C. 1324a(h)(1)
and (3) (prohibiting employment of
noncitizen 2 not authorized for
employment). The Secretary may
designate officers or employees to take
and consider evidence concerning any
matter which is material or relevant to
the enforcement of the INA. INA
sections 287(a)(1), (b), 8 U.S.C.
1357(a)(1), (b) and INA section
235(d)(3), 8 U.S.C. 1225(d)(3).
Finally, under section 101 of HSA, 6
U.S.C. 111(b)(1)(F), a primary mission of
DHS is to ‘‘ensure that the overall
economic security of the United States
is not diminished by efforts, activities,
and programs aimed at securing the
homeland.’’
DHS regulations provide that an H–2B
petition for temporary employment in
the United States must be accompanied
by an approved TLC from the U.S.
1 As of March 1, 2003, in accordance with section
1517 of Title XV of the Homeland Security Act of
2002 (HSA), Public Law 107–296, 116 Stat. 2135,
any reference to the Attorney General in a provision
of the Immigration and Nationality Act describing
functions which were transferred from the Attorney
General or other Department of Justice official to the
Department of Homeland Security by the HSA
‘‘shall be deemed to refer to the Secretary’’ of
Homeland Security. See 6 U.S.C. 557 (2003)
(codifying HSA, Title XV, sec. 1517); 6 U.S.C. 542
note; 8 U.S.C. 1551 note.
2 For purposes of this discussion, the
Departments use the term ‘‘noncitizen’’ colloquially
to be synonymous with the term ‘‘alien’’ as it is
used in the Immigration and Nationality Act.

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Department of Labor (DOL), issued
pursuant to regulations established at 20
CFR part 655, or from the Guam
Department of Labor if the workers will
be employed on Guam. 8 CFR
214.2(h)(6)(iii)(A) and (C) through (E),
(h)(6)(iv)(A); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). The TLC
serves as DHS’s consultation with DOL
with respect to whether a qualified U.S.
worker is available to fill the petitioning
H–2B employer’s job opportunity and
whether a foreign worker’s employment
in the job opportunity will adversely
affect the wages and working conditions
of similarly-employed U.S. workers. See
INA section 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(6)(iii)(A) and
(D).
In order to determine whether to issue
a TLC, the Departments have
established regulatory procedures under
which DOL certifies whether a qualified
U.S. worker is available to fill the job
opportunity described in the employer’s
petition for a temporary nonagricultural
worker, and whether a foreign worker’s
employment in the job opportunity will
adversely affect the wages or working
conditions of similarly employed U.S.
workers. See 20 CFR part 655, subpart
A. The regulations establish the process
by which employers obtain a TLC and
the rights and obligations of workers
and employers.
Once the petition is approved, under
the INA and current DHS regulations,
H–2B workers do not have employment
authorization outside of the validity
period listed on the approved petition
unless otherwise authorized, and the
workers are limited to employment with
the H–2B petitioner. See 8 U.S.C.
1184(c)(1), 8 CFR 274a.12(b)(9). An
employer or U.S. agent generally may
submit a new H–2B petition, with a
new, approved TLC, to USCIS to request
an extension of H–2B nonimmigrant
status for the validity of the TLC or for
a period of up to 1 year. 8 CFR
214.2(h)(15)(ii)(C). Except as provided
for in this rule, and except for certain
professional athletes being traded
among organizations,3 H–2B workers
seeking to extend their status with a
new employer may not begin
employment with the new employer
until the new H–2B petition is
approved.
The INA also authorizes DHS to
impose appropriate remedies against an
employer for a substantial failure to
meet the terms and conditions of
employing an H–2B nonimmigrant
worker, or for a willful
misrepresentation of a material fact in a
3 See 8 CFR 214.2(h)(6)(vii) and 8 CFR
274a.12(b)(9).

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petition for an H–2B nonimmigrant
worker. INA section 214(c)(14)(A), 8
U.S.C. 1184(c)(14)(A). The INA
expressly authorizes DHS to delegate
certain enforcement authority to DOL.
INA section 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B); see also INA section
103(a)(6), 8 U.S.C. 1103(a)(6). DHS has
delegated its authority under INA
section 214(c)(14)(A)(i), 8 U.S.C.
1184(c)(14)(A)(i) to DOL. See DHS,
Delegation of Authority to DOL under
Section 214(c)(14)(A) of the INA (Jan.
16, 2009); see also 8 CFR 214.2(h)(6)(ix)
(stating that DOL may investigate
employers to enforce compliance with
the conditions of, among other things,
an H–2B petition and a DOL-approved
TLC). This enforcement authority has
been delegated within DOL to the Wage
and Hour Division (WHD), and is
governed by regulations at 29 CFR part
503.
B. H–2B Numerical Limitations Under
the INA
The INA sets the annual number of
noncitizens who may be issued H–2B
visas or otherwise provided H–2B
nonimmigrant status to perform
temporary nonagricultural work at
66,000, to be distributed semi-annually
beginning in October and April. See
INA sections 214(g)(1)(B) and (g)(10), 8
U.S.C. 1184(g)(1)(B) and (g)(10). With
certain exceptions, described below, up
to 33,000 noncitizens may be issued H–
2B visas or provided H–2B
nonimmigrant status in the first half of
a fiscal year, and the remaining annual
allocation, including any unused
nonimmigrant H–2B visas from the first
half of a fiscal year, will be available for
employers seeking to hire H–2B workers
during the second half of the fiscal
year.4 If insufficient petitions are
approved to use all H–2B numbers in a
given fiscal year, the unused numbers
cannot be carried over for petition
approvals for employment start dates
beginning on or after the start of the
next fiscal year.
In FYs 2005, 2006, 2007, and 2016,
Congress exempted H–2B workers
identified as returning workers from the
annual H–2B cap of 66,000.5 A
returning worker is defined by statute as
4 The Federal Government’s fiscal year runs from
October 1 of the prior year through September 30
of the year being described. For example, fiscal year
2021 is from October 1, 2020, through September
30, 2021.
5 INA section 214(g)(9)(A), 8 U.S.C. 1184(g)(9)(A),
see also Consolidated Appropriations Act, 2016,
Public Law 114–113, div. F, tit. V, sec 565; John
Warner National Defense Authorization Act for
Fiscal Year 2007, Public Law 109–364, div. A, tit.
X, sec. 1074, (2006); Save Our Small and Seasonal
Businesses Act of 2005, Public Law 109–13, div. B,
tit. IV, sec. 402.

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an H–2B worker who was previously
counted against the annual H–2B cap
during a designated period of time. For
example, Congress designated that
returning workers for FY 2016 needed to
have been counted against the cap
during FY 2013, 2014, or 2015.6 DHS
and the Department of State (DOS)
worked together to confirm that all
workers requested under the returning
worker provision in fact were eligible
for exemption from the annual cap (in
other words, were issued an H–2B visa
or provided H–2B status during one of
the prior 3 fiscal years) and were
otherwise eligible for H–2B
classification.
Because of the strong demand for H–
2B visas in recent years, the statutorilylimited semi-annual visa allocation, the
DOL regulatory requirement that
employers apply for a TLC 75 to 90 days
before the start date of work,7 and the
DHS regulatory requirement that all H–
2B petitions be accompanied by an
approved TLC,8 employers that wish to
obtain visas for their workers under the
semi-annual allotment must act early to
receive a TLC and file a petition with
U.S. Citizenship and Immigration
Services (USCIS). As a result, DOL
typically sees a significant spike in TLC
applications from employers seeking to
hire H–2B temporary or seasonal
workers prior to the United States’
warm weather months. For example, in
FY 2021, based on TLC applications
filed during the 3-day filing window of
January 1 through 3, 2021, DOL’s Office
of Foreign Labor Certification (OFLC)
received requests to certify 96,641
worker positions for start dates of work
on April 1, 2021.9 USCIS, in turn,
received sufficient H–2B petitions to
reach the second half of the fiscal year
6 See Consolidated Appropriations Act, 2016,
Public Law 114–113, div. F, tit. V, sec 565.
7 20 CFR 655.15(b).
8 See 8 CFR 214.2(h)(5)(i)(A).
9 DOL announcement on January 7, 2021. See
https://www.foreignlaborcert.doleta.gov/ (last
accessed on April 9, 2021). For historical context,
with the FY 2020 statutory cap, DOL announced on
January 6, 2020 that it received requests to certify
99,362 worker positions for start dates of work on
April 1, 2020. On February 26, 2020, USCIS
announced that it had received a sufficient number
of petitions to reach the congressionally mandated
H–2B cap for FY 2020. On February 18, 2020, the
number of beneficiaries listed on petitions received
by USCIS surpassed the total number of remaining
H–2B visas available against the H–2B cap for the
second half of FY 2020. In accordance with
regulations, USCIS determined it was necessary to
use a computer generated process, commonly
known as a lottery, to ensure the fair and orderly
allocation of H–2B visa numbers to meet, but not
exceed, the remainder of the FY 2020 cap. 8 CFR
214.2(h)(8)(vii). On February 20, 2020, USCIS
conducted a lottery to randomly select petitions
from those received on February 18, 2020. As a
result, USCIS assigned all petitions selected in the
lottery the receipt date of February 20, 2020.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
statutory cap by February 12, 2021.10
This early date continues to reflect an
ongoing trend of higher H–2B demand
in the second half of the fiscal year
compared to the statutorily authorized
level. Congress, in recognition of this
increased demand: (1) Allowed for
additional H–2B workers through the
FY 2016 reauthorization of the returning
worker cap exemption; 11 and (2) for the
last 5 fiscal years authorized
supplemental caps under section 543 of
Division F of the Consolidated
Appropriations Act, 2017, Public Law
115–31 (FY 2017 Omnibus); section 205
of Division M of the Consolidated
Appropriations Act, 2018, Public Law
115–141 (FY 2018 Omnibus); section
105 of Division H of the Consolidated
Appropriations Act, 2019, Public Law
116–6 (FY 2019 Omnibus); section 105
of Division I of the Further Consolidated
Appropriations Act, 2020, Public Law
116–94 (FY 2020 Omnibus); 12 and
section 105 of Division O of the
Consolidated Appropriations Act, 2021,
Public Law 116–260 (FY 2021
Omnibus), which is discussed below.
C. FY 2021 Omnibus

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On December 27, 2020, then-President
Donald Trump signed the FY 2021
Omnibus which contains a provision,
section 105 of Division O (section 105),
permitting the Secretary of Homeland
Security, under certain circumstances
and after consultation with the
Secretary of Labor, to increase the
number of H–2B visas available to U.S.
employers, notwithstanding the
otherwise-established statutory
numerical limitation set forth in the
INA. Specifically, section 105 provides
10 On February 24, 2021, USCIS announced that
it had received a sufficient number of petitions to
reach the congressionally mandated H–2B cap for
the second half of FY 2021. See https://
www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy-2021 (Feb. 24, 2021). On February
12, 2021, the number of beneficiaries listed on
petitions received by USCIS surpassed the total
number of remaining H–2B visas available against
the H–2B statutory cap for the second half of FY
2021. In accordance with regulations, USCIS
determined it was necessary to use a computergenerated process, commonly known as a lottery, to
ensure the fair and orderly allocation of H–2B visa
numbers to meet, but not exceed, the remainder of
the FY 2021 cap. 8 CFR 214.2(h)(8)(vii). On
February 17, 2021, USCIS conducted a lottery to
randomly select petitions from those received on
February 12, 2021. As a result, USCIS assigned all
petitions selected in the lottery the receipt date of
February 17, 2021.
11 INA section 214(g)(9)(a), 8 U.S.C. 1184(g)(9)(a),
as revised by the Consolidated Appropriations Act
of 2016 (Pub. L. 114–113). This program expired on
September 30, 2016.
12 DHS, after consulting with DOL, did not
publish a temporary final rule supplementing the
H–2B cap for FY 2020 pursuant to the Further
Consolidated Appropriations Act, 2020, Public Law
116–94.

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that ‘‘the Secretary of Homeland
Security, after consultation with the
Secretary of Labor, and upon the
determination that the needs of
American businesses cannot be satisfied
in [FY] 2021 with U.S. workers who are
willing, qualified, and able to perform
temporary nonagricultural labor,’’ may
increase the total number of noncitizens
who may receive an H–2B visa in FY
2021 by 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 the H–2B numerical limitation.13
The Secretary of Homeland Security has
consulted with the Secretary of Labor,
and this rule implements the authority
contained in section 105.
As noted above, since FY 2017,
Congress has enacted a series of public
laws providing the Secretary of
Homeland Security with the
discretionary authority to increase the
H–2B cap beyond that set forth in
section 214 of the INA. The previous
four statutory provisions were
materially identical to section 105 of the
FY 2021 Omnibus. During each fiscal
year from FY 2017 through FY 2019, the
Secretary of Homeland Security, after
consulting with the Secretary of Labor,
determined that the needs of some
American businesses could not be
satisfied in such year with U.S. workers
who were willing, qualified, and able to
perform temporary nonagricultural
labor. On the basis of these
determinations, on July 19, 2017, and
May 31, 2018, DHS and DOL jointly
published temporary final rules for FY
2017 and FY 2018, respectively, each of
which allowed an increase of up to
15,000 additional H–2B visas for those
businesses that attested that if they did
not receive all of the workers requested
on the Petition for a Nonimmigrant
Worker (Form I–129), they were likely
to suffer irreparable harm, in other
words, suffer a permanent and severe
financial loss.14 A total of 12,294 H–2B
workers were approved for H–2B
classification under petitions filed
13 The highest number of returning workers in
any such fiscal year was 64,716, which represents
the number of beneficiaries covered by H–2B
returning worker petitions that were approved for
FY 2007. DHS also considered using an alternative
approach, under which DHS measured the number
of H–2B returning workers admitted at the ports of
entry (66,792 for FY 2007).
14 Temporary Rule, Exercise of Time-Limited
Authority To Increase the Fiscal Year 2017
Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program, 82 FR 32987,
32998 (July 19, 2017); Temporary Rule, Exercise of
Time-Limited Authority To Increase the Fiscal Year
2018 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program, 83 FR 24905,
24917 (May 31, 2018).

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pursuant to the FY 2017 supplemental
cap increase.15 In FY 2018, USCIS
received petitions for more than 15,000
beneficiaries during the first 5 business
days of filing for the supplemental cap,
and held a lottery on June 7, 2018. The
total number of H–2B workers approved
toward the FY 2018 supplemental cap
increase was 15,788.16 The vast majority
of the H–2B petitions received under the
FY 2017 and FY 2018 supplemental
caps requested premium processing 17
and were adjudicated within 15
calendar days.
On May 8, 2019, DHS and DOL jointly
published a temporary final rule
authorizing an increase of up to 30,000
additional H–2B visas for the remainder
of FY 2019. The additional visas were
limited to returning workers who had
been counted against the H–2B cap or
were otherwise granted H–2B status in
the previous 3 fiscal years, and for those
businesses that attested to a level of
need such that, if they did not receive
all of the workers requested on the Form
I–129, they were likely to suffer
irreparable harm, in other words, suffer
a permanent and severe financial loss.18
The Secretary determined that limiting
returning workers to those who were
issued an H–2B visa or granted H–2B
status in the past 3 fiscal years was
appropriate, as it mirrored the standard
that Congress designated in previous
returning worker provisions. On June 5,
2019, approximately 30 days after the
supplemental visas became available,
USCIS announced that it received
sufficient petitions filed pursuant to the
FY 2019 supplemental cap increase.
USCIS did not conduct a lottery for the
FY 2019 supplemental cap increase. The
total number of H–2B workers approved
towards the FY 2019 supplemental cap
increase was 32,666.19 The vast majority
15 USCIS data pulled from the Computer Linked
Application Information Management System
(CLAIMS3) database, available at https://
www.dhs.gov/publication/dhsuscispia-016computer-linked-application-informationmanagement-system-claims-3-and, on Mar. 15,
2021.
16 The number of approved workers exceeded the
number of additional visas authorized for FY 2018
to allow for the possibility that some approved
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States. USCIS data pulled
from CLAIMS3 on Mar. 15, 2021.
17 Premium processing allows for expedited
processing for an additional fee. See INA 286(u), 8
U.S.C. 1356(u).
18 Temporary Rule, Exercise of Time-Limited
Authority To Increase the Fiscal Year 2019
Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program, 84 FR 20005,
20021 (May 8, 2019).
19 The number of approved workers exceeded the
number of additional visas authorized for FY 2019
to allow for the possibility that some approved

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of these petitions requested premium
processing and were adjudicated within
15 calendar days.
Although Congress provided the
Secretary of Homeland Security with
the discretionary authority to increase
the H–2B cap in FY 2020, the Secretary
did not exercise that authority. DHS
initially intended to exercise its
authority and, on March 4, 2020,
announced that it would make available
35,000 supplemental H–2B visas for the
second half of fiscal year.20 On March
13, 2020, then-President Trump
declared a National Emergency
concerning COVID–19, a communicable
disease caused by the coronavirus
SARS–CoV–2.21 On April 2, 2020, DHS
announced that the rule to increase the
H–2B cap was on hold due to economic
circumstances, and no additional H–2B
visas would be released until further
notice.22 DHS also noted that the
Department of State had suspended
routine visa services.23 As explained in
further detail below, although the
COVID–19 public health emergency is
still in effect, DHS believes that it is
appropriate to increase the H–2B cap
coupled with additional protections (for
example, post-adjudication audits,
investigations, and compliance checks),
for FY 2021 based on the demand for H–
2B workers in the second half of FY
2021, recent and continuing economic
growth, the improving job market and
increased visa processing by the
Department of State.

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D. Joint Issuance of This Final Rule
As they did in FY 2017, FY 2018, and
FY 2019, the Departments have
determined that it is appropriate to
jointly issue this temporary rule.24 The
determination to issue the temporary
rule jointly follows conflicting court
decisions concerning DOL’s authority to
independently issue legislative rules to
carry out its consultative and delegated
functions pertaining to the H–2B
program under the INA.25 Although
workers would either not seek a visa or admission,
would not be issued a visa, or would not be
admitted to the United States. USCIS data pulled
from CLAIMS3 on Mar. 15, 2021.
20 DHS to Improve Integrity of Visa Program for
Foreign Workers, March 5, 2020, https://
www.dhs.gov/news/2020/03/05/dhs-improveintegrity-visa-program-foreign-workers.
21 Proclamation 9994 of Mar. 13, 2020, Declaring
a National Emergency Concerning the Coronavirus
Disease (COVID–19) Outbreak, 85 FR 15337 (Mar.
18, 2020).
22 https://twitter.com/DHSgov/status/
1245745115458568192?s=20.
23 Id.
24 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May
31, 2018); 84 FR 20005 (May 8, 2019).
25 See Outdoor Amusement Bus. Ass’n v. Dep’t of
Homeland Sec., 983 F.3d 671 (4th Cir. 2020); see
also Temporary Non-Agricultural Employment of

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DHS and DOL each have authority to
independently issue rules implementing
their respective duties under the H–2B
program,26 the Departments are
implementing section 105 in this
manner to ensure there can be no
question about the authority underlying
the administration and enforcement of
the temporary cap increase. This
approach is consistent with rules
implementing DOL’s general
consultative role under INA section
214(c)(1), 8 U.S.C. 1184(c)(1), and
delegated functions under INA sections
103(a)(6) and 214(c)(14)(B), 8 U.S.C.
1103(a)(6), 1184(c)(14)(B).27
III. Discussion
A. Statutory Determination
Following consultation with the
Secretary of Labor, the Secretary of
Homeland Security has determined that
the needs of some U.S. employers
cannot be satisfied in FY 2021 with U.S.
workers who are willing, qualified, and
able to perform temporary
nonagricultural labor. In accordance
with section 105 of the FY 2021
Omnibus, the Secretary of Homeland
Security has determined that it is
appropriate, for the reasons stated
below, to raise the numerical limitation
on H–2B nonimmigrant visas up to
22,000 additional visas for those
American businesses that attest to a
level of need such that, if they do not
receive the workers under the cap
increase, they are likely to suffer
irreparable harm, in other words, suffer
a permanent and severe financial loss.
These businesses must retain
documentation, as described below,
supporting this attestation.
DHS and DOL intend to conduct a
significant number of random audits
during the period of temporary need to
verify compliance with H–2B program
requirements, including the irreparable
harm standard as well as other key
worker protection provisions
implemented through this rule. If an
employer’s documentation does not
establish the likelihood of irreparable
harm, or if the employer fails to provide
evidence demonstrating irreparable
harm or comply with the audit process,
this may be considered a substantial
violation resulting in an adverse agency
action on the employer, including
revocation of the petition and/or TLC or
program debarment.
H–2B Aliens in the United States, 80 FR 24042,
24045 (Apr. 29, 2015).
26 See Outdoor Amusement Bus. Ass’n, 983 F.3d
at 684–89.
27 See 8 CFR 214.2(h)(6)(iii)(A) and (C),
(h)(6)(iv)(A).

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The Secretary of Homeland Security
has also determined that for certain
employers, additional recruitment steps
are necessary to confirm that there are
no qualified U.S. workers available for
the positions. In addition, the Secretary
of Homeland Security has determined
that the supplemental visas will be
limited to returning workers, with the
exception that up to 6,000 of the 22,000
visas will be exempt from the returning
worker requirement and will be
reserved for H–2B workers who are
nationals of Guatemala, Honduras, or El
Salvador (the Northern Triangle
countries).28 The 6,000 H–2B visas are
reserved for nationals of the Northern
Triangle countries to further the
objectives of E.O. 14010, which among
other initiatives, instructs the Secretary
of Homeland Security and the Secretary
of State to implement measures to
enhance access to visa programs for
individuals from the Northern
Triangle.29 This decision supports the
President’s vision of expanding lawful
pathways for protection and
opportunity for individuals from the
Northern Triangle.30
Similar to the temporary final rule for
the FY 2019 supplemental cap, the
Secretary of Homeland Security has also
determined to limit the supplemental
visas to H–2B returning workers, in
other words, workers who were issued
H–2B visas or were otherwise granted
H–2B status in FY 2018, 2019, or
2020,31 unless the employer indicates
on the new attestation form that it is
requesting workers who are nationals of
the Northern Triangle countries and
who are therefore counted towards the
6,000 allotment regardless of whether
they are new or returning workers. If the
6,000 returning worker exemption cap
for Northern Triangle nationals has been
28 These conditions and limitations are not
inconsistent with sections 214(g)(3) (‘‘first in, first
out’’ H–2B processing) and (g)(10) (fiscal year H–
2B allocations) because noncitizens covered by the
special allocation under section 105 of the FY 2021
Omnibus are not ‘‘subject to the numerical
limitations of [section 214(g)(1).]’’ See, e.g., INA
section 214(g)(3); INA section 214(g)(10); FY 2021
Omnibus div. O, sec. 105 (‘‘Notwithstanding the
numerical limitation set forth in section 214(g)(1)(B)
of the [INA]. . . .’’).
29 See Section 3(c) of E.O. 14010, Creating a
Comprehensive Regional Framework To Address
the Causes of Migration, To Manage Migration
Throughout North and Central America, and To
Provide Safe and Orderly Processing of Asylum
Seekers at the United States Border, signed
February 2, 2021. https://www.govinfo.gov/content/
pkg/FR-2021-02-05/pdf/2021-02561.pdf.
30 Id.
31 For purposes of this rule, these returning
workers could have been H–2B cap exempt or
extended H–2B status in FY 2018, 2019, or 2020.
Additionally they may have been previously
counted against the annual H–2B cap of 66,000
visas during FY 2018, 2019, or 2020, or the
supplemental caps in FY 2018 or FY 2019.

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reached and visas remain available
under the returning worker cap, the
petition would be rejected and any fees
submitted returned to the petitioner. In
such a case, a petitioner may continue
to request workers who are nationals of
one of the Northern Triangle countries,
but the petitioner must file a new Form
I–129 petition, with fee, and attest that
these noncitizens will be returning
workers, in other words, workers who
were issued H–2B visas or were
otherwise granted H–2B status in FY
2018, 2019, or 2020. If the 6,000
returning worker exemption cap for
nationals of the Northern Triangle
countries remains unfilled by July 8,
2021, USCIS will announce on its
website that the remaining visas will be
made available to the general public, but
the petitioner must file a new Form
I–129 petition and attest that these
noncitizens will be returning workers.
The Secretary of Homeland Security’s
determination to increase the numerical
limitation is based, in part, on the
conclusion that some businesses are
likely to suffer irreparable harm in the
absence of a cap increase. Congress has
expressed concern with the
unavailability of H–2B visas for
employers that need workers to start late
in the fiscal year.32 In addition,
members of Congress have sent
numerous letters to the Secretaries of
Homeland Security and Labor about the
needs of some U.S. businesses for H–2B
workers (after the statutory cap for the
second half of the fiscal year has been
reached) and about the potentially
negative impact on state and local
economies if the cap is not increased.33
U.S. businesses, chambers of commerce,
employer organizations, and state and
local elected officials have also written
to the DHS and Labor Secretaries to
express their concerns with the
unavailability of H–2B visas after the
statutory cap has been reached.34 DHS
held a stakeholder listening session on
April 8, 2021, during and after which
numerous small and seasonal business
owners described the challenges they
face absent the ability to secure H–2B
32 In the Joint Explanatory Statement for the FY
2018 DHS Consolidated Appropriations Act (Public
Law 115–141), for example, Congress directed DHS,
in consultation with DOL, to report on options to
improve the accessibility of H–2B visas for
employers that need workers to start late in the
season. DHS submitted the report to Congress on
June 7, 2019. Congress made a similar request in the
Joint Explanatory Statement for the FY 2020 DHS
Further Consolidated Appropriations Act (Public
Law 116–94).
33 See the docket for this rulemaking for access to
these letters.
34 Id.

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workers because the statutory cap has
been reached.35
The Secretary of Homeland Security
and the Secretary of Labor heard from
many trade unions and worker
advocates who opposed raising the cap.
They argued that the unemployment
rate remains high. In particular, they
provided evidence that the
unemployment rate for summer-related
occupations, such as landscaping
workers, restaurant workers,
construction workers and others, for
which businesses were pressing for an
increase in visas, exceeds the national
average in unemployment.36 They also
pointed to what they consider
weaknesses in the labor market test, and
stated that some H–2B employers have
violated labor laws, including
requirements in the H–2B program.
After considering the full range of
evidence and diverse points of view, the
Secretary of Homeland Security has
deemed it appropriate to take action to
avoid irreparable harm to businesses
that were unable to obtain H–2B
workers under the statutory cap,
including potential wage and job losses
by their U.S. workers, as well as other
adverse downstream economic effects.37
At the same time, the Secretary of
Homeland Security believes it is
appropriate to condition receipt of
supplemental visas on adherence to
additional worker protections,
particularly because of current national
unemployment rates, as discussed
below.
The decision to afford the benefits of
this temporary cap increase to U.S.
businesses that need workers to avoid
irreparable harm and that will comply
with additional worker protections,
rather than applying the cap increase to
any and all businesses seeking
temporary workers, is consistent with
section 105 of the FY 2021 Omnibus, as
explained below. The Secretary of
Homeland Security, in implementing
section 105 and determining the scope
35 USCIS expects to post a recording of the
stakeholder listening engagement on its Electronic
Reading Room, at https://www.uscis.gov/records/
electronic-reading-room.
36 See: Department of Labor, Bureau of Labor
Statistics, Labor Force Statistics from the Current
Population Survey, Table A–30, available at https://
www.bls.gov/web/empsit/cpseea30.htm. According
to the March 2021 Current Population Survey, the
unemployment rate for construction and
landscaping workers was 9.5 percent and 9.9
percent, respectively, whereas the national
unemployment rate was 6.2 percent.
37 See, e.g., Impacts of the H–2B Visa Program for
Seasonal Workers on Maryland’s Seafood Industry
and Economy, Maryland Department of Agriculture
Seafood Marketing Program and Chesapeake Bay
Seafood Industry Association (March 2, 2020),
available at https://mda.maryland.gov/documents/
2020-H2B-Impact-Study.pdf (last visited May 7,
2021).

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28203

of any such increase, has broad
discretion, following consultation with
the Secretary of Labor, to identify the
business needs that are most relevant,
while bearing in mind the need to
protect U.S. workers. Within that
context, for the below reasons, the
Secretary of Homeland Security has
determined to allow an overall increase
of 22,000 additional visas solely for the
businesses facing permanent, severe
potential losses.
First, DHS interprets section 105’s
reference to ‘‘the needs of American
businesses’’ as describing a need
different from the need ordinarily
required of employers in petitioning for
an H–2B worker. Under the generally
applicable H–2B program, each
individual H–2B employer must
demonstrate that it has a temporary
need for the services or labor for which
it seeks to hire H–2B workers. See 8 CFR
214.2(h)(6)(ii), 20 CFR 655.6. The use of
the phrase ‘‘needs of American
businesses,’’ which is not found in INA
section 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), or the regulations
governing the standard H–2B cap,
authorizes the Secretary of Homeland
Security in allocating additional H–2B
visas under section 105 to require that
employers establish a need above and
beyond the normal standard under the
H–2B program, that is, an inability to
find sufficient qualified U.S. workers
willing and available to perform
services or labor and that the
employment of the H–2B worker will
not adversely affect the wages and
working conditions of U.S. workers, see
8 CFR 214.2(h)(6)(i)(A). DOL concurs
with this interpretation.
Second, the approach set forth in this
rule limits the increase in a way that is
similar to the implementation of the
supplemental caps in fiscal years 2017,
2018, and 2019, and provides
protections against adverse effects on
U.S. workers that may result from a cap
increase. Although there is not enough
time to conduct a more full and formal
quantitative analysis of such adverse
effects, the Secretary has determined
that in the particular circumstances
presented here, it is appropriate, within
the limits discussed below, to tailor the
availability of this temporary cap
increase to those businesses likely to
suffer irreparable harm, in other words,
those facing permanent and severe
financial loss.
As noted above, to address the
increased, and, in some cases, imminent
need for H–2B workers, for FY 2021, the
Secretary of Homeland Security has
determined that employers may petition
for supplemental visas on behalf of up
to 16,000 workers who were issued an

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H–2B visa or were otherwise granted H–
2B status in FY 2018, 2019, or 2020.38
The last 3 fiscal years’ temporal
limitation in the returning worker
definition in this temporary rule mirrors
the temporal limitation Congress
imposed in previous returning worker
statutes.39 Such workers (in other
words, those who recently participated
in the H–2B program) have previously
obtained H–2B visas and therefore have
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.40
DOS has informed DHS that, in general,
H–2B visa applicants who are able to
demonstrate clearly that they have
previously abided by the terms of their
status granted by DHS have a higher
success rate when applying to renew
their H–2B visas, as compared with the
overall visa applicant pool from a given
country. For that reason, some consular
sections waive the in-person interview
requirement for H–2B applicants whose
visa expired within a specific timeframe
and who otherwise meet the strict
limitations set out under INA section
222(h), 8 U.S.C. 1202(h). We note that
DOS has, in response to the COVID–19
pandemic, expanded interview waivers
to some first-time H–2 applicants 41
potentially allowing some such
applicants to be processed with
increased efficiency. However, there is
no indication that this temporary, shortterm measure will necessarily affect the
overall success rates of applicants,
which DOS has indicated is higher for
returning workers who can demonstrate
prior compliance with the program.
Limiting the supplemental cap to
returning workers is beneficial because
38 DHS believes that this temporal limitation is
appropriate even though H–2B visa issuances and
admissions were lower in FY 2020 than in previous
years, likely due to the impacts of COVID–19 as
DHS believes that there will still be a sufficient
number of returning workers available to U.S.
employers to use the 16,000 additional visas
authorized by this rule.
39 Consolidated Appropriations Act, 2016, Public
Law 114–113, div. F, tit. V, sec 565; John Warner
National Defense Authorization Act for Fiscal Year
2007, Public Law 109–364, div. A, tit. X, sec. 1074,
(2006); Save Our Small and Seasonal Businesses
Act of 2005, Public Law. 109–13, div. B, tit. IV, sec.
402.
40 Non-returning workers cannot meet the
statutory criteria under INA section 222(h)(1)(B) for
an interview waiver. The previous review of an
applicant’s qualifications and current evidence of
lawful travel to the United States will generally lead
to a shorter processing time of a renewal
application.
41 DOS, Important Announcement on H2 Visas,
https://travel.state.gov/content/travel/en/News/
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these workers have generally followed
immigration law in good faith and
demonstrated their willingness to return
home after they have completed their
temporary labor or services or their
period of authorized stay, which is a
condition of H–2B status. The returning
worker condition therefore provides a
basis to believe that H–2B workers
under this cap increase will again abide
by the terms and conditions of their
visa. The returning worker condition
also benefits employers that seek to rehire known and trusted workers who
have a proven positive employment
track record while previously employed
as workers in this country. While the
Departments recognize that the
returning worker requirement may limit
to an extent the flexibility of employers
that might wish to hire non-returning
workers, the requirement provides an
important safeguard against H–2B
abuse, which DHS considers to be a
significant consideration.
In allocating up to 6,000 H–2B visas
to nationals of the Northern Triangle
countries while making the remaining
up to 16,000 H–2B initially available
visas available to qualified returning
workers, irrespective of their country of
nationality, this rule strikes a balance
between furthering the U.S. foreign
policy interests of creating a
comprehensive framework—of which
this allocation is one piece—to address
and manage migration from the
Northern Triangle and addressing the
needs of certain H–2B employers at risk
of suffering from irreparable harm. The
United States has strong foreign policy
interests in initially allocating up to
6,000 supplemental visas only to
nationals of the Northern Triangle
countries and exempting such persons
from the returning worker requirement.
The Secretary of Homeland Security has
determined that both the 6,000
limitation and the exemption from the
returning worker requirement for
nationals of the Northern Triangle
countries is beneficial in light of
President Biden’s February 2, 2021 E.O.
14010, which instructed the Secretary of
Homeland Security and the Secretary of
State to implement measures to enhance
access for individuals of the Northern
Triangle countries to visa programs, as
appropriate and consistent with
applicable law. In response to this
executive order, DHS seeks to promote
and improve safety, security, and
economic stability throughout the
region, and work with these countries to
stem the flow of irregular migration in
the region and enhance access to visa
programs.
The exemption from the returning
worker requirement recognizes the

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relatively small numbers of individuals
from the three Northern Triangle
countries who were previously granted
H–2B visas in recent years.42 Absent
this exemption, there may be
insufficient workers from these
countries, which means that the rule
might thereby fail to achieve its
intended policy objective, in other
words, to provide additional temporary
foreign workers for U.S. employers that
may suffer irreparable harm absent these
workers, while also enhancing access to
the H–2B visa classification for
individuals from the Northern Triangle
countries.
Finally, this rule provides that
employers seeking H–2B visas for
nationals of the Northern Triangle
countries exempt from the returning
worker requirement must file their
petitions with USCIS no later than July
8, 2021. If fewer petitions are received
than needed to reach the 6,000
allocation by July 8, 2021, the remaining
visas will be made available to returning
workers, irrespective of their country of
origin. USCIS will announce the
availability and filing period for such
remaining visas on its website,
uscis.gov, no later than July 23, 2021.
DHS believes that making any
remaining visas available to returning
workers after July 8, 2021 will provide
sufficient opportunity for their use by
nationals of Northern Triangle countries
and also help ensure that supplemental
H–2B visas do not go unused if there is
insufficient demand from employers
seeking or able to employ nationals of
Northern Triangle countries.
For all petitions filed under this rule
and the H–2B program, generally,
employers must establish, among other
requirements, that insufficient qualified
U.S. workers are available to fill the
petitioning H–2B employer’s job
opportunity and that the foreign
worker’s employment in the job
opportunity will not adversely affect the
wages or working conditions of
similarly-employed U.S. workers. INA
section 214(c)(1), 8 U.S.C. 1184(c)(1); 8
CFR 214.2(h)(6)(iii)(A) and (D); 20 CFR
655.1. To meet this standard of
protection for U.S. workers and, in order
to be eligible for additional visas under
this rule, employers must have applied
for and received a valid TLC in
accordance with 8 CFR
214.2(h)(6)(iv)(A) and (D) and 20 CFR
42 DOS issued a combined total of approximately
26,600 H–2B visas to nationals of the Northern
Triangle countries from FY 2015 through FY 2020,
combined, approximately 4,400 per year. DOS
Monthly NIV Issuances by Nationality and Visa
Class; https://travel.state.gov/content/travel/en/
legal/visa-law0/visa-statistics/nonimmigrant-visastatistics.html (last visited April 11, 2021).

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part 655, subpart A. Under DOL’s H–2B
regulations, TLCs are valid only for the
period of employment certified by DOL
and expire on the last day of authorized
employment. 20 CFR 655.55(a).
In order to have a valid TLC,
therefore, the employment start date on
the employer’s H–2B petition must not
be different from the employment start
date certified by DOL on the TLC. See
8 CFR 214.2(h)(6)(iv)(D). Under
generally applicable DHS regulations,
the only exception to this requirement
applies when an employer files an
amended visa petition, accompanied by
a copy of the previously approved TLC
and a copy of the initial visa petition
approval notice, at a later date to
substitute workers as set forth under 8
CFR 214.2(h)(6)(viii)(B). This rule also
requires additional recruitment for
certain petitioners, as discussed below.
In sum, this rule increases the FY
2021 numerical limitation by up to
22,000 visas, but also restricts the
availability of those additional visas by
prioritizing only the most significant
business needs, and limiting eligibility
to H–2B returning workers, unless the
worker is a national of one of the
Northern Triangle countries counted
towards the 6,000 allocation that are
exempt from the returning worker
limitation. These provisions are each
described in turn below.

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B. Numerical Increase and Allocation of
up to 22,000 Visas
The increase of up to 22,000 visas will
help address the urgent needs of eligible
employers for additional H–2B workers
for the remainder of FY 2021.43 The
determination to allow up to 22,000
additional H–2B visas reflects a
balancing of a number of factors
including the demand for H–2B visas for
the second half of FY 2021; current
43 In contrast with section 214(g)(1) of the INA,
8 U.S.C. 1184(g)(1), which establishes a cap on the
number of individuals who may be issued visas or
otherwise provided H–2B status, and section
214(g)(10) of the INA, 8 U.S.C. 1184(g)(10)
(emphasis added), which imposes a first half of the
fiscal year cap on H–2B issuance with respect to the
number of individuals who may be issued visas or
are accorded [H–2B] status’’ (emphasis added),
section 105 only authorizes DHS to increase the
number of available H–2B visas. Accordingly, DHS
will not permit individuals authorized for H–2B
status pursuant to an H–2B petition approved under
section 105 to change to H–2B status from another
nonimmigrant status. See INA section 248, 8 U.S.C.
1258; see also 8 CFR part 248. If a petitioner files
a petition seeking H–2B workers in accordance with
this rule and requests a change of status on behalf
of someone in the United States, the change of
status request will be denied, but the petition will
be adjudicated in accordance with applicable DHS
regulations. Any noncitizen authorized for H–2B
status under the approved petition would need to
obtain the necessary H–2B visa at a consular post
abroad and then seek admission to the United
States in H–2B status at a port of entry.

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economic conditions; the increased
demand for supplemental visas from FY
2017 to FY 2019; H–2B returning worker
data; the amount of time remaining for
employers to hire and obtain H–2B
workers in the fiscal year; congressional
concerns such as the one demonstrated
by the FY 2018 and FY 2020 Joint
Explanatory Statements where Congress
directed DHS, in consultation with
DOL, to consider options that would
help address the unavailability of H–2B
visas for late-season employers; and the
objectives of E.O. 14010. DHS believes
the numerical increase both addresses
the needs of U.S. businesses and, as
explained in more detail below, furthers
the foreign policy interests of the United
States. Additional provisions address
the need to protect workers, such as
informing them of access to COVID–19
vaccines and requiring additional
recruitment efforts.
Section 105 of the FY 2021 Omnibus
sets the highest number of H–2B
returning workers who were exempt
from the cap in certain previous years
as the maximum limit for any increase
in the H–2B numerical limitation for FY
2021.44 Consistent with the statute’s
reference to H–2B returning workers, in
determining the appropriate number by
which to increase the H–2B numerical
limitation, the Secretary of Homeland
Security focused on the number of visas
allocated to such workers in years in
which Congress enacted returning
worker exemptions from the H–2B
numerical limitation. During each of the
years the returning worker provision
was in force, U.S. employers’ standard
business needs for H–2B workers
exceeded the statutory 66,000 cap. The
highest number of H–2B returning
workers approved was 64,716 in FY
2007. In setting the number of
additional H–2B visas to be made
available during FY 2021, DHS
considered this number, overall
indications of increased need, the
availability of U.S. workers during this
period of high unemployment, as
discussed below, Congress’s prior
direction that DHS review options for
addressing the problem of unavailability
of H–2B visas for businesses that need
workers to start work late in a
semiannual period of availability, and
44 During fiscal years 2005 to 2007, and 2016,
Congress enacted ‘‘returning worker’’ exemptions to
the H–2B visa cap, allowing workers who were
counted against the H–2B cap in one of the three
preceding fiscal years not to be counted against the
upcoming fiscal year cap. Save Our Small and
Seasonal Businesses Act of 2005, Public Law 109–
13, Sec. 402 (May 11, 2005); John Warner National
Defense Authorization Act, Public Law 109–364,
Sec. 1074 (Oct. 17, 2006); Consolidated
Appropriations Act of 2016, Public Law 114–113,
Sec. 565 (Dec. 18, 2015).

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the time remaining in FY 2021. On the
basis of these considerations, DHS
determined that it would be appropriate
to make additional visas available and
to limit the supplemental cap to up to
22,000. The Secretary further
considered the objectives of E.O. 14010,
which among other initiatives, instructs
the Secretary of Homeland Security and
the Secretary of State to implement
measures to enhance access to visa
programs for individuals from the
Northern Triangle, and determined that
reserving up to 6,000 of the up to 22,000
additional visas and exempting this
number from the returning worker
requirement would be appropriate.
In past years, the number of
beneficiaries covered by H–2B petitions
filed exceeded the number of additional
visas allocated under the two most
recent supplemental caps. In FY 2018,
USCIS received petitions for
approximately 29,000 beneficiaries
during the first 5 business days of filing
for the 15,000 supplemental cap. USCIS
therefore conducted a lottery on June 7,
2018, to randomly select petitions that
would be accepted under the
supplemental cap. Of the petitions that
were selected, USCIS issued approvals
for 15,672 beneficiaries.45 In FY 2019,
USCIS received sufficient petitions for
the 30,000 supplemental cap on June 5,
2019, but did not conduct a lottery to
randomly select petitions that would be
accepted under the supplemental cap.
Of the petitions received, USCIS issued
approvals for 32,717 beneficiaries.46
Available data clearly indicate a need
for supplemental H–2B visas in FY
2021. As noted above, in FY 2021, based
on TLC applications filed during the 3day filing window of January 1 through
3, 2021, DOL’s Office of Foreign Labor
Certification (OFLC) received requests
to certify 96,641 worker positions, from
5,377 H–2B applications, for start dates
45 USCIS recognizes it may have received
petitions for more than 29,000 supplemental H–2B
workers if the cap had not been exceeded within
the first 5 days of opening. However, DHS estimates
that not all of the 29,000 workers requested under
the FY 2018 supplemental cap would have been
approved and/or issued visas. For instance,
although DHS approved petitions for 15,672
beneficiaries under the FY 2018 cap increase, the
Department of State data shows that as of January
15, 2019, it issued only 12,243 visas under that cap
increase. Similarly, DHS approved petitions for
12,294 beneficiaries under the FY 2017 cap
increase, but the Department of State data shows
that it issued only 9,160 visas.
46 The number of approved workers exceeded the
number of additional visas authorized for FY 2018
and FY 2019 to allow for the possibility that some
approved workers would either not seek a visa or
admission, would not be issued a visa, or would not
be admitted to the United States.

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of work on April 1, 2021.47 USCIS, in
turn, received sufficient H–2B petitions
to reach the second half of the fiscal
year statutory cap by February 12,
2021.48 This is similar to the level of
demand in FY 2020, when OFLC
received requests to certify 99,362
worker positions for start dates of work
on April 1, 2020,49 and USCIS received
sufficient H–2B petitions to reach the
second half of the fiscal year statutory
cap by February 18, 2020.50 On March
4, 2020, DHS announced that it would
make available 35,000 supplemental H–
2B visas for the second half of fiscal
year.51 However, on March 13, 2020,
then-President Trump declared a
National Emergency concerning the
COVID–19 outbreak to control the
spread of the virus in the United
States.52 On April 2, 2020, DHS
announced that the rule to increase the
H–2B cap was on hold due to economic
circumstances, and no additional H–2B
visas would be released until further
notice.53 DHS also noted that DOS had
suspended routine visa services.54
Although the public health emergency
due to COVID–19 still exists,55 DHS
47 DOL announcement on January 7, 2021. See
https://www.foreignlaborcert.doleta.gov/ (last
accessed on February 24, 2021).
48 On February 24, 2021, USCIS announced that
it had received a sufficient number of petitions to
reach the congressionally mandated H–2B cap for
the second half of FY 2021. See https://
www.uscis.gov/news/alerts/h-2b-cap-reached-forsecond-half-of-fy-2021 (Feb. 24, 2021). On February
12, 2021, the number of beneficiaries listed on
petitions received by USCIS surpassed the total
number of remaining H–2B visas available against
the H–2B statutory cap for the second half of FY
2021. In accordance with regulations, USCIS
determined it was necessary to use a computergenerated process, commonly known as a lottery, to
ensure the fair and orderly allocation of H–2B visa
numbers to meet, but not exceed, the remainder of
the FY 2021 cap. 8 CFR 214.2(h)(8)(vii). On
February 17, 2021, USCIS conducted a lottery to
randomly select petitions from those received on
February 12, 2021. As a result, USCIS assigned all
petitions selected in the lottery the receipt date of
February 17, 2021.
49 DOL announcement on January 6, 2020. OFLC
Conducts Randomization Process on H–2B
Applications Requesting an April 1, 2020, Work
Start Date, https://flag.dol.gov/announcements/0106-2020.
50 H–2B Cap Reached for Second Half of FY2020,
Feb. 26, 2020, https://www.uscis.gov/news/alerts/h2b-cap-reached-for-second-half-of-fy2020.
51 DHS to Improve Integrity of Visa Program for
Foreign Workers, March 5, 2020, https://
www.dhs.gov/news/2020/03/05/dhs-improveintegrity-visa-program-foreign-workers.
52 Proclamation 9994 of Mar. 13, 2020, Declaring
a National Emergency Concerning the Coronavirus
Disease (COVID–19) Outbreak, 85 FR 15337 (Mar.
18, 2020).
53 https://twitter.com/DHSgov/status/
1245745115458568192?s=20.
54 Id.
55 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/COVID-15April2021.aspx (Apr. 15, 2021).

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believes that it is appropriate to issue
additional H–2B visas for the remainder
of FY 2021. While the economic impacts
of COVID–19 continue to be felt, real
gross domestic product (GDP) grew
significantly in the third and fourth
quarters of 2020.56 Economists project
that this economic growth will continue
throughout FY 2021 and beyond.57
Similarly, the unemployment rate,
while still not at pre-pandemic levels,
improved from 14.7 percent in April
2020 58 to 6.0 percent in March 2021.
(Note, however, that higher
unemployment in the top H–2B
occupations remains.59)
In March 2020, the U.S. labor market
was severely affected by the onset of the
COVID–19 pandemic, pushing the
national unemployment rate to near
record levels and resulting in millions
of U.S. workers being displaced from
work. At the beginning of March 2020,
the national unemployment rate was 3.5
percent with an estimated 5.8 million
people categorized as unemployed.60
This continued a 6-month trend of the
unemployment rate sitting at or below
3.5 percent. However, by the end of
April 2020, the unemployment rate
increased from 4.4 percent to a peak of
14.7 percent. The 10.3 percent increase
in the unemployment rate is the largest
recorded month-to-month increase in
the rate and coincided with total
employment declining 20.5 million in
April 2020.61 As of April 2021, the U.S.
unemployment rate sat at 6.0 percent.
While this is a considerable decline
from the prior year’s rate, it remains 2.5
percent above the pre-pandemic
unemployment rate, and the number of
unemployed persons is currently 9.7
million people which is 4 million
people higher than it was at the
beginning of March 2020. A February
2021 Congressional Budget Office
outlook of the labor market projects that
a full recovery to pre-pandemic levels of
employment could take in excess of 3
years.62
Typically H–2B occupations are
cyclical jobs, and U.S. workers in these
56 https://www.bea.gov/news/glance.
57 https://www.bloomberg.com/news/articles/
2021-02-12/charting-the-global-economy-u-sgrowth-forecasts-upgraded.
58 https://www.bls.gov/opub/ted/2020/
unemployment-rate-rises-to-record-high-14-point-7percent-in-april-2020.htm
59 Department of Labor, Bureau of Labor
Statistics, The Employment Situation, March 2021.
Available at https://www.bls.gov/news.release/
archives/empsit_04022021.htm.
60 https://www.bls.gov/news.release/archives/
empsit_03062020.pdf.
61 https://www.bls.gov/news.release/archives/
empsit_05082020.pdf.
62 https://www.cbo.gov/system/files/2021-02/
56965-Economic-Outlook.pdf.

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occupations are more susceptible to job
instability and labor market variability.
Amongst the occupations most
commonly associated with the H–2B
program, the unemployment rate has
displayed a wide degree of variance.
Whereas the pre-pandemic
unemployment rate for the U.S. was 3.5
percent, the unemployment rate across
the top 25 occupations most commonly
associated with the H–2B program sat at
6.82 percent.63 Currently the average
unemployment rate across these
occupations is 8.93 percent. The current
unemployment rate for Landscaping and
Groundskeeping Workers (the single
largest occupation that uses the H–2B
program) is 7.8 percent, followed by
Amusement and Recreation Attendants
at 9.3 percent, and 7.1 percent for Meat,
Poultry, and Fish Cutters.64
From March 2020 through March
2021, approximately 1 million U.S.
workers have been displaced across
occupations that are predominantly
used in the H–2B program.65 Because of
the higher unemployment rate of these
occupations for U.S. workers, there is an
increased likelihood that more U.S.
workers could be available to work in
H–2B jobs. The Departments
acknowledge that it is challenging to
extrapolate, from national
unemployment rates in occupations,
precise estimates regarding the
availability of U.S. workers for any
particular job opportunity and in any
particular geographic area. The
additional procedures contained in this
rule, including the attestation
requirements and DOL procedures,
provide appropriate protections for U.S.
workers within the context of that
uncertainty.
Finally, while DOS temporarily
suspended routine immigrant and
nonimmigrant visa services at all U.S.
Embassies and Consulates on March 20,
2020, it subsequently announced a
phased resumption of visa services 66
and indicated it would continue
63 See https://www.bls.gov/web/empsit/
cpseea30.htm. The unemployment rates for the top
25 H–2B occupations were obtained by identifying
the top occupations based on OFLC performance
data.
64 See 2021 Q2 OFLC Performance data: https://
www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2B_Disclosure_Data_FY2021_Q2.xlsx and OFLC
2021 Q2 Selected statistics https://www.dol.gov/
sites/dolgov/files/ETA/oflc/pdfs/H-2B_Selected_
Statistics_FY2021_Q2.pdf
65 See https://www.bls.gov/web/empsit/
cpseea30.htm. The number of displaced workers
within the most commonly held H–2B occupations
were obtained by identifying the top occupations
based on OFLC performance data and comparing
those occupations to unemployment data from BLS.
66 DOS, Suspension of Routine Visa Services,
https://travel.state.gov/content/travel/en/News/
visas-news/suspension-of-routine-visa-services.html
(last updated July 22, 2020).

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processing H–2 cases as much as
possible, as permitted by post resources
and local government restrictions, and
expanded the categories of H–2 visa
applicants whose applications can be
adjudicated without an in-person
interview.67 In addition, Presidential
Proclamation 10052, which temporarily
suspended the entry of certain
nonimmigrants, including certain H–2B
nonimmigrants, expired on March 31,
2021.68 Given the level of demand for
H–2B workers, the continued and
projected economic recovery, the
continued and projected job growth, and
the resumption of visa processing
services and the expiration of the
suspension of entry of H–2B
nonimmigrants, DHS believes it is
appropriate to release additional visas at
this time. Further, DHS believes that
22,000 is an appropriate number of visas
for the reasons discussed above.
Finally, recognizing the high demand
for H–2B visas, it is plausible that the
additional H–2B allocations provided in
this rule will be reached prior to the end
of the fiscal year. Specifically, the
following scenarios may still occur:
• The 16,000 supplemental cap visas
limited to returning workers that will be
immediately available for employers
will be reached before September 15,
2021.
• The 6,000 supplemental cap visas
limited to nationals of the Northern
Triangle countries will be reached
before July 8, 2021.
• The cap for any remaining visas
from the Northern Triangle allotment
made available to returning workers
after July 8, 2021,regardless of the
country of nationality, will be reached
before September 15, 2021.
DHS regulation, 8 CFR
214.2(h)(6)(x)(E), reaffirms the use of the
processes that are in place when H–2B
numerical limitations under INA section
214(g)(1)(B) or (g)(10), 8 U.S.C.
1184(g)(1)(B) or (g)(10), are reached, as
applicable to each of the scenarios
described above that involve numerical
limitations of the supplemental cap.
Specifically, for each of the scenarios
mentioned above, DHS will monitor
petitions received, and make projections
of the number of petitions necessary to
achieve the projected numerical limit of
approvals. USCIS will also notify the
67 DOS, Expansion of Interview Waiver Eligibility,
https://travel.state.gov/content/travel/en/News/
visas-news/expansion-of-interview-waivereligibility.html (last updated Mar. 11, 2021); DOS,
Important Announcement on H2 Visas, https://
travel.state.gov/content/travel/en/News/visas-news/
important-announcement-on-h2-visas.html (last
updated Mar. 26, 2020).
68 https://travel.state.gov/content/travel/en/News/
visas-news/update-on-presidential-proclamation10052.html

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public of the dates that USCIS has
received the necessary number of
petitions (the ‘‘final receipt dates’’) for
each of these scenarios. The day the
public is notified will not control the
final receipt dates. Moreover, USCIS
may randomly select, via computergenerated selection, from among the
petitions received on the final receipt
date the remaining number of petitions
deemed necessary to generate the
numerical limit of approvals for each of
the scenarios involving numerical
limitations to the supplemental cap.
USCIS may, but will not necessarily,
conduct a lottery if: The 16,000
supplemental cap visas for returning
workers is reached before September 15,
2021; the 6,000 visas limited to
nationals of the Northern Triangle
countries is reached before July 8, 2021;
or the cap for any remaining visas from
the Northern Triangle allotment made
available to returning workers regardless
of the country of nationality, is reached
before September 15, 2021. Finally,
similar to the processes applicable to
the H–2B statutory cap, if the final
receipt date is any of the first 5 business
days on which petitions subject to the
applicable numerical limit may be
received (in other words, if the
numerical limit is reached on any one
of the first 5 business days that filings
can be made), USCIS will randomly
apply all of the numbers among the
petitions received on any of those 5
business days.
C. Returning Workers
Similar to the temporary increase in
FY 2019, the Secretary of Homeland
Security has determined that the
supplemental visas should be granted to
returning workers from the past 3 fiscal
years, in order to meet the immediate
need for H–2B workers, unless the
H–2B worker is a national of one of the
Northern Triangle countries and is
counted towards the separate 6,000 cap
for such workers. The Secretary has
determined that, for purposes of this
program, H–2B returning workers
include those individuals who were
issued an H–2B visa or were otherwise
granted H–2B status in FY 2018, 2019,
or 2020. As discussed above, the
Secretary determined that limiting
returning workers to those who were
issued an H–2B visa or granted H–2B
status in the past three fiscal years is
appropriate as it mirrors the standard
that Congress designated in previous
returning worker provisions. DHS
acknowledges that H–2B visa issuances
and admissions were lower in the
second half of FY 2021 than in recent
fiscal years, likely as a result of COVID–
19. However, DHS believes that there

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will be sufficient numbers of returning
workers to meet the needs of employers
and fully utilize the additional 16,000
visas, and thus the temporal limitation
remains appropriate. Returning workers
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 have a higher likelihood of success
in obtaining their new visas through
DOS, possibly without a required
interview, and begin work more
expeditiously.
To ensure compliance with the
requirement that additional visas only
be made available to returning workers,
petitioners seeking H–2B workers under
the supplemental cap will be required to
attest that each employee requested or
instructed to apply for a visa under the
FY 2021 supplemental cap was issued
an H–2B visa or otherwise granted
H–2B status in FY 2018, 2019, or 2020,
unless the H–2B worker is a national of
one of the Northern Triangle countries
and is counted towards the 6,000 cap.
This attestation will serve as prima facie
initial evidence to DHS that each
worker, unless a national of one of the
Northern Triangle countries who is
counted against the 6,000 cap, meets the
returning worker requirement. DHS and
DOS retain the right to review and
verify that each beneficiary is in fact a
returning worker any time before and
after approval of the petition or visa.
DHS has authority to review and verify
this attestation during the course of an
audit or investigation.
D. Returning Worker Exemption for up
to 6,000 Visas for Nationals of
Guatemala, El Salvador, and Honduras
(Northern Triangle Countries)
As described above, the Secretary of
Homeland Security has determined that
up to 6,000 additional H–2B visas will
be limited to workers who are nationals
of one of the Northern Triangle
countries. These 6,000 visas will be
exempt from the returning worker
requirement. If the 6,000 visa limit has
been reached and the 16,000 cap has
not, petitioners may continue to request
workers who are nationals of one of the
Northern Triangle countries, but these
noncitizens must be specifically
requested as returning workers who
were issued H–2B visas or were
otherwise granted H–2B status in FY
2018, 2019, or 2020. Alternatively, if the
returning worker exemption cap
initially reserved for nationals from the
Northern Triangle remains unfilled on
July 8, 2021, the remaining H–2B visas
will be made available to workers

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irrespective of their home country, but
these noncitizens must be returning
workers. USCIS will announce the
availability of the remainder of the
allocation on the USCIS website at
uscis.gov no later than July 23, 2021.
DHS has determined that reserving
6,000 supplemental H–2B visas for
nationals of the Northern Triangle
countries—a number significantly
higher than the average annual number
of visas issued to such persons in the
past 6 fiscal years—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. DOS issued a combined
total of approximately 26,600 H–2B
visas to nationals of the Northern
Triangle countries from FY 2015
through FY 2020, an average of
approximately 4,400 per year.69 As
previously stated, DHS has determined
that the additional increase will not
only provide U.S. businesses who have
been unable to find qualified and
available U.S. workers with potential
workers, but also promote lawful
immigration and lawful employment
authorization for Northern Triangle
nationals.
While DHS reiterates the importance
of limiting the general supplemental cap
exclusively to returning workers, for the
reasons stated previously, the Secretary
has determined that the exemption from
the returning worker requirement for
nationals of the Northern Triangle
countries is beneficial for the following
reasons. It strikes a balance between
furthering the U.S. foreign policy
interests of expanding access to lawful
pathways in the United States for
Northern Triangle nationals and
addressing the needs of certain H–2B
employers at risk of suffering from
irreparable harm. This policy initiative
would also support the strategies for the
region described in E.O. 14010, which
directs DHS to implement efforts to
expand access to lawful immigration to
the United States, including visa
programs, as appropriate and consistent
with the law through both protectionrelated and non-protection related
programs. The availability of workers
from the Northern Triangle countries
may help provide U.S. employers with
additional labor from neighboring
countries who are committed to working
with the United States and also promote
69 DOS Monthly NIV Issuances by Nationality and
Visa Class; https://travel.state.gov/content/travel/
en/legal/visa-law0/visa-statistics/nonimmigrantvisa-statistics.html (last visited April 11, 2021).

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safe and lawful immigration to the
United States.
Similar to the discussion above
regarding returning workers, DOS will
work with the relevant countries to
facilitate consular interviews, as
required,70 and channels for reporting
incidents of fraud and abuse within the
H–2 programs. Further, each country’s
own consular networks will maintain
contact with the workers while in the
United States and ensure the workers
know their rights and responsibilities
under the U.S. immigration laws, which
are all valuable protections to the
immigration system, U.S. employers,
U.S. workers, and workers entering the
country on H–2 visas.
Nothing in this rule will limit the
authority of DHS or DOS to deny,
revoke, or take any other lawful action
with respect to an H–2B petition or visa
application at any time before or after
approval of the H–2B petition or visa
application.
E. Business Need Standard—Irreparable
Harm and FY 2021 Attestation
To file any H–2B petition under this
rule during the remainder of FY 2021,
petitioners must meet all existing H–2B
eligibility requirements, including
having an approved, valid, and
unexpired TLC. See 8 CFR 214.2(h)(6)
and 20 CFR part 655, subpart A. In
addition, the petitioner must submit an
attestation to USCIS in which the
petitioner affirms, under penalty of
perjury, that it meets the business need
standard. Under that standard, the
petitioner must be able to establish that,
if it does not receive all of the workers
requested under the cap increase,71 it is
likely to suffer irreparable harm, that is,
permanent and severe financial loss.
The TLC process focuses on establishing
whether a petitioner has a temporary
need for workers and whether there are
U.S. workers who are able, willing,
qualified, and available to perform the
70 As noted previously, some consular sections
waive the in-person interview requirement for H–
2B applicants whose prior visa expired within a
specific timeframe and who otherwise meet the
strict limitations set out under INA section 222(h),
8 U.S.C. 1202(h) and, as an effort to reduce the risk
of COVID–19 transmission, DOS recently expanded
the ability of consular officers to waive the inperson interview requirement for individuals
applying for a nonimmigrant visa in the same
classification. DOS, Expansion of Interview Waiver
Eligibility, https://travel.state.gov/content/travel/en/
News/visas-news/expansion-of-interview-waivereligibility.html (last updated Mar. 11, 2021).
71 An employer may request fewer workers on the
H–2B petition than the number of workers listed on
the TLC. See Instructions for Petition for
Nonimmigrant Worker, providing that ‘‘the total
number of workers you request on the petition must
not exceed the number of workers approved by the
Department of Labor or Guam Department of Labor,
if required, on the temporary labor certification.’’

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temporary service or labor, and does not
address the harm a petitioner may face
in the absence of such workers; the
attestation addresses this question. The
attestation must be submitted directly to
USCIS, together with Form I–129, the
approved and valid TLC, and any other
necessary documentation. As in the
rules implementing the FY 2017, FY
2018, and FY 2019 temporary cap
increases, employers will be required to
complete the new attestation form
which can be found at: https://
www.foreignlaborcert.doleta.gov/
form.cfm.72
The attestation form will serve as
prima facie initial evidence to DHS that
the petitioner’s business is likely to
suffer irreparable harm. Any petition
requesting H–2B workers under the FY
2021 supplemental cap that is received
lacking the requisite attestation form
may be, as applicable, rejected in
accordance with 8 CFR 103.2(a)(7)(ii) or
denied in accordance with 8 CFR
103.2(b)(8)(ii). Although this regulation
does not require submission of evidence
at the time of filing of the petition, other
than an attestation, the employer must
have such evidence on hand and ready
to present to DHS or DOL at any time
starting with the date of filing the I–129
petition, through the prescribed
document retention period discussed
below. In fact, the Departments intend
to select a significant number of
petitions approved for audit
examination to verify compliance with
program requirements, including the
irreparable harm standard and
recruitment provisions implemented
through this rule. Failure to provide
evidence demonstrating irreparable
harm or to comply with the audit
process may be considered a substantial
violation resulting in an adverse agency
action on the employer, including
revocation of the petition and/or TLC or
program debarment. Similarly, failure to
cooperate with any compliance review,
evaluation, verification, or inspection
conducted by DHS or DOL as required
by 8 CFR 214.2(h)(6)(x)(B)(2)(vi) and
(vii), respectively, may constitute a
violation of the terms and conditions of
an approved petition and lead to
petition revocation under 8 CFR
214.2(h)(11)(iii)(A)(3).
In addition to the statement regarding
the irreparable harm standard, the
72 This portion of the temporary rule does not
apply to workers who have already been counted
under the fiscal year 2021 H–2B statutory cap
(66,000). Further, this portion of the rule does not
apply to noncitizens who are exempt from the fiscal
year 2021 H–2B statutory cap, including those who
are extending their stay in H–2B status.
Accordingly, petitioners who are filing on behalf of
such workers are not subject to the attestation
requirement.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
attestation submitted to USCIS will also
state that the employer meets all other
eligibility criteria for the available visas,
including the returning worker
requirement, unless exempt because the
H–2B worker is a national of one of the
Northern Triangle countries who is
counted against the 6,000 visas reserved
for such workers; will comply with all
assurances, obligations, and conditions
of employment set forth in the
Application for Temporary Employment
Certification (Form ETA 9142B and
appendices) certified by DOL for the job
opportunity (which serves as the TLC);
will conduct additional recruitment of
U.S. workers in accordance with the
requirements of this rule and discussed
further below; and will document and
retain evidence of such compliance.
Because the attestation will be
submitted to USCIS as initial evidence
with Form I–129, DHS considers the
attestation to be evidence that is
incorporated into and a part of the
petition consistent with 8 CFR
103.2(b)(1). Accordingly, a petition may
be denied or revoked, as applicable,
based on or related to statements made
in the attestation, including but not
limited to the following grounds: (1)
Because the employer failed to
demonstrate employment of all of the
requested workers as required under the
irreparable harm standard; and (2) the
employer failed to demonstrate that it
requested and/or instructed that each
worker petitioned for was a returning
worker, or a national of one of the
Northern Triangle countries, as required
by this rule. Any denial or revocation on
such basis, however, would be
appealable under 8 CFR part 103,
consistent with DHS regulations and
existing USCIS procedures.
It is the view of the Secretaries of
Homeland Security and Labor that
requiring a post-TLC attestation to
USCIS is the most practical approach,
given the time remaining in FY 2021
and the need to assemble the necessary
documentation. In addition, the
employer is required to retain
documentation, which must be
provided upon request by DHS or DOL,
supporting the new attestations
regarding (1) the irreparable harm
standard, (2) the returning worker
requirement, or, alternatively,
documentation supporting that the
H–2B worker(s) requested is a national
of one of the Northern Triangle
countries who is counted against the
6,000 cap (which may be satisfied by the
separate Form I–129 that employers are
required to file for such workers in
accordance with this rule) and (3) a
recruitment report for any additional

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recruitment required under this rule for
a period of 3 years. See new 20 CFR
655.68. Although the employer must
have such documentation on hand at
the time it files the petition, the
Departments have determined that, if
employers were required to submit the
attestation form to DOL before filing a
petition with DHS, the attendant delays
would render any visas unlikely to
satisfy the needs of American
businesses given processing timeframes
and the time remaining in this fiscal
year. However, as noted above, the
Departments will be conducting audits,
investigations and/or post-adjudication
compliance reviews on a significant
number of H–2B petitions. As part of
that process, USCIS may issue a request
for additional evidence, a notice of
intent to revoke, or a revocation notice,
based on the review of such
documentation, and DOL’s OFLC and
WHD will be able to review this
documentation and enforce the
attestations during the course of an
audit examination or investigation. See
8 CFR 103.2(b) or 8 CFR 214.2(h)(11).
In accordance with the attestation
requirements, under which petitioners
attest that they meet the irreparable
harm standard, that they are seeking to
employ only returning workers (unless
exempt as described above), and they
meet the document retention
requirements at new 20 CFR 655.68, the
petitioner must retain documents and
records fulfilling their responsibility to
demonstrate compliance with this rule
for 3 years from the date of the
attestation, and must provide the
documents and records upon the
request of DHS or DOL. Supporting
evidence may include, but is not limited
to, the following types of
documentation:
(1) Evidence that the business has
suffered or will suffer permanent and
severe financial loss due to the inability
to meet financial or existing contractual
obligations without all of the H–2B
workers, including evidence of
contracts, reservations, orders, or other
business arrangements that have been or
would be cancelled absent the requested
H–2B workers, and evidence
demonstrating an inability to pay debts/
bills;
(2) Evidence that the business has
suffered or will suffer permanent and
severe financial loss during the period
of need, as compared to the period of
need in prior years, such as financial
statements (including profit/loss
statements) comparing the present
period of need to prior years; bank
statements, tax returns, or other
documents showing evidence of current
and past financial condition; and

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relevant tax records, employment
records, or other similar documents
showing hours worked and payroll
comparisons from prior years to current
year;
(3) Evidence showing the number of
workers needed in the previous three
seasons (FY 2018, 2019 and 2020) to
meet the employer’s need as compared
to those currently employed. Such
evidence must indicate the dates of their
employment, and their hours worked
(for example, payroll records) and
evidence showing the number of H–2B
workers requested under this rule, the
number of workers it claims are needed,
the workers’ actual dates of employment
and hours worked;
(4) Evidence that the petitioner is
reliant on obtaining a certain number of
workers to operate, based on the nature
and size of the business, such as
documentation showing the number of
workers it has needed to maintain its
operations in the past, or will need
prospectively, including but not limited
to; a detailed business plan, copies of
purchase orders or other requests for
good and services, or other reliable
forecast of its need for workers; and/or
(5) With respect to satisfying the
returning worker requirement, evidence
that the employer requested and/or
instructed that each of the workers
petitioned by the employer in
connection with this temporary rule
were issued H–2B visas or otherwise
granted H–2B status in FY 2018, 2019,
or 2020, unless the H–2B worker is a
national of one of the Northern Triangle
countries counted towards the 6,000
cap. Such evidence would include, but
is not limited to, a date-stamped written
communication from the employer to its
agent(s) and/or recruiter(s) that instructs
the agent(s) and/or recruiter(s) to only
recruit and provide instruction
regarding an application for an H–2B
visa to those foreign workers who were
previously issued an H–2B visa or
granted H–2B status in FY 2018, 2019,
or 2020.
These examples are not exhaustive,
nor will they necessarily establish that
the business meets the irreparable harm
or returning worker standards;
petitioners may retain other types of
evidence they believe will satisfy these
standards. When an approved petition is
selected for audit examination or
investigation, DHS or DOL will review
all evidence available to it to confirm
that the petitioner properly attested to
DHS that their business would likely
suffer irreparable harm and that they
petitioned for and employed only
returning workers, unless the H–2B
worker is a national of one of the
Northern Triangle countries counted

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towards the 6,000 cap. If DHS
subsequently finds that the evidence
does not support the employer’s
attestations, DHS may deny or, if the
petition has already been approved,
revoke the petition at any time
consistent with existing regulatory
authorities. DHS may also, or
alternatively, notify DOL. In addition,
DOL may independently take
enforcement action, including by,
among other things, debarring the
petitioner from the H–2B program for
not less than 1 year or more than 5 years
from the date of the final agency
decision, which also disqualifies the
debarred party from filing any labor
certification applications or labor
condition applications with DOL for the
same period set forth in the final
debarment decision. See, e.g., 20 CFR
655.73; 29 CFR 503.20, 503.24.73
To the extent that evidence reflects a
preference for hiring H–2B workers over
U.S. workers, an investigation by other
agencies enforcing employment and
labor laws, such as the Immigrant and
Employee Rights Section (IER) of the
Department of Justice’s Civil Rights
Division, may be warranted. See INA
section 274B, 8 U.S.C. 1324b
(prohibiting certain types of
employment discrimination based on
citizenship status or national origin).
Moreover, DHS and DOL may refer
potential discrimination to IER pursuant
to applicable interagency agreements.
See IER, Partnerships, https://
www.justice.gov/crt/partnerships (last
visited Apr. 9, 2021). In addition, if
members of the public have information
that a participating employer may be
abusing this program, DHS invites them
to notify USCIS by completing the
online fraud tip form, https://
www.uscis.gov/report-fraud/uscis-tipform (last visited Apr. 9, 2021).74
DHS, in exercising its statutory
authority under INA section
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b), and section 105 of
the FY 2021 Omnibus, is responsible for
adjudicating eligibility for H–2B
73 Pursuant to the statutory provisions governing
enforcement of the H–2B program, INA section
214(c)(14), 8 U.S.C. 1184(c)(14), a violation exists
under the H–2B program where there has been a
willful misrepresentation of a material fact in the
petition or a substantial failure to meet any of the
terms and conditions of the petition. A substantial
failure is a willful failure to comply that constitutes
a significant deviation from the terms and
conditions. See, e.g., 29 CFR 503.19.
74 DHS may publicly disclose information
regarding the H–2B program consistent with
applicable law and regulations. For information
about DHS disclosure of information contained in
a system of records, see https://www.dhs.gov/
system-records-notices-sorns. Additional general
information about DHS privacy policy generally can
be accessed at https://www.dhs.gov/policy.

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classification. As in all cases, the
burden rests with the petitioner to
establish eligibility by a preponderance
of the evidence. INA section 291, 8
U.S.C. 1361. Matter of Chawathe, 25
l&N Dec. 369, 375–76 (AAO 2010).
Accordingly, as noted above, where the
petition lacks initial evidence, such as
a properly completed attestation, DHS
may, as applicable, reject the petition in
accordance with 8 CFR 103.2(a)(7)(ii) or
deny the petition in accordance with 8
CFR 103.2(b)(8)(ii). Further, where the
initial evidence submitted with the
petition contains inconsistencies or is
inconsistent with other evidence in the
petition and the underlying TLC, DHS
may issue a Request for Evidence,
Notice of Intent to Deny, or Denial in
accordance with 8 CFR 103.2(b)(8). In
addition, where it is determined that an
H–2B petition filed pursuant to the FY
2021 Omnibus was granted erroneously,
the H–2B petition approval may be
revoked. See 8 CFR 214.2(h)(11).
Because of the particular
circumstances of this regulation, and
because the attestation and other
requirements of this rule play a vital
role in achieving the purposes of this
rule, DHS and DOL intend that the
attestation requirement, DOL
procedures, and other aspects of this
rule be non-severable from the
remainder of the rule, including the
increase in the numerical allocations.75
Thus, in the event the attestation
requirement or any other part of this
rule is enjoined or held invalid, the
remainder of the rule, with the
exception of the retention requirements
being codified in 20 CFR 655.68, is also
intended to cease operation in the
relevant jurisdiction, without prejudice
to workers already present in the United
States under this regulation, as
consistent with law.

subsequent to such lawful admission,
and must currently hold valid H–2B
status. Since every H–2B petition must
be accompanied by an approved TLC,
all H–2B petitioners must have
completed a test of the U.S. labor
market, as a result of which DOL
determined that there were no qualified
U.S. workers available to fill these
temporary positions.
This provision mirrors temporary
flexibilities that DHS has used
previously to improve employer access
to noncitizen workers during the
COVID–19 pandemic.76 In the context of
this rule, DHS believes this flexibility
will help some U.S. employers address
the challenges related to the limitations
imposed by the cap, as well as due to
the ongoing disruptions caused by the
COVID–19 pandemic. The pandemic
has resulted in a variety of travel
restrictions and visa processing
limitations to mitigate the spread of
COVID–19.
In addition to resulting in a
devastating loss of life, the worldwide
pandemic of COVID–19 has impacted
the United States in myriad ways,
disrupting daily life, travel, and the
operation of individual businesses and
the economy at large. On January 31,
2020, the Secretary of the U.S.
Department of Health and Human
Services (HHS) declared a public health
emergency dating back to January 27,
2020, under section 319 of the Public
Health Service Act (42 U.S.C. 247d).77
This determination that a public health
emergency exists due to COVID–19 has
subsequently been renewed five times:
On April 21, 2020, on July 23, 2020, on
October 2, 2020, on January 7, 2021, and
most recently on April 15, 2021,
effective April 21, 2021.78 On March 13,
2020, then-President Trump declared a
National Emergency concerning the

G. Portability

76 On May 14, 2020, DHS published a temporary
final rule in the Federal Register to amend certain
H–2B requirements to help H–2B petitioners
seeking workers to perform temporary
nonagricultural services or labor essential to the
U.S. food supply chain. 85 FR 28843 (May 14,
2020). In addition, on April 20, 2020, DHS issued
a temporary final rule which, among other
flexibilities, allowed H–2A workers to change
employers and begin work before USCIS approved
the new H–2A petition for the new employer. 85 FR
21739. DHS has subsequently extended that
portability provision for H–2A workers through two
additional temporary final rules, on August 20,
2020, and December 18, 2020, which have been
effective for H–2A petitions that were received on
or after August 19, 2020 through December 17,
2020, and on or after December 18, 2020 through
June 16, 2021, respectively. 85 FR 51304 and 85 FR
82291.
77 HHS, Determination of Public Health
Emergency, 85 FR 7316 (Feb. 7, 2020).
78 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/COVID-15April2021.aspx (Apr. 15, 2021).

As an additional option for employers
that cannot find U.S. workers this rule
allows petitioners to hire immediately
certain H–2B workers that are already
present in the United States in H–2B
status without waiting for approval of a
new H–2B petition. Specifically, the
rule allows H–2B nonimmigrant
workers to begin new employment with
a new H–2B employer or agent upon
USCIS’ receipt of a timely, non-frivolous
H–2B petition. The H–2B nonimmigrant
worker must have been lawfully
admitted to the United States, must not
have worked without authorization
75 The Departments’ intentions with respect to
non-severability extend to all features of this rule
other than the portability provision, which is
described in the section below.

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COVID–19 outbreak to control the
spread of the virus in the United
States.79 The proclamation declared that
the emergency began on March 1, 2020.
DOS temporarily suspended routine
immigrant and nonimmigrant visa
services at all U.S. Embassies and
Consulates on March 20, 2020, and
subsequently announced a phased
resumption of visa services in which it
would continue to provide emergency
and mission critical visa services and
resume routine visa services as local
conditions and resources allowed.80
Based on the importance of the H–2A
temporary agricultural worker and H–2B
temporary nonagricultural worker
programs, DOS indicated it would
continue processing H–2A and H–2B
cases to the extent possible, as
permitted by post resources and local
government restrictions, and expanded
the categories of H–2 visa applicants
whose applications can be adjudicated
without an in-person interview.81 As
recently as April 6, 2021, however, DOS
noted the COVID–19 pandemic
continues to have a severe adverse
impact on routine visa services for
embassies and consulates around the
world.82
Further, due to the possibility that
some H–2B workers may be unavailable
due to visa processing delays or may
become unavailable due to COVID–19
related illness or a legitimate fear of
contracting COVID–19 under current
conditions, U.S. employers that have
approved H–2B petitions or who will be
filing H–2B petitions in accordance with
this rule might not receive all of the
workers requested to fill the temporary
positions.
DHS is strongly committed not only to
protecting U.S. workers and helping
U.S. businesses receive the documented
and work-authorized workers to perform
temporary nonagricultural services or
labor that they need, but also to
protecting the rights and interests of
H–2B workers (consistent with
Executive Order 13563 and in particular
its reference to ‘‘equity,’’ ‘‘fairness,’’ and
‘‘human dignity’’). In the FY 2020 DHS
79 Proclamation 9994 of Mar. 13, 2020, Declaring
a National Emergency Concerning the Coronavirus
Disease (COVID–19) Outbreak, 85 FR 15337 (Mar.
18, 2020).
80 DOS, Suspension of Routine Visa Services,
https://travel.state.gov/content/travel/en/News/
visas-news/suspension-of-routine-visa-services.html
(last updated July 22, 2020).
81 DOS, Important Announcement on H2 Visas,
https://travel.state.gov/content/travel/en/News/
visas-news/important-announcement-on-h2visas.html (last updated Mar. 26, 2020).
82 DOS, Visa Services Operating Status Update,
https://travel.state.gov/content/travel/en/News/
visas-news/visa-services-operating-statusupdate.html (last updated, Apr. 6, 2021).

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Further Consolidated Appropriations
Act (Public Law 116–94), Congress
directed DHS to provide options to
improve the H–2A and H–2B visa
programs, to include options that would
protect worker rights.83 DHS has
determined that providing H–2B
nonimmigrant workers with the
flexibility of being able to begin work
with a new H–2B petitioner
immediately and avoid a potential job
loss or loss of income while the new H–
2B petition is pending, provides some
certainty to H–2B workers who have
maintained their status but may have
found themselves in situations that
warrant a change in employers.84
Providing that flexibility is also
equitable and fair.
Portability for H–2B workers provides
these noncitizens with the option of not
having to worry about job loss or loss of
income between the time they leave a
current employer and while they await
approved employment with a new U.S.
employer or agent. DHS believes this
flexibility and job portability not only
protects H–2B workers but also provides
an alternative to H–2B petitioners who
have not been able to find U.S. workers
and who have not been able to obtain
H–2B workers subject to the statutory or
supplemental caps who have the skills
to perform the job duties. In that sense
as well, it is equitable and fair.
DHS is making this flexibility
available for a 180-day period in order
to provide stability for H–2B employers
amidst uncertainties surrounding the
COVID–19 pandemic. This period is
justified especially given the possible
83 The Joint Explanatory Statement accompanying
the Fiscal Year (FY) 2020 Department of Homeland
Security (DHS) Further Consolidated
Appropriations Act (Public Law 116–94) states,
‘‘H–2A and H–2B Visa Program Processes.—Not
later than 120 days after the date of enactment of
this Act, DHS, the Department of Labor, the
Department of State, and the United States Digital
Service are directed to report on options to improve
the execution of the H–2A and H–2B visa programs,
including: processing efficiencies; combatting
human trafficking; protecting worker rights; and
reducing employer burden, to include the
disadvantages imposed on such employers due to
the current semiannual distribution of H–2B visas
on October 1 and April 1 of each fiscal year. USCIS
is encouraged to leverage prior year materials
relating to the issuance of additional H–2B visas, to
include previous temporary final rules, to improve
processing efficiencies.’’
84 The National Action Plan to Combat Human
Trafficking, Priority Action 1.6.3, at p. 20–21 (2020)
(Stating that ‘‘[w]orkers sometimes find themselves
in abusive work situations, but because their
immigration status is dependent on continued
employment with the employer in whose name the
visa has been issued, workers may be left with few
options to leave that situation.’’ By providing the
option of changing employers without risking job
loss or a loss of income through the publication of
this rule, DHS believes that H–2B workers may be
more likely to leave abusive work situations, and
thereby are afforded greater worker protections.)

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future impacts of COVID–19 variants,
continuing limited vaccine access for
certain groups (including in H–2B
workers’ home countries), and
uncertainty regarding the duration of
vaccine-gained immunity and how
effective currently approved vaccines
are in responding to COVID–19
variants.85 DHS will continue to
monitor the evolving health crisis
caused by COVID–19 and may address
it in future rules.
H. COVID–19 Worker Protections
It is the policy of DHS and its Federal
partners to support equal access to the
COVID–19 vaccines and vaccine
distribution sites, irrespective of an
individuals’ immigration status.86 This
policy promotes fairness and equity (see
Executive Order 13563). Accordingly,
DHS and DOL encourage all
individuals, regardless of their
immigration status, to receive the
COVID–19 vaccine. U.S. Immigration
and Customs Enforcement (ICE) and
U.S. Customs and Border Protection do
not conduct enforcement operations at
or near vaccine distribution sites or
clinics. Consistent with ICE’s longstanding sensitive locations policy, ICE
does not and will not carry out
enforcement operations at or near health
care facilities, such as hospitals,
doctors’ offices, accredited health
clinics, and emergent or urgent care
facilities, except in the most
extraordinary of circumstances.
This TFR reflects that policy by
providing as follows:
Supplemental H–2B Visas: With
respect to petitioners who wish to
qualify to receive supplemental H–2B
visas pursuant to the FY 2021 Omnibus,
the Departments are using the DOL
Form ETA–9142–B–CAA–4 to support
equal access to vaccines in two ways.
First, the Departments are requiring
such petitioners to attest on the DOL
Form ETA–9142–B–CAA–4 that,
consistent with such petitioners’
obligations under generally applicable
H–2B regulations, they will comply
with all Federal, State, and local
employment-related laws and
85 See, About Variants of the Virus that Causes
COVID–19, Centers for Disease Control and
Prevention, last updated April 2, 2021. https://
www.cdc.gov/coronavirus/2019-ncov/transmission/
variant.html, Key Things to Know About COVID–
19 Vaccines, https://www.cdc.gov/coronavirus/
2019-ncov/vaccines/keythingstoknow.html?s_
cid=10499:what%20is%20the
%20covid%20vaccine:sem.ga:p:RG:
GM:gen:PTN:FY21 (Last visited April 14, 2021).
86 See DHS Statement on Equal Access to COVID–
19 Vaccines and Vaccine Distribution Sites, https://
www.dhs.gov/news/2021/02/01/dhs-statementequal-access-covid-19-vaccines-and-vaccinedistribution-sites (Feb. 1, 2021), (accessed Apr. 28,
2021).

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regulations, including health and safety
laws and laws related to COVID–19
worker protections and any right to time
off or paid time off for COVID–19
vaccination. See new 8 CFR
214.2(h)(6)(x)(B)(2)(iii) and 20 CFR
655.64(a)(4). Second, the Departments
are requiring such petitioners to also
attest that they will notify any H–2B
workers approved under the
supplemental cap, in a language
understood by the worker, as necessary
or reasonable, that all persons in the
United States, including
nonimmigrants, have equal access to
COVID–19 vaccines and vaccine
distribution sites. Because the
attestation will be submitted to USCIS
as initial evidence with Form I–129,
DHS considers the attestation to be
evidence that is incorporated into and a
part of the petition consistent with 8
CFR 103.2(b)(1). Accordingly, a petition
may be denied or revoked, as
applicable, based on or related to
statements made in the attestation,
including, but not limited to, because
the employer violated an applicable
employment-related law or regulation,
or failed to notify workers regarding
equal access to COVID–19 vaccines and
vaccine distribution sites.
Other H–2B Employers: While there is
no additional attestation with respect to
H–2B petitioners that do not avail
themselves of the supplemental H–2B
visas made available under this rule, the
Departments remind all H–2B
employers that they must 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 any right to time
off or paid time off for COVID–19
vaccination. Failure to comply with
such laws may be a basis for DHS to
revoke the petition under 8 CFR
214.2(h)(11). This obligation is also
reflected as a condition of H–2B
portability under this rule. See new 8
CFR 214.2(h)(26)(iii)(C).
Ensuring that the Departments
encourage employers to provide access
to COVID–19 vaccines is consistent with
the policies of the Biden
Administration. President Biden, in his
speech to Joint Session of Congress,
made the following statement: ‘‘[T]oday,
I’m announcing a program to address
[the issue of COVID vaccinations] . . .
nationwide. I’m calling on every
employer, large and small, in every
state, to give employees the time off
they need, with pay, to get vaccinated
and any time they need, with pay, to
recover if they are feeling under the

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weather after the shot.’’ 87 Consistent
with the President’s statement, the
Departments strongly urge, but do not
require, that all employers seeking H–2B
workers under either the Supplemental
Cap or portability sections of the TFR,
make every effort to ensure that all their
workers, including nonimmigrant
workers, be afforded an opportunity to
take the time off needed to get receive
their COVID–19 vaccinations, as well as
time off, with pay, to recover from any
temporary side effect.
As noted, Executive Order 13563
refers to fairness, equity, and human
dignity, and such efforts, on the part of
employers, would be consistent with
those commitments.
Petitioners otherwise are strongly
encouraged to facilitate and provide
flexibilities, to the greatest extent
possible, to all workers who wish to
receive COVID–19 vaccinations.
I. DHS Petition Procedures
To petition for H–2B workers under
this rule, the petitioner must file a Form
I–129 in accordance with applicable
regulations and form instructions, an
unexpired TLC, and the attestation form
described above. All H–2B petitions
must state the nationality of all the
requested H–2B workers, whether
named or unnamed, even if there are
beneficiaries from more than one
country. See 8 CFR 214.2(h)(2)(iii). If
filing multiple Forms I–129 based on
the same TLC (for instance, one
requesting returning workers and
another requesting workers who are
nationals of one of the Northern
Triangle countries), each H–2B petition
must include a copy of the TLC and
reference all previously-filed or
concurrently filed petitions associated
with the same TLC. The total number of
requested workers may not exceed the
total number of workers indicated on
the approved TLC. Petitioners seeking
H–2B classification for Northern
Triangle country nationals under the
6,000 visas that are exempt from the
returning worker provision must file a
separate Form I–129 for those Northern
Triangle country nationals only. See
new 8 CFR 214.2(h)(6)(x). Requiring the
filing of separate petitions to request
returning workers and to request
workers who are Northern Triangle
country nationals is necessary to ensure
the operational capability to properly
calculate and manage the respective
additional cap allocations and to ensure
that all corresponding visa issuances are
87 See https://www.whitehouse.gov/briefing-room/
speeches-remarks/2021/04/21/remarks-bypresident-biden-on-the-covid-19-response-and-thestate-of-vaccinations-2/.

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limited to qualifying applicants,
particularly when such petitions request
unnamed beneficiaries or are relied
upon for subsequent requests to
substitute beneficiaries in accordance
with 8 CFR 214.2(h)(6)(viii). The
attestations must be filed on Form ETA–
9142–B–CAA–4, Attestation for
Employers Seeking to Employ H–2B
Nonimmigrants Workers Under Section
105 of Division O of the Further
Consolidated Appropriations Act, 2021
Public Law 116–260. See 20 CFR
655.64. A petitioner is required to retain
a copy of such attestations and all
supporting evidence for 3 years from the
date the associated TLC was approved,
consistent with 20 CFR 655.56 and 29
CFR 503.17. See new 20 CFR 655.68.
Petitions submitted to DHS pursuant to
the FY 2021 Omnibus will be processed
in the order in which they were
received. Petitioners may also choose to
request premium processing of their
petitions under 8 CFR 103.7(e), which
allows for expedited processing for an
additional fee.
To encourage timely filing of any
petition seeking a visa under the FY
2021 Omnibus, DHS is notifying the
public that the petition may not be
approved by USCIS on or after October
1, 2021. See new 8 CFR 214.2(h)(6)(x).
Petitions pending with USCIS that are
not approved before October 1, 2021
will be denied and any fees will not be
refunded. See new 8 CFR 214.2(h)(6)(x).
USCIS’s current processing goal for
H–2B petitions filed via premium
processing that can be adjudicated
without the need for further evidence
(in other words, without a Request for
Evidence or Notice of Intent to Deny) is
15 days. USCIS intends to adjudicate
petitions filed for standard processing
within a reasonable period of time.88
Given USCIS’ processing goals for
premium processing, DHS believes that
15 days from the end of the fiscal year
is the minimum time needed for
petitions to be adjudicated, although
USCIS cannot guarantee the time period
will be sufficient in all cases. Therefore,
if the increase in the H–2B numerical
limitation to 22,000 visas has not yet
been reached, USCIS will stop accepting
petitions received after September 15,
2021. See new 8 CFR 214.2(h)(6)(x)(C).
Such petitions will be rejected and the
filing fees will be returned.
As with other Form I–129 filings, DHS
encourages petitioners to provide a
duplicate copy of Form I–129 and all
supporting documentation at the time of
filing if the beneficiary is seeking a
88 These processing goals are not binding on
USCIS; depending on the evidence presented,
actual processing times may vary.

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nonimmigrant visa abroad. Failure to
submit a duplicate copy may cause a
delay in the issuance of a visa to an
otherwise eligible applicant.89

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J. DOL Procedures
As noted above, all employers are
required to have an approved and valid
TLC from DOL in order to file a Form
I–129 petition with DHS. See 8 CFR
214.2(h)(6)(iv)(A) and (D). The
standards and procedures governing the
submission and processing of
Applications for Temporary
Employment Certification for employers
seeking to hire H–2B workers are set
forth in 20 CFR part 655, subpart A.
Employers with an approved TLC have
conducted recruitment, as set forth in 20
CFR 655.40 through 655.48, to
determine whether U.S. workers are
qualified and available to perform the
work for which H–2B workers are
sought.
In addition to the recruitment already
conducted in connection with a valid
TLC, in order to ensure the recruitment
has not become stale, employers that
wish to obtain visas for their workers
under 8 CFR 214.2(h)(6)(x), and who file
an I–129 petition 45 or more days after
the certified start date of work on the
TLC must conduct additional
recruitment for U.S. workers. This is
particularly important this year as U.S.
workers have begun to, and will
continue to, reenter the workforce as
they become vaccinated and the
COVID–19 emergency subsides.
As noted in the 2015 H–2B Interim
Final Rule, U.S. workers seeking
employment in temporary or seasonal
nonagricultural jobs typically do not
search for work months in advance, and
cannot make commitments about their
availability for employment far in
advance of the work start date. See 80
FR 24041, 24061, 24071. Given that the
temporary labor certification process
generally begins 75 to 90 days in
advance of the employer’s start date of
work, employer recruitment efforts
typically occur between 40 and 60 days
before that date with an obligation to
provide employment to any qualified
U.S. worker who applies until 21 days
before the date of need. Therefore,
employers with TLCs containing a start
date of work on April 1, 2021, likely
conducted their positive recruitment
beginning around late-January and
ending around mid-February 2021, and
continued to consider U.S. worker
89 Petitioners should note that under section 105,
the H–2B numerical increase relates to the total
number of noncitizens who may receive a visa
under INA section 101(a)(15)(H)(ii)(b) in this fiscal
year.

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applicants and referrals only until
March 11, 2021.
In order to provide U.S. workers a
realistic opportunity to pursue jobs for
which employers will be seeking foreign
workers under this rule, the
Departments have determined that if
employers file an I–129 petition 45 or
more days after their dates of need, they
have not conducted recruitment
recently enough for the Departments to
reasonably conclude that there are
currently an insufficient number of U.S.
workers who are qualified, willing, and
available to perform the work absent
taking additional, positive recruitment
steps. The 45-day threshold for
additional recruitment identified in this
rule reflects a timeframe between the
end of the employer’s recruitment and
filing of the petition similar to that
provided under the FY 2018 and FY
2019 H–2B supplemental cap rules.
An employer who files an I–129
petition under 8 CFR 214.2(h)(6)(x) less
than 45 after the certified start date of
work on the TLC must submit the TLC
and a completed Form ETA–9142B–
CAA–4, but is not required to conduct
recruitment for U.S. workers beyond the
recruitment already conducted as a
condition of certification. Only those
employers with still-valid TLCs with a
start date of work that is 45 or more
days before the date they file a petition
will be required to conduct recruitment
in addition to that conducted prior to
being granted labor certification and
attest that the recruitment will be
conducted, as follows.
The employer must place a new job
order for the job opportunity with the
State Workforce Agency (SWA) serving
the area of intended employment no
later than the next business day after
submitting an I–129 petition for H–2B
workers to USCIS. The job order must
contain the job assurances and contents
set forth in 20 CFR 655.18 for
recruitment of U.S. workers at the place
of employment, and remain posted for
at least 15 calendar days. The employer
must also follow all applicable SWA
instructions for posting job orders and
receive applications in all forms
allowed by the SWA, including online
applications. The Departments have
concluded that keeping the job order
posted for a period of 15 calendar days,
during the period the employer is
conducting the additional recruitment
steps explained below, will effectively
ensure U.S. workers are apprised of the
job opportunity and are referred for
employment, if they are willing,
qualified, and available to perform the
work. The 15 calendar day period also
is consistent with the employer-

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conducted recruitment activity period
applicable under 20 CFR 655.40(b).
The employer also must conduct
additional recruitment steps during the
period of time the SWA is actively
circulating the job order for intrastate
clearance. First, the employer must
contact, by email or other electronic
means, the nearest American Job
Center(s) (AJC) offering business
services and serving the area of
intended employment where work will
commence to request staff assistance to
advertise and recruit U.S. workers for
the job opportunity. AJCs bring together
a variety of programs providing a wide
range of employment and training
services for U.S. workers, including job
search services and assistance for
prospective workers and recruitment
services for employers through the
Wagner-Peyser Program. Therefore,
AJCs can offer assistance to employers
with recruitment of U.S. workers, and
contact with local AJCs will facilitate
contemporaneous and effective
recruitment activities that can broaden
dissemination of the employer’s job
opportunity through connections with
other partner programs within the OneStop System to locate qualified U.S.
workers to fill the employer’s labor
need. For example, the local AJC may
contact community-based organizations
in the geographic area that serve
potentially qualified workers or, when a
job opportunity is in an occupation or
industry that is traditionally or
customarily unionized, the local AJC is
well-positioned to identify and circulate
the job order to appropriate union
offices, consistent with 20 CFR
655.33(b)(5). In addition, as a partner
program in the One-Stop System, AJCs
are connected with the state’s
unemployment insurance program, thus
an employer’s connection with the AJC
will help facilitate knowledge of the job
opportunity to U.S. workers actively
seeking employment. When contacting
the AJC(s), the employer must provide
staff with the job order number or, if the
job order number is unavailable, a copy
of the job order.
To increase navigability and to make
the process as convenient as possible,
DOL offers an online service for
employers to locate the nearest local
AJC at https://www.careeronestop.org/
and by selecting the ‘‘Find Local Help’’
feature on the main homepage. This
feature will navigate the employer to a
search function called ‘‘Find an
American Job Center’’ where the city,
state or zip code covering the
geographic area where work will
commence can be entered. Once entered
and the search function is executed, the
online service will return a listing of the

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name(s) of the AJC(s) serving that
geographic area as well as contact
option(s) and an indication as to
whether the AJC is a ‘‘comprehensive’’
or ‘‘affiliate’’ center. Employers must
contact an AJC that is labeled
‘‘comprehensive center’’ as those offer
the full range of employment and
business services. As explained on the
locator website, many AJCs continue to
offer virtual or remote services due to
the pandemic with physical office
locations temporarily closed for inperson and mail processing services.
Therefore, this rule requires that
employers utilize available electronic
methods for the nearest AJC to meet the
contact and disclosure requirements in
this rule.
Second, during the period of time the
SWA is actively circulating the job order
described in paragraph (a)(5)(i) for
intrastate clearance, the employer must
make reasonable efforts to contact (by
mail or other effective means) its former
U.S. workers that it employed in the
occupation at the place of employment
(except those who were dismissed for
cause or who abandoned the worksite)
during the period beginning January 1,
2019, until the date the I–129 petition
required under 8 CFR 214.2(h)(6)(x) is
submitted. Among the employees the
employer must contact are those who
have been furloughed or laid off during
this period. The employer must disclose
to its former employees the terms of the
job order, and solicit their return to the
job. The contact and disclosures
required by this paragraph must be
provided in a language understood by
the worker, as necessary or reasonable.
Furloughed employees are employees
the employer laid off (as the term is
defined in 20 CFR 655.5 and 29 CFR
503.4), but the layoff is intended to last
for a temporary period of time. This
recruitment step will help ensure notice
of the job opportunity is disseminated
broadly to U.S. workers who were laid
off or furloughed during the COVID–19
outbreak and who may be seeking
employment as the economy begins to
recover in 2021. While this requirement
goes beyond the requirement at 20 CFR
655.43, the Departments believes it is
appropriate given the evolving
conditions of the U.S. labor market, as
described above, and the increased
likelihood that qualified U.S. workers
will make themselves available for these
job opportunities.
Third, as the employer was required
to do when initially applying for its
labor certification, the employer must
provide a copy of the job order to the
bargaining representative for employees
in the occupation and area of intended
employment, consistent with 20 CFR

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655.45(a), or if there is no bargaining
representative, post the job order in the
places and manner described in 20 CFR
655.45(b).
The requirements to contact former
U.S. workers and provide notice to the
bargaining representative or post the job
order must be conducted in a language
understood by the workers, as necessary
or reasonable. This requirement would
apply, for example, in situations where
an employer has one or more employees
who do not speak English as their
primary language and who have a
limited ability to read, write, speak, or
understand English. This requirement
would allow those workers to make
informed decisions regarding the job
opportunity, and is a reasonable
interpretation of the recruitment
requirements in 20 CFR part 655,
subpart A, in light of the need to ensure
that the test of the U.S. labor market is
as comprehensive as possible.
Consistent with existing language
requirements in the H–2B program
under 20 CFR 655.20(l), DOL intends to
broadly interpret the necessary or
reasonable qualification, and apply an
exemption only in those situations
where having the job order translated
into a particular language would both
place an undue burden on an employer
and not significantly disadvantage the
employee.
The employer must hire any qualified
U.S. worker who applies or is referred
for the job opportunity until either (1)
the date on which the last H–2B worker
departs for the place of employment, or
(2) 30 days after the last date on which
the SWA job order is posted, whichever
is later. Additionally, consistent with 20
CFR 655.40(a), applicants may be
rejected only for lawful job-related
reasons. Given that the employer, SWA,
and AJC(s) will be actively engaged in
conducting recruitment and broader
dissemination of the job opportunity
during the period of time the job order
is active, this requirement provides an
adequate period of time for U.S. workers
to contact the employer or SWA for
referral to the employer and completion
of the additional recruitment steps
described above. As explained above,
the Departments have determined that if
employers file a petition 45 or more
days after their dates of need, they have
not conducted recruitment recently
enough for the Departments to
reasonably conclude that there are
currently an insufficient number of U.S.
workers qualified, willing, and available
to perform the work absent additional
recruitment.
Because of the abbreviated timeline
for the additional recruitment required
for employers whose initial recruitment

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has gone stale, the Departments have
determined that a longer hiring period
is necessary to approximate the hiring
period under normal recruitment
procedures and ensure that domestic
workers have access to these job
opportunities, consistent with the
Departments’ mandate. Additionally,
given the relatively brief period during
which additional recruitment will
occur, additional time may be necessary
for U.S. workers to have a meaningful
opportunity to learn about the job
opportunities and submit applications.
Although the hiring period may
require some employers to hire U.S.
workers after the start of the contract
period, this is not unprecedented. For
example, in the H–2A program,
employers have been required to hire
U.S. workers through 50 percent of the
contract period since at least 2010,90
which ‘‘enhance[s] protections for U.S.
workers, to the maximum extent
possible, while balancing the potential
costs to employers,’’ and is consistent
with the Departments’ responsibility to
ensure that these job opportunities are
available to U.S. workers.91 The
Department acknowledges that hiring
workers after the start of the contract
period imposes an additional cost on
employers, but that cost can be
lessened, in part, by the ability to
discharge the H–2B worker upon hiring
a U.S. worker. Additionally, this rule
permits employers to immediately hire
H–2B workers who are already present
in the United States without waiting for
approval of an H–2B petition, which
will reduce the potential for harm to
H–2B workers as a result of
displacement by U.S. workers. See new
8 CFR 214.2(h)(26). Most importantly, a
longer hiring period will ensure that
available U.S. workers have a viable
opportunity to apply for H–2B job
opportunities. Accordingly, the
Departments have determined that in
affording the benefits of this temporary
cap increase to businesses that need
workers to avoid irreparable harm, it is
necessary to ensure U.S. workers who
may be seeking employment as the
economy begins to recover in 2021 have
sufficient time to apply for these jobs.
Finally, as in the temporary rules
implementing the supplemental cap
increases in prior years, employers must
retain documentation demonstrating
compliance with the recruitment
requirements described above,
including placement of a new job order
90 Final Rule, Temporary Agricultural
Employment of H–2A Aliens in the United States,
75 FR 6884, 6921 (Feb. 12, 2010).
91 NPRM, Temporary Agricultural Employment of
H–2A Aliens in the United States, 74 FR 45906,
45917 (Sept. 4, 2009); 75 FR at 6922.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
with the SWA, contact with AJCs,
contact with former U.S. workers, and
compliance with § 655.45(a) or (b).
Employers must prepare and retain a
recruitment report that describes these
efforts and meets the requirements set
forth in 20 CFR 655.48, including the
requirement to update the recruitment
report throughout the recruitment and
hiring period set forth in paragraph
(a)(5)(v) of new 20 CFR 655.64.
Employers must maintain copies of the
recruitment report, attestation, and
supporting documentation, as described
above, for a period of 3 years from the
date that the TLC was approved,
consistent with the document retention
requirements under 20 CFR 655.56.
These requirements are similar to those
that apply to certain seafood employers
who stagger the entry of H–2B workers
under 20 CFR 655.15(f).
DOL’s WHD has the authority to
investigate the employer’s attestations,
as the attestations are a required part of
the H–2B petition process under this
rule and the attestations rely on the
employer’s existing, approved TLC.
Where a WHD investigation determines
that there has been a willful
misrepresentation of a material fact or a
substantial failure to meet the required
terms and conditions of the attestations,
WHD may institute administrative
proceedings to impose sanctions and
remedies, including (but not limited to)
assessment of civil money penalties;
recovery of wages due; make-whole
relief for any U.S. worker who has been
improperly rejected for employment,
laid off, or displaced; and/or debarment
for 1 to 5 years. See 29 CFR 503.19,
503.20. This regulatory authority is
consistent with WHD’s existing
enforcement authority and is not limited
by the expiration date of this rule.
Therefore, in accordance with the
documentation retention requirements
at new 20 CFR 655.68, the petitioner
must retain documents and records
evidencing compliance with this rule,
and must provide the documents and
records upon request by DHS or DOL.
DHS has the authority to verify any
information submitted to establish H–2B
eligibility at any time before or after the
petition has been adjudicated by USCIS.
See, e.g., INA sections 103 and 214 (8
U.S.C. 1103, 1184); see also 8 CFR part
103 and 8 CFR 214.2(h). DHS’
verification methods may include, but
are not limited to, review of public
records and information, contact via
written correspondence or telephone,
unannounced physical site inspections,
and interviews. USCIS will use
information obtained through
verification to determine H–2B
eligibility and assess compliance with

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the requirements of the H–2B program.
Subject to the exceptions described in 8
CFR 103.2(b)(16), USCIS will provide
petitioners with an opportunity to
address any adverse information that
may result from a USCIS compliance
review, verification, or site visit after a
formal decision is made on a petition or
after the agency has initiated an adverse
action that may result in revocation or
termination of an approval.
As previously noted, the Departments
have agreed to select a significant
number of approved petitions for audit
examination to verify compliance with
the irreparable harm standard and
additional employer conducted
recruitment implemented through this
rule. DOL’s OFLC already has the
authority under 20 CFR 655.70 to
conduct audit examinations on
adjudicated Applications for Temporary
Employment Certification, including all
appropriate appendices, and verify any
information supporting the employer’s
attestations. OFLC uses audits of
adjudicated Applications for Temporary
Employment Certification, as authorized
by 20 CFR 655.70, to ensure employer
compliance with attestations made in its
Application for Temporary Employment
Certification and to ensure the employer
has met all statutory and regulatory
criteria and satisfied all program
requirements. The OFLC certifying
officer (CO) has sole discretion to
choose which Applications for
Temporary Employment Certification
will be audited. See 20 CFR 655.70(a).
Post adjudication audits can be used to
establish a record of employer
compliance or non-compliance with
program requirements and the
information gathered during the audit
assists DOL in determining whether it
needs to further investigate or debar an
employer or its agent or attorney from
future labor certifications.
Under this rule, an employer may
submit a petition to USCIS, including a
valid TLC and Form ETA–9142B–CAA–
4, in which the employer attests to
compliance with requirements for
access to the supplemental H–2B visas
allocated through 8 CFR 214.2(h)(6)(x),
including that its business is likely to
suffer irreparable harm and that it will
conduct additional recruitment, if
necessary to refresh the TLC’s labor
market test. DHS and DOL consider
Form ETA–9142B–CAA–4 to be an
appendix to the Application for
Temporary Employment Certification
and the attestations contained on the
Form ETA–9142B–CAA–4 and
documentation supporting the
attestations to be evidence that is
incorporated into and a part of the
approved TLC. Therefore, DOL’s audit

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authority includes the authority to audit
the veracity of any attestations made on
Form ETA–9142B–CAA–4 and
documentation supporting the
attestations. However, DOL’s audit
authority is independently authorized,
and is not limited by the expiration date
of this rule. In order to make certain that
the supplemental visa allocation is not
subject to fraud or abuse, DHS will
share information regarding Forms
ETA–9142B–CAA–4 with DOL,
consistent with existing authorities.
This information sharing will support
DOL’s identification of TLCs used to
access the supplemental visa allocation
for closer examination of TLCs through
the audit process.
In accordance with the
documentation retention requirements
in this rule, the petitioner must retain
documents and records proving
compliance with this rule, and must
provide the documents and records
upon request by DHS or DOL. Under
this rule, DOL will audit a significant
number of TLCs used to access the
supplemental visa allocation to ensure
employer compliance with attestations,
including those regarding the
irreparable harm standard and
additional employer conducted
recruitment, required under this rule. In
the event of an audit, the OFLC CO will
send a letter to the employer and, if
appropriate, a copy of the letter to the
employer’s attorney or agent, listing the
documentation the employer must
submit and the date by which the
documentation must be sent to the CO.
During audits under this rule, the CO
will request documentation necessary to
demonstrate the employer conducted all
e recruitment steps required under this
rule and truthfully attested to the
irreparable harm the employer would
suffer if it does not receive all requested
workers under the cap increase,
including documentation the employer
is required to retain under this rule. If
necessary to complete the audit, the CO
may request supplemental information
and/or documentation from the
employer during the course of the audit
process. 20 CFR 655.70(c).
Failure to comply in the audit process
may result in the revocation of the
employer’s certification or in
debarment, under 20 CFR 655.72 and
655.73, respectively, or require the
employer to undergo assisted
recruitment in future filings of an
Application for Temporary Employment
Certification, under 20 CFR 655.71.
Where an audit examination or review
of information from DHS or other
appropriate agencies determines that
there has been fraud or willful
misrepresentation of a material fact or a

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substantial failure to meet the required
terms and conditions of the attestations
or failure to comply with the audit
examination process, OFLC may
institute appropriate administrative
proceedings to impose sanctions on the
employer. Those sanctions may result in
revocation of an approved TLC, the
requirement that the employer undergo
assisted recruitment in future filings of
an Application for Temporary
Employment Certification for a period of
up to 2 years, and/or debarment from
the H–2B program and any other foreign
labor certification program administered
by DOL for 1 to 5 years. See 29 CFR
655.71, 655.72, 655.73. Additionally,
OFLC has the authority to provide any
finding made or documents received
during the course of conducting an
audit examination to DHS, WHD, IER, or
other enforcement agencies. OFLC’s
existing audit authority is
independently authorized, and is not
limited by the expiration date of this
rule. Therefore, in accordance with the
documentation retention requirements
at new 20 CFR 655.68, the petitioner
must retain documents and records
proving compliance with this rule, and
must provide the documents and
records upon request by DHS or DOL.
Petitioners must also comply with any
other applicable laws, such as avoiding
unlawful discrimination against U.S.
workers based on their citizenship
status or national origin. Specifically,
the failure to recruit and hire qualified
and available U.S. workers on account
of such individuals’ national origin or
citizenship status may violate INA
section 274B, 8 U.S.C. 1324b.
IV. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
This rule is issued without prior
notice and opportunity to comment and
with an immediate effective date
pursuant to the Administrative
Procedure Act (APA). 5 U.S.C. 553(b)
and (d).

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1. Good Cause To Forgo Notice and
Comment Rulemaking
The APA, 5 U.S.C. 553(b)(B),
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency, for good
cause, finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Among other
things, the good cause exception for
forgoing notice and comment
rulemaking ‘‘excuses notice and
comment in emergency situations, or
where delay could result in serious
harm.’’ Jifry v. FAA, 370 F.3d 1174,

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1179 (D.C. Cir. 2004). Although the
good-cause exception is ‘‘narrowly
construed and only reluctantly
countenanced,’’ Tenn. Gas Pipeline Co.
v. FERC, 969 F.2d 1141, 1144 (D.C. Cir.
1992), the Departments have
appropriately invoked the exception in
this case, for the reasons set forth below.
With respect to the supplemental
allocations provisions in 8 CFR 214.2
and 20 CFR part 655, subpart A, the
Departments are bypassing advance
notice and comment because of the
exigency created by section 105 of Div.
O of the FY 2021 Omnibus, which went
into effect on December 27, 2020, and
expires on September 30, 2021, as well
as rapidly evolving economic conditions
and labor demand, as described above.
USCIS received more than enough
petitions to meet the H–2B visa
statutory cap for the second half of FY
2021 on February 12, 2021, which is 6
days earlier than when the statutory cap
for the second half of FY 2020 was
reached. USCIS conducted a lottery on
February 17, 2021, to randomly select a
sufficient number of petitions to meet
the remainder of the statutory cap.
USCIS rejected and returned the
petitions and associated filing fees to
petitioners that were not selected, as
well as all cap-subject petitions received
after February 12, 2021. Given high
demand by American businesses for H–
2B workers, rapidly evolving economic
conditions and labor demand, and the
short time remaining in the fiscal year
for U.S. employers to avoid the
economic harm described above, a
decision to undertake notice and
comment rulemaking would likely delay
final action on this matter by weeks or
months, and would, therefore, greatly
complicate and indeed likely preclude
the Departments from successfully
exercising the authority created by
section 105.
The temporary portability and change
of employer provisions in 8 CFR 214.2
and 274a.12 are further supported by
conditions created by the COVID–19
pandemic. On January 31, 2020, the
Secretary of Health and Human Services
declared a public health emergency
under section 319 of the Public Health
Service Act in response to COVID–19
retroactive to January 27, 2020.92 This
determination that a public health
emergency exists due to COVID–19 has
subsequently been renewed five times:
On April 21, 2020, on July 23, 2020, on
October 2, 2020, January 7, 2021, and
92 HHS, Determination that a Public Health
Emergency Exists, https://www.phe.gov/emergency/
news/healthactions/phe/Pages/2019-nCoV.aspx
(last visited Apr. 20, 2021). See also HHS,
Determination of Public Health Emergency, 85 FR
7316 (Feb. 7, 2020).

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most recently on April 15, 2021
effective on April 21, 2021.93 On March
13, 2020, then-President Trump
declared a National Emergency
concerning the COVID–19 outbreak,
retroactive to March 1, 2020, to control
the spread of the virus in the United
States.94 In response to the Mexican
government’s call to increase social
distancing in that country, DOS
announced the temporary suspension of
routine immigrant and nonimmigrant
visa services processed at the U.S.
Embassy in Mexico City and all U.S.
consulates in Mexico beginning on
March 18, 2020.95 DOS expanded the
temporary suspension of routine
immigrant and nonimmigrant visa
services at all U.S. Embassies and
Consulates on March 20, 2020.96 On
July 22, 2020, DOS indicated that
embassies and consulates should
continue to provide emergency and
mission critical visa services to the
extent possible and could begin a
phased resumption of routine visa
services as local conditions and
resources allow.97 On March 26, 2020
DOS designated the H–2 programs as
essential to the economy and food
security of the United States and a
national security priority; DOS
indicated that U.S. Embassies and
Consulates will continue to process
H–2 cases to the extent possible and
implemented a change in its procedures,
to include interview waivers.98 On
January 25, 2021, President Biden
issued a Proclamation on the
Suspension of Entry as Immigrants and
Non-Immigrants of Certain Additional
Persons Who Pose a Risk of
Transmitting Coronavirus Disease.99
The proclamation restricted entry into
the United States from European
Schengen treaty countries, the United
Kingdom (including territories outside
of Europe), Ireland, Brazil, and South
93 See HHS Renewal of Determination That A
Public Health Emergency Exists, https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/COVID-15April2021.aspx. (Apr. 15, 2021).
94 President of the United States, Proclamation
9994 of March 13, 2020, Declaring a National
Emergency Concerning the Coronavirus Disease
(COVID–19) Outbreak, 85 FR 15337 (Mar. 18, 2020).
95 DOS, Suspension of Routine Visa Services,
https://travel.state.gov/content/travel/en/News/
visas-news/suspension-of-routine-visa-services.html
(last updated Mar. 20, 2020).
97 https://travel.state.gov/content/travel/en/News/
visas-news/suspension-of-routine-visa-services.html
98 https://travel.state.gov/content/travel/en/News/
visas-news/important-announcement-on-h2visas.html (Last visited on Apr. 21, 2021).
99 Proclamation 10143 of January 25, 2021, 86 FR
7467 (Jan. 28, 2021). https://www.whitehouse.gov/
briefing-room/presidential-actions/2021/01/25/
proclamation-on-the-suspension-of-entry-asimmigrants-and-non-immigrants-of-certainadditional-persons-who-pose-a-risk-of-transmittingcoronavirus-disease/.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
Africa—countries where COVID–19
variants originated or were identified as
present.100 On January 28, 2021, DOS
reaffirmed the importance of the H–2
programs by making a national interest
designation for certain H–2 travelers
from South Africa.101 On April 19, 2021,
Customs and Border Protection
announced an extension of certain land
border restrictions between U.S. and
Canada, and U.S. and Mexico to May 21,
2021.102
In addition to travel restrictions and
impacts of the pandemic on visa
services, as discussed elsewhere in this
rule, current efforts to curb the
pandemic in the United States and
worldwide have been partially
successful, however, with the
emergence of COVID–19 variants;
different rates of vaccination in some
countries and regions; and other
uncertainties associated with the
evolving pandemic situation, DHS
anticipates that H–2B employers may
need additional flexibilities, beyond
supplemental visa numbers, to meet all
of their labor needs, particularly if some
U.S. and H–2B workers become
unavailable due to illness or other
restrictions related to the spread of
COVID–19. Therefore, DHS is acting
expeditiously to put in place rules that
will facilitate the continued
employment of H–2B workers already
present in the United States. This action
will help employers fill these critically
necessary nonagricultural job openings
and protect U.S. businesses’ economic
investments in their operations.
Courts have found ‘‘good cause’’
under the APA when an agency is
moving expeditiously to avoid
significant economic harm to a program,
program users, or an industry. Courts
have held that an agency may use the
good cause exception to address ‘‘a
serious threat to the financial stability of
[a government] benefit program,’’ Nat’l
Fed’n of Fed. Emps. v. Devine, 671 F.2d
607, 611 (D.C. Cir. 1982), or to avoid
‘‘economic harm and disruption’’ to a
given industry, which would likely
result in higher consumer prices, Am.
Fed’n of Gov’t Emps. v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981).
Consistent with the above authorities,
the Departments are bypassing notice

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100 Id.
101 https://travel.state.gov/content/travel/en/
News/visas-news/national-interest-exception-forcertain-h-2-travelers-from-south-africa.html (Jan.
28, 2021).
102 See Temporary Restriction of Travelers
Crossing US-Canada and Mexico Land Borders for
Non-Essential Purposes, https://help.cbp.gov/s/
article/Article-1596?language=en_
US#:∼:text=On%20March%2021%2C
%202020%2C%20the,EDT%20on%20April%2021
%2C%202021 (last visited on April 20, 2021).

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and comment to prevent ‘‘serious
economic harm to the H–2B
community,’’ including U.S. employers,
associated U.S. workers, and related
professional associations, that could
result from ongoing uncertainty over the
status of the numerical limitation, in
other words, the effective termination of
the program through the remainder of
FY 2021. See Bayou Lawn & Landscape
Servs. v. Johnson, 173 F. Supp. 3d 1271,
1285 & n.12 (N.D. Fla. 2016). The
Departments note that this action is
temporary in nature, see id.,103 and
includes appropriate conditions to
ensure that it affects only those
businesses most in need, and also
protects H–2B and U.S. workers.
2. Good Cause To Proceed With an
Immediate Effective Date
The APA also authorizes agencies to
make a rule effective immediately, upon
a showing of good cause, instead of
imposing a 30-day delay. 5 U.S.C.
553(d)(3). The good cause exception to
the 30-day effective date requirement is
easier to meet than the good cause
exception for foregoing notice and
comment rulemaking. Riverbend Farms,
Inc. v. Madigan, 958 F.2d 1479, 1485
(9th Cir. 1992); Am. Fed’n of Gov’t
Emps., AFL–CIO v. Block, 655 F.2d
1153, 1156 (D.C. Cir. 1981); U.S. Steel
Corp. v. EPA, 605 F.2d 283, 289–90 (7th
Cir. 1979). An agency can show good
cause for eliminating the 30-day delayed
effective date when it demonstrates
urgent conditions the rule seeks to
correct or unavoidable time limitations.
U.S. Steel Corp., 605 F.2d at 290; United
States v. Gavrilovic, 511 F.2d 1099,
1104 (8th Cir. 1977). For the same
reasons set forth above expressing the
need for immediate action, we also
conclude that the Departments have
good cause to dispense with the 30-day
effective date requirement.
B. Executive Orders 12866 (Regulatory
Planning and Review) and 13563
(Improving Regulation and Regulatory
Review)
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to proceed (to the extent
permitted by law) only if the benefits
justify the costs and to select (again to
the extent permitted by law) the
regulatory approach that maximizes net
103 Because the Departments have issued this rule
as a temporary final rule, this rule—with the sole
exception of the document retention
requirements—will be of no effect after September
30, 2021, even if Congress includes an authority
similar to section 105 in a subsequent act of
Congress.

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28217

benefits. Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits;
reducing costs; simplifying and
harmonizing rules; and promoting
flexibility through approaches that
preserve freedom of choice (including
through ‘‘provision of information in a
form that is clear and intelligible’’). It
also allows consideration of equity,
fairness, distributive impacts, and
human dignity, even if some or all of
these are difficult or impossible to
quantify.
This rule is a ‘‘significant regulatory
action,’’ although not an economically
significant regulatory action since it
does not meet the threshold of $100
million in annual economic effects,
under section 3(f)(1) of Executive Order
12866. Accordingly, the Office of
Management and Budget has reviewed
this regulation.
Summary
With this temporary final rule (TFR),
DHS is authorizing the immediate
release of an additional 22,000 H–2B
visas. By the authority given under the
Further Consolidated Appropriations
Act, 2021, Public Law 116–260 (FY
2021 Omnibus), DHS is raising the H–
2B cap by an additional 22,000 visas for
the remainder of FY 2021 to businesses
that: (1) Show that there are an
insufficient number of U.S. workers to
meet their needs in FY 2021; (2) attest
that their businesses are likely to suffer
irreparable harm without the ability to
employ the H–2B workers that are the
subject of their petition, among other
commitments; and (3) petition for
returning workers who were issued an
H–2B visa or were otherwise granted H–
2B status in FY 2018, 2019, or 2020,
unless the H–2B worker is a national of
Guatemala, Honduras, and El Salvador
(the Northern Triangle countries).
Additionally, up to 6,000 of the 22,000
visas may be granted to workers from
the Northern Triangle countries who are
exempt from the returning worker
requirement. This TFR aims to prevent
irreparable harm to certain U.S.
businesses by allowing them to hire
additional H–2B workers within FY
2021.
The estimated total costs to
petitioners ranges from $10,192,963 to
$26,063,006. The estimated total cost to
the Federal Government is $467,820.
DHS estimates that the total cost of this
rule ranges from $10,660,783 to
$26,530,826. The benefits of this rule
are diverse, though some of them are
difficult to quantify. They include:
(1) Employers benefit from this rule
significantly through increased access to
H–2B workers;

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(2) Customers and others benefit
directly or indirectly from that
increased access;
(3) H–2B workers benefit from this
rule significantly through obtaining jobs
and earning wages, potential ability to
port and earn additional wages, and
increased information on COVID–19
and vaccination distribution. DHS
recognizes that some of the effects of

these provisions may occur beyond the
borders of the United States; 104
(4) Some American workers may
benefit to the extent that they do not
lose jobs through the reduced or closed
business activity that might occur if
fewer H–2B workers were available;
(5) The existence of a lawful pathway,
for the 6,000 visas set aside for new
workers from Guatemala, Honduras, and

El Salvador, is likely to provide
multiple benefits in terms of U.S. policy
with respect to the Northern Triangle;
and
(6) The Federal Government benefits
from increased evidence regarding
attestations. Table 1 provides a
summary of the provisions in this rule
and some of their impacts.

TABLE 1—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT
Current provision

Changes resulting from the
provisions of the TFR

Expected costs of the provisions of the TFR

Expected benefits of the
provisions of the TFR

—The current statutory cap limits H–2B visa allocations to
66,000 workers a year.

—The amended provisions
will allow for an additional
22,000 H–2B temporary
workers. Up to 6,000 of the
22,000 additional visas will
be reserved for workers
who are nationals of Guatemala, Honduras, and El
Salvador and will be exempt from the returning
worker requirement.

—The total estimated cost to file Form I–129
by human resource specialists is approximately $1,344,810. The total estimated
cost to file Form I–129 and Form G–28 will
range from approximately $1,545,882 if
filed by in-house lawyers to approximately
$2,148,647 if filed by outsourced lawyers.
The total estimated cost associated with filing additional petitions ranges from
$2,890,692 to $3,493,457 depending on
the filer.

—Form I–129 petitioners
would be able to hire temporary workers needed to
prevent their businesses
from suffering irreparable
harm.
—Businesses that are dependent on the success of
other businesses that are
dependent on H–2B workers would be protected from
the repercussions of local
business failures.
—Some American workers
may benefit to the extent
that they do not lose jobs
through the reduced or
closed business activity that
might occur if fewer H–2B
workers were available.

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—Petitioners will be required
to fill out the newly created
Form ETA–9142–B–CAA–4,
Attestation for Employers
Seeking to Employ H–2B
Nonimmigrant Workers
Under Section 105 of Div.
O of the Consolidated Appropriations Act, 2021.
—Petitioners would be required to conduct an additional round of recruitment.

104 See, e.g., Arnold Brodbeck et al., Seasonal
Migrant Labor in the Forest Industry of the

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—The total estimated costs associated with
filing Form I–907 if it is filed with Form I–
129 is $2,863,603 if filed by human resource specialists. The total estimated
costs associated with filing Form I–907
would
range
from
approximately
$2,259,184 if filed by an in-house lawyer to
approximately $2,322,317 if filed by an
outsourced lawyer. The total estimated
costs associated with requesting premium
processing ranges from approximately
$5,122,787 to approximately $5,185,920.
—DHS may incur additional adjudication
costs as more applicants file Form I–129.
However, these additional costs to USCIS
are expected to be covered by the fees
paid for filing the form, which have been
accounted for in costs to petitioners.
—The total estimated cost to petitioners to
complete and file Form ETA–9142–B–
CAA–4 is approximately $1,370,719.

—The total estimated cost to petitioners to
conduct an additional round of recruitment
is approximately $516,622.

Southeastern United States: The Impact of H–2B

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—Form ETA–9142–B–CAA–4
will serve as initial evidence
to DHS that the petitioner
meets the irreparable harm
standard and returning
worker requirements.

—The additional round of recruitment will ensure that a
U.S. worker that is willing
and able to fill the position
is not replaced by a nonimmigrant worker.

Employment on Guatemalan Livelihoods, 31
Society and Natural Resources 1012 (2018).

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28219

TABLE 1—SUMMARY OF THE TFR’S PROVISIONS AND ECONOMIC IMPACT—Continued
Current provision

Changes resulting from the
provisions of the TFR

Expected costs of the provisions of the TFR

Expected benefits of the
provisions of the TFR

—Employers of H–2B workers
would be required to provide information about
equal access to COVID–19
vaccines and vaccination
distribution sites.
—An H–2B nonimmigrant with
a valid visa who is physically present in the United
States may port to another
employer.

—The total estimated cost to petitioners to
provide COVID–19 vaccines and vaccination distribution site information is approximately $1,743.

—Workers would be given information about equal access to vaccines and vaccination distribution.

—The total estimated cost to file Form I–129
if filed by human resource specialists will
range
from
$0
to
approximately
$2,081,206. The total estimated costs to
file Form I–129 and Form G–28 ranges
from $0 to approximately $2,393,077 if filed
by in-house lawyers and from $0 to approximately $5,095,792 if filed by
outsourced lawyers.

—H–2B workers with a valid
visa present in the United
States will be able to port to
another employer and potentially extend their stay
and, therefore, earn additional wages.
—An H–2B worker with an
employer that is not complying with H–2B program
requirements would have
additional flexibility in
porting to another employer’s certified position.
—This provision would ensure
employers will be able to
hire the H–2B workers they
need.

—DHS and DOL intend to
conduct a significant number of random audits during
the period of temporary
need to verify compliance
with H–2B program requirements, including the irreparable harm standard as
well as other key worker
protection provisions implemented through this rule.

—The total estimated cost associated with filing Form I–907 if filed by human resource
specialists ranges from $0 to approximately
$4,431,409. The total estimated cost to file
Form I–907 ranges from $0 to approximately $3,497,990 if filed by in-house lawyers and from $0 to approximately
$3,595,738 if filed by outsourced lawyers.
The total estimated costs associated with
this provision ranges from $0 to approximately $15,204,145.
—DHS may incur some additional adjudication costs as more petitioners file Form I–
129. However, these additional costs to
USCIS are expected to be covered by the
fees paid for filing the form, which have
been accounted for in costs to petitioners.
—Employers will have to comply with audits
for an estimated total opportunity cost of
time of $290,400.
—It is expected both DHS and DOL will be
able to shift resources to be able to conduct these audits without incurring additional costs. However, the Departments will
incur opportunity costs of time. The audits
are expected to take a total of approximately 6,000 hours and cost approximately
$467,820.

—DOL and DHS audits will
yield evidence of the efficacy of attestations in enforcing compliance with H–
2B supplemental cap requirements.
—Conducting a significant
number of audits will discourage uncorroborated attestations.

Source: USCIS and DOL analysis.

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Background and Purpose of the
Proposed Rule
The H–2B visa classification program
was designed to serve U.S. businesses
that are unable to find a sufficient
number of U.S. workers to perform
nonagricultural work of a temporary or
seasonal nature. For a nonimmigrant
worker to be admitted into the United
States under this visa classification, the
hiring employer is required to: (1)
Receive a temporary labor certification
(TLC) from the Department of Labor

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(DOL); and (2) file Form I–129 with
DHS. The temporary nature of the
services or labor described on the
approved TLC is subject to DHS review
during adjudication of Form I–129.105
The current INA statute sets the annual
number of H–2B visas for workers
performing temporary nonagricultural
work at 66,000 to be distributed semiannually beginning in October (33,000)

105 Revised

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and in April (33,000).106 Any unused
H–2B visas from the first half of the
fiscal year will be available for
employers seeking to hire H–2B workers
during the second half of the fiscal year.
However, any unused H–2B visas from
one fiscal year do not carry over into the
next and will therefore not be made

106 See 8 U.S.C. 1184(g)(1)(B), INA 214(g)(1)(B)
and 8 U.S.C. 1184(g)(4), INA 214(g)(4).

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available.107 Once the statutory H–2B
visa cap limit has been reached,
petitioners must wait until the next half
of the fiscal year, or the beginning of the
next fiscal year, for additional visas to
become available.
On Dec 27, 2020, the President signed
the FY 2021 Omnibus that contains a
provision (Sec. 105 of Div. O) permitting
the Secretary of Homeland Security,
under certain circumstances, to increase
the number of H–2B visas available to
U.S. employers, notwithstanding the
established statutory numerical
limitation. After consulting with the
Secretary of Labor, the Secretary of the
Homeland Security has determined it is
appropriate to exercise his discretion
and raise the H–2B cap by up to an
additional 22,000 visas for the
remainder of FY 2021 for those
businesses who would qualify under
certain circumstances.
These businesses must attest that they
will likely suffer irreparable harm if the
requested H–2B visas are not granted.
The Secretary has determined that
initially up to 16,000 of the 22,000 these
supplemental visas will be limited to
specified H–2B returning workers for
nationals of any country. Specifically,
these individuals must be workers who
were issued H–2B visas or were
otherwise granted H–2B status in fiscal
years 2018, 2019, or 2020. The Secretary
has also determined that up to 6,000 of
the 22,000 additional visas will be
reserved for workers who are nationals
of Guatemala, Honduras, and El
Salvador, and that these 6,000 workers
will be exempt from the returning
worker requirement. Once the 6,000visa limit has been reached, a petitioner
may continue to request H–2B visas for
workers who are nationals of
Guatemala, Honduras, and El Salvador,
but these workers must be returning
workers. If the 6,000 exemption cap for
nationals of the Northern Triangle
countries remains unfilled by July 8,
2021, USCIS will announce that the
remaining visas will be made available
to employers with TLCs that comply
with the provisions of this rule but the
petitioner must file a new Form I–129
petition and attest that these noncitizens
will be returning workers.
Population
This rule would affect those
employers that file Form I–129 on
behalf of nonimmigrant workers they
seek to hire under the H–2B visa
107 A

Temporary Labor Certification (TLC)
approved by the Department of Labor must
accompany an H–2B petition. The employment start
date stated on the petition must match the start date
listed on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and
(D).

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program. More specifically, this rule
would affect those employers that can
establish that their business is likely to
suffer irreparable harm because they
cannot employ the H–2B returning
workers requested on their petition in
this fiscal year, without the exercise of
authority that is the subject of this rule.
Due to the temporary nature of this rule
and the limited time left for these
additional visas to become available,
DHS believes that it is reasonable to
assume that eligible petitioners for these
additional 22,000 visas will generally be
those employers that have already
completed the steps to receive an
approved TLC prior to the issuance of
this rule.
This rule would also have additional
impacts on the population of H–2B
employers and workers presently in the
United States by permitting some H–2B
workers to port to another certified
employer. These H–2B workers would
continue to earn wages and gaining
employers would continue to obtain
necessary workers.
Population That Will File a Form I–129,
Petition for a Nonimmigrant Worker
According to DOL OFLC’s
certification data for FY 2021, as of
April 15, 2021, about 6,172 TLCs for
107,654 H–2B positions were received
with expected work start dates between
April 1 and September 30, 2021. DOL
OFLC has approved 5,507 certifications
for 97,627 H–2B positions and is still
reviewing the remaining 155 TLC
requests for 2,227 H–2B positions. DOL
OFLC has denied, withdrawn, rejected,
or returned 510 certifications for 7,800
H–2B positions.108 However, many of
these certified worker positions have
already been filled under the semiannual cap of 33,000 and, for
approximately 10 percent of the worker
positions certified and still under
review by DOL, employers indicated on
the Form ETA–9142B their intention to
employ some or all of the H–2B workers
under the application who will be
exempt from the statutory visa cap. The
number of approved and pending
certifications is 5,662 for 99,854 H–2B
positions.109
108 As of April 15, 2021, DOL OFLC had denied
163 applications for 2,161 positions and rejected 28
applications for 360 positions. Employers had
withdrawn 312 applications for 5,161 positions and
returned 7 applications for 118 positions. This
totals 510 applications for 7,800 positions either
denied, rejected, withdrawn, or returned.
109 Calculation: 5,507 approved certifications +
155 pending certifications = 5,662 approved and
pending certifications.
Calculation: 97,627 positions associated with
approved certification + 2,227 positions associated
with pending certifications = 99,854 positions
associated with approved and pending
certifications.

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Of the 5,507 certified Applications for
Temporary Employment Certification
DOL issued, USCIS data shows that
2,104 H–2B petitions for 36,792
positions with approved certifications
were already filed toward the second
semi-annual cap of 33,000 visas.110
Therefore, we estimate that
approximately 3,558 Applications for
Temporary Employment Certification
may be filed towards the FY 2021
supplemental cap. This number is based
on 5,507 (total certified) ¥ 2,104
(certified and already submitted under
the second semi-annual cap) and 155
(Applications for Temporary
Employment Certification that are still
being processed by DOL), and therefore
represents a reasonable estimate of the
pool of potential petitions that may
request additional H–2B workers under
this rule, in other words, under the FY
2021 supplemental cap. USCIS
recognizes that some employers would
have to submit two Forms I–129 if they
choose to request H–2B workers under
both the returning worker and Northern
Triangle Countries cap. At this time,
USCIS cannot predict how many
employers will choose to take advantage
of this set-aside, and therefore recognize
that the number of petitions may be
underestimated. Additionally, due to
the timing of the availability of these
additional 22,000 visas, USCIS assumes
there will not be additional TLCs filed
with the DOL.
Population That Files Form G–28,
Notice of Entry of Appearance as
Attorney or Accredited Representative
If an attorney or accredited
representative submits Form I–129 on
behalf of the petitioner, Form G–28,
Notice of Entry of Appearance as
Attorney or Accredited Representative,
must accompany the Form I–129
submission.111 Using data from FY 2016
to FY 2020, we estimate that
approximately 43.59 percent of Form I–
129 petitions will be filed by a lawyer
or accredited representative (Table 2).
Table 2 shows the percentage of Form
I–129 H–2B petitions that were
accompanied by a Form G–28. We
estimate that 1,551 Form I–129 and
Form G–28 will be filed by in-house or
outsourced lawyers, and that 2,007
Form I–129 will be filed by human
resources (HR) specialists.112
110 USCIS, Office of Performance and Quality,
Data pulled on April 21, 2021.
111 USCIS, Filing Your Form G–28, https://
www.uscis.gov/forms/filing-your-form-g-28.
112 Calculation: 3,558 estimated additional
petitions * 43.59 percent of petitions filed by a
lawyer = 1551 petitions (rounded) filed by a lawyer.

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TABLE 2—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28, FY 2016–2020
Percent of
Form I–129
H–2B
petitions
accompanied
by a Form
G–28

Number of
Form I–129
H–2B petitions
accompanied
by a Form
G–28

Total Number
of Form I–129
H–2B petitions
received

.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................

2,795
2,615
2,626
3,335
2,434

6,527
6,112
6,148
7,461
5,422

42.82
42.78
42.71
44.70
44.89

2016–2020 Total ...................................................................................................................

13,805

31,670

43.59

Fiscal year

2016
2017
2018
2019
2020

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021.

Population That Files Form I–907,
Request for Premium Processing Service
Employers may use Form I–907,
Request for Premium Processing
Service, to request faster processing of
their Form I–129 petitions for H–2B
visas. Table 3 shows the percentage of

Form I–129 H–2B petitions that were
filed with a Form I–907. USCIS
estimates that approximately 93.37
percent of Form I–129 H–2B petitioners
will also file a Form I–907 requesting
premium processing, though this could
be higher because of the timing of this

rule. Based on this historical data,
USCIS estimates that 3,322 Forms I–907
will be filed with the Forms I–129 as a
result of this rule.113 We estimate that
1,448 Forms I–907 will be filed by inhouse or outsourced lawyers and 1,874
will be filed by HR specialists.114

TABLE 3—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM I–907, FY 2016–2020
Number of
Form I–129
H–2B
petitions
accompanied
by Form I–907

Total Number
of Form I–129
H–2B
petitions
received

Percent of
Form I–129
H–2B
petitions
accompanied
by Form I–907

.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................

6,084
5,932
5,986
7,227
4,341

6,527
6,112
6,148
7,461
5,422

93.21
97.05
97.36
96.86
80.06

2016–2020 Total ...................................................................................................................

29,570

31,670

93.37

Fiscal year

2016
2017
2018
2019
2020

Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on April 8, 2021.

Population That Files Form ETA–9142–
B–CAA–4, Attestation for Employers
Seeking To Employ H–2B
Nonimmigrant Workers Under Section
105 of Division O of the Consolidated
Appropriations Act, 2021 Public Law
116–260

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Petitioners seeking to take advantage
of the FY 2021 H–2B supplemental visa
cap will need to file a Form ETA–9142–
B–CAA–4 attesting their business will
suffer irreparable harm without the
ability to hire temporary nonimmigrant
Calculation: 3,558 estimated additional petitions
¥ 1,551 petitions filed by a lawyer = 2,007
petitions filed by an HR specialist.
113 Calculation: 3,558 estimated additional
petitions * 93.37 percent premium processing filing
rate = 3,322 (rounded) additional Form I–907.
114 Calculation: 3,322 additional Form I–907 *
43.59 percent of petitioners represented by a lawyer
= 1,448 (rounded) additional Form I–907 filed by
a lawyer.

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The population affected by this
provision are nonimmigrants in H–2B
status who are present in the United
States and the employers with valid

TLCs seeking to hire H–2B workers. We
use the population of 66,000 H–2B
workers authorized by statute and
22,000 additional H–2B workers
authorized by this supplemental cap
regulation as a proxy for the H–2B
population that could be currently
present in the United States.115 We use
the number of approved TLCs (5,507) to
estimate the potential number of Form
I–129 H–2B petitions that incur impacts
associated with this porting provision.
USCIS is not able to predict an estimate
of what percentage of these approved

Calculation: 3,322 additional Form I–907 ¥ 1448
additional Form I–907 filed by a lawyer = 1,874
additional Form I–907 filed by an HR specialist.
115 H–2B workers may have varying lengths in
time approved on their H–2B visas. This number
may overestimate H–2B workers who have already
completed employment and departed and may
underestimate H–2B workers not reflected in the
current cap and long-term H–2B workers. In
FY2020, 346 requests for change of status to H–2B
were approved by USCIS and 3,505 crossings of
visa-exempt H–2B workers were processed by

Customs and Border Protection (CBP). See
Characteristics of H–2B Nonagricultural Temporary
Workers FY2020 Report to Congress at https://
www.uscis.gov/sites/default/files/document/
reports/H-2B-FY20-Characteristics-Report.pdf.
USCIS assumes some of these workers, along with
current workers with a valid H–2B visa under the
cap, could be eligible to port under this new
provision. USCIS does not know the exact number
of H–2B workers who would be eligible to port at
this time but uses the cap and supplemental cap
allocations as a possible proxy for this population.

workers, comply with third party
notification, and maintain required
records, among other requirements. DOL
estimates that each of the 3,558
petitioners will need to file a Form
ETA–9142–B–CAA–4 and comply with
its provisions.
Population Affected by the Portability
Provision

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and the remainder (56.41 percent) will
be filed by an HR specialist or
equivalent occupation. DHS presents
estimated costs for HR specialists filing
Form I–129 petitions and an estimated
range of costs for in-house lawyers or
outsourced lawyers filing Form I–129
petitions.
To estimate the total opportunity cost
of time to HR specialists who complete
and file Form I–129, DHS uses the mean
TABLE 4—SENSITIVITY ANALYSIS OF
FORM I–129 H–2B PETITIONS FILED hourly wage rate of HR specialists of
117 If
ON BEHALF OF H–2B WORKERS $33.38 as the base wage rate.
petitioners
hire
an
in-house
or
WHO MAY BE ELIGIBLE TO PORT
outsourced lawyer to file Form I–129 on
their behalf, DHS uses the mean hourly
Estimated
wage rate of $71.59 as the base wage
number of
approved
rate.118 Using the most recent Bureau of
Form I–129
Labor Statistics (BLS) data, DHS
Percent of Form I–129 H–2B H–2B
petitions
petitions that may be filed on
calculated a benefits-to-wage multiplier
that
may
be
behalf of workers eligible to
of 1.45 to estimate the full wages to
filed
on
port
behalf of
include benefits such as paid leave,
workers
insurance, and retirement.119 DHS
eligible
multiplied the average hourly U.S. wage
to port
rate for HR specialists and for in-house
0 ............................................
0 lawyers by the benefits-to-wage
5 ............................................
275 multiplier of 1.45 to estimate the full
25 ..........................................
1,377 cost of employee wages. The total
50 ..........................................
2,754 compensation for an HR specialist is
75 ..........................................
4,130 $48.40 per hour, and the total
95 ..........................................
5,232
compensation for an in-house lawyer is
100 ........................................
5,507
$103.81 per hour.120 In addition, DHS
Source: USCIS Analysis.
recognizes that an entity may not have
in-house lawyers and seek outside
Population Affected by the Audits
counsel to complete and file Form I–129
DHS and DOL each intend to conduct on behalf of the petitioner. Therefore,
250 audits of employers hiring H–2B
DHS presents a second wage rate for
workers under this FY2021 H–2B
lawyers labeled as outsourced lawyers.
supplemental cap rule. The
DHS recognizes that the wages for
determination of which employers are
outsourced attorneys may be much
audited will be mostly random, though
higher than in-house attorneys and
the agencies will coordinate so that no
therefore uses a higher compensation-toemployer is audited by both DOL and
wage multiplier of 2.5 for outsourced
DHS. Therefore, a total of 500 audits on
attorneys.121 DHS estimates the total
employers who petition for H–2B
workers under this TFR will be
117 U.S. Department of Labor, Bureau of Labor
conducted by the Federal Government.
Statistics, ‘‘May 2020 National Occupational

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TLCs will file petitions for H–2B
workers who would port under this
provision. Therefore, USCIS presents a
sensitivity analysis in Table 4 based on
the percentage of employers with
approved TLCs that could file a Form I–
129 H–2B petition in order to obtain an
H–2B worker under the porting
provision.

Cost-Benefit Analysis
The provisions of this rule require the
submission of a Form I–129 H–2B
petition. The costs for this form include
filing costs and the opportunity cost of
time to complete and submit the form.
The current filing fee for Form I–129 is
$460 and the estimated time to complete
and file Form I–129 for H–2B
classification is 4.34 hours.116 The
application must be filed by a U.S.
employer, a U.S. agent, or a foreign
employer filing through the U.S. agent.
DHS estimates that 43.59 percent of
Form I–129 H–2B petitions will be filed
by an in-house or outsourced lawyer,
116 The public reporting burden for this form is
2.34 hours for Form I–129 and an additional 2.00
hours for H Classification Supplement, totaling 4.34
hours. See Form I–129 instructions at https://
www.uscis.gov/i-129.

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Employment and Wage Statistics’’ Human
Resources Specialist (13–1071), Mean Hourly Wage,
available at https://www.bls.gov/oes/2020/may/oes_
nat.htm#13-0000 (accessed April 9, 2021).
118 U.S. Department of Labor, Bureau of Labor
Statistics. ‘‘May 2020 National Occupational
Employment and Wage Estimates’’ Lawyers (23–
1011), Mean Hourly Wage, available at https://
www.bls.gov/oes/2020/may/oes_nat.htm#23-0000
(accessed April 9, 2021).
119 Calculation: $38.60 mean Total Employee
Compensation per hour for civilian workers/$26.53
mean Wages and Salaries per hour for civilian
workers = 1.45 benefits-to-wage multiplier. See
Economic News Release, Bureau of Labor Statistics,
U.S. Department of Labor, Table 1. Employer Costs
for Employee Compensation by ownership, Civilian
workers, available at https://www.bls.gov/
news.release/pdf/ecec.pdf (accessed April 9, 2021).
120 Calculation for the total wage of an HR
specialist: $33.38 × 1.45 = $48.40 (rounded).
Calculation for the total wage of an in-house
lawyer: $71.59 × 1.45 = $103.81 (rounded).
121 The DHS ICE ‘‘Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter’’ used
a multiplier of 2.5 to convert in-house attorney
wages to the cost of outsourced attorney based on

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compensation for an outsourced lawyer
is $178.98 per hour.122 If a lawyer
submits Form I–129 on behalf of the
petitioner, Form G–28 must accompany
the Form I–129 petition.123 DHS
estimates the time burden to complete
and submit Form G–28 for a lawyer is
50 minutes (0.83 hour, rounded).124 For
this analysis, DHS adds the time to
complete Form G–28 to the opportunity
cost of time to lawyers for filing Form
I–129 on behalf of a petitioner. This
results in a time burden of 5.17 hours
for in-house lawyers and outsourced
lawyers to complete Form G–28 and
Form I–129.125 Therefore, the total
opportunity cost of time per petition for
an HR specialist to complete and file
Form I–129 is approximately $210.06,
for an in-house lawyer to complete and
file Forms I–129 and G–28 is about
$536.70, and for an outsourced lawyer
to complete and file is approximately
$925.33.126 The total cost, including
filing fee and opportunity costs of time,
per petitioner to file Form I–129 is
approximately $670.06 if HR specialists
file, $996.70 if an in-house lawyer files,
and $1,385.33 if an outsourced lawyer
files the form.127
Cost to Petitioners
As mentioned in Section 3, the
estimated population impacted by this
rule is 3,558 eligible petitioners who are
projected to apply for the additional
22,000 H–2B visas for the remainder of
FY 2021, with 6,000 of the additional
visas reserved for employers that will
petition for workers who are nationals
information received in public comment to that
rule. We believe the explanation and methodology
used in the Final Small Entity Impact Analysis
remains sound for using 2.5 as a multiplier for
outsourced labor wages in this rule, see page G–4
[September 1, 2015] [https://www.regulations.gov/
document/ICEB-2006-0004-0921].
122 Calculation: Average hourly wage rate of
lawyers × benefits-to-wage multiplier for
outsourced lawyer = $71.59 × 2.5 = $178.98.
123 USCIS, Filing Your Form G–28, https://
www.uscis.gov/forms/filing-your-form-g-28.
124 Id.
125 Calculation: 0.83 hours to file Form G–28 +
4.34 hours to file Form I–129 = 5.17 hours to file
both forms.
126 Calculation if an HR specialist files Form I–
129: $48.40 × 4.34 hours = $210.06 (rounded).
Calculation if an in-house lawyer files Forms I–
129 and G–28: $103.81 × 5.17 hours = $536.70
(rounded).
Calculation if an outsourced lawyer files Forms
I–129 and G–28: $178.98 × 5.17 hours = $925.33
(rounded).
127 Calculation if an HR specialist files Form I–
129 and filing fee: $210.06 opportunity cost of time
+ $460 filing fee = $670.06.
Calculation if an in-house lawyer files Forms I–
129, G–28, and filing fee: $536.70 opportunity cost
of time + $460 filing fee = $996.70.
Calculation if outsourced lawyer files Forms I–
129, G–28 and filing fee: $925.33 opportunity cost
of time + $460 filing fee = $1,385.33.

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of the Northern Triangle countries who
are exempt from the returning worker
requirement.
Costs to Petitioners To File Form I–129
and Form G–28
As discussed above, DHS estimates
that an additional 2,007 petitions will
be filed by HR specialists using Form I–
129 and an additional 1,551 petitions
will be filed by lawyers using Form I–
129 and Form G–28. DHS estimates the
total cost to file Form I–129 petitions if
filed by HR specialists is $1,344,810
(rounded).128 DHS estimates total cost to
file Form I–129 petitions and Form G–
28 if filed by lawyers will range from
$1,545,882 (rounded) if only in-house
lawyers file these forms to $2,148,647
(rounded) if only outsourced lawyers
file them.129 Therefore, the estimated
total cost to file Form I–129 and Form
G–28 range from $2,890,692 and
$3,493,457.130
Costs To File Form I–907
Employers may use Form I–907 to
request premium processing of Form I–
129 petitions for H–2B visas. The filing
fee for Form I–907 for H–2B petitions is
$1,500 and the time burden for
completing the form is 35 minutes (0.58
hour).131 Using the wage rates
established previously, the opportunity
cost of time to file Form I–907 is
approximately $28.07 for an HR
specialist, $60.21 for an in-house
lawyer, and $103.81 for an outsourced
lawyer.132 Therefore, the total filing cost

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128 Calculation:

$670.06 opportunity costs for HR
specialist plus filing fees * 2,007 Form I–129 filed
by HR specialists = $1,344,810(rounded) total cost
of Form I–129 filed by HR specialists.
129 Calculation: $996.70 opportunity costs for inhouse lawyers plus filing fees * 1,551 Form I–129
and Form G–28 filed by in-house lawyers =
$1,545,882(rounded) total cost of Form I–129 and
Form G–28 filed by in-house lawyers.
Calculation: $1,385.33 opportunity costs for
outsourced lawyers plus filing fees * 1,551 Form I–
129 and Form G–28 filed by outsourced lawyers =
$2,148,647(rounded) total cost of Form I–129 and
Form G–28 filed by outsourced lawyers.
130 Calculation: $1,344,810 total cost of Form I–
129 filed by HR specialists + $1,545,882 total cost
of Form I–129 and Form G–28 filed by in-house
lawyers = $2,890,692 estimated total costs to file
Form I–129 and G–28
Calculation: $1,344,810 total cost of Form I–129
filed by HR specialists + $2,148,647 total cost of
Form I–129 and G–28 filed by outsourced lawyers
= $3,493,457 estimated total costs to file Form I–
129 and G–28
131 See Form I–907 instructions at https://
www.uscis.gov/i-907.
132 Calculation for opportunity cost of time if an
HR specialist files Form I–907: $48.40 × 0.58 hours
= $28.07(rounded).
Calculation for opportunity cost of time if an inhouse lawyer files Form I–907: $103.81 × 0.58
hours= $60.21(rounded).
Calculation for opportunity cost of time if an
outsourced lawyer files Form I–907: $178.98 × 0.58
hours = $103.81(rounded).

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to complete and submit Form I–907 per
petitioner is approximately $1,528.07
for HR specialists, $1,560.21 for inhouse lawyers, and $1,603.81 for
outsourced lawyers.133
As discussed above, DHS estimates
that an additional 1,874 Form I–907 will
be filed by HR specialists and an
additional 1,448 Form I–907 will be
filed lawyers. DHS estimates the total
cost of Form I–907 filed by HR
specialists is about $2,863,603
(rounded).134 DHS estimates total cost to
file Form I–907 filed by lawyers range
from about $2,259,184 (rounded) for
only in-house lawyers to $2,322,317
(rounded) for only outsourced
lawyers.135 The estimated total cost to
file Form I–907 range from $5,122,787
and $5,185,920.136
Cost To File Form ETA–9142–B–CAA–
4
Form ETA–9142–B–CAA–4 is an
attestation form that includes recruiting
requirements, the irreparable harm
standard, and document retention
obligations. DOL estimates the time
burden for completing and signing the
form is 0.25 hour, 0.25 hours for
retaining records, and 0.5 hours to
comply with the returning workers’
attestation, for a total time burden of 1
hour. Using the total wage per hour for
an HR specialist ($48.40), the
opportunity cost of time for an HR
specialist to complete the attestation
form, and notify third parties, and retain
records relating to the returning worker
requirements, is approximately
$48.40.137
133 Calculation if an HR specialist files: $28.07 +
$1,500 = $1,528.07.
Calculation if an in-house lawyer files: $60.21 +
$1,500 = $1,560.21.
Calculation if outsourced lawyer files: $103.81 +
$1,500 = $1,603.81.
134 Calculation: $1,528.07 opportunity costs for
HR specialist plus filing fees * 1,874 Form I–907
filed by HR specialists = $2,863,603 (rounded) total
cost of Form I–907 filed by HR specialists.
135 Calculation: $1,560.21 opportunity costs for
in-house lawyers plus filing fees * 1,448 Form I–
907 filed by in-house lawyers = $2,259,184
(rounded) total cost of Form I–907 filed by in-house
lawyers.
Calculation: $1,603.81 opportunity costs for
outsourced lawyers plus filing fees * 1,448 Form I–
907 filed by outsourced lawyers = $2,322,317
(rounded) total cost of Form I–907 filed by
outsourced lawyers.
136 Calculation: $2,863,603 total cost of Form I–
907 filed by HR specialists + $2,259,184 total cost
of Form I–907 filed by in-house lawyers =
$5,122,787 estimated total costs to file Form I–907.
Calculation: $2,863,603 total cost of Form I–129
filed by HR specialists + $2,322,317 total cost of
Form I–907 filed by outsourced lawyers =
$5,185,920 estimated total costs to file Form I–907.
137 Calculation: $48.40 opportunity cost of time
for HR specialist × 1-hour time burden for the new
attestation form and notifying third parties and
retaining records related to the returning worker
requirements = $48.40.

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Additionally, the form requires that
petitioners assess and document
supporting evidence for meeting the
irreparable harm standard, and retain
those documents and records, which we
assume will require the resources of a
financial analyst (or another equivalent
occupation). Using the same
methodology previously described for
wages, the total wage per hour for a
financial analyst is $67.37.138 DOL
estimates the time burden for these tasks
is at least 4 hours, and 1 hour for
gathering and retaining documents and
records. Therefore, the total opportunity
cost of time for a financial analyst to
assess, document, and retain supporting
evidence is approximately $336.85.139
As discussed previously, DHS
believes that the estimated 3,558
remaining certifications for the latter
half of FY 2021 would include potential
employers that might request to employ
H–2B workers under this rule. This
number of certifications is a reasonable
proxy for the number of employers that
may need to review and sign the
attestation. Using this estimate for the
total number of certifications, we
estimate the opportunity cost of time for
completing the attestation for HR
specialists is approximately $172,207
and for financial analysts is about
$1,198,512.140 The total cost is
estimated to be approximately
$1,370,719.141
Cost to Conduct Recruitment
An employer that files Form ETA–
9142B–CAA–4 and the I–129 petition 45
or more days after the certified start date
of work must conduct additional
138 Calculation: $46.46 (average per hour wage for
a financial analyst, based on BLS wages) × 1.45
(benefits-to-wage multiplier) = $67.37. U.S.
Department of Labor, Bureau of Labor Statistics,
‘‘May 2020 National Occupational Employment and
Wage Statistics’’ Financial and Investment
Analysts, Financial Risk Specialists, and Financial
Specialists, All Other (13–2098): https://
www.bls.gov/oes/2020/may/oes_nat.htm#13-0000
(accessed April 9, 2021).
139 Calculation: $67.37 (fully loaded hourly wage
for a financial analyst) × 5 hours (time burden for
assessing, documenting and retention of supporting
evidence demonstrating the employer is likely to
suffer irreparable harm) = $336.85.
140 Calculations: Cost for HR Specialists: $48.40
opportunity cost of time for an HR specialist to
comply with attestation requirements * 3,558
estimated additional petitions = $172,207(rounded)
total cost for HR specialists to comply with
attestation requirements.
Calculation: $336.85 opportunity cost of time for
a financial analyst to comply with attestation
requirements * 3,558 estimated additional petitions
= $1,198,512(rounded) for financial analysts to
comply with attestation requirements.
141 Calculation: $172,207 total cost for HR
specialist to comply with attestation requirement +
$1,198,512 total cost for financial analysts to
comply with attestation requirements = $1,370,719
total cost to comply with attestation requirements.

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recruitment of U.S. workers. This
consists of placing a new job order with
the State Workforce Agency, contacting
the American Job Center, and contacting
laid-off workers. Employers must place
a new job order for the job opportunity
with the State Workforce Agency
(SWA). DOL estimates that it would take
up to one hour to satisfy this
requirement.
Employers are required to make
reasonable efforts to contact, by mail or
other effective means, their former U.S.
workers, including those workers who
were furloughed and laid off, beginning
January 1, 2019. Employers must also
disclose the terms of the job order to
these workers as required by the rule.
DOL estimates that it would take up to
one hour to contact and provide the
disclosure to displaced U.S. workers.
During the period of time the SWA is
actively circulating the job order,
employers must contact, by email or
other available electronic means, the
nearest local American Job Center (AJC)
in order to request staff assistance
advertising and recruiting qualified U.S.
workers for the job opportunity, and to
provide to the AJC the unique
identification number associated with
the job order placed with the SWA. DOL
estimates that it would take up to one
hour to satisfy this requirement.
DOL estimates the total time burden
for activities related to conducting
recruitment is 3 hours. Assuming this
work will be done by an HR specialist
or an equivalent occupation, the
estimated cost to each petitioner is
approximately $145.20.142 Using the
3,558 as the estimated number of
petitioners, the estimated total cost of
this provision is approximately
$516,622.143 It is possible that if U.S.
employees apply for these positions,
H–2B employers may incur some costs
associated with reviewing applications,
interviewing, vetting, and hiring
applicants who are referred to H–2B
employers by the recruiting activities
required by this rule. However, DOL is
unable to quantify the impact.

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Cost of the COVID Protection Provision
Employers must notify employees, in
a language understood by the worker, as
necessary or reasonable, that all persons
in the United States, including
nonimmigrants, have equal access to
COVID–19 vaccines and vaccine
142 Calculation: $48.40 hourly opportunity cost of
time for an HR specialist * 3-hour time burden =
$145.20 per petitioner cost to conduct additional
recruitment.
143 Calculation: 3,558 estimated number of
petitioners * $145.20 per petitioner cost to conduct
additional recruitment = $516,622 (rounded) total
cost to conduct additional recruitment.

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distribution sites. We assume that
employers will provide a printed
notification to inform their employees
and that printing and posting the
notification can be done during the
normal course of business. Given that
the regulatory text associated with this
provision is less than 150 words, we
expect that an employer would only
need to post a one-page notification,
even if the notification is in multiple
languages. The printing cost associated
with posting the notification (assuming
that the notification is written) is $0.49
per posting.144 The estimated total cost
to petitioners to print copies is
approximately $1,743 (rounded).145
Cost of the Portability Provision
Petitioners seeking to hire H–2B
nonimmigrants who are currently
present in the United States with a valid
H–2B visa would need to file a Form
I–129 which includes paying the
associated fee as discussed above. Also
previously discussed, we assume that
all employers with an approved TLC—
5,507—would be able to file a petition
under this provision. As discussed
previously, if a petitioner is represented
by a lawyer, the lawyer must file Form
G–28; if premium processing is desired,
a petitioner must file Form I–907 and
pay the associated fee. We expect these
actions to be performed by an HR
specialist, in-house lawyer, or an
outsourced lawyer. Moreover, as
previously estimated, we expect that
about 43.59 percent of these Form I–129
petitions will be filed by an in-house or
outsourced lawyer. We do not have an
estimate of the percentage of H–2B
workers that may choose to port under
this provision and therefore we do not
know the numbers of petitions that may
be filed with USCIS. Therefore, Table 5
presents a sensitivity analysis of the
number of Forms I–129 H–2B petitions
that may be filed under this provision
by an HR specialist and the number of
Forms I–129 H–2B petitions and
accompanying Forms G–28 that may be
filed by an in-house or outsourced
lawyer.

144 Cost to make copies $0.49. See https://
www.fedex.com/en-us/office/copy-and-printservices.html (accessed April 21, 2021).
145 Calculation: $0.49 per posting * 3,558
petitioners = $1,743 cost of notifications copies.

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TABLE 5—NUMBERS OF FORM I–129
H–2B PETITIONS THAT MAY BE
FILED ON BEHALF OF H–2B WORKERS THAT CHOOSE TO PORT BY HR
SPECIALISTS AND LAWYERS
Percent of
approved
TLCs

Numbers of
Form I–129
H–2B petitions
filed by HR
specialists

Numbers of
Form I–129
H–2B petitions
and Form
G–28 filed
by lawyers

0
155
777
1,554
2,330
2,951
3,106

0
120
600
1,200
1,800
2,281
2,401

0 ................
5 ................
25 ..............
50 ..............
75 ..............
95 ..............
100 ............

Source: USCIS Analysis.

Previously, we estimated that about
93.37 percent of Form I–129 H–2B
petitions are filed with Form I–907 for
premium processing. For this provision,
we estimate that 5,142 Form I–129 H–
2B petitions will be filed with premium
processing Forms I–907.146 Table 6
presents a sensitivity analysis of the
numbers of Forms I–907 that may be
filed by HR specialists and lawyers
under this portability provision.

TABLE 6—NUMBERS OF FORM I–907
FILED WITH FORM I–129 H–2B PETITIONS ON BEHALF OF H–2B
WORKERS THAT CHOOSE TO PORT
BY HR SPECIALISTS AND LAWYERS
Percent of
approved
TLCs
0 ................
5 ................
25 ..............
50 ..............
75 ..............
95 ..............
100 ............

Numbers of
Form I–907
filed by HR
specialists
0
145
725
1,451
2,176
2,755
2,900

Numbers of
Form I–907
filed by
lawyers
0
112
560
1,120
1,681
2,130
2,242

Source: USCIS Analysis.

As previously discussed, the
estimated cost for an HR specialist to
file a Form I–129 is approximately
$670.06 and the estimated cost for an
HR specialist to file a Form I–907 is
about $1,528.07. Table 7 presents a
sensitivity analysis of costs resulting
from HR specialists filing Form I–129,
Form I–907, and the estimated total
cost. The ‘‘Cost for HR Specialist Filing
Form I–129’’ column multiplies the
values in the ‘‘Form I–129 Petitions
Filed by HR Specialists’’ column from
146 Calculation: 5,507 estimated number of
approved petitioners * 93.37 percent premium
processing filing rate = 5,142 (rounded) additional
Forms I–907.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
Table 5 by $670.06, the estimated cost
for an HR specialist to file a Form I–129.
The ‘‘Costs for HR Specialist Filing

Form I–907’’ column multiplies the
values in the ‘‘Form I–907 Filed by HR
Specialists’’ from Table 6 by $1,528.07,

28225

the estimated cost for an HR specialist
for an HR specialist to file a Form I–907.

TABLE 7—TOTAL COSTS FOR FILING FORM I–129 H–2B PETITIONS IF FILED BY HR SPECIALISTS ON BEHALF OF
WORKERS THAT CHOOSE TO PORT
Total costs
for HR
specialists
filing Form
I–129

Percent of
Approved TLCs

0 ...................................................................................................................................................
5 ...................................................................................................................................................
25 .................................................................................................................................................
50 .................................................................................................................................................
75 .................................................................................................................................................
95 .................................................................................................................................................
100 ...............................................................................................................................................

0
103,859
520,637
1,041,273
1,561,240
1,977,347
2,081,206

Total costs
for HR
specialists
filing Form
I–907
0
221,570
1,107,852
2,217,232
3,325,085
4,209,838
4,431,409

Total
estimated
costs for HR
specialists
0
325,429
1,628,489
3,258,505
4,886,325
6,187,185
6,512,615

Source: USCIS Analysis.

As previously discussed, the
estimated cost for an in-house lawyer to
file a Form I–129 petition and the
accompanying Form G–28 is
approximately 996.70 and the estimated
cost for an in-house lawyer to file a
Form I–907 is about 1,560.21. Table 8
presents a sensitivity analysis of costs

resulting from in-house lawyers filing
Form I–129, Form G–28, Form I–907,
and the estimated total cost. The ‘‘Cost
for In-house Lawyer Filing Form I–129
and Form G–28’’ column multiplies the
values in the ‘‘Form I–129 Petitions and
Form G–28 Filed by Lawyers’’ column
from Table 5 by 996.70, the estimated

cost for an in-house lawyer to file a
Form I–129 and Form G–28. The ‘‘Costs
for In-house Lawyer Filing Form I–907’’
column multiplies the values in the
‘‘Form I–907 by Lawyers’’ from Table 6
by 1,560.21, the estimated cost for an
HR specialist for an HR specialist to file
a Form I–907.

TABLE 8—TOTAL COSTS FOR FILING FORM I–129 H–2B PETITIONS IF FILED BY IN-HOUSE LAWYERS ON BEHALF OF
WORKERS THAT CHOOSE TO PORT
Costs for
In-house
lawyer
filing Form
I–129 and
Form G–28

Percent of
Approved TLCs

0 ...................................................................................................................................................
5 ...................................................................................................................................................
25 .................................................................................................................................................
50 .................................................................................................................................................
75 .................................................................................................................................................
95 .................................................................................................................................................
100 ...............................................................................................................................................

$0
119,604
598,020
1,196,040
1,794,060
2,273,473
2,393,077

Costs for
In-house
lawyer
filing Form
I–907
$0
174,743
873,717
1,747,435
2,622,713
3,323,247
3,497,990

Total
estimated
costs
resulting
from
in-house
lawyer
$0
294,347
1,471,737
2,943,475
4,416,773
5,596,720
5,891,067

Source: USCIS Analysis.

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As previously discussed, the
estimated cost for an outsourced lawyer
to file a Form I–129 and the
accompanying Form G–28 is
approximately 1,385.33 and the
estimated cost for an outsourced lawyer
to file a Form I–907 is about 1,603.81.
Table 9 presents a sensitivity analysis of

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costs resulting from outsourced lawyers
filing Form I–129, Form G–28, Form I–
907, and the estimated total cost. The
‘‘Costs for Outsourced Lawyer Filing
Form I–129 and Form G–28’’ column
multiplies the values in the ‘‘Form I–
129 Petitions and Form G–28 Filed by
Lawyers’’ column from Table 5 by

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1,385.33, the estimated cost for an
outsourced lawyer to file a Form I–129
and Form G–28. The ‘‘Costs for
Outsourced Lawyer Filing Form I–907’’
column multiplies the values in the
‘‘Form I–907 by Lawyers’’ from Table 6
by 1,603.81, the estimated cost for an
outsourced lawyer to file a Form I–907.

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations

TABLE 9—TOTAL COSTS FOR FILING FORM I–129 H–2B PETITIONS IF FILED BY OUTSOURCED LAWYERS ON BEHALF OF
WORKERS THAT CHOOSE TO PORT
Costs for
outsourced
lawyer
filing Form
I–129 and
Form G–28

Percent of
Approved TLCs

0 ...................................................................................................................................................
5 ...................................................................................................................................................
25 .................................................................................................................................................
50 .................................................................................................................................................
75 .................................................................................................................................................
95 .................................................................................................................................................
100 ...............................................................................................................................................

Costs for
outsourced
lawyer
filing
Form I–907

0
254,466
1,274,179
2,548,359
3,821,613
4,841,327
5,095,792

0
179,627
898,133
1,796,265
2,696,002
3,416,112
3,595,738

Total
estimated
costs
resulting
from
outsourced
lawyer
0
434,093
2,172,312
4,344,624
6,517,615
8,257,439
8,691,530

Source: USCIS Analysis.

The total quantified costs for this
provision range from 0 to 15,204,145
and are presented in Table 10 below.
Though we present the sensitivity
analysis as if no one will choose to port
to another employer, DHS expects that

at least one worker will take advantage
of this porting provision and therefore,
does not expect a 0 cost from this
provision. DHS recognizes that if an
employer that loses workers as a result
of this provision chooses to replace

those lost workers, that employer may
incur some additional search and
replacement costs associated with this
provision.

TABLE 10—SENSITIVITY ANALYSIS OF TOTAL COSTS OF FORM I–129 H–2B PETITIONS TO HIRE H–2B WORKERS WHO
CHOOSE TO PORT

Percent of
Approved TLCs

Range in
costs from HR
specialists
and in-house
lawyers to
hire H–2B
workers who
choose to port
(addition of
totals from
Table 7 and
Table 8)

Range in
costs from HR
specialists
and
outsourced
lawyers
to hire H–2B
workers who
choose to port
(addition of
totals from
Table 7 and
Table 9)

0
619,776
3,100,226
6,201,980
9,303,098
11,783,905
12,403,682

0
759,522
3,800,801
7,603,129
11,403,940
14,444,624
15,204,145

0 ...............................................................................................................................................................................
5 ...............................................................................................................................................................................
25 .............................................................................................................................................................................
50 .............................................................................................................................................................................
75 .............................................................................................................................................................................
95 .............................................................................................................................................................................
100 ...........................................................................................................................................................................
Source: USCIS Analysis.

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Cost of Audits to Petitioners
DHS and DOL will each conduct
audits on 250 separate employers of
H–2B workers hired under this
supplemental cap, for a total of 500
employers. Employers will need to
provide requested information to
comply with the audit. The expected
time burden to comply with audits is
estimated to be 12 hours.147 We expect
that providing these documents will be
accomplished by an HR specialist or
equivalent occupation. Given an hourly
opportunity cost of time of 48.40, the
estimated cost of complying with audits
147 The number in hours for audits was provided
by the USCIS, Service Center Operations.

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is 580.80 per audited employer.148
Therefore, the total estimated cost to
employers to comply with audits is
290,400.149
Estimated Total Costs to Petitioners
The monetized costs of this rule come
from filing and complying with Form I–
129, Form G–28, Form I–907, and Form
ETA–9142–B–CAA–4, as well as
contacting refreshing recruitment
efforts, posting notifications, filings to
148 Calculation: 48.40 hourly opportunity cost of
time for an HR specialist * 12 hours to comply with
an audit = 580.80 per audited employer.
149 Calculation: 500 audited employers * 580.80
opportunity cost of time to comply with an audit
= 290,400.

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obtain a porting worker, and complying
with audits. The estimated total cost to
file Form I–129 and an accompanying
Form G–28 ranges from $2,890,692 to
$3,493,457, depending on the filer. The
estimated total cost of filing Form I–907
ranges from $5,122,787 to $5,185,920,
depending on the filer. The estimated
total cost of filing and complying with
Form ETA–9142–B–CAA–4 is about
$1,370,719. The estimated total cost of
conducting additional recruitment is
about $516,662. The estimated total cost
of the COVID–19 protection provision is
approximately $1,743. The estimated
cost of the portability provision ranges

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
from $0 to $15,204,145.150 The
estimated total cost for employers to
comply with audits is $290,400. The
total estimated cost to petitioners ranges
from $10,192,963 to $26,063,006.151

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Cost to the Federal Government
The INA provides USCIS with the
authority for the collection of fees at a
level that will ensure recovery of the
full costs of providing adjudication and
naturalization services, including
administrative costs, and services
provided without charge to certain
applicants and petitioners.152 DHS notes
USCIS establishes its fees by assigning
costs to an adjudication based on its
relative adjudication burden and use of
USCIS resources. Fees are established at
an amount that is necessary to recover
these assigned costs such as clerical,
officers, and managerial salaries and
benefits, plus an amount to recover
unassigned overhead (for example,
facility rent, IT equipment and systems
among other expenses) and immigration
benefits provided without a fee charge.
Consequently, since USCIS immigration
fees are based on resource expenditures
related to the benefit in question, USCIS
uses the fee associated with an
information collection as a reasonable
measure of the collection’s costs to
USCIS. DHS anticipates some additional
costs in adjudicating the additional
petitions submitted because of the
increase in cap limitation for H–2B
visas. However, DHS expects these costs
to be fully recovered by the fees
associated with the forms, which have
been accounted for under costs to
petitioners and serve as proxy of the
costs to the agency to adjudicate these
forms.
Both DOL and DHS intend to conduct
a significant number of random audits
during the period of temporary need to
verify compliance with H–2B program
requirements, including the irreparable
harm standard as well as other key
worker protection provisions
implemented through this rule. While
most USCIS activities are funded
through fees and DOL is funded through
150 The lower bound cost of $0 is only if none of
the eligible workers choose to port under this
provision, while the upper bound cost of
$15,204,145 is if every eligible worker chooses to
port and every petitioner uses the more expensive
filing option of an outsourced lawyer. As shown in
Table 10, the range in costs if 50 percent of eligible
workers choose to port with their petitioners using
an HR specialist or an outsourced lawyer to file
would be from $6,201,980 to $7,603,129.
151 Calculation of lower range: $2,890,692 +
$5,122,787 + $1,370,719 + $516,622 + $1,743 + $0
+ $290,400 = $10,192,963.
Calculation of upper range: $3,493,457 +
$5,185,920 + $1,370,719 + $516,622 + $1,743 +
$15,204,145 + $290,400 = $26,063,006.
152 See INA section 286(m), 8 U.S.C. 1356(m).

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appropriations, it is expected that both
agencies will be able to shift resources
to be able to conduct these audits
without incurring additional costs. As
previously mentioned, the agencies will
conduct a total of 500 audits and each
audit is expected to take 12 hours. This
results in a total time burden of 6,000
hours.153 USCIS anticipates that a
Federal employee at a GS–13 Step 5
salary will conduct these audits for each
agency. The base pay for a GS–13 Step
5 in the Washington, DC locality area is
$117,516.154 The hourly wage for this
salary is approximately $56.50.155 To
estimate the total hourly compensation
for these positions, we multiply the
hourly wage ($56.50) by the Federal
benefits to wage multiplier of 1.38.156
This results in an hourly opportunity
cost of time of $77.97 for GS 13–5
Federal employees in the Washington,
DC locality pay area.157 The total
opportunity costs of time for Federal
workers to conduct audits is estimated
to be $467,820.158
Benefits to Petitioners
The inability to access H–2B workers
for some entities may cause their
businesses to suffer irreparable harm.
Temporarily increasing the number of
available H–2B visas for this fiscal year
may result in a cost savings, because it
will allow some businesses to hire the
additional labor resources necessary to
avoid such harm. Preventing such harm
may ultimately preserve the jobs of
other employees (including U.S.
workers) at that establishment.
Additionally, returning workers are
likely to be very familiar with the H–2B
process and requirements, and may be
153 Calculation: 12 hours to conduct an audit *
500 audits = 6,000 total hours to conduct audits.
154 U.S. Office of Personnel Management, Pay and
Leave, Salaries and Wages, For the Locality Pay area
of Washington-Baltimore-Arlington, DC–MD–VA–
WV–PA, 2021. https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/salary-tables/
21Tables/html/DCB.aspx (last accessed May 6,
2021).
155 Calculation: $117,516 GS 13–5 Washington,
DC locality annual salary/2080 annual hours =
$56.50 (rounded).
156 Calculation: $1,717,321 Full-time Permanent
Salaries + $656,748 Civilian Personnel Benefits =
$2,374,069 Compensation.
$2,374,069 Compensation/$1,717,321 Full-time
Permanent Salaries = 1.38 (rounded) Federal
employee benefits to wage ratio.
https://www.uscis.gov/sites/default/files/
document/reports/USCIS_FY_2021_Budget_
Overview.pdf (last accessed May 6, 2021).
157 Calculation: $56.50 hourly wage for a GS 13–
5 in the Washington, DC locality area * 1.38 Federal
employee benefits to wage ratio = $77.97 hourly
opportunity cost of time for a GS 13–5 federal
employee in the Washington, DC locality area.
158 Calculation: 6,000 hours to conduct audits *
$77.97 hourly opportunity cost of time = $467,820
total opportunity costs of time for Federal
employees to conduct audits.

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28227

positioned to begin work more
expeditiously with these employers.
Moreover, employers may already be
familiar with returning workers as they
have trained, vetted, and worked with
some of these returning workers in past
years. As such, limiting the
supplemental visas to returning workers
would assist employers that are facing
irreparable harm.
Benefits to Workers
The existence of this rule will benefit
the workers who receive H–2B visas.
See Arnold Brodbeck et al., Seasonal
Migrant Labor in the Forest Industry of
the United States: The Impact of H–2B
Employment on Guatemalan
Livelihoods, 31 Society & Natural
Resources 1012 (2018), and in particular
this finding: ‘‘Participation in the H–2B
guest worker program has become a
vital part of the livelihood strategies of
rural Guatemalan families and has had
a positive impact on the quality of life
in the communities where they live.
Migrant workers who were landless,
lived in isolated rural areas, had few
economic opportunities, and who had
limited access to education or adequate
health care, now are investing in small
trucks, building roads, schools, and
homes, and providing employment for
others in their home communities. . . .
The impact has been transformative and
positive.’’
Some provisions of this rule will
benefit such workers in particular ways.
The portability provision of this rule
will allow nonimmigrants with valid H–
2B visas who are present in the United
States to transfer to a new employer
more quickly and potentially extend
their stay in the United States and,
therefore, earn additional wages.
Importantly, the rule will also increase
information employees have about equal
access to COVID–19 vaccinations and
vaccine distribution sites. DHS
recognizes that some of the effects of
these provisions may occur beyond the
borders of the United States.
Note as well that U.S. workers will
benefit in multiple ways. For example,
the additional round of recruitment and
U.S. worker referrals required by the
provisions of this rule will ensure that
a U.S. worker who is willing and able
to fill the position is not displaced by
a nonimmigrant worker. As noted, the
avoidance of irreparable harm that
would be suffered by employers unable
to secure sufficient workers, made
possible by this rule, could ensure that
U.S. workers do not lose their jobs,
which might otherwise be vulnerable if
H–2B workers were not given visas.

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C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq. (RFA), imposes
certain requirements on Federal agency
rules that are subject to the notice and
comment requirements of the APA. See
5 U.S.C. 603(a), 604(a). This temporary
final rule is exempt from notice and
comment requirements for the reasons
stated above. Therefore, the
requirements of the RFA applicable to
final rules, 5 U.S.C. 604, do not apply
to this temporary final rule.
Accordingly, the Departments are not
required to either certify that the
temporary final rule would not have a
significant economic impact on a
substantial number of small entities nor
conduct a regulatory flexibility analysis.
D. Unfunded Mandates Reform Act of
1995

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The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of the Act requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed rule, or final rule
for which the agency published a
proposed rule that includes any Federal
mandate that may result in $100 million
or more expenditure (adjusted annually
for inflation) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector. This
rule is exempt from the written
statement requirement because DHS did
not publish a notice of proposed
rulemaking for this rule.
In addition, this rule does not exceed
the $100 million expenditure in any 1
year when adjusted for inflation ($169.8
million in 2020 dollars),159 and this
rulemaking does not contain such a
mandate. The requirements of Title II of
the Act, therefore, do not apply, and the
159 See U.S. Bureau of Labor Statistics, Historical
Consumer Price Index for All Urban Consumers
(CPI–U): U.S. City Average, All Items, available at
https://www.bls.gov/cpi/tables/supplemental-files/
historical-cpi-u-202103.pdf (last visited May 5,
2021).
Calculation of inflation: (1) Calculate the average
monthly CPI–U for the reference year (1995) and the
most recent current year available (2020); (2)
Subtract reference year CPI–U from current year
CPI–U; (3) Divide the difference of the reference
year CPI–U and current year CPI–U by the reference
year CPI–U; (4) Multiply by 100 = [(Average
monthly CPI–U for 2020¥Average monthly CPI–U
for 1995)/(Average monthly CPI–U for 1995)] * 100
= [(258.811 ¥ 152.383)/152.383] * 100 = (106.428/
152.383) *100 = 0.6984 * 100 = 69.84 percent = 69.8
percent (rounded).
Calculation of inflation-adjusted value: $100
million in 1995 dollars * 1.698 = $169.8 million in
2020 dollars.

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Departments have not prepared a
statement under the Act.
E. Executive Order 13132 (Federalism)
This rule does not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, 64 FR 43255 (Aug. 4,
1999), this rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
F. Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, 61 FR
4729 (Feb. 5, 1996).
G. National Environmental Policy Act
DHS and its components analyze
proposed actions to determine whether
the National Environmental Policy Act
(NEPA) applies to them and, if so, what
degree of analysis is required. DHS
Directive (Dir) 023–01 Rev. 01 and
Instruction Manual 023–01–001–01 Rev.
01 (Instruction Manual) establish the
procedures that DHS and its
components use to comply with NEPA
and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts 1500
through 1508.
The CEQ regulations allow Federal
agencies to establish, with CEQ review
and concurrence, categories of actions
(‘‘categorical exclusions’’) which
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS). 40 CFR
1507.3(b)(1)(iii), 1508.4. The Instruction
Manual, Appendix A, Table 1 lists
Categorical Exclusions that DHS has
found to have no such effect. Under
DHS NEPA implementing procedures,
for an action to be categorically
excluded, it must satisfy each of the
following three conditions: (1) The
entire action clearly fits within one or
more of the categorical exclusions; (2)
the action is not a piece of a larger
action; and (3) no extraordinary
circumstances exist that create the
potential for a significant environmental
effect. Instruction Manual, section
V.B.2(a–c).
This rule temporarily amends the
regulations implementing the H–2B

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nonimmigrant visa program to increase
the numerical limitation on H–2B
nonimmigrant visas for the remainder of
FY 2021 based on the Secretary of
Homeland Security’s determination, in
consultation with the Secretary of
Labor, consistent with the FY 2021
Omnibus. It also allows H–2B
beneficiaries who are in the United
States to change employers upon the
filing of a new H–2B petition and begin
to work for the new employer for a
period generally not to exceed 60 days
before the H–2B petition is approved by
USCIS.
DHS has determined that this rule
clearly fits within categorical exclusion
A3(d) because it interprets or amends a
regulation without changing its
environmental effect. The amendments
to 8 CFR part 214 would authorize up
to an additional 22,000 visas for aliens
who may receive H–2B nonimmigrant
visas, of which 16,000 are for returning
workers (persons issued H–2B visas or
were otherwise granted H–2B status in
Fiscal Years 2018, 2019, or 2020). The
proposed amendments would also
facilitate H–2B nonimmigrants to move
to new employment faster than they
could if they had to wait for a petition
to be approved. The amendment’s
operative provisions approving H–2B
petitions under the supplemental
allocation would effectively terminate
after September 30, 2021 for the cap
increase, and 180 days from the rule’s
effective date for the portability
provision. DHS believes amending
applicable regulations to authorize up to
an additional 22,000 H–2B
nonimmigrant visas will not result in
any meaningful, calculable change in
environmental effect with respect to the
current H–2B limit or in the context of
a current U.S. population exceeding
331,000,000 (maximum temporary
increase of 0.0066%).
The amendment to applicable
regulations is a stand-alone temporary
authorization and not a part of any
larger action, and presents no
extraordinary circumstances creating
the potential for significant
environmental effects. Therefore, this
action is categorically excluded and no
further NEPA analysis is required.
H. Congressional Review Act
This temporary final rule is not a
‘‘major rule’’ as defined by the
Congressional Review Act, 5 U.S.C.
804(2), and thus is not subject to a 60day delay in the rule becoming effective.
DHS will send this temporary final rule
to Congress and to the Comptroller
General under the Congressional Review
Act, 5 U.S.C. 801 et seq.

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I. Paperwork Reduction Act
Attestation for Employers Seeking To
Employ H–2B Nonimmigrants Workers
Under Section 105 of Division O of the
Consolidated Appropriations Act, 2021
Public Law 116–260, Form ETA–9142–
B–CAA–4
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. DOL has
submitted the Information Collection
Request (ICR) contained in this rule to
OMB and obtained approval of a new
form, Form ETA–9142B–CAA–4, using
emergency clearance procedures
outlined at 5 CFR 1320.13. The
Departments note that while DOL
submitted the ICR, both DHS and DOL
will use the information.
Petitioners will use the new Form
ETA–9142B–CAA–4 to make
attestations regarding, for example,
irreparable harm and returning worker
(unless exempt because the H–2B
worker is a national of one of the
Northern Triangle countries who is
counted against the 6,000 returning
worker exemption cap) described above.
Petitioners will need to file the
attestation with DHS until it announces
that the supplemental H–2B cap has
been reached. In addition, the petitioner
will need to retain all documentation
demonstrating compliance with this
implementing rule, and must provide it
to DHS or DOL in the event of an audit
or investigation.
In addition to obtaining immediate
emergency approval, DOL is seeking
comments on this information
collection pursuant to 5 CFR 1320.13.
Comments on the information collection
must be received by July 26, 2021. This
process of engaging the public and other
Federal agencies helps ensure that
requested data can be provided in the
desired format, reporting burden (time
and financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirements on respondents can be
properly assessed. The PRA provides
that a Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally

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not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. See 44 U.S.C. 3501 et seq. In
addition, notwithstanding any other
provisions of law, no person must
generally be subject to a penalty for
failing to comply with a collection of
information that does not display a
valid OMB Control Number. See 5 CFR
1320.5(a) and 1320.6.
In accordance with the PRA, DOL is
affording the public with notice and an
opportunity to comment on the new
information collection, which is
necessary to implement the
requirements of this rule. The
information collection activities covered
under a newly granted OMB Control
Number 1205–NEW are required under
Section 105 of Division O of the FY
2021 Omnibus, which provides that
‘‘the Secretary of Homeland Security,
after consultation with the Secretary of
Labor, and upon the determination that
the needs of American businesses
cannot be satisfied in [FY] 2021 with
U.S. workers who are willing, qualified,
and able to perform temporary
nonagricultural labor,’’ may increase the
total number of noncitizens who may
receive an H–2B visa in FY 2021 by 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 the H–2B numerical
limitation. As previously discussed in
the preamble of this rule, the Secretary
of Homeland Security, in consultation
with the Secretary of Labor, has decided
to increase the numerical limitation on
H–2B nonimmigrant visas to authorize
the issuance of up to, but not more than,
an additional 22,000 visas through the
end of FY 2021 for certain H–2B
workers for U.S. businesses who attest
that they will likely suffer irreparable
harm. As with the previous
supplemental rules, the Secretary has
determined that the additional visas
will only be available for returning
workers, that is workers who were
issued H–2B visas or otherwise granted
H–2B status in FY 2018, 2019, or 2020,
unless the worker is one of the 6,000
nationals of one of the Northern
Triangle countries who are exempt from
the returning worker requirement.
Commenters are encouraged to
discuss the following:
• Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
• the accuracy of the agency’s
estimate of the burden of the proposed

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28229

collection of information, including the
validity of the methodology and
assumptions used;
• the quality, utility, and clarity of
the information to be collected; and
• the burden of the collection of
information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology, for example,
permitting electronic submission of
responses.
The aforementioned information
collection requirements are summarized
as follows:
Agency: DOL–ETA.
Type of Information Collection:
Extension of an existing information
collection.
Title of the Collection: Attestation for
Employers Seeking to Employ H–2B
Nonimmigrants Workers Under Section
105 of Division O of the Consolidated
Appropriations Act, 2021 Public Law
116–260.
Agency Form Number: Form ETA–
9142–B–CAA–4.
Affected Public: Private Sector—
businesses or other for-profits.
Total Estimated Number of
Respondents: 3,558.
Average Responses per Year per
Respondent: 1.
Total Estimated Number of
Responses: 3,558.
Average Time per Response: 9 hours
per application.
Total Estimated Annual Time Burden:
32,023 hours.
Total Estimated Other Costs Burden:
$0.
Application for Premium Processing
Service, Form I–907
The Paperwork Reduction Act (PRA),
44 U.S.C. 3501 et seq., provides that a
Federal agency generally cannot
conduct or sponsor a collection of
information, and the public is generally
not required to respond to an
information collection, unless it is
approved by OMB under the PRA and
displays a currently valid OMB Control
Number. In addition, notwithstanding
any other provisions of law, no person
shall generally be subject to penalty for
failing to comply with a collection of
information that does not display a
valid Control Number. See 5 CFR
1320.5(a) and 1320.6. Form I–907,
Application for Premium Processing
Service, has been approved by OMB and
assigned OMB control number 1615–
0048. DHS is making no changes to the
Form I–907 in connection with this
temporary rule implementing the timelimited authority pursuant to section

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105 of Division O, FY 2021 Omnibus
(which expires on September 30, 2021).
However, USCIS estimates that this
temporary rule may result in
approximately 3,332 additional filings
of Form I–907 in fiscal year 2021. The
current OMB-approved estimate of the
number of annual respondents filing a
Form I–907 is 319,301. USCIS has
determined that the OMB-approved
estimate is sufficient to fully encompass
the additional respondents who will be
filing Form I–907 in connection with
this temporary rule, which represents a
small fraction of the overall Form I–907
population. Therefore, DHS is not
changing the collection instrument or
increasing its burden estimates in
connection with this temporary rule,
and is not publishing a notice under the
PRA or making revisions to the
currently approved burden for OMB
control number 1615–0048.
List of Subjects
8 CFR Part 214
Administrative practice and
procedure, Aliens, Cultural exchange
programs, Employment, Foreign
officials, Health professions, Reporting
and recordkeeping requirements,
Students.
8 CFR Part 274a
Administrative practice and
procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping
requirements.
20 CFR Part 655
Administrative practice and
procedure, Employment, Employment
and training, Enforcement, Foreign
workers, Forest and forest products,
Fraud, Health professions, Immigration,
Labor, Longshore and harbor work,
Migrant workers, Nonimmigrant
workers, Passports and visas, Penalties,
Reporting and recordkeeping
requirements, Unemployment, Wages,
Working conditions.
Department of Homeland Security
8 CFR Chapter I
For the reasons discussed in the joint
preamble, chapter I of title 8 of the Code
of Federal Regulations is amended as
follows:
PART 214—NONIMMIGRANT CLASSES
1. Effective May 25, 2021 through May
28, 2024, the authority citation for part
214 is revised to read as follows:

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■

Authority: 6 U.S.C. 202, 236; 8 U.S.C.
1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301–1305, 1357, and
1372; sec. 643, Pub. L. 104–208, 110 Stat.
3009–708; Pub. L. 106–386, 114 Stat. 1477–

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1480; section 141 of the Compacts of Free
Association with the Federated States of
Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau,
48 U.S.C. 1901 note and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C.
1806).

2. Effective May 25, 2021 through May
28, 2024, amend § 214.2 by:
■ a. Adding paragraph (h)(6)(x);
■ b. Adding reserved paragraph (h)(25);
and
■ c. Adding paragraph (h)(26).
The additions read as follows:
■

§ 214.2 Special requirements for
admission, extension, and maintenance of
status.

*

*
*
*
*
(h) * * *
(6) * * *
(x) Special requirements for
additional cap allocations under the
Consolidated Appropriations Act, 2021,
Public Law 116–260—(A) Public Law
116–260—(1) Supplemental allocation
for returning workers. Notwithstanding
the numerical limitations set forth in
paragraph (h)(8)(i)(C) of this section, for
fiscal year 2021 only, the Secretary has
authorized up to an additional 16,000
visas for aliens who may receive H–2B
nonimmigrant visas pursuant to section
105 of Division O of the Consolidated
Appropriations Act, 2021, Public Law
116–260. An alien may be eligible to
receive an H–2B nonimmigrant visa
under this paragraph (h)(6)(x)(A)(1) if
she or he is a returning worker. The
term ‘‘returning worker’’ under this
paragraph (h)(6)(x)(A)(1) means a person
who was issued an H–2B visa or was
otherwise granted H–2B status in fiscal
year 2018, 2019, or 2020.
Notwithstanding § 248.2 of this chapter,
an alien may not change status to H–2B
nonimmigrant under this paragraph
(h)(6)(x)(A)(1).
(2) Supplemental allocation for
nationals of Guatemala, El Salvador,
and Honduras (Northern Triangle
countries). Notwithstanding the
numerical limitations set forth in
paragraph (h)(8)(i)(C) of this section, for
fiscal year 2021 only, and in addition to
the allocation described in paragraph
(h)(6)(x)(A)(1) of this section, the
Secretary has authorized up to an
additional 6,000 aliens who are
nationals of Guatemala, El Salvador, or
Honduras (Northern Triangle countries)
who may receive H–2B nonimmigrant
visas pursuant to section 105 of Division
O of the Consolidated Appropriations
Act, 2021, Public Law 116–260. Such
workers are not subject to the returning
worker requirement in paragraph
(h)(6)(x)(A)(1). Petitioners must request

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such workers in an H–2B petition that
is separate from H–2B petitions that
request returning workers under
paragraph (h)(6)(x)(A)(1) and must
declare that they are requesting these
workers in the attestation required
under 20 CFR 655.68(a)(1).
Notwithstanding § 248.2 of this chapter,
an alien may not change status to H–2B
nonimmigrant under this paragraph
(h)(6)(x)(A)(2).
(i) Petitions submitted under this
paragraph (h)(6)(x)(A)(2) must be
received by July 8, 2021. H–2B petitions
under the supplemental allocation for
nationals of Northern Triangle countries
received after that date will be rejected.
(ii) If USCIS determines that it has
received fewer petitions by July 8, 2021
than needed to reach the USCIS
projections for the Northern Triangle
countries supplemental allocation in
this paragraph (h)(6)(x)(A)(2), it will
make the remainder of the allocation
available as a separate allocation
described in paragraph (h)(6)(x)(A)(3) of
this section.
(3) Availability of remainder of
supplemental allocation. If USCIS
determines that fewer petitions have
been received by July 8, 2021 than
needed to meet the additional allocation
described in paragraph (h)(6)(x)(A)(2) of
this section, USCIS will make the
remainder of the allocation available as
a separate allocation to returning
workers as described in paragraph
(h)(6)(x)(A)(1) of this section and will
announce the availability of the
remainder of the allocation on the
USCIS website at uscis.gov no later than
July 23, 2021. Such announcement, if
made, will specify the date on which
petitioners may begin to file H–2B
petitions under this paragraph
(h)(6)(x)(A)(3).
(B) Eligibility. In order to file a
petition with USCIS under this
paragraph (h)(6)(x), the petitioner must:
(1) Comply with all other statutory
and regulatory requirements for H–2B
classification, including, but not limited
to, requirements in this section, under
part 103 of this chapter, and under 20
CFR part 655 and 29 CFR part 503; and
(2) Submit to USCIS, at the time the
employer files its petition, a U.S.
Department of Labor attestation, in
compliance with this section and 20
CFR 655.64, evidencing that:
(i) Without the ability to employ all of
the H–2B workers requested on the
petition filed pursuant to this paragraph
(h)(6)(x), its business is likely to suffer
irreparable harm (that is, permanent and
severe financial loss);
(ii) All workers requested and/or
instructed to apply for a visa have been
issued an H–2B visa or otherwise

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations
granted H–2B status in fiscal year 2018,
2019, or 2020, unless the H–2B worker
is a national of Guatemala, El Salvador,
or Honduras and is counted towards the
6,000 cap described in paragraph
(h)(6)(x)(A)(2) of this section;
(iii) The employer will 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, any right to time off
or paid time off for COVID–19
vaccination, and that the employer will
notify any H–2B workers approved
under the supplemental cap in
paragraph (h)(6)(x)(A)(2) of this section,
in a language understood by the worker,
as necessary or reasonable, that all
persons in the United States, including
nonimmigrants, have equal access to
COVID–19 vaccines and vaccine
distribution sites;
(iv) The employer will comply with
obligations and additional recruitment
requirements outlined in 20 CFR
655.64(a)(3) through (5);
(v) The employer will provide
documentary evidence of the facts in
paragraphs (h)(6)(x)(B)(2)(i) through (iv)
of this section to DHS or DOL upon
request; and
(vi) The employer will agree to fully
cooperate with any compliance review,
evaluation, verification, or inspection
conducted by DHS, including an on-site
inspection of the employer’s facilities,
interview of the employer’s employees
and any other individuals possessing
pertinent information, and review of the
employer’s records related to the
compliance with immigration laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2021
supplemental allocations outlined in
paragraph (h)(6)(x)(B) of this section, as
a condition for the approval of the
petition.
(vii) The employer must attest on
Form ETA–9142–B–CAA–4 that it will
fully cooperate with any audit,
investigation, compliance review,
evaluation, verification or inspection
conducted by DOL, including an on-site
inspection of the employer’s facilities,
interview of the employer’s employees
and any other individuals possessing
pertinent information, and review of the
employer’s records related to the
compliance with applicable laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2021
supplemental allocations outlined in 20
CFR 655.64(a) and 655.68(a), as a
condition for the approval of the H–2B
petition. The employer must further
attest on Form ETA–9142–B–CAA–4

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that it will not impede, interfere, or
refuse to cooperate with an employee of
the Secretary of the U.S. Department of
Labor who is exercising or attempting to
exercise DOL’s audit or investigative
authority pursuant to 20 CFR part 655,
subpart A, and 29 CFR 503.25.
(C) Processing. USCIS will reject
petitions filed pursuant to paragraph
(h)(6)(x)(A)(1) or (3) of this section that
are received after the applicable
numerical limitation has been reached
or after September 15, 2021, whichever
is sooner. USCIS will reject petitions
filed pursuant to paragraph
(h)(6)(x)(A)(2) of this section that are
received after the applicable numerical
limitation has been reached or after July
8, 2021, whichever is sooner. USCIS
will not approve a petition filed
pursuant to this paragraph (h)(6)(x) on
or after October 1, 2021.
(D) Numerical limitations under
paragraphs (h)(6)(x)(A)(1), (2), and (3) of
this section. When calculating the
numerical limitations under paragraphs
(h)(6)(x)(A)(1), (2), and (3) of this section
as authorized under Public Law 116–
260, USCIS will make numbers for each
allocation available to petitions in the
order in which the petitions subject to
the respective limitation are received.
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
workers requested when necessary)
received and will notify the public of
the dates that USCIS has received the
necessary number of petitions (the
‘‘final receipt dates’’) under paragraph
(h)(6)(x)(A)(1) or paragraphs
(h)(6)(x)(A)(2) and (3). The day the
public is notified will not control the
final receipt dates. When necessary to
ensure the fair and orderly allocation of
numbers subject to the numerical
limitations in paragraphs (h)(6)(x)(A)(1),
(2), and (3), USCIS may randomly select
from among the petitions received on
the final receipt dates the remaining
number of petitions deemed necessary
to generate the numerical limit of
approvals. This random selection will
be made via computer-generated
selection. Petitions subject to a
numerical limitation not randomly
selected or that were received after the
final receipt dates that may be
applicable under paragraph
(h)(6)(x)(A)(1), (2), or (3) will be
rejected. If the final receipt date is any
of the first 5 business days on which
petitions subject to the applicable
numerical limits described in paragraph

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(h)(6)(x)(A)(1), (2), or (3) may be
received (in other words, if any of the
numerical limits described in paragraph
(h)(6)(x)(A)(1), (2), or (3) is reached on
any one of the first 5 business days that
filings can be made), USCIS will
randomly apply all of the numbers
among the petitions received on any of
those 5 business days.
(E) Sunset. This paragraph (h)(6)(x)
expires on October 1, 2021.
(F) Non-severability. The requirement
to file an attestation under paragraph
(h)(6)(x)(B)(2) of this section is intended
to be non-severable from the remainder
of this paragraph (h)(6)(x), including,
but not limited to, the numerical
allocation provisions at paragraphs
(h)(6)(x)(A)(1), (2), and (3) of this section
in their entirety. In the event that any
part of this paragraph (h)(6)(x) is
enjoined or held to be invalid by any
court of competent jurisdiction, the
remainder of this paragraph (h)(6)(x) is
also intended to be enjoined or held to
be invalid in such jurisdiction, without
prejudice to workers already present in
the United States under this paragraph
(h)(6)(x), as consistent with law.
*
*
*
*
*
(26) Change of employers and
portability for H–2B workers. (i) This
paragraph (h)(26) relates to H–2B
workers seeking to change employers
during the time period specified in
paragraph (h)(26)(iv) of this section.
Notwithstanding paragraph (h)(2)(i)(D)
of this section, an alien in valid H–2B
nonimmigrant status:
(A) Whose new petitioner files a nonfrivolous H–2B petition requesting an
extension of the alien’s stay on or after
May 25, 2021, is authorized to begin
employment with the new petitioner
after the petition described in this
paragraph (h)(26) is received by USCIS
and before the new H–2B petition is
approved, but no earlier than the start
date indicated in the new H–2B
petition; or
(B) Whose new petitioner filed a nonfrivolous H–2B petition requesting an
extension of the alien’s stay before May
25, 2021 that remains pending on May
25, 2021, is authorized to begin
employment with the new petitioner
before the new H–2B petition is
approved, but no earlier than the start
date of employment indicated on the
new H–2B petition.
(ii)(A) With respect to a new petition
described in paragraph (h)(26)(i)(A) of
this section, and subject to the
requirements of 8 CFR 274a.12(b)(30),
the new period of employment
described in paragraph (h)(26)(i) of this
section may last for up to 60 days
beginning on the Received Date on Form

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Federal Register / Vol. 86, No. 99 / Tuesday, May 25, 2021 / Rules and Regulations

I–797 (Notice of Action) or, if the start
date of employment occurs after the
I–797 Received Date, for a period of up
to 60 days beginning on the start date of
employment indicated in the H–2B
petition.
(B) With respect to a new petition
described in paragraph (h)(26)(i)(B) of
this section, the new period of
employment described in paragraph
(h)(26)(i) of this section may last for up
to 60 days beginning on the later of
either May 25, 2021 or the start date of
employment indicated in the H–2B
petition.
(C) With respect to either type of new
petition, if USCIS adjudicates the new
petition before the expiration of this
60-day period and denies the petition,
or if the new petition is withdrawn by
the petitioner before the expiration of
the 60-day period, the employment
authorization associated with the filing
of that petition under 8 CFR
274a.12(b)(30) will automatically
terminate 15 days after the date of the
denial decision or 15 days after the date
on which the new petition is
withdrawn. Nothing in this paragraph
(h)(26) is intended to alter the
availability of employment
authorization related to professional
H–2B athletes who are traded between
organizations pursuant to paragraph
(h)(6)(vii) of this section and 8 CFR
274a.12(b)(9).
(iii) In addition to meeting all other
requirements in paragraph (h)(6) of this
section for the H–2B classification, to
commence employment and be
approved under this paragraph (h)(26):
(A) The alien must have been in valid
H–2B nonimmigrant status on or after
May 25, 2021;
(B) The new H–2B petition must have
been—
(1) Pending as of May 25, 2021; or
(2) Received on or after May 25, 2021,
but no later than November 22, 2021;
(C) The petitioner must comply with
all Federal, State, and local
employment-related laws and
regulations, including health and safety
laws, laws related to COVID–19 worker
protections, and any right to time off or
paid time off for COVID–19 vaccination;
and
(D) The petitioner may not impede,
interfere, or refuse to cooperate with an
employee of the Secretary of the U.S.
Department of Labor who is exercising
or attempting to exercise DOL’s audit or
investigative authority under 20 CFR
part 655, subpart A, and 29 CFR 503.25.
(iv) Authorization to initiate
employment changes pursuant to this
paragraph (h)(26) begins at 12 a.m. on

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May 25, 2021, and ends at the end of
November 22, 2021.
*
*
*
*
*

Department of Labor

PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS

20 CFR Chapter V
Accordingly, for the reasons stated in
the joint preamble, 20 CFR part 655 is
amended as follows:

3. The authority citation for part 274a
continues to read as follows:

■

Employment and Training
Administration

Authority: 8 U.S.C. 1101, 1103, 1105a,
1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L.
101–410, 104 Stat. 890, as amended by Pub.
L. 114–74, 129 Stat. 599.

PART 655—TEMPORARY
EMPLOYMENT OF FOREIGN
WORKERS IN THE UNITED STATES

4. Effective May 25, 2021 through May
28, 2024, amend § 274a.12 by adding
paragraph (b)(30) to read as follows:

■

■

§ 274a.12 Classes of aliens authorized to
accept employment.

*

*
*
*
*
(b) * * *
(30)(i) Pursuant to 8 CFR 214.2(h)(26)
and notwithstanding 8 CFR
214.2(h)(2)(i)(D), an alien is authorized
to be employed no earlier than the start
date of employment indicated in the
H–2B petition and no earlier than May
25, 2021, by a new employer that has
filed an H–2B petition naming the alien
as a beneficiary and requesting an
extension of stay for the alien, for a
period not to exceed 60 days beginning
on:
(A) The later of the ‘‘Received Date’’
on Form I–797 (Notice of Action)
acknowledging receipt of the petition, or
the start date of employment indicated
on the new H–2B petition, for petitions
filed on or after May 25, 2021; or
(B) The later of May 25, 2021 or the
start date of employment indicated on
the new H–2B petition, for petitions that
are pending as of May 25, 2021.
(ii) If USCIS adjudicates the new
petition prior to the expiration of the
60-day period in paragraph (b)(30)(i) of
this section and denies the new petition
for extension of stay, or if the petitioner
withdraws the new petition before the
expiration of the 60-day period, the
employment authorization under this
paragraph (b)(30) will automatically
terminate upon 15 days after the date of
the denial decision or the date on which
the new petition is withdrawn. Nothing
in this section is intended to alter the
availability of employment
authorization related to professional
H–2B athletes who are traded between
organizations pursuant to paragraph
(b)(9) of this section and 8 CFR
214.2(h)(6)(vii).
(iii) Authorization to initiate
employment changes pursuant to 8 CFR
214.2(h)(26) and paragraph (b)(30)(i) of
this section begins at 12 a.m. on May 25,
2021, and ends at the end of November
22, 2021.
*
*
*
*
*

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5. The authority citation for part 655
continues to read as follows:

Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i)
and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), (p),
and (t), 1184(c), (g), and (j), 1188, and 1288(c)
and (d); sec. 3(c)(1), Pub. L. 101–238, 103
Stat. 2099, 2102 (8 U.S.C. 1182 note); sec.
221(a), Pub. L. 101–649, 104 Stat. 4978, 5027
(8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L.
102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101
note); sec. 323(c), Pub. L. 103–206, 107 Stat.
2428; sec. 412(e), Pub. L. 105–277, 112 Stat.
2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L.
106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182
note); 29 U.S.C. 49k; Pub. L. 107–296, 116
Stat. 2135, as amended; Pub. L. 109–423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR
214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8
CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C.
1288(c) and (d); sec. 323(c), Pub. L. 103–206,
107 Stat. 2428; and 28 U.S.C. 2461 note, Pub.
L. 114–74 at section 701.
Subparts H and I issued under 8 U.S.C.
1101(a)(15)(H)(i)(b) and (b)(1), 1182(n), (p),
and (t), and 1184(g) and (j); sec. 303(a)(8),
Pub. L. 102–232, 105 Stat. 1733, 1748 (8
U.S.C. 1101 note); sec. 412(e), Pub. L. 105–
277, 112 Stat. 2681; 8 CFR 214.2(h); and 28
U.S.C. 2461 note, Pub. L. 114–74 at section
701.
Subparts L and M issued under 8 U.S.C.
1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d),
Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109–423, 120 Stat. 2900;
and 8 CFR 214.2(h).

6. Effective May 25, 2021 through
September 30, 2021, add § 655.64 to
read as follows:

■

§ 655.64 Special application filing and
eligibility provisions for Fiscal Year 2021
under the Consolidated Appropriations Act,
2021.

(a) An employer filing a petition with
USCIS under 8 CFR 214.2(h)(6)(x) to
request H–2B workers who will begin
employment on or after May 25, 2021,
through September 30, 2021, must meet
the following requirements:
(1) The employer must attest on Form
ETA–9142–B–CAA–4 that without the
ability to employ all of the H–2B

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workers requested on the petition filed
pursuant to 8 CFR 214.2(h)(6)(x), its
business is likely to suffer irreparable
harm (that is, permanent and severe
financial loss), and that the employer
will provide documentary evidence of
this fact to DHS or DOL upon request.
(2) The employer must attest on Form
ETA–9142–B–CAA–4 that each of the
workers requested and/or instructed to
apply for a visa, whether named or
unnamed, on a petition filed pursuant to
8 CFR 214.2(h)(6)(x), have been issued
an H–2B visa or otherwise granted
H–2B status during one of the last three
(3) fiscal years (fiscal year 2018, 2019,
or 2020), unless the H–2B worker is a
national of Guatemala, El Salvador, or
Honduras and is counted towards the
6,000 cap described in 8 CFR
214.2(h)(6)(x)(A)(2).
(3) The employer must attest on Form
ETA–9142–B–CAA–4 that the employer
will comply with all the assurances,
obligations, and conditions of
employment set forth on its approved
Application for Temporary Employment
Certification.
(4) The employer must attest on Form
ETA–9142–B–CAA–4 that it will
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, any right to time off
or paid time off for COVID–19
vaccination, and that the employer will
notify any H–2B workers approved
under the supplemental cap in 8 CFR
214.2(h)(6)(x)(A)(1) and (2), in a
language understood by the worker, as
necessary or reasonable, that all persons
in the United States, including
nonimmigrants, have equal access to
COVID–19 vaccines and vaccine
distribution sites.
(5) An employer that submits Form
ETA–9142B–CAA–4 and the I–129
petition 45 or more days after the
certified start date of work, as shown on
its approved Application for Temporary
Employment, must conduct additional
recruitment of U.S. workers as follows:
(i) Not later than the next business
day after submitting the I–129 petition
for H–2B worker(s), the employer must
place a new job order for the job
opportunity with the State Workforce
Agency (SWA), serving the area of
intended employment. The employer
must follow all applicable SWA
instructions for posting job orders and
receive applications in all forms
allowed by the SWA, including online
applications (sometimes known as ‘‘selfreferrals’’). The job order must contain
the job assurances and contents set forth
in § 655.18 for recruitment of U.S.
workers at the place of employment,

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and remain posted for at least 15
calendar days;
(ii) During the period of time the SWA
is actively circulating the job order
described in paragraph (a)(5)(i) of this
section for intrastate clearance, the
employer must contact, by email or
other available electronic means, the
nearest comprehensive American Job
Center offering business services and
serving the area of intended
employment where work will
commence, request staff assistance
advertising and recruiting qualified U.S.
workers for the job opportunity, and
provide the unique identification
number associated with the job order
placed with the SWA or, if unavailable,
a copy of the job order;
(iii) During the period of time the
SWA is actively circulating the job order
described in paragraph (a)(5)(i) of this
section for intrastate clearance, the
employer must contact (by mail or other
effective means) its former U.S. workers,
including those who have been
furloughed or laid off, during the period
beginning January 1, 2019, until the date
the I–129 petition required under 8 CFR
214.2(h)(6)(x) is submitted, who were
employed by the employer in the
occupation at the place of employment
(except those who were dismissed for
cause or who abandoned the worksite),
disclose the terms of the job order, and
solicit their return to the job. The
contact and disclosures required by this
paragraph (a)(5)(iii) must be provided in
a language understood by the worker, as
necessary or reasonable;
(iv) During the period of time the
SWA is actively circulating the job order
described in paragraph (a)(5)(i) of this
section for intrastate clearance, the
employer must engage in the
recruitment of U.S. workers as provided
in § 655.45(a) and (b). The contact and
disclosures required by this paragraph
(a)(5)(iv) must be provided in a language
understood by the worker, as necessary
or reasonable; and
(v) The employer must hire any
qualified U.S. worker who applies or is
referred for the job opportunity until the
date on which the last H–2B worker
departs for the place of employment, or
30 days after the last date on which the
SWA job order is posted, whichever is
later. Consistent with § 655.40(a),
applicants can be rejected only for
lawful job-related reasons.
(6) The employer must attest on Form
ETA–9142–B–CAA–4 that it will fully
cooperate with any audit, investigation,
compliance review, evaluation,
verification, or inspection conducted by
DOL, including an on-site inspection of
the employer’s facilities, interview of
the employer’s employees and any other

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individuals possessing pertinent
information, and review of the
employer’s records related to the
compliance with applicable laws and
regulations, including but not limited to
evidence pertaining to or supporting the
eligibility criteria for the FY 2021
supplemental allocations outlined in
this paragraph (a) and § 655.68(a), as a
condition for the approval of the H–2B
petition. Pursuant to this subpart and 29
CFR 503.25, the employer will not
impede, interfere, or refuse to cooperate
with an employee of the Secretary who
is exercising or attempting to exercise
DOL’s audit or investigative authority.
(b) This section expires on October 1,
2021.
(c) The requirements under paragraph
(a) of this section are intended to be
non-severable from the remainder of
this section; in the event that paragraph
(a)(1), (2), (3), (4), or (5) of this section
is enjoined or held to be invalid by any
court of competent jurisdiction, the
remainder of this section is also
intended to be enjoined or held to be
invalid in such jurisdiction, without
prejudice to workers already present in
the United States under this part, as
consistent with law.
■ 7. Effective May 25, 2021 through
September 30, 2024, add § 655.68 to
read as follows:
§ 655.68 Special document retention
provisions for Fiscal Years 2021 through
2024 under the Consolidated
Appropriations Act, 2021.

(a) An employer who files a petition
with USCIS to employ H–2B workers in
fiscal year 2021 under authority of the
temporary increase in the numerical
limitation under section 105 of Division
O, Public Law 116–260 must maintain
for a period of three (3) years from the
date of certification, consistent with 20
CFR 655.56 and 29 CFR 503.17, the
following:
(1) A copy of the attestation filed
pursuant to the regulations in 8 CFR
214.2 governing that temporary
increase;
(2) Evidence establishing, at the time
of filing the I–129 petition, that
employer’s business is likely to suffer
irreparable harm (that is, permanent and
severe financial loss), if it cannot
employ H–2B nonimmigrant workers in
fiscal year 2021;
(3) Documentary evidence
establishing that each of the workers the
employer requested and/or instructed to
apply for a visa, whether named or
unnamed on a petition filed pursuant to
8 CFR 214.2(h)(6)(x), have been issued
an H–2B visa or otherwise granted
H–2B status during one of the last three
(3) fiscal years (fiscal year 2018, 2019,

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or 2020), unless the H–2B worker(s) is
a national of El Salvador, Guatemala, or
Honduras and is counted towards the
6,000 cap described in 8 CFR
214.2(h)(6)(x)(A)(2). Alternatively, if
applicable, employers must maintain
documentary evidence that the workers
the employer requested and/or
instructed to apply for visas are eligible
nationals of El Salvador, Guatemala, or

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Honduras, as defined in 8 CFR
214.2(h)(6)(x)(A)(2); and
(4) If applicable, proof of recruitment
efforts set forth in § 655.64(a)(5)(i)
through (iv) and a recruitment report
that meets the requirements set forth in
§ 655.48(a)(1) through (4) and (7), and
maintained throughout the recruitment
period set forth in § 655.64(a)(5)(v).
(b) DOL or DHS may inspect the
documents in paragraphs (a)(1) through
(4) of this section upon request.

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(c) This section expires on October 1,
2024.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
Martin J. Walsh,
Secretary, U.S. Department of Labor.
[FR Doc. 2021–11048 Filed 5–21–21; 11:15 am]
BILLING CODE 9111–97–P; 4510–FP–P

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