New Year, New H-2B Updates

The H-2B program allows employers with positions involving a “temporary need,” defined as a need that is either seasonal, peakload, or a one-time occurrence, to sponsor and employ foreign nationals for these roles in the United States. The program is subject to an annual “cap” or quota. The Department of Homeland Security (DHS) has divided the annual quota into two halves – the first half of the quota is for positions with a start date on or after Oct. 1 of a calendar year and the second half of the quota is for positions with a start date on or after April 1 of the following calendar year.

Due to demand for the program, the visas available for the April 1 or later start date have typically been oversubscribed, resulting in a modified “lottery” taking place in early January. In recent years, demand for the H-2B visas available for Oct. 1 or later start dates has also increased.

That has led to some significant updates related to the H-2 B program at the end of 2024 and to start the new year.

• On Dec. 18, 2024, USCIS published a final rule “modernizing” the H-2B program. The rule went into effect Jan. 17. The key aspects of the new rule are:
  • Increasing penalties for H-2A and H-2B violations such as charging employees for prohibited fees and providing “whistleblower” protections to affected employees
  • Providing greater work flexibility by matching portability provisions for H-2 workers with those provided to H-1B workers, automatic extension of employment authorization for beneficiaries of extension requests, and a 60-day grace period to find new employment (this matches the flexibilities provided to H-1B workers)
  • Clarifying that taking certain specific steps to sponsor an H-2 worker for permanent residency will not automatically result in denial of an extension. This relates to the fact that an H-2 visa isn’t a “dual intent” visa.

• On Jan. 7, 2025, the DHS announced that it had received enough applications to satisfy the quota for the first half of the fiscal year and supplemental visas it had provided for the first half of the fiscal year under its statutory authority. This relates to the visas made available for positions with start dates on or after Oct. 1, 2024, and before April 1, 2025.
• Following its randomization procedures, the DOL published its randomized selection and prioritization processes for initial H2B requests it received between Jan. 1-3, 2025, for positions requesting a start date of April 1, 2025.
• DHS has previously announced that it will make all supplemental visas available to it under its statutory authority for fiscal year 2025. Some of these visas will only be available for start dates between April 1 and May 14, some for start dates between May 15 and Sept. 30, and some for certain country-specific allocations.

• RELATED TOPICS
• Immigration
• United States Citizenship and Immigration Services (USCIS)