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

Citation86 FR 28198
Record Number2021-11048
Published date25 May 2021
SectionRules and Regulations
CourtEmployment And Training Administration
Federal Register, Volume 86 Issue 99 (Tuesday, May 25, 2021)
[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
                [Rules and Regulations]
                [Pages 28198-28234]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-11048]
                [[Page 28197]]
                Vol. 86
                Tuesday,
                No. 99
                May 25, 2021
                Part IIDepartment of Homeland Security-----------------------------------------------------------------------8 CFR Parts 214 and 274aDepartment of Labor-----------------------------------------------------------------------Employment and Training Administration-----------------------------------------------------------------------
                20 CFR Part 655Exercise 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; Temporary Rule
                Federal Register / Vol. 86 , No. 99 / Tuesday, May 25, 2021 / Rules
                and Regulations
                [[Page 28198]]
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                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
                AGENCY: 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.
                -----------------------------------------------------------------------
                SUMMARY: 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 time-limited 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
                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
                 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
                [[Page 28199]]
                (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 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 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).
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                 \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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                 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.
                [[Page 28200]]
                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.
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                 \3\ See 8 CFR 214.2(h)(6)(vii) and 8 CFR 274a.12(b)(9).
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                 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 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.
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                 \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.
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                 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 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.
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                 \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.
                 \6\ See Consolidated Appropriations Act, 2016, Public Law 114-
                113, div. F, tit. V, sec 565.
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                 Because of the strong demand for H-2B visas in recent years, the
                statutorily-limited 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
                [[Page 28201]]
                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.
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                 \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.
                 \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-for-second-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 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 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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                C. FY 2021 Omnibus
                 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 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.
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                 \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).
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                 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
                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.
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                 \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).
                 \15\ USCIS data pulled from the Computer Linked Application
                Information Management System (CLAIMS3) database, available at
                https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-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).
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                 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
                [[Page 28202]]
                of these petitions requested premium processing and were adjudicated
                within 15 calendar days.
                ---------------------------------------------------------------------------
                 \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 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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \20\ DHS to Improve Integrity of Visa Program for Foreign
                Workers, March 5, 2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-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.
                ---------------------------------------------------------------------------
                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
                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\
                ---------------------------------------------------------------------------
                 \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 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).
                ---------------------------------------------------------------------------
                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.
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                [[Page 28203]]
                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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                workers because the statutory cap has been reached.\35\
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                 \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.
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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 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
                [[Page 28204]]
                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, short-term 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.
                ---------------------------------------------------------------------------
                 \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/visas-news/important-announcement-on-h2-visas.html (last updated Mar. 26, 2020).
                ---------------------------------------------------------------------------
                 Limiting the supplemental cap to returning workers is beneficial
                because 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 re-hire 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
                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.
                ---------------------------------------------------------------------------
                 \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-visa-statistics.html (last visited April 11, 2021).
                ---------------------------------------------------------------------------
                 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
                [[Page 28205]]
                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.
                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 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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 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.
                ---------------------------------------------------------------------------
                 \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).
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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 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, from 5,377 H-2B applications, for
                start dates
                [[Page 28206]]
                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\
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                 \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-for-second-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 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 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/01-06-2020.
                 \50\ H-2B Cap Reached for Second Half of FY2020, Feb. 26, 2020,
                https://www.uscis.gov/news/alerts/h-2b-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-improve-integrity-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.
                ---------------------------------------------------------------------------
                 Although the public health emergency due to COVID-19 still
                exists,\55\ DHS 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\)
                ---------------------------------------------------------------------------
                 \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).
                 \56\ https://www.bea.gov/news/glance.
                 \57\ https://www.bloomberg.com/news/articles/2021-02-12/charting-the-global-economy-u-s-growth-forecasts-upgraded.
                 \58\ https://www.bls.gov/opub/ted/2020/unemployment-rate-rises-to-record-high-14-point-7-percent-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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 Typically H-2B occupations are cyclical jobs, and U.S. workers in
                these 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\
                ---------------------------------------------------------------------------
                 \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/H-2B_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
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                [[Page 28207]]
                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.
                ---------------------------------------------------------------------------
                 \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).
                 \67\ DOS, Expansion of Interview Waiver Eligibility, https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.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-proclamation-10052.html
                ---------------------------------------------------------------------------
                 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 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 computer-
                generated 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 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
                [[Page 28208]]
                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.
                ---------------------------------------------------------------------------
                 \69\ DOS Monthly NIV Issuances by Nationality and Visa Class;
                https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html (last visited April 11,
                2021).
                ---------------------------------------------------------------------------
                 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 protection-related 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 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.
                ---------------------------------------------------------------------------
                 \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 in-person 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-waiver-eligibility.html (last updated Mar. 11, 2021).
                ---------------------------------------------------------------------------
                 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 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\
                ---------------------------------------------------------------------------
                 \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.''
                 \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.
                ---------------------------------------------------------------------------
                 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
                [[Page 28209]]
                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
                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
                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
                [[Page 28210]]
                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\
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                 \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.
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                 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-tip-form (last visited
                Apr. 9, 2021).\74\
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                 \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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                 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 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.
                ---------------------------------------------------------------------------
                 \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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                G. Portability
                 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 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.
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                 \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.
                ---------------------------------------------------------------------------
                 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
                [[Page 28211]]
                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\
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                 \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).
                 \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-h2-visas.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-status-update.html (last updated, Apr. 6, 2021).
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                 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 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.
                ---------------------------------------------------------------------------
                 \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.)
                ---------------------------------------------------------------------------
                 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 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.
                ---------------------------------------------------------------------------
                 \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).
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                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 long-standing 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.
                ---------------------------------------------------------------------------
                 \86\ See DHS Statement on Equal Access to COVID-19 Vaccines and
                Vaccine Distribution Sites, https://www.dhs.gov/news/2021/02/01/dhs-statement-equal-access-covid-19-vaccines-and-vaccine-distribution-sites (Feb. 1, 2021), (accessed Apr. 28, 2021).
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                 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
                [[Page 28212]]
                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
                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.
                ---------------------------------------------------------------------------
                 \87\ See https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/21/remarks-by-president-biden-on-the-covid-19-response-and-the-state-of-vaccinations-2/.
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                 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 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.
                ---------------------------------------------------------------------------
                 \88\ These processing goals are not binding on USCIS; depending
                on the evidence presented, actual processing times may vary.
                ---------------------------------------------------------------------------
                 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
                [[Page 28213]]
                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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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
                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-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 One-Stop
                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
                [[Page 28214]]
                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 in-
                person 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
                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 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 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
                [[Page 28215]]
                with the SWA, contact with AJCs, contact with former U.S. workers, and
                compliance with Sec. 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 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 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
                [[Page 28216]]
                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).
                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, 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 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
                [[Page 28217]]
                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\
                ---------------------------------------------------------------------------
                 \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).
                 \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-h2-visas.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-as-immigrants-and-non-immigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease/.
                 \100\ Id.
                 \101\ https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exception-for-certain-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%20
                on%20April%2021%2C%202021 (last visited on April 20, 2021).
                ---------------------------------------------------------------------------
                 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 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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
                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;
                [[Page 28218]]
                 (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\
                ---------------------------------------------------------------------------
                 \104\ See, e.g., Arnold Brodbeck et al., Seasonal Migrant Labor
                in the Forest Industry of the Southeastern United States: The Impact
                of H-2B Employment on Guatemalan Livelihoods, 31 Society and Natural
                Resources 1012 (2018).
                ---------------------------------------------------------------------------
                 (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
                ----------------------------------------------------------------------------------------------------------------
                 Changes resulting from Expected benefits of
                 Current provision the provisions of the Expected costs of the the provisions of the
                 TFR provisions of the TFR TFR
                ----------------------------------------------------------------------------------------------------------------
                --The current statutory cap limits H- --The amended --The total estimated --Form I-129
                 2B visa allocations to 66,000 provisions will allow cost to file Form I- petitioners would be
                 workers a year. for an additional 129 by human resource able to hire temporary
                 22,000 H-2B temporary specialists is workers needed to
                 workers. Up to 6,000 approximately prevent their
                 of the 22,000 $1,344,810. The total businesses from
                 additional visas will estimated cost to file suffering irreparable
                 be reserved for Form I-129 and Form G- harm.
                 workers who are 28 will range from --Businesses that are
                 nationals of approximately dependent on the
                 Guatemala, Honduras, $1,545,882 if filed by success of other
                 and El Salvador and in-house lawyers to businesses that are
                 will be exempt from approximately dependent on H-2B
                 the returning worker $2,148,647 if filed by workers would be
                 requirement. outsourced lawyers. protected from the
                 The total estimated repercussions of local
                 cost associated with business failures.
                 filing additional --Some American workers
                 petitions ranges from may benefit to the
                 $2,890,692 to extent that they do
                 $3,493,457 depending not lose jobs through
                 on the filer. the reduced or closed
                 business activity that
                 might occur if fewer H-
                 2B workers were
                 available.
                 --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.
                 --Petitioners will be --The total estimated --Form ETA-9142-B-CAA-4
                 required to fill out cost to petitioners to will serve as initial
                 the newly created Form complete and file Form evidence to DHS that
                 ETA-9142-B-CAA-4, ETA-9142-B-CAA-4 is the petitioner meets
                 Attestation for approximately the irreparable harm
                 Employers Seeking to $1,370,719. standard and returning
                 Employ H-2B worker requirements.
                 Nonimmigrant Workers
                 Under Section 105 of
                 Div. O of the
                 Consolidated
                 Appropriations Act,
                 2021.
                 --Petitioners would be --The total estimated --The additional round
                 required to conduct an cost to petitioners to of recruitment will
                 additional round of conduct an additional ensure that a U.S.
                 recruitment. round of recruitment worker that is willing
                 is approximately and able to fill the
                 $516,622. position is not
                 replaced by a
                 nonimmigrant worker.
                [[Page 28219]]
                
                 --Employers of H-2B --The total estimated --Workers would be
                 workers would be cost to petitioners to given information
                 required to provide provide COVID-19 about equal access to
                 information about vaccines and vaccines and
                 equal access to COVID- vaccination vaccination
                 19 vaccines and distribution site distribution.
                 vaccination information is
                 distribution sites. approximately $1,743.
                 --An H-2B nonimmigrant --The total estimated --H-2B workers with a
                 with a valid visa who cost to file Form I- valid visa present in
                 is physically present 129 if filed by human the United States will
                 in the United States resource specialists be able to port to
                 may port to another will range from $0 to another employer and
                 employer. approximately potentially extend
                 $2,081,206. The total their stay and,
                 estimated costs to therefore, earn
                 file Form I-129 and additional wages.
                 Form G-28 ranges from --An H-2B worker with
                 $0 to approximately an employer that is
                 $2,393,077 if filed by not complying with H-
                 in-house lawyers and 2B program
                 from $0 to requirements would
                 approximately have additional
                 $5,095,792 if filed by flexibility in porting
                 outsourced lawyers. to another employer's
                 certified position.
                 --This provision would
                 ensure employers will
                 be able to hire the H-
                 2B workers they need.
                 --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.
                 --DHS and DOL intend to --Employers will have --DOL and DHS audits
                 conduct a significant to comply with audits will yield evidence of
                 number of random for an estimated total the efficacy of
                 audits during the opportunity cost of attestations in
                 period of temporary time of $290,400. enforcing compliance
                 need to verify --It is expected both with H-2B supplemental
                 compliance with H-2B DHS and DOL will be cap requirements.
                 program requirements, able to shift --Conducting a
                 including the resources to be able significant number of
                 irreparable harm to conduct these audits will discourage
                 standard as well as audits without uncorroborated
                 other key worker incurring additional attestations.
                 protection provisions costs. However, the
                 implemented through Departments will incur
                 this rule. opportunity costs of
                 time. The audits are
                 expected to take a
                 total of approximately
                 6,000 hours and cost
                 approximately $467,820.
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS and DOL analysis.
                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 (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 semi-annually
                beginning in October (33,000) 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
                [[Page 28220]]
                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.
                ---------------------------------------------------------------------------
                 \105\ Revised effective 1/18/2009; 73 FR 78104.
                 \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).
                 \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).
                ---------------------------------------------------------------------------
                 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 6,000-visa 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
                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 semi-
                annual 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.
                ---------------------------------------------------------------------------
                 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.
                ---------------------------------------------------------------------------
                 \110\ USCIS, Office of Performance and Quality, Data pulled on
                April 21, 2021.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \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.
                 Calculation: 3,558 estimated additional petitions - 1,551
                petitions filed by a lawyer = 2,007 petitions filed by an HR
                specialist.
                [[Page 28221]]
                 Table 2--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form G-28, FY 2016-2020
                ----------------------------------------------------------------------------------------------------------------
                 Number of Form
                 I-129 H-2B Total Number Percent of
                 petitions of Form I-129 Form I-129 H-
                 Fiscal year accompanied H-2B petitions 2B petitions
                 by a Form G- received accompanied by
                 28 a Form G-28
                ----------------------------------------------------------------------------------------------------------------
                2016............................................................ 2,795 6,527 42.82
                2017............................................................ 2,615 6,112 42.78
                2018............................................................ 2,626 6,148 42.71
                2019............................................................ 3,335 7,461 44.70
                2020............................................................ 2,434 5,422 44.89
                 -----------------------------------------------
                 2016-2020 Total............................................. 13,805 31,670 43.59
                ----------------------------------------------------------------------------------------------------------------
                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 in-house or outsourced lawyers and 1,874 will be filed by HR
                specialists.\114\
                ---------------------------------------------------------------------------
                 \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.
                 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.
                 Table 3--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form I-907, FY 2016-2020
                ----------------------------------------------------------------------------------------------------------------
                 Number of Form Percent of
                 I-129 H-2B Total Number Form I-129 H-
                 Fiscal year petitions of Form I-129 2B petitions
                 accompanied by H-2B petitions accompanied by
                 Form I-907 received Form I-907
                ----------------------------------------------------------------------------------------------------------------
                2016............................................................ 6,084 6,527 93.21
                2017............................................................ 5,932 6,112 97.05
                2018............................................................ 5,986 6,148 97.36
                2019............................................................ 7,227 7,461 96.86
                2020............................................................ 4,341 5,422 80.06
                 -----------------------------------------------
                 2016-2020 Total............................................. 29,570 31,670 93.37
                ----------------------------------------------------------------------------------------------------------------
                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
                 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 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
                 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
                [[Page 28222]]
                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.
                ---------------------------------------------------------------------------
                 \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.
                 Table 4--Sensitivity Analysis of Form I-129 H-2B Petitions Filed on
                 Behalf of H-2B Workers Who May Be Eligible to Port
                ------------------------------------------------------------------------
                 Estimated
                 number of
                 approved Form
                 I-129 H-2B
                 Percent of Form I-129 H-2B petitions that may be filed petitions that
                 on behalf of workers eligible to port may be filed
                 on behalf of
                 workers
                 eligible to
                 port
                ------------------------------------------------------------------------
                0....................................................... 0
                5....................................................... 275
                25...................................................... 1,377
                50...................................................... 2,754
                75...................................................... 4,130
                95...................................................... 5,232
                100..................................................... 5,507
                ------------------------------------------------------------------------
                Source: USCIS Analysis.
                Population Affected by the Audits
                 DHS and DOL each intend to conduct 250 audits of employers hiring
                H-2B workers under this FY2021 H-2B supplemental cap rule. The
                determination of which employers are audited will be mostly random,
                though the agencies will coordinate so that no employer is audited by
                both DOL and DHS. Therefore, a total of 500 audits on employers who
                petition for H-2B workers under this TFR will be conducted by the
                Federal Government.
                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, 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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                 To estimate the total opportunity cost of time to HR specialists
                who complete and file Form I-129, DHS uses the mean hourly wage rate of
                HR specialists of $33.38 as the base wage rate.\117\ If petitioners
                hire an in-house or outsourced lawyer to file Form I-129 on their
                behalf, DHS uses the mean hourly wage rate of $71.59 as the base wage
                rate.\118\ Using the most recent Bureau of Labor Statistics (BLS) data,
                DHS calculated a benefits-to-wage multiplier of 1.45 to estimate the
                full wages to include benefits such as paid leave, insurance, and
                retirement.\119\ DHS multiplied the average hourly U.S. wage rate for
                HR specialists and for in-house lawyers by the benefits-to-wage
                multiplier of 1.45 to estimate the full cost of employee wages. The
                total compensation for an HR specialist is $48.40 per hour, and the
                total compensation for an in-house lawyer is $103.81 per hour.\120\ In
                addition, DHS recognizes that an entity may not have in-house lawyers
                and seek outside counsel to complete and file Form I-129 on behalf of
                the petitioner. Therefore, DHS presents a second wage rate for lawyers
                labeled as outsourced lawyers. DHS recognizes that the wages for
                outsourced attorneys may be much higher than in-house attorneys and
                therefore uses a higher compensation-to-wage multiplier of 2.5 for
                outsourced attorneys.\121\ DHS estimates the total 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\
                ---------------------------------------------------------------------------
                 \117\ U.S. Department of Labor, Bureau of Labor Statistics,
                ``May 2020 National Occupational 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
                x 1.45 = $48.40 (rounded).
                 Calculation for the total wage of an in-house lawyer: $71.59 x
                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
                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 x
                benefits-to-wage multiplier for outsourced lawyer = $71.59 x 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 x
                4.34 hours = $210.06 (rounded).
                 Calculation if an in-house lawyer files Forms I-129 and G-28:
                $103.81 x 5.17 hours = $536.70 (rounded).
                 Calculation if an outsourced lawyer files Forms I-129 and G-28:
                $178.98 x 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.
                ---------------------------------------------------------------------------
                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
                [[Page 28223]]
                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\
                ---------------------------------------------------------------------------
                 \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 in-house
                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
                ---------------------------------------------------------------------------
                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 to complete
                and submit Form I-907 per petitioner is approximately $1,528.07 for HR
                specialists, $1,560.21 for in-house lawyers, and $1,603.81 for
                outsourced lawyers.\133\
                ---------------------------------------------------------------------------
                 \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 x 0.58 hours = $28.07(rounded).
                 Calculation for opportunity cost of time if an in-house lawyer
                files Form I-907: $103.81 x 0.58 hours= $60.21(rounded).
                 Calculation for opportunity cost of time if an outsourced lawyer
                files Form I-907: $178.98 x 0.58 hours = $103.81(rounded).
                 \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.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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\
                ---------------------------------------------------------------------------
                 \137\ Calculation: $48.40 opportunity cost of time for HR
                specialist x 1-hour time burden for the new attestation form and
                notifying third parties and retaining records related to the
                returning worker requirements = $48.40.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \138\ Calculation: $46.46 (average per hour wage for a financial
                analyst, based on BLS wages) x 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) x 5 hours (time burden for assessing, documenting
                and retention of supporting evidence demonstrating the employer is
                likely to suffer irreparable harm) = $336.85.
                ---------------------------------------------------------------------------
                 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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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
                [[Page 28224]]
                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.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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 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\
                ---------------------------------------------------------------------------
                 \144\ Cost to make copies $0.49. See https://www.fedex.com/en-us/office/copy-and-print-services.html (accessed April 21, 2021).
                 \145\ Calculation: $0.49 per posting * 3,558 petitioners =
                $1,743 cost of notifications copies.
                ---------------------------------------------------------------------------
                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.
                 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
                ------------------------------------------------------------------------
                 Numbers of
                 Numbers of Form I-129 H-
                 Form I-129 H- 2B petitions
                 Percent of approved TLCs 2B petitions and Form G-28
                 filed by HR filed by
                 specialists lawyers
                ------------------------------------------------------------------------
                0....................................... 0 0
                5....................................... 155 120
                25...................................... 777 600
                50...................................... 1,554 1,200
                75...................................... 2,330 1,800
                95...................................... 2,951 2,281
                100..................................... 3,106 2,401
                ------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \146\ Calculation: 5,507 estimated number of approved
                petitioners * 93.37 percent premium processing filing rate = 5,142
                (rounded) additional Forms I-907.
                 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
                ------------------------------------------------------------------------
                 Numbers of Numbers of
                 Form I-907 Form I-907
                 Percent of approved TLCs filed by HR filed by
                 specialists lawyers
                ------------------------------------------------------------------------
                0....................................... 0 0
                5....................................... 145 112
                25...................................... 725 560
                50...................................... 1,451 1,120
                75...................................... 2,176 1,681
                95...................................... 2,755 2,130
                100..................................... 2,900 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
                [[Page 28225]]
                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, 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 Total costs
                 for HR for HR Total
                 Percent of Approved TLCs specialists specialists estimated
                 filing Form I- filing Form I- costs for HR
                 129 907 specialists
                ----------------------------------------------------------------------------------------------------------------
                0............................................................... 0 0 0
                5............................................................... 103,859 221,570 325,429
                25.............................................................. 520,637 1,107,852 1,628,489
                50.............................................................. 1,041,273 2,217,232 3,258,505
                75.............................................................. 1,561,240 3,325,085 4,886,325
                95.............................................................. 1,977,347 4,209,838 6,187,185
                100............................................................. 2,081,206 4,431,409 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
                ----------------------------------------------------------------------------------------------------------------
                 Total
                 Costs for In- Costs for In- estimated
                 house lawyer house lawyer costs
                 Percent of Approved TLCs filing Form I- filing Form I- resulting
                 129 and Form 907 from in-house
                 G-28 lawyer
                ----------------------------------------------------------------------------------------------------------------
                0............................................................... $0 $0 $0
                5............................................................... 119,604 174,743 294,347
                25.............................................................. 598,020 873,717 1,471,737
                50.............................................................. 1,196,040 1,747,435 2,943,475
                75.............................................................. 1,794,060 2,622,713 4,416,773
                95.............................................................. 2,273,473 3,323,247 5,596,720
                100............................................................. 2,393,077 3,497,990 5,891,067
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Analysis.
                 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 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 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.
                [[Page 28226]]
                 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
                ----------------------------------------------------------------------------------------------------------------
                 Total
                 Costs for estimated
                 outsourced Costs for costs
                 Percent of Approved TLCs lawyer filing outsourced resulting
                 Form I-129 lawyer filing from
                 and Form G-28 Form I-907 outsourced
                 lawyer
                ----------------------------------------------------------------------------------------------------------------
                0............................................................... 0 0 0
                5............................................................... 254,466 179,627 434,093
                25.............................................................. 1,274,179 898,133 2,172,312
                50.............................................................. 2,548,359 1,796,265 4,344,624
                75.............................................................. 3,821,613 2,696,002 6,517,615
                95.............................................................. 4,841,327 3,416,112 8,257,439
                100............................................................. 5,095,792 3,595,738 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
                ------------------------------------------------------------------------
                 Range in Range in
                 costs from HR costs from HR
                 specialists specialists
                 and in-house and outsourced
                 lawyers to lawyers to
                 hire H-2B hire H-2B
                 Percent of Approved TLCs workers who workers who
                 choose to port choose to port
                 (addition of (addition of
                 totals from totals from
                 Table 7 and Table 7 and
                 Table 8) Table 9)
                ------------------------------------------------------------------------
                0....................................... 0 0
                5....................................... 619,776 759,522
                25...................................... 3,100,226 3,800,801
                50...................................... 6,201,980 7,603,129
                75...................................... 9,303,098 11,403,940
                95...................................... 11,783,905 14,444,624
                100..................................... 12,403,682 15,204,145
                ------------------------------------------------------------------------
                Source: USCIS Analysis.
                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 is 580.80 per audited
                employer.\148\ Therefore, the total estimated cost to employers to
                comply with audits is 290,400.\149\
                ---------------------------------------------------------------------------
                 \147\ The number in hours for audits was provided by the USCIS,
                Service Center Operations.
                 \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.
                ---------------------------------------------------------------------------
                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 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
                [[Page 28227]]
                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\
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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.
                ---------------------------------------------------------------------------
                 \152\ See INA section 286(m), 8 U.S.C. 1356(m).
                ---------------------------------------------------------------------------
                 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 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\
                ---------------------------------------------------------------------------
                 \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-data-oversight/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.
                ---------------------------------------------------------------------------
                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 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.
                [[Page 28228]]
                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
                 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
                Departments have not prepared a statement under the Act.
                ---------------------------------------------------------------------------
                 \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.
                ---------------------------------------------------------------------------
                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
                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
                60-day 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.
                [[Page 28229]]
                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 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 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 time-limited authority pursuant to
                section
                [[Page 28230]]
                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
                0
                1. Effective May 25, 2021 through May 28, 2024, the authority citation
                for part 214 is revised to read as follows:
                 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.
                1477-1480; 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).
                0
                2. Effective May 25, 2021 through May 28, 2024, amend Sec. 214.2 by:
                0
                a. Adding paragraph (h)(6)(x);
                0
                b. Adding reserved paragraph (h)(25); and
                0
                c. Adding paragraph (h)(26).
                 The additions read as follows:
                Sec. 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 Sec. 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 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 Sec. 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
                [[Page 28231]]
                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
                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 (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 non-frivolous 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 non-frivolous 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
                [[Page 28232]]
                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 May 25, 2021, and ends at the
                end of November 22, 2021.
                * * * * *
                PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
                0
                3. The authority citation for part 274a continues to read as follows:
                 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.
                0
                4. Effective May 25, 2021 through May 28, 2024, amend Sec. 274a.12 by
                adding paragraph (b)(30) to read as follows:
                Sec. 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.
                * * * * *
                Department of Labor
                Employment and Training Administration
                20 CFR Chapter V
                 Accordingly, for the reasons stated in the joint preamble, 20 CFR
                part 655 is amended as follows:
                PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
                STATES
                0
                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).
                0
                6. Effective May 25, 2021 through September 30, 2021, add Sec. 655.64
                to read as follows:
                Sec. 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
                [[Page 28233]]
                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 ``self-referrals''). The job order
                must contain the job assurances and contents set forth in Sec. 655.18
                for recruitment of U.S. workers at the place of employment, 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 Sec. 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 Sec. 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 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 Sec. 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.
                0
                7. Effective May 25, 2021 through September 30, 2024, add Sec. 655.68
                to read as follows:
                Sec. 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,
                [[Page 28234]]
                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 Honduras, as defined in 8 CFR
                214.2(h)(6)(x)(A)(2); and
                 (4) If applicable, proof of recruitment efforts set forth in Sec.
                655.64(a)(5)(i) through (iv) and a recruitment report that meets the
                requirements set forth in Sec. 655.48(a)(1) through (4) and (7), and
                maintained throughout the recruitment period set forth in Sec.
                655.64(a)(5)(v).
                 (b) DOL or DHS may inspect the documents in paragraphs (a)(1)
                through (4) of this section upon request.
                 (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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