Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers

Published date28 January 2022
Record Number2022-01866
SectionRules and Regulations
CourtEmployment And Training Administration
Federal Register, Volume 87 Issue 19 (Friday, January 28, 2022)
[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
                [Rules and Regulations]
                [Pages 4722-4762]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-01866]
                [[Page 4721]]
                Vol. 87
                Friday,
                No. 19
                January 28, 2022
                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 2022
                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. 87, No. 19 / Friday, January 28, 2022 / Rules
                and Regulations
                [[Page 4722]]
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                DEPARTMENT OF HOMELAND SECURITY
                8 CFR Parts 214 and 274a
                [CIS No. 2708-21]
                RIN 1615-AC77
                DEPARTMENT OF LABOR
                Employment and Training Administration
                20 CFR Part 655
                [DOL Docket No. ETA-2022-0001]
                RIN 1205-AC09
                Exercise of Time-Limited Authority To Increase the Fiscal Year
                2022 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.
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                SUMMARY: The Secretary of Homeland Security, in consultation with the
                Secretary of Labor, is exercising his time-limited Fiscal Year (FY)
                2022 authority and increasing the total number of noncitizens who may
                receive an H-2B nonimmigrant visa by authorizing the issuance of no
                more than 20,000 additional visas during FY 2022 for positions with
                start dates on or before March 31, 2022, to those businesses that are
                suffering irreparable harm or will suffer impending irreparable harm,
                as attested by the employer on a new attestation form. In addition to
                making additional visas available under the FY 2022 time-limited
                authority, DHS is exercising its general H-2B regulatory authority to
                again provide temporary 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:
                 Effective dates: The amendments to title 8 of the Code of Federal
                Regulations in this rule are effective from January 28, 2022 through
                January 28, 2025. The amendments to title 20 of the Code of Federal
                Regulations in this rule are effective from January 28, 2022 through
                September 30, 2022, except for 20 CFR 655.69 which is effective from
                January 28, 2022 through September 30, 2025.
                 Petition dates: DHS will not accept any H-2B petition under the
                provisions related to the supplemental numerical allocation after March
                31, 2022, and the provisions related to portability are only available
                to petitioners and H-2B nonimmigrant workers initiating employment
                through the end of July 27, 2022.
                 Comment dates: 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-5 associated with
                this rule until March 29, 2022.
                ADDRESSES: You may submit written comments on the new information
                collection Form ETA-9142B-CAA-5, identified by Regulatory Information
                Number (RIN) 1205-AC09 electronically by the following method:
                 Federal eRulemaking Portal: https://www.regulations.gov. Follow the
                instructions on the website for submitting comments.
                 Instructions: Include the agency's name and the RIN 1205-AC09 in
                your submission. All comments received will become a matter of public
                record and will be posted without change to https://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 (this is not a toll-free
                number).
                 Regarding 20 CFR part 655 and Form ETA-9142B-CAA-5: 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 and FY 2022 Public Laws 117-43 and 117-70
                 D. Joint Issuance of the Final Rule
                III. Discussion
                 A. Statutory Determination
                 B. Numerical Increase and Allocation of Up to 20,000 Visas
                 C. Returning Workers
                 D. Returning Worker Exemption for Up to 6,500 Visas for
                Nationals of Guatemala, El Salvador, and Honduras (Northern Triangle
                Countries) and Haiti
                 E. Business Need Standard--Irreparable Harm and FY 2022
                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. Executive Order 13132 (Federalism)
                 F. Executive Order 12988 (Civil Justice Reform)
                 G. Congressional Review Act
                 H. National Environmental Policy Act
                 I. Paperwork Reduction Act
                I. Executive Summary
                FY 2022 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 20,000 H-2B visas
                for FY 2022 positions with start dates on or before March 31, 2022,
                subject to certain conditions. The 20,000 visas are divided into two
                allocations, as follows:
                 13,500 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 2019, 2020, or 2021; and
                 6,500 visas reserved for nationals of El Salvador,
                Guatemala, and Honduras (Northern Triangle countries) and Haiti as
                attested by the petitioner (regardless of whether such nationals are
                returning workers).
                 To qualify for the FY 2022 supplemental cap provided by this
                temporary final rule, eligible petitioners must:
                 Meet all existing H-2B eligibility requirements, including
                obtaining an approved temporary labor certification (TLC) from DOL
                before filing the Form
                [[Page 4723]]
                I-129, Petition for Nonimmigrant Worker, with USCIS;
                 Properly file the Form I-129, Petition for Nonimmigrant
                Worker, with USCIS on or before March 31, 2022, requesting an
                employment start date on or before March 31, 2022;
                 Submit an attestation affirming, under penalty of perjury,
                that the employer is suffering irreparable harm or will suffer
                impending irreparable harm without the ability to employ all of the H-
                2B workers requested on the petition, and that they are seeking to
                employ returning workers only, unless the H-2B worker is a Salvadoran,
                Guatemalan, Honduran, or Haitian national and counted towards the 6,500
                cap; 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 stay up-to-date with
                COVID-19 vaccinations,\1\ or to reimbursement for travel to and from
                the nearest available vaccination site, 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.
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                 \1\ The term ``COVID-19 vaccinations'' also includes COVID-19
                booster shots.
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                 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, 2020,
                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 this FY 2022 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; and
                debarment by DOL and DHS from the H-2 program. Falsifying information
                also may subject a petitioner/employer to other criminal penalties.
                 DHS will not approve H-2B petitions filed in connection with the FY
                2022 supplemental cap authority on or after October 1, 2022, but DHS
                does not anticipate that petitions filed in connection with this rule
                will remain pending until the end of FY 2022, given the March 31, 2022
                filing deadline.
                H-2B Portability
                 In addition to exercising time-limited authority to make additional
                FY 2022 H-2B visas available for positions with start dates on or
                before March 31, 2022, DHS is providing additional flexibilities to H-
                2B petitioners under its general programmatic authority by allowing
                nonimmigrant workers in the United States \2\ in valid H-2B status and
                who are beneficiaries of non-frivolous H-2B petitions received on or
                after January 28, 2022, or who are the beneficiaries of non-frivolous
                H-2B petitions that are pending as of January 28, 2022, 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. This provision clarifies portability eligibility for
                beneficiaries of pending petitions.
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                 \2\ The term ``United States'' includes the continental United
                States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the
                United States, and the Commonwealth of the Northern Mariana Islands.
                INA section 101(a)(38), 8 U.S.C. 1101(a)(38).
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                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],\3\ 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
                [[Page 4724]]
                the [Secretary] may by regulations prescribe.'' INA section 214(a)(1),
                8 U.S.C. 1184(a)(1); see also INA section 274A(a)(1) and (h)(3), 8
                U.S.C. 1324a(a)(1) and (h)(3) (prohibiting employment of noncitizen \4\
                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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                 \3\ 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.
                 \4\ 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. 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
                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,\5\ 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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                 \5\ 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 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.\6\ 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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                 \6\ 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 2022 is from October 1, 2021, through September
                30, 2022.
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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.\7\
                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.\8\ 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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                 \7\ 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.
                 \8\ 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,\9\ and the DHS regulatory requirement that all H-2B
                petitions be accompanied by an approved TLC,\10\ 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, the date on which USCIS has
                received sufficient H-2B petitions to reach the first half of the
                fiscal year statutory cap has been
                [[Page 4725]]
                trending earlier in recent years.\11\ As of December 1, 2021, DOL's
                Office of Foreign Labor Certification (OFLC) reports having certified
                TLC applications for 65,717 H-2B workers with expected start dates
                between October 1, 2021, and March 1, 2022.\12\ In addition, for fiscal
                year 2022, for the first time in more than a decade, USCIS received
                sufficient H-2B petitions to reach the first half of the fiscal year
                statutory cap before the start of the fiscal year--this year the last
                receipt date for the first half of the fiscal year was September 30,
                2021, and last year it was November 16, 2020--a month and a half
                earlier.\13\ This early date continues to reflect an ongoing trend of
                higher H-2B demand in the first half of the fiscal year compared to the
                statutorily authorized level. Congress, in recognition of historical
                and current demand: (1) Allowed for additional H-2B workers through the
                FY 2016 reauthorization of the returning worker cap exemption; \14\ and
                (2) for the last 6 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); \15\ section 105 of Division O of the
                Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021),
                and section 105 of Division O of the Consolidated Appropriations Act,
                2021, Public Law 116-260 (FY 2021 Omnibus), and sections 101 and 106(3)
                of Division A of Public Law 117-43, Continuing Appropriations Act,
                2022, and section 101 of Division A of Public Law 117-70, Further
                Continuing Appropriations Act, 2022 through February 18, 2022
                (together, FY 2022 authority), which is discussed below.
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                 \9\ 20 CFR 655.15(b).
                 \10\ See 8 CFR 214.2(h)(5)(i)(A).
                 \11\ In fiscal years 2017 through 2021, USCIS received a
                sufficient number of H-2B petitions to reach or exceed the relevant
                first half statutory cap on January 10, 2017, December 15, 2017,
                December 6, 2018, November 15, 2019, and November 16, 2020,
                respectively. See https://www.uscis.gov/archive/uscis-reaches-the-h-2b-cap-for-the-first-half-of-fiscal-year-2017 (Jan. 13, 2017);
                https://www.uscis.gov/archive/uscis-reaches-h-2b-cap-for-first-half-of-fy-2018 (Dec. 21, 2017); https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2019 (Dec. 12,
                2018); https://www.uscis.gov/news/news-releases/uscis-reaches-h-2b-cap-for-first-half-of-fy-2020 (Nov. 20, 2019); https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
                 \12\ Information provided by DOL OFLC via email sent December 2,
                2021.
                 \13\ On October 12, 2021, USCIS announced that it had received
                sufficient petitions to reach the congressionally mandated cap on H-
                2B visas for temporary nonagricultural workers for the first half of
                fiscal year 2022, and that September 30, 2021 was the final receipt
                date for new cap-subject H-2B worker petitions requesting an
                employment start date before April 1, 2022. See https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021). November 16, 2020 was the last receipt
                date for the first half of FY 2020. See https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18,
                2020).
                 \14\ 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.
                 \15\ 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 and FY 2022 Public Laws 117-43 and 117-70
                 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.\16\ The Secretary of
                Homeland Security consulted with the Secretary of Labor and, on May 25,
                2021, published a temporary final rule implementing the authority
                contained in section 105.\17\
                ---------------------------------------------------------------------------
                 \16\ 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).
                 \17\ Temporary Rule, 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, 86 FR 28198 (May 25,
                2021).
                ---------------------------------------------------------------------------
                 On December 3, 2021, Congress passed Public Law 117-70,\18\ which
                authorizes the Secretary of Homeland Security to increase the number of
                H-2B visas available to U.S. employers in FY 2022 under the same terms
                and conditions authorized in section 105 of Division O of the FY 2021
                Omnibus. The authority in Public Law 117-70 permits the Secretary of
                Homeland Security, after consultation with the Secretary of Labor, to
                provide additional H-2B visas for FY 2022, notwithstanding the
                otherwise-established statutory numerical limitation set forth in the
                INA, for eligible employers whose employment needs for FY 2022 cannot
                be met under the general fiscal year statutory cap.\19\ Under the
                Public Law 117-70 authority, DHS and DOL are jointly publishing this
                temporary final rule to authorize the issuance of no more than 20,000
                additional visas during FY 2022 for positions with start dates on or
                before March 31, 2022, to those businesses that are suffering
                irreparable harm or will suffer impending irreparable harm, as attested
                by the employer on a new attestation form. The authority to approve H-
                2B petitions under this FY 2022 supplemental cap expires at the end of
                that fiscal year. Therefore, USCIS will not approve H-2B petitions
                filed in connection with the FY 2022
                [[Page 4726]]
                supplemental cap authority on or after October 1, 2022. Given the March
                31, 2022 filing cutoff, USCIS will process H-2B petitions filed under
                this rule that request premium processing in line with the USCIS
                premium processing rules,\20\ and all other H-2B petitions filed under
                this rule in the normal manner. Accordingly, DHS does not anticipate
                that petitions filed in connection with this rule will remain pending
                until the end of FY 2022.
                ---------------------------------------------------------------------------
                 \18\ Public Law 117-70 Further Extending Government Funding Act,
                Division A ``Further Continuing Appropriations Act, 2022'', section
                101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in
                section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law
                117-43 Extending Government Funding and Delivering Emergency
                Assistance Act, Division A ``Continuing Appropriations Act, 2022'',
                Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and
                authorities, including authority under section 105 of title I of
                Division O of Public Law 116-260, through December 3, 2021.
                 \19\ Appropriations and authorities provided by the continuing
                resolutions are available for the needs of the entire fiscal year to
                which the continuing resolution applies, although DHS's ability to
                obligate funds or exercise such authorities may lapse at the sunset
                of such resolution. See, e.g., Comments on Due Date and Amount of
                District of Columbia's Contributions to Special Employee Retirement
                Funds, B-271304 (Comp. Gen. Mar. 19, 1996) (explaining that ``a
                continuing resolution appropriates the full annual amount regardless
                of its period of duration. . . . Standard continuing resolution
                language makes it clear that the appropriations are available to the
                extent and in the manner which would be provided by the pertinent
                appropriations act that has yet to be enacted (unless otherwise
                provided in the continuing resolution).''). Consistent with this
                principle, DHS interprets the current continuing resolution to
                provide DHS with the ability to authorize additional H-2B visa
                numbers with respect to all of FY 2022 subject to the same terms and
                conditions as the FY 2021 authority at any time before the
                continuing resolution expires, notwithstanding the reference to FY
                2021 in the FY 2021 Omnibus.
                 \20\ See 8 CFR 103.7(e) (Oct. 1, 2020). This section was amended
                by a DHS rule published in the Federal Register on August 3, 2020 at
                85 FR 46788 titled U.S. Citizenship and Immigration Services Fee
                Schedule and Changes to Certain Other Immigration Benefit Request
                Requirements with an effective date of October 2, 2021. That rule
                was preliminarily enjoined. DHS is complying with the terms of the
                preliminary injunctions and is not enforcing it. See U.S.
                Citizenship and Immigration Services Fee Schedule and Changes to
                Certain Other Immigration Benefit Request Requirements; Notification
                of Preliminary Injunction, 86 FR 7493 (Jan. 18, 2021).
                ---------------------------------------------------------------------------
                 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, which is
                the same authority provided for FY 2022 by the recent continuing
                resolutions. 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.\21\ 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.\22\ 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.\23\ The vast majority of the H-2B
                petitions received under the FY 2017 and FY 2018 supplemental caps
                requested premium processing \24\ and were adjudicated within 15
                calendar days.
                ---------------------------------------------------------------------------
                 \21\ 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).
                 \22\ USCIS data pulled from the Computer Linked Application
                Information Management System (CLAIMS3) database on Mar. 15, 2021.
                General information about CLAIMS 3 is available at https://www.dhs.gov/publication/dhsuscispia-016-computer-linked-application-information-management-system-claims-3-and.
                 \23\ 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.
                 \24\ Premium processing allows for expedited processing for an
                additional fee. See INA 286(u), 8 U.S.C. 1356(u).
                ---------------------------------------------------------------------------
                 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.\25\ 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.\26\ The vast majority of
                these petitions requested premium processing and were adjudicated
                within 15 calendar days.
                ---------------------------------------------------------------------------
                 \25\ 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).
                 \26\ 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.\27\ On March 13, 2020, then-President Trump declared a
                National Emergency concerning COVID-19, a communicable disease caused
                by the coronavirus SARS-CoV-2.\28\ 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.\29\ DHS also noted that the Department of State had
                suspended routine visa services.\30\
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                 \27\ 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.
                 \28\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
                Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
                FR 15337 (Mar. 18, 2020).
                 \29\ https://twitter.com/DHSgov/status/1245745115458568192?s=20.
                 \30\ Id.
                ---------------------------------------------------------------------------
                 In FY 2021, although the COVID-19 public health emergency remained
                in effect, DHS in consultation with DOL determined it was 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, as well as other factors that were occurring at that
                time, including the continuing economic growth, the improving job
                market, and increased visa processing capacity by the Department of
                State. Accordingly, on May 25, 2021, DHS and DOL jointly published a
                temporary final rule authorizing an increase of up to 22,000 additional
                H-2B visas for the remainder of FY 2021.\31\ The supplemental visas
                were available only to employers that attested they were likely to
                suffer irreparable harm without the additional workers. The allocation
                of 22,000 additional H-2B visas under that rule consisted of 16,000
                visas available only to H-2B returning workers from one of the last
                three fiscal years (FY 2018, 2019, or 2020) and 6,000 visas that were
                initially reserved for Salvadoran, Guatemalan, and
                [[Page 4727]]
                Honduran nationals, who were exempt from the returning worker
                requirement. As of August 13, 2021, USCIS received enough petitions for
                returning workers to reach the additional 22,000 H-2B visas made
                available under the FY 2021 H-2B supplemental visa temporary final
                rule.\32\
                ---------------------------------------------------------------------------
                 \31\ 86 FR 28198 (May 25, 2021).
                 \32\ https://www.uscis.gov/news/alerts/cap-reached-for-remaining-h-2b-visas-for-returning-workers-for-fy-2021 (Aug. 19,
                2021).
                ---------------------------------------------------------------------------
                 Similarly, although the COVID-19 public health emergency is still
                in effect, DHS in consultation with DOL believes that it is appropriate
                to increase the H-2B cap for FY 2022 positions with start dates on or
                before March 31, 2022, based on the demand for H-2B workers in the
                first half of FY 2022, recent and continuing economic growth, increased
                labor demand,\33\ and increased visa processing capacity by the
                Department of State. DHS believes it is appropriate to limit the
                increase for the FY 2022 H-2B cap provided in this temporary final rule
                to those petitions with start dates on or before March 31, 2022, as
                data clearly indicates an immediate need for supplemental H-2B visas in
                FY 2022 for positions with start dates in the first half of the fiscal
                year, as demonstrated by the FY 2022 first half cap being met even
                prior to the start of the fiscal year, the earliest the first half H-2B
                cap has been reached in more than a decade. DHS and DOL also believe
                that it is appropriate to couple this cap increase with additional
                workers protections, as described below.
                ---------------------------------------------------------------------------
                 \33\ The term ``increased labor demand'' in this context relies
                on the most recently released figure from the Bureau of Labor
                Statistics (BLS) survey at the time this TFR was written. The BLS
                Job Openings and Labor Turnover Survey (JOLTS) reports 11 million
                job openings in October 2021 (compared to 6.8 million job openings
                in October 2020). See Bureau of Labor Statistics, Job Openings and
                Labor Turnover Survey released on December 8, 2021 at https://www.bls.gov/news.release/archives/jolts_12082021.htm.
                ---------------------------------------------------------------------------
                D. Joint Issuance of the Final Rule
                 As they did in FY 2017, FY 2018, FY 2019, and FY 2021, DHS and DOL
                (the Departments) have determined that it is appropriate to jointly
                issue this temporary final rule.\34\ The determination to issue the
                temporary final 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.\35\ Although DHS and DOL each have authority
                to independently issue rules implementing their respective duties under
                the H-2B program,\36\ the Departments are implementing the numerical
                increase 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).\37\
                ---------------------------------------------------------------------------
                 \34\ 82 FR 32987 (Jul. 19, 2017); 83 FR 24905 (May 31, 2018); 84
                FR 20005 (May 8, 2019); 86 FR 28198 (May 25, 2021).
                 \35\ See Outdoor Amusement Bus. Ass'n v. Dep't of Homeland Sec.,
                983 F.3d 671 (4th Cir. 2020), cert. denied, ---- S. Ct. ----, 2021
                WL 5043596 (2021); see also Temporary Non-Agricultural Employment of
                H-2B Aliens in the United States, 80 FR 24041, 24045 (Apr. 29,
                2015).
                 \36\ See Outdoor Amusement Bus. Ass'n, 983 F.3d at 684-89.
                 \37\ 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 the first half of FY 2022 with U.S.
                workers who are willing, qualified, and able to perform temporary
                nonagricultural labor. In accordance with the FY 2022 continuing
                resolution extending the authority provided in 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 for positions with start dates on
                or before March 31, 2022 up to 20,000 additional visas for those
                American businesses that attest that they are suffering irreparable
                harm or will suffer impending irreparable harm, in other words, a
                permanent and severe financial loss, without the ability to employ all
                of the H-2B workers requested on their petition. These businesses must
                retain documentation, as described below, supporting this attestation.
                 As they did in connection with the FY 2021 H-2B supplemental visa
                temporary final rule, and consistent with their existing authority, DHS
                and DOL intend to conduct a significant number of audits with respect
                to petitions filed under this, and previous TFRs, requesting
                supplemental H-2B visas, which may be selected at the discretion of the
                Departments, 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 meet the irreparable
                harm standard, 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. Some audits conducted of employers
                that received visas under the supplemental cap in FY 2021 have revealed
                concerns surrounding their documentation of irreparable harm,
                recruitment efforts, and compliance with the audit process, which may
                warrant further review and action.
                 The Secretary of Homeland Security has also again determined, as in
                FY 2021, 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 6,500 of the 20,000 visas will
                be exempt from the returning worker requirement and will be reserved
                for H-2B workers who are nationals of El Salvador, Guatemala, Honduras,
                and Haiti.\38\ As in FY 2021, these H-2B visas are being reserved for
                nationals of El Salvador, Guatemala, and Honduras to once again 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 countries.\39\ DHS observed robust employer
                interest in response to the FY 2021 H-2B supplemental visa allocation
                for Salvadoran, Guatemalan, and Honduran nationals, with USCIS
                approving petitions on behalf of 6,805 beneficiaries
                [[Page 4728]]
                under this allocation.\40\ In addition, DHS and the Biden
                administration have continued to conduct outreach efforts promoting the
                H-2B program, among others, as a lawful pathway for nationals of El
                Salvador, Guatemala, and Honduras to work in the United States. The
                decision to again reserve an allocation of supplemental H-2B visas for
                these nationals, while providing an exemption from the returning worker
                requirement, will provide ongoing support for the President's vision of
                expanding access to lawful pathways for protection and opportunity for
                individuals from the Northern Triangle countries.\41\
                ---------------------------------------------------------------------------
                 \38\ 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]
                . . . .'').
                 \39\ 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.
                 \40\ While USCIS approved a greater number of beneficiaries from
                the Northern Triangle countries than the 6,000 visas allocated under
                the FY 2021 supplemental cap for those countries, the Department of
                State approved 3,065 visas on behalf of nationals from those
                countries. See DHS, USCIS, Office of Performance and Quality, SAS
                PME C3 Consolidated, VIBE, DOS Visa Issuance Data queried 11.2021,
                TRK 8598. This discrepancy can be attributed to adverse impacts on
                consular processing caused by the COVID-19 pandemic, travel
                restrictions, as well as lack of readily available processes to
                efficiently match workers from Norther Triangle countries with U.S.
                recruiters/employers on an expedited timeline. DHS anticipates that
                the normalization of consular services, easing of travel
                restrictions, the issuance of this rule earlier in the fiscal year,
                as well as the fact that this is the second year that DHS will make
                a specific allocation available for workers from the Northern
                Triangle countries, will contribute to greater utilization of
                available visas under this allocation during FY 2022.
                 \41\ Id.
                ---------------------------------------------------------------------------
                 Additionally, with this temporary final rule, the 6,500
                supplemental cap allocation exempted from the returning worker
                requirement is now also available to nationals of Haiti. In also
                providing this supplemental cap reservation to nationals of Haiti, DHS
                recognizes the recent challenges, such as political instability,
                increasing gang-related violence, and a 7.2 magnitude earthquake that
                have occurred in that country, and believes that the H-2B program will
                provide a stabilizing lawful channel for Haitian nationals seeking to
                enter the United States for economic opportunities. As DHS emphasized
                in its recent notice adding Haiti to the list of countries whose
                nationals are eligible to participate in the H-2A and H-2B programs,
                sustainable development and the stability of Haiti is vital to the
                interests of the United States as a close partner and neighbor.\42\
                ---------------------------------------------------------------------------
                 \42\ See Identification of Foreign Countries Whose Nationals Are
                Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker
                Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 2021).
                ---------------------------------------------------------------------------
                 Similar to the temporary final rules for the FY 2019 and FY 2021
                supplemental caps, 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 2019, 2020, or 2021,\43\ unless the employer
                indicates on the new attestation form that it is requesting workers who
                are nationals of one of the Northern Triangle countries or Haiti and
                who are therefore counted towards the 6,500 allotment regardless of
                whether they are new or returning workers. If the 6,500 returning
                worker exemption cap for Salvadoran, Guatemalan, Honduran, and Haitian
                nationals has been 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 or Haiti, 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 2019, 2020, or 2021. Unlike
                the temporary final rule for the FY 2021 supplemental cap, if the 6,500
                returning worker exemption cap for nationals of the Northern Triangle
                countries and Haiti remains unfilled, DHS will not make unfilled visas
                reserved for Northern Triangle countries and Haiti available to the
                general returning worker cap.
                ---------------------------------------------------------------------------
                 \43\ For purposes of this rule, these returning workers could
                have been H-2B cap exempt or extended H-2B status in FY 2019, 2020,
                or 2021. Additionally they may have been previously counted against
                the annual H-2B cap of 66,000 visas during FY 2019, 2020, or 2021,
                or the supplemental caps in FY 2019 or FY 2021.
                ---------------------------------------------------------------------------
                 The Secretary of Homeland Security's determination to increase the
                numerical limitation is based, in part, on the conclusion that some
                businesses are suffering irreparable harm or will suffer impending
                irreparable harm without the ability to employ all of the H-2B workers
                requested on their petition. Members of Congress have informed 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 relevant
                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.\44\ U.S. businesses, chambers of commerce, employer
                organizations, and state and local elected officials have also
                expressed concerns to the DHS and Labor Secretaries regarding the
                unavailability of H-2B visas after the statutory cap was reached.\45\
                ---------------------------------------------------------------------------
                 \44\ See the docket for this rulemaking for access to these
                letters.
                 \45\ Id.
                ---------------------------------------------------------------------------
                 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 prevent further severe and permanent financial loss for
                those employers currently suffering irreparable harm and to avoid
                impending irreparable harm for other employers 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.\46\ While the previous standard focused on avoidance
                of irreparable harm in the future, this rule recognizes that some
                employers may already be suffering irreparable harm, that is severe and
                permanent financial loss, and so the aim of the revised irreparable
                harm standard with respect to those employers that will benefit from
                this TFR is to prevent further severe and permanent financial loss by
                allowing these employers to also obtain H-2B workers. 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, as discussed below.
                ---------------------------------------------------------------------------
                 \46\ 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 Dec. 1, 2021).
                ---------------------------------------------------------------------------
                 The decision to afford the benefits of this temporary cap increase
                to U.S. businesses that need H-2B workers because they are suffering
                irreparable harm already or will suffer impending 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 DHS's time-limited authority to increase
                the cap, 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 up to 20,000
                additional visas, for positions with start dates on or before March 31,
                2022, solely for the businesses facing
                [[Page 4729]]
                permanent, severe financial loss or those who will face such loss in
                the near future.
                 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, 2019, and 2021, 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 that
                are suffering irreparable harm or will suffer impending irreparable
                harm, in other words, those facing permanent and severe financial loss.
                 As noted above, to address the increased and, in some cases,
                impending need for H-2B workers in positions with start dates on or
                before March 31, 2022, the Secretary of Homeland Security has
                determined that employers may petition for supplemental visas on behalf
                of up to 13,500 workers who were issued an H-2B visa or were otherwise
                granted H-2B status in FY 2019, 2020, or 2021.\47\ 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.\48\ 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.\49\ 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 visa issuance rate when applying to renew their H-2B visas, as
                compared with the overall visa applicant pool from a given country.
                Furthermore, consular officers are authorized to waive the in-person
                interview requirement for certain H-2B applicants seeking to renew
                their visa within a specific timeframe of that visa's expiration, 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 waiver eligibility to certain
                first-time H-2 applicants \50\ potentially allowing such applicants to
                be processed with increased efficiency. However, there is no indication
                that this temporary measure will necessarily affect the overall visa
                issuance rates of applicants, which DOS has indicated is higher for
                returning workers who can demonstrate prior compliance with the
                program.
                ---------------------------------------------------------------------------
                 \47\ 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 13,500
                additional visas authorized by this rule.
                 \48\ 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.
                 \49\ 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. In addition, U.S. Department of State consular officers
                temporarily have flexibility to waive the personal appearance of
                certain nonimmigrant visa applicants. See, e.g., 86 FR 70735 (Dec.
                13, 2021); see also DOS website, Important Announcement on Waivers
                of the Interview Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
                 \50\ Some consular sections waive the in-person interview
                requirement for certain H-2B applicants and who otherwise meet the
                strict limitations set out under INA section 222(h), 8 U.S.C.
                1202(h). The authority allowing for waiver of interview of certain
                H-2 (temporary agricultural and non-agricultural workers) applicants
                is extended through the end of 2022. DOS, Important Announcement on
                Waivers of the Interview Requirement for Certain Nonimmigrant Visas,
                https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
                ---------------------------------------------------------------------------
                 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 or nonimmgrant status. 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 6,500 H-2B visas to nationals of the Northern
                Triangle countries and Haiti while making the remaining allocation of
                up to 13,500 H-2B 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, whole-of-government framework--of which this
                allocation is one piece--to address and manage migration from the
                Northern Triangle countries and Haiti and addressing the needs of
                certain H-2B employers that are suffering irreparable harm or will
                suffer impending irreparable harm. The United States has strong foreign
                policy interests in allocating up to 6,500 supplemental visas only to
                nationals of the Northern Triangle countries or Haiti and exempting
                such persons from the returning worker requirement. The Secretary of
                Homeland Security has determined that both the 6,500 limitation and the
                exemption from the returning worker requirement for nationals of the
                Northern Triangle countries is again beneficial in light of
                [[Page 4730]]
                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, and to work toward addressing some of the causes of and
                managing migration throughout North and Central America. In response to
                this executive order, DHS seeks to promote and improve safety,
                security, and economic stability throughout the North and Central
                American region, and work with these countries to stem the flow of
                irregular migration in the region and enhance access to visa programs.
                DHS believes that including nationals of Haiti in this allocation of up
                to 6,500 supplemental visas will further promote and improve safety,
                security, and economic stability throughout this region, and is in the
                interests of the United States as a close partner and neighbor.
                 The exemption from the returning worker requirement recognizes the
                small numbers of individuals, approximately 4,400 per year, from the
                three Northern Triangle countries and Haiti who were previously granted
                H-2B visas in recent years.\51\ 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 to provide
                additional temporary foreign workers for U.S. employers that are
                suffering irreparable harm or will suffer impending irreparable harm,
                while also enhancing access to the H-2B visa classification for
                individuals from the Northern Triangle countries and Haiti.
                ---------------------------------------------------------------------------
                 \51\ DOS issued a combined total of approximately 26,630 H-2B
                visas to nationals of the Northern Triangle countries and Haiti from
                FY 2015 through FY 2020, or 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 Dec. 03, 2021).
                ---------------------------------------------------------------------------
                 Finally, unlike the temporary final rule for the FY 2021
                supplemental cap, this rule does not make available unfilled visas from
                the allocation for nationals of the Northern Triangle countries and
                Haiti to the general supplemental cap for returning workers. As with
                the supplemental cap for returning workers, USCIS will stop accepting
                petitions received under the allocation for the Northern Triangle
                countries and Haiti after March 31, 2022. This end date is intended to
                provide H-2B employers ample time, should they choose, to petition for,
                and bring in, workers under the allocation for the Northern Triangle
                countries and Haiti. This, in turn, provides an opportunity for
                employers to contribute to our country's efforts to promote and improve
                safety, security and economic stability in these countries to help stem
                the flow of irregular migration to the United States.
                 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 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 2022 numerical limitation by up
                to 20,000 visas for positions with start dates on or before March 31,
                2022, 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 or Haiti counted towards the
                6,500 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 20,000 Visas
                 The increase of up to 20,000 visas will help address the urgent
                needs of eligible employers for additional H-2B workers for those
                employers with employment needs for start dates on or before March 31,
                2022.\52\ As noted above, DHS is limiting the numerical increase to
                those petitions with start dates on or before March 31, 2022, because
                current data supports the need for additional H-2B workers with start
                dates during that timeframe.\53\ The determination to allow up to
                20,000 additional H-2B visas reflects a balancing of a number of
                factors including the demand for H-2B visas for the first half of FY
                2022; current economic conditions; the general trend of increased
                demand for H-2B visas from FY 2017 to FY 2021; H-2B returning worker
                data; the amount of time remaining for employers to hire and obtain H-
                2B workers with start dates on or before March 31, 2022; concerns from
                Congress, state and local elected officials, U.S. businesses, chambers
                of commerce, and employer organizations expressing a need for
                additional H-2B workers; 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.
                ---------------------------------------------------------------------------
                 \52\ 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 (emphasis
                added), and section 214(g)(10) of the INA, 8 U.S.C. 1184(g)(10),
                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.
                 \53\ On January 4, 2022, DOL's Office of Foreign Labor
                Certification announced it had received a total of 7,875 H-2B
                temporary labor certification applications requesting 136,555
                workers with the start date of work of April 1, 2022. See https://www.dol.gov/agencies/eta/foreign-labor. DHS is limiting the
                supplemental H-2B visas provided by this TFR to those employers with
                start dates of need on or before March 31, 2022, for the reasons
                described in this TFR.
                ---------------------------------------------------------------------------
                 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
                [[Page 4731]]
                2021.\54\ 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 in this temporary final rule
                for those petitioners with start dates on or before March 31, 2022
                during FY 2022, DHS considered this number, overall indications of
                increased need, and the availability of U.S. workers, as discussed
                below. On the basis of these considerations, DHS determined that it
                would be appropriate to make available up to 20,000 additional visas
                under the FY2022 supplemental cap authority. 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 countries, as well as to address
                some of the root causes of and manage migration throughout both North
                and Central America, including Haiti, and determined that reserving up
                to 6,500 of the up to 20,000 additional visas and exempting this number
                from the returning worker requirement for nationals from the Northern
                Triangle countries or Haiti would be appropriate.
                ---------------------------------------------------------------------------
                 \54\ 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 three 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.\55\ 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. In FY 2021, USCIS received a sufficient number of
                petitions for the 22,000 supplemental cap on August 13, 2021, including
                a significant number of workers from Northern Triangle countries.\56\
                Of the petitions received, USCIS issued approvals for 30,211
                beneficiaries, including approvals for 6,805 beneficiaries under the
                allocation for the nationals of the Northern Triangle.\57\
                ---------------------------------------------------------------------------
                 \55\ 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.
                 \56\ On June 3, USCIS announced that it had received enough
                petitions to reach the cap for the additional 16,000 H-2B visas made
                available for returning workers only, but that it would continue
                accepting petitions for the additional 6,000 visas allotted for
                nationals of the Northern Triangle countries. See https://www.uscis.gov/news/alerts/cap-reached-for-additional-returning-worker-h-2b-visas-for-fy-2021 (June 3, 2021). On July 23, 2021,
                USCIS announced that, because it did not receive enough petitions to
                reach the allocation for the Northern Triangle countries by the July
                8 filing deadline, the few remaining visas were available to H-2B
                returning workers regardless of their country of origin. See https://www.uscis.gov/news/alerts/employers-may-file-h-2b-petitions-for-returning-workers-for-fy-2021 (July 23, 2021).
                 \57\ The number of approved workers exceeded the number of
                additional visas authorized for FY 2018, FY 2019, as well as for FY
                2021 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.
                ---------------------------------------------------------------------------
                 Data for the first half of FY 2022 clearly indicate an immediate
                need for supplemental H-2B visas in FY 2022 for positions with start
                dates between October 1, 2021 through March 31, 2022. As of December 1,
                2021, DOL's Office of Foreign Labor Certification (OFLC) reports having
                certified 2,469 TLC applications with requested dates of need in the
                first half of FY 2022 for 65,717 H-2B visas.\58\ Furthermore, as noted
                above, USCIS received a sufficient number of H-2B petitions to reach
                the first half of the FY 2022 fiscal year statutory cap prior to the
                start of the fiscal year.\59\
                ---------------------------------------------------------------------------
                 \58\ Processing Times, https://flag.dol.gov/processingtimes
                (last visited Dec. 2, 2021).
                 \59\ On October 12, 2021, USCIS announced that it had received
                sufficient petitions to reach the congressionally mandated cap on H-
                2B visas for temporary nonagricultural workers for the first half of
                fiscal year 2022, and that Sept. 30, 2021 was the final receipt date
                for new cap-subject H-2B worker petitions requesting an employment
                start date before April 1, 2022. See USCIS, USCIS Reaches H-2B Cap
                for First Half of FY 2022, https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct 12, 2021).
                ---------------------------------------------------------------------------
                 In addition, although the public health emergency due to COVID-19
                still exists,\60\ DHS believes that issuing additional H-2B visas for
                positions with start dates on or before March 31, 2022 is appropriate
                in the context of the nation's economic recovery from the ongoing
                pandemic. 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. In fiscal year 2021, approximately 88
                percent of H-2B filings were for positions within just 5 sectors.\61\
                NAICS 56 (Administrative and Support and Waste Management and
                Remediation Services) accounted for 41.7% of filings, NAICS 71
                (Accommodation and Food Services) accounted for 17.1%, NAICS 72 (Arts,
                Entertainment, and Recreation) accounted for 14.5%, NAICS 23
                (Construction) accounted for 9.5%, and NAICS 11 (Agriculture, Forestry,
                Fishing and Hunting) accounted for 5% of filings.
                ---------------------------------------------------------------------------
                 \60\ See HHS Renewal of Determination That A Public Health
                Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
                 \61\ USCIS analysis of DOL OLFC Performance data.
                ---------------------------------------------------------------------------
                 Within these industries, DOL data show increased labor demand over
                the last year. More specifically, DOL data from the Job Openings and
                Labor Turnover Survey (JOLTS) show that the rate of job openings \62\
                increased for all 5 industries between October 2020 and October 2021.
                The job opening rate for NAICS 56 \63\ increased from 5.7 to 7.9
                [[Page 4732]]
                while the job opening rate for NAICS 71 went from 5.2 to 7.6. The job
                opening rate for NAICS 72 went from 6.3 to 10.7 while the rate for
                NAICS 23 went from 3.3 to 5.2. The job opening rate for NAICS 11 \64\
                increased from 3.4 to 5.3.
                ---------------------------------------------------------------------------
                 \62\ The JOLTS News Release states that the job openings rate is
                calculated by dividing the number of job openings by the sum of
                employment and job openings and multiplying that quotient by 100.
                See https://www.bls.gov/news.release/jolts.htm.
                 \63\ JOLTS data presented here are for the Professional and
                Business Services Supersector, which is comprised of NAICS 54, NAICS
                55 and NAICS 56. See https://www.bls.gov/iag/tgs/iag60.htm. As such,
                the data presented here should be understood to be the best possible
                proxy for changes in NAICS 56 and not a direct measurement of any
                specific change in the actual underlying sectors. The latest data
                available, for November 2021, from the Department of Labor's Current
                Employment Statistics program indicates that NAICS 56 accounted for
                just under 42% of employment in Professional Business Services. All
                data accessed December 22, 2021.
                 \64\ JOLTS data presented here are for Mining and Logging, which
                is part of the Natural Resources and Mining Supersector. This
                supersector is comprised of NAICS 11 (Agriculture, Forestry, Fishing
                and Hunting) and NAICS 21 (Mining, Quarrying, and Oil and Gas
                Extraction). See https://www.bls.gov/iag/tgs/iag10.htm. As such, the
                data presented here should be understood to be the best possible
                proxy for changes in NAICS 11 and not a direct measurement of any
                specific change in the actual underlying sectors. The latest data
                available, for November 2021, from the Department of Labor's Current
                Employment Statistics program indicates that NAICS 11 accounted for
                just under 7% of employment in Mining and Logging.
                 Year-Over-Year Change in Job Opening Rate \65\
                ----------------------------------------------------------------------------------------------------------------
                 NAICS 11 NAICS 23 NAICS 56 NAICS 71 NAICS 72
                ----------------------------------------------------------------------------------------------------------------
                 1.9 1.9 2.2 2.4 4.4
                ----------------------------------------------------------------------------------------------------------------
                 The increase in the job openings rate across these industries is a
                clear indication of increased labor demand within these industries. The
                Departments believe that the supplemental allocation of H-2B visas
                described in this temporary final rule will help to meet increased job
                openings in these industries.
                ---------------------------------------------------------------------------
                 \65\ Year-over-year change was calculated as the difference
                between the October 2021 value for the respective industry and the
                October 2020 value. See https://www.bls.gov/jlt/#data. All data
                accessed December 22, 2021.
                ---------------------------------------------------------------------------
                 In addition, DOS recently announced that, as worldwide restrictions
                due to the COVID-19 pandemic begin to ease, and in line with the
                President's proclamation regarding the safe resumption of international
                travel,\66\ the Bureau of Consular Affairs is focusing on reducing wait
                times for all consular services at embassies and consulates overseas
                while also protecting health and safety of staff and applicants.\67\ We
                note, however, that amid growing concern about the COVID Omicron
                variant, a highly mutated form of the COVID virus that is now
                documented in dozens of countries and numerous states within the U.S.,
                the Centers for Disease Control and Prevention (CDC) recently tightened
                testing requirements for international air travel to the United States,
                which may have an impact on such travel.\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, DHS believes it is appropriate at this time to
                release additional visas for positions with start dates on or before
                March 31, 2022. Further, DHS believes that 20,000 is an appropriate
                number of visas for the reasons discussed above.
                ---------------------------------------------------------------------------
                 \66\ Proclamation 10294 of Oct. 25, 2021, Advancing the Safe
                Resumption of Global Travel During the COVID-19 Pandemic, 86 FR
                59603 (Oct. 28, 2021).
                 \67\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (Nov. 19, 2021).
                 \68\ See CDC, Requirement for Proof of Negative COVID-19 Test or
                Documentation of Recovery from COVID-19, Requirement for Proof of
                Negative COVID-19 Test or Documentation of Recovery from COVID-19
                (Dec. 2, 2021). Changes made prior to the emergence of Omicron also
                reflect the evolving nature of the pandemic and potential impacts on
                international air travel by H-2B workers. See 86 FR 59603 (Oct. 28,
                2021) (Presidential Proclamation); see also 86 FR 61224 (Nov. 5,
                2021) (implementing CDC Order).
                ---------------------------------------------------------------------------
                 Finally, recognizing the high demand for H-2B visas, it is
                plausible that the additional H-2B supplemental allocations provided in
                this rule will be reached before March 31, 2022. Specifically, the
                following scenarios may still occur:
                 The 13,500 supplemental cap visas limited to returning
                workers that will be immediately available for employers will be
                reached before March 31, 2022.
                 The 6,500 supplemental cap visas limited to nationals of
                the Northern Triangle countries and Haiti will be reached before March
                31, 2022.
                 DHS regulation, 8 CFR 214.2(h)(6)(xi)(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 13,500 supplemental cap
                visas for returning workers is reached before March 31, 2022; or the
                6,500 visas limited to nationals of the Northern Triangle countries and
                Haiti is reached before March 31, 2022. Finally, similar to the
                processes applicable to the H-2B semi-annual 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 increases in FY 2019 and FY 2021, 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 or
                Haiti and is counted towards the separate 6,500 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 2019, 2020, or 2021.
                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.
                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
                [[Page 4733]]
                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 2022
                supplemental cap was issued an H-2B visa or otherwise granted H-2B
                status in FY 2019, 2020, or 2021, unless the H-2B worker is a national
                of one of the Northern Triangle countries or Haiti and is counted
                towards the 6,500 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 or Haiti who is counted against the
                6,500 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 6,500 Visas for Nationals of
                Guatemala, El Salvador, and Honduras (Northern Triangle Countries) and
                Haiti
                 As described above, the Secretary of Homeland Security has
                determined that up to 6,500 additional H-2B visas will be limited to
                workers who are nationals of one of the Northern Triangle countries or
                Haiti. These 6,500 visas will be exempt from the returning worker
                requirement. If the 6,500 visa limit has been reached and the 13,500
                cap has not, petitioners may continue to request workers who are
                nationals of one of the Northern Triangle countries or Haiti, 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
                2019, 2020, or 2021.
                 DHS has determined that reserving 6,500 supplemental H-2B visas for
                nationals of the Northern Triangle countries or Haiti--a number higher
                than the average annual number of visas issued to such persons in the
                past 7 fiscal years--will encourage U.S. employers that are suffering
                irreparable harm or will suffer impending irreparable harm to seek out
                workers from such countries, while, at the same time, increase interest
                among nationals of the Northern Triangle countries and Haiti seeking a
                legal pathway for temporary employment in the United States. DOS issued
                a combined total of approximately 26,630 H-2B visas to nationals of the
                Northern Triangle countries or Haiti from FY 2015 through FY 2020, an
                average of approximately 4,400 per year.\69\ In FY 2021, DOS issued a
                combined total of more than 6,600 visas to nationals of Northern
                Triangle countries. This increase is likely due in large part to the
                additional H-2B visas made available to nationals of these countries by
                the FY 2021 H-2B supplemental visa temporary final rule.\70\ In
                addition, based in part on the vital U.S. interest of promoting
                sustainable development and the stability of Haiti, DHS recently added
                Haiti to the list of countries whose nationals are eligible to
                participate in the H-2A and H-2B programs.\71\ Therefore, as previously
                stated, DHS has determined that the additional increase in FY 2022 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
                further expansion of lawful immigration and lawful employment
                authorization for nationals of Northern Triangle countries and Haiti.
                ---------------------------------------------------------------------------
                 \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 December
                1, 2021).
                 \70\ Id.
                 \71\ See Identification of Foreign Countries Whose Nationals Are
                Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker
                Programs, 86 FR 62559, 62562, https://www.govinfo.gov/content/pkg/FR-2021-11-10/pdf/2021-24534.pdf (Nov. 10, 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 or Haiti is beneficial for the following reasons. It strikes
                a balance between furthering the U.S. foreign policy interests of
                expanding access to lawful pathways to nationals of the Northern
                Triangle countries and Haiti seeking economic opportunity in the United
                States and addressing the needs of certain H-2B employers that are
                suffering irreparable harm or will suffer impending 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 pathways to the United States, including visa
                programs, as appropriate and consistent with the law through both
                protection-related and non-protection related programs. E.O. 14010
                further directs relevant government agencies to create a comprehensive
                regional framework to address the causes of migration, and to manage
                migration throughout North and Central America.\72\ The availability of
                workers from the Northern Triangle countries and Haiti 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.
                ---------------------------------------------------------------------------
                 \72\ See also National Security Council, Collaborative Migration
                Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021)
                (stating that ``The United States has strong national security,
                economic, and humanitarian interests in reducing irregular migration
                and promoting safe, orderly, and humane migration'' within North and
                Central America).
                ---------------------------------------------------------------------------
                 Similar to the discussion above regarding returning workers, DOS
                will work with the relevant countries to facilitate consular
                interviews, as required,\73\ 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.
                ---------------------------------------------------------------------------
                 \73\ 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). The authority allowing for waiver of interview of certain
                H-2 (temporary agricultural and non-agricultural workers) applicants
                is extended through the end of 2022. Applicants renewing any visa
                within 48 months of expiration are also eligible for interview
                waiver. DOS, Important Announcement on Waivers of the Interview
                Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 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 2022 Attestation
                 To file any H-2B petition under this rule, 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
                [[Page 4734]]
                perjury, that it meets the business need standard. Petitioners must be
                able to establish that they are suffering irreparable harm or will
                suffer impending irreparable harm (that is, permanent and severe
                financial loss) without the ability to employ all of the H-2B workers
                requested on their petition.\74\ 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 is facing or will 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,\75\ and any other necessary documentation. As
                in the rules implementing the FY 2017, FY 2018, FY 2019, and FY 2021
                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.\76\
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                 \74\ 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.''
                 \75\ Since July 26, 2019, USCIS has been accepting a printed
                copy of the electronic one-page ETA-9142B, Final Determination: H-2B
                Temporary Labor Certification Approval, as an original, approved
                TLC. See, Notice of DHS's Requirement of the Temporary Labor
                Certification Final Determination Under the H-2B Temporary Worker
                Program, 85 FR 13178, 13179 (Mar. 6, 2020).
                 \76\ This portion of the temporary rule does not apply to
                workers who have already been counted under the H-2B statutory cap
                for the first half of fiscal year 2022 (33,000). Further, this
                portion of the rule does not apply to noncitizens who are exempt
                from the fiscal year 2022 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.
                ---------------------------------------------------------------------------
                 In previous years petitioners have only been required to attest
                that they were likely to suffer irreparable harm if they were unable to
                employ all of the H-2B workers requested on their I-129 petition
                submitted under H-2B cap increase rules. The Departments have decided
                to change this standard. Employers must instead attest that they are
                suffering irreparable harm or will suffer impending irreparable harm
                without the ability to employ all of the H-2B workers requested on the
                petition filed under this rule. This change is designed to focus more
                directly on the actual irreparable harm employers are suffering or the
                impending irreparable harm they will suffer as a result of their
                inability to employ H-2B workers, rather than on just the possibility
                of such harm.
                 As noted above, Congress authorized the Secretary of Homeland
                Security, in consultation with the Secretary of Labor, to increase the
                total number of H-2B visas available ``upon the determination that the
                needs of American businesses cannot be satisfied'' with U.S. workers
                under the statutory visa cap.\77\ The new irreparable harm standard in
                this rule aligns with the determination that Congress requires DHS to
                make before increasing the number of H-2B visas available to U.S.
                employers. In particular, requiring employers to attest that they are
                suffering irreparable harm or will suffer impending irreparable harm
                without the ability to employ all of the requested H-2B workers is
                directly relevant to the needs of the business--if an employer is
                suffering or will suffer irreparable harm, then their needs are not
                being satisfied. The prior standard, on the other hand, required only
                that the employer attest that harm was likely to occur at some point in
                the future, which created uncertainty as to whether that employer's
                needs were truly unmet or would not be met without being able to employ
                the requested H-2B workers. Because the authority to increase the
                statutory cap is tied to the needs of businesses, the Departments think
                it is reasonable for employers to attest that they are suffering
                irreparable harm or that they will suffer impending irreparable harm
                without the ability to employ all of the H-2B workers requested on
                their petition. If such employers are unable to attest to such harm and
                retain and produce documentation of that harm, it calls into question
                whether their needs cannot in fact be satisfied without the ability to
                employ H-2B workers. As with employers with a current need, an
                employer's inability to attest to impending harm calls into question
                their actual need for the requested H-2B workers.
                ---------------------------------------------------------------------------
                 \77\ Public Law 117-70 Further Extending Government Funding Act,
                Division A ``Further Continuing Appropriations Act, 2022'', section
                101 (Dec. 3, 2021) changing the Public Law 117-43 expiration date in
                section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and Public Law
                117-43 Extending Government Funding and Delivering Emergency
                Assistance Act, Division A ``Continuing Appropriations Act, 2022'',
                Section 101 and 106(3) (Oct. 3, 2021) providing DHS funding and
                authorities, including authority under section 105 of title I of
                Division O of Public Law 116-260, through December 3, 2021.
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                 The change to the irreparable harm standard is also informed by the
                Departments' experiences in implementing the business need standard. In
                the Departments' experience, the ``likely to suffer irreparable harm''
                standard has been difficult to assess and administer in the context of
                prior supplemental cap rules. For example, employers have reported
                confusion with the standard, including some employers that were not
                able to provide adequate evidence of the prospective ``likelihood of
                irreparable harm'' when selected for a random audit. The Departments
                therefore believe that asking employers to provide evidence of harm
                that is occurring or is impending without the ability to employ all of
                the H-2B workers requested on their petition is a better means of
                ensuring compliance.
                 The attestation form will serve as prima facie initial evidence to
                DHS that the petitioner's business is suffering irreparable harm or
                will suffer impending irreparable harm. Any petition requesting H-2B
                workers under this FY 2022 supplemental cap that is lacking the
                requisite attestation form may be rejected in accordance with 8 CFR
                103.2(a)(7)(ii) or denied in accordance with 8 CFR 103.2(b)(8)(ii), as
                applicable. 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, as with petitions filed under the FY 2021
                Supplemental TFR, 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)(xi)(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 attestation submitted to USCIS will also state that the
                employer meets all other eligibility criteria for the available visas,
                [[Page 4735]]
                including the returning worker requirement, unless exempt because the
                H-2B worker is a national of one of the Northern Triangle countries or
                Haiti who is counted against the 6,500 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 is necessary under the appropriate
                business need 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 or Haiti, 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 the first half of FY 2022 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 or
                Haiti who is counted against the 6,500 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 655.69. 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 655.69, 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. With regard to
                the irreparable harm standard, employers attesting that they are
                suffering irreparable harm must be able to provide concrete evidence
                establishing severe and permanent financial loss that is occurring; the
                scope and severity of the harm must be clearly articulable. Employers
                attesting that they will suffer impending irreparable harm must be able
                to demonstrate that severe and permanent financial loss will occur in
                the near future without access to the supplemental visas; it will not
                be enough to provide evidence suggesting that such harm may or is
                likely to occur; rather, the documentary evidence must show that
                impending harm will occur and document the form of such harm.
                Supporting evidence may include, but is not limited to, the following
                types of documentation:
                 (1) Evidence that the business is suffering or will suffer in the
                near future permanent and severe financial loss due to the inability to
                meet financial or existing contractual obligations because they were
                unable to employ H-2B workers, including evidence of contracts,
                reservations, orders, or other business arrangements that have been or
                would be cancelled, and evidence demonstrating an inability to pay
                debts/bills;
                 (2) Evidence that the business is suffering or will suffer in the
                near future permanent and severe financial loss, as compared to prior
                years, such as financial statements (including profit/loss statements)
                comparing the employer's 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 the current year;
                 (3) Evidence showing the number of workers needed in the previous
                three seasons (FY 2019, 2020, and 2021) to meet the employer's need as
                compared to those currently employed or expected to be employed at the
                beginning of the start date of need. 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 it claims are
                needed, and 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 in the near
                future need, 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 an impending 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
                2019, 2020, or 2021, unless the H-2B worker is a national of one of the
                Northern Triangle countries or Haiti counted towards the 6,500 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 2019, 2020, or 2021.
                [[Page 4736]]
                 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, at the time of filing the petition, that their
                business was suffering irreparable harm or would suffer impending
                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 or Haiti counted towards the 6,500 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.\78\
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                 \78\ 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.
                ---------------------------------------------------------------------------
                 To the extent that evidence reflects a preference for hiring H-2B
                workers over U.S. workers, an investigation by additional 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 also 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 Nov. 30, 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 Nov. 30, 2021).\79\
                ---------------------------------------------------------------------------
                 \79\ 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.
                ---------------------------------------------------------------------------
                 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 as extended by Public Law 117-70, 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 I&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
                as extended by Public Law 117-70 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.\80\ 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 655.69, 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.
                ---------------------------------------------------------------------------
                 \80\ 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.
                ---------------------------------------------------------------------------
                F. Portability
                 As an additional option for employers that cannot find U.S.
                workers, this rule allows petitioners to immediately employ certain H-
                2B workers who are present in the United States in H-2B status without
                waiting for approval of the H-2B petition. Such workers must be
                beneficiaries of a non-frivolous H-2B petition requesting an extension
                of stay received on or after the effective date of this temporary final
                rule but no later than 180 days after that date.\81\ Additionally,
                petitioners may immediately employ individuals who are beneficiaries of
                a non-frivolous H-2B petition requesting an extension of the worker's
                stay that is pending as of the effective date of this temporary final
                rule without waiting for approval of the H-2B petition. Specifically,
                the rule allows H-2B nonimmigrant workers to begin employment with a
                new H-2B employer or agent upon USCIS's receipt of a timely filed, non-
                frivolous H-2B petition, provided the worker was lawfully admitted to
                the United States and has not worked without authorization subsequent
                to such lawful admission. 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.
                ---------------------------------------------------------------------------
                 \81\ Aliens who are the beneficiaries of petitions filed on the
                basis of 8 CFR 214.1(c)(4) are not eligible to port to a new
                employer under 8 CFR 214.2(h)(27).
                ---------------------------------------------------------------------------
                 This provision is similar to the portability provision in the FY
                2021 H-2B supplemental visa temporary final rule. In addition, the
                provision is similar to temporary flexibilities that DHS has used
                previously to improve employer access to noncitizen workers during the
                COVID-19 pandemic.\82\ DHS
                [[Page 4737]]
                recognizes the possibility that some beneficiaries were lawfully
                admitted and were in valid H-2B status at the time of the petition
                submission but such status may have lapsed during the pendency of the
                petition. Accordingly, DHS added the provision extending portability
                flexibility to petitioners to immediately employ beneficiaries of
                pending non-frivolous H-2B extension of stay petitions as of the
                effective date of this temporary final rule. See new 8 CFR
                214.2(h)(27)(iii)(B). This provision is intended to mitigate the harm
                that petitioners may experience resulting from the COVID-19 pandemic by
                allowing petitioners to employ such H-2B workers so long as they were
                lawfully admitted to the United States and if they have not worked
                unlawfully after their admission. 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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                 \82\ 86 FR 28198 (May 25, 2021). 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).\83\ This
                determination that a public health emergency exists due to COVID-19 has
                subsequently been renewed seven times: On April 21, 2020, on July 23,
                2020, on October 2, 2020, on January 7, 2021, on April 15, 2021, on
                July 19, 2021 and most recently on October 15, 2021, effective October
                18, 2021.\84\ 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.\85\ 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.\86\ 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.\87\ Although routine visa services have
                resumed \88\ subject to local conditions and restrictions, and DOS has
                expanded visa interview waiver eligibility,\89\ the COVID-19 pandemic
                continues to have a significant impact on visa processing at embassies
                and consulates around the world.\90\ And as noted above, growing
                concern about the COVID Omicron variant recently prompted tightened
                testing requirements for international air travel to the United States,
                which may have an impact on such travel.
                ---------------------------------------------------------------------------
                 \83\ HHS, Determination of Public Health Emergency, 85 FR 7316
                (Feb. 7, 2020).
                 \84\ See HHS Renewal of Determination That A Public Health
                Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
                 \85\ Proclamation 9994 of Mar. 13, 2020, Declaring a National
                Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85
                FR 15337 (Mar. 18, 2020).
                 \86\ 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).
                 \87\ DOS, Important Announcement on Waivers of the Interview
                Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
                 \88\ DOS, Visa Services Operating Status Update, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last updated Nov. 19, 2021).
                 \89\ 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).
                 \90\ Celia Belin, Travel is resuming, but not for everyone,
                Brookings, https://www.brookings.edu/blog/order-from-chaos/2021/11/08/travel-is-resuming-but-not-for-everyone/ (Nov. 8, 2021).
                ---------------------------------------------------------------------------
                 Further, due to the possibility that some H-2B workers may be
                unavailable due to travel restrictions, to include those intended to
                limit the spread of COVID-19, or visa processing delays or may become
                unavailable due to COVID-19 related illness, 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 workers authorized 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 (Pub. L. 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.\91\ 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 may have found themselves in situations that warrant a change in
                employers.\92\ Providing that flexibility is also equitable and fair.
                ---------------------------------------------------------------------------
                 \91\ The Joint Explanatory Statement accompanying the Fiscal
                Year (FY) 2020 Department of Homeland Security (DHS) Further
                Consolidated Appropriations Act (Pub. L. 116-94) states, ``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.''
                 \92\ The White House, The National Action Plan to Combat Human
                Trafficking, Priority Action 1.5.3, at p. 25 (Dec. 2021); The White
                House, 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 (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
                [[Page 4738]]
                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 continuing
                uncertainties surrounding the COVID-19 pandemic. This period is
                justified especially given the possible future impacts of COVID-19
                variants and uncertainty regarding the duration of vaccine-gained
                immunity and how effective currently approved vaccines will be in
                responding to future COVID-19 variants.\93\ DHS will continue to
                monitor the evolving health crisis caused by COVID-19 and may address
                it in future rules.
                ---------------------------------------------------------------------------
                 \93\ See CDC, What You Need to Know about Variants, https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html (last
                updated Dec. 13, 2021); CDC, Key Things to Know About COVID-19
                Vaccines, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Jan. 12, 2022).
                ---------------------------------------------------------------------------
                G. 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.\94\ 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 protected areas policy, ICE does not and
                will not carry out enforcement operations in or near a medical or
                mental healthcare facility, such as a hospital, doctor's office, health
                clinic, vaccination or testing site, urgent care center, site that
                serves pregnant individuals, or community health center.\95\
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                 \94\ 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) (last accessed Nov. 30, 2021).
                 \95\ See ICE, FAQs: Protected Areas and Courthouse Arrests,
                https://www.ice.gov/about-ice/ero/protected-areas (last visited Jan.
                11, 2022).
                ---------------------------------------------------------------------------
                 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 as extended by Public Law 117-70, the Departments are using the
                DOL Form ETA-9142-B-CAA-5 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-5 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 regulations, including, where applicable, 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, or to reimbursement for
                travel to and from the nearest available vaccination site See new 8 CFR
                214.2(h)(6)(xi)(B)(2)(iv) 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. WHD has
                published a poster for employers' optional use for this
                notification.\96\ 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.
                ---------------------------------------------------------------------------
                 \96\ See, Employee Rights--H-2B Workers and COVID-19 https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID.pdf (English);
                https://www.dol.gov/sites/dolgov/files/WHD/posters/H2B_COVID_SPA.pdf
                (Spanish) (Last visited Dec. 22, 2021).
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                 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,
                where applicable, 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, or to reimbursement for travel to and from the nearest
                available vaccination site. Failure to comply with such laws and
                regulations would be contrary to the attestation 7 on ETA 9142B--
                Appendix B, and therefore may be a basis for DHS to revoke the petition
                under 8 CFR 214.2(h)(11)(iii)(A)(3) for violating terms and conditions
                of the approved petition.\97\ This obligation is also reflected as a
                condition of H-2B portability under this rule. See new 8 CFR
                214.2(h)(27)(iii)(C).
                ---------------------------------------------------------------------------
                 \97\ During the period of employment specified on the Temporary
                Labor Certification, the employer must comply with all applicable
                Federal, State and local employment-related laws and regulations,
                including health and safety laws. 20 CFR 655.20(z). By submitting
                the Temporary Labor Certification as evidence supporting the
                petition, it is incorporated into and considered part of the benefit
                request under 8 CFR 103.2(b)(1).
                ---------------------------------------------------------------------------
                 President Biden, in his speech to Joint Session of Congress on
                April 21, 2021, 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.'' \98\ More recently,
                President Biden reiterated his call on employers to provide paid time
                off to their employees to get booster shots.\99\ Consistent with the
                President's statements, 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 receive their
                COVID-19 vaccinations, as well as time off, with pay, to recover from
                any temporary side effect. In Proclamation 10294 of October 25, 2021,
                the President barred the entry of nonimmigrants into the United States
                via air transportation unless they are fully vaccinated against COVID-
                19, with certain exceptions.\100\ On January 22, 2022, similar
                requirements entered into force at land ports of entry and ferry
                terminals.\101\ The Departments therefore expect that H-2B
                nonimmigrants who enter the United States via air transportation under
                this rule will generally be fully vaccinated against COVID-19. The
                [[Page 4739]]
                Departments note, however, that some H-2B nonimmigrants (such as
                nonimmigrants who are already in the United States) may not yet be
                vaccinated or may nonetheless be eligible for booster shots.
                ---------------------------------------------------------------------------
                 \98\ 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/ (April 21, 2021).
                 \99\ See https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-winter/ (December 2, 2021).
                 \100\ See 86 FR 59603 (Oct. 28, 2021) (Presidential
                Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC
                Order).
                 \101\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United
                States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at
                United States-Canada border).
                ---------------------------------------------------------------------------
                 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.
                H. 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 or Haiti), 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 nationals of the Northern Triangle
                countries or Haiti under the 6,500 visa allocation that are exempt from
                the returning worker provision must file a separate Form I-129 for
                those nationals of the Northern Triangle countries and Haiti only. See
                new 8 CFR 214.2(h)(6)(xi). In this regard, a petition must be filed
                with a single Form ETA-9142-B-CAA-5 that clearly indicates that the
                petitioner is only requesting nationals from a Northern Triangle
                country or Haiti who are exempt from the returning worker requirement.
                Specifically, if the petitioner checks Box #5 of Form ETA-9142-B-CAA-5,
                then the petition accompanying that form must be filed only on behalf
                of nationals of one or more of the Northern Triangle countries or
                Haiti, and not other countries. In such a case if the Form I-129
                petition is requesting beneficiaries from countries other than Northern
                Triangle countries or Haiti, then USCIS may reject, issue a request for
                evidence, notice of intent to deny, or denial, or, in the case of a
                non-frivolous petition, a partial approval limiting the petition to the
                number of beneficiaries who are from one of the Northern Triangle
                countries or Haiti. Requiring the filing of separate petitions to
                request returning workers and to request workers who are nationals of
                the Northern Triangle countries or Haiti 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-5, Attestation for Employers Seeking to Employ H-2B Nonimmigrant
                Workers Under Section 105 of Division O of the Further Consolidated
                Appropriations Act, 2021 Public Law 116-260, and Public Laws 117-43 and
                117-70. See 20 CFR 655.64. Petitioners are 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 655.69. Petitions submitted to DHS pursuant
                to the FY 2021 Omnibus, as extended by Public Law 117-43 and Public Law
                117-70, will be processed in the order in which they were received, and
                pursuant to processes in place for when numerical limitations are
                reached under INA section 214(g)(1)(B) or (g)(10), 8 U.S.C.
                1184(g)(1)(B) or (g)(10).
                 Consistent with the intent of this rule to address urgent demand
                from employers for H-2B workers with start dates in the first half of
                the fiscal year, USCIS will not accept petitions received after March
                31, 2022. See new 8 CFR 214.2(h)(6)(xi)(C). Such petitions will be
                rejected and the filing fees will be returned. DHS believes it is
                appropriate to set a final filing date that aligns with the final
                employment start date allowed under this rule, as petitioners under the
                supplemental allocation will attest to a need for H-2B workers to start
                on or before March 31, 2022, without whom they are suffering
                irreparable harm or will suffer impending irreparable harm.\102\
                ---------------------------------------------------------------------------
                 \102\ Conversely, DHS believes that allowing petitioners to file
                these petitions during the second half of the fiscal year would be
                inconsistent with the intent to address the already-exceeded first
                half demand for H-2B workers without whom employers would be
                suffering irreparable harm. Allowing petitioners to file so far
                after their start date of need could call into question the
                petitioner's period of temporary need for the services or labor to
                be performed, as well as petitioners' attestations regarding the
                irreparable harm they are suffering or the impending irreparable
                harm they stand to suffer without the ability to employ all of the
                requested workers for that period of need.
                ---------------------------------------------------------------------------
                 Based on the time-limited authority granted to DHS by Public Law
                117-43 and Public Law 117-70, on the same terms as section 105 of the
                under the FY 2021 Omnibus, DHS is notifying the public that petitions
                seeking a visa under this rule filed on or before March 31, 2022, may
                not be approved by USCIS on or after October 1, 2022. See new 8 CFR
                214.2(h)(6)(xi). Petitions pending with USCIS that are not approved
                before October 1, 2022 will be denied and any fees will not be
                refunded. See new 8 CFR 214.2(h)(6)(xi).
                 Petitioners may choose to request premium processing of their
                petitions under 8 CFR 103.7(e), which allows for expedited processing
                for an additional fee.
                I. 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. An employer that seeks to hire
                H-2B workers must request a TLC in compliance with the application
                filing requirements set forth in 20 CFR 655.15 and meet all the
                requirements of 20 CFR part 655, subpart A, to obtain a valid TLC,
                including the criteria for certification set forth in 20 CFR 655.51.
                See 20 CFR 655.64(a) and 655.50(b). 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.
                 The H-2B regulations require that, among other things, an employer
                seeking to hire H-2B workers in a non-emergency situation must file a
                completed Application for Temporary Employment Certification with the
                National Processing Center (NPC) designated by the OFLC Administrator
                no more than 90 calendar days and no fewer than 75 calendar days before
                the employer's date of need (i.e., start date for the work). See 20 CFR
                655.15.
                 Under 20 CFR 655.17, an employer may request a waiver of the time
                period(s) for filing an Application for
                [[Page 4740]]
                Temporary Employment Certification based on ``good and substantial''
                cause, provided that the employer has sufficient time to thoroughly
                test the domestic labor market on an expedited basis and the OFLC
                certifying officer (CO) has sufficient time to make a final
                determination as required by the regulation. To rely on this provision,
                as the Departments explained in the 2015 H-2B Interim Final Rule,\103\
                the employer must provide the OFLC CO with detailed information
                describing the ``good and substantial cause'' necessitating the waiver.
                Such cause may include the substantial loss of U.S. workers due to Acts
                of God, or a similar unforeseeable human-made catastrophic event that
                is wholly outside the employer's control, unforeseeable changes in
                market conditions, or pandemic health issues. Thus, to ensure an
                adequate test of the domestic labor market and to protect the integrity
                of the H-2B program, the Departments clearly intended that use of
                emergency procedures must be narrowly construed and permitted in
                extraordinary and unforeseeable catastrophic circumstances that have a
                direct impact on the employer's need for the specific services or labor
                to be performed. Even under the existing H-2B statutory visa cap
                structure, DOL considers USCIS' announcement(s) that the statutory
                cap(s) on H-2B visas has been reached, which may occur with regularity
                every six months depending on H-2B visa need, as foreseeable, and
                therefore not within the meaning of ``good and substantial cause'' that
                would justify a request for emergency procedures.\104\ Accordingly,
                employers cannot rely solely on the supplemental H-2B visas made
                available through this rule as good and substantial cause to use
                emergency procedures under 20 CFR 655.17.
                ---------------------------------------------------------------------------
                 \103\ Interim Final Rule, Temporary Non-Agricultural Employment
                of H-2B Aliens in the United States, 80 FR 24041 (Apr. 29, 2015)
                (2015 H-2B Interim Final Rule).
                 \104\ See U.S. Department of Labor, Employment and Training
                Administration, Office of Foreign Labor Certification, 2015 H-2B
                Interim Final Rule FAQs, Round 12: Job Order and Application Filing
                and Processing, Emergency Procedures and Post-Certification
                Amendments. Retrieved December 18, 2021, from https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_2015_IFR_FAQs_Round12.pdf.
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                 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)(xi), 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 as U.S.
                workers continue to reenter the workforce as they become vaccinated. 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 October 1, 2021, likely
                conducted their positive recruitment beginning around late-July and
                ending around mid-August 2021, and continued to consider U.S. worker
                applicants and referrals only until September 10, 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 DOL 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, FY 2019, and
                FY 2021 H-2B supplemental cap rules.
                 An employer that files an I-129 petition under 8 CFR
                214.2(h)(6)(xi) fewer than 45 days after the certified start date of
                work on the TLC must submit the TLC and a completed Form ETA-9142B-CAA-
                5, 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.
                 Employers that are required to engage in new recruitment 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, and inform the SWA that the job order is being placed in
                connection with a previously submitted and certified Application for
                Temporary Employment Certification for H-2B workers by providing the
                SWA with the unique OFLC TLC case number.
                 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).
                 Once the SWA places the new job order on its public labor exchange
                system, the SWA will perform its normal employment service activities
                by circulating the job order for intrastate clearance, and in
                interstate clearance by providing a copy of the job order to other SWAs
                with jurisdiction over listed worksites as well as those States the
                OFLC CO designated in the original Notice of Acceptance issued under 20
                CFR 655.33. Where the occupation or industry is traditionally or
                customarily unionized, the SWA will also circulate a copy of the new
                job order to the central office of the State Federation of Labor in the
                State(s) in which work will be performed, and the office(s) of local
                union(s) representing workers in the same or substantially equivalent
                job classification in the area(s) in which work will be performed,
                consistent with its current obligation under 20 CFR 655.33(b)(5).
                Common H-2B occupations or industries that are traditionally or
                customarily unionized include, but are not limited to, those covering
                construction and extraction, manufacturing, food and hospitality,
                transportation and distribution, and other production related services.
                To facilitate an effective dissemination of
                [[Page 4741]]
                these job opportunities, DOL encourages union(s) or hiring halls
                representing workers in occupations typically used in the H-2B program
                to proactively contact and establish partnerships with SWAs in order to
                obtain timely information on available temporary job opportunities.
                This will aid the SWAs' prompt and effective outreach under the rule.
                DOL's OFLC maintains a comprehensive directory of contact information
                for each SWA at https://www.dol.gov/agencies/eta/foreign-labor/contact.
                 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)
                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, working in concert with the SWA, can coordinate
                efforts to 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 may be better positioned to identify and
                circulate the job order to appropriate local union(s) or hiring
                hall(s), 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 name(s) of the AJC(s) serving that geographic area as well as a
                contact option(s) and an indication as to whether the AJC is a
                ``comprehensive'' or ``affiliate'' center. Employers must contact the
                nearest ``comprehensive'' AJC serving the area of intended employment
                where work will commence or, where a ``comprehensive'' AJC is not
                available, the nearest ``affiliate'' AJC. A ``comprehensive'' AJC tends
                to be a large office that offers the full range of employment and
                business services, and an ``affiliate'' AJC typically is a smaller
                office that offers a self-service career center, conducts hiring
                events, and provides workshops or other select employment services for
                workers. Because a ``comprehensive'' AJC may not be available in many
                geographic areas, particularly among rural communities, this rule
                permits employers to contact the nearest ``affiliate'' AJC serving the
                area of intended employment where a ``comprehensive'' AJC is not
                available. As explained on the locator website, some AJCs may 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, 2020, until the date the I-129 petition required
                under 8 CFR 214.2(h)(6)(xi) 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 continues to
                recover and as more people are vaccinated. While this requirement goes
                beyond the requirement at 20 CFR 655.43, the Departments believe 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 its 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
                [[Page 4742]]
                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.
                 The Departments remind all H-2B employers of the requirement to
                engage in non-discriminatory hiring practices and that the job
                opportunity is, and through the recruitment period set forth in this
                rule must continue to be, open to any qualified U.S. worker regardless
                of race, color, national origin, age, sex, religion, disability, or
                citizenship, as specified under 20 CFR 655.20(r). Further, employers
                that wish to require interviews must conduct those interviews by phone
                or provide a procedure for the interviews to be conducted in the
                location where the worker is being recruited so that the worker incurs
                little or no cost. Employers cannot provide potential H-2B workers with
                more favorable treatment with respect to the requirement for, and
                conduct of, interviews. See 20 CFR 655.40(d).
                 Any U.S. worker who applies or is referred for the job opportunity
                and is not considered by the employer for the job opportunity,
                experiences difficulty accessing or understanding the materials terms
                and conditions of the job opportunity, or believes they have been
                improperly rejected by the employer may file a complaint directly with
                the SWA serving the area of intended employment. Each SWA maintains a
                complaint system for public labor exchange services established under
                20 CFR part 658, subpart E, and any complaint filed by, or on behalf
                of, a U.S. worker about a specific H-2B job order will be processed
                under this existing complaint system. Depending on the circumstances,
                the SWA may seek informal resolution by working with the complainant
                and the employer to resolve, for example, miscommunications with the
                employer to be considered for the job opportunity or other concerns or
                misunderstandings related to the terms and conditions of the job
                opportunity. In other circumstances, such as allegations involving
                discriminatory hiring practices, the SWA may need to formally enter the
                complaint and refer the matter to an appropriate enforcement agency for
                prompt action. As mentioned above, DOL's OFLC maintains a comprehensive
                directory of contact information for each SWA that can be used to
                obtain more information on how to file a complaint.
                 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,\105\ 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.\106\ 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 (note, however,
                that an employer must pay for any discharged H-2B worker's return
                transportation, 20 CFR 655.20(j)(1)(ii) and 29 CFR 503.16(j)(1)(ii)).
                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)(27). 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 are suffering irreparable harm or will
                suffer impending irreparable harm, it is necessary to ensure U.S.
                workers who may be seeking employment as the economy continues to
                recover in 2022 have sufficient time to apply for these jobs.
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                 \105\ Final Rule, Temporary Agricultural Employment of H-2A
                Aliens in the United States, 75 FR 6884, 6921 (Feb. 12, 2010).
                 \106\ NPRM, Temporary Agricultural Employment of H-2A Aliens in
                the United States, 74 FR 45906, 45917 (Sept. 4, 2009); 75 FR at
                6922.
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                 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 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 that 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;
                [[Page 4743]]
                recovery of wages due; make-whole relief for any U.S. worker who has
                been improperly rejected for employment, laid off, or displaced; make-
                whole relief for any person who has been discriminated against; 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
                655.69, 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. In addition to the complaint process under
                20 CFR part 658, subpart E, which is described above, workers who
                believe their rights under the H-2B program have been violated may file
                confidential complaints with WHD by telephone at 1-866-487-9243 or may
                access the telephone number via TTY by calling 1-877-889-5627 or visit
                https://www.dol.gov/agencies/whd to locate the nearest WHD office for
                assistance. Note that an employer is prohibited from intimidating,
                threatening, restraining, coercing, blacklisting, discharging, or in
                any manner discriminating against an employee who has, among other
                actions: Filed a complaint related to H-2B rights and protections;
                consulted with a workers' rights center, community organization, labor
                union, legal assistance program, or attorney on H-2B rights or
                protections; or exercised or asserted H-2B rights and protections on
                behalf of themselves or others. 20 CFR 655.20(n) and 29 CFR 503.16(n).
                 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 section 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 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.
                 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 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-5, 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)(xi), including that its
                business is suffering irreparable harm or will suffer impending
                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-5 to be an appendix to the Application for Temporary
                Employment Certification and the attestations contained on the Form
                ETA-9142B-CAA-5 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-5 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-5 with DOL, consistent
                with existing authorities. This information sharing between DHS and
                DOL, along with relevant information that may be obtained through the
                separate SWA and WHD complaint systems, are expected to 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 recruitment steps required under this rule
                and truthfully attested to the irreparable harm the employer was
                suffering or would suffer in the near future without the ability to
                employ all of the H-2B workers requested 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 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
                [[Page 4744]]
                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 655.69, 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, as explained above, the
                Departments are acting to give effect to the extension of the
                supplemental cap authority in section 105 of Div. O of the FY 2021
                Omnibus, which was extended by Congress and expires on February 18,
                2022 but extends the supplemental cap authority to FY 2022.\107\ The
                Departments are bypassing advance notice and comment because of the
                exigency created by this short timeframe for action, as well as to
                urgently address increased labor demand and other conditions stemming
                from the rapidly unfolding pandemic. In recent months, the ``Great
                Resignation'' has resulted in an adverse impact on many employers in
                industries that frequently use the H-2B program,\108\ and the emergence
                of the Omicron variant has uncertain implications for public health
                \109\ as well as on inflation \110\ and supply chains.\111\ USCIS
                received more than enough petitions to meet the H-2B visa statutory cap
                for the first half of FY 2022 on September 30, 2021,\112\ which is a
                month and a half earlier than when the statutory cap for the first half
                of FY 2020 was reached.\113\ USCIS rejected and returned the petitions
                and associated filing fees to petitioners for all cap-subject petitions
                received after September 30, 2021. Given high demand by American
                businesses for H-2B workers, rapidly evolving economic conditions and
                labor demand, and the very short time remaining to authorize additional
                visa numbers to help prevent further irreparable harm currently
                experienced by some U.S. employers or avoid impending economic harm for
                others,\114\ 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 potentially preclude the
                Departments from successfully exercising the authority created by
                section 105, Public Law 117-43, and Public Law 117-70.
                ---------------------------------------------------------------------------
                 \107\ See Public Law 117-70 Further Extending Government Funding
                Act, Division A ``Further Continuing Appropriations Act, 2022'',
                section 101 (Dec. 3, 2021) changing the Public Law 117-43 expiration
                date in section 106(3) from Dec. 3, 2021 to Feb. 18, 2022, and
                Public Law 117-43 Extending Government Funding and Delivering
                Emergency Assistance Act, Division A ``Continuing Appropriations
                Act, 2022'', Section 101 and 106(3) (Oct. 3, 2021) extending DHS
                funding, including authority under section 105 of title I of
                Division O of Public Law 116-260 through December 3, 2021.
                 \108\ See Megan Leonhardt, The Great Resignation is hitting
                these industries hardest, Fortune, https://fortune.com/2021/11/16/great-resignation-hitting-these-industries-hardest/ (Nov. 16, 2021)
                (``The industries hit hardest by quits in September are leisure and
                hospitality--including those who work in the arts and entertainment,
                as well as in restaurants and hotels--trade, transportation and
                utilities, professional services and retail.''). These observations
                made in the preceding source align with USCIS analysis of labor
                demand in industry sectors that are most represented in the H-2B
                program, as discussed in the E.O. 12866 analysis. See also, e.g.,
                Paul Krugman, Wonking Out: Is the Great Resignation a Great
                Rethink?, N.Y. Times, https://www.nytimes.com/2021/11/05/opinion/great-resignation-quit-job.html (Nov. 5, 2021) (``. . . there's
                considerable evidence that `workers at low-wage jobs [have]
                historically underestimated how bad their jobs are.' When
                something--like, say, a deadly pandemic--forces them out of their
                rut, they realize what they've been putting up with. And because
                they can learn from the experience of other workers, there may be a
                `quits multiplier' in which the decision of some workers to quit
                ends up inducing other workers to follow suit.'').
                 \109\ See Annika Kim Constantino, Omicron detected in Florida
                and Texas as it takes root in 25 U.S. states, CNBC, https://www.cnbc.com/2021/12/10/omicron-detected-in-florida-texas-and-other-states-as-it-takes-root-across-the-us-.html (Dec. 10, 2021).
                 \110\ On December 10, 2021, BLS reported that the CPI-U
                increased 0.8 percent in November on a seasonally adjusted basis
                after rising 0.9 percent in October. Over the previous 12 months,
                the all items index increased 6.8 percent before seasonal
                adjustment. See BLS, Economic News Release, Consumer Price Index
                Summary (Dec. 20, 2021), https://www.bls.gov/news.release/cpi.nr0.htm.
                 \111\ See, e.g., Mitchell Hartman, Omicron's impact on inflation
                and supply chains is uncertain, Marketplace, https://www.marketplace.org/2021/12/01/omicrons-impact-on-inflation-and-supply-chains-is-uncertain/ (Dec. 1, 2021) (``People have trouble
                getting to work through lockdowns and what have you, and labor gets
                scarcer -- particularly for those jobs where being present at work
                matters. Supply goes down and has an upward pressure on pricing . .
                .''); Alyssa Fowers & Rachel Siegel, Five charts explaining why
                inflation is at a near 40-year high, Wash. Post, https://www.washingtonpost.com/business/2021/10/14/inflation-prices-supply-chain/ (Oct. 14, 2021, last updated Dec. 10, 2021) (``Prices for
                meat, poultry, fish and eggs have surged in particular above other
                grocery categories. The White House has pointed to broad
                consolidation in the meat industry, saying that large companies bear
                some of the responsibility for pushing prices higher . . . Meat
                industry groups disagree, arguing that the same supply-side issues
                rampant in the rest of the economy apply to proteins because it
                costs more to transport and package materials, while tight labor
                market has held back meat production.'').
                 \112\ USCIS, USCIS Reaches H-2B Cap for First Half of FY 2022,
                https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022 (Oct. 12, 2021).
                 \113\ November 16, 2020 was the last receipt date for the first
                half of FY 2020. See USCIS, USCIS Reaches H-2B Cap for First Half of
                FY 2021, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2021 (Nov. 18, 2020).
                 \114\ See Jason Douglas et al, Omicron Disrupts Government Plans
                to Lure Migrant Workers as Labor Shortages Bite, Wall Street
                Journal, https://www.wsj.com/articles/omicron-disrupts-government-plans-to-lure-migrant-workers-as-labor-shortages-bite-11639132203
                (Dec. 10, 2021) (```I've lost customers because people don't have
                the patience to wait--it's horrible, horrible,'' she said. ``The sad
                part is, if I got my workers, my business would grow exponentially.'
                . . . Ms. Ogden has tried to find locals to fill the jobs. She even
                asked her congressman to put a sign in his office. She offered about
                $18 an hour, plus overtime. No one took a job. Congress raised the
                cap for H-2B visas this year, up to a total of 66,000 for fiscal
                2022, but that still falls far short of demand.'').
                ---------------------------------------------------------------------------
                 The temporary portability and change of employer provisions in 8
                CFR 214.2
                [[Page 4745]]
                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.\115\ This determination that a public health
                emergency exists due to COVID-19 has subsequently been renewed seven
                times: On April 21, 2020, on July 23, 2020, on October 2, 2020, January
                7, 2021, on April 15, 2021, on July 19, 2021 and most recently on
                October 15, 2021, effective October 18, 2021.\116\ 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.\117\ 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, and it
                later expanded the temporary suspension of routine immigrant and
                nonimmigrant visa services at all U.S. Embassies and Consulates.\118\
                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.\119\ 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.\120\
                ---------------------------------------------------------------------------
                 \115\ HHS, Determination of Public Health Emergency, 85 FR 7316
                (Feb. 7, 2020). See also, https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (Jan. 31, 2020).
                 \116\ See, HHS, Renewal of Determination that a Public Health
                Emergency Exists, https://www.phe.gov/emergency/news/healthactions/phe/Pages/COVDI-15Oct21.aspx (Oct. 15, 2021).
                 \117\ 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).
                 \118\ 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).
                 \119\ https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
                 \120\ DOS, Important Announcement on Waivers of the Interview
                Requirement for Certain Nonimmigrant Visas, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html (last updated Dec. 23, 2021).
                ---------------------------------------------------------------------------
                 Travel restrictions have also changed over time as the pandemic has
                continued to evolve. On October 25, 2021, the President issued
                Proclamation 10294, Advancing the Safe Resumption of Global Travel
                During the COVID-19 Pandemic, which, together with other policies,
                advance the safety and security of the air traveling public and others,
                while also allowing the domestic and global economy to continue its
                recovery from the effects of the COVID-19 pandemic. The proclamation
                bars the entry of noncitizen adult nonimmigrants into the United States
                via air transportation unless they are fully vaccinated against COVID-
                19, with certain exceptions.\121\ On January 22, 2022, similar
                requirements entered into force at land ports of entry and ferry
                terminals.\122\
                ---------------------------------------------------------------------------
                 \121\ See 86 FR 59603 (Oct. 28, 2021) (Presidential
                Proclamation); see also 86 FR 61224 (Nov. 5, 2021) (implementing CDC
                Order).
                 \122\ See 87 FR 3425 (Jan. 24, 2022) (restrictions at United
                States-Mexico border); 87 FR 3429 (Jan. 24, 2022) (restrictions at
                United States-Canada border).
                ---------------------------------------------------------------------------
                 On November 26, 2021, the President issued another Proclamation
                suspending the entry into the United States, of immigrants or
                nonimmigrants, of noncitizens who were physically present within
                certain Southern African countries during the 14-day period preceding
                their entry or attempted entry into the United States.\123\ On December
                28, 2021, the President revoked the November 26 Proclamation.\124\ And
                on December 2, 2021, CDC announced that, beginning December 6, 2021,
                all air travelers over the age of two, regardless of citizenship or
                vaccination status, will be to be required to show a negative pre-
                departure COVID-19 viral test taken the day before they board their
                flight to the United States, or documentation of recent recovery from
                COVID-19.\125\ Shifting requirements as well as varying availability of
                vaccines and tests in some H-2B nonimmigrants' home countries could
                complicate travel.
                ---------------------------------------------------------------------------
                 \123\ See A Proclamation on Suspension of Entry as Immigrants
                and Nonimmigrants of Certain Additional Persons Who Pose a Risk of
                Transmitting Coronavirus Disease 2019 (Nov. 26, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/11/26/a-proclamation-on-suspension-of-entry-as-immigrants-and-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019/.
                 \124\ See A Proclamation on Revoking Proclamation 10315 (Dec.
                28, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/.
                 \125\ See CDC, Requirement for Proof of Negative COVID-19 Test
                or Documentation of Recovery from COVID-19 (Dec. 2, 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. With the emergence of COVID-19 variants,
                including the uncertainty surrounding the most recent variant, Omicron;
                different rates of vaccination; 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.,\126\ and
                [[Page 4746]]
                includes appropriate conditions to ensure that it affects only those
                businesses most in need, and also protects H-2B and U.S. workers.
                ---------------------------------------------------------------------------
                 \126\ 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, 2022, even if Congress includes an additional or
                similar authority akin to Public Law 117-43, as extended by Public
                Law 117-70 on the same terms as 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 and to the extent permitted by law, to proceed
                only if the benefits justify the costs and to select 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.
                 The Office of Information and Regulatory Affairs has determined
                that this rule is a ``significant regulatory action,'' although not an
                economically significant regulatory action. 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 20,000 H-2B visas. By the authority
                given under Public Law 117-43, and extended by Public Law 117-70, on
                the same terms as section 105 of the Further Consolidated
                Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus), DHS is
                raising the H-2B cap by an additional 20,000 visas during FY 2022 for
                positions with start dates on or before March 31, 2022 to businesses
                that: (1) Show that there are an insufficient number of U.S. workers to
                meet their needs in the first half of FY 2022; (2) attest that their
                businesses are suffering irreparable harm or will suffer impending
                irreparable harm without the ability to employ all of the H-2B workers
                requested on their petition; and (3) petition for returning workers who
                were issued an H-2B visa or were otherwise granted H-2B status in FY
                2019, 2020, or 2021, unless the H-2B worker is a national of one of the
                Northern Triangle countries or Haiti. Additionally, up to 6,500 of the
                20,000 visas may be granted to workers from the Northern Triangle
                countries and Haiti 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
                2022.
                 The estimated total costs to petitioners range from $4,803,155 to
                $5,324,039. The estimated total cost to the Federal Government is
                $467,820. Therefore, DHS estimates that the total cost of this rule
                ranges from $5,270,975 to $5,791,859. 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;
                 (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; \127\
                ---------------------------------------------------------------------------
                 \127\ 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 6,500 visas set
                aside for new workers from Guatemala, Honduras, El Salvador, and Haiti,
                is likely to provide multiple benefits in terms of U.S. policy with
                respect to the Northern Triangle countries and Haiti; 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.
                [[Page 4747]]
                 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 --The amended --The total estimated cost --Form I-129
                 H-2B visa allocations to 66,000 provisions will allow to file Form I-129 by petitioners would be
                 workers a year. for an additional human resource specialists able to hire
                 20,000 H-2B temporary is approximately $558,461. temporary workers
                 workers. Up to 6,500 The total estimated cost needed to prevent
                 of the 20,000 to file Form I-129 and their businesses from
                 additional visas will Form G-28 will range from suffering irreparable
                 be reserved for approximately $624,952 if harm.
                 workers who are filed by in-house lawyers --Businesses that are
                 nationals of to approximately $836,755 dependent on the
                 Guatemala, Honduras, if filed by outsourced success of other
                 El Salvador, and lawyers. The total businesses that are
                 Haiti and will be estimated cost associated dependent on H-2B
                 exempt from the with filing additional workers would be
                 returning worker petitions ranges from protected from the
                 requirement. $1,183,413 to $1,395,216 repercussions of
                 depending on the filer. local business
                 --The total estimated costs failures.
                 associated with filing --Some American
                 Form I-907 if it is filed workers may benefit
                 with Form I-129 is to the extent that
                 $974,909 if filed by human they do not lose jobs
                 resource specialists. The through the reduced
                 total estimated costs or closed business
                 associated with filing activity that might
                 Form I-907 would range occur if fewer H-2B
                 from approximately workers were
                 $795,707 if filed by an in- available.
                 house lawyer to
                 approximately $817,943 if
                 filed by an outsourced
                 lawyer. The total
                 estimated costs associated
                 with requesting premium
                 processing ranges from
                 approximately $1,770,616
                 to approximately
                 $1,792,852.
                 --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 cost --Form ETA-9142-B-CAA-
                 required to fill out to petitioners to complete 5 will serve as
                 the newly created and file Form ETA-9142-B- initial evidence to
                 Form ETA-9142-B-CAA- CAA-5 is approximately DHS that the
                 5, Attestation for $472,316. petitioner meets the
                 Employers Seeking to irreparable harm
                 Employ H-2B standard and
                 Nonimmigrant Workers returning worker
                 Under Section 105 of requirements.
                 Div. O of the
                 Consolidated
                 Appropriations Act,
                 2021.
                 --Petitioners would be --The total estimated cost --The additional round
                 required to conduct to petitioners to conduct of recruitment will
                 an additional round an additional round of ensure that a U.S.
                 of recruitment. recruitment is worker that is
                 approximately $178,015. willing and able to
                 fill the position is
                 not replaced by a
                 nonimmigrant worker.
                 --Employers of H-2B --The total estimated cost --Workers would be
                 workers would be to petitioners to provide given information
                 required to provide COVID-19 vaccines and about equal access to
                 information about vaccination distribution vaccines and
                 equal access to COVID- site information is vaccination
                 19 vaccines and approximately $601. distribution.
                 vaccination
                 distribution sites.
                 --An H-2B nonimmigrant --The total estimated cost --H-2B workers present
                 who is physically to file Form I-129 by in the United States
                 present in the United human resource specialists will be able to port
                 States may port to is approximately $63,965. to another employer
                 another employer. The total estimated cost and potentially
                 to file Form I-129 and extend their stay
                 Form G-28 will range from and, therefore, earn
                 approximately $72,242 if additional wages.
                 filed by in-house lawyers --An H-2B worker with
                 to approximately $96,715 an employer that is
                 if filed by outsourced not complying with H-
                 lawyers. 2B program
                 --The total estimated costs requirements would
                 associated with filing have additional
                 Form I-907 if it is filed flexibility in
                 with Form I-129 is porting to another
                 $111,549 if filed by human employer's certified
                 resource specialists. The position.
                 total estimated costs --This provision would
                 associated with filing ensure employers will
                 Form I-907 would range be able to hire the H-
                 from approximately $92,052 2B workers they need.
                 if filed by an in-house
                 lawyer to approximately
                 $94,625 if filed by an
                 outsourced lawyer.
                 --The total estimated costs
                 associated with the
                 portability provision
                 ranges from $339,808 to
                 $366,865, depending on the
                 filer.
                 --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.
                [[Page 4748]]
                
                 --DHS and DOL intend --Employers will have to --DOL and DHS audits
                 to conduct a number comply with audits for an will yield evidence
                 of audits during the estimated total of the efficacy of
                 period of temporary opportunity cost of time attestations in
                 need to verify of $290,400. enforcing compliance
                 compliance with H-2B --It is expected both DHS with H-2B
                 program requirements, and DOL will be able to supplemental cap
                 including the shift resources to be able requirements.
                 irreparable harm to conduct these audits --Conducting a
                 standard as well as without incurring significant number of
                 other key worker additional costs. However, audits will
                 protection provisions the Departments will incur discourage
                 implemented through opportunity costs of time. uncorroborated
                 this rule. The audits are expected to attestations.
                 take a total of
                 approximately 6,000 hours
                 and cost approximately
                 $467,820.
                Familiarization Cost............... --Petitioners or their --Petitioners or their --Petitioners will
                 representatives with representatives will need have the necessary
                 familiarize to read and understand the information to take
                 themselves with the rule at an estimated total advantage of and
                 rule. opportunity costs of time comply with the
                 that ranges from $567,986 provisions of this
                 to $827,774. rule.
                ----------------------------------------------------------------------------------------------------------------
                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.\128\ 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).\129\ 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 available.\130\
                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.
                ---------------------------------------------------------------------------
                 \128\ Revised effective 1/18/2009; 73 FR 78104; 74 FR 2837.
                 \129\ 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).
                 \130\ 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. On December 3, 2021,
                Congress extended this authority to eligible employers whose employment
                needs for FY 2022 cannot be met under the general fiscal year statutory
                cap.\131\ 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 20,000
                visas for FY 2022 positions with start dates on or before March 31,
                2022, for those businesses who would qualify under certain
                circumstances.
                ---------------------------------------------------------------------------
                 \131\ Sections 101 and 106(3) of Division A of Public Law 117-
                43, Continuing Appropriations Act, 2022, and section 101 of Division
                A of Public Law 117-70, Further Continuing Appropriations Act, 2022
                provide the DHS Secretary with the authority to make available
                additional H-2B visas for FY 2022 on the same terms as Section 105
                of Division O of the Consolidated Appropriations Act, 2021, Public
                Law 116-260 (FY 2021 Omnibus). This authority expires on February
                18, 2022.
                ---------------------------------------------------------------------------
                 These businesses must attest that they are suffering irreparable
                harm or will suffer impending irreparable harm without the ability to
                employ all of the H-2B workers requested on their petition. The
                Secretary has determined that up to 13,500 of the 20,000 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 2019, 2020, or 2021. The Secretary has also
                determined that up to 6,500 of the 20,000 additional visas will be
                reserved for workers who are nationals of Guatemala, Honduras, El
                Salvador, and Haiti, and that these 6,500 workers will be exempt from
                the returning worker requirement. Once the 6,500 visa limit has been
                reached, a petitioner may continue to request H-2B visas for workers
                who are nationals of Guatemala, Honduras, El Salvador, and Haiti but
                these workers must 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 suffering irreparable harm or will
                suffer impending irreparable harm without the ability to employ all of
                the H-2B workers requested on their petition and 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 employers to begin
                the H-2B filing process for positions with FY 2022 employment start
                dates on or before March 31, 2022,\132\ DHS believes that it is
                reasonable to assume that eligible petitioners for these additional
                20,000 visas will generally be those employers that have already
                completed the steps to receive an
                [[Page 4749]]
                approved TLC prior to the issuance of this rule.
                ---------------------------------------------------------------------------
                 \132\ This assumption is based on the fact that, under DOL
                regulations, employers must apply for a TLC 75 to 90 days before the
                start date of work. 20 CFR 655.15(b).
                ---------------------------------------------------------------------------
                 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
                December 1, 2021, about 3,257 TLCs for 86,627 H-2B positions were
                received with expected work start dates between October 1, 2021 and
                March 1, 2022. DOL OFLC has approved 2,469 certifications for 65,717 H-
                2B positions and is still reviewing the remaining 347 TLC requests for
                7,301 H-2B positions. DOL OFLC has denied, withdrawn, rejected, or
                returned 441 certifications for 13,609 H-2B positions.\133\ However,
                many of these certified worker positions have already been filled under
                the semi-annual cap of 33,000 and, for approximately 16 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.\134\ Additionally, based on the average TLC
                requests received for work start dates between March 2 and 31 during FY
                2019-2021, DOL OFLC estimates that it may receive another 65 TLC
                requests covering approximately 2,100 H-2B worker positions for the
                remainder of the first half visa allotment period ending March 31,
                2022. The total universe of approved, pending, and projected future
                TLCs, as of December 1, 2021, is 2,881 for 75,118 H-2B worker
                positions.\135\ Assuming 16 percent of the approved, pending, and
                projected 75,118 H-2B worker petitions will be exempt from the
                statutory visa cap, we estimate applications requesting approximately
                63,099 H-2B beneficiaries.\136\
                ---------------------------------------------------------------------------
                 \133\ As of December 1, 2021, DOL OFLC had denied 235
                applications for 6,375 positions and rejected 74 applications for
                1,063 positions. Employers had withdrawn 132 applications for 6,171
                positions. This totals 441 applications for 13,609 positions either
                denied, rejected, or withdrawn.
                 \134\ Of the 65,717 certified H-2B worker positions,
                approximately 14 percent (9,458 certified H-2B worker positions) may
                be employed by employers under a cap exempt status. Of the 7,301 H-
                2B workers positions requested for certification and still under DOL
                review, approximately 26 percent (1,933 pending H-2B worker
                positions) may be employed by employers under a cap exempt status.
                This totals 11,391 H-2B workers positions associated with approved
                and pending TLCs where the H-2B worker may be employed by the
                employer under a cap exempt status; or 16 percent of all 73,018
                positions associated with approved and pending TLCs.
                 \135\ Calculation for petitioners: 2,469 approved TLCs + 347
                pending + 65 projected future TLCs = 2,881 approved, pending, and
                project future TLCs.
                 Calculation for beneficiaries: 65,717 positions associated with
                approved TLCs + 7,301 positions associated with pending TLCs+ 2,100
                positions associated with projected future TLCs = 75,118 positions
                associated with approved, pending, and projected future TLCs.
                 \136\ Calculation: 75,118 approved, pending, and projected H-2B
                worker positions * 84% of requested workers not being exempt from
                the statutory cap = 63,099 requested H-2B beneficiaries subject to
                the statutory cap.
                ---------------------------------------------------------------------------
                 Of the expected 2,881 certified Applications for Temporary
                Employment Certification, USCIS data shows that 1,655 H-2B petitions
                for 40,749 positions with approved certifications were already filed
                toward the first semi-annual cap of 33,000 visas.\137\ Therefore, we
                estimate that approximately 1,226 Applications for Temporary Employment
                Certification may be filed towards this FY 2022 supplemental cap.\138\
                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/Haiti 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.
                ---------------------------------------------------------------------------
                 \137\ USCIS, Office of Performance and Quality, Data pulled on
                December 2, 2021.
                 \138\ Calculation: 2,881 approved, pending, and projected TLCs -
                1,665 petitions for H-2B workers = 1,226 expected additional
                petitions for H-2B workers.
                ---------------------------------------------------------------------------
                Population That Files Form G-28, Notice of Entry of Appearance as
                Attorney or Accredited Representative
                 If a lawyer 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.\139\ Using data from FY 2017 to FY 2021, we estimate that
                approximately 44.43 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. Therefore, we estimate that 545 Forms I-129 and Forms G-28 will
                be filed by in-house or outsourced lawyers, and that 681 Forms I-129
                will be filed by human resources (HR) specialists.\140\
                ---------------------------------------------------------------------------
                 \139\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28.
                 \140\ Calculation: 1,226 estimated additional petitions * 44.43
                percent of petitions filed by a lawyer = 545 petitions (rounded)
                filed by a lawyer.
                 Calculation: 1,226 estimated additional petitions - 545
                petitions filed by a lawyer = 681 petitions filed by an HR
                specialist.
                 Table 2--Form I-129 H-2B Petition Receipts That Were Accompanied by a Form G-28
                 [FY 2017-2021]
                ----------------------------------------------------------------------------------------------------------------
                 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
                 a Form G-28 received a Form G-28
                ----------------------------------------------------------------------------------------------------------------
                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
                2021............................................................ 4,229 9,159 46.17
                 -----------------------------------------------
                 2017-2021 Total............................................. 15,239 34,302 44.43
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on
                 April 8, 2021 and December 2, 2021.
                [[Page 4750]]
                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. Using data from FY 2017 to FY 2021,
                USCIS estimates that approximately 93.67 percent of Form I-129 H-2B
                petitioners will 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 1,148 Forms I-907 will be
                filed with the Forms I-129 as a result of this rule.\141\ Of these
                1,148 premium processing requests, we estimate that 510 Forms I-907
                will be filed by in-house or outsourced lawyers and 638 will be filed
                by HR specialists.\142\
                ---------------------------------------------------------------------------
                 \141\ Calculation: 1,226 estimated additional petitions * 93.67
                percent premium processing filing rate = 1,148 (rounded) additional
                Form I-907.
                 \142\ Calculation: 1,148 additional Form I-907 * 44.43 percent
                of petitioners represented by a lawyer = 510 (rounded) additional
                Form I-907 filed by a lawyer.
                 Calculation: 1,148 additional Form I-907 - 510 additional Form
                I-907 filed by a lawyer = 638 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 2017-2021]
                ----------------------------------------------------------------------------------------------------------------
                 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
                ----------------------------------------------------------------------------------------------------------------
                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
                2021............................................................ 8,646 9,159 94.40
                 -----------------------------------------------
                 2017-2021 Total............................................. 32,132 34,302 93.67
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS Claims3 database, queried using the SMART utility by the USCIS Office of Policy and Strategy on
                 April 8, 2021 and December 2, 2021.
                Population That Files Form ETA-9142-B-CAA-5, 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 and Public Laws 117-43 and 117-70
                 Petitioners seeking to take advantage of the FY 2022 H-2B
                supplemental visa cap will need to file a Form ETA-9142-B-CAA-5
                attesting that their business is suffering irreparable harm or will
                suffer impending irreparable harm without the ability to employ all of
                the H-2B workers requested on the petition, comply with third party
                notification, and maintain required records, among other requirements.
                DOL estimates that each of the 1,226 petitioners will need to file a
                Form ETA-9142-B-CAA-5 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 20,000 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.\143\ We use the number of approved, pending, and projected TLCs
                (2,881) to estimate the potential number of Form I-129 H-2B petitions
                that incur impacts associated with this porting provision. USCIS uses
                the number of Forms I-129 filed for extension of stay due to change of
                employer relative to the Forms I-129 filed for new employment from FY
                2011 to FY 2020, the ten years prior to the implementation of first
                portability provision in a H-2B supplemental cap TFR, to estimate the
                baseline rate. We compare the average rate from FY 2011-FY 2020 to the
                rate from FY 2021. Table 4 presents the number of Form I-129 filed
                extensions of stay due to change of employer and Form I-129 filed for
                new employment for Fiscal year 2011 through 2020. The average rate of
                extension of stay due to change of employer compared to new employment
                is approximately 10.5 percent.
                ---------------------------------------------------------------------------
                 \143\ 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 FY 2020, 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.
                [[Page 4751]]
                 Table 4--Numbers of Form I-129 H-2B Petitions Filed for Extension of Stay Due to Change of Employer and Form I-
                 129 H-2B Petitions Filed for New Employment
                 [FY 2011-FY 2020]
                ----------------------------------------------------------------------------------------------------------------
                 Rate of
                 Form I-129 H- extension to
                 2B petitions stay due to
                 filed for Form I-129 H- change of
                 Fiscal year extension of 2B petitions employer
                 stay due to filed for new filings
                 change of employment relative to
                 employer new employment
                 filings
                ----------------------------------------------------------------------------------------------------------------
                2011............................................................ 360 3,887 0.093
                2012............................................................ 293 3,688 0.079
                2013............................................................ 264 4,120 0.064
                2014............................................................ 314 4,666 0.067
                2015............................................................ 415 4,596 0.090
                2016............................................................ 427 5,750 0.074
                2017............................................................ 556 5,298 0.105
                2018............................................................ 744 5,136 0.145
                2019............................................................ 812 6,251 0.130
                2020............................................................ 804 3,997 0.201
                 -----------------------------------------------
                 Ten-Year Average............................................ .............. .............. 0.105
                ----------------------------------------------------------------------------------------------------------------
                Source: USCIS, Office of Performance and Quality, Data pulled on December 6, 2021.
                 In FY 2021, the first year a H-2B supplemental cap included a
                portability provision, there were 1,113 Forms I-129 filed for extension
                of stay due to change of employer compared to 7,208 Forms I-129 filed
                for new employment.\144\ This is a rate of 15.4 percent, which is above
                our earlier 10.5 percent rate, and is our estimate of the rate expected
                in future years with a portability provision in the supplemental visa
                allocation.\145\ Using the 2,881 as our estimate for the number of
                Forms I-129 filed for H-2B new employment in the first half of FY 2022,
                we estimate that 303 Forms I-129 for extension of stay due to change of
                employer would be filed in absence of this provision.\146\ With this
                portability provision, we estimate that 444 Forms I-129 for extension
                of stay due to change of employer would be filed.\147\ This difference
                results in 141 additional Forms I-129 as a result of this
                provision.\148\
                ---------------------------------------------------------------------------
                 \144\ USCIS, Office of Performance and Quality, Data pulled on
                December 6, 2021.
                 \145\ Calculation: 1,113 Form I-129 filed for extension of stay
                due to change of employer/7,208 Form I-129 filed for new employment
                = 15.4 percent.
                 \146\ Calculation: 2,881 Form I-129 H-2B petitions filed for new
                employment * 10.5 percent = 303 estimated number of Form I-129 H-2B
                petitions filed for extension of stay due to change of employer, no
                portability provision.
                 \147\ Calculation: 2,881 Form I-129 H-2B petitions filed for new
                employment * 15.4 percent = 444 estimated number of Form I-129 H-2B
                petitions filed for extension of stay due to change of employer,
                with a portability provision.
                 \148\ Calculation: 444 estimated number of Form I-129 H-2B
                petitions filed for extension of stay due to change of employer,
                with a portability provision - 303 estimated number of Form I-129 H-
                2B petitions filed for extension of stay due to change of employer,
                no portability provision = 141 Form I-129 H-2B petition increase as
                a result of portability provision.
                ---------------------------------------------------------------------------
                Population Affected by the Audits
                 DHS and DOL each intend to conduct 250 audits of employers hiring
                H-2B workers under this time-limited FY 2022 H-2B supplemental cap
                rule. The determination of which employers are audited will be done at
                the discretion of the Departments, though the agencies will coordinate
                so that no employer is audited by both DOL and DHS. Therefore, a total
                of 500 audits on employers that petition for H-2B workers under this
                TFR will be conducted by the Federal Government.
                Population Expected To Familiarize Themselves With This Rule
                 DHS expects the population that employers with approved, pending,
                or projected Applications for Temporary Employment Certification will
                need to familiarize themselves with this rule; an estimated 2,881
                employers. We expect familiarization with the rule will be performed by
                a HR specialist, in-house lawyer, or outsourced lawyer, and this will
                be done at the same rate as petitioners who file a Form G-28; an
                estimated 44.43 percent performed by lawyers. Therefore we estimate
                that 1,280 lawyers will incur familiarization costs and 1,601 HR
                specialists will incur familiarization costs.\149\
                ---------------------------------------------------------------------------
                 \149\ Calculation for lawyers: 2,881 approved, pending, and
                projected applicants * 44.43 percent represents by a lawyer = 1,280
                (rounded) represented by a lawyer.
                 Calculation for HR specialists: 2,881 approved, pending, and
                projected applicants--1,280 represented by a lawyer = 1,601
                represented by a HR specialist
                ---------------------------------------------------------------------------
                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 employers filing H-2B petitions
                must submit an additional fee of $150.\150\ The total estimated cost
                from filing fees for H-2B petitions using Form I-129 is $610.\151\ The
                estimated time to complete and file Form I-129 for H-2B classification
                is 4.34 hours.\152\ The petition 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 44.43 percent of Form I-129 H-2B petitions will be filed
                by an in-house or outsourced lawyer, and the remainder (55.57 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.
                ---------------------------------------------------------------------------
                 \150\ See Form I-129 instructions at https://www.uscis.gov/i-129
                (accessed December 1, 2021). See also 8 U.S.C. 1184(c)(13).
                 \151\ Calculation: $460 current filing fee for Form I-129 + $150
                additional filing fee for employers filing H-2B petitions = $610
                total estimated filing fees for H-2B petitions using Form I-129.
                 \152\ 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 (accessed December 1, 2021).
                ---------------------------------------------------------------------------
                 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
                [[Page 4752]]
                $33.38 as the base wage rate.\153\ 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.\154\ 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.\155\
                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.\156\ 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 lawyers may be
                much higher than in-house lawyers and therefore uses a higher
                compensation-to-wage multiplier of 2.5 for outsourced lawyers.\157\ DHS
                estimates the total compensation for an outsourced lawyer is $178.98
                per hour.\158\ If a lawyer submits Form I-129 on behalf of the
                petitioner, Form G-28 must accompany the Form I-129 petition.\159\ DHS
                estimates the time burden to complete and submit Form G-28 for a lawyer
                is 50 minutes (0.83 hour, rounded).\160\ 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.\161\ 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.\162\
                The total cost, including filing fees and opportunity costs of time,
                per petitioner to file Form I-129 is approximately $820.06 if HR
                specialists file, $1,146.70 if an in-house lawyer files, and $1,535.33
                if an outsourced lawyer files the form.\163\
                ---------------------------------------------------------------------------
                 \153\ 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
                December 1, 2021).
                 \154\ 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 December 1,
                2021).
                 \155\ Calculation: $38.91 mean Total Employee Compensation per
                hour for civilian workers/$26.85 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, Employer Costs for Employee Compensation--June 2021 Table
                1. Employer Costs for Employee Compensation by ownership, Civilian
                workers, available at https://www.bls.gov/news.release/archives/ecec_09162021.pdf (accessed December 1, 2021).
                 \156\ 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).
                 \157\ The DHS ICE ``Safe-Harbor Procedures for Employers Who
                Receive a No-Match Letter'' used a multiplier of 2.5 to convert in-
                house lawyer wages to the cost of outsourced lawyer 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]. Also see
                ``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.'' May 25, 2021, 86 FR 28198. Available at
                https://www.regulations.gov/document/USCIS-2021-0007-0001.
                 \158\ Calculation: Average hourly wage rate of lawyers x
                benefits-to-wage multiplier for outsourced lawyer = $71.59 x 2.5 =
                $178.98 (rounded).
                 \159\ USCIS, Filing Your Form G-28, https://www.uscis.gov/forms/filing-your-form-g-28 (accessed December 1, 2021).
                 \160\ USCIS, G-28, Notice of Entry of Appearance as Attorney or
                Accredited Representative Instructions. See https://www.uscis.gov/g-28.
                 \161\ Calculation: 0.83 hours to file Form G-28 + 4.34 hours to
                file Form I-129 = 5.17 hours to file both forms.
                 \162\ 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).
                 \163\ Calculation if an HR specialist files Form I-129 and
                filing fee: $210.06 opportunity cost of time + $610 in filing fees =
                $820.06.
                 Calculation if an in-house lawyer files Forms I-129, G-28, and
                filing fee: $536.70 opportunity cost of time + $610 in filing fees =
                $1,146.70.
                 Calculation if outsourced lawyer files Forms I-129, G-28 and
                filing fee: $925.33 opportunity cost of time + $610 in filing fees =
                $1,535.33.
                ---------------------------------------------------------------------------
                Cost to Petitioners
                 As mentioned in Section 3, the estimated population impacted by
                this rule is 1,226 eligible petitioners who are projected to apply for
                the additional 20,000 H-2B visas for the first half of FY 2022, with
                6,500 of the additional visas reserved for employers that will petition
                for workers who are nationals of the Northern Triangle countries and
                Haiti, 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 681 petitions
                will be filed by HR specialists using Form I-129 and an additional 545
                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 $448,461 (rounded).\164\ DHS estimates total cost to
                file Form I-129 petitions and Form G-28 if filed by lawyers will range
                from $624,952 (rounded) if only in-house lawyers file these forms to
                $836,755 (rounded) if only outsourced lawyers file them.\165\
                Therefore, the estimated total cost to file Form I-129 and Form G-28
                range from $1,183,413 and $1,395,216.\166\
                ---------------------------------------------------------------------------
                 \164\ Calculation: $820.06 opportunity costs for HR specialist
                plus filing fees * 681 Form I-129 filed by HR specialists = $558,461
                (rounded) total cost of Form I-129 filed by HR specialists.
                 \165\ Calculation: $1,146.70 opportunity costs for in-house
                lawyers plus filing fees * 545 Form I-129 and Form G-28 filed by in-
                house lawyers = $624,952 (rounded) total cost of Form I-129 and Form
                G-28 filed by in-house lawyers.
                 Calculation: $1,535.33 opportunity costs for outsourced lawyers
                plus filing fees * 545 Form I-129 and Form G-28 filed by outsourced
                lawyers = $836,755 (rounded) total cost of Form I-129 and Form G-28
                filed by outsourced lawyers.
                 \166\ Calculation: $558,461 total cost of Form I-129 filed by HR
                specialists + $624,952 total cost of Form I-129 and Form G-28 filed
                by in-house lawyers = $1,183,413 estimated total costs to file Form
                I-129 and G-28.
                 Calculation: $558,461 total cost of Form I-129 filed by HR
                specialists + $836,755 total cost of Form I-129 and G-28 filed by
                outsourced lawyers = $1,395,216 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).\167\ 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.\168\ Therefore, the total filing cost to complete
                and submit Form I-907 per petitioner is approximately $1,528.07
                [[Page 4753]]
                for HR specialists, $1,560.21 for in-house lawyers, and $1,603.81 for
                outsourced lawyers.\169\
                ---------------------------------------------------------------------------
                 \167\ See Form I-907 instructions at https://www.uscis.gov/i-907
                (accessed December 1, 2021).
                 \168\ 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).
                 \169\ 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 638 Form I-907
                will be filed by HR specialists and an additional 510 Form I-907 will
                be filed by lawyers. DHS estimates the total cost of Form I-907 filed
                by HR specialists is about $974,909 (rounded).\170\ DHS estimates total
                cost to file Form I-907 filed by lawyers range from about $795,707
                (rounded) for only in-house lawyers to $817,943 (rounded) for only
                outsourced lawyers.\171\ The estimated total cost to file Form I-907
                range from $1,770,616 and $1,792,852.\172\
                ---------------------------------------------------------------------------
                 \170\ Calculation: $1,528.07 opportunity costs for HR specialist
                plus filing fees * 638 Form I-907 filed by HR specialists = $974,909
                (rounded) total cost of Form I-907 filed by HR specialists.
                 \171\ Calculation: $1,560.21 opportunity costs for in-house
                lawyers plus filing fees * 510 Form I-907 filed by in-house lawyers
                = $795,707 (rounded) total cost of Form I-907 filed by in-house
                lawyers.
                 Calculation: $1,603.81 opportunity costs for outsourced lawyers
                plus filing fees * 510 Form I-907 filed by outsourced lawyers =
                $817,943 (rounded) total cost of Form I-907 filed by outsourced
                lawyers.
                 \172\ Calculation: $974,909 total cost of Form I-907 filed by HR
                specialists + $795,707 total cost of Form I-907 filed by in-house
                lawyers = $1,770,616 estimated total costs to file Form I-907.
                 Calculation: $974,909 total cost of Form I-129 filed by HR
                specialists + $817,943 total cost of Form I-907 filed by outsourced
                lawyers = $1,792,852 estimated total costs to file Form I-907.
                ---------------------------------------------------------------------------
                Cost To File Form ETA-9142-B-CAA-5
                 Form ETA-9142-B-CAA-5 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 compensation per hour for
                an HR specialist ($48.40), the opportunity cost of time for an HR
                specialist to complete the attestation form, notify third parties, and
                retain records relating to the returning worker requirements is
                approximately $48.40.\173\
                ---------------------------------------------------------------------------
                 \173\ 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 compensation per hour for a financial analyst is $67.37.\174\
                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.\175\
                ---------------------------------------------------------------------------
                 \174\ 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).
                 \175\ 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
                suffering irreparable harm or will suffer impending irreparable
                harm) = $336.85.
                ---------------------------------------------------------------------------
                 As discussed previously, DHS believes that the estimated 1,226
                remaining certifications for the first half of FY 2022 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 $59,338 (rounded) and for financial
                analysts is about $412,978 (rounded).\176\ The total cost is estimated
                to be approximately $472,316.\177\
                ---------------------------------------------------------------------------
                 \176\ Calculations: Cost for HR Specialists: $48.40 opportunity
                cost of time for an HR specialist to comply with attestation
                requirements * 1,226 estimated additional petitions = $59,338
                (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 * 1,226 estimated
                additional petitions = $412,978 (rounded) for financial analysts to
                comply with attestation requirements.
                 \177\ Calculation: $59,338 total cost for HR specialist to
                comply with attestation requirement + $412,978 total cost for
                financial analysts to comply with attestation requirements =
                $472,316 total cost to comply with attestation requirements.
                ---------------------------------------------------------------------------
                Cost To Conduct Recruitment
                 An employer that files Form ETA-9142B-CAA-5 and the I-129 petition
                45 or more days after the certified start date of work must conduct
                additional 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).
                 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,
                2020. Employers must also disclose the terms of the job order to these
                workers as required by the rule.
                 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.
                 Finally, the employer is required to provide a copy of the job
                order to the bargaining representative for its 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).
                 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.\178\ Using the 1,226 as the
                estimated number of petitioners, the estimated total cost of this
                provision is approximately $178,015 (rounded).\179\ 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.
                ---------------------------------------------------------------------------
                 \178\ 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.
                 \179\ Calculation: 1,226 estimated number of petitioners *
                $145.20 per petitioner cost to conduct additional recruitment =
                $178,015 (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
                [[Page 4754]]
                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. The printing cost
                associated with posting the notification (assuming that the
                notification is written) is $0.49 per posting.\180\ The estimated total
                cost to petitioners to print copies is approximately $601
                (rounded).\181\ Print costs may be higher if employers have to print
                posters in multiple languages.
                ---------------------------------------------------------------------------
                 \180\ Cost to make copies $0.49. See https://www.fedex.com/en-us/office/copy-and-print-services.html (accessed December 6, 2021).
                 \181\ Calculation: $0.49 per posting * 1,226 petitioners = $601
                (rounded) 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 (2,881) would be able to file a petition under this
                provision, and estimate that approximately 141 additional Form I-129 H-
                2B petitions will be filed as a result of 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 44.43 percent of these Form I-129 petitions will be
                filed by an in-house or outsourced lawyer. Therefore, we expect that 63
                of these petitions will be filed by a lawyer and the remaining 78 will
                be filed by a HR specialist. As previously discussed, the estimated
                cost to file a Form I-129 H-2B petition is $820.06 for an HR
                specialist; and the estimated cost to file a Form I-129 H-2B petition
                with accompanying Form G-28 is approximately $1,146.70 for an in-house
                lawyer and $1,535.33 for an outsourced lawyer. Therefore, we estimate
                the cost of the additional Forms I-129 from the portability provision
                for HR specialists is $63,965.\182\ The estimated cost of the
                additional Forms I-129 accompanied by Forms G-28 from the portability
                provision for lawyers is $72,242 if filed by in-house lawyers and
                $96,726 if filed by outsourced lawyers.\183\
                ---------------------------------------------------------------------------
                 \182\ Calculation: $820.06 estimated cost for an HR specialist
                to file a Form I-129 H-2B petition * 78 petitions = $63,965.
                 \183\ Calculation for an in-house lawyer: $1,146.70 estimated
                cost for an in-house lawyer to file a Form I-129 H-2B petition and
                accompanying Form G-28 * 63 petitions = $72,242 (rounded).
                 Calculation for an outsourced lawyer: $1,535.33 estimated cost
                for an outsourced lawyer to file a Form I-129 H-2B petition and
                accompanying Form G-28 * 63 petitions = $96,726 (rounded).
                ---------------------------------------------------------------------------
                 Previously in this analysis, we estimated that about 93.67 percent
                of Form I-129 H-2B petitions are filed with Form I-907 for premium
                processing. As a result of this provision, we expect that an additional
                132 Forms I-907 will be filed.\184\ We expect 59 of those Forms I-907
                will be filed by a lawyer and the remaining 73 will be filed by an HR
                specialist.\185\ As previously discussed, the estimated cost to file a
                Form I-907 is $1,528.07 for an HR specialist; and the estimated cost to
                file a Form I-907 is approximately $1,560.21 for an in-house lawyer and
                $1,603.81 for an outsourced lawyer. The estimated total cost of the
                additional Forms I-907 if HR specialists file is $111,549.\186\ The
                estimated total cost of the additional Forms I-907 is $92,052 if filed
                by in-house lawyers and $94,625 if filed by outsourced lawyers.\187\
                ---------------------------------------------------------------------------
                 \184\ Calculation: 144 estimated additional Form I-129 H-2B
                petitions * 93.67 percent accompanied by Form I-907 = 132 (rounded)
                additional Form I-907.
                 \185\ Calculation: 132 additional Form I-907 * 44.43 percent
                filed by a lawyer = 59 (rounded) Form I-907 filed by a lawyer. 132
                Form I-907--59 Form I-907 filed by a lawyer = 73 Form I-907 filed by
                a HR specialist.
                 \186\ Calculation: $1,528.07 for a HR specialist to file a Form
                I-907 * 73 forms = $111,549 (rounded).
                 \187\ Calculation for an in-house lawyer: $1,560.21 for an in-
                house lawyer to file a Form I-907 * 59 forms = $92,052 (rounded).
                 Calculation for an outsourced lawyer: $1,603.81 for an
                outsourced lawyer to file a Form I-907 * 59 forms = $94,625
                (rounded).
                ---------------------------------------------------------------------------
                 The estimated total cost of this provision ranges from $339,808 to
                $366,865 depending on what share of the forms are filed by in-house or
                outsourced lawyers.\188\
                ---------------------------------------------------------------------------
                 \188\ Calculation for HR specialists and in-house lawyers:
                $63,965 for HR specialists to file Form I-129 H-2B petitions +
                $72,242 for in-house lawyers to file Form I-129 and the accompanying
                Form G-28 + $111,549 for HR specialists to file Form I-907 + $92,052
                for in-house lawyers to file Form I-907 = $339,808.
                 Calculation for HR specialists and outsourced lawyers: $63,965
                for HR specialists to file Form I-129 H-2B petitions + $96,726 for
                outsourced lawyers to file Form I-129 and the accompanying Form G-28
                + $111,549 for HR specialists to file Form I-907 + $94,625 for
                outsourced lawyers to file Form I-907 = $366,865.
                ---------------------------------------------------------------------------
                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.\189\ 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.\190\ Therefore, the total estimated cost to employers to
                comply with audits is $290,400.\191\
                ---------------------------------------------------------------------------
                 \189\ The number in hours for audits was provided by the USCIS,
                Service Center Operations.
                 \190\ Calculation: $48.40 hourly opportunity cost of time for an
                HR specialist * 12 hours to comply with an audit = $580.80 per
                audited employer.
                 \191\ Calculation: 500 audited employers * $580.80 opportunity
                cost of time to comply with an audit = $290,400.
                ---------------------------------------------------------------------------
                Familiarization Costs
                 We expect that petitioners or their representatives would need to
                read and understand this rule if they seek to take advantage of the
                supplemental cap. As a result we expect this rule would impose one-time
                familiarization costs associated with reading and understanding this
                rule. As shown previously, we estimate that approximately 2,881
                petitioners may take advantage of the provisions of this rule, and that
                1,280 of these petitioners are expected to be represented by a lawyer
                and 1,601 are expected to be represented by a HR representative.
                 To estimate the cost of rule familiarization, we estimate the time
                it will take to read and understand the rule by assuming a reading
                speed of 238 words per minute.\192\ This rule has approximately 38,000
                words. Using a reading speed of 238 words per minute, DHS estimates it
                will take approximately 2.7 hours to read and become familiar with this
                rule.\193\
                ---------------------------------------------------------------------------
                 \192\ Brysbaert, Marc (2019, April 12). How many words do we
                read per minute? A review and meta-analysis of reading rate. https://doi.org/10.31234/osf.io/xynwg (accessed July 30, 2021). We use the
                average speed for silent reading of English nonfiction by adults.
                 \193\ Calculation: 32,000 words/238 words per minute = 134
                (rounded) minutes. 134 minutes/60 minutes per hour = 2.2 (rounded)
                hours.
                ---------------------------------------------------------------------------
                 The estimated hourly total compensation for a HR specialist, in-
                house lawyer, and outsourced lawyer are $48.40, $103.81, and $178.98
                respectively. The estimated opportunity cost of time for each of these
                filers to familiarize themselves with the rule are $130.68, $280.29,
                and $483.25 respectively.\194\ The estimated total
                [[Page 4755]]
                opportunity cost of time for 1,601 HR specialists to familiarize
                themselves with this rule is approximately $209,219. The estimated
                total opportunity cost of time for 1,280 lawyers to familiarize
                themselves with this rule is approximately $358,767 if they are all in-
                house lawyers and $618,555 if they are all outsourced lawyers. The
                estimated total opportunity costs of time for petitioners or their
                representatives to familiarize themselves with this rule ranges from
                $567,986 to $827,774.
                ---------------------------------------------------------------------------
                 \194\ Calculation: Total respective hourly compensation (HR
                $48.40, In-house Lawyer $103.81, or Outsourced Lawyer $178.98)*2.2
                hours.
                ---------------------------------------------------------------------------
                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-5, as
                well as contacting and 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 $1,183,413 to $1,395,216, depending on the filer.
                The estimated total cost of filing Form I-907 ranges from $1,770,616 to
                $1,792,852, depending on the filer. The estimated total cost of filing
                and complying with Form ETA-9142-B-CAA-5 is about $472,316. The
                estimated total cost of conducting additional recruitment is about
                $178,015. The estimated total cost of the COVID-19 protection provision
                is approximately $601. The estimated cost of the portability provision
                ranges from $339,808 to $366,865, depending on the filer. The estimated
                total cost for employers to comply with audits is $290,400. The
                estimated total costs for petitioners or their representatives to
                familiarize themselves with this rule ranges from $567,986 to $827,774,
                depending on the filer. The total estimated cost to petitioners ranges
                from $4,803,155 to $5,324,039, depending on the filer.\195\
                ---------------------------------------------------------------------------
                 \195\ Calculation of lower range: $1,183,413 + $1,770,616 +
                $472,316 + $178,015 + $339,808 + $601 + $290,400 + $567,986=
                $4,803,155.
                 Calculation of upper range: $1,395,216 + $1,792,852 + $472,316 +
                $178,015 + $366,865 + $601 + $290,400 + $827,774 = $5,324,039.
                ---------------------------------------------------------------------------
                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.\196\ 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 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.
                ---------------------------------------------------------------------------
                 \196\ See INA section 286(m), 8 U.S.C. 1356(m).
                ---------------------------------------------------------------------------
                 Both DOL and DHS intend to conduct a significant number of 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.\197\ USCIS
                anticipates that a Federal employee at a GS-13 Step 5 salary will
                typically conduct these audits for each agency. The base pay for a GS-
                13 Step 5 in the Washington, DC locality area is $117,516.\198\ The
                hourly wage for this salary is approximately $56.50.\199\ 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.\200\ 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.\201\ The total opportunity costs of time for Federal workers to
                conduct audits is estimated to be $467,820.\202\
                ---------------------------------------------------------------------------
                 \197\ Calculation: 12 hours to conduct an audit * 500 audits =
                6,000 total hours to conduct audits.
                 \198\ 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 December 6, 2021).
                 \199\ Calculation: $117,516 GS 13-5 Washington, DC locality
                annual salary/2080 annual hours = $56.50 (rounded).
                 \200\ 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 December 6, 2021).
                 \201\ 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.
                 \202\ 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 Departments assume that employers will incur the costs of this
                rule and other costs associated with hiring H-2B workers if the
                expected benefits of those workers exceed the expected costs. We assume
                that employers expect some level of net benefit from being able to hire
                additional H-2B workers. However, the Departments do not collect or
                require data from H-2B employers on the profits from hiring these
                additional workers to estimate this increase in net benefits.
                 The inability to access H-2B workers for some entities is currently
                causing irreparable harm or will cause their businesses to suffer
                irreparable harm in the near future. 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 suffering
                irreparable harm or will suffer impending irreparable harm.
                Benefits to Workers
                 The Departments assume that workers will only incur the costs of
                this rule and other costs associated with obtaining a
                [[Page 4756]]
                H-2B position if the expected benefits of that position exceed the
                expected costs. We assume that H-2B workers expect some level of net
                benefit from being able to work for H-2B employers. However, the
                Departments do not have sufficient data to estimate this increase in
                net benefits and lack the necessary resources to investigate this in a
                timely manner. This rule is not expected to impact wages because DOL
                prevailing wage regulations apply to all H-2B workers covered by this
                rule. Additionally, the RIA shows that employers incur costs in
                conducting additional recruitment of U.S. workers and attesting to
                irreparable harm from current labor shortfall. These costs suggest
                employers are not taking advantage of a large supply of foreign labor
                at the expense of domestic 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. The
                current analysis does not seek to quantify or monetize costs or
                benefits that occur outside 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 current or impending
                irreparable harm made possible through the granting of supplemental
                visas in this rule could ensure that U.S. workers--who otherwise may be
                vulnerable if H-2B workers were not given visas--do not lose their
                jobs.
                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),\203\ 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.
                ---------------------------------------------------------------------------
                 \203\ 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 December 8, 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
                [[Page 4757]]
                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 FY 2022 for positions with start dates on or
                before March 31, 2022 based on the Secretary of Homeland Security's
                determination, in consultation with the Secretary of Labor, consistent
                with the FY 2021 Omnibus and Public Laws 117-43 and 117-70. 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 20,000 visas for noncitizens who
                may receive H-2B nonimmigrant visas, of which 13,500 are for returning
                workers (persons issued H-2B visas or were otherwise granted H-2B
                status in Fiscal Years 2019, 2020, or 2021). 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, 2022 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 20,000 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 332,000,000 (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
                 The Office of Information and Regulatory Affairs has determined
                that 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.
                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, and Public Laws 117-43 and 117-70 Form ETA-
                9142-B-CAA-5.
                 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-5, 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-5 to make
                attestations regarding, for example, irreparable harm and 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
                6,500 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
                March 29, 2022. 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 Public Laws 117-43 and 117-
                70, on the same terms as Section 105 of Division O of the FY 2021
                Omnibus, which provided 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
                20,000 visas for FY 2022 for certain H-2B workers with start dates on
                or before March 31, 2022, for U.S.
                [[Page 4758]]
                businesses who attest that they are suffering irreparable harm or will
                suffer impending 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 2019, 2020, or 2021,
                unless the worker is one of the 6,500 nationals of one of the Northern
                Triangle countries and Haiti 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, and
                Public Laws 117-43 and 117-70.
                 Agency Form Number: Form ETA-9142-B-CAA-5.
                 Affected Public: Private Sector--businesses or other for-profits.
                 Total Estimated Number of Respondents: 1,226.
                 Average Responses per Year per Respondent: 1.
                 Total Estimated Number of Responses: 1,226.
                 Average Time per Response: 9 hours per application.
                 Total Estimated Annual Time Burden: 11,034 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
                Public Laws 117-43 and 117-70, on the same terms as section 105 of
                Division O, FY 2021 Omnibus, (which expires on September 30, 2022).
                However, USCIS estimates that this temporary rule may result in
                approximately 1,280 additional filings of Form I-907 in fiscal year
                2022. 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
                program, Employment, Foreign officials, Health professions, Reporting
                and recordkeeping requirements, Students.
                8 CFR Part 274a
                 Administrative practice and procedure, Aliens, Cultural exchange
                program, Employment, Penalties, Reporting and recordkeeping
                requirements, Students.
                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 January 28, 2022 through January 28, 2025, the authority
                citation for part 214 continues 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 January 28, 2022 through January 28, 2025, amend Sec.
                214.2 by:
                0
                a. Adding paragraph (h)(6)(xi); and
                0
                b. Adding paragraph (h)(27).
                 The additions read as follows:
                Sec. 214.2 Special requirements for admission, extension, and
                maintenance of status.
                * * * * *
                 (h) * * *
                 (6) * * *
                 (xi) Special requirements for additional cap allocations under
                Public Laws 116-260, 117-43 and 117-70--(A) Public Law 116-260, and
                sections 101 and 106(3) of Division A of Public Law 117-43, Continuing
                Appropriations Act, 2022, and section 101 of Division A of Public Law
                117-70, Further Continuing Appropriations Act, 2022 through February
                18, 2022--
                 (1) Supplemental allocation for returning workers. Notwithstanding
                the numerical limitations set forth in paragraph (h)(8)(i)(C) of this
                section, for fiscal year 2022 only, the Secretary has authorized up to
                an additional 13,500 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, sections 101 and 106(3)
                of Division A of Public Law 117-43,
                [[Page 4759]]
                Continuing Appropriations Act, 2022, and section 101 of Division A of
                Public Law 117-70, Further Continuing Appropriations Act, 2022 through
                February 18, 2022 based on petitions requesting FY 2022 employment
                start dates on or before March 31, 2022. An alien may be eligible to
                receive an H-2B nonimmigrant visa under this paragraph (h)(6)(xi)(A)(1)
                if she or he is a returning worker. The term ``returning worker'' under
                this paragraph (h)(6)(xi)(A)(1) means a person who was issued an H-2B
                visa or was otherwise granted H-2B status in fiscal year 2019, 2020, or
                2021. Notwithstanding Sec. 248.2 of this chapter, an alien may not
                change status to H-2B nonimmigrant under this paragraph
                (h)(6)(xi)(A)(1).
                 (2) Supplemental allocation for nationals of Guatemala, El
                Salvador, Honduras (Northern Triangle countries), or Haiti.
                Notwithstanding the numerical limitations set forth in paragraph
                (h)(8)(i)(C) of this section, for fiscal year 2022 only, and in
                addition to the allocation described in paragraph (h)(6)(xi)(A)(1) of
                this section, the Secretary has authorized up to an additional 6,500
                aliens who are nationals of Guatemala, El Salvador, Honduras (Northern
                Triangle countries), or of Haiti who may receive H-2B nonimmigrant
                visas pursuant to section 105 of Division O of the Consolidated
                Appropriations Act, 2021, Public Law 116-260, and Public Laws 117-43
                and 117-70, based on petitions with FY 2022 employment start dates on
                or before March 31, 2022. Such workers are not subject to the returning
                worker requirement in paragraph (h)(6)(xi)(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)(xi)(A)(1) and must declare that they are requesting these
                workers in the attestation required under 20 CFR 655.69(a)(1). A
                petition requesting returning workers under paragraph (h)(6)(xi)(A)(1),
                which is accompanied by an attestation indicating that the petitioner
                is requesting nationals of Northern Triangle countries or Haiti, will
                be rejected, denied or, in the case of a non-frivolous petition, will
                be approved solely for the number of beneficiaries that are from the
                Northern Triangle or Haiti. Notwithstanding Sec. 248.2 of this
                chapter, an alien may not change status to H-2B nonimmigrant under this
                paragraph (h)(6)(xi)(A)(2).
                 (B) Eligibility. In order to file a petition with USCIS under this
                paragraph (h)(6)(xi), 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) Its business is suffering irreparable harm or will suffer
                impending irreparable harm (that is, permanent and severe financial
                loss) without the ability to employ all of the H-2B workers requested
                on the petition filed pursuant to this paragraph (h)(6)(xi);
                 (ii) All workers requested and/or instructed to apply for a visa
                have been issued an H-2B visa or otherwise granted H-2B status in
                fiscal year 2019, 2020, or 2021, unless the H-2B worker is a national
                of Guatemala, El Salvador, Honduras, or Haiti who is counted towards
                the 6,500 cap described in paragraph (h)(6)(xi)(A)(2) of this section;
                 (iii) The employer will comply with all Federal, State, and local
                employment-related laws and regulations, including, where applicable,
                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, or to
                reimbursement for travel to and from the nearest available vaccination
                site; and that the employer will notify any H-2B workers approved under
                the supplemental cap in paragraph (h)(6)(xi)(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)(xi)(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 2022 supplemental allocations outlined in paragraph
                (h)(6)(xi)(B) of this section, as a condition for the approval of the
                petition.
                 (vii) The employer must attest on Form ETA-9142-B-CAA-5 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 2022 supplemental allocations outlined in 20 CFR
                655.64(a) and 655.69(a), as a condition for the approval of the H-2B
                petition. The employer must further attest on Form ETA-9142-B-CAA-5
                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)(xi)(A)(1) or (2) of this section that are received
                after the applicable numerical limitation has been reached or after
                March 31, 2022, whichever is sooner. USCIS will not approve a petition
                filed pursuant to this paragraph (h)(6)(xi) on or after October 1,
                2022.
                 (D) Numerical limitations under paragraphs (h)(6)(xi)(A)(1) and (2)
                of this section. When calculating the numerical limitations under
                paragraphs (h)(6)(xi)(A)(1) and (2) of this section as authorized under
                Public Law 116-260, as extended by Public Law 117-43, and Public Law
                117-70, 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 received (including the number of workers requested when
                necessary) 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)(xi)(A)(1) or (2). 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)(xi)(A)(1) and (2), USCIS may
                [[Page 4760]]
                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)(xi)(A)(1)
                or (2) 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)(xi)(A)(1) or (2) may be received
                (in other words, if either of the numerical limits described in
                paragraph (h)(6)(xi)(A)(1) or (2) 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)(xi) expires on October 1, 2022.
                 (F) Non-severability. The requirement to file an attestation under
                paragraph (h)(6)(xi)(B)(2) of this section is intended to be non-
                severable from the remainder of this paragraph (h)(6)(xi), including,
                but not limited to, the numerical allocation provisions at paragraphs
                (h)(6)(xi)(A)(1) and (2) of this section in their entirety. In the
                event that any part of this paragraph (h)(6)(xi) is enjoined or held to
                be invalid by any court of competent jurisdiction, the remainder of
                this paragraph (h)(6)(xi) 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)(xi), as
                consistent with law.
                * * * * *
                 (27) Change of employers and portability for H-2B workers. (i) This
                paragraph (h)(27) relates to H-2B workers seeking to change employers
                during the time period specified in paragraph (h)(27)(iv) of this
                section. Notwithstanding paragraph (h)(2)(i)(D) of this section:
                 (A) An alien in valid H-2B nonimmigrant status whose new petitioner
                files a non-frivolous H-2B petition requesting an extension of the
                alien's stay on or after January 28, 2022, is authorized to begin
                employment with the new petitioner after the petition described in this
                paragraph (h)(27) 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) An alien whose new petitioner filed a non-frivolous H-2B
                petition requesting an extension of the alien's stay before January 28,
                2022 that remains pending on January 28, 2022, 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)(27)(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)(27)(i) of this section may last for up to 60 days beginning on the
                Received Date on Form 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)(27)(i)(B) of this section, the new period of employment described
                in paragraph (h)(27)(i) of this section may last for up to 60 days
                beginning on the later of either January 28, 2022 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)(27) 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)(27), the alien must
                either:
                 (A) Have been in valid H-2B nonimmigrant status on or after January
                28, 2022 and be the beneficiary of a non-frivolous H-2B petition
                requesting an extension of the alien's stay that is received on or
                after January 28, 2022, but no later than July 27, 2022; or
                 (B) Be the beneficiary of a non-frivolous H-2B petition requesting
                an extension of the alien's stay that is pending as of January 28,
                2022.
                 (C) The petitioner must comply with all Federal, State, and local
                employment-related laws and regulations, including, where applicable,
                health and safety laws, laws related to COVID-19 worker protections,
                any right to time off or paid time off for COVID-19 vaccination, or to
                reimbursement for travel to and from the nearest available vaccination
                site; 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)(27) begins at 12 a.m. on January 28, 2022, and ends at
                the end of July 27, 2022.
                * * * * *
                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 January 28, 2022 through January 28, 2025, amend Sec.
                274a.12 by adding paragraph (b)(31) to read as follows:
                Sec. 274a.12 Classes of aliens authorized to accept employment.
                * * * * *
                 (b) * * *
                 (31)(i) Pursuant to 8 CFR 214.2(h)(27) 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 January 28, 2022, 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 January 28, 2022; or
                 (B) The later of January 28, 2022 or the start date of employment
                indicated on the new H-2B petition, for petitions that are pending as
                of January 28, 2022
                 (ii) If USCIS adjudicates the new petition prior to the expiration
                of the 60-day period in paragraph (b)(31)(i) of this section and denies
                the new petition for
                [[Page 4761]]
                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)(31) 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)(27) and paragraph (b)(31)(i) of this section begins at 12
                a.m. on January 28, 2022, and ends at the end of July 27, 2022.
                * * * * *
                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), 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), 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 January 27, 2022 through September 30, 2022, add Sec.
                655.64 to read as follows:
                Sec. 655.64 Special application filing and eligibility provisions
                for Fiscal Year 2022 under the January 28, 2022 supplemental cap
                increase.
                 (a) An employer filing a petition with USCIS under 8 CFR
                214.2(h)(6)(xi) to request H-2B workers with FY 2022 employment start
                dates on or before March 31, 2022, must meet the following
                requirements:
                 (1) The employer must attest on the Form ETA-9142-B-CAA-5 that its
                business is suffering irreparable harm or will suffer impending
                irreparable harm (that is, permanent and severe financial loss) without
                the ability to employ all of the H-2B workers requested on the petition
                filed pursuant to 8 CFR 214.2(h)(6)(xi). Additionally, the employer
                must attest that it will provide documentary evidence of the applicable
                irreparable harm to DHS or DOL upon request.
                 (2) The employer must attest on Form ETA-9142-B-CAA-5 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)(xi), have been issued an H-2B visa or otherwise granted H-
                2B status during one of the last three (3) fiscal years (fiscal year
                2019, 2020, or 2021), unless the H-2B worker is a national of
                Guatemala, El Salvador, Honduras, or Haiti and is counted towards the
                6,500 cap described in 8 CFR 214.2(h)(6)(xi)(A)(2).
                 (3) The employer must attest on Form ETA-9142-B-CAA-5 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-5 that it will
                comply with all Federal, State, and local employment-related laws and
                regulations, including, where applicable, 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, or to reimbursement for travel
                to and from the nearest available vaccination site; and that the
                employer will notify any H-2B workers approved under the supplemental
                cap in 8 CFR 214.2(h)(6)(xi)(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-5 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, inform the SWA that
                the job order is being placed in connection with a previously certified
                Application for Temporary Employment Certification for H-2B workers by
                providing the unique temporary labor certification (TLC) identification
                number, 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 (AJC) 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. If a comprehensive AJC is
                not available, the employer must contact the nearest affiliate AJC
                serving the area of intended employment where work will commence to
                satisfy the requirements of this paragraph (a)(5)(ii);
                 (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, 2020,
                until the date the I-129 petition required under 8 CFR
                [[Page 4762]]
                214.2(h)(6)(xi) 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-5 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 2022 supplemental allocations outlined in this
                paragraph (a) and Sec. 655.69(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, 2022.
                 (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 January 28, 2022 through September 30, 2025, add Sec.
                655.69 to read as follows:
                Sec. 655.69 Special document retention provisions for Fiscal Years
                2022 through 2026 under Public Laws 116-260, 117-43, and 117-70.
                 (a) An employer that files a petition with USCIS to employ H-2B
                workers in fiscal year 2022 under authority for the temporary increase
                in the numerical limitation provided by Public Law 117-43 and Public
                Law 117-70 on the same terms as section 105 of Division O, of 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 the employer's business is suffering irreparable harm or
                will suffer impending irreparable harm (that is, permanent and severe
                financial loss) without the ability to employ all of the H-2B workers
                requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xi);
                 (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)(xi), have
                been issued an H-2B visa or otherwise granted H-2B status during one of
                the last three (3) fiscal years (fiscal year 2019, 2020, or 2021),
                unless the H-2B worker(s) is a national of El Salvador, Guatemala,
                Honduras, or Haiti and is counted towards the 6,500 cap described in 8
                CFR 214.2(h)(6)(xi)(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, Honduras, or Haiti as defined in 8 CFR
                214.2(h)(6)(xi)(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, 2025.
                Alejandro N. Mayorkas,
                Secretary, U.S. Department of Homeland Security.
                Martin J. Walsh,
                Secretary, U.S. Department of Labor.
                [FR Doc. 2022-01866 Filed 1-27-22; 8:45 am]
                BILLING CODE 9111-97-P; 4510-FP-P
                

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