On Thanksgiving Eve, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) jointly released an advance copy of the temporary Final Rule that will increase the FY 2025 H-2B cap by 64,716 visas. The 2025 Fiscal Year covers employment start dates from October 1, 2024 through September 30, 2025. Therefore, FY 2025 covers both 2024-25 winter-season employers and 2025 summer-season employers.
The FY2025 rule is almost identical to last year’s cap relief rule. Just like last year, the government issued cap relief for both seasons (summer and winter) in a single rule and allocates the visas separately for the separate types of employers. This Client Alert is separated by season (summer vs. winter) to provide more detail about what you need to know as a summer-season or winter-season employer, specifically.
Introductory Summary of the Visa Allocation
The 64,716 visas are to be allocated as follows (all allocations are the same as last year):
- Winter-season employers: 20,716 visas for returning workers* only, regardless of nationality. These visas will be immediately available for winter-season employers, only, as soon as the rule is published (we expect the rule to be published today or tomorrow).
- This allocation was fully used last year and the last day to file was January 9th. We expect these visas to remain available until January again this year.
- Early summer-season employers: 19,000 visas for returning workers only, regardless of nationality. These visas will be allocated to summer-season employers with start dates of April 1st through May 14th, only. These visas will not be available until around late-February or March, depending on when the summer-season cap is reached.
- This allocation was fully used last year soon after release and we expect that the 19,000 additional visas will not be enough to meet demand.
- Late summer-season employers: 5,000 visas for returning workers only, regardless of nationality. These visas will be allocated to summer-season employers with start dates of May 15th or later, only. These visas will not be available until either March or April, depending on when the summer-season cap is reached.
- This allocation was not fully used last year.
- Special Allocation Countries (available to all employers): 20,000 visas will be initially reserved for nationals of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras (the “Special Allocation”), regardless of whether or not they are returning workers. These visas will be available as soon as the rule is published for winter-season employers. They will not be available until February or March for summer-season employers, depending on when the summer-season cap is reached.
- There has been more interest and demand for H-2B visas from the above countries, and there is a chance that the additional 20,000 visas could be exhausted before all interested organizations are able to file.
- Please note: DHS seems to believe that these visas will not be fully utilized, and there will be plenty left for summer season employers, even though winter-season employers get the first chance to request them. This was true in FY 2024, and we expect that it will be true again in FY 2025.
*“Returning Workers” are classified as workers who were issued H-2B visas or held H-2B status in fiscal years 2022, 2023, or 2024. As with past supplemental cap rules, the Returning Worker requirement applies to workers requested from all other countries, but does not apply to workers from the Special Allocation countries under the separate 20,000 visa cap.
For 2025 Summer-Season Employers Only – start dates on or after 4/1/2025
The early timing of this rule’s release is good news, as it provides more predictability regarding the 2025 supplemental cap process. However, for 2025 summer-season employers, this rule does not have any immediate impact your organization or on the H-2B application process or strategy for the 2025 season.
Some additional information about the supplemental visas is as follows:
- Division into two groups: As with last year, the rule provides a separate allocation for returning worker visas for late-season filers (i.e., organizations with start dates of May 15th or later). The reason for this is likely an attempt to be equitable, since (if there were no separate group) all supplemental visas would be gone before late-season filers had a chance to file (they would likely be completely used up by April 1st filers alone).
- Timing: Under the rule, summer-season employers will not be able to file for supplemental visas until at least 15 days (for “early-season” filers) or 45 days (for “late-season” filers) after the summer-season H-2B cap is reached. The cap is usually reached sometime in late-February or early-March. Therefore, supplemental visas may be released sometime in March (for “early-season” filers) and April (for “late-season” filers).
- If you are an April 1st employer, your cap strategy will likely be impacted by your DOL lottery assignment: As you likely know, if you have an April 1st start date, when you file your H-2B applications with the DOL in early-January, you are assigned a lottery grouping. Group A (plus about half of B) is generally safe to obtain out-of-country visas under the initial cap. However, the later groupings are not. If you are assigned a later grouping, you can either decide to focus on in-country recruiting (our strong recommendation), or you may decide that you are committed to an out-of-country recruiting strategy and you would like to try to submit a petition for cap relief. Due to the high demand expected for summer-season supplemental visas, there will likely be a second lottery, so the latter strategy is certainly not without risks. However, it is impossible to have any strategy discussion now without the lottery grouping information.
- In-country recruiting is still the best option: Regardless of your start date and regardless of this cap relief announcement, the best way to avoid risks associated with the H-2B cap is to focus on recruiting in-country workers who are cap-exempt.
- Next steps: There is nothing to do at the current time. However, we will communicate with our summer-season clients in January about supplemental cap strategy depending on their recruiting strategy and DOL lottery assignment grouping.
For 2024-25 Winter-Season Employers Only – start dates between 10/1/24 – 3/31/25
When can you file petitions?
This rule will not be officially published until the end of the day on December 2nd (at the earliest), and therefore, no petitions can be filed with U.S. Citizenship and Immigration Services (USCIS) until Tuesday at the earliest (and likely not until later in the week depending on timing). However, as long as a petition is filed within the first 5 business days after the rule is published, the petitions will be accepted for review even if there is a lottery (which is highly unlikely since we expect visas to be available until January).
When could petitions be approved/workers arrive?
USCIS guarantees adjudication of petitions within 15 calendar days. Therefore, for petitions filed this week, we would expect to receive a decision from USCIS in mid-December. Depending on the processing time for visas at the U.S. embassy/consulate abroad for a specific country, workers could likely begin arriving around in late-December or early-January if the petition is approved.
Who can file?
The temporary Final Rule implements special filing procedures that are similar to those instituted in previous years. Specifically, in order to file an H-2B petition to apply for the additional visas, employers must:
- Have an approved H-2B labor certification from the DOL for winter-season employment, which has open (unused) spots;
- Sign an attestation that they will experience irreparable harm (i.e., “permanent and severe financial loss”) if they cannot hire all of the H-2B workers requested (employers must maintain documentation demonstrating such harm for a three-year period);
- For returning workers only: sign an attestation that all workers are “returning workers” (i.e., held an H-2B visa or H-2B status in the 2022, 2023, or 2024 fiscal year); and
- For nationals of the Special Allocation countries only: provide proof the worker is a national of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras (i.e., their birth certificate or passport).
Please note: The rule mentions that employers filing petitions to request supplemental visas will be subject to increased likelihood of a random audit to confirm compliance with the H-2B regulations, including the “irreparable harm” and “returning worker” requirements. Additionally, the irreparable harm standard (i.e., “permanent and severe financial loss”), although not clearly defined in the regulations, is a very high burden to prove and carries liability risk in an audit if it cannot be proven. Therefore, supplemental cap petitions should always be seen as a last resort when facing severe harm without H-2B workers.
Extra Recruitment steps mandated
Notes on recruitment: If an employer has an approved H-2B labor certification from the DOL, with open (unused) spots, and the employer files an H-2B petition less than 30 days after their certified start date of work, they are not required to conduct additional recruitment for U.S. workers.
However, employers will be required to undergo additional mandatory recruitment steps before filing if 30 or more days have elapsed after the certified start date of work on the labor certification. Therefore, this will likely apply to all employers with start dates on or before November 1st. Recruitment will include placing a new job order for the job opportunity with the State Workforce Agency for 15 calendar days, circulating the job order to the nearest American Job Center, making reasonable efforts to contact former U.S. workers to solicit their return, posting the job opportunity on the employer’s website, and contacting the nearest AFL-CIO office to inform them of the open job opportunity.
Demand for Visas
We anticipate that there will be a fair level of demand for these additional 20,716 visas. However, based on last year, we do not anticipate that a lottery will be necessary. If there is an unexpectedly high level of demand that requires a lottery, DHS will place all H-2B petitions received within the first five (5) business days after the first day of filing into the lottery. Therefore, all petitions received by DHS between December 3rd and December 10th would be entered into the lottery with equal chances. Regardless, we are taking steps to ensure that we file our clients’ petitions as soon as possible.
Please let us know if you have any questions.
Thank you,
Keith and the Pabian Law Team