The U.S. Department of Homeland Security (DHS) has announced its planned release of supplemental visas (also referred to as “cap relief”) for the 2025 fiscal year (the period from October 1, 2024 to September 30, 2025). Although much is still unclear since the actual rule has not been published (and likely will not be published for a couple of weeks), the announcement seems to indicate that FY 2025 cap relief will be very similar (if not identical) to what happened for FY 2024.
This Client Alert most immediately impacts our 2024-25 winter-season friends (organizations with start dates from October to March). This announcement also mentions the release of additional visas for 2025 summer-season employers, but please note:
- The actual release of additional summer-season visas is not expected for several months (likely February or March), as the summer-season application process will not begin until 2025.
- We do not anticipate being able to provide additional information on summer-season cap relief for at least several weeks, and we do not anticipate any cap relief announcements to impact overall visa application strategy – cap relief should still be seen as a last resort and in-country recruiting is still the best way to avoid cap-related issues.
BACKGROUND
Earlier this afternoon, the U.S. Department of Homeland Security (DHS) issued a press release announcing that DHS plans release supplemental H-2B visas for the 2025 fiscal year (the FY2025 cap applies to employers with start dates from October 1, 2024 through September 30, 2025). According to the release, DHS plans to issue 64,716 additional visas, on top of the 66,000 that are normally available each year. 20,000 of the supplemental visas will be reserved for workers from Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras (the “Special Allocation”). The remaining 44,716 visas will be allocated for “returning workers” from any eligible country. However, it does not indicate how many visas will be allocated to winter- and summer-season employers, respectively. The full text of the DHS announcement is attached.
Note: the number of visas and the allocations are identical to last year’s cap relief.
Although we expect cap relief to be almost identical to last year, this is just an unofficial announcement, and therefore, much about the rule is still unknown. Please note the following:
FOR WINTER-SEASON EMPLOYERS (Start Dates from October 1st through March 31st)
- There has not yet been any official ruling or publication issued by DHS. Therefore, the details of the below are not final and are subject to change.
- The timing of the release of the visas is unclear. There is no date indicated in the DHS announcement. Last year, the release occurred in mid-November. However, this year’s announcement is around two weeks later than last year’s – therefore, we would anticipate the visas being released sometime in late-November or early-December (although this is very much an estimate and subject to change).
- The number of visas being released is unclear. Although we know that there are 64,716 additional visas being released for FY2025 overall, there was no information provided regarding how many will be allocated to winter-season employers specifically.
- An unknown portion of the visas that are released will be available to “returning workers” only. What this means is that, in order to be eligible for a visa under this rule, a prospective worker must have been issued an H-2B visa at least one of the last three fiscal years (i.e., 2022, 2023, or 2024).Note: last year, there were 20,716 total visas released specifically for winter-season employers (for “returning workers” (only) from any eligible country). This is in addition to the 20,000 visas for the Special Allocation countries.
- 20,000 visas will be excluded from the “returning worker” requirement, but will be reserved for workers from seven (7) countries: Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. The purpose of this allocation is to expand lawful immigration pathways for individuals from these countries, which have higher percentages of asylum seekers.
- It is unclear whether the number of additional visas ultimately released will be enough for all employers who wish to file. If demand outweighs supply, DHS may conduct a lottery to select which petitions it will accept.
- Employers may need to engage in additional recruitment efforts for U.S. workers before utilizing these additional H-2B visas. In past years, eligibility for supplemental visas has required employers to undergo additional recruitment efforts to identify U.S. workers. It is unclear from the press release whether this will be required or, if so, what this would consist of. We will not know for sure until DHS publishes the official rule in the Federal Register formally releasing the visas, which we expect to happen in the next couple of weeks.
- Employers will likely need to submit a severe financial hardship attestation in order to utilize the additional H-2B visas. This has been required as a part of cap relief for the past several years. H-2B employers have been required to sign an attestation and gather documentation to prove that they will experience “irreparable harm” (i.e., permanent and severe financial loss) if they are not able to obtain additional visas released by DHS.This is a very high burden to prove and carries liability risk in an audit if it cannot be proven. For this reason, supplemental visas should only be requested as a last resort and only when employers are confident that they can meet this high burden.
Action Item for Winter-Season Employers
If you are a winter-season Pabian Law client, and you have not filled all of the H-2B spots on your DOL certification, please reach out to let us know whether you would be interested in filing an H-2B petition to take advantage of the supplemental visas for out-of-country workers. We understand that the details (and especially the timing) of cap relief are still not fully clear, and we may already have information from you about your intentions for cap relief. However, if you are able to provide us with your thoughts, this will be helpful to us as we prepare to hopefully file cap relief petitions in the next few weeks. As soon as the rule regarding the supplemental visas is issued, we will be in touch with each of our potentially-interested winter-season clients regarding whether you plan to file petitions and what the next steps will be. We cannot finalize plans or provide cost quotes without knowing all details regarding the government’s filing requirements.
FOR SUMMER-SEASON EMPLOYERS (Start Dates from April 1, 2025 through September 30, 2025)
- The timing of the release of the visas is unclear. Our assumption is that the release will not occur until the February or March at the earliest.
- The number of visas being released is unclear. Although we know that there are 64,716 additional visas being released for FY2024 on the whole, there was no information provided regarding how many will be allocated to summer-season employers only.
Note: last year there were 24,000 total visas released specifically for summer-season employers (for “returning workers” (only) from any eligible country). This is in addition to the 20,000 visas for the Special Allocation countries. Those 24,000 returning worker visas were distributed 19,000 for “early-season” summer employers (April 1st through May 14th start dates) and 5,000 for “late-season” summer employers (May 15th or later start dates). It is possible that a similar allocation happens this year, although it is certainly subject to change.
Impact on 2025 Summer-Season Application Strategy
In short, we do not think this should have any impact on your application strategy for 2025 summer-season H-2B visas. We do not anticipate that the early announcement regarding supplemental visas will impact the lottery groupings for April 1st applications that are filed on January 1, 2025. This lottery should be conducted only for the 33,000 visas that are originally available and a separate filing period/lottery would be conducted for supplemental visas later in the spring, after the initial cap has been reached. In other words, lottery groupings will only impact the first 33,000 visas in the original cap and would have no impact on the supplemental visas.
No action items are required of summer-season Pabian Law clients at this time.
H-2B Modernization Rule – Chart of Key Changes