In the spirit of the season, the U.S. Department of Homeland Security has given the H-2B community some news for which to be thankful. The first is an announcement updating the Eligible Countries List. All of the countries previously on the list have been retained, with the new addition of Bolivia. Bolivia will be included in the list of countries eligible to participate in the H-2A and H-2B visa programs. This announcement affects nonimmigrants changing status in the U.S. to H-2A or H-2B on or after the effective date of November 9, 2023.

The next big announcement came on Friday, November 17, 2023, in the form of a Federal Register Notice releasing an additional 64,716 H-2B visas for Fiscal Year 2024. Similar to the previous supplemental visa release, this release also requires employers to attest they are suffering irreparable harm or will suffer impending irreparable harm without their H-2B workers. The allocation of visas is similar to the supplemental release last year, but there are some distinct differences as well. The extra visas will be available during the same timeframes as last year.

The first tranche of visas will be for 20,716 visas available from October 1 through March 31 for returning H-2B workers (those workers who held H-2B status is FY 2021, FY 2022, or FY 2023, regardless of nationality). The next group of 19,000 visas are available for the early second half of FY 2024, from April 1 through May 14, for returning H-2B workers. There are also 5,000 visas available in the late second half of FY 2024, from May 15 through September 30, for returning H-2B workers.

The number of visas reserved for each time period has changed this year in response to employers’ petition filing trends. Specifically, the Federal Register indicates that “as of October 6, 2023, DOS has issued 5,071 visas towards the late second half allocation” that occurred last H-2B filing season. As a result, the visa numbers authorized in each group have been adjusted from last year. The first tranche increased by 2,500 visas to 20,716 (from the previous year number of 18,216). The early second half release of 19,000 visas increased by 2,500 (from the previous 16,500), and the late second half contained the reduction of 5,000 visas to the 5,000 available (from the previous 10,000).

Country-specific Visas

In addition, 20,000 visas are again reserved for a country-specific allocation for the entirety of FY 2024. El Salvador, Guatemala, Honduras and Haiti are again included in the list of countries, but they are now joined by Colombia, Ecuador and Costa Rica. The country-specific visas are available regardless of whether the nationals are returning on an H-2B visa.

Petitions requesting the supplemental visas must be filed at the USCIS Texas Service Center, which is a change from last year, when all petitions were sent to California. However, as of November 1, 2023, all H-2B Form I-129 petitions must already be filed directly to the Texas Service Center regardless of whether they are a supplemental visa request or not.

The supplemental visa announcement removed the requirement to post the COVID-19 vaccine access notification “as the public health emergency is no longer in effect.” However, employers must continue to conduct additional U.S. worker recruitment efforts when the petition is filed 30 or more days after the certified start date on the labor certification. This includes filing a new job order with the State Workforce Agency for 15 calendar days, contacting the nearest American Job Center, providing written notification to the AFL-CIO in customarily unionized occupations, contacting former and current U.S. workers, providing written notification to the bargaining representative or posting notice at the worksite, and posting the job opportunity on the employer’s website. Employers must continue to retain compliance documentation for three years.

The Harris Beach immigration team is following this issue and related matters. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent. If you have questions about this subject or related matters, please reach out to attorney Jarrod M. Sharp at (518) 701-2783 and, or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.