The U.S. Department of Labor recently distributed randomized H-2B group assignments. In the past, there have been a sufficient number of visas reserved for Group A to meet the initial visa cap of 33,000. Group A and Group B have the best chance of getting workers under the initial cap. Any group assignments later than Group B will fall under the supplemental H-2B cap provisions. The good news is that U.S. Citizenship and Immigration Services has already pre-authorized the release of these additional visas, like last year.

Although each case is unique, and there is never certainty predicting the future, based on experience from the supplemental distribution last year, some Group B, C, and D applications could receive supplemental returning worker visas. Groups through G may be able to receive country-specific visas. However, processing times at the U.S. Department of Labor may vary, the visa distribution has changed some from last year (5,000 visas reallocated from 5/15 date), and there are additional countries eligible for the country-specific allocation. Also note that workers currently in the U.S. in H-2B status transferring from another employer are exempt from the visa cap.

The April 1 or later supplemental H-2B visas have been divided into the following allocations:

  • For start dates of April 1 to May 14: There are 19,000 visas limited to returning workers regardless of country of nationality. (Returning workers received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years).
  • For start dates of May 15 to Sept. 30: There are 5,000 visas limited to returning workers regardless of country of nationality.
  • There are 20,000 visas available for all of FY2024 for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica, regardless of whether they are returning workers. These can be filed 15 days after the initial H-2B cap is reached.

Employers assigned to Group A, will soon receive a Notice of Acceptance (NOA) or Notice of Deficiency (NOD). Once the NOA is issued, there will be U.S. worker recruitment obligations. If an NOD is issued, additional documentation may be needed.

Those employers who want to file petitions under the supplemental visa release, must be prepared to demonstrate 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. There also may be additional recruitment required, such as placing an updated job order with the State Workforce Agency, soliciting the return of former workers, contacting a bargaining representative or posting notice of the job opportunity, notifying current workers, seeking assistance from the local career center, making a website posting, and notifying the local union if the position is customarily unionized.

If you have specific questions about the applications or immigration-related matters, our New York Immigration Practice Group can help. Please reach out to immigration attorney L.J. D’Arrigo at (518) 701-2770 and ldarrigo@harrisbeach.com, immigration attorney Jarrod M. Sharp at (518) 701-2783 and jsharp@harrisbeach.com, or to the Harris Beach attorney with whom you most frequently work.

About Harris Beach’s Temporary and Seasonal Labor Practice

Harris Beach PLLC maintains one of the largest temporary and seasonal visa practices in the country. L.J. D’Arrigo, co-leader of the firm’s Immigration Practice Group, and Jarrod Sharp, Sr. Counsel, are nationally recognized for processing seasonal visas. Our immigration attorneys provide guidance to some of the largest employers in the U.S. across industry sectors, including agriculture, manufacturing, hospitality, construction, landscaping, equine, and others. Our immigration lawyers have assisted in drafting legislation affecting seasonal businesses and currently represent the largest commercial landscaping, tree nursery and home security companies in the nation. We facilitate the processing of more than 10,000 temporary workers through the H-2B and H-2A programs each season. We also have been successful in developing long-term permanent labor solutions for our clients.

Harris Beach attorneys guide employers through every step of the H-2 journey, developing successful strategies and ensuring that your business remains in compliance with the complex maze of government regulations. Contact our H-2 visa team today at H2@harrisbeach.com.

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.

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.