H-2B Visa Cap Relief Announcement and End-of-Season Reminders

On November 3, 2023, the Department of Homeland Security (DHS) announced its intent to release the maximum number of visas permitted by Congress this fiscal year – a total of 64,716 visas. Of these, 44,716 visas will be allocated to returning workers*, with an additional 20,000 earmarked to workers from an expanded list of Northern Triangle (NT) countries, which now include El Salvador, Honduras, Guatemala, Haiti, Colombia, Costa Rica, and Ecuador. 

*Returning workers defined as workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.   

Moreover, DHS has stated that it intends to allocate a portion of the visas to meet the demand for workers during the peak summer season. 

Important note: While this is welcomed news, the announcement does not specify the earliest date when capped employers can begin filing for the supplemental visas or the number designated for the latter half of the fiscal year. Practically speaking, this indicates that we may need to submit some H-2B applications for the first half (with needs prior to 4/1/24) before receiving detailed information on the exact dates, type, and number of visas available. Although this additional tranche of visas is certainly a positive development, it introduces a logistical challenge due to these uncertainties.  

You can read the full DHS announcement here. 

For many of you, the 2023 Spring H-2B season will soon be winding down, just as our work in preparation for the Spring 2024 season is ramping up. 

As some of you plan for the departure of your H-2B and/or non-local U.S. workers in the coming weeks, let us remind you of a few important end-of-season H-2B program obligations…

Departure Reporting 

• You should continue to notify your agent if any worker (H-2B or U.S. worker in corresponding employment) separates from employment before the contract end date. This includes standard end-of-season departures if they occur any time prior to the end date. 

Three-Fourths Guarantee 

• All workers, including U.S. workers in corresponding employment, must be offered at least three-fourths (75%) of the work hours specified in each 12-week period of the H-2B contract (or each 6-week period for contracts shorter than 120 days). To the extent that any worker(s) fell short, they must be paid the cash equivalent of the hours shortfall, based on the worker’s regular hourly rate of pay.

• When calculating the guarantee, you may count all hours actually worked, including outside of your standard work schedule, as well as hours offered but not worked, as long as these hours were offered within the confines of your stated work schedule.  

Outbound Transportation Reimbursements 

• Except in cases of job abandonment or resignation, you are obligated to pay or reimburse outbound travel costs to all non-local workers (H-2B or U.S. employee in corresponding employment). This is true for workers who complete the season (even if the season ends early) as well as those whom you dismiss prior to the conclusion of the contract (e.g., early completion, termination, etc.)

• Travel costs must include the following:

  • Transportation from your place of business to the worker’s home, based on the least-cost common-carrier rate. You may alternatively provide transportation in lieu of direct payment. Please note that this includes travel costs from the consulate to the workers’ residence. For those employers who opted for ‘Complete’ worker coordination services, you will find these costs on your inbound transportation report (travel to consulate).

  • Daily subsistence for meals for all travel days (currently $15.46 per day, or a maximum of $59.00 with receipts).

  • Overnight lodging, based on the least-cost economy rate, if applicable.