Last week, President Biden signed into law H.R. 2471, the “Consolidated Appropriations Act, 2022,”[i] which provides for funding of the government through the end of the current fiscal year (i.e., until September 30, 2022). As has happened in each of the last several years, buried in this massive piece of legislation is the authorization for the Secretaries of the Department of Labor (“DOL”) and the Department of Homeland Security (“DHS”) to collectively determine if additional H-2B visas should be authorized for the current fiscal year. In relevant part, the legislation authorizing this change provides:

SEC. 204. H–2B SUPPLEMENTAL VISAS EXEMPTION. Notwithstanding the numerical limitation set forth in section 214(g)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)(B)), the Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in fiscal year 2022 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor, may increase the total number of aliens who may receive a visa under section 101(a)(15)(H)(ii)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) in such fiscal year above such limitation by not more than the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program in any fiscal year in which returning workers were exempt from such numerical limitation.[ii]

Notably, Congress has set a “maximum” increase in H-2B visas tied to the highest number of workers who participated in the “returning worker program” for any year that program was in effect. For perspective, that number is 64,716. 

In effect, Congress has now done “its part” with this process and we now have to wait for an announcement from the DOL and DHS regarding potential H-2B cap expansion, as well as the implementing regulations. It is unknown when that announcement will come, but the content of that announcement and the timing will dictate when and how employers can petition for additional H-2B visas (assuming the DOL and DHS agree to release more).

If you have questions about the H-2B Visa Program or other general questions about employment-based immigration, please contact one of the immigration specialists in Koley Jessen’s Employment, Labor, and Benefits Practice Group.

^{[i]    Consolidated Appropriations Act, 2022, H.R. 2471, 117th Congress (2022), available at https://www.congress.gov/bill/117th-congress/house-bill/2471/text.}

^{[ii]   Consolidated Appropriations Act, 2022, H.R. 2471, 117th Congress § 204 (2022), https://www.congress.gov/bill/117th-congress/house-bill/2471/text#:~:text=SEC.%20204.%20H,such%20%0Anumerical%20limitation}

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