The H-2B Visa and the Statutory Cap




The H-2B Visa and the Statutory Cap
Updated July 13, 2022
Congressional Research Service
https://crsreports.congress.gov
R44306




The H-2B Visa and the Statutory Cap

Summary
The Immigration and Nationality Act (INA) of 1952, as amended, enumerates categories of
foreign nationals, known as nonimmigrants, who are admitted to the United States for a
temporary period of time and a specific purpose. One of these nonimmigrant visa categories—
known as the H-2B visa—is for temporary nonagricultural workers.
The H-2B visa allows for the temporary admission of foreign workers to the United States to
perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are
not available. Common H-2B occupations include landscaping worker, housekeeper, and
amusement park worker.
The H-2B program is administered by the U.S. Department of Homeland Security’s (DHS’s) U.S.
Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor’s (DOL’s)
Employment and Training Administration. DOL’s Wage and Hour Division also has certain
concurrent enforcement responsibilities. The H-2B program operates mainly under regulations
issued by DHS in 2008 on H-2B requirements, by DHS and DOL jointly in 2015 on H-2B wages,
and by DHS and DOL jointly in 2015 and 2019 on H-2B employment.
Bringing workers into the United States under the H-2B program is a multiagency process
involving DOL, DHS, and the Department of State (DOS). A prospective H-2B employer must
apply to DOL for labor certification. Approval of a labor certification application reflects a
finding by DOL that there are not sufficient U.S. workers who are qualified and available to
perform the work and that the employment of foreign workers will not adversely affect the wages
and working conditions of U.S. workers who are similarly employed.
If granted labor certification, an employer can file a petition with DHS to bring in up to the
approved number of H-2B workers. If the petition is approved, a foreign worker overseas who the
employer wants to employ can go to a U.S. embassy or consulate to apply for an H-2B
nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that
he or she can use to apply for admission to the United States at a port of entry. H-2B workers can
be accompanied by eligible spouses and children.
H-2B Annual Numerical Limitations
By law, the H-2B visa is subject to an annual numerical cap. Under the INA, the total number of
individuals who may be issued H-2B visas or otherwise provided with H-2B nonimmigrant status
in any fiscal year may not exceed 66,000. USCIS is responsible for implementing the H-2B cap,
which it does at the petition receipt stage. Spouses and children accompanying H-2B workers are
not counted against the H-2B cap. In addition, certain categories of H-2B workers are exempt
from the cap. Among these categories are current H-2B workers who are seeking an extension of
stay, change of employer, or change in the terms of their employment.
Employer demand for H-2B workers has varied over the years. In recent years, demand has
exceeded supply, and special provisions have been enacted to make additional H-2B visas
available. For FY2016, a temporary statutory provision exempted certain H-2B workers from the
cap. It applied to H-2B workers who had been counted against the cap in any one of the three
prior fiscal years and would be returning as H-2B workers in FY2016. For FY2017-FY2022, a
different type of H-2B cap-related provision authorized DHS to issue additional H-2B visas
(above the cap) subject to specified conditions.

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Contents
Introduction ..................................................................................................................................... 1
H-2B Nonagricultural Worker Visa ................................................................................................. 1

Seafood Industry Staggered Entry Provision ............................................................................ 3
Numerical Limitations ..................................................................................................................... 4
Special H-2B Cap-Related Provisions ...................................................................................... 5
Returning Worker Exemptions ............................................................................................ 5
Provisions Authorizing Additional H-2B Visas .................................................................. 6
Implementation of H-2B Numerical Limits ............................................................................. 11
Developments Since FY2018 ........................................................................................... 12
Data on Grants of H-2B Status ...................................................................................................... 15
H-2B Visa Issuances................................................................................................................ 15
Conclusion ..................................................................................................................................... 16

Figures
Figure 1. H-2B Visas Issued, FY1992-FY2021............................................................................. 16

Tables

Table A-1. Number of H-2B Visas Issued, FY1992-FY2021 ........................................................ 17

Appendixes
Appendix. H-2B Visa Issuances .................................................................................................... 17

Contacts
Author Information ........................................................................................................................ 18

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The H-2B Visa and the Statutory Cap

Introduction
FY2022 is the seventh year in a row that Congress has enacted a special provision to allow for the
issuance of H-2B visas beyond the annual statutory cap of 66,000. For FY2016, Congress
exempted certain H-2B workers from the statutory cap. For the six most recent fiscal years
(FY2017-FY2022), Congress authorized the Department of Homeland Security (DHS) to make
additional H-2B visas available subject to certain conditions. DHS has exercised this authority in
each of these years except FY2020. For FY2022, DHS has released a total of 55,000
supplemental H-2B visas.
H-2B Nonagricultural Worker Visa
The Immigration and Nationality Act (INA) of 1952, as amended,1 enumerates categories of
aliens,2 known as nonimmigrants, who are admitted to the United States for a temporary period of
time and a specific purpose. Nonimmigrant visa categories are identified by letters and numbers,
based on the sections of the INA that established them.3 Among the major nonimmigrant visa
categories is the “H” category for temporary workers. Included in this category is the H-2B visa
for temporary nonagricultural workers.4
The H-2B program allows for the temporary admission of foreign workers to the United States to
perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are
not available. H-2B workers perform a wide variety of jobs. Top H-2B occupations in recent
years have included landscaping worker, forest worker, housekeeper, amusement park worker,
and meat cutter. By regulation, participation in the H-2B program is limited to designated
countries, and DHS publishes a list of eligible countries each year.5
Bringing workers into the United States under the H-2B program is a multiagency process
involving the U.S. Department of Labor (DOL), DHS, and the Department of State (DOS). The
program itself is administered by DHS’s U.S. Citizenship and Immigration Services (USCIS) and
DOL’s Employment and Training Administration (ETA). DOL’s Wage and Hour Division
(WHD) also has certain concurrent enforcement responsibilities. The H-2B program operates
mainly under regulations issued by DHS in 2008 on H-2B requirements, by DHS and DOL
jointly in 2015 on H-2B wages, and by DHS and DOL jointly in 2015 and 2019 on H-2B
employment.6

1 Act of June 27, 1952, ch. 477, codified at 8 U.S.C. §1101 et seq. The INA is the basis of current immigration law.
2 Alien is the term used in the INA to describe any person who is not a U.S. citizen or national.
3 For a listing of nonimmigrant visa categories, see CRS Report R45938, Nonimmigrant and Immigrant Visa
Categories: Data Brief
.
4 INA §101(a)(15)(H)(ii)(b), 8 U.S.C. §1101(a)(15)(H)(ii)(b).
5 In November 2021, DHS identified 86 countries whose nationals are eligible to participate in the H-2B program. For a
list of these countries (effective through November 9, 2022), see U.S. Department of Homeland Security, “Identification
of Foreign Countries Whose Nationals Are Eligible To Participate in the H–2A and H–2B Nonimmigrant Worker
Programs,” 86 Federal Register 62559, November 10, 2021.
6 U.S. Department of Homeland Security, “Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers,” 73 Federal Register 78104, December 19, 2008; U.S. Department of Homeland Security and U.S.
Department of Labor, Employment and Training Administration, “Temporary Non-Agricultural Employment of H–2B
Aliens in the United States,” 80 Federal Register 24042-24144, April 29, 2015 (hereinafter cited as the 2015 DHS-
DOL rule on H-2B employment); U.S. Department of Homeland Security and U.S. Department of Labor, Employment
and Training Administration, Wage and Hour Division, “Modernizing Recruitment Requirements for the Temporary
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For work to qualify as temporary under the H-2B visa under DHS regulations, the employer’s
need for the duties to be performed by the worker must “end in the near, definable future” and
must be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.7 The
employer’s need for workers generally must be for a period of one year or less, but in the case of
a one-time occurrence, can be for up to three years.
In order to bring H-2B workers into the United States, an employer must first receive labor
certification from DOL. An interim final rule on H-2B employment that was issued jointly by
DHS and DOL in April 2015 establishes a new registration requirement as a preliminary step in
the labor certification process; once it is implemented, prospective H-2B employers would
demonstrate their temporary need to DOL through this registration process before submitting a
labor certification application. (As of the cover date of this report, however, the registration
requirement has not been implemented, and DOL continues to make determinations about
temporary need during the processing of labor certification applications.)8
At the same time that the employer submits the temporary labor certification application to DOL,
the employer must submit a job order to the state workforce agency (SWA) serving the area of
intended employment. The job order is used to recruit U.S. workers. The employer also must
conduct its own recruitment.
In order to grant labor certification to an employer, DOL must determine that (1) there are not
sufficient U.S. workers who are qualified and available to perform the work, and (2) the
employment of foreign workers will not adversely affect the wages and working conditions of
U.S. workers who are similarly employed. To prevent an adverse effect on U.S. workers, H-2B
employers must offer and provide required wages and benefits to H-2B workers and workers in
corresponding employment.9 H-2B employers must pay their workers the highest of the prevailing
wage rate or the federal, state, or local minimum wage. They must provide a “three-fourths
guarantee”; that is, they must guarantee to offer workers employment for at least three-fourths of
the contract period.10 H-2B employers also must pay worker visa fees and certain worker
transportation costs. They are not required to provide health insurance coverage.11

Employment of H–2B Foreign Workers in the United States,” 84 Federal Register 62431- 62447, November 15, 2019;
U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Wage Methodology for the Temporary Non-Agricultural Employment H–2B Program,” 80 Federal Register 24146-
24190, April 29, 2015.
7 8 C.F.R. §214.2(h)(6)(ii)(B).
8 According to the supplementary information to the 2015 rule, a future “announcement in the Federal Register ... will
provide the public with notice of when DOL will initiate the registration process.” 2015 DHS-DOL rule on H-2B
employment, p. 24052.
9 Corresponding employment is defined in DOL regulations as “the employment of workers who are not H–2B workers
by an employer that has a certified H–2B Application for Temporary Employment Certification when those workers are
performing either substantially the same work included in the job order or substantially the same work performed by
the H–2B workers,” with exceptions for certain incumbent workers. 20 C.F.R. §655.5. Language included in DOL
appropriations acts since FY2016 prohibits the use of funds to enforce this definition of corresponding employment.
P.L. 114-113, Div. H, Title I, §113 (FY2016); P.L. 115-31, Div. H, Title I, §113 (FY2017); P.L. 115-141, Div. H, Title
I, §113 (FY2018); P.L. 115-245, Div. B, Title I, §112 (FY2019); P.L. 116-94, Div. A, Title I, §111 (FY2020); P.L.
116-260, Div. H, Title I, §111 (FY2021); P.L. 117-103, Div. H, Title I, §111 (FY2022).
10 Language included in DOL appropriations acts since FY2016 prohibits the use of funds to enforce the three-fourths
guarantee rule. P.L. 114-113, Div. H, Title I, §113 (FY2016); P.L. 115-31, Div. H, Title I, §113 (FY2017); P.L. 115-
141, Div. H, Title I, §113 (FY2018); P.L. 115-245, Div. B, Title I, §112 (FY2019); P.L. 116-94, Div. A, Title I, §111
(FY2020); P.L. 116-260, Div. H, Title I, §111 (FY2021); P.L. 117-103, Div. H, Title I, §111 (FY2022).
11 H-2B workers, like nonimmigrants generally, are not eligible for federally funded public assistance, with the
exception of Medicaid emergency services. See CRS Report RL33809, Noncitizen Eligibility for Federal Public
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After receiving labor certification, a prospective H-2B employer can submit an application,
known as a petition, to DHS to bring in foreign workers. If the foreign workers are already in the
United States, the employer can request a change of status to H-2B status on the petition. In the
typical case, however, the workers are abroad. If the petition is approved, they can visit a U.S.
embassy or consulate to apply for H-2B nonimmigrant visas from DOS. If the visa applications
are approved, the workers are issued visas that they can use to apply for admission to the United
States at a port of entry. H-2B workers can be accompanied by eligible spouses and children, who
are issued H-4 visas.12
An alien’s total period of stay as an H-2B worker may not exceed three consecutive years. An H-
2B alien who has spent three years in the United States may not seek an extension of stay or be
readmitted to the United States as an H-2B worker until he or she has been outside the country for
at least three months.
The INA grants enforcement authority with respect to the H-2B program to DHS, but allows for
the delegation of that authority to DOL.13 DHS has delegated that authority to DOL, and now
DOL’s WHD has responsibility for enforcing compliance with the conditions of an H‐2B petition
and temporary labor certification.
Seafood Industry Staggered Entry Provision
As part of the labor certification process, prospective H-2B employers must indicate the starting
and ending dates of their period of need for H-2B workers. According to the preamble to the 2015
DHS-DOL interim final rule on H-2B employment: “An application with an accurate date of need
will be more likely to attract qualified U.S. workers to fill those open positions, especially when
the employer conducts recruitment closer to the actual date of need.”14 If within a season an
employer has more than one date of need for workers to perform the same job, the employer must
file a separate labor certification application for each date of need. The employer is not allowed to
stagger the entry of H-2B workers based on one date of need.
There is an exception to this prohibition on the staggered entry of H-2B workers, however, that
applies to employers in the seafood industry. First enacted as part of the Consolidated
Appropriations Act, 2014,15 and subsequently incorporated into the 2015 DHS-DOL interim final
rule on H-2B employment,16 this provision permits an employer in the seafood industry with an
approved H-2B petition to bring in the H-2B workers under that petition any time during the 120
days beginning on the employer’s starting date of need. In order to bring in the workers between
day 90 and day 120, though, the employer must conduct additional U.S. worker recruitment. This
provision has been reenacted in DOL appropriations acts for each year from FY2015 through
FY2022.17

Assistance: Policy Overview. Nonetheless, they may be eligible for coverage through a health insurance exchange. See
archived CRS Report R43561, Treatment of Noncitizens Under the Affordable Care Act.
12 H-4 visas are for the spouses and children of H-1B, H-1B-1, H-2A, H-2B, or H-3 visa holders.
13 INA §214(c)(14), 8 U.S.C. §1184(c)(14).
14 2015 DHS-DOL rule on H-2B employment, p. 24060.
15 P.L. 113-76, Div. H, Title I, §113.
16 See 20 C.F.R. §655.15(f).
17 P.L. 113-235, Div. G, Title I, §108 (FY15); P.L. 114-113, Div. H, Title I, §111 (FY2016); P.L. 115-31, Div. H, Title
I, §111 (FY2017); P.L. 115-141, Div. H, Title I, §111 (FY2018); P.L. 115-245, Div. B, Title I, §110 (FY2019); P.L.
116-94, Div. A, Title I, §109 (FY2020); P.L. 116-260, Div. H, Title I, §109 (FY2021); P.L. 117-103, Div. H, Title I,
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Numerical Limitations
The H-2B program is subject to an annual statutory numerical limit. Under the INA, as amended
by the Immigration Act of 1990, the total number of aliens who may be issued H-2B visas or
otherwise provided with H-2B nonimmigrant status in any fiscal year may not exceed 66,000.18
Since FY2006 there also has been a cap of 33,000 on the number of aliens subject to H-2B
numerical limits who may enter the United States on an H-2B visa or be granted H-2B status
during the first six months of a fiscal year.19 This INA amendment, enacted as part of the REAL
ID Act of 2005, effectively divided the annual H-2B cap of 66,000 into two semiannual caps of
33,000, respectively covering work in the first and second halves of the fiscal year.20
The intent of the semiannual caps was to establish “a fair allocation of visas.” As explained in
introductory remarks on a related Senate bill that included this same provision: “We reserve half
of the visas for the winter and half for the summer. Allocating visas ensures that, until a long-term
solution is reached, all employers will have an equal chance of getting the workers that they
need.”21 In practice, however, in times of high demand for H-2B workers, employers whose start
dates of need do not fall early in a semiannual period may not have a chance to get workers. In a
2018 report, prepared in response to a congressional reporting requirement, DHS provided
Congress with options to improve late season access to H-2B workers. Among the options
presented were moving from semiannual to quarterly H-2B caps and giving preferential access to
H-2B visas to employers in industries determined to be in the national interest.22
Not all categories of H-2B workers are subject to the statutory cap. Certain categories are exempt,
including the following:
 current H-2B workers seeking an extension of stay, change of employer, or
change in the terms of employment;
 H-2B workers previously counted toward the cap in the same fiscal year;
 fish roe processors, fish roe technicians, and/or supervisors of fish roe
processing;23 and
 H-2B workers performing labor in the U.S. territories of the Commonwealth of
the Northern Mariana Islands (CNMI) and/or Guam until December 31, 2029.

§109 (FY2022).
18 INA §214(g)(1)(B), 8 U.S.C. §1184(g)(1)(B). The Immigration Act of 1990 is P.L. 101-649. Section 205(a) of that
law established the H-2B cap of 66,000.
19 INA §214(g)(10), 8 U.S.C. §1184(g)(10).
20 The REAL ID Act of 2005 is Division B of P.L. 109-13. The provision establishing the 33,000 semiannual cap is
Div. B, Title IV, §405. If the 33,000 cap is not reached for the first half of the fiscal year, the unused numbers are made
available for the second half of the fiscal year.
21 Senator Barbara Mikulski, introductory remarks in the Senate on the Save Our Small and Seasonal Businesses Act of
2005 (S. 352), Congressional Record, daily edition, vol. 151 (February 10, 2005), pp. S1280-S1281.
22 U.S. Department of Homeland Security, Options for Reforming the H-2B Visa Program and Improving Late Season
Employers’ Access to Workers
, June 7, 2019, https://www.uscis.gov/sites/default/files/document/reports/
FY_2018_USCIS_H-2B_Congressional_Appropriations_Report.pdf. The reporting requirement can be found in U.S.
Congress, House Committee on Appropriations, Consolidated Appropriations Act, 2018, committee print, 115th Cong.,
2nd sess. (Washington: GPO, 2018), p. 996.
23 P.L. 108-287, Title X, Chap. 4, §14006.
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As noted, spouses and children who are accompanying H-2B workers are issued H-4 visas and, as
such, are not counted against the H-2B cap.
Special H-2B Cap-Related Provisions
Legislation is regularly introduced in Congress concerning the H-2B cap. In the 116th Congress,
one such bill—the Labor, Health and Human Services, Education, Defense, State, Foreign
Operations, and Energy and Water Development Appropriations Act, 2020 (H.R. 2740), as passed
by the House—proposed to replace the current semiannual allocation of H-2B visas, as described
above, with a type of quarterly allocation. In addition, in quarters in which requests for H-2B
workers by employers (whose petitions met the requirements for approval) exceeded the
availability of visas, H-2B visas would have been allocated proportionally among these
employers.24
H-2B cap-related bills introduced in the 117th Congress include measures to establish exemptions
from the statutory cap for workers engaged in certain types of work. For example, S. 2207 would
exempt forestry workers engaged in specified activities from H-2B numerical limitations for five
years. H.R. 401 would establish a permanent H-2B cap exemption for landscaping or
groundskeeping workers. It proposes to do so by rewriting the existing statutory cap exemption
for fish roe workers and supervisors (mentioned in the prior section of this report) to instead
cover landscaping workers. Another bill (S. 495) would establish an occupation-neutral
permanent cap exemption. It would exempt from the statutory cap an H-2B worker employed in a
state with an unemployment rate below a specified level. Unlike the other two measures, S. 495
would place limits on the number of workers who could receive exemptions in any state.
Most H-2B cap-related bills introduced over the years, including the three 117th Congress
measures described above, have not seen legislative action beyond committee referral. There have
been some temporary cap-related provisions, however, that have been enacted since 2005—in all
cases as part of larger appropriations or other bills. These provisions, which authorized the
issuance of H-2B visas and/or the granting of H-2B status beyond the statutory cap, have been of
two main types.
Returning Worker Exemptions
The INA was amended during the 109th Congress to add a provision establishing a temporary
exemption from the H-2B statutory cap for certain H-2B returning workers. The provision,
initially in effect for FY2005 and FY2006, exempted from the cap persons who were returning to
the United States as H-2B workers and had been counted against the cap in any one of the three
prior fiscal years.25 This H-2B returning worker provision was subsequently extended for
FY2007,26 and expired at the end of that fiscal year.27 An H-2B returning worker exemption of the

24 In the language of the bill, in quarters with excess demand, “the Secretary [of DHS] shall ensure that each such
petition is approved for a minimum number of visas, which shall be calculated based on the ratio between the total
number of visas requested by such employers and the total number of visas available.” H.R. 2740, Division A, Title V,
§525, as passed by the House. Other H-2B cap-related bills introduced in the 116th Congress included H.R. 798, H.R.
2658, and S. 135.
25 P.L. 109-13, Div. B, Title IV, §402.
26 P.L. 109-364, Div. A, Title X, §1074.
27 For a discussion of legislative efforts to reenact an H-2B returning worker exemption in the 110th Congress, see
archived CRS Report RL34204, Immigration Legislation and Issues in the 110th Congress (available to congressional
clients upon request).
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same type was reinstated for FY2016. It provided that an H-2B returning worker who had been
counted against the statutory cap in FY2013, FY2014, or FY2015 would not be counted again in
FY2016.28 Several bills have been introduced in the 117th Congress to enact a permanent H-2B
returning worker exemption from the statutory cap.29
Provisions Authorizing Additional H-2B Visas
From FY2017 to FY2022, a different type of H-2B cap-related provision was enacted. In each of
these years, provisions in year-end omnibus appropriations laws authorized DHS to make
additional H-2B visas available beyond the statutory cap after consultation with DOL and “upon
the determination that the needs of American businesses cannot be satisfied” with available U.S.
workers. Under these provisions, the number of additional workers who could receive H-2B visas
annually was limited to “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.”30
DHS and DOL jointly published final rules to implement these provisions for each year except
FY2020. Regarding implementation of the FY2020 provision, DHS announced on March 5,
2020, that it would release 35,000 supplemental H-2B visas. It had planned to designate 10,000 of
these visas for nationals of the Latin American Northern Triangle countries of Guatemala, El
Salvador, and Honduras “in support of these countries efforts to work with the U.S. to stem the
flow of illegal migration in the region and encourage lawful migration to the United States.”31
DHS, however, never exercised this authority.32
Common Elements of Implementing Rules
As detailed below, there are various differences among the final rules implementing the statutory
provisions authorizing DHS, after consultation with DOL, to make supplemental H-2B visas
available. For example, the authorized number of supplemental visas has differed. Certain
elements, however, that were first described in connection with the rule implementing the
FY2017 provision have remained the same in the subsequent rules issued by the Trump and
Biden Administrations. These commonalities have included the limitation of the supplemental
numbers to H-2B workers issued visas, the interpretation of the statutory maximum number of
visas, and the requirement that employers seeking supplemental visas submit an attestation
evidencing irreparable harm.

28 P.L. 114-113, Div. F, Title V, §565.
29 These bills include H.R. 3897, H.R. 4578, and H.R. 6637, as introduced in the 117th Congress.
30 P.L. 115-31, Div. F, Title V, §543 (FY2017); P.L. 115-141, Div. M, Title II, §205 (FY2018); P.L. 116-6, Div. H,
Title I, §105 (FY2019); P.L. 116-94, Div. I, Title I, §105 (FY2020); P.L. 116-260, Div. O, Title I, §105 (FY2021); P.L.
117-103, Div. O, Title II, §204 (FY2022).
31 U.S. Department of Homeland Security, DHS to Improve Integrity of Visa Program for Foreign Workers, March 5,
2020, https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers (archived content).
32 According to a DHS tweet posted on April 2, 2020: “DHS’s rule on the H-2B cap is on hold pending review due to
present economic circumstances. No additional H-2B visas will be released until further notice.” See
https://twitter.com/DHSgov/status/1245745115458568192?s=20. Between the March and April DHS announcements,
then-President Trump issued Proclamation 9994 of March 13, 2020, Declaring a National Emergency Concerning the
Novel Coronavirus Disease (COVID-19) Outbreak
.
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In the preambles to the FY2017 rule and each subsequent rule, DHS explained that the statutory
provision applied only to H-2B workers entering the United States on visas and not to persons in
the United States who were seeking a change of status to H-2B status.33
DHS acknowledged in the preamble to the FY2017 rule that the statutory definition of the
maximum authorized number (i.e., “the highest number of H–2B nonimmigrants who participated
in the H–2B returning worker program in any fiscal year”) could be interpreted in different ways.
It determined, however, that 64,716 was the most appropriate maximum number of additional H-
2B visas authorized under the statutory provision, this being “the number of beneficiaries covered
by H–2B returning worker petitions that were approved for FY 2007.” 34 All subsequent rules
have likewise cited 64,716 as the statutorily allowable maximum.
In implementing the FY2017 statutory provision, DHS decided to limit eligibility for the
additional H-2B workers to certain U.S. businesses. The FY2017 rule required each prospective
H-2B employer to submit to DHS, along with the H-2B petition, a new attestation form
“evidencing that without the ability to employ all of the H–2B workers requested on the petition
... its business is likely to suffer irreparable harm (that is, permanent and severe financial loss).” 35
Each subsequent rule has included a version of this requirement.
FY2017 Rule
In July 2017, DHS and DOL jointly published a final rule to implement the FY2017 provision.
The rule temporarily amended DHS regulations on the H-2B visa to state that for FY2017, DHS
“has authorized up to an additional 15,000 aliens who may receive H–2B nonimmigrant visas.”36
The preamble to the rule included the following explanation for limiting the FY2017 numerical
increase to 15,000:
Most recently, in FY 2016, 18,090 returning workers were approved for H–2B petitions,
despite Congress having reauthorized the returning worker program with more than three-
quarters of the fiscal year remaining. Of those 18,090 workers authorized for admission,
13,382 were admitted into the United States or otherwise acquired H–2B status.... [T]he
Secretary, in consideration of the statute’s reference to returning workers, determined that
it would be appropriate to use these recent figures as a basis for the maximum numerical
limitation under section 543. This rule therefore authorizes up to 15,000 additional H–2B
visas (rounded up from 13,382) for FY 2017.37

33 See U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training
Administration, “Exercise of Time-Limited Authority To Increase the Fiscal Year 2017 Numerical Limitation for the
H–2B Temporary Nonagricultural Worker Program,” 82 Federal Register 32987, 32989 (footnote 11), July 19, 2017
(hereinafter cited as “2017 final rule”).
34 Ibid. p. 32988 (footnote 4). Some other interested parties, however, take the position that 69,320 is the most
appropriate maximum number authorized by the statutory language. This higher figure represents the number of visas
issued to returning H-2B workers in FY2007, according to publicly available State Department data. See, for example,
the comments of an executive in the landscaping industry in Janet H. Cho, “Area Employers Complain about Tightened
Temp Visas,” Plain Dealer, October 7, 2018, p. F1. State Department data on visa issuances to H-2B returning workers
(available for FY2005-FY2007) can be found at https://travel.state.gov/content/dam/visas/Statistics/
FY09AnnualReport_TableXVI_B.pdf.
35 See 8 C.F.R. §214.2 (h)(6)(x)(B)(2) (effective July 19, 2017, through September 30, 2017) in 2017 final rule, p.
32998.
36 See 8 C.F.R. §214.2 (h)(6)(x)(A) (effective July 19, 2017, through September 30, 2017) in 2017 final rule, p. 32998.
37 2017 final rule, p. 32990.
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FY2018 Rule
In May 2018, DHS and DOL jointly published a final rule to implement the FY2018 H-2B cap-
related provision.38 The FY2018 rule temporarily amended DHS H-2B regulations to authorize
the issuance of up to 15,000 additional H–2B visas.39 In the preamble to the FY2018 rule, DHS
explained its decision to authorize up to 15,000 additional visas despite the fact that all 15,000
additional visas authorized in FY2017 were not used.
Out of a maximum of 15,000 supplemental H–2B visas for FY 2017, a total of 12,294
beneficiaries were approved for H–2B classification.... [T]he Secretary has determined that
it is appropriate to authorize 15,000 additional visas again, as employers will have a longer
period in which to submit their petitions due to the earlier publication date of this rule,
thereby allowing for the possibility of more petitions being filed this fiscal year than in FY
2017.40
FY2019 Rule
In May 2019, DHS and DOL jointly published a final rule to implement the FY2019 provision.41
The FY2019 rule temporarily amended DHS H-2B regulations to authorize the issuance of up to
30,000 additional H–2B visas.42 DHS explained this decision as follows:
In setting the number of additional H–2B visas to be made available during FY 2019, DHS
considered this number [i.e., 64,716], overall indications of increased need, and the time
remaining in FY 2019, and determined that it would be appropriate to limit the
supplemental cap to approximately half of the highest number for returning workers, or up
to 30,000.43
The FY2019 rule imposed a limitation not applicable under the FY2017 or FY2018 rules. It
stipulated that an employer could request supplemental visas only for H-2B workers “who were
issued H–2B visas or were otherwise granted H–2B status in Fiscal Years 2016, 2017, or 2018.”44
DHS offered the following rationale for limiting the additional visas to these H-2B returning
workers:
Such workers (i.e., those who recently participated in the H–2B program) have previously
obtained H– 2B visas and therefore been vetted by DOS, would have departed the United
States after their authorized period of stay as generally required by the terms of their
nonimmigrant admission, and therefore may obtain their new visas through DOS and begin
work more expeditiously.45

38 U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Exercise of Time-Limited Authority To Increase the Fiscal Year 2018 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program,” 83 Federal Register 24905, May 31, 2018.
39 See 8 C.F.R. §214.2 (h)(6)(x)(A) (effective May 31, 2018, through September 30, 2018) in ibid. p. 24917.
40 Ibid. p. 24908.
41 U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Exercise of Time-Limited Authority To Increase the Fiscal Year 2019 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program,” 84 Federal Register 20005, May 8, 2019.
42 See 8 C.F.R. §214.2 (h)(6)(x)(A) (effective May 8, 2019, through September 30, 2019) in ibid. p. 20020.
43 Ibid. p. 20009.
44 See 8 C.F.R. §214.2 (h)(6)(x)(A) (effective May 8, 2019, through September 30, 2019) in ibid. p. 20020. This
language does not require the workers to have been counted against the H-2B cap in any of the three years, unlike the
previous statutory returning worker provisions (see “Returning Worker Exemption”). See ibid. p. 20007 (footnote 11).
45 Ibid. p. 20008.
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The preamble to the rule highlighted the importance, in particular, of returning workers’ proven
“willingness to return home after they have completed their temporary labor or services or their
period of authorized stay.”46 It stated:
The returning workers condition therefore provides a basis to believe that H–2B workers
under this cap increase will likely return home again after another temporary stay in the
United States. That same basis does not exist for non-returning workers, not all of whom
have a track record of returning home. Although the returning worker requirement limits
the flexibility of employers, the requirement provides an important safeguard, which DHS
deems paramount.47
FY2021 Rule
In May 2021, DHS and DOL jointly published a final rule to implement the FY2021 provision.48
In the preamble, DHS explained that, despite the COVID–19 public health emergency, it thought
it was “appropriate to increase the H–2B cap coupled with additional protections.”49 The FY2021
rule temporarily amended DHS H-2B regulations to authorize the issuance of up to 22,000
additional H–2B visas.50 DHS characterized this decision as the product of “a balancing of a
number of factors,” among them “the demand for H-2B visas for the second half of FY 2021;
current economic conditions; the increased demand for supplemental visas from FY2017 to FY
2019; H–2B returning worker data;” and congressional concern about “the unavailability of H–2B
visas for late-season employers.”51
In a change from prior rules, the FY2021 rule’s 22,000 supplemental visas were divided into two
separate allocations. One allocation (of 16,000 visas) was limited to H-2B returning workers. The
rule defined these workers as persons issued H–2B visas or otherwise granted H–2B status in
FY2018, FY2019, or FY2020.52
The remaining 6,000 visas comprised a separate allocation, which was reserved for nationals of
Guatemala, El Salvador, and Honduras.53 As noted, DHS had planned to set aside supplemental
H-2B visas for these Northern Triangle countries in FY2020 but did not end up authorizing any
supplemental visas that year. In the preamble to the FY2021 rule, DHS discussed its reasons for
choosing the number 6,000, describing it as “a number significantly higher than the average
annual number of visas issued to such persons in the past 6 fiscal years.”54 According to DHS,
this set-aside

46 Ibid.
47 Ibid.
48 U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To Change Employers,” 86
Federal Register 28198, May 25, 2021 (hereinafter cited as “2021 final rule”).
49 Ibid. p. 28202.
50 See 8 C.F.R. §214.2 (h)(6)(x)(A) (effective May 25, 2021, through September 30, 2021) in ibid. p. 28230.
51 2021 final rule, p. 28205.
52 See 8 C.F.R. §214.2 (h)(6)(x)(A)(1) (effective May 25, 2021, through September 30, 2021) in ibid. p. 28230. The
rationale provided in the FY2021 rule preamble for restricting these visas to returning workers echoed the arguments
provided for this same restriction in the FY2019 rulemaking.
53 See 8 C.F.R. §214.2 (h)(6)(x)(A)(2) (effective May 25, 2021, through September 30, 2021) in ibid.
54 2021 final rule, p. 28208.
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will encourage U.S. employers who face a likelihood of irreparable harm to seek out
workers from such countries, while, at the same time, increase interest among nationals of
the Northern Triangle countries seeking temporary employment in the United States.55
The 6,000 visas allocated for the Northern Triangle under the FY2021 rule were not subject to the
returning worker requirement. The rule required, however, that petitions for these visas be
received by July 8, 2021. After that date, any remaining visas would be made available to H-2B
returning workers of any nationality eligible to participate in the H-2B program.
The FY2021 rule included more expansive employer attestation requirements than its
predecessors. In addition to evidencing that without the requested H-2B workers its business was
likely to suffer irreparable harm, an employer seeking supplemental visas had to attest that it
would “comply with all Federal, State, and local employment-related laws and regulations,
including health and safety laws and laws related to COVID–19 worker protections” and would
“fully cooperate with any audit, investigation, compliance review, evaluation, verification, or
inspection conducted by DOL,”56 among other items.
FY2022 Rule
DHS and DOL jointly published two FY2022 final rules to exercise authority to make
supplemental H-2B visas available for both the first and second halves of the fiscal year. This
marked the first time that DHS had authorized supplemental H-2B visas for the first half of a
fiscal year.
The first FY2022 rule was published in January 2022.57 It temporarily amended DHS H-2B
regulations to authorize the issuance of up to 20,000 additional H–2B visas based on petitions
requesting employment start dates on or before March 31, 2022 (the last day of the first half of
FY2022). As under the FY2021 rule, the supplemental visas were divided into two separate
allocations: 13,500 visas for returning workers who had been issued an H-2B visa or granted H-
2B status in FY2019, FY2020, or FY2021; and 6,500 visas for nationals of the Northern Triangle
countries or Haiti.58 Also consistent with the FY2021 rule, the latter allocation was not subject to
a returning-worker requirement.
The second FY2022 rule, which was issued in May 2022, again temporarily amended DHS
regulations, in this case to authorize the issuance of up to 35,000 additional H-2B visas.59 As
under the first FY2022 rule, there were two separate allocations: 23,500 visas for returning

55 Ibid.
56 See 8 C.F.R. §214.2 (h)(6)(x)(B)(2)(iii), (vii) (effective May 25, 2021, through September 30, 2021) in ibid. pp.
28230-28231.
57 U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To Change Employers,” 87
Federal Register 4722, January 28, 2022 (hereinafter cited as “FY2022 final rule, January 28, 2022”).
58 See 8 C.F.R. §214.2 (h)(6)(xi)(A) (effective January 28, 2022, through September 30, 2022) in ibid. p. 4758.
Regarding the inclusion of Haiti, the preamble stated, “DHS recognizes the recent challenges, such as political
instability, increasing gang-related violence, and a 7.2 magnitude earthquake that have occurred in that country, and
believes that the H-2B program will provide a stabilizing lawful channel for Haitian nationals seeking to enter the
United States for economic opportunities.” Ibid. p. 4728.
59 U.S. Department of Homeland Security and U.S. Department of Labor, Employment and Training Administration,
“Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H–2B
Temporary Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To Change
Employers,” 87 Federal Register 30334, May 18, 2022 (hereinafter cited as “FY2022 final rule, May 18, 2022”).
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workers who had been issued an H-2B visa or granted H-2B status in FY2019, FY2020, or
FY2021; and 11,500 visas for nationals of the Northern Triangle countries or Haiti, which was not
subject to a returning-worker requirement.60 Notably, unlike the FY2021 rule, neither of the
FY2022 rules provided for any unused visas in the allocation for the Northern Triangle and Haiti
to be made available for returning workers.
Like its predecessors, the FY2022 rules included attestation requirements, including one
concerning irreparable harm. As discussed, under the prior rules, an employer petitioning for H-
2B workers under the supplemental allocations had to attest that without the ability to employ the
requested workers, its business was likely to suffer irreparable harm (see the “Common Elements
of Implementing Rules”
section). The FY2022 rules revised this language to require an employer
to attest instead that “its business is suffering irreparable harm or will suffer impending
irreparable harm ... without the ability to employ all of the H–2B workers requested.”61 According
to the preamble to the first FY2022 rule:
This change is designed to focus more directly on the actual irreparable harm employers
are suffering or the impending irreparable harm they will suffer as a result of their inability
to employ H–2B workers, rather than on just the possibility of such harm.62
This preamble also noted that ‘‘the ‘likely to suffer irreparable harm’ standard has been difficult
to assess and administer in the context of prior supplemental cap rules.”63 The FY2022 attestation
requirements otherwise mirrored those in the FY2021 rule.
Implementation of H-2B Numerical Limits
USCIS is responsible for implementing the numerical limits on the H-2B visa, which it does at
the petition receipt stage. Under DHS regulations:
When calculating the numerical limitations ... USCIS will make numbers available to
petitions in the order in which the petitions are filed. USCIS will make projections of the
number of petitions necessary to achieve the numerical limit of approvals, taking into
account historical data related to approvals, denials, revocations, and other relevant factors.
USCIS will monitor the number of petitions (including the number of beneficiaries
requested when necessary) received and will notify the public of the date that USCIS has
received the necessary number of petitions (the “final receipt date”).64
The regulations provide for the use of random selection procedures (lotteries) “when necessary to
ensure the fair and orderly allocation of numbers subject to the numerical limitations.” Under the
regulations, “USCIS may randomly select from among the petitions received on the final receipt
date the remaining number of petitions deemed necessary to generate the numerical limit of
approvals.” The regulations also direct USCIS to use random selection procedures when the final

60 See 8 C.F.R. §214.2 (h)(6)(xii)(A) (effective May 18, 2022, through September 30, 2022) in ibid. p. 30375.
61 8 C.F.R. §214.2 (h)(6)(xi)(B)(2)(i) (effective January 28, 2022, through September 30, 2022) in FY2022 final rule,
January 28, 2022, p. 4759; 8 C.F.R. §214.2 (h)(6)(xii)(B)(2)(i) (effective May 18, 2022, through September 30, 2022)
in FY2022 final rule, May 18, 2022, p. 30375.
62 FY2022 final rule, January 28, 2022, p. 4734.
63 Ibid.
64 8 C.F.R. §214.2(h)(8)(vii). For a discussion of USCIS implementation of the H-2B cap over the years, see U.S.
Department of Homeland Security, U.S. Citizenship and Immigration Services, H-2B Usage and Recommendations,
Fiscal Year 2016 Report to Congress, July 22, 2016, https://www.dhs.gov/sites/default/files/publications/
U.S.%20Citizenship%20and%20Immigration%20Services%20-%20H-
2B%20Usage%20and%20Recommendations.pdf.
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receipt date (the date on which the applicable H-2B cap is reached) falls on one of the first five
business days on which petitions subject to the cap can be filed. In such a case, “USCIS will
randomly apply all of the numbers among the petitions received on any of those five business
days.”65
In one recent year, the final receipt date announced by USCIS ended up being too early. For
FY2015, USCIS announced on April 2, 2015, that March 26, 2015, was the final receipt date for
new H-2B petitions. The agency had accepted about 3,900 H-2B petitions for FY2015 through
March 26, 2015, which it believed to be sufficient to reach the annual 66,000 cap. In early June
2015, however, USCIS announced that it would reopen the H-2B cap for the second half of
FY2015 and accept additional petitions for new H-2B workers. It offered the following public
explanation:
USCIS continues to work in collaboration with DOS to monitor the issuance of H-2B visas
and has determined that as of June 5, 2015, DOS received fewer than the expected number
of requests for H-2B visas. A recent analysis of DOS H-2B visa issuance and USCIS
petition data reveals that the number of actual H-2B visas issued by DOS is substantially
less than the number of H-2B beneficiaries seeking consular notification listed on cap-
subject H-2B petitions approved by USCIS. In light of this new information, USCIS has
determined that there are still available H-2B visa numbers remaining for the second half
of the FY15 cap.66
Following a brief reopening, USCIS announced that June 11, 2015, was the final receipt date for
new H-2B worker petitions for FY2015.
Since FY2015, the semiannual cap of 33,000 has been reached in each half of the fiscal year.
Employer demand has been particularly strong for H-2B visas for the second half of the year (for
employment beginning April 1 to September 30), with the final receipt date for new H-2B worker
petitions falling in March in FY201767 and in February in each year from FY2018 to FY2022.68
Developments Since FY2018
Employer demand for H-2B workers has reached new heights since FY2018, especially in the
second half of the fiscal year. This growth has particularly impacted DOL, which does not cut off
labor certification application processing once DHS determines that the H-2B cap has been
reached.

65 8 C.F.R. §214.2(h)(8)(vii).
66 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, archived content, “USCIS to
Reopen H-2B Cap for the Second Half of Fiscal Year 2015,” June 5, 2015, http://www.uscis.gov/news/alerts/uscis-
reopen-h-2b-cap-second-half-fiscal-year-2015.
67 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “USCIS Reaches the H-2B Cap
for Fiscal Year 2017,” March 16, 2017, https://www.uscis.gov/news/alerts/uscis-reaches-h-2b-cap-fiscal-year-2017.
68 U.S. Department of Homeland Security, “DHS Announces Additional Visas for Foreign Workers to Assist American
Businesses at Risk of Failing,” May 31, 2018, https://www.dhs.gov/news/2018/05/31/dhs-announces-additional-visas-
foreign-workers-assist-american-businesses-risk (archived content); U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, “H-2B Cap Reached for FY 2019,” February 22, 2019, https://www.uscis.gov/
news/alerts/h-2b-cap-reached-fy-2019 (archived content); U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, “H-2B Cap Reached for Second Half of FY2020,” February 26, 2020, https://www.uscis.gov/
news/alerts/h-2b-cap-reached-second-half-fy2020; U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services, “H-2B Cap Reached for Second Half of FY 2021,” February 24, 2021, https://www.uscis.gov/
news/alerts/h-2b-cap-reached-for-second-half-of-fy-2021; and U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, “H-2B Cap Reached for Second Half of FY 2022,” March 1, 2022,
https://www.uscis.gov/newsroom/alerts/h-2b-cap-reached-for-second-half-of-fy-2022.
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For FY2018, in accordance with H-2B regulations, January 1, 2018, was the first date that
employers could submit H-2B temporary labor certifications to DOL requesting a work start date
of April 1, 2018 (the first start date in the second half of FY2018). On January 1, DOL received
about 4,498 applications requesting an April 1 start date; those applications covered 81,008
workers. In response, DOL announced a change in its procedures. It indicated in a Federal
Register
notice that it would not begin releasing certified H–2B applications, which employers
need in order to petition USCIS for H-2B workers (see the “H-2B Nonagricultural Worker Visa”
section), until February 20, 2018, and on that date, it would issue such certified applications in
order of receipt.69 DOL offered the following explanation for adopting this procedure:
This process change will allow employers who filed promptly on January 1, 2018,
sufficient time to meet regulatory requirements, including the recruitment and hiring of
qualified and available U.S. workers, thus preserving the sequential order of filing that took
place on January 1, 2018, to the extent possible.70
On March 1, 2018, USCIS announced that in the first five business days of accepting H-2B
petitions for the second half of FY2018, it had received petitions requesting about 47,000 cap-
subject H-2B workers, more than could be accommodated under the 33,000 limitation for the
second half of FY2018. This was the first time that the final receipt date for H-2B petitions had
ever fallen within the first five days of filing, thus triggering a lottery to randomly select a
sufficient number of these petitions to meet the statutory cap.71
As discussed, on May 31, 2018, USCIS published a final rule authorizing the issuance of up to
15,000 additional H–2B visas for FY2018. In the first five business days of accepting petitions
under this supplemental cap, USCIS received petitions for more beneficiaries than the number of
H-2B visas available. As a result, it conducted a second FY2018 H-2B lottery on June 7, 2018, to
randomly select a sufficient number of petitions to meet the supplemental cap.72
Demand for H-2B workers continued to increase in FY2019. January 1, 2019, was the first day
that employers could file H-2B labor certification applications for the second half of FY2019. On
January 2, 2019, DOL announced that due to high demand its iCERT online application filing
system had “experienced a system disruption” on January 1, 2019, that prevented some
employers from submitting their H-2B certification applications: “Within the first five minutes of
opening the semi-annual H-2B certification process on January 1, 2019, the U.S. Department of
Labor iCERT system had an unprecedented demand for H-2B certifications with more than
97,800 workers requested in pending applications for the 33,000 available visas.”73 When the

69 U.S. Department of Labor, Employment and Training Administration, “Labor Certification Process for the
Temporary Employment of Aliens in Non-Agricultural Employment in the United States,” 83 Federal Register 3189,
January 23, 2018.
70 Ibid. p. 3190.
71 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “USCIS Completes Random
Selection Process for H-2B Visa Cap for Second Half of FY 2018,” March 1, 2018, https://www.uscis.gov/news/news-
releases/uscis-completes-random-selection-process-h-2b-visa-cap-second-half-fy-2018-0 (archived content). By
contrast, lotteries have been held regularly under the separate H-1B visa for professional specialty workers. For
information about the H-1B visa, see CRS Report R47159, Temporary Professional Foreign Workers: Background,
Trends, and Policy Issues
.
72 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, “USCIS Completes Lottery for
Temporary Increase in FY 2018 H-2B Cap,” June 11, 2018, https://www.uscis.gov/news/alerts/uscis-completes-lottery-
temporary-increase-fy-2018-h-2b-cap (archived content).
73 U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
Announcements, “January 2, 2019. Important Announcement Regarding the Availability of the iCERT System for H-
2B Program Filings,” https://www.dol.gov/agencies/eta/foreign-labor/news.
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system re-opened on January 7, 2019, it “handled the submission of approximately 4,749 H-2B
applications covering more than 87,900 workers positions for an April 1, 2019, start date of work
within the first one hour of operation.”74
Revised DOL Procedures
In February 2019, in light of its experience with H-2B submissions in January 2019 and the
resulting unanticipated “burdens” placed on “its electronic filing system, network infrastructure,
and staff resources,” DOL announced new H-2B temporary labor certification application
processing changes for FY2020.75 It indicated that beginning with H-2B certification applications
for the first half of FY2020, it would randomly order and assign for processing all applications
submitted within designated groups. The first group would consist of applications requesting the
earliest start date of work (e.g., October 1, 2019, for the first half of FY2020) and filed during the
first three calendar days of the filing period (e.g., July 3-5, 2019, for the first half of FY2020).
DOL maintained that this new process “balances employers’ interest in utilizing the H-2B
program with OFLC’s [DOL’s Office of Foreign Labor Certification’s] interest in ensuring that
access to its filing system is equitable and occurs with no user disruption.”76
These new DOL procedures took effect on July 3, 2019, the earliest filing date for the first half of
FY2020. In the first three filing days, DOL received 493 H-2B labor certification applications
requesting a work start date of October 1, 2019. These applications covered 12,098 worker
positions, less than the 33,000 semiannual H-2B allotment for the first half of FY2020. DOL
assigned all the applications to Group A for processing.77
During the first three filing days for the second half of FY2020 (January 2-4, 2020), DOL
received 5,677 H-2B labor certification applications requesting the earliest work start date of
April 1, 2020. These applications covered 99,362 worker positions. DOL randomly assigned these
applications to assignment groups in accordance with its new procedures. It reported that Group A
included a sufficient number of workers to reach the 33,000 allotment for the second half of
FY2020. It also indicated that it had randomly assigned the remaining applications to four other
groups (Groups B-E), each including no more than 20,000 worker positions.78
This same pattern of labor certification filing and group assignment continued for FY2021,
FY2022, and the first half of FY202379 with the number of requested positions for the earliest

74 U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
Announcements, “January 7, 2019. OFLC Issues Status Update on the iCERT System,” https://www.dol.gov/agencies/
eta/foreign-labor/news.
75 U.S. Department of Labor, Employment and Training Administration, “Selection Procedures for Reviewing
Applications Filed by Employers Seeking Temporary Employment of H-2B Foreign Workers in the United States,” 84
Federal Register 7399, 7401, March 4, 2019.
76 Ibid. pp. 7401-7402.
77 U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
Announcements, “July 15, 2019. OFLC Announces List of Randomized H-2B Applications Submitted July 3-5 for
Employers Seeking H-2B Workers Starting October 1, 2019,” https://www.dol.gov/agencies/eta/foreign-labor/news .
78 U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
Announcements, “January 6, 2020. OFLC Conducts Randomization Process on H-2B Applications Requesting an April
1, 2020, Work Start Date,” and “January 8, 2020. OFLC Publishes List of Randomized H-2B Applications Submitted
January 2-4 for Employers Seeking H-2B Workers Starting April 1, 2020,” both available at https://www.dol.gov/
agencies/eta/foreign-labor/news.
79 The filing period for the first half of FY2023 began on July 3, 2022.
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work start date falling below the semiannual cap for the first half of the fiscal year (and
associated applications all being assigned to the same group) and exceeding the cap for the
second half (and associated applications being randomly assigned to multiple groups). Filings for
FY2022 provide an example. For the first half of FY2022, DOL received 873 H-2B applications
requesting 21,116 worker positions during the initial three-day filing window (July 3-5, 2021)
with an October 1, 2021, work start date. For the second half of FY2022, DOL received 7,875 H-
2B applications requesting 136,555 worker positions during the initial three-day filing window
(January 1-3, 2022) with an April 1, 2022, start date.80
Data on Grants of H-2B Status
In any year, most, but not all, foreign nationals who obtain H-2B status acquire that status through
admission to the United States on H-2B visas. Those who obtain H-2B status but are not issued
visas include H-2B workers who are admitted to the United States without visas (mostly
Canadians) and individuals who change to H-2B status while in the United States.81 Regarding
the latter category, USCIS data show that about 1,900 persons in FY2006 and about 2,200 in
FY2007 were approved for a change to H-2B status; since then, from FY2008 to FY2021, the
number of individuals approved for a change to H-2B status each year ranged from about 110 (in
FY2017) to about 700 (in FY2021).82
H-2B Visa Issuances
Figure 1
provides data on H-2B visa issuances from FY1992 through FY2021. These data offer
one way to measure the growth of the H-2B program over the years. As explained above, the visa
application and issuance process occurs after DOL has granted labor certification and DHS has
approved the visa petition.

80 U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
Announcements, “July 7, 2021. OFLC Conducts Randomization Process on H-2B Applications Submitted Requesting
an October 1, 2021, Work Start Date,” and “January 4, 2022. OFLC Conducts Randomization Process on H-2B
Applications Submitted Requesting an April 1, 2022, Work Start Date,” both available at https://www.dol.gov/
agencies/eta/foreign-labor/news.
81 Individuals in these categories are counted against the H-2B cap. Note, however, that a Canadian H-2B worker
admitted without a visa may cross the U.S. border multiple times while working for an employer on the basis of an H-
2B petition, but is only counted against the H-2B cap on the first U.S. admission.
82 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Characteristics of H-2B
Nonagricultural Temporary Workers
…, FY2007-FY2021. Reports are available from USCIS at
https://www.uscis.gov/tools/reports-studies/reports-and-studies (under the “Program Reports: H-2B” tab).
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The H-2B Visa and the Statutory Cap

Figure 1. H-2B Visas Issued, FY1992-FY2021

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
As illustrated in Figure 1, the number of H-2B visas issued generally increased from FY1992
until FY2007, when H-2B visa issuances reached a highpoint of 129,547 (see the Appendix for
yearly visa issuance data). H-2B visa issuances fell after FY2007 with the start of the economic
recession, but, as shown in Figure 1, have generally been increasing since FY2009.
In FY2005-FY2007 and FY2016-FY2021, as discussed, temporary provisions authorized visa
issuances above the statutory annual cap of 66,000. In some other years in which visa issuances
surpassed 66,000, it seems reasonable to assume that the H-2B cap was exceeded given the
magnitude of the numbers.83
Conclusion
With employer demand for H-2B visas exceeding supply, H-2B admissions and the statutory cap
are once again receiving attention from policymakers. While previous Congresses considered
broad immigration reform bills that included proposals for new temporary worker programs to
address any perceived shortfalls in the supply of foreign workers, any legislative efforts to
address the numerical limitations on nonagricultural guest workers in the near term seem likely to
be focused on the existing H-2B program.

83 It should be noted, however, that for various reasons not all visas issued during a fiscal year necessarily count against
that year’s cap or, in some cases, any year’s cap.
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The H-2B Visa and the Statutory Cap

Appendix. H-2B Visa Issuances
Table A-1. Number of H-2B Visas Issued, FY1992-FY2021
Fiscal Year
H-2B Visas Issued
1992
12,552
1993
9,691
1994
10,400
1995
11,737
1996
12,200
1997
15,706
1998
20,192
1999
30,642
2000
45,037
2001
58,215
2002
62,591
2003
78,955
2004
76,169
2005
89,135
2006
122,541
2007
129,547
2008
94,304
2009
44,847
2010
47,403
2011
50,826
2012
50,009
2013
57,600
2014
68,102
2015
69,684
2016
84,627
2017
83,600
2018
83,774
2019
97,623
2020
61,865
2021
95,053
Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Note: For various reasons, not all visas issued during a fiscal year necessarily count against that year’s
cap or, in some cases, any year’s cap.
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The H-2B Visa and the Statutory Cap


Author Information

Andorra Bruno

Specialist in Immigration Policy



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This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
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Congressional Research Service
R44306 · VERSION 11 · UPDATED
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