Practice Alert: Supplemental H-2B Visa Number Availability for Second Half of FY2023

For the second half of Fiscal Year 2023 (FY2023) H-2B cap where employers’ dates of need run between April 1, 2023, and September 30, 2023, visa numbers remain available for workers from Northern Triangle countries (El Salvador, Guatemala, and Honduras) and Haiti.

Employers with a Form ETA 9142B with a start date of May 15, 2023, or after may file under the Supplemental Cap Rule reserved for “returning workers.” [87 FR 76816]. A “returning worker” is defined as an employee who has held an H-2B visa at least once in the last three fiscal years (FY2022, FY2021, or FY2020).

Here are some tips to keep in mind:

1. H-2B employers filing Form I-129 Petitions with USCIS for these beneficiaries must remember to include the CAA-7 Attestation Form.
   https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/Form%20ETA%209142-B-CAA-7_Attestation%20Compliant%20FINAL%2012.2022.pdf
2. H-2B employees currently working in the United States may transfer to another employer by having the new employer file a Form I-129 with USCIS that requests a change of employer.
3. Employers may also file Form I-129 with USCIS for H-2B workers who have previously been counted against the FY2023 H-2B cap, by entering the country on an H-2B visa on or after October 1, 2022, regardless of where the workers are located now.
4. Under the Supplemental Cap Rule, the H-2B visa does not need to have been with the same employer.