On December 2, 2024, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly issued a temporary final rule authorizing up to 64,716 additional H-2B nonimmigrant visas for Fiscal Year 2025.

These supplemental visas are specifically available to U.S. businesses that can demonstrate they are experiencing or will experience irreparable harm without the ability to employ the requested H-2B workers. Employers must attest to this on a new attestation form.

The rule allows for these supplemental visas throughout FY 2025, and to accommodate varying start dates, the visas will be distributed in multiple allocations, including two separate allocations for the second half of the fiscal year. (See “Allocation of Supplemental Visas” for details.)

Of the total 64,716 additional visas, 44,716 are reserved for returning workers (those who received an H-2B visa or status in one of the past three fiscal years). The remaining 20,000 visas are allocated for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation), who are exempt from the returning worker requirement. (See “Who Can Petition for the Additional Visas” for details.) Petitions for these supplemental visas must be received by the designated filing location, currently the Texas Service Center, by September 15, 2025.

This increase in the H-2B cap is based on temporary statutory authority and does not affect the H-2B program in future fiscal years.

The cap increase is authorized under sections 101(6) and 106 of Division A, Title I of the Continuing Appropriations and Extensions Act, 2025 (Public Law 118-83), which extended the authority previously granted in section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024 (Public Law 118-47). This legislation grants the Secretary of DHS the authority to make additional H-2B visas available for FY 2025, after considering business needs and the impact on U.S. workers and the program’s integrity, in consultation with the Secretary of Labor.

Furthermore, on December 18, 2024, DHS published a final rule that will modernize and improve the H-2 nonimmigrant visa programs. This rule, effective January 17, 2025, will allow qualified U.S. employers facing difficulty hiring U.S. workers to petition for foreign nationals to fill temporary or seasonal agricultural and non-agricultural jobs more efficiently.

Eligibility for Additional H-2B Visas Under the Temporary Increase

To petition for the additional H-2B visas made available under the temporary increase, U.S. businesses must demonstrate that they are currently experiencing or will imminently experience irreparable harm, defined as permanent and severe financial loss, if they cannot employ all the H-2B workers requested on their Form I-129 petition.

Furthermore, employers can only request workers who have previously been issued an H-2B visa or granted H-2B status in Fiscal Years 2022, 2023, or 2024, unless they are petitioning for workers under the 20,000 visa country-specific allocation.

It’s important to note that the provisions of the joint temporary final rule pertaining to these supplemental 64,716 visas do not apply to H-2B petitions that are exempt from the standard H-2B cap. This includes petitions for H-2B extensions of stay or those filed on behalf of specific fish roe processors. These exempt petitions must continue to be filed under the regular H-2B program rules.

Distribution of Supplemental H-2B Visas for FY 2025

The 64,716 supplemental H-2B visas for Fiscal Year 2025 are allocated as follows:

• First Half of FY 2025 (October 1 to March 31):

  • 20,716 visas are available for returning workers who held H-2B visas or status in FY 2022, 2023, or 2024, regardless of nationality.
  • Employment start dates must be on or before March 31, 2025.
  • USCIS announced on January 10, 2025, that this allocation cap had been reached.

 

• Early Second Half of FY 2025 (April 1 to May 14):

  • 19,000 visas are available for returning workers who held H-2B visas or status in FY 2022, 2023, or 2024, regardless of nationality.
  • Employment start dates must be between April 1, 2025, and May 14, 2025.
  • Employers can file petitions no earlier than March 20, 2025 (15 days after the second half statutory cap was reached).

 

• Late Second Half of FY 2025 (May 15 to September 30):

  • 5,000 visas are available for returning workers who held H-2B visas or status in FY 2022, 2023, or 2024, regardless of nationality.
  • Employment start dates must be between May 15, 2025, and September 30, 2025.
  • Employers can file petitions no earlier than April 21, 2025 (45 days after the second half statutory cap was reached).

 

• Entirety of FY 2025 (Country-Specific Allocation):

  • 20,000 visas are reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica, regardless of whether they are returning workers.
  • For employment start dates in the first half of FY 2025 (on or before March 31, 2025), employers can file petitions immediately on or after December 2, 2024.
  • For employment start dates in the second half of FY 2025 (on or after April 1, 2025), employers must file petitions no earlier than March 20, 2025 (15 days after the second half statutory cap was reached).

Country-Specific H-2B Visa Allocation for FY 2025

Out of the 64,716 supplemental H-2B visas available for Fiscal Year 2025, 20,000 are specifically reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. These nationals are exempt from the returning worker requirement.

• Employers seeking to hire workers from these countries with employment start dates on or before March 31, 2025 (first half of FY 2025), could file petitions starting on or after December 2, 2024.
• Employers seeking to hire workers from these countries with employment start dates on or after April 1, 2025 (second half of FY 2025), must file their petitions no earlier than March 20, 2025.

Filing H-2B Petitions for Additional Visas in FY 2025

To accommodate varying employment start dates, the supplemental H-2B visas are distributed across four allocation periods. Employers should refer to the “Allocation of Supplemental Visas” section for specific filing timelines. All petitions for these additional FY 2025 visas must be submitted to the designated current filing location.

Requirements for H-2B Supplemental Cap Petitions:

Petitioners must:

• Meet all standard H-2B eligibility criteria, including obtaining a valid temporary labor certification (TLC) from the DOL covering the entire employment period. The employment start date on the petition must match the TLC, even if that date has passed.
• If applicable, conduct refreshed recruitment for U.S. workers, as outlined in the temporary final rule (required if Form I-129 is filed 30 or more days after the TLC’s certified start date).
• Submit a completed DOL Form ETA 9142-B-CAA-9 attestation, affirming under penalty of perjury that their business is experiencing or will experience irreparable harm without the H-2B workers, and that they are requesting returning workers (unless the worker falls under the country-specific allocation). Follow the DOL Form ETA 9142-B-CAA-9 Instructions when completing the attestation.

Important Note on Attestation Form:

• USCIS will only accept the current DOL Form ETA 9142-B-CAA-9 for FY 2025. Previous versions of the form (ETA 9142-B-CAA through ETA 9142-B-CAA-8) will not be accepted. Petitions seeking supplemental visas without the correct form will be rejected.

Documentation and Compliance:

• Petitioners must maintain records proving compliance and demonstrating irreparable harm if they cannot employ the requested H-2B workers.
• Petitioners must also prepare and retain a written statement detailing how their evidence demonstrates irreparable harm.
• Records must be retained for three years, proving that petitioned H-2B workers were issued H-2B visas or status in FY 2022, 2023, or 2024 (unless the worker falls under the country-specific allocation).
• Petitioners must provide documentation upon request from DHS or DOL and cooperate with compliance reviews, including audits.
• DHS and DOL intend to conduct numerous post-adjudication audits to verify compliance with attestation requirements and worker protection provisions.
• DHS will increase scrutiny of H-2B applications filed by employers who have a history of labor law violations within the H-2B program.

Key Filing Instructions for Supplemental H-2B Visas

Filing Location:

• Petitions filed under the supplemental visa allocations at any location other than the designated current filing location will be rejected, and filing fees will be returned.

Temporary Labor Certification (TLC) and Employment Start Dates:

• Typically, the employment start date listed on the H-2B petition must match the date authorized on the TLC (see 8 CFR 214.2(h)(6)(iv)(D)). Petitions with mismatched dates will be rejected.
• However, for petitions under this H-2B cap increase, petitioners may use TLCs with past employment start dates, provided the TLC is otherwise valid.

Attestation Requirement:

• Petitions submitted without the required DOL Form ETA 9142-B-CAA-9 attestation may be denied or rejected.

Worker Naming and Eligibility:

• H-2B petitions filed under the supplemental visa allocation can generally request unnamed workers.
• However, these workers must meet the returning worker requirement or be nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica (country-specific allocation).

Petition and Attestation Form Requirements:

• Only one DOL Form ETA 9142-B-CAA-9 attestation is allowed per petition.
• If a petitioner requests both returning workers and workers under the country-specific allocation, they must file separate petitions.
• On the Form ETA 9142-B-CAA-9, the petitioner must specify the supplemental visa allocation they are requesting. Only one allocation should be selected, and all requested workers must qualify for that allocation. Selecting multiple allocations or requesting unqualified workers may result in rejection, denial, or other adverse action.

Change of Status Requests:

• If a petitioner files an H-2B petition under this supplemental visa allocation and requests a change of status for a worker already in the U.S., the change of status request will be denied. However, the petition itself will still be adjudicated to determine H-2B classification eligibility.

Filing Deadline for Supplemental H-2B Visas

USCIS will cease accepting petitions filed under this temporary final rule after September 15, 2025, or once the applicable cap has been reached, whichever comes first. Any petitions received after this deadline will be rejected.

Furthermore, all pending petitions that have not been approved by October 1, 2025, will be denied, and no filing fees will be refunded.

Petitions requesting an employment start date after September 30, 2025, will be considered for the first half of the Fiscal Year 2026 H-2B cap, provided they meet all eligibility requirements for FY 2026 H-2B cap filings.

H-2B Portability Provisions

Beyond the issuance of additional visas for FY 2025, DHS has also utilized its existing H-2B regulatory authority to temporarily extend portability flexibility. This allows certain H-2B workers already in the United States to begin employment with a new employer after USCIS receives their H-2B petition (supported by a valid temporary labor certification), even before the petition is approved. This portability provision aims to enable quicker employer changes for H-2B workers facing unsafe or abusive working conditions.

This extension continues the temporary flexibility granted in the FY 2024 temporary final rule (TFR), which applied to extension of stay petitions received by January 24, 2025. However, DHS has since implemented a permanent portability provision in a final rule, applicable to eligible petitions filed on or after January 17, 2025. The temporary portability provision from the FY 2024 TFR remains in effect for eligible petitions filed before January 17, 2025.

It’s important to note that petitions for H-2B workers already in the U.S. seeking an extension of stay are exempt from the H-2B cap. Therefore, employers requesting immediate employment of these existing H-2B workers following petition filing (and before approval) are not subject to the irreparable harm requirement. Similarly, these petitioners, who are solely seeking portability flexibility for cap-exempt workers, are not required to conduct a renewed recruitment effort or submit Form ETA 9142-B-CAA-9.

To ensure your petitions are filed correctly and efficiently, and to avoid potential delays or denials, we recommend contacting our experienced immigration specialists. We can provide personalized guidance, clarify specific requirements, and assist you in maximizing your chances of a successful application.