DHS and DOL announce availability of additional H-2B visas

DHS and DOL: who does what in immigration and employment

In the U.S., Department of Homeland Security (DHS) and Department of Labor (DOL) share responsibility over work-related immigration. However, their roles are different: DHS decides status and benefits, while DOL protects U.S. workers’ wages and working conditions. Understanding both is essential for clean filings and compliance.

Key DHS components (status, benefits, and enforcement)

USCIS: adjudicates petitions/applications (e.g., H-1B, L-1, O-1, I-140, AOS, EADs).
ICE: worksite enforcement, Form I-9 audits, and employer sanctions.
CBP: admission/parole at ports of entry; I-94 issuance that controls status and authorized stay.

Key DOL components (wages, recruitment, and safety)

ETA/OFLC: PERM labor certification, Prevailing Wage Determinations (PWDs), LCAs for H-1B/H-1B1/E-3, H-2A/H-2B certifications.
WHD: enforces wage/hour promises (H-1B wage, H-2 obligations, back pay, penalties).
OSHA: workplace safety and whistleblower protections.

Where DHS and DOL intersect (common scenarios)

H-1B / E-3 / H-1B1: DOL LCA first (wage & notice), then DHS USCIS petition.
PERM → I-140 (EB-2/EB-3): DOL PERM and PWD precede DHS immigrant petition and later AOS/consular steps.
H-2A/H-2B: DOL certifies need, recruitment, and wages; DHS adjudicates the I-129 and controls worker status/entry.
Compliance & audits: DOL may audit wages/records; DHS/ICE may audit I-9s and employability.

Employer compliance checklist (fast audit-proofing)

I-9s: Complete, timely, and stored separately; correct reverifications; avoid document abuse.
Wages/benches (H-1B): Pay required wage, no unpaid bench, reimburse required fees where applicable.
Public Access File (H-1B): Keep LCA, wage memo, benefits statement, posting proof, and pay system explanation.
PERM hygiene: Consistent job titles/duties/wages across PWD → recruitment → PERM → I-140; retain recruitment and audit files.
H-2A/H-2B: Housing/transport/3-fourths guarantee (as applicable), postings, worker roster, and payroll that matches certifications.
Safety & retaliation: Train on OSHA rules; document policies and complaint channels.

Worker quick guide (know your rights and paperwork)

Keep copies of I-94, approval notices, I-797, I-140/I-765, pay stubs, and job descriptions.
If pay or duties don’t match what was promised, WHD may help; if status/documents are at issue, that’s typically USCIS/ICE/CBP.
Report address changes to USCIS and keep status evidence current; therefore, renew EADs and visas early.

Evidence to bring to a consult

LCAs, PERM, PWDs, recruitment proofs, and posted notices
I-129/I-140 packets, approval/denial/RFE notices
I-9 policy, audit history, and E-Verify settings (if used)
Payroll reports and job descriptions that match filings
Housing/transport records for H-2A/H-2B (if applicable)

FAQs

Does DOL approve my visa?
No. DOL certifies wages/recruitment; DHS/USCIS approves or denies immigration benefits.

Can I fix an LCA or PERM error after filing the USCIS petition?
Sometimes. However, inconsistencies can cause RFEs/denials. We align DOL and DHS records before responding.

Who audits I-9s?
ICE conducts I-9 inspections; WHD audits wage and program compliance (H-1B/H-2). Therefore, prepare for both.

Do remote/hybrid policies affect compliance?
Yes—worksite changes can trigger new LCAs, amended petitions, or updated PERM strategies.

How we help

First, we map which steps are DOL vs DHS for your case. Next, we align job details, wages, and postings to avoid contradictions. Then, we file the right forms in the right order and prepare for audits. Finally, we monitor status, deadlines, and worker onboarding/off-boarding.

Need help coordinating DHS and DOL requirements? Schedule a consultation or call (562) 495-0554.

Disclaimer: General information, not legal advice. Rules and interpretations change; we confirm the requirements in effect when we file.

The Department of Homeland Security (DHS) and the Department of Labor (DOL) have issued a temporary final rule. This rule makes 64,716 additional H-2B temporary nonagricultural worker visas available for fiscal year (FY) 2023. These supplemental visas are for U.S. employers. They need to petition for additional workers during certain periods before September 15, 2023.

Statement from Secretary Mayorkas

“The Department is making supplemental H-2B visas available earlier than ever, ensuring that American businesses can plan for their peak season labor needs,” said DHS Secretary Alejandro N. Mayorkas. “At a time of record job growth, these visas will also provide a safe and lawful pathway for noncitizens prepared to take jobs, filled by American workers.”

Visa Allocation and Caps

The supplemental H-2B visa allocation consists of approximately 44,700 visas for returning workers. These workers received an H-2B visa in the last three fiscal years.