On the heels of the U.S. Department of Labor’s announcing plans to revise its H-2A program, the U.S. Department of Homeland Security (DHS) is proposing amendments to its H-2A and H-2B regulations. The proposed changes would “ensure the integrity of the H-2 programs and enhance protections for workers.”

Quick Hits

• DHS has released a notice of proposed rulemaking aimed at modernizing H-2A and H-2B program requirements, oversight, and worker protections.
• Comments on the proposed rule are due no later than November 20, 2023.

Highlights of the Proposed Rule

DHS’s goal is to “modernize and improve” both the H-2A and H-2B regulations to “strengthen worker protections and the integrity of the H-2 programs, provide greater flexibility for H-2A and H-2B workers, and improve program efficiency.” DHS’s proposed rulemaking would include:

• Strengthening the existing prohibitions on, and consequences for, charging certain fees to H-2A and H-2B workers
• Instituting both mandatory and discretionary bars on petitioners that have been found to have violated labor laws or abused the H-2 programs
• Providing workers with “whistleblower protection” comparable to the protection that is currently offered to H-1B workers
• Clarifying requirements for employers to comply with U.S Citizenship and Immigration Services (USCIS) compliance reviews and inspections, as well as clarifying USCIS’s authority to deny or revoke a petition if USCIS is unable to verify information related to the petition
• Providing greater flexibility to workers to allow for arrival up to 10 days prior to the petition’s validity period and allow for up to a 30-day grace period following the expiration of the petition, as well as an extension of the existing 30-day grace period following revocation of an approved petition
• Providing “a new grace period for up to 60 days during which an H-2 worker can cease working for their petitioner while maintaining H-2 status” to “account for other situations in which a worker may unexpectedly need to stop working or wish to seek new employment”
• Making portability a permanent feature of the H-2 program
• Clarifying that, in the case of petition revocation, H-2A employers—like H-2B employers—must provide for reasonable costs of return transportation
• Clarifying that H-2 workers “will not be considered to have failed to maintain their H-2 status solely on the basis of taking certain steps toward becoming lawful permanent residents of the United States”
• Removing the words “abscondment” and “abscond,” and other variations, to emphasize that a worker’s leaving employment, standing alone, does not constitute a basis for assuming wrongdoing by the worker
• Allowing for petition approval for nationals of countries other than those detailed on the H-2–eligible list
• Simplifying regulations surrounding “the effect of a departure from the United States on the 3-year maximum period of stay by providing a uniform standard for resetting the 3-year clock following such a departure”

The H-2 visa program allows employers anticipating a domestic worker shortage to bring foreign workers to the United States to perform labor or services on a temporary or seasonal basis.

Comments on the proposed rule are due no later than November 20, 2023.