In a notice of proposed rulemaking (NPRM) published on September 18, 2023, the Department of Homeland Security proposed modernizing and improving the H-2A temporary agricultural and the H-2B temporary nonagricultural worker programs (H-2 programs) by providing greater flexibility and protections for participating workers and improving the program’s efficiency.
This proposal includes strengthening protections for workers from exploitative conduct by employers, including the addition of whistleblower protections
“For years, H-2A and H-2B temporary worker visa recipients have been essential to our seasonal and agricultural economies,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These proposed reforms will help U.S. employers address worker shortages through new program flexibilities. They will also help provide this vulnerable population of workers with the protections they deserve. Alongside our partners across the Biden-Harris administration, DHS is committed to safeguarding our economy, our security, and our American values.”
H-2 programs allow U.S. employers to bring foreign nationals to the U.S. to fill temporary jobs for which there are not enough U.S. workers who are able, willing, qualified, and available to do the work. The employer or agent must file Form I-129 (Petition for a Nonimmigrant Worker) on behalf of the prospective worker in addition to a certification from the Department of Labor that states why qualified U.S. workers are not available to fill the job opportunity and why a foreign worker’s employment will not adversely affect the wages and working conditions in the U.S.
The proposed regulations penalize employers who violate H-2B program requirements (including employers who fail to demonstrate an ability and intent to follow the program requirements) to potentially be ineligible for the limited number of available visas. The new rule also aims to “improve program integrity and better protect vulnerable workers” by clarifying the prohibition of fees collected by employers for visas and the consequences of enforcing fees.
“It also strengthens the prohibition on, and consequences of, such prohibited fees being collected by employers or recruiters at any time from H-2 workers, protecting workers from incurring exploitive debts and preventing abuse,” reads a DHS statement. “ Further, DHS is proposing greater flexibility for H-2 workers by extending grace periods for seeking new employment, preparing for departure from the United States, or seeking a change of immigration status, which will provide increased clarity and worker flexibility, mobility, and protections.”
The H-2 programs have seen much growth since the Biden administration expanded access to them “as part of its overall strategy to manage safe, orderly, and humane migration to this country and to address labor shortages facing U.S. businesses.” The rule also makes H-2 portability permanent. This allows employers facing worker shortages to hire workers who are already lawfully in the U.S. while the employer’s petition for the worker is pending.
The 60-day public comment period starts following the publication of the NPRM in the Federal Register.
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