DHS Publishes Final H-2 Visa Rule Strengthening Worker Protections

The Department of Homeland Security (DHS) announced a final rule, Modernizing H-2 Program Requirements, Oversight, and Worker Protections, amending its regulations affecting temporary agricultural (H-2A) and temporary nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their employers. This rulemaking is intended to better ensure the integrity of the H-2 programs and enhance protections for workers.

Summary of the Major Provisions of the Regulatory Action

• Program Integrity and Worker Protections: DHS is making significant revisions to the provisions relating to prohibited fees to strengthen the existing prohibition on, and consequences for, charging certain fees to H-2A and H-2B workers, including new bases for denial for some H-2 petitions.
  • Further, as a significant new program integrity measure and a deterrent to petitioners that have been found to have committed labor law violations or abused the H-2 programs, DHS is instituting certain mandatory and discretionary grounds for denial of an H-2A or H-2B petition.
  • To protect workers who report their employers for program violations, DHS is providing H-2A and H-2B workers with “whistleblower protection” comparable to the protection
    that is currently offered to H-1B workers.
  • DHS is clarifying requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections.
  • DHS is also clarifying USCIS’ authority to deny or revoke a petition if USCIS is unable to verify information related to the petition, including but not limited to where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review.
• Worker Flexibilities: This final rule provides greater flexibility to H-2A and H2B workers.
  • The final rule provides for an extension of the existing 30-day grace period to a period of up to 60 days following revocation of an approved petition during which an H-2
    worker may seek new qualifying employment or prepare for departure from the United States without violating their nonimmigrant H-2 status or accruing unlawful presence.
  • To account for other situations in which a worker may unexpectedly need to stop working or wish to seek new employment, DHS is 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.
  • In a change meant to work in conjunction with the new grace period provisions, DHS is permanently providing portability—the ability to begin new employment with the same or new employer upon the proper filing of an extension of stay petition rather than only upon its approval—to H-2A and H-2B workers.
  • In the case of petition revocations, DHS is clarifying that H-2A employers have the same responsibility that H-2B employers have for reasonable costs of return transportation for the beneficiary.
  • DHS also is clarifying that H-2 workers will not be considered to have failed to maintain their H-2 status and will not have H-2 petitions filed on their behalf denied solely on the basis of taking certain steps mentioned in this rule toward becoming lawful permanent residents of the United States.
  • DHS is removing the phrase “abscondment,” “abscond,” and its other variations to emphasize that the mere fact of leaving employment, standing alone, does not constitute a basis for assuming wrongdoing by the worker.
• Improving H-2 Program Efficiencies and Reducing Barriers to Legal Migration: DHS is making two changes to improve the efficiency of the H-2 programs and to reduce barriers to use of those two programs.
  • DHS is removing the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as eligible to participate in the H-2 programs.
  • DHS is simplifying the regulatory provisions regarding 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 that will allow U.S. companies that need seasonal workers to more quickly and efficiently fill those jobs.

What’s next: In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date.

Erickson Insights and Analysis

Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.