DHS Proposes Modernization of H-2 Framework

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.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to this proposed rule and will provide updates on the Immigration blog as additional information becomes available.

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