DHS Issues Proposed Rule to Modernize H-2 Temporary Visa Programs and Strengthen Worker Protections

WASHINGTON – Today, the Department of Homeland Security (DHS) took steps to strengthen protections for temporary workers through the H-2A temporary agricultural and the H-2B temporary nonagricultural worker programs (H-2 programs). In a notice of proposed rulemaking (NPRM) published today, DHS proposed modernizing and improving the H-2 programs by providing greater flexibility and protections for participating workers, and improving the program’s efficiency. This would include 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.”

The H-2 programs allow certain U.S. employers or agents to bring foreign nationals to the United States to fill temporary jobs for which there are not enough U.S. workers who are able, willing, qualified and available to do the temporary work. The employer or agent must file Form I-129, Petition for a Nonimmigrant Worker, on the prospective worker’s behalf accompanied by 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 of similarly employed workers in the United States.

Under the proposed regulations, employers who violate H-2B program requirements, including employers who fail to demonstrate an ability and intent to follow the program requirements, may be ineligible for the limited number of available visas. To improve program integrity and better protect vulnerable workers, the proposed rule would clarify prohibitions on employer-imposed 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. 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.

This rulemaking would also offer several benefits to employers, including making H-2 portability permanent, which would allow employers who are facing worker shortages to hire H-2 workers who are already lawfully in the United States while the employer’s H-2 petition for the worker is pending.

The H-2 programs have experienced significant growth in recent years. The Biden-Harris Administration has expanded access to the H-2 programs 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 60-day public comment period starts following publication of the NPRM in the Federal Register.