Sept 20 -- U.S. Citizenship and Immigration Services (USCIS), DHS, proposes to amend its regulations affecting temporary agricultural (H–2A) and temporary nonagricultural (H–2B) nonimmigrant workers (H–2 programs) and their employers. This notice of proposed rulemaking is intended to better ensure the integrity of the H–2 programs and enhance protections for workers. Written comments must be submitted on or before November 20, 2023.
The purpose of this rulemaking is to modernize and improve the DHS regulations relating to the H–2A temporary agricultural worker program and the H–2B temporary nonagricultural worker program (H–2 programs). Through this proposed rule, DHS seeks 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 proposes to include the following major changes:
Program Integrity and Worker Protections: To improve the integrity of the H–2 programs, DHS is proposing 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 bars to approval 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 proposing to institute certain mandatory and discretionary bars to approval of an H–2A or H–2B petition. In addition, to protect workers who report their employers for program violations, DHS is proposing to provide H–2A and H–2B workers with “whistleblower protection” comparable to the protection that is currently offered to H–1B workers. Additionally, DHS proposes to clarify requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections. DHS also proposes to clarify USCIS's 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: DHS is also proposing changes meant to provide greater flexibility to H–2A and H–2B workers. These changes include adjustments to the existing admission periods before and after the validity dates of an approved petition (grace periods) so that H–2 workers would receive up to 10 days prior to the petition's validity period and up to 30 days following the expiration of the petition, as well as an extension of the existing 30-day grace period 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 status or accruing unlawful presence for up to 60 days. In addition, to account for other situations in which a worker may unexpectedly need to stop working or wish to seek new employment, DHS is proposing to provide 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. Further, in a change meant to work in conjunction with the new grace period provisions, DHS proposes to permanently provide portability—the ability to begin new employment upon the proper filing of an extension of stay petition rather than only upon its approval—to H–2A and H–2B workers. Additionally, in the case of petition revocations, DHS proposes to clarify that H–2A employers have the same responsibility that H–2B employers currently have for reasonable costs of return transportation for the beneficiary. DHS also proposes to clarify 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. Finally, DHS proposes to remove 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 proposes two changes to improve the efficiency of the H–2 programs and to reduce barriers to use of those two programs. First, DHS proposes to remove 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. Second, DHS proposes to simplify 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.
H-2A Temporary Agricultural Workers:
https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers
H-2B Temporary Non-Agricultural Workers:
https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers
FRN:
https://www.federalregister.gov/d/2023-20123 [69 pages]
