DHS Proposes Rule to Modernize H-2 Temporary Visa Programs and Enhance Worker Protections

WASHINGTON – The Department of Homeland Security (DHS) has initiated measures to fortify safeguards for temporary workers participating in the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs (H-2 programs). In a notice of proposed rulemaking (NPRM) published today, DHS aims to modernize and enhance the efficiency of the H-2 programs, providing increased flexibility and protections for participating workers. This proposal includes reinforcing safeguards against exploitative practices by employers, with the addition of whistleblower protections.

Secretary of Homeland Security Alejandro N. Mayorkas stated, “For years, H-2A and H-2B temporary worker visa recipients have been essential to our seasonal and agricultural economies. These proposed reforms will assist U.S. employers in addressing worker shortages through new program flexibilities and ensuring that this vulnerable workforce receives the protections they deserve. In collaboration with our partners across the Biden-Harris administration, DHS is committed to safeguarding our economy, security, and American values.”

The H-2 programs enable certain U.S. employers or agents to bring foreign nationals to fill temporary jobs where an insufficient number of qualified U.S. workers is available. Employers or agents must submit Form I-129, Petition for a Nonimmigrant Worker, accompanied by a certification from the Department of Labor, justifying the need for foreign workers and ensuring their employment does not adversely affect U.S. workers.

Proposed regulations introduce measures to hold employers accountable, making them ineligible for available visas if they violate H-2B program requirements. To enhance program integrity and protect workers, the rule clarifies prohibitions on employer-imposed fees and strengthens consequences for collecting prohibited fees from H-2 workers, preventing exploitative debts and abuse. Additionally, the proposal offers greater flexibility for H-2 workers by extending grace periods for seeking new employment, preparing for departure, or requesting a change of immigration status, promoting clarity and enhancing worker flexibility, mobility, and protections.

Employers stand to benefit from the proposed rule, with provisions making H-2 portability permanent. This enables employers facing worker shortages to hire H-2 workers already lawfully in the U.S. while their H-2 petition is pending.

Given the substantial growth in the H-2 programs, the Biden-Harris Administration has expanded access to address labor shortages and ensure a safe, orderly, and humane migration strategy.

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