United States | DHS finalizes regulation amendments for H-2 programs

The Department of Homeland Security (DHS) announced the final rule for modernizing H-2 program requirements for temporary agricultural (H-2A) and temporary non-agricultural (H-2B) nonimmigrant workers and their employers.

Key Points:

•  The 400+ page rule modernizes and improves DHS regulations relating to H-2 programs and is intended to strengthen worker protections and the integrity of H-2 programs, providing greater flexibility for H-2A and H-2B workers and improving program efficiency.
•  The final rule includes the following major changes:
• Program Integrity and worker protections
  • Significant revisions to the provisions regarding prohibited fees
  • Instituting new bases for denial of some H-2 petitions
  • Providing workers “whistleblower protection” comparable to the protection offered to H-1B workers
  • Clarification of requirements for petitioners and employers to comply with U.S. Customs and Immigration Services (USCIS) reviews and inspections
  • Clarification of USCIS authority to deny or revoke a petition when it is unable to verify certain information related to the petition
• Worker flexibilities
  • Adjustments to validity periods allowing H-2 workers to maintain valid H-2 status for up to 10 days prior to the petition’s validity period and up to 30 days following the petition’s expiration
  • Extension of the existing 30-day grace period following revocation of an approved petition to a period of up to 60 days
  • Establishing a new grace period for up to 60 days allowing H-2 workers to stop working for their petitioner while maintaining H-2 status
  • A permanent portability provision that allows H-2 workers 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
• Improving H-2 program efficiencies and reducing barriers to legal migration
  • Removal of the requirement that USCIS can only approve H-2 petitions from nationals of countries designated by both DHS and the Secretary of State as program eligible
  • Providing a uniform standard for resetting the 3-year clock following worker departures from the U.S.
• The complete ruling can be found here.
• The final rule will be published on Dec. 18, 2024.

Background Information: The Immigration and Nationality Act establishes the H-2A and H-2B nonimmigrant visa classifications for noncitizens coming to the United States to temporarily perform agricultural labor or services or to perform nonagricultural services or labor, respectively.

This alert has been provided by the BAL U.S. Practice Group.

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