DHS Helps Companies Fill More Jobs, Strengthens Worker Protections in the H-2 Programs with Final Rule

Final Rule strengthens worker protections and program integrity, increases flexibility for workers, and improves program efficiency

WASHINGTON - The Department of Homeland Security (DHS) announced a final rule that will allow U.S. companies that need seasonal workers to more quickly and efficiently fill those jobs. The rule will modernize and improve the H-2 nonimmigrant visa programs, which allow qualified U.S. employers who are unable to hire qualified U.S. workers to petition for foreign nationals to fill temporary or seasonal agricultural and nonagricultural jobs. The final rule significantly strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labor laws, and provides greater flexibility for H-2A and H-2B workers.

"The H-2 programs strengthen our nation's economy by supporting the seasonal labor needs of employers that rely on temporary workers," said Secretary of Homeland Security Alejandro N. Mayorkas. "By modernizing and improving this program, we increase protections for our nation's workers, help maintain economic growth, and better meet the labor demands of American businesses."

"Our H-2 programs are very important to the U.S. economy. Many employers across the country need additional labor on a temporary or seasonal basis, whether it's on our farms or in other industries," said USCIS Director Ur M. Jaddou. "This final rule makes us more efficient in helping U.S. employers fill their temporary or seasonal positions, while also making sure we're protecting both U.S. workers and the noncitizen workers who help fuel our economy."

The rule's provisions span three areas:

Improving Program Efficiency

This final rule removes the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in the H-2 programs, eliminating the need for DHS to compile and publish annual lists of designated countries.

It also simplifies the rules regarding the effect of a departure from the United States on the 3-year maximum period of stay for workers participating in the H-2 programs, by eliminating the "interrupted" stay provisions and instead providing a uniform period of absence from the United States (at least 60 days) to reset the 3-year clock.

Strengthening Worker Protections and Increasing Program Integrity

This final rule revises and clarifies provisions regarding prohibited fees by strengthening the existing bar on charging certain fees to H-2A and H-2B workers, including by imposing new consequences for companies that charge these fees and denying their H-2 petitions in certain circumstances.

The final rule also institutes certain mandatory and discretionary grounds for denying an H-2A or H-2B petition filed by a petitioner who, among other things, has been found to have committed certain labor or other legal violations or misused the H-2 programs.

Under the rule, H-2A and H-2B workers will now have whistleblower protections comparable to the protections that are currently offered to H-1B workers.

The final rule clarifies requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections. It also clarifies USCIS' authority to deny or revoke the approval of a petition if USCIS is unable to verify information related to the petition, including where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review.

Enhancing Worker Flexibility

The final rule harmonizes and adds new grace periods. Specifically, it:

• Adds a new grace period for up to 60 days following a cessation of employment, during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their H-2 status or accruing unlawful presence.
• Extends the existing 30-day grace period following certain revocations to a period of up to 60 days and expands the provision to cover all revocations of H-2 petition approvals.
• Affirms that H-2A and H-2B workers are considered to be maintaining their H-2 status for a period of up to 10 days before the petition's validity period and up to 30 days following the expiration of that period.

The final rule allows for "portability," meaning that eligible H-2 nonimmigrants can immediately begin to work with a new employer as soon as the employer properly files an extension of stay petition, rather than requiring them to wait until the petition is approved.

The final rule clarifies that H-2 workers will not be considered to have failed to maintain their H-2 status and will not be denied H-2 classification on the sole basis of having taken certain steps toward becoming lawful permanent residents of the United States.

In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning Jan. 17, 2025, which is the rule's effective date.