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DHS Proposes Reforms to Enhance H-2 Temporary Worker Programs

By September 22, 2023No Comments

The Department of Homeland Security (DHS) has initiated measures to bolster protections for temporary workers in the H-2A agricultural and H-2B nonagricultural worker programs. In a notice of proposed rulemaking (NPRM) issued today, DHS aims to modernize and enhance these programs by providing increased flexibility and safeguards for participating workers, ultimately improving program efficiency. These proposed changes also include measures to fortify protections against exploitative employer practices, including the introduction of whistleblower safeguards.

DHS Secretary Alejandro N. Mayorkas highlighted the importance of H-2A and H-2B temporary worker visa recipients in supporting seasonal and agricultural industries. He emphasized that these proposed reforms will assist U.S. employers in addressing labor shortages through program flexibilities while affording crucial protections to these vulnerable workers.

The H-2 programs allow specific U.S. employers or their agents to bring foreign nationals to the United States for temporary employment in roles for which there is a shortage of available, qualified U.S. workers. Employers must file Form I-129, Petition for a Nonimmigrant Worker, along with certification from the Department of Labor, affirming the unavailability of qualified U.S. workers and the absence of adverse effects on the wages and working conditions of similarly employed U.S. workers.

Under the proposed regulations, employers found in violation of H-2B program requirements, including those unable to demonstrate their commitment to program requirements, may become ineligible for the limited number of available visas. The proposed rule seeks to clarify prohibitions on employer-imposed fees and enhance the prohibition’s enforcement. This aims to protect H-2 workers from incurring exploitative debts and prevent abuses. Additionally, the proposed changes include increased flexibility for H-2 workers, with extended grace periods for seeking new employment, preparing for departure from the United States, or pursuing a change of immigration status. These enhancements will offer greater clarity and flexibility for workers while ensuring their protection.

Furthermore, the proposed rule offers several benefits to employers, such as the permanent establishment of H-2 portability. This provision allows employers facing worker shortages to hire H-2 workers already lawfully present in the United States while the employer’s H-2 petition for the worker is pending.

The H-2 programs have witnessed substantial growth in recent years, with the Biden-Harris Administration expanding access to these programs as part of its comprehensive strategy to manage migration effectively, ensuring safety, order, and humanitarian values. The NPRM will be open for a 60-day public comment period following its publication in the Federal Register.

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