DHS Announces Major Reforms to H-2A and H-2B Worker Programs

The DHS's upcoming Final Rule for H-2A and H-2B programs, effective January 17, 2025, enhances efficiency, worker flexibility, and protections while simplifying recruitment.

The Department of Homeland Security (DHS) is gearing up to roll out a new Final Rule for the H-2A and H-2B temporary worker programs, with the changes set to take effect on January 17, 2025.

This regulatory update aims to modernize these vital programs that allow employers to bring in foreign labor for seasonal agricultural (H-2A) and non-agricultural (H-2B) roles when there are not enough domestic workers available.

Boosting Program Efficiency

One of the key changes is the elimination of country eligibility lists.

This means that employers will have the freedom to recruit workers from any country, streamlining the hiring process by no longer requiring the annual publication of which countries are eligible.

Additionally, the new rule standardizes how the duration of stay is calculated.

Now, a worker’s maximum three-year stay will reset after a consistent absence of at least 60 days, simplifying the previous complicated “interrupted” stay guidelines.

Increased Worker Flexibility

The Final Rule also introduces greater flexibility for H-2 workers.

Starting before employment begins, workers will now enjoy a grace period of 10 days.

After their employment ends, they will have up to 30 days to transition.

New to the regulation is an extended grace period that allows for an additional 60 days, giving workers time to seek new employment or prepare for departure while keeping their immigration status intact.

However, it’s important to note that during this time, they will not have authorization to work.

Another significant enhancement is job portability for eligible H-2 workers.

They can now begin working for a new employer as soon as a legitimate H-2 petition is submitted, rather than waiting for approval as was previously required.

This change marks a substantial improvement in job flexibility for these workers.

Strengthening Worker Protections and Program Integrity

The final rule also seeks to enhance protections for workers and maintain the integrity of the programs.

It strengthens the existing ban on certain fees charged to H-2 workers and introduces penalties for employers who don’t comply with these rules.

Moreover, the USCIS will now have the authority to deny H-2 petitions if employers have committed specific labor violations or misused the programs.

Additionally, to protect whistleblowers, the regulation offers similar safeguards that exist in the H-1B program, shielding workers from retaliation for reporting violations.

Compliance oversight will also be clarified; USCIS is now empowered to conduct reviews and on-site inspections to verify adherence to program requirements.

Earlier this year in April 2024, a rule aimed at further protecting H-2A workers was finalized and began a phase-in process.

However, this initiative faced legal hurdles, including temporary injunctions from multiple states and organizations, culminating in a nationwide injunction issued by the U.S. District Court for the Eastern District of Kentucky last November.

In summary, these updates from the DHS represent a significant step toward modernizing the H-2A and H-2B programs, enhancing flexibility for workers, and strengthening protections against employer abuses.

These changes promise to reshape the landscape for temporary foreign workers in the United States, making it both more accessible and more secure for those seeking employment.

Source: Natlawreview.com