The Department of Homeland Security (DHS) has unveiled a proposed rule aimed at modernizing and fortifying protections for temporary workers participating in the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. The announcement, made on September 18, 2023, outlines a series of comprehensive reforms designed to enhance worker rights, promote program efficiency, and counter exploitative practices by employers.
In a notice of proposed rulemaking (NPRM) published on September 18th, DHS outlined its intent to revamp the H-2 programs by introducing greater flexibility and security for the workers involved. These changes include bolstering safeguards against employer misconduct and the introduction 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 help U.S. employers address worker shortages through new program flexibilities. They will also help provide this vulnerable population of workers with the protections they deserve.”
The release continued, “The H-2A and H-2B programs are instrumental in allowing certain U.S. employers or agents to bring foreign nationals to fill temporary jobs when there is a scarcity of qualified U.S. workers. The certification process, overseen by the Department of Labor, ensures that the hiring of foreign workers does not negatively affect wages and working conditions for domestic employees.”
One of the significant changes proposed by DHS is the ineligibility of employers who violate H-2B program requirements, particularly those failing to demonstrate the intent and ability to comply with program standards, for the limited number of available visas. According to the DHA, this is aimed at improving program integrity and safeguarding vulnerable workers. The proposed rule also makes it clear that employers cannot impose fees on H-2 workers, preventing workers from incurring exploitative debts.
According to the DHS, the rule offers more flexibility for H-2 workers by extending grace periods for seeking new employment, preparing for departure from the United States, or pursuing a change of immigration status. These provisions aim to provide workers with increased clarity and flexibility while protecting their rights.
Additionally, DHS claims that “Employers will also benefit from this rulemaking, as it makes H-2 portability permanent. This means employers facing worker shortages can hire H-2 workers already lawfully present in the United States while their H-2 petition is under consideration.”
According to the release, “The H-2 programs have seen substantial growth in recent years, with the Biden-Harris Administration expanding access as part of its broader strategy to manage migration and address labor shortages faced by U.S. businesses.”
The proposed rule will undergo a 60-day public comment period following its publication in the Federal Register. This period will allow stakeholders and the public to provide feedback and suggestions on the proposed changes, ensuring that the final rule is both comprehensive and effective.
For more information and to participate in the public comment period, please visit the Federal Register website. Click Here
