New H-2 Visa Proposed Rule 'Puts Employers on Notice'

​A proposed rule recently issued by U.S. Citizenship and Immigration Services (USCIS) would grant more flexibility to foreign seasonal workers in the H-2 visa programs, while toughening the consequences for employers that violate the programs' policies.

USCIS said the purpose of the forthcoming regulation is to modernize and improve the H-2A and H-2B visa programs. The H-2A program is for seasonal jobs in agriculture, while the H-2B program is for seasonal jobs outside of agriculture, such as in landscaping, seafood processing, hospitality and outdoor recreation. The public can submit comments on the proposed rule through Nov. 20.

The proposal contains 11 provisions, including new whistleblower protections; additional penalties for employers that charge workers prohibited fees; expanded grace periods for workers who lose employment; permanent portability for workers to move between employers; and the ability for workers to seek green cards (permanent residency) while maintaining H-2 status.  

Secretary of Homeland Security Alejandro Mayorkas said the proposal will help U.S. employers address worker shortages through new program flexibilities, as well as provide H-2 workers with additional protections.

The U.S. Department of Labor certified approximately 370,000 temporary jobs in fiscal year 2022 under the H-2A program, while the H-2B program is capped at 66,000 workers per fiscal year.

Immigration attorneys interviewed by SHRM Online agreed that the proposed rule improves the H-2 programs, but they are still waiting to see how broad the worker protection provisions will be in the final rule.

"It will be beneficial to the integrity of the H-2 programs overall," said Loan Huynh, an attorney in the Minneapolis office of Fredrikson and chair of the firm's Immigration Group. "But we need more clarity and guidance on the provisions around worker protections."

Huynh said the best thing about the proposed rule is that it provides protections to H-2 workers comparable to those in H-1B status. "It's about time that H-2 workers, many of whom are considered essential workers, are treated the same as H-1B workers," she said. "We've seen during the pandemic that essential workers are so important to our economy. To see more protections for these workers will be beneficial to the programs in the long run."

Laura Foote Reiff, an attorney in the Washington, D.C., area offices of Greenberg Traurig and co-founder of the firm's Business Immigration and Compliance Group, described the rule as an improvement, but "just a drop of water in an ocean of need" because of the limited number of people it impacts.   

"The real need for the H-2 programs is many more visas, something USCIS doesn't have the power to do," she said. "It's very frustrating that we haven't seen many other pressing priorities put forward from the Biden administration, such as implementing previously passed legislation on the EB-5 [immigrant investor] program, for example."  

Enforcement to Focus on Fees

The rule would clarify and enforce prohibitions on employers collecting unlawful fees from H-2 workers, whether those fees are collected directly or indirectly.

"Despite 2008 regulatory changes providing that USCIS will deny or revoke a petition when a beneficiary pays a fee as a condition of H-2 employment, reports from various sources indicate that the collection of prohibited fees remains a pervasive problem in the H-2A and H-2B programs," USCIS said.

The rule aims to stress protections against illegal fees and salary reductions connected to the recruitment or employment of temporary foreign workers, including from third-party agents such as external recruiters and facilitators. Prohibited fees would include visa application fees.

Employers also would be barred from charging workers "breach fees" if they leave a job before completing their contracts. "Advocacy groups have reported instances of recruiters forcing, or threatening to force, H-2 workers to pay large breach fees of up to thousands of dollars for leaving employment before the scheduled conclusion of work," USCIS said. The agency added that it is the employer's responsibility "to conduct due diligence to ensure that any third-party agent, attorney, facilitator, recruiter, or similar employment service with whom it conducts business will comply with H-2 program requirements, including the prohibition on collection of fees related to H-2 employment."

Employers have generally been prohibited from charging fees to H-2 candidates or workers, "but the rule puts employers on notice," Huynh said. "H-2 employers will have to be more cautious with the labor contractors they associate with."

Under the proposed regulations, companies would face revocation of visa petitions or be barred from the H-2 program for up to four years for charging illegal fees. Petition denials and debarment are other potential consequences for employers that violate program rules and general labor laws, according to the proposed rule. "This is the strongest and clearest we have heard from USCIS on this," Huynh said.

The proposed rule would also extend the whistleblower protections found in the H-1B program to H-2 visa holders, providing a safeguard from retaliation against workers for reporting abuse or violations. 

"Workers will be empowered to raise their hands and report bad-actor employers, but employers will want the whistleblower provisions to be appropriately defined so only true whistleblowers who are dealing with issues get those issues addressed," Reiff said. "I've seen whistleblower protections work well, and I've also seen people take advantage of them."

Greater Flexibility

USCIS is seeking to expand and harmonize the grace periods afforded to H-2 workers seeking new employment, preparing for departure from the U.S. or pursuing a change of immigration status. The rule also equalizes grace periods for H-2A and H-2B workers and aligns them with other categories of guest workers, such as those with H-1B and F-1 visas.

First, workers in both H-2 classifications would be provided with an initial grace period of up to 10 days prior to the petition's validity period to prepare for new employment in the U.S.

Both H-2A and H-2B workers would also be provided with a grace period of up to 30 days following the expiration of a petition to prepare for departure or apply for an extension of stay based on a subsequent offer of employment. Currently, H-2A workers have a 30-day grace period following the expiration of their petition, while H-2B workers have only a 10-day grace period.

Lastly, both categories would be provided with a new 60-day grace period following a cessation of H-2 employment—for example, if the worker was laid off.

"These flexibility provisions are critical," Huynh said. "The 60-day grace period is the most significant and is similar to what H-1B workers receive."

The expanded grace periods are very welcome for both workers and employers, Reiff said. "Sometimes, the business shuts down and the worker needs time to find new employment," she said. "These lengthened grace periods will give people more breathing room."

USCIS also wants to permanently provide portability to H-2 workers, enabling employers facing worker shortages to hire H-2 workers who are already legally in the U.S. while a new petition for employment is pending. The proposal would allow workers to switch to new employers as soon as a visa petition is filed, without waiting for approval.

The agency said that both workers and employers would benefit from H-2A and H-2B workers' ability to change jobs and begin working for a new employer while a petition is still pending.

Currently, H-2A workers only have portability if they are moving to a new employer that has enrolled in and is a participant in good standing in E-Verify. That limitation would be removed.

H-2B visa holders currently have portability flexibility, but it is only temporarily in place until Jan. 24, 2024. The rule would make portability permanent.

"Portability is an established concept, and employers overall recognize that it's the right way to go," Reiff said. "Even though employers are desperate for workers, if someone doesn't want to work for you, they should be able to find other employment."

The proposed rule also clarifies that foreign workers may take steps toward becoming a lawful permanent resident of the U.S. while maintaining their H-2 status. Currently, visa holders do not have a pathway to permanent residency through the program.

"Removing barriers to legal migration for H-2 workers is huge," Huynh said. "It doesn't use the term 'dual intent,' [which connotes the ability to obtain or continue in a temporary status while taking steps toward obtaining permanent residence in the U.S.] but in essence it means that USCIS will not deny an H-2 petition just because the worker has a labor certification or pending green card petition. This is hugely significant, and about time."