On September 18, 2023, the U.S. Department of Homeland Security (DHS) unveiled a proposed rule aimed to modernize and improve protections for temporary workers who are part of the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. This proposed rule is intended to improve the H-2 programs by increasing flexibility and protections for the workers in addition to boosting the efficiency of the programs.

Under the H-2 visa program, U.S. employers are allowed to hire foreign nationals to fill temporary (often seasonal) positions when there is a shortage of willing, able, and qualified U.S. workers. Employers must file a petition, along with a certification from the Department of Labor (DOL), explaining the lack of suitable U.S. workers and demonstrating that hiring foreign workers will not negatively impact the wages and working conditions of their U.S. workers in similar roles.

The H-2 program has a limited number of visas available, and the proposed regulations outline that employers who fail to adhere to the program’s requirements may risk becoming ineligible. The proposed rule also establishes clearer limitations on employer-imposed fees and strives to shield workers from incurring debts or suffering abuse. Additionally, the DHS suggests extending grace periods to allow workers to seek alternative employment, depart the United States, or change their visa status.  There would also be a significant benefit to employers, as DHS proposes permanent H-2 portability, allowing employers to hire workers who are already lawfully present in the United States.

You can review the full proposed rule here. The 60-day public comment period on the proposed rule will end on 11/20/2023.

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