U.S. Department of Homeland Security (DHS) Proposes Rule Affecting both the H-2A and H-2B Programs
DHS announced its own parallel rulemaking effort addressing both worker protections as well as some procedural changes
Last week, the U.S. Department of Labor (DOL) released a Notice of Proposed Rulemaking (NPRM) for the H-2A program that would dramatically expand worker protections and impose new disclosure requirements.
This week, the U.S. Department of Homeland Security (DHS) announced its own parallel rulemaking effort addressing both worker protections as well as some procedural changes to the nonimmigrant petition process. Unlike last week’s DOL rule, however, the new DHS proposed rule affects both the H-2A and H-2B programs.
Summary of proposed changes
Worker protections & employer compliance
The rule modifies the existing “prohibited fee” language to clarify that prohibited fees include all direct and indirect fees “related to” H-2A or H-2B employment, except any costs permitted by the regulations or that are “the responsibility and primarily for the benefit of the worker” (e.g., passport fees).
The rule expressly prohibits “breach of contract” fees imposed on workers who leave employment prior to the approved end date.
The rule modifies the “safe harbor” provision for reporting fee violations. Currently, employers who voluntarily report fee violations and take remedial actions are shielded from any DHS penalties. A new provision would also require employers to demonstrate to DHS that they conducted “due diligence” on any agent, recruiter, or facilitator to ensure their prohibited fee compliance. A contractual fee prohibition is no longer sufficient.
The rule expands the penalties for prohibited fee violations. Employers found to have engaged in illegal fee schemes may now face a 1-4-year bar to approval of any subsequent H-2A or H-2B petitions.
The rule expands DHS authority to deny H-2A or H-2B petitions, including expanded discretionary authority to deny petitions filed by employers who violated any H-2A or H-2B program requirements.
The rule expands DHS authority to conduct post-approval audits to verify compliance with program requirements. This includes on-site inspections, verifications, and other compliance reviews. Failure to cooperate would be grounds for revocation of the approved petition.
The rule creates “whistleblower” protections for workers. This provision prohibits retaliation against workers exercising their rights or labor law protections and gives DHS authority to extend such workers’ lawful status in the U.S. if such workers fail to maintain status (e.g., if they are terminated from employment).
Procedural flexibilities
The rule would align the H-2A and H-2B “grace periods” before and after the approved employment period. Workers in both programs would be able to enter the U.S. up to 10 days prior to the start date and would have a 30-day period after the end date to seek subsequent employment. Note that these grace periods would count towards workers’ 3-year maximum period of stay.
The rule would also create a new 60-day grace period for H-2A and H-2B workers who ceased employment prior to the approved end date (terminations, resignations, etc.), allowing such workers additional opportunities to find alternative employment.
The rule would make permanent the temporary COVID-19 flexibility that allowed workers to begin work immediately upon filing an extension petition. Currently, H-2A workers only have this portability if they are transferring to a new employer that participates in the E-Verify program.
The rule makes it easier for workers to seek employment-based green cards by eliminating restrictions on H-2A and H-2B visa issuance for workers who have filed immigrant petitions. This would allow such workers to continue coming to the U.S. while their green cards are pending.
The rule eliminates the “approved country list” maintained by DHS, thereby allowing workers from any country to apply for H-2A or H-2B status.
The rule eliminates the “interrupted stay” framework and creates a simplified standard for measuring the 3-year maximum period of stay. This will presumably reduce the paperwork burden associated with transfers/extensions and reduce the number of Requests for Evidence (RFEs) during the process.
The rule reduces the amount of time outside the U.S. needed to “reset the clock” on the 3-year maximum period of stay. Currently, workers must remain outside the U.S. for at least 3 months to reset the clock. The new rule reduces this to 60 days.
You can read the full proposed rule on the federal register.
Next steps
Consistent with the Administrative Procedure Act (APA), the agency will be collecting public comments on the proposed rule for a 60-day comment period. Public comments will then be used by the agency to craft a “Final Rule” that addresses stakeholder feedback and concerns. másLabor will circulate a copy of our own comments to clients in advance of the deadline.