The Department of Homeland Security (DHS) has issued a Final Rule for the H-2A and H-2B temporary worker programs that will become effective on Jan. 17, 2025.
The Rule is aimed at modernizing the regulations governing the H-2A and H-2B temporary worker programs — programs that are essential for U.S. employers seeking foreign labor for temporary agricultural (H-2A) and non-agricultural (H-2B) work when domestic labor is unavailable.
Below are the main takeaways.
Improving Program Efficiency:
- Elimination of Eligible Countries List: Employers are able to hire workers from any country. DHS will no longer be publishing annual lists of H-2 eligible countries, streamlining the process for employers.
- Simplified Period of Stay Calculations: The Rule standardizes the period that resets a worker’s three-year maximum stay in the United States to a uniform absence of at least 60 days, eliminating complex “interrupted” stay provisions.
Increasing Flexibility for Workers:
- Grace Period Extensions: H-2 workers are granted a 10-day grace period before employment begins and up to 30 days after employment ends. Additionally, a new grace period of up to 60 days is introduced following employment cessation, allowing workers to seek new employment or prepare for departure without violating their status. The worker remains in status but does not have work authorization during the grace period.
- Employment Portability: Eligible H-2 workers can commence new employment with a different employer upon the filing of a non-frivolous H-2 petition, providing greater job mobility. This is a dramatic change; previously, the H-2 worker needed to wait for the petition to be approved before starting work with the new employer.
Strengthening Worker Protections and Increasing Program Integrity:
- Prohibition of Fees: The Rule reinforces the ban on charging certain fees to H-2 workers and introduces penalties for employers who violate this provision.
- Mandatory Denial Grounds: USCIS is authorized to deny H-2 petitions from employers found to have committed specific labor violations or misused the H-2 programs.
- Whistleblower Protections: H-2 workers have protections comparable to those in the H-1B program, safeguarding them against retaliation for reporting violations.
- Compliance Reviews and Inspections: The Rule clarifies USCIS’s authority to conduct compliance reviews and site inspections, ensuring adherence to program requirements.
An H-2A rule that was finalized in April 2024 and rolled out incrementally offered additional worker protections. The rule faced lawsuits and patchwork injunctions covering various states and organizations before being enjoined nationwide by the U.S. District Court for the Eastern District of Kentucky in November.