DHS finalizes rule to enhance H-2 Visa programs

The Department of Homeland Security (DHS) has announced a final rule aimed at modernizing the H-2A and H-2B nonimmigrant visa programs.

These programs allow U.S. employers to hire foreign nationals for temporary or seasonal agricultural (H-2A) and nonagricultural (H-2B) positions when qualified U.S. workers are unavailable.

Here are some key provisions of the final rule:

• Improving the efficiency of the program: The rule removes the requirement for DHS to publish annual lists of countries eligible for the H-2 programs, streamlining the process for employers. It also standardizes the period of absence required to reset the three-year maximum stay for H-2 workers to at least 60 days, simplifying previous “interrupted” stay provisions.
• Strengthening worker protections and increasing program integrity: The rule enforces stricter penalties on employers who charge prohibited fees to H-2 workers, including potential denial of future petitions. Also, employers are now explicitly required to consent to and comply with

USCIS inspections and reviews. The rule clarifies that USCIS may deny or revoke petitions based on non-cooperation. Under the final rule, H-2A and H-2B workers receive whistleblower protections comparable to those in the H-1B program, encouraging reporting of violations without fear of retaliation.

• Enhancing worker flexibility: A new grace period of up to 60 days following the end of employment allows H-2 workers to seek new employment or prepare for departure without violating their status. The rule also clarifies that pursuing lawful permanent resident status does not, by itself, constitute a failure to maintain H-2 status.

The final rule is set to take effect on January 17, 2025. Employers intending to utilize the H-2 programs should familiarize themselves with these changes to ensure compliance and optimize the benefits of the updated provisions.