DHS issues proposed rule to change H-2 temporary visa programs

The department said these changes will provide more flexibility and improve the program’s efficiency.

The Department of Homeland Security (DHS) in a notice of proposed rulemaking (NPRM), proposed changes to the H-2A temporary agricultural and the H-2B temporary nonagricultural worker programs (H-2 programs) that the DHS said will provide flexibility and protections for participating workers and improve the program’s efficiency.

The National Association of Landscape Professionals summarized the proposed change in its latest edition of The Advocate newsletter:

DHS proposes to include the following major changes:

  • Program Integrity and Worker Protections
    • To protect workers who report their employers for program violations, DHS is proposing to provide H-2A and H-2B workers with “whistleblower protection.”
    • DHS proposes to clarify requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections. DHS also proposes to clarify USCIS’s authority to deny or revoke a petition if USCIS is unable to verify information related to the petition, including but not limited to where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review.
  • Worker Flexibilities
    • Changes to provide greater flexibility to H-2A and H-2B worker; adjustments to the existing admission periods before and after the validity dates of an approved petition so that H-2 workers would receive up to 10 days prior to the petition’s validity period and up to 30 days following the expiration of the petition, as well as an extension of the existing 30-day grace period following revocation of an approved petition during which an H-2 worker may seek new qualifying employment or prepare for departure from the US without violating their nonimmigrant status or accruing unlawful presence for up to 60 days.
    • Unexpected situations where a worker must stop working or seek new employment; there will be a new grace period for up to 60 days during which an H-2 worker can cease working for their petitioner while maintaining H-2 status.
    • DHS proposes to permanently provide portability – the ability to begin new employment upon the proper filing of an extension of stay petition rather than only upon its approval – to H-2A and H-2B workers.
    • Clarification that H-2 workers will not be considered to have failed to maintain their H-2 status solely on the basis of taking certain steps toward becoming lawful permanent residents of the U.S.
  • Improving H-2 Program Efficiencies and Reducing Barrier to Legal Migration
    • Two changes to improve the efficiency of the H-2 programs and to reduce barriers to the use of those two programs.
    • To remove the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as eligible to participate in the H-2 programs.
    • Simplify the regulatory provisions regarding the effect of a departure from the U.S. on the 3-year maximum period of stay by providing a uniform standard for resetting the 3-year clock following such a departure.

NALP said it will discuss these proposed changes with other organizations that represent H-2B users and will draft comments to submit.

The comment period for this proposed rule ends on Nov. 20. It can be reviewed here.

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