H-2 Final Rule
The Department of Homeland Security has announced a final rule amending regulations affecting the H-2A temporary agricultural and H-2B temporary nonagricultural programs. The final rule significantly strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labor laws, and provides greater flexibility for H-2A and H-2B workers.
What You Need to Know
The final rule:
- Revises and clarifies the provisions regarding prohibited fees by strengthening the existing bar on charging certain fees to H-2A and H-2B workers, including by imposing new consequences for companies that charge these fees and denying their H-2 petitions in certain circumstances;
- Institutes certain mandatory and discretionary grounds for denying an H-2A or H-2B petition filed by a petitioner who, among other things, has been found to have committed certain labor or other legal violations or misused the H-2 programs;
- Provides H-2A and H-2B workers with “whistleblower protection” comparable to the protection that is currently offered to H-1B workers;
- Clarifies requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections;
- Clarifies USCIS’ authority to deny or revoke the approval of a petition if USCIS is unable to verify information related to the petition, including where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review;
- Provides portability, meaning that eligible H-2 nonimmigrants can immediately begin to work with the same or a new employer after properly filing an H-2 petition for new employment requesting to amend the H-2 nonimmigrant’s stay in the same classification, rather than only upon its approval;
- Removes the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in the H-2 programs, eliminating the need for DHS to compile and publish annual lists of designated countries.
- Simplifies the rules regarding the effect of a departure from the United States on the 3-year maximum period of stay for workers participating in the H-2 programs, by eliminating the “interrupted” stay provisions and instead providing a uniform period of absence from the United States (at least 60 days) to reset the 3-year clock.
In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning Jan. 17, 2025, which is the rule’s effective date.
More Information
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