This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
The Department of Homeland Security (DHS) announced a final rule updating programs for temporary agricultural H-2A and temporary nonagricultural H-2B nonimmigrant workers. DHS said the rule, effective January 17, 2025, “seeks to strengthen worker protections and the integrity of the H-2 programs, provide greater flexibility for H-2A and H-2B workers, and improve program efficiency.”
Among other things, the final rule:
- Makes significant revisions to provisions relating to prohibited fees in order to strengthen the existing prohibition on, and consequences for, charging certain fees to H-2A and H-2B workers, including new bases for denial for some H-2 petitions.
- Institutes certain mandatory and discretionary grounds for denial of an H-2A or H-2B petition.
- Provides H-2A and H-2B workers with “whistleblower protection” comparable to the protection currently offered to H-1B workers.
- Clarifies requirements for petitioners and employers to consent to, and fully comply with, U.S. Citizenship and Immigration Services (USCIS) compliance reviews and inspections.
- Clarifies USCIS’ 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.
- Adjusts the admission periods before and after the validity dates of an approved petition (grace periods) so that H-2 workers would be considered maintaining valid H-2 status for a period of up to 10 days before the petition’s validity period and up to 30 days following its expiration.
- Extends the existing 30-day grace period to a period of up to 60 days following revocation of an approved petition during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their nonimmigrant H-2 status or accruing unlawful presence.
- Provides a new grace period for up to 60 days during which an H-2 worker can stop working for the petitioner while maintaining H-2 status.
- Permanently provides portability (the ability to begin new employment with the same or new employer upon the proper filing of an extension of stay petition rather than only upon its approval) to H-2A and H-2B workers.
- In the case of petition revocations, clarifies that H-2A employers have the same responsibility as H-2B employers for reasonable costs of return transportation for the beneficiary.
- Removes 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.
- Simplifies the regulatory provisions regarding the effect of a departure from the United States on the three-year maximum period of stay by providing a uniform standard for resetting the three-year clock following such a departure.
