The Department of Homeland Security (DHS) issued a final rule that will allow U.S. companies that need seasonal workers to more quickly fill those jobs.
The rule will modernize and improve the H-2 nonimmigrant visa programs, which allow U.S. employers to employ foreign nationals to fill temporary or seasonal agricultural and nonagricultural jobs.
“The H-2 programs strengthen our nation’s economy by supporting the seasonal labor needs of employers that rely on temporary workers,” Secretary of Homeland Security Alejandro Mayorkas said. “By modernizing and improving this program, we increase protections for our nation’s workers, help maintain economic growth, and better meet the labor demands of American businesses.”
The final rule strengthens the program in three main ways:
One, it improves program efficiency by removing 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. This eliminates the need for DHS to compile and publish annual lists of designated countries. It also 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. Instead, it provides a uniform period of absence from the United States (at least 60 days) to reset the three-year clock.
Two, the final rule revises and clarifies provisions regarding prohibited fees. It does this 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.
Third, it enhances worker flexibility. It does this by adding a new grace period for up to 60 days following a cessation of employment, during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their H-2 status or accruing unlawful presence. Further, it extends the existing 30-day grace period following certain revocations to a period of up to 60 days and expands the provision to cover all revocations of H-2 petition approvals. In addition, the final rule allows for “portability,” meaning that eligible H-2 nonimmigrants can immediately begin to work with a new employer as soon as the employer properly files an extension of stay petition, rather than requiring them to wait until the petition is approved.
“Our H-2 programs are very important to the U.S. economy. Many employers across the country need additional labor on a temporary or seasonal basis, whether it’s on our farms or in other industries,” USCIS Director Ur M. Jaddou said. “This final rule makes us more efficient in helping U.S. employers fill their temporary or seasonal positions, while also making sure we’re protecting both U.S. workers and the noncitizen workers who help fuel our economy.”