Update Applicable to:
All Employers and employees who have an interest in the agricultural sector including employees using H-2 visas.
For H-2A and H-2B visa programs, the Department of Homeland Security (DHS) proposed rule would grant temporary nonimmigrant workers whistleblower protections and extend grace periods for workers whose petitions have expired or been revoked.
What are the details?
The rule would permit the agency to target and sanction visa petitions for employers that have been found to have violated either the visa program requirements or certain labor laws. The comment period will close on November 20, 2023.
The H-2 programs allow certain U.S. employers or agents to bring foreign nationals to the United States to fill temporary jobs for which there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. The employer or agent must file the respective form and have a certification from the Department of Labor (DOL).
Under the proposed regulations, employers who violate H-2B program requirements may be sanctioned for the limited number of available visas. This rulemaking would also offer several benefits to employers.
Other regulation includes, but is not limited to:
1. Update that language to state that fees paid by H-2 workers related to their employment are prohibited. This change would expand the scope of prohibited fees.
2. Proposed three mandatory and several discretionary grounds for denial of visa (H-2A and B).
3. Clarify the scope of on-site DHS inspections: specifically, employers would be required to allow inspectors access to all facilities or locations where work is being done, employees for interview, and compliance records for review.
4. Provides whistleblower protection for employees who report violations or cooperate with investigations.
5. Extend grace periods:
a. H-2A workers would be permitted to remain in the U.S. for up to sixty days or until the end of their authorized work period if the worker resigned or was terminated.
b. Would create a new sixty-day grace period for workers when their employer’s H-2 petition is revoked. In that situation, the employer would be responsible for return transportation to the worker’s last place of foreign residence.
6. Eliminate the list of eligible countries to alleviate the burden of posting a new list of eligible countries every year.
For more information, please see the links below:
DHS Modernization Rule Proposal (For the complete proposal please visit this link)
What do employers need to do?All applicable employers should review the proposed rulings, leave a comment, and seek legal counsel regarding the potential impact of this ruling. The comment period will close on November 20, 2023.
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