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DHS Proposes Revisions to the H-2A Visa Program

26 Oct

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Update Applicable to:

All Employers and employees who have an interest in the agricultural sector including employees using H-2 visas.

What happened?

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nonimmigrant workers whistleblower protections and extend grace periods for workers whose petitions have expired or been revoked.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:

Law Firm articles: Article 1Article 2, Article 3

DHS Modernization Rule Proposal (For the complete proposal please visit this link)

DHS Communication H – 2 Rule Proposal

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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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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