United States: DHS Announces Significant Changes to H-2 Temporary Work Programs

Under current regulations, USCIS may approve H-2A and H-2B petitions only for nationals of countries designated by the Department of Homeland Security, in consultation with the State Department; if a beneficiary is a national of a country that has not been designated, a petition on their behalf may not be approved unless the petitioner demonstrates that approval is in the interest of the United States.  The new regulation eliminates these requirements, giving employers greater access to available foreign nationals, regardless of nationality.

The new regulation establishes or expands existing mechanisms to promote flexibility for H-2 workers entering or departing the United States, changing employers, or seeking to cease their employment.

• H-2 portability. The new regulation establishes permanent portability for H-2B workers, and removes the limitation that H-2A workers may port only to E-Verify employers. Eligible H-2A and H-2B nonimmigrants will be able to begin new employment with the same or a new employer upon the proper filing of a nonfrivolous petition for extension or amendment of stay.
• Grace periods before and after the H-2 petition validity period. The new rule permits H-2 workers to enter the United States up to 10 days before their petition start date and remain in the United States for up to 30 days after expiration of the petition, subject to the three-year limitation on H-2 periods of stay. During these grace periods, H-2 nonimmigrants would be considered maintaining valid H-2 status, but would not be authorized to work.
• Prolongation of the grace period after revocation of an approved petition. USCIS is increasing the grace period following revocation of an H-2 petition to 60 days, from 30 days. During this period, an H-2 nonimmigrant can seek new qualifying employment or prepare for departure from the United States without violating their H-2 status or accruing unlawful presence.
• New grace period following cessation of H-2 employment. The regulation creates a new 60-day grace period that allows H-2 workers who stop working or wish to seek new employment to maintain their status.
• Clarification of the impact of certain permanent residence procedures on H-2 eligibility. The regulation makes clear that the approval of a PERM application, the filing of an immigrant visa petition, an application for an immigrant visa or adjustment of status, or a Diversity Visa petition filing is not on its own the basis for denying an H-2 petition. Rather, the approval of a PERM or the filing of an immigrant visa petition or application will be considered with the totality of circumstances to determine whether an H-2 nonimmigrant is maintaining their status and has the requisite nonimmigrant intent.

• Clarification of H-2A return transportation requirements. The new regulation clarifies that, after a petition revocation, H-2A employers must offer the reasonable costs of return transportation to a beneficiary’s last place of foreign residence abroad unless the foreign national obtains an extension of stay based on an approved petition filed by a different employer. Under current regulations, only H-2B employers are subject to this requirement after petition revocation.
• Expanded USCIS authority to deny H-2 petitions and debar employers. The regulation creates mandatory and discretionary grounds for denial or revocation of H-2 petitions, including denial or revocation where a petitioner or employer collects prohibited fees from workers or violates other program rules. The rule also subjects employers who have misused the H-2 programs or violated labor laws to one to three years of debarment from the H-2 program. The regulation also establishes whistleblower protections for employees who report program violations.
• Expanded USCIS authority to conduct compliance reviews and worksite inspections. By filing an H-2 petition, the petitioner and each employer would be deemed to consent to USCIS site inspections, verifications, and compliance reviews. If USCIS is unable to verify the contents of a petition – including where the petitioner or employer refuses to cooperate in an inspection – any H-2 petition for workers performing services at the location(s) could be denied or revoked.

The new regulation imposes additional compliance responsibilities on H-2 employers and will change USCIS petition procedures, including requiring the introduction of a new edition of Form I-129.