Harris Beach attorney L.J. D’Arrigo called a proposed U. S, Department of Homeland Security rule to modernize the H-2A and H-2B programs for temporary workers “balanced” for both foreign workers and their employers.

“The DHS rule provides a balanced approach to representing the interests of both employers and H-2 workers. It also attempts to synchronize provisions from various employment-based visa categories, including the H-2A, H-2B and H-1B programs,” he said.

The H-2 programs allow U.S. employers to hire temporary foreign workers if employers can demonstrate the inability to find qualified willing and able domestic workers in the United States, provided the hires do not impact wages and working conditions for similarly employed U.S. workers.

The DHS proposed a rule adding whistleblower protections for workers and strengthening consequences for employers that charge H-2 workers prohibited fees, Law360 wrote. The rule also expands grace periods for workers seeking new employment or planning to leave the United States.

L.J., a leader of the Harris Beach Immigration Practice Group, said some of the notable proposed regulatory changes include:

• Clarifies that employers who participate in the H-2A and H-2B programs are consenting to U.S. Citizenship and Immigration Services audits and investigations concerning their compliance with program regulations. USCIS reserves the right to deny, revoke or delay application approvals for non-compliance or uncooperative employers.
• Expands whistleblower protections that currently apply to the H-1B visa program to both H-2A and H-2B. This provision protects workers by allowing them to report employers for program violations and poor working conditions without the fear of retaliation.
• Clarifies which costs must be borne by the employer and which can be legally charged to the employee. Clarifies that costs for the exclusive benefit of the employee (such as passport application or renewal cost) can be the responsibility of the worker. The rule also imposes consequences to employers who wrongfully charge H-2 workers for the cost of visa processing.
• Transportation Costs for “Revoked” H-2A Petitions: requires employers pay for the reasonable cost of return transportation to the workers’ last place of foreign residence upon revocation of the petition. This is currently in place for H-2Bs, but not for H-2As. There are, however, no changes in the regulations for transportation costs outside of the revocation scenario. Currently, H-2B program regulations require an employer to pay for return transportation costs when a worker is terminated for ANY reason, including termination for cause, unless the worker voluntarily leaves. The H-2A regulations do not require employer-paid transportation to workers terminated for cause or voluntarily abandonment.
• DHS removed the term “abscondment, abscond” and other variations in favor of “does not report to work for a period of 5 consecutive workdays without the consent of the employer.” The removal of the prior terminology clarifies that the cessation of employment doesn’t necessarily mean the employee did anything wrong. They could have departed for poor working conditions.
• Removal of the H-2 Eligible Country List. Currently employers can bring in H-2 workers only from eligible countries as determined by USCIS and DOL. For years, this greatly limited options for employers that identified specific workers from countries not on the eligible list, making them go through a difficult waiver process. Now, employers may bring in workers from any country for both the H-2A and H-2B programs, greatly expanding the reach of the program.
• Clarifies the amount of time H-2 workers must remain outside the U.S. to reset their 3-year eligibility. Currently, H-2 workers are eligible to remain in the U.S. in H-2 status for no more than 3 years without then leaving the U.S. for a period of time to reset the clock. The current formula for determining what absences are “interruptive” is complicated and time consuming for employers and USCIS. The current period required to re-set the 3-year H-2 eligibility is 90 days if the H-2 workers have not previously departed the U.S. during the 3-year H-2 period. DHS now shortens this period to 60 days after accruing 3 years in H-2 status. This provides a significant benefit to employers that currently experience the burden of critically vital H-2 resources needing to be out for 90 days.
• Makes the H-2 grace periods consistent between H-2A and H-2B. Currently, H-2A workers are allowed to enter the United States one week prior to the start date of their H-2A visas, allowing them to get settled and prepared for employment. The H-2B regulations provide for 10 days. At the end of the H-2A program, workers receive a 30-day grace period, while H-2B workers only receive a 10-day grace period. This rule harmonizes both rules and now permits a 10-day grace period at the beginning of the season and a 30-day grace period at the end of the season for both H-2A and H-2B workers. This provides both workers and employers with much needed flexibility.
• Expands the 60-day grace period that applies to the H-1B program, to H-2A and H-2B. This provision would grant a 60-day grace period (or until the end date of their H-2 status, whichever is shorter) to H-2 workers following cessation of employment for any reason (termination or resignation) to find a new employer, change to a new visa classification, or depart the United States
• Portability: DHS expands the ability of employers to transfer H-2 workers presently in the United States in valid H-2 status to a new employer upon the filing of a transfer petition by the new employer. The workers are able to work for the new employer upon the filing of the H-2 petition with USCIS. The petition does not need to first be approved. This allows new employers to receive the benefit of these new workers much earlier in the process, rather than waiting months for USCIS to approve the petition.
• “Immigrant Intent” – this is a very significant development that will positively impact both employers and workers wanting to secure permanent status in the United States. Currently, H-2 visas are considered to be “single intent” – meaning they are not allowed to demonstrate any intent to remain permanently in the United States. This has been an obstacle to both employers and H-2 workers wanting to secure permanent resident status in the United States. This new provision seeks to change the regulations to make clear that the approval of an application for permanent labor certification, the filing or approval of an immigrant visa petition, or the filing of application to adjust to permanent resident status would not, by itself, be a violation of H-2 status or show an intent to abandon a foreign residence. Such fact, standing alone, would not constitute a basis for denying an H-2A or H-2B petition or the beneficiary’s admission in H-2A or H-2B status, or a petition to change status or extend status. This provision therefore provides flexibility for employers to sponsor their H-2 workers for permanent resident status (“Green Cards”) without jeopardizing the ability of these workers to continue participating in the H-2 programs. This is significant as more and more employers are seeking to sponsor H-2 workers for green cards to mitigate the instability and challenges of the H-2 programs.

The public can submit comments on the proposed rule through Nov. 19.

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