DHS Proposes New Rules to Protect Workers on Temporary Visas
In a notice of proposed rulemaking (NPRM) published on September 18, 2023, the Department of Homeland Security proposed modernizing and improving the H-2A temporary agricultural and the H-2B temporary nonagricultural worker programs (H-2 programs) by providing greater flexibility and protections for participating workers and improving the program’s efficiency.
This proposal includes strengthening protections for workers from exploitative conduct by employers, including the addition of whistleblower protections
“For years, H-2A and H-2B temporary worker visa recipients have been essential to our seasonal and agricultural economies,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These proposed reforms will help U.S. employers address worker shortages through new program flexibilities. They will also help provide this vulnerable population of workers with the protections they deserve. Alongside our partners across the Biden-Harris administration, DHS is committed to safeguarding our economy, our security, and our American values.”
H-2 programs allow U.S. employers to bring foreign nationals to the U.S. to fill temporary jobs for which there are not enough U.S. workers who are able, willing, qualified, and available to do the work. The employer or agent must file Form I-129 (Petition for a Nonimmigrant Worker) on behalf of the prospective worker in addition to a certification from the Department of Labor that states why qualified U.S. workers are not available to fill the job opportunity and why a foreign worker’s employment will not adversely affect the wages and working conditions in the U.S.
The proposed regulations penalize employers who violate H-2B program requirements (including employers who fail to demonstrate an ability and intent to follow the program requirements) to potentially be ineligible for the limited number of available visas. The new rule also aims to “improve program integrity and better protect vulnerable workers” by clarifying the prohibition of fees collected by employers for visas and…
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