- A proposed rule issued Monday by the U.S. Department of Homeland Security would reform the H-2A and H-2B temporary worker visa programs to target employers that violate the programs’ rules, including those that impose illegal fees upon visa holders and violate labor laws.
- The rule would permit the agency to deny visa petitions for employers that have been found to have violated either the visa program requirements or certain labor laws. DHS proposed that both H-2A and H-2B workers be provided whistleblower protection comparable to that granted to H-1B visa holders, and workers also would see adjustments to the programs’ “grace periods” for seeking employment or preparing for departure following the expiration or revocation of their visas.
- DHS said in a press release the rule would “offer several benefits to employers,” such as implementing permanent portability for H-2A and H-2B visas, which would allow workers to begin new employment upon proper filing of an extension of stay petition rather than on approval of such a petition. Once published in the Federal Register, the proposal will be subject to a 60-day public comment period.
The H-2A and H-2B visa programs allow employers to hire nonimmigrant workers to fill temporary jobs; H-2A applies to agricultural jobs while H-2B applies to nonagricultural jobs.
As with other visa categories, the two programs regularly draw high demand from employers. U.S. Citizenship and Immigration Service’s met its cap on H-2B visa petitions for the second half of 2023’s fiscal year back in March and reached the cap for supplemental visas allotted to returning workers for the same time period just weeks later.
But the H-2B program has received criticism in recent years due to the potential that visa holders may be subject to abuse and wage-and-hour violations on the part of employers. One 2022 report by the Economic Policy Institute, a progressive think tank, found that industries with high numbers of H-2B workers accounted for nearly $1.8 billion in wage violations over the previous two decades.
Regulators including the U.S. Department of Labor’s Wage and Hour Division are charged with ensuring that visa holders are employed within the programs’ requirements. A 2009 DOL fact sheet states, for instance, that employers which fail to meet their obligations under the H-2B program — ranging from health and safety requirements to wage payment requirements, among others — may be assessed penalties or barred from submitting future petitions.
But the EPI report noted that some repeat violators still manage to hire through visa programs. These include employers connected to incidents in which visa holders suffered mistreatment, injuries or death, Buzzfeed News reported in 2016.
“For years, H-2A and H-2B temporary worker visa recipients have been essential to our seasonal and agricultural economies,” Secretary of Homeland Security Alejandro Mayorkas said in DHS’ press release. “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.”