Client Alert!
The Department of Homeland Security (DHS) took steps to strengthen protections for temporary workers through the H-2A temporary agricultural and the H-2B temporary nonagricultural worker programs (H-2 programs). In a notice of proposed rulemaking (NPRM), DHS proposed modernizing and improving the H-2 programs by providing greater flexibility and protections for participating workers and improving the program’s efficiency. This would include strengthening protections for workers from exploitative conduct by employers, including the addition of whistleblower protections.
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 Form I-129, Petition for a Nonimmigrant Worker, on the prospective worker’s behalf accompanied by 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 of similarly employed workers in the United States.
Under the proposed regulations, employers who violate H-2B program requirements, including employers who fail to demonstrate an ability and intent to follow the program requirements, may be ineligible for the limited number of available visas. To improve program integrity and better protect vulnerable workers, the proposed rule would clarify prohibitions on employer-imposed fees. It also strengthens the prohibition on, and consequences of, such prohibited fees being collected by employers or recruiters at any time from H-2 workers, protecting workers from incurring exploitive debts and preventing abuse. Further, DHS is proposing greater flexibility for H-2 workers by extending grace periods for seeking new employment, preparing for departure from the United States, or seeking a change of immigration status, which will provide increased clarity and worker flexibility, mobility, and protections.
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