Final Rules H-2 & H1B

DHS announces final rule related to H-2 programs

The Department of Homeland Security has announced its completion of the final rule amending regulations affecting temporary agricultural (H-2A) and temporary nonagricultural (H-2B) nonimmigration workers (H-2 programs) and their employers. The amendments are intended to modernize and improve the H-2 nonimmigrant visa programs, which allow qualified U.S. employers who are unable to hire qualified U.S. workers to petition for foreign nationals to fill temporary or seasonal agricultural and nonagricultural jobs. The final rule strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labor laws. It also offers greater flexibility for H-2A and H-2B workers.

The rule’s provisions cover three categories: improving program efficiency; strengthening worker protections and increasing program integrity; and enhancing worker flexibility.

Improving program efficiency. The final rule removes the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in the H-2 programs. It eliminates the “interrupted” stay provisions, simplifying the rules regarding the effect of a departure from the United States on the three-year maximum period of stay for workers participating in the H-2 programs. Instead, it provides a uniform period of absence from the United States (at least 60 days) to reset the three-year clock.

Strengthening protections and integrity. The final rule also revises and clarifies provisions regarding prohibited fees. It strengthens the existing bar on charging certain fees to H-2A and H-2B workers—imposing new consequences for companies that charge them and denying their H-2 petitions in certain circumstances. It also institutes certain grounds for denying an H-2A or H-2B petition filed by a petitioner who has been found to have committed certain violations or misused the H-2 programs, among other things. Also, H-2A and H-2B workers now will have whistleblower protections comparable to the protections currently offered to H-1B workers.

In addition, the final rule clarifies requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections. It clarifies USCIS’s authority to deny or revoke the approval of a petition if it is unable to verify information related to the petition.

Worker flexibility enhanced. The final rule also adds a new grace period for up to 60 days following a cessation of employment, during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their H-2 status or accruing unlawful presence. It extends the existing 30-day grace period following certain revocations to a period of up to 60 days and expands the provision to cover all revocations of H-2 petition approvals. It affirms that H-2A and H-2B workers are considered to be maintaining their H-2 status for a period of up to 10 days before the petition’s validity period and up to 30 days following the expiration of that period.

Portability. The final rule allows for “portability,” meaning that eligible H-2 nonimmigrants can immediately begin to work with a new employer as soon as the employer properly files an extension of stay petition, rather than requiring them to wait until the petition is approved.

It also clarifies that H-2 workers will not be considered to have failed to maintain their H-2 status and will not be denied H-2 classification on the sole basis of having taken certain steps toward becoming lawful permanent residents of the United States.

Effective date and new form. In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker will be required for all petitions beginning January 17, 2025, which is the rule’s effective date.

“The H-2 programs strengthen our nation’s economy by supporting the seasonal labor needs of employers that rely on temporary workers,” said Secretary of Homeland Security Alejandro N. Mayorkas. “By modernizing and improving this program, we increase protections for our nation’s workers, help maintain economic growth, and better meet the labor demands of American businesses.”

“Our H-2 programs are very important to the U.S. economy. Many employers across the country need additional labor on a temporary or seasonal basis, whether it’s on our farms or in other industries,” said USCIS Director Ur M. Jaddou. “This final rule makes us more efficient in helping U.S. employers fill their temporary or seasonal positions, while also making sure we’re protecting both U.S. workers and the noncitizen workers who help fuel our economy.”

Source: CCH Daily Alerts, Written by Brandi O. Brown, J.D.

DHS announces final rule relating to H-1B program

The Department of Homeland Security (DHS) has announced a final rule intended to modernize the H-1B program by streamlining the approvals process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program. This rule builds upon a previous final rule, announced in January 2024.

Definition and criteria. The final rule revises the regulatory definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas. The rule also extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B.

To improve program efficiency, the final rule also will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H-1B visa. It will also allow H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to reasonable conditions.

Inspection authority. Finally, the rule codifies USCIS’s authority to conduct inspections and impose penalties for failure to comply; requires that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date; clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.

Effective date and new form. In order to implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025, which is the rule’s effective date. Because there cannot be a grace period for accepting prior form editions, USCIS expects to soon publish a preview version of the new Form I-129 edition on uscis.gov.

“American businesses rely on the H-1B visa program for the recruitment of highly-skilled talent, benefitting communities across the country,” said Secretary of Homeland Security Alejandro N. Mayorkas. “These improvements to the program provide employers with greater flexibility to hire global talent, boost our economic competitiveness, and allow highly skilled workers to continue to advance American innovation.”

“The H-1B program was created by Congress in 1990, and there’s no question it needed to be modernized to support our nation’s growing economy,” said USCIS Director Ur M. Jaddou. “The changes made in today’s final rule will ensure that U.S. employers can hire the highly skilled workers they need to grow and innovate while enhancing the integrity of the program.”

Source: CCH Daily Alerts, Written by Brandi O. Brown, J.D.