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This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

On September 18, 2023, the U.S. Department of Homeland Security (DHS) announced a proposed rule to strengthen protections for temporary workers under the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. The proposed rule is intended to improve the H-2 programs by providing more flexibility and protections for the workers, as well as improving efficiency.

The H-2 visa program allows U.S. employers to hire foreign nationals to fill temporary jobs when there are not enough U.S. workers willing, able, and qualified to do the temporary (often seasonal) work. The employer must file a petition accompanied by a certification from the Department of Labor (DOL) that states why there are no qualified U.S. workers and demonstrate how a foreign worker’s employment will not adversely affect the wages and working conditions of U.S. workers in similar roles.

There are a limited number of visas available to participate in the H-2 program and, under the proposed rules, employers who violate the requirements may become ineligible. The proposed rule also clarifies restrictions on employer-imposed fees and seeks to protect workers from incurring debts and abuse. DHS also proposes extended grace periods to seek other employment, depart the United States or change visa status. There would also be a major benefit to employers, as DHS proposes to make H-2 portability permanent, allowing employers to hire workers already lawfully in the United States.

The 60-day public comment period starts following the publication of the proposed rule in the Federal Register.

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