On December 18, the Department of Homeland Security (DHS) announced a final rule to modernize the H-2 nonimmigrant visa programs. These programs allow qualified U.S. employers to petition for foreign nationals to fill temporary or seasonal agricultural (H-2A) and nonagricultural (H-2B) jobs when the supply of qualified and available U.S. workers is insufficient to meet demand. The final rule is significant for many American industries, such as tree care and landscaping, that turn to seasonal and other temporary workers in the H-2 programs to help them meet seasonal demand for their services.

Notably, the rule was finalized and will be implemented before the end of the Biden administration’s term and the start of President-elect Trump’s administration, whose policy agenda includes limiting both legal and illegal immigration pathways. Due to this timing, any reversal, changes to, or vacation of the rule would be subject to a lengthy regulatory notice and comment process. Additionally, some reports indicate that it is unlikely that the Trump administration will work to reverse or vacate this rule due to the penalties it places on companies that misuse the H-2 programs rather than hiring American workers. With this in mind, H-2 employers must prepare to comply with the rule as it takes effect on January 17, 2025.

 

About the Rule

The final rule’s provisions cover three areas: improving program efficiency, strengthening worker protections and increasing program integrity, and enhancing flexibility for H-2 workers.

• Improving Program Efficiency: The final rule removes the requirement that U.S. Customs and Immigration Services (USCIS) may only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in said programs. As a result, DHS is no longer required to compile and publish a list of countries designated as eligible for the H-2 programs. The final rule also eliminates the programs’ “interrupted” stay provisions. These provisions refer to certain periods an H-2 worker spends outside the U.S. during their authorized period of stay that do not count toward their maximum 3-year stay. Under the final rule, at least 60 days will be the uniform period of absence required to reset the 3-year clock.

 

• Strengthening Worker Protections and Increasing Program Integrity: The final rule strengthens the existing bar on charging certain fees to H-2 workers by imposing consequences on companies that charge these fees and, in certain instances, denying their H-2 petitions. The final rule also institutes mandatory and discretionary grounds for denying an H-2 petition if the petitioner has previously committed labor or other legal violations or misused the H-2 program. Additionally, the rule provides whistleblower protections comparable to those currently offered to H-1B workers. The rule clarifies requirements for petitioners regarding consent to and compliance with USCIS reviews and inspections. In cases of non-cooperation, the rule also clarifies USCIS’ authority to deny or revoke approval of a petition due to the inability to verify petition information.

 

• Enhancing Worker Flexibility: The final rule harmonizes and expands grace periods for workers by adding a 60-day grace period following cessation of employment, during which H-2 workers may seek new employment or prepare for departure from the U.S.; extending the existing 30-day grace period to 60 days following any revocation of H-2 petition approvals; and affirming that H-2 workers are considered to be maintaining their status for up to 10 days before the petition’s validity period and up to 30 days following the expiration of the period. The final rule also allows “portability” so that H-2 workers may continue working while an extension petition is filed. Currently, workers must await petition approval before continuing work. The rule allows H-2 workers to take steps to become U.S. lawful permanent residents without being denied H-2 classification or considered to have failed to maintain their H-2 status.

 

Stakeholder Input

DHS first issued the proposed rule in September 2023, accompanied by a 60-day public comment period. DHS received over 1,900 diverse comments from stakeholders, many supporting modernizing and streamlining the H-2 system. Despite this support, the regulated community shared concerns with the provisions regarding employer “due diligence” and the potential abuse of expanded grace periods.

Some H-2 program employers worried that providing a 60-day grace period after the employer has dedicated time and expense for H-2 workers to arrive in the U.S., could result in those workers seeking alternative, higher-paying employment, once state-side. Further, many employers, though they see portability as a benefit, shared concerns that H-2B employers who were capped out of additional workers (see our previous post for more information on H-2B visa caps) may attempt to lure workers away from the employers who initiated the worker’s temporary migration. Despite these concerns, DHS failed to change the final rule to reflect the comments.

Conversely, DHS made several changes in the final rule, compared to the proposed rule, to clarify the standards under which a petitioner may be held accountable for fee-related violations of the H-2 program. The regulated community expressed concern that the expectation for employers to exercise “due diligence” to avoid liability from prohibited fees was ill-defined. In response, DHS altered the rule’s language to require employers to demonstrate “ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee collection or agreement by such third parties throughout the recruitment, hiring, and employment process.” The rule was also adapted to require that a petitioner take immediate remedial action upon becoming aware of any prohibited fee charge or payment.

 

Additional details on H-2 programs, as well as eligibility and filing requirements, including the new edition of Form-I-129, Petition for a Nonimmigrant Worker which will be required for all petitions upon the rule’s effective date, are available on the USCIS website.

 

To learn more about TCIA’s advocacy efforts, please visit: advocacy.tcia.org.

 

If you’re a TCIA member, you can access all your tools and resources here. Not a member, click here to learn ways TCIA can help advance your tree care business.