The Biden Administration’s new rule amending the regulations for the H-2A temporary agricultural and H-2B temporary non-agricultural worker programs goes into effect today, January 17, 2025.
The rule, issued by the Department of Homeland Security (DHS), aims to strengthen worker protections while increasing flexibility for both employees and employers. These changes represent a significant shift in the way the H-2 programs operate.
The new rule aims to strengthen protections for temporary workers. Employers are now strictly prohibited from charging specific fees to H-2A and H-2B workers, and violations of this rule may result in severe penalties, including the denial of visa applications.
Furthermore, whistleblower protections have been strengthened, allowing H-2 workers to report workplace violations without fear of retaliation. These safeguards are consistent with those already available to H-1B workers.
The rule also establishes new criteria for rejecting petitions from employers found to have violated labor laws or misused the H-2 programs.
To ensure greater compliance, the rule imposes more stringent requirements on employers. Petitioners must fully cooperate with USCIS’s compliance reviews and site inspections.
Employers who fail to comply risk having their visa petitions denied or revoked. Furthermore, USCIS can now reject applications if critical information cannot be verified, particularly when employers refuse to cooperate with site visits or compliance checks.
The rule also increases flexibility for H-2 workers by introducing employment portability. Under the new provisions, eligible workers can begin working immediately after filing a petition to amend their stay, rather than waiting for approval.
This change is expected to reduce job delays for both employees and employers. Furthermore, the rule simplifies eligibility requirements by eliminating nationality-based restrictions.
Previously, the DHS kept an annual list of countries eligible for H-2 programs, but this requirement has been removed. As a result, Nepal, which was previously not on the list, is now eligible for H-2 visas beginning today.
Administrative changes have also been made to help streamline the visa application process. To ensure compliance with the revised regulations, employers must now use a new edition of Form I-129 when petitioning for H-2 workers.
The rule also standardizes the process of resetting the three-year stay limit for H-2 workers, requiring only a 60-day absence from the United States rather than the previous complex “interrupted stay” provisions.
The H-2A and H-2B visa programs have expanded significantly over the years, reflecting the growing reliance on temporary foreign labor in both agricultural and nonagricultural sectors. In 2023, the United States issued a record 310,676 H-2A visas and 131,704 H-2B visas.
With today’s reforms, the Biden administration hopes to strike a balance between the need for foreign labor and stronger worker protections, ensuring that the programs continue to meet economic demands while preventing exploitation.
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