On September 18, 2023, through a notice of proposed rulemaking (NPRM) published today, 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.

This rulemaking would also offer several benefits to employers, including making H-2 portability permanent, which would allow employers who are facing worker shortages to hire H-2 workers who are already lawfully in the United States while the employer's H-2 petition for the worker is pending.

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

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