The Department of Homeland Security is pushing for new rules for H-2 visas, which allow foreign nationals to be hired as temporary workers in agriculture, restaurants, hotels, landscaping, among other industries.

In order to reduce abuses of immigrants with H-2A and H-2B visas, the Department of Homeland Security (DHS) is proposing a new rule to the Federal Register, where it will receive public comments before publishing the final order.

These visas are the most important for temporary workers, because while the H-2A grants employment authorization (EAD) to agricultural personnel, the H-2B focuses on those who work in other industries, such as restaurants, hotels or landscaping.

“DHS proposed to modernize and improve the H-2 programs by providing greater flexibility and protections for participating workers,” an official report states.

The goal is to improve protection for workers from exploitative behavior and that would include protection for a whistleblower who reports human trafficking-type abuses, also known as “modern-day slavery.”

DHS Secretary Alejandro Mayorkas acknowledged that these workers represent an “essential” workforce for the U.S., which is why better conditions are being sought.

“These proposed reforms will help U.S. employers address worker shortages through new program flexibilities,” Mayorkas said. “They will also help provide the protections this vulnerable population of workers deserves.”

DHS reminded that the employer or agent assisting in the processing of such a visa must file Form I-129, Petition for a Nonimmigrant Worker.

“[That petition must be] accompanied by a certification from the Department of Labor stating why qualified U.S. workers are not available to fill the job opportunity and why employment to a foreign worker will not adversely affect the wages and working conditions of similarly employed workers in the United States,” the DHS reminded.

Against Unfair Worker Charges

Among other adjustments, the proposed regulation seeks to prevent employers from violating H-2B program requirements.

“The proposed rule would clarify prohibitions on employer-imposed fees,” it stated.

In other words, DHS seeks to end the practice of employers or representatives imposing extra – sometimes regular – fees on workers, who are often afraid to report this abuse.

“[The proposal] strengthens the prohibition and consequences for employers or recruiters to charge such prohibited fees at any time to H-2 workers, protecting workers from incurring exploitative debt and preventing abuse,” it states.

The proposal includes greater flexibility for H-2 workers by extending grace periods for seeking new employment, as well as preparing to leave the U.S. or seeking a change in immigration status.

The plan also includes benefits for employers, including making H-2 portability permanent, i.e., having the option to keep workers with current permits.

“H-2 programs have experienced significant growth in recent years,” DHS acknowledges.

The new guidelines will receive public comment for 60 days, after which DHS must analyze them and integrate them into a new rule.

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