DHS Issues New Worker-Friendly H-2 Visa Ruling

The Department of Homeland Security announced a final rule Dec. 18 that it says will allow United States companies that need seasonal workers to more quickly and efficiently fill those jobs. This modernizing and improvement of the H-2 nonimmigrant visa programs will directly impact the Thoroughbred industry. The H-2 visa programs aid employers who are unable to hire qualified U.S.-based workers to seek workers from outside the country to fill temporary or seasonal agricultural and nonagricultural jobs. The rule takes effect Jan. 17, 2025. From that point forward, all petitions require the latest Form I-129, Petition for a Nonimmigrant Worker. DHS said that the final rule "significantly strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labor laws, and provides greater flexibility for H-2A and H-2B workers." According to the DHS, there are three areas the final rule covers: improving program efficiency; strengthening worker protections and increasing program integrity; and enhancing worker flexibility. Oklahoma-based immigration attorney William Velie, who has worked with many stakeholders in the industry, said the final rule is a victory for workers as it will give the industry the ability to have a more stable workforce. He said the biggest benefit is that the rule creates a pathway to permanent residence in the United States. "It allows workers to expressly pursue permanent residence, which, in all immigration law there's this tension between being a nonimmigrant, meaning you have no intention to stay permanently, and going for permanent residence while you're on a nonimmigrant visa," Velie said. He added, "It removes the dual intent to where they can actually say, 'Yes, I'd like to get a green card, and I've got a process going forward. … That, to me, is such a huge accomplishment for the workers that they can finally get a piece of the rock. "I've been working with people that have been coming on H-2B visas since 1999, 2000. Twenty-five years they've been coming, essentially never building up any equity, having to leave their families behind, not being able to bring their families up here. And what it will do is allow them to get on a green card track, and after three years they've got their green card. They''ll still probably want to go home in the off season, but they'll be able to bring their (families) up here and start building some equity. … They're not just sharecroppers. They actually can start building some value in the United States, which is better for all of us." The final rule "clarifies requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections." It also clarifies the United States Citizenship and Immigration Services' authority to deny or revoke the approval of a petition if USCIS cannot verify information related to the petition. This inability may be a result of a lack of cooperation from a petitioner or an employer. To provide greater flexibility, the final rule adds a new grace period up to 60 days following a cessation of employment, during which an H-2 worker "may seek new qualifying employment or prepare for departure" from the U.S. without violating their status or accruing unlawful presence. Additionally, the 30-day grace period following certain revocations has been extended to a period of up to 60 days and expands the provision to cover all revocations of H-2 petition approvals. Previously, if a worker quit or their employment terminated, they needed to return to their home country immediately. The employer had 72 hours to file paperwork with the immigration department and once that paperwork was documented, if the worker was still in the country, they would have been "accruing unlawful presence," Velie explained, and faced with an immediate hardship of getting home on short notice. Now, they have 60 days to depart or find new employment. "They're not allowed to work while they're on that," Velie said, "but it just makes it a lot more orderly and civilized." H-2A and H-2B workers maintain their H-2 status for up to 10 days before the petition's validity period and up to 30 days following the expiration of that period. DHS notes that the final rule allows for eligible H-2 nonimmigrants to immediately begin to work with a new employer as soon as the employer properly files an extension of stay petition, rather than requiring them to wait until the petition is approved. To make the H-2 visa program more efficient, the final rule eliminates the requirement that the USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries designated as eligible to participate in the H-2 programs. As of last month, that list totaled 90 countries. Now, DHS will no longer have to compile and publish this list. Another change is the simplification of the rules related to interrupted stays. An interrupted stay is a period of time when a H-2 worker leaves the U.S. but that departure does not count toward their maximum three-year stay in the U.S. Previously, an interrupted stay was determined differently if the worker had been in the U.S. more or less than 18 months. Now, the clock on their three-year stay resets after 60 uninterrupted days outside of the U.S. Companies, agents, facilitators, recruiters, or similar employment services were already prohibited from directly or indirectly charging workers fees/compensation as a condition of employment except when the worker had paid or agreed to pay such fees at the time of filing their petition. The final rule imposes "new consequences," according to DHS, for companies that charge these fees and deny their H-2 petitions in certain circumstances. According to a DHS release, there is now "mandatory and discretionary grounds for denying an H-2A or H-2B petition filed by a petitioner who, among other things, has been found to have committed certain labor or other legal violations or misused the H-2 programs." H-2A and H-2B workers will "now have whistleblower protections comparable to the protections that are currently offered to H-1B workers." "I think that's a good idea. The whistleblower doesn't always have pristine motivations. … It's fine because it protects people, but I can see where it might be taken advantage of," Velie said. Velie said it was not a coincidence that the ruling came down when it did. Any policy put into place within 30 days of a new administration would be eligible for review. Wednesday marks 32 days before President-elect Donald Trump is sworn in. "There's a whole raft of these going in right now in all sorts of different capacities, in immigration and probably a lot of other agencies, just to try to try to insulate the changes from being able to be unilaterally undone," Velie said. "At least they're going to have to go through a notice and comment period, which takes a year, year and a half. If there's a whole host of them that get attacked in the next six months, then we've got a two-year election coming up soon after. Maybe some of the stuff will be able to survive or last long enough for a change of Congress."