The Department of Homeland Security (DHS) has introduced a new regulation aimed at modernizing the H-2B program (including H-2A also). This regulation goes into effect on January 17, 2025, days before Trump takes office.
Elimination of eligible countries
The new H-2B rule eliminates the eligible country list, allowing employers to hire H-2B workers from any country, including India and China. This change simplifies the process for employers by removing the need to navigate the eligible country list and potentially broadens the pool of available workers for U.S. businesses. Key points include:
- Removal of Eligible Country List: Employers can now hire H-2B workers from any country, expanding the potential labor pool.
- Simplified Process: Eliminates the need for employers to seek waivers for workers from countries not previously on the eligible list.
- Increased Access: Provides U.S. businesses with greater access to foreign workers, potentially addressing labor shortages more effectively.
Greater flexibility for H-2B workers
- Portability Flexibility: H-2B workers already in the U.S. can begin work with a new employer immediately after an H-2B petition is filed, without waiting for its approval.
- Extended Grace Periods: The rule includes extended grace periods for H-2B workers, allowing them more time to transition between jobs or to prepare for departure from the U.S. if necessary. The new rule allows workers to enter 10 days before their start date, remain in the US for 30 days after the expiration of the petition and establishes a 60-day grace period after revocation of a petition, allowing H-2B workers time to find a new employer.
- Elimination of Interrupted Stay Provisions: The rule removes the interrupted stay provisions, reducing the period of absence required to reset the 3-year maximum period of stay for H-2B workers.
- Ability to pursue Lawful Permanent Resident. The new rule clarifies that workers may take certain steps to become a lawful permanent resident while at the same time maintaining H-2B status.
Compliance
- New criteria for denial of petitions. DHS is implementing specific mandatory and discretionary criteria for denying H-2B petitions. For example, petitions will be denied or revoked where it is found that an employer has collected fees from an H-2B worker.
- Whistleblower protections for H-2B workers. DHS is providing whistleblower protection for workers who report their employers for H-2B violations.
- Mandatory site visits. DHS is specifying that petitioners and employers must consent to and comply with USCIS compliance reviews and inspections. USCIS can deny or revoke a petition if it cannot verify information due to a lack of cooperation during these reviews.
Conclusion
The new H-2B rule represents a significant modernization of the program, offering mostly positive changes for both employers and workers. By eliminating the eligible country list, the rule expands the potential labor pool, allowing U.S. businesses to hire workers from any country, including India and China. This change simplifies the hiring process and addresses labor shortages more effectively. Additionally, the rule provides greater flexibility for H-2B workers, such as portability to new employers, extended grace periods, and the ability to pursue lawful permanent residency while maintaining H-2B status.
If you have questions regarding the above, please contact PLG Partner at cprescott@patellegal.com.