DHS proposes rule to modernize H-2 temporary visa programs

The Department of Homeland Security (DHS) has issued a notice of proposed rulemaking (NPRM) that it says is aimed at strengthening protections and providing greater flexibility for temporary workers through H-2 programs, including workers falling under the H-2B visa program (unskilled, nonagricultural employment).

Some of the proposals in the NPRM include:

• Strengthening protections for workers from exploitative conduct by employers, including the addition of “whistleblower protections.”
• 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.
• Clarification of prohibitions on employer-imposed fees. The NPRM also includes a strengthening of the prohibition on, and consequences of, such prohibited fees being collected by employers or recruiters at any time from H-2 workers, which DHS says would protect workers from incurring exploitative debts and prevent abuse.
• Extending grace periods for H-2 workers seeking new employment, preparing for departure from the United States, or seeking a change of immigration status, which DHS says will provide increased clarity and worker flexibility, mobility and protections.
• Making H-2 portability permanent and the elimination of the “interrupted stay” provisions. Instead, the proposal would reduce the period of absence out of the country to reset workers’ three-year maximum period of stay.
• Elimination of the lists of countries eligible to participate in the programs, allowing employers greater access to workers potentially available to participate in the program.

A 60-day public comment period has started with the publication of the NPRM in the Federal Register on Sept. 20, 2023. The full text of the NPRM can be viewed here.

The American Rental Association (ARA) is studying the NPRM, and plans to compile and send comments by mid-November. For questions about or to propose comments on the NPRM, contact Alysia Ryan, J.D., ARA director, government affairs, at alysia.ryan@ararental.org.