Modernizing H-2 Program Requirements, Oversight, and Worker Protections

Federal RegisterDec 18, 2024

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214 and 274a

[CIS No. 2740-23; DHS Docket No. USCIS-2023-0012]

RIN 1615-AC76

Modernizing H-2 Program Requirements, Oversight, and Worker Protections

AGENCY:

U.S. Citizenship and Immigration Services, Department of Homeland Security (DHS).

ACTION:

Final rule.

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations affecting temporary agricultural (H-2A) and temporary nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their employers. This rulemaking is intended to better ensure the integrity of the H-2 programs and enhance protections for workers.

DATES:

This final rule is effective January 17, 2025.

FOR FURTHER INFORMATION CONTACT:

Charles L. Nimick, Chief, Business and Foreign Workers Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, MD, Camp Springs, 20746; telephone (240) 721-3000. (This is not a toll-free number.) Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 1-877-889-5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

C. Summary of Major Provisions of the Regulatory Action

D. Costs and Benefits

II. Background

A. Description of the H-2 Nonimmigrant Classifications

1. H-2A Temporary Agricultural Workers

2. H-2B Temporary Nonagricultural Workers

III. Changes in the Final Rule

A. Changes to Provisions Related to Payment of Fees, Penalties, or Other Compensation by H-2 Beneficiaries

1. Clarification of Acceptable Reimbursement Fees

2. Prohibiting Breach of Contract Fees and Penalties

3. Similar Employment Services

4. Extraordinary Circumstances Standard

5. Due Diligence Standard

6. Application of the Prohibited Fee Provisions, and 1- and 3-Year Denial Periods

B. Application of Mandatory Grounds for Denial

C. Application of Discretionary Grounds for Denial

D. Discretionary Grounds for Denial

E. Conforming Changes To Align With the USCIS Fee Schedule Final Rule

IV. Response to Public Comments on the Proposed Rule

A. Summary of Comments on the Proposed Rule

B. General Feedback on the Proposed Rule

1. General Support for the Rule

2. General Overview of Comments Opposing the Rule

3. Other General Feedback Regarding the Rule

C. Legal Authority and Background

1. DHS/USCIS Legal Authority

2. H-2 Program Background

D. Program Integrity and Worker Protections

1. Payment of Fees, Penalties, or Other Compensation by H-2 Beneficiaries

2. Mandatory and Discretionary Denials for Past Violations

3. Compliance Reviews and Inspections

4. Whistleblower Protection

E. Worker Flexibilities

1. Grace Periods/Admission Periods

2. Transportation Costs for Revoked H-2 Petitions

3. Portability and Extension of Stay Petitions

4. Effect on an H-2 Petition of Approval of a Permanent Labor Certification, Immigrant Visa Petition, or the Filing of an Application for Adjustment of Status or an Immigrant Visa

5. Removal of “Abscondment,” “Abscond,” and Its Other Variations, and Notification to DHS

F. Program Efficiencies and Reducing Barriers to Legal Migration

1. Eligible Countries Lists

2. Eliminating the “Interrupted Stay” Calculation, Reducing the Period of Absence for Resetting the 3-Year Stay Clock

G. Severability

H. Input on Future Actions/Proposals for Beneficiary Notification

I. Other Comments Related to the Rule or H-2 Programs/Requirements

1. Alternatives and Other General Comments on the Proposed Rule

2. Implementation

3. Employer/Petitioner Requirements, Processes, and Fees

4. Validity Period and 3-Year Maximum Period of Stay

J. Statutory and Regulatory Requirements

1. Administrative Procedure Act (APA)

2. Regulatory Impact Analysis (RIA) (E.O. 12866 and E.O. 13563)

K. Out of Scope

V. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)

1. Summary of Major Provisions of the Regulatory Action

2. Summary of Costs and Benefits of the Final Rule

3. Summary of Comments Related to the Regulatory Impact Analysis and Associated Responses

4. Background and Purpose of the Rule

5. Population

6. Cost-Benefit Analysis

B. Regulatory Flexibility Act (RFA) C. Unfunded Mandates Reform Act of 1995 (UMRA)

D. Congressional Review Act

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

H. National Environmental Policy Act (NEPA)

I. Paperwork Reduction Act (PRA)

Table of Abbreviations

AAO—Administrative Appeals Office

APA—Administrative Procedure Act

BLS—Bureau of Labor Statistics

CBP—U.S. Customs and Border Protection

CEQ—Council on Environmental Quality

CFR—Code of Federal Regulations

CPI-U—Consumer Price Index for All Urban Consumers

DHS—Department of Homeland Security

DOJ—Department of Justice

DOL—Department of Labor

DOS—Department of State

DOT—Department of Transportation

ELIS—Electronic Immigration System

ETA—Employment and Training Administration

FAM—Foreign Affairs Manual

FDNS—Fraud Detection and National Security Directorate

FR—Federal Register

FRFA—Final Regulatory Flexibility Analysis

FTE—Full-time equivalent

FY—Fiscal year

GAO—Government Accountability Office

GDOL—Guam Department of Labor

HR—Human Resources

HSA—Homeland Security Act of 2002

H-2A—Temporary Agricultural Workers Nonimmigrant Classification

H-2B—Temporary Nonagricultural Workers Nonimmigrant Classification

ICE—U.S. Immigration and Customs Enforcement

IEFA—Immigration Examinations Fee Account

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

IRFA—Initial Regulatory Flexibility Analysis

MOU—Memorandum of understanding

NAICS—North American Industry Classification System

NEPA—National Environmental Policy Act

NOID—Notice of intent to deny

NPRM—Notice of proposed rulemaking

OFLC—Office of Foreign Labor Certification

OMB—Office of Management and Budget

OSHA—Occupational Safety and Health Administration

PRA—Paperwork Reduction Act

RFA—Regulatory Flexibility Act of 1980

RFE—Request for evidence

RIA—Regulatory Impact Analysis

SBA—Small Business Administration

TFR—Temporary final rule

TLC—Temporary labor certification

UMRA—Unfunded Mandates Reform Act of 1995

USCIS—U.S. Citizenship and Immigration Services

USDA—U.S. Department of Agriculture

WHD—Wage and Hour Division

I. Executive Summary

A. Purpose of the Regulatory Action

The purpose of this rulemaking is to modernize and improve the DHS regulations relating to the H-2A temporary agricultural worker program and the H-2B temporary nonagricultural worker program (H-2 programs). Through this rule, DHS seeks to strengthen worker protections and the integrity of the H-2 programs, provide greater flexibility for H-2A and H-2B workers, and improve program efficiency.

B. Legal Authority

The Immigration and Nationality Act (INA or the Act) sec. 101(a)(15)(H)(ii)(a) and (b), 8 U.S.C. 1101(a)(15)(H)(ii)(a) and (b), establishes the H-2A and H-2B nonimmigrant visa classifications for noncitizens

who are coming to the United States temporarily to perform agricultural labor or services or to perform nonagricultural services or labor, respectively.

For purposes of this discussion, DHS uses the term “noncitizen” as synonymous with the term “alien” as it is used in the INA and regulations.

See

INA sec. 101(a)(3), 8 U.S.C. 1101(a)(3).

The Secretary's authority for this rule can be found in various provisions of the immigration laws, including but not limited to INA sections 103(a), 8 U.S.C. 1103(a), and 214, 8 U.S.C. 1184.

INA sec. 103(a), as amended, 8 U.S.C. 1103(a), provides the Secretary general authority to administer and enforce the immigration laws and to issue regulations necessary to carry out that authority. Section 402 of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 202, charges the Secretary with “[e]stablishing and administering rules . . . governing the granting of visas or other forms of permission . . . to enter the United States” and “[e]stablishing national immigration enforcement policies and priorities.”

see also

8 CFR 214.2(h)(6)(i).

Current DHS regulations define an employer's temporary need as employment that is of a temporary nature where the employer's need to fill the position with a temporary worker generally will last no longer than 1 year, unless the employer's need is a one-time event, in which case the need could last up to 3 years.

See

8 CFR 214.2(h)(1)(ii)(D), (h)(6)(ii), and (h)(6)(vi)(D).

DHS regulations provide that an H-2B petition must be accompanied by an approved TLC from DOL or from the Guam Department of Labor (GDOL) for H-2B workers who will be employed on Guam, which serves as DHS's consultation with DOL or GDOL with respect to these requirements. 8 CFR 214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A), (h)(6)(v).

Unlike the H-2A classification, there is a statutory annual limit or “cap” on the number of noncitizens who may be issued H-2B visas or otherwise provided H-2B status. Specifically, the INA sets the annual number of noncitizens who may be issued H-2B visas or otherwise provided H-2B status at 66,000,

to be distributed semi-annually beginning in October and April.

See

INA sec. 214(g)(1)(B) and (g)(10), 8 U.S.C. 1184(g)(1)(B) and (g)(10). With certain exceptions,

up to 33,000 noncitizens may be issued H-2B visas or provided H-2B nonimmigrant status in the first half of a fiscal year, and the remaining annual allocation, including any unused nonimmigrant H-2B visas from the first half of a fiscal year, will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.

If insufficient petitions are approved to use all available H-2B numbers in a given fiscal year, the unused numbers cannot be carried over for petition approvals for employment start dates beginning on or after the start of the next fiscal year.

Since 2017, Congress has authorized up to an additional 64,716 visas when the Secretary of Homeland Security, after consultation with the Secretary of Labor, determines that the needs of American businesses cannot be satisfied in a given fiscal year with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor. For example, on September 25, 2024, Congress passed the FY 2025 authority, Public Law 118-83, which the President signed the next day. This law extends authorization under the same terms and conditions provided in section 105 of Division G, Title I of the FY 2024 Omnibus permitting the Secretary of Homeland Security to increase the number of H-2B visas available to U.S. employers in FY 2025, and expires on December 20, 2024.

Generally, workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment will not be subject to the cap.

See

8 CFR 214.2(h)(8)(ii). Similarly, H-2B workers who have previously been counted against the cap in the same fiscal year that the proposed employment begins will not be subject to the cap if the employer names them on the petition and indicates that they have already been counted.

See

8 CFR 214.2(h)(8)(ii)(A) and 8 CFR 214.2(h)(2)(iii). The spouse and children of H-2B workers, classified as H-4 nonimmigrants, also do not count against the cap.

See

INA 214(g)(2) and 8 CFR 214.2(h)(8)(ii). Additionally, until December 31, 2029, petitions for the following types of workers are exempt from the H-2B cap: fish roe processors, fish roe technicians, or supervisors of fish roe processing; and workers performing labor or services in the Commonwealth of the Northern Mariana Islands or Guam.

See

Public Law 108-287, sec. 14006, 118 Stat. 951, 1014 (Aug. 5, 2004); Northern Mariana Islands U.S. Workforce Act of 2018, Public Law 115-218, sec. 3, 132 Stat. 1547, 1547 (July 24, 2018). Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt or not subject to the H-2B cap.

The Federal Government's fiscal year runs from October 1 of the prior calendar year through September 30 of the year being described. For example, fiscal year 2023 ran from October 1, 2022, through September 30, 2023.

III. Changes in the Final Rule

Following careful consideration of public comments received, this final rule adopts the regulatory text proposed in the notice of proposed rulemaking (NPRM),

Modernizing H-2 Program Requirements, Oversight, and Worker Protections,

88 FR 65040, published in the

Federal Register

on September 20, 2023, with some changes. DHS retains the rationale for the proposed rule and the reasoning provided in that rule, except as described in the preamble of this final rule. Section IV of this preamble includes a detailed summary and analysis of the comments and presents DHS's responses to those comments.

A. Changes to Provisions Related to Payment of Fees, Penalties, or Other Compensation by H-2 Beneficiaries

1. Clarification of Acceptable Reimbursement Fees

In the NPRM, DHS explained that it is not the intention of DHS to pass to petitioners, employers, agents, attorneys, facilitators, recruiters, or similar employment services, the costs of services or items that are truly personal and voluntary in nature for the worker. Under the proposed rule, payments made primarily for the benefit of the worker, such as a passport fee, would not be prohibited fees or payments related to the H-2 employment and would, therefore, permissibly be considered the responsibility of the worker. To simplify the language related to acceptable reimbursement fees and to clarify that the exception only applies to costs that are truly for the worker's benefit, proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) would have replaced the existing regulatory language on this topic with text stating that the provision would not prevent relevant parties “from receiving reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.” As mentioned in the NPRM, this language was derived from, and is consistent with, DOL regulations on prohibited fees for H-2B and H-2A workers at 20 CFR 655.20(o), 29 CFR 503.16(o), and 20 CFR 655.135(j).

In response to public comments requesting additional clarity on this topic, DHS is finalizing the proposed language about costs that are the responsibility and primarily for the benefit of the worker and further revising 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to add: “This provision does not prohibit employers from allowing workers to initially incur fees or expenses that the employers are required to subsequently reimburse, where such arrangement is specifically permitted by, and performed in compliance with, statute or regulations.”

Adding this language clarifies that, under certain conditions, the employer can reimburse the worker after the worker initially pays costs that are the employer's responsibility (such as certain transportation costs), and that this would not be considered a collection of a prohibited fee. This change to specify when an employer may make reimbursements to the beneficiary for a cost that is ultimately the employer's responsibility complements the regulatory text as proposed and finalized in 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) regarding reimbursements from the beneficiary. That language specifies that the prohibited fee provisions do not prohibit petitioners and third parties from receiving reimbursement from the beneficiary for costs that are the responsibility of and primarily for the benefit of the worker, such as government-required passport fees.

See, e.g.,

20 CFR 655.20(j)(2) (“The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker . . .”).

2. Prohibiting Breach of Contract Fees and Penalties

DHS is adding text to the proposed provisions at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to clarify that a prohibited fee may not be collected from a beneficiary “or any person acting on the beneficiary's behalf.” This revision responds to public comment in that it strengthens the proposed language in the NPRM prohibiting the charging of breach of contract fees by barring non-monetary penalties or penalties imposed on a worker or anyone acting on behalf of the worker.

3. Similar Employment Services

Based on feedback from commenters requesting greater clarity with respect to the phrase “similar employment services,” DHS is amending its proposed provisions at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to clarify that “similar employment service refers to any person or entity that recruits or solicits prospective beneficiaries of the [H-2] petition.” This clarification addresses commenters' feedback as to what “similar employment services” means.

4. Extraordinary Circumstances Standard

In response to public comments, DHS is making several changes to 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) to clarify the standards under which a petitioner will be held accountable for its own prohibited fee-related violations or those of its employees. These changes include removing the proposed “rare and unforeseeable” language, as this phrase was always meant to specifically explain “extraordinary circumstances” and not create another standard separate and apart from “extraordinary circumstance.” DHS is also removing the proposed “To qualify for this exception” language because this phrase was intended only to refer to the “extraordinary circumstances” exception, not to create another exception. In addition, new 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) requires the petitioner to demonstrate that it “made ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee collection or agreement by its employees throughout the recruitment, hiring, and employment process” instead of “significant efforts to prevent prohibited fees prior to the collection of or agreement to collect such fees.” These changes clarify what was meant by “significant”; moreover, they clarify the petitioner's obligation to not only prevent prohibited fees before the collection of or agreement to collect such fees occurs, but also to prevent and learn of any collection or agreement to collect such fees on an ongoing basis given that such fees could be collected or agreed upon at various points in time during the recruitment, hiring, or employment process. DHS is also deleting duplicative language about the petitioner's obligation to fully reimburse all affected beneficiaries.

5. Due Diligence Standard

In response to public comments, DHS is making several changes at 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) to clarify the standards under which a petitioner may be held accountable for the prohibited fee-related violations of its agents, attorneys, facilitators, recruiters, or similar employment services. Specifically, DHS is foregoing the proposed “did not know and could not, through due diligence, have learned” language and instead requiring the petitioner to demonstrate “ongoing, good faith, reasonable efforts to prevent and learn of the prohibited fee collection or agreement by such third parties throughout the recruitment, hiring, and employment process.” This is not intended to be a substantive change, but instead is intended to clarify what DHS meant by “due diligence” and to better align the regulatory language at 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) which also requires the same “ongoing, good faith, reasonable efforts.” Further, new 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) require the petitioner to take immediate remedial action as soon as it becomes aware of the payment of or agreement to pay the prohibited fee, which was missing from these provisions as proposed in the NPRM. The only difference in the evidentiary requirements at new 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

), compared to new 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

), is that prohibited fee-related violations by the petitioner or its employees, unlike those by third parties, will require an additional showing that extraordinary circumstances beyond the petitioner's control resulted in its failure to prevent collection or entry into agreement for the collection of prohibited fees in order to avoid denial or revocation of an H-2 petition on notice.

6. Application of the Prohibited Fee Provisions, and 1- and 3-Year Denial Periods

As discussed in response to public comments, DHS is clarifying in this final rule how it will apply the revised provisions governing the collection of or agreement to collect prohibited fees. Namely, the denial or revocation of H-2 petitions under the provisions of this final rule will apply only to petitions filed on or after the effective date of this rule. New 8 CFR 214.2(h)(5)(xi)(A)(

)-(

) and 8 CFR 214.2(h)(6)(i)(B)(

)-(

). Similarly, DHS is clarifying that the 1-year and 3-year additional denial periods of H-2 petitions based on the denial or revocation of petitions for collection or agreement to collect prohibited fees will apply in cases where the denial or revocation of the H-2 petition was made on a petition filed on or after the effective date of this final rule. New 8 CFR 214.2(h)(5)(xi)(B)-(C) and 8 CFR 214.2(h)(6)(i)(C)-(D). Petitions filed before the effective date of this final rule will be subject to the provisions in place before this final rule. DHS has made edits to the relevant regulatory provisions to ensure consistent application and transparency for the public.

7. Clarifying When a Designee May Be Reimbursed

DHS is adding language at new 8 CFR 214.2(h)(5)(xi)(A)(

) and (C)(

), and new 8 CFR 214.2(h)(6)(i)(B)(

) and (D)(

), to clarify that a beneficiary's designee may be reimbursed only if the affected beneficiary(ies) cannot be located or is (are) deceased. These are clarifying, non-substantive changes. While proposed 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

) contained the clarifying clause “only if such beneficiaries cannot be located or are deceased,” DHS never intended for this to apply only when the prohibited fee was collected by the petitioner pursuant to proposed 8 CFR 214.2(h)(5)(xi)(A)(

) and 8 CFR 214.2(h)(6)(i)(B)(

). To better ensure parity in the regulations, DHS is adding the same or similar clause to the other prohibited fee provisions addressing a prohibited fee collection or agreement by an agent, attorney, employer, facilitator, recruiter, or similar employment service, or any joint employer at new 8 CFR 214.2(h)(5)(xi)(A)(

) and (C)(

), and new 8 CFR 214.2(h)(6)(i)(B)(

) and (D)(

B. Application of Mandatory Grounds for Denial

DHS is clarifying in this final rule and discussing in more detail in response to

public comments how it will apply the new mandatory grounds for denial.

With respect to denials based on final administrative determinations made by the Secretary of Labor or the Governor of Guam to debar the petitioner, USCIS will deny a petition pursuant to new 8 CFR 214.2(h)(10)(iv)(A)(

) if it is filed during the debarment period or if the debarment occurs during the pendency of the petition, as proposed in the NPRM. 88 FR 65040, 65057-58 (Sept. 20, 2023). This final rule adds language clarifying that this provision will only apply if the petition is filed on or after the effective date of the rule and the final administrative determination to debar the petitioner is issued on or after the effective date of the rule.

Similarly, as proposed in the NPRM, USCIS will deny petitions pursuant to new 8 CFR 214.2(h)(10)(iv)(A)(

) if a finding of fraud or willful misrepresentation of a material fact was included in the initial denial or revocation of a prior petition if such decision was issued during the pendency of the petition or within 3 years prior to filing the petition. 88 FR 65040, 65058 (Sept. 20, 2023). This final rule rephrases the provision for clarity and adds language specifying that this provision will only apply if the final denial or revocation decision is made on a prior petition filed on or after the effective date of the rule.

When it comes to mandatory denials based on violations of INA sec. 274(a) under new 8 CFR 214.2(h)(10)(iv)(A)(

), USCIS will deny petitions if there is a final determination of violation(s) under section 274(a) of the Act during the pendency of the petition or within 3 years prior to filing the petition, as proposed in the NPRM. 88 FR 65040, 65058 (Sept. 20, 2023). This final rule adds language clarifying that this provision will only apply if the final determination of violation(s) under section 274(a) of the Act is made on or after the effective date of the rule and if the petition is filed on or after the effective date of the rule.

C. Application of Discretionary Grounds for Denial

DHS will apply the discretionary grounds for denial under new 8 CFR 214.2(h)(10)(iv)(B), as proposed in the NPRM. 88 FR 65040, 65058-60 (Sept. 20, 2023). This final rule adds language clarifying that this provision will apply to petitions filed on or after the effective date of this final rule, regardless of whether the action(s) or the violation(s) underlying the determination of violation(s) of the discretionary grounds for denial occurred before, on, or after the effective date of this final rule.

D. Discretionary Grounds for Denial

In response to comments, DHS is adding new 8 CFR 214.2(h)(10)(iv)(F) to state that, if USCIS has determined in the course of a previous adjudication that a petitioner (or the preceding entity, if the petitioner is a successor in interest) has established its intention and ability to comply with H-2A or H-2B program requirements notwithstanding relevant violation determinations under paragraph (h)(10)(iv)(B), USCIS will not seek to deny a subsequent petition under paragraph (h)(10)(iv)(B) of this section based on the same previous violation(s) unless USCIS becomes aware of a new material fact (such as a repeat of the previous violation(s)) or if USCIS finds that its previous determination was based on a material error of law.

At 8 CFR 214.2(h)(10)(iv)(B), DHS is making non-substantive changes to replace “or” with “and/or” to clarify that USCIS may deny a petition if the petitioner (or successor in interest) has not established its “intention and/or ability to comply with H-2A or H-2B program requirements.” Consistent with the NPRM, the petitioner must demonstrate that it has both the intent and ability to comply with H-2 program requirements, and USCIS can deny a petition under this ground if the petitioner has not established either its intent to comply with H-2A or H-2B program requirements, or its ability to comply with H-2A or H-2B program requirements, or both.

E. Conforming Changes To Align With the USCIS Fee Schedule Final Rule

As DHS proposed to eliminate the eligible countries lists from 8 CFR 214.2(h)(5)(i)(F) and 214.2(h)(6)(C), DHS also proposed to remove a reference to the eligible countries list from 8 CFR 214.2(h)(2)(ii) which, at the time of the NPRM, allowed an unlimited number of H-1C, H-2A, H-2B, and H-3 beneficiaries to be requested on a single nonimmigrant petition. After the publication of the NPRM, DHS published the Fee Schedule Final Rule (“Fee Rule”) on January 31, 2024, and that rule went into effect on April 1, 2024. 89 FR 6194. Most relevantly, the Fee Rule replaced the language in 8 CFR 214.2(h)(2)(ii) allowing the grouping of an unlimited number of H-1C, H-2A, H-2B, and H-3 beneficiaries on a single nonimmigrant petition and imposed a limit of 25 named beneficiaries. Therefore, in addition to amending the language in final 8 CFR 214.2(h)(2)(ii) to remove the reference to the eligible country list, this provision has been amended to reflect the change made by the Fee Rule.

F. Severability

In the severability clause contained in this final rule, DHS has identified the second level paragraphs (for example, (h)(6)) in which the severable amended provisions contained in this final rule can be found. These references along with the date of the final rule are intended to better identify the severable provisions and differentiate them from the existing provisions in 8 CFR 214.2 that are not being impacted by this final rule.

IV. Response to Public Comments on the Proposed Rule

A. Summary of Comments on the Proposed Rule

DHS received a total of 1,944 public comment submissions in Docket USCIS-2023-0012 in response to the NPRM. Of the submissions, 223 were unique submissions, 1,714 were form letter copies, 3 were duplicate submissions, 1 was out of scope, 2 were foreign language submissions, and 1 was a partial foreign-language submission. The majority of comment submissions originated from individual or anonymous commenters, including attorneys and individual employers or farmers. Other commenters included companies, trade and business associations, advocacy groups, professional associations, unions, research organizations, Federal elected officials, State or local government agencies, farming or agricultural entities, a religious organization, and a foreign government. While the great majority of comment submissions (1,844) were supportive of the rule, some commenters (7) expressed general opposition to the rule, and many commenters (87) offered mixed feedback, such as by providing both support for and opposition to various provisions of the proposed rule throughout their comment, or by generally providing support or opposition but with suggested revisions.

B. General Feedback on the Proposed Rule

1. General Support for the Rule

a. Positive Impacts on Nonimmigrants/Workers/Noncitizens,Their Communities, and Support Systems

Comment:

Approximately 1,850 submissions, including a large form letter campaign, discussed the proposed rule's positive impacts on H-2 beneficiaries, their communities, and support systems.

A few individual commenters endorsed USCIS' efforts to advance protections and flexibilities for H-2 workers on the basis that such measures would be responsive to the needs of nonimmigrants and their support systems. Numerous commenters, including individual commenters, unions, joint submissions, advocacy groups, and a group of Federal elected officials, stated that the proposed rule would address long-standing issues of abuse, exploitation, and trafficking among H-2 workers by allowing workers to leave an abusive employer in search of outside opportunities, enhancing enforcement against retaliation, and protecting visa status for those seeking lawful permanent residence. Several individual commenters added that the proposed rule's efforts to provide flexibility and protections for H-2 workers would enhance workers' well-being and rights, as well as reporting practices. Similarly, a few individual commenters stated that the changes to nonimmigrant worker protections would represent a positive step towards equality and addressing health equity disparities by ensuring proper compensation, appropriate physical conditions, legal protections, and equal rights and opportunities relative to U.S. citizens.

Several individual commenters, including an advocacy group, and a couple of joint submissions provided examples of abusive and exploitative behavior—such as what was seen in “Operation Blooming Onion,”

employer retaliation against workers for protesting hazardous conditions, and other anecdotes from H-2 workers that they said showed the need for increased protections, including those proposed in the NPRM. A couple of individual commenters wrote that with the increase in extreme heat resulting from climate change, H-2 workers need further protection.

See, e.g.,

DOJ, U.S. Attorney's Office, Southern District of Georgia, “Three men sentenced to federal prison on charges related to human trafficking: Each admitted to role in forced farm labor in Operation Blooming Onion” (Mar. 31, 2022) (involving forced labor, keeping workers in substandard conditions, kidnapping, and rape, among other abuses),

https://www.justice.gov/usao-sdga/pr/

three-men-sentenced-federal-prison-charges-related-human-trafficking.

Numerous individual commenters and a form letter campaign stated that DHS has a responsibility to protect workers' rights, as H-2 workers help to provide food for the U.S. public, serve as the “backbone” of the U.S. agricultural industry, help U.S. society function, and as a result, strengthen U.S. national security. The form letter campaign added that the proposed rule would “not only protect the rights and dignity of farm workers but also contribute to the welfare and security of [the] nation's agricultural workforce.” Several individual commenters and a trade association commented that implementing measures to protect H-2 workers while ensuring their fair treatment would align with U.S. and agriculture industry values. An individual commenter added that farm workers are vital members of communities they work and live in, and that strengthened protections would benefit local, regional, and national communities.

A couple of individual commenters and a couple of joint submissions including one from a union and numerous advocacy organizations stated that domestic farm workers' labor conditions are undermined by the exploitation of H-2 workers, highlighting the necessity of the proposed rule. An individual commenter stated that the proposed rule demonstrates DHS's commitment to listening to those working in the agriculture industry, including unions and organizations that represent migrant and non-English speaking agriculture workers. A joint submission from a union and numerous advocacy organizations contained comments from H-2 workers voicing support for the proposed rule changes on the basis that it would improve their job security and working conditions, and allow them to better provide for their families.

Response:

DHS appreciates public commenters' general support for this rulemaking and for the Department's ongoing efforts to advance protections and flexibilities for H-2 workers. As discussed earlier, DHS is cognizant of the importance of temporary nonimmigrant workers for agricultural and nonagricultural employers and of the positive impacts these workers contribute to local and regional economies in the United States. DHS agrees with the general support of the majority of commenters that the changes adopted in this rule will help to reduce the H-2A and H-2B programs' vulnerabilities and better ensure the rights and dignity of H-2 workers.

b. Positive Impacts on Employers/Petitioners/Farmers, Employment Service Providers, Workforce, Industry, and Economy

Comment:

Approximately 10 submissions discussed the proposed rule's positive impacts on petitioners, employment service providers, the U.S. workforce, U.S. industries related to the H-2 program, and the U.S. economy.

An individual commenter expressed support for the proposed rule's efforts to streamline the petition process for employers, reasoning that these measures would reduce administrative and financial burdens for employers while increasing program efficiency and accessibility.

Several commenters provided feedback on the potential positive impacts the proposed rule would have on the U.S. agricultural workforce and labor conditions for U.S. workers. Some individual commenters stated that H-2 workers are essential for the well-being of the U.S. economy and agriculture industry as they alleviate domestic workforce shortages, and stated that as a result, the protections put forth in the proposed rule are needed. Other individual commenters also voiced support for the proposed rule on the basis that their farming operations would benefit from their employees being able to stay for temporary H-2A employment.

Response:

DHS appreciates these commenters' support and their recognition of the positive impacts the proposed rule would have to the agricultural industry and the efforts to improve the Department's administration of the H-2 programs. In addition to the rule's focus on providing workers with better labor protections and increased flexibility, streamlining the process for requesting temporary nonimmigrant workers through reducing administrative and financial burdens is a positive change for both employers and their employees.

c. Positive Impacts on the Government, Program Operability, and Integrity

Comment:

Approximately 10 unique submissions, including a form letter campaign, discussed the proposed rule's impacts on the government, program operability, and integrity.

Several commenters, including multiple advocacy groups, a joint submission from a union, a form letter campaign, and a group of Federal elected officials, endorsed the proposed rule's measures to improve program oversight and enforcement, reasoning that these provisions would deter misconduct by employers and recruiters while ensuring the integrity and quality of H-2 programs. Other commenters, including an advocacy group, a union, the form letter campaign, and joint submissions, also expressed support for the proposed rule on the grounds that it would create needed accountability and transparency in the H-2 programs. A business association provided additional feedback that the proposed changes would streamline requirements

between H-2A and H-2B programs, helping USCIS make the those program more effective and efficient overall.

Multiple commenters, including a joint submission, advocacy groups, a union, the form letter campaign, and a group of Federal elected officials, stated that the proposed rule complemented DOL H-2 program initiatives in making needed program integrity improvements and enhancing DOL and DHS combined capabilities to protect workers from exploitation.

Response:

The Department appreciates the commenters' support for the changes finalized in this rule and agrees that the new provisions herein will have a positive impact on the effort to increase programmatic efficiency, integrity, and accountability. As demonstrated by the changes first proposed in the NPRM, and by those adopted as final in this rule, DHS is committed to efforts that will better protect workers from exploitation and deter misconduct by employers and recruiters.

2. General Overview of Comments Opposing the Rule

a. Lack of Need for the Rule

Comment:

An individual commenter expressed opposition to the rule on the basis that there is no need for the proposed changes. In addition to citing “obstructive” costs that will “fall on general taxpayer[s],” the commenter reasoned that DOL already provides a system of protection for temporary workers.

Response:

DHS declines to revise the proposed rule in response to this comment. The commenter does not identify any specific costs to general taxpayers or offer data to support the claims of such costs being “obstructive.” The commenter does not contest any of the Government Accountability Office (GAO) studies or media reports of abuse of H-2 workers occurring under current regulations that this rule is designed to curtail. Further, while DOL provides protection for temporary workers consistent with its authority and available resources, the changes in this rule are intended to complement DOL regulations to provide a more comprehensive framework for worker protections.

b. Negative Impacts on Employers/Petitioners/Farmers, Employment Service Providers, Workforce, Industry, and Economy

Comment:

Approximately 10 submissions discussed the proposed rule's potential negative impacts on petitioners, employment service providers, the U.S. workforce, U.S. industries relevant to the H-2 programs, and the U.S. economy.

An individual commenter stated their concern that the proposed rule could impact the availability and diversity of H-2 workers by deterring employers from participating or causing them to pass costs to workers. In support of this position, the commenter cited examples of proposals that are not included in either the proposed rule or this final rule, such as increasing filing fees, limiting the number of H-2B visas available each fiscal year, and excluding certain occupations from the H-2B program. In a separate comment, a research organization acknowledged the new flexibilities the NPRM provided for workers but stated that it does not make use of all the legal authorities available and does not include any effort to streamline the process for employers. The commenter expressed concern that the increased costs would cause employers to leave the program and would lead to more undocumented immigration and unauthorized employment.

Some commenters expressed concern that the proposed rule would unfairly target employers who are largely compliant with labor laws and regulations, with multiple associations and an individual commenter stating that the Department's approach signals a belief that most employers are acting in violation of labor laws and that the proposed rule would debar good faith employers for minor infractions. In addition, one of the trade associations stated that 80 to 90 percent of H-2 workers return to previous employers and many refer friends and family as indication that a majority of petitioners are compliant with labor laws and treat workers fairly.

In addition, other commenters expressed concern over the general costs that the proposed rule would have on employers. A trade association cited statistics on increases in domestic worker wages that have necessitated employers' reliance on the H-2 program, and stated that without a dependable workforce and a predictable and stable wage rate, farmers are making difficult decisions about the crops they grow and may be forced out of business. An individual commenter expressed a general, vague concern that the proposed rule “would have a negative impact on my farm and the local, healthy food we produce,” without further explaining the nature of the claimed negative impacts. Another individual commenter expressed concern that with the “lengthy” list of regulations both DHS and DOL have released in recent years, the new proposed rule would complicate farmers' ability to hire the workers they need in an already complex system. The commenter concluded that broadening DHS's authority to come onto farmers' property with “unfettered access” to employees for interviews without a farmer or agent present “worr[ies] American farmers,” and urged USCIS to “find solutions rather than create more problems.” Another individual commenter repeated these concerns and added that the “stringent” nature of the disciplinary process would exceed State requirements for employers discharging U.S. workers, exacerbating disparities in employment law. Referencing the Department's statement on the purpose of the proposed regulation, a State agency voiced opposition to the proposed changes to the H-2 programs, reasoning that such changes would confuse entities in the agricultural industry and increase the likelihood that they will violate labor laws in the future.

Response:

While certain clarifying revisions that DHS has made in this final rule may address some of the commenters' concerns as discussed below, DHS is not making changes to the proposal in direct response to these comments. While a commenter identifies higher fees for filing petitions and certifications, this rule (both as proposed and finalized) does not include any higher filing fees. The concern from this commenter that employers would pass any costs on to workers is not persuasive as employers are already prohibited from passing costs to workers and this rule imposes new consequences on employers who pass those prohibited costs to workers. With respect to limiting which occupations qualify for H-2B visas, this rule did not remove any occupations from H-2B eligibility. While DHS appreciates a commenter's interest in streamlining the process, the commenter's broad characterization of the H-2 process as being complicated and time-consuming does not address the specific provisions contained in this regulation. Among other things, the commenter offers no support in speculating that extra costs imposed by this rulemaking will inevitably cause employers to leave the program and result in more immigrants working without documentation. DHS considered potential costs of this rule and consequences to employers, such as impacts of site visits and time estimates for these administrative visits, lost productivity due to whistleblower revelations, and completing filings for

porting H-2 workers, and determined that the benefits of the proposed provisions, as outlined in various parts of this rule, outweighed any costs.

DHS also maintains that the rule does not unfairly target compliant employers with loyal employees who return annually and refer their friends and family or, as the commenter characterizes it, “debar” good faith employers for minor infractions. As discussed below, and in the NPRM, this final rule is not punitive in nature, rather, it is adjudicative in nature, and, as is extensively explained throughout this preamble, intended to enhance the integrity of the H-2 program for the benefit of good faith employers and their workers alike, and to protect H-2 workers from exploitation and other abuses.

DHS nonetheless is revising the proposed due diligence language regarding third parties' collection of prohibited fees to minimize negative impacts on responsible employers who make ongoing, good faith, reasonable efforts to prevent prohibited fees. Further, as explained below, mandatory denial is reserved for final determinations involving very specific egregious conduct, while discretionary denial occurs only if USCIS has determined, taking into account the totality of the circumstances and the factors outlined in the proposed regulations, that the petitioner or successor has not established its intention or ability to comply with H-2 program requirements. Moreover, DHS is adding new 8 CFR 214.2(h)(10)(iv)(F) to assure petitioners with past violations who have established their intention and ability to comply with H-2A or H-2B program requirements in the course of USCIS' adjudication of a previously filed H-2 petition that USCIS will not seek to deny a subsequently filed petition under the discretionary denial provisions of this final rule based on the same violation(s), unless USCIS becomes aware of a new material fact or finds that its previous determination was based on a material error of law.

Regarding concerns about increased wages, DHS reiterates that this rulemaking does not address worker wages, which is an issue that broadly falls within the jurisdiction of DOL.

DHS acknowledges that employers will need time to familiarize themselves with the new regulations, which is why the final rule clarifies that DHS will apply certain provisions in a manner that balances the strong interest in enhancing H-2 program integrity and protection of H-2 workers with, as discussed below, the interest in providing petitioners with notice of new future effects applicable to certain conduct. DHS has determined that the benefits of the rule, including increased worker protections and flexibility as well as program integrity, outweigh time costs to employers. Finally, DHS notes that this rule does not create any new labor laws, which are under the jurisdiction of DOL or other labor agencies.

3. Other General Feedback Regarding the Rule

a. General Feedback Without Stating Support or Opposition to the Proposed Rule

Comment:

An individual commenter provided remarks on labor abuses in the H-2A visa program without stating a position on the proposed rule. The commenter expressed the need to address concerns around abuse and power imbalances through congressional action and comprehensive immigration reform.

Response:

DHS appreciates the commenter's concerns with the vulnerabilities of H-2 workers and would implement any legislative changes Congress might make. DHS, however, maintains that it has the authority to improve the program under current laws as expressed in the proposed rule and this final rule.

C. Legal Authority and Background

1. DHS/USCIS Legal Authority

a. Congressional Intent and Statutory Authority

Comment:

Some commenters contended that DHS exceeded its authority to make some of the proposed changes. A joint submission from former DHS senior officials stated that, under the auspices of efficiency, equity, and ease of the administrative process, the proposed rule contradicts congressional authority and direction, makes semantic and substantive changes to undermine immigration enforcement, and removes one of our strongest defenses against the “illegal job magnate [sic].” However, other commenters, a group of Federal elected officials, stated that, in creating the H-2 programs, Congress struck a “delicate balance” between ensuring that industries have available workers and that employers in those industries maintain a standard level of protections, rights, and working conditions for those workers. The commenters said this rulemaking effectuates congressional intent for the H-2 programs by protecting vulnerable workers and holding employers accountable. A union stated that DHS has the necessary statutory authority to implement the proposed rule. Specifically, the commenter quoted section 103(a) of the INA and section 402 of the HSA as granting DHS broad authority to implement the regulations contemplated in the NPRM. Citing case law, the commenter said courts have consistently characterized section 103(a) of the INA as a broad delegation of authority to the Secretary of Homeland Security. The commenter further quoted section 214(c)(14) of the INA as granting the Secretary specific authority to impose penalties on employers for “a substantial failure to meet any of the conditions of the petition,” INA sec. 214(c)(14)(A)(i), 8 U.S.C 1184(c)(14)(A)(i), as well as the authority to deny or approve petitions for foreign temporary workers, INA sec. 214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). A form letter campaign stated that the rule would create flexibility inherent in DHS's immigration authority. The commenter said the proposed changes complement the improvements created by the DOL H-2 rule by utilizing the distinct authority of DHS to address abuses against farm workers.

Response:

DHS agrees with commenters who indicated that DHS has broad statutory authority to implement the changes proposed in the NPRM through this final rule.

DHS set out the legal authority for the proposed changes in the NPRM in the Legal Authority section of the preamble at 88 FR 65040, 65045 (Sept. 20, 2023), and has specifically addressed the legal authority for the proposed changes in the sections pertaining to those changes. Section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides DHS with the authority to prescribe conditions for the admission of nonimmigrants, and section 214(c)(1) of the INA, 8 U.S.C. 1184(c)(1), establishes the nonimmigrant petition process as a prerequisite for obtaining H-2A or H-2B status (among others). Further, section 274A(a)(1), 8 U.S.C. 1324a(a)(1), prohibits employment of noncitizens who are not authorized for employment. Section 214(c)(14)(A) of the INA, 8 U.S.C. 1184(c)(14)(A), authorizes the Secretary of Homeland Security to impose administrative remedies and to

deny H-2B petitions for a period of at least 1 but not more than 5 years based on the substantial failure to meet any of the conditions of the H-2B petition or willful misrepresentation of a material fact in the H-2B petition. Section 214(c)(14)(B) of the INA, in turn, authorizes the Secretary to delegate to the Secretary of Labor the authority Congress provided to DHS under section 214(c)(14)(A)(i) to determine violations and impose administrative remedies, including civil monetary penalties. In addition to these specific statutory authorities, sec. 103(a) of the INA, 8 U.S.C. 1103, provides the Secretary general authority to administer and enforce the immigration laws and to issue regulations necessary to carry out that authority. Further, sec. 402 the HSA, 6 U.S.C. 202, charges the Secretary with broad authority to establish and administer rules governing the granting of visas or other forms of permission to enter the United States and establishing national immigration enforcement policies and priorities.

See Loper Bright Enters.

Raimondo,

144 S. Ct. 2244, 2263 (2024) (“In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes `expressly delegate' to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to fill up the details of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as `appropriate' or `reasonable.' ”) (cleaned up).

In this final rule, DHS similarly addresses the sources of its legal authority in the Legal Authority section. DHS is also addressing questions and comments regarding its authority to make specific changes in the respective sections of this rule. For example, DHS has specifically addressed comments challenging its authority to revise 8 CFR 214.2(h)(16)(ii) to preclude denials of a nonimmigrant visa petition solely on the basis of the filing of a permanent labor certification or immigrant visa petition for that beneficiary in Section IV.E.4, Effect on an H-2 Petition of Approval of a Permanent Labor Certification, Immigrant Visa Petition, or the Filing of an Application for Adjustment of Status or an Immigrant Visa, in the subsection titled

Opposition on the Basis of Legal Authority

of this final rule. In addition, in Section IV. D. 3.a. Legal Authority for Compliance Reviews and Inspections, DHS also at length addresses comments challenging the USCIS Fraud Detection and National Security Directorate (FDNS) authority to conduct compliance reviews and inspections.

DHS disagrees with the commenters asserting that DHS lacks authority to implement the changes proposed in the NPRM, including the mandatory and discretionary grounds for denial. Contrary to the commenters' assertion, and as noted in the NPRM, the mandatory and discretionary denial provisions best ensure the integrity of the H-2 programs and the protection of H-2 workers from exploitation and other abuses based on and consistent with the statutory authorities discussed above. DHS also disagrees that its proposed changes undermine immigration enforcement and remove defenses against unauthorized immigration and employment. To the contrary, the changes proposed in the NPRM and finalized in this rule strike a balance between improving the H-2 programs for workers and their U.S. employers while also furthering program integrity. First, this final rule does not alter DHS's authority to deny petitions, as is provided in sections 103(a), 214(a)(1), 214(c)(1), and 214(c)(14)(A)(ii) of the INA. Also, a number of the changes made through this rulemaking facilitate lawful participation in the H-2 programs. For example, and as discussed in more detail elsewhere in this rule, H-2 portability, harmonizing grace periods and periods of admission, removing the filing of a permanent labor certification/immigrant visa petition as a sole impediment to temporary petition approval, all in different ways help workers to find new H-2 employment and/or to timely depart the United States while maintaining their status. These protections in turn encourage workers, who may seek to enter the United States, to go through the proper channels of the temporary H-2 program and work for employers who need temporary H-2 workers. Similarly, H-2 workers who may face an unexpected cessation of employment or are exposed to adverse work environment that merits a revocation of the petition would not be faced with potentially finding other work without work authorization and/or accruing unlawful presence that could result in future bars to entry, which in turn might create the possibility that workers who are unable to participate in the program may opt to enter the United States via unauthorized means. Finally, contrary to the assertion by some commenters that this final rule “undermines” immigration enforcement, this final rule does not in any way limit the ability of DOL, pursuant to the authority DHS has delegated to DOL under section 214(c)(14)(B) of the INA, to impose appropriate civil monetary penalties and other administrative remedies, or any other remedy authorized by law. This final rule also does not limit the ability of U.S. Immigration and Customs Enforcement (ICE) to engage in worksite enforcement or enforce employment authorization rules.

Comment:

A couple of trade associations said some proposed enforcement changes appear to conflict with current law or lack legal authority altogether. These commenters said DHS has proposed to implement investigative and enforcement authority that conflicts with DOL's investigative and enforcement authority in the H-2A and H-2B programs, and fails to acknowledge the existing legal investigative and enforcement structure. A couple of commenters, including one of the trade associations and an individual commenter stated that the Secretary of Homeland Security has delegated all of DHS's H-2B enforcement authority to DOL. Citing case law, the individual commenter stated that since this redelegation has been unchanged, the investigative and enforcement power belongs exclusively to DOL Wage and Hour Division (WHD), as DHS has “incapacitated itself” from exercising any such authority. In addition, citing NPRM references to “general” authority, the commenter said Congress subsequently spoke very specifically—even comprehensively—to the enforcement powers at issue in the NPRM. The commenter said “those very-general provisions” simply do not address the H-2B program or the fact that the Department has redelegated all of its authority.

Response:

DHS disagrees that the changes conflict with the law or lack legal authority or that DHS's investigative and enforcement authority conflicts with DOL's or that DHS has delegated all of its enforcement authority to DOL.

With respect to both H-2A and H-2B nonimmigrant classifications, DHS has authority to make these changes under INA secs. 214(a)(1) and 214(c)(1), 8 U.S.C. 1184(a)(1) and 8 U.S.C. 1184(c)(1) and, with respect to the H-2B classification, INA sec. 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A). In addition to those specific statutory authorities, the Secretary has broad general authority under INA sec. 103(a), 8 U.S.C. 1103(a) to, among other things, administer the immigration system, issue regulations and delegate certain duties to any employee of former INS, including USCIS, as established by HSA sec. 451, 6 U.S.C. 271, and implemented through Delegation 0150.1 (Jun. 5, 2003). In addition, USCIS has the additional authority to interrogate aliens and issue subpoenas, administer oaths, take and consider evidence, and fingerprint and photograph aliens under INA section 287(a), (b), and (f), 8 U.S.C. 1357(a), (b), and (f), and INA section 235(d), 8 U.S.C. 1225(d). INA sec. 287. Through this final rule DHS is exercising the delegated authority conferred upon it by Congress to ensure that participants of the H-2 programs comply with applicable laws. In particular, as it relates to ensuring compliance with the

H-2B program, under INA sec. 214(c)(14)(B), Congress explicitly permitted DHS to delegate to DOL authority under INA sec. 214(c)(14)(A)(i) to impose certain administrative remedies and any other remedy authorized by law.

See

INA sec. 214(c)(14)(B). In 2009, DHS delegated this section 214(c)(14)(A)(i) authority to DOL

See

88 FR 65040, 65046 n.5 (Sept. 20, 2023).

Significantly, the 2009 H-2B delegation to DOL cited in the NPRM is limited to section 214(c)(14)(A)(i) of the INA (as specifically authorized by section 214(c)(14)(B) of the INA), which focuses on administrative remedies, including civil monetary penalties. Notwithstanding the above-described delegation, DHS did not also delegate its authority to deny petitions for certain periods of time under INA section 214(c)(14)(A)(ii) pursuant to 214(c)(14)(B). A plain reading of the statute makes clear that DHS's delegation authority under section 214(c)(14)(B) does not extend to section 214(c)(14)(A)(ii). Furthermore, section 10.0 of the DHS-DOL Interagency Agreement implementing the delegation states that “[n]othing in this IAA is intended to conflict with current law or regulation. If a term of this IAA is inconsistent with such authority, then that term shall be invalid, but the remaining terms and conditions of this IAA shall remain in full force and effect.” Thus, as described further below, DHS maintains its authority to deny petitions filed by petitioners who failed to follow applicable laws.

DHS recognizes that the delegation mentions DHS's authority to deny petitions under section 214(c)(14)(A)(ii) of the INA, but it does so solely in the context of enabling DHS to rely, in DHS's discretion, on certain DOL findings of fact—after notice and an opportunity for a hearing—made by DOL in the context of DOL exercising authorities it was delegated under section 214(c)(14)(A)(i). Specifically, the delegation states that if DOL has issued a debarment order, DHS “may” (but need not) rely on the underlying DOL findings and “take appropriate action with respect to the petition, including exercising [DHS] authorities under 214(c)(14)(A)(ii) of the INA, 8 U.S.C 1184(c)(14)(A)(ii) and other provisions of the immigration laws.” Nowhere in the delegation, however, is it stated that DHS lacks the authority to make its own findings of fact, provide notice and an opportunity for a hearing, or deny petitions in connection with its exercise of section 214(c)(14)(A)(ii) authority. Under the statute and the implementing Interagency Agreement, DHS may deny H-2B petitions for a given period in two potential ways: (a) by relying on DOL findings, or (b) after conducting its own hearing and by relying on its own findings.

DHS's section 214(c)(14)(A)(i) delegation does not in any way limit DHS's authority under section 214(c)(14)(A)(ii), but findings by DOL provide an additional way for DHS to obtain information helpful or necessary to exercise its 214(c)(14)(A)(ii) authority, should facts be uncovered in the course of DOL's exercise of section 214(c)(14)(A)(i) delegated authority. The use of the word “may” highlights the nonbinding nature of how DHS uses any findings by DOL that DOL makes in the course of exercising any enforcement authority that DHS delegated to DOL with respect to section 214(c)(14)(A)(i). Under section 214(c)(1) of the INA, DHS—not DOL—is the sole U.S. governmental agency authorized to determine whether an H-2 (or other H, L, O, or P) petition may be approved.

See

sec. 5.6 of the IAA.

DHS, in its discretion, may avail itself of or rely on fact determinations made by DOL in exercising its delegated authority under section 214(c)(14)(A)(i). DHS, however, did not delegate its own authority to make factual determinations (following notice and an opportunity for a hearing) for purposes of section 214(c)(14)(A)(ii), nor did DHS delegate its authority under section 214(c)(14)(A)(ii) of the INA to deny H-2B petitions (or other petitions filed under INA secs. 204 or 214(c)(1)) from petitioners determined by DHS—based on its findings of fact, whether in choosing to rely on DOL's fact findings or DHS's own or both—have violated applicable laws for a 1- to 5-year period.

The new denial provisions in this rule, as applied to H-2B petitions, are consistent with INA section 214(c)(14)(A). Specifically, INA section 214(c)(14)(A) provides that DHS may deny H-2B petitions for a period of at least 1 year, but not more than 5 years, based on the substantial failure to meet any of the conditions of the petition or a willful misrepresentation of a material fact in the petition. Under INA section 214(c)(14)(D), the term “substantial failure” means a willful failure to comply with requirements of INA section 214 that constitutes a significant deviation from the terms and conditions of a petition. As discussed in greater detail below, each of the violations triggering new denial periods in this final rule, as applied to H-2B petitions, stems from a willful failure to comply with program requirements. Such a willful failure to comply would constitute a significant deviation from the terms and conditions of the petition or a willful misrepresentation of a material fact. Consistent with caselaw, DHS interprets the term “willfully” in INA 214(c)(14)(A) to mean “knowingly” or “recklessly,” as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise.

See, e.g., Safeco Ins. Co. of Am.

Burr,

551 U.S. 47, 57 (2007) (“We have said before that `willfully' is a “word of many meanings whose construction is often dependent on the context in which it appears; and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well.”) (quotation marks and citations omitted);

McLaughlin

Richland Shoe Co.,

486 U.S. 128, 132-33, (1988) (“willful,” as used in a limitation provision for actions under the Fair Labor Standards Act, covers claims of reckless violation);

Trans World Airlines, Inc.

Thurston,

469 U.S. 111, 125-26 (1985) (same, as to a liquidated damages provision of the Age Discrimination in Employment Act of 1967);

United States

Ill. Cent. R. Co.,

303 U.S. 239, 242-43, (1938) (“willfully,” as used in a civil penalty provision, includes ” `conduct marked by careless disregard whether or not one has the right so to act”) (quotation marks and citation omitted);

Bedrosian

United States,

912 F.3d 144, 152 (3d Cir. 2018) (“[G]eneral consensus among courts is that, in the civil context, the term [“willfulness”] often denotes that which is intentional, or knowing, or voluntary, as distinguished from accidental, and that it is employed to characterize conduct marked by careless disregard whether or not one has the right so to act . . . In particular, where willfulness is an element of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well.”) (quotation marks and citations omitted);

Matter of Healy and Goodchild,

17 l & N Dec. 22, 28 (BIA 1979) (“knowledge of the falsity of a representation” is sufficient).

Each mandatory denial ground in new 8 CFR 214.2(h)(10)(iv)(A), as applied to H-2B petitions, requires a finding of willfulness that comports with the applicable case law on willfulness. Specifically, with respect to 8 CFR 214.2(h)(10)(iv)(A)(

), debarment by DOL from the H-2B program requires that DOL has found either that the employer willfully misrepresented a material fact or that the employer willfully failed to comply with program requirements and the failure constituted a significant deviation from such requirements.

See

20 CFR 655.73(a); 29 CFR 503.19(a). DOL regulations defining willful violations for purposes of INA sec. 214(c)(14), state, “A willful misrepresentation of a material fact or a willful failure to meet the required terms and conditions occurs when the employer . . . knows a statement is false or that the conduct is in violation or shows a reckless disregard for the truthfulness of its representations or for whether its conduct satisfies the

required conditions.”

20 CFR 655.73(d); 29 CFR 503.19(b).

See Temporary Non-Agricultural Employment of H-2B Aliens in the United States,

80 FR 24042, 24086-87, 24129, 24139 (Apr. 29, 2015).

A finding of willful material misrepresentation of a material fact or a finding of fraud by USCIS, as relevant in 8 CFR 214.2(h)(10)(iv)(A)(

), likewise requires a finding of willfulness, in accordance with established case law. In addition, under 8 CFR 214.2(h)(10)(iv)(A)(

) a finding of violation under INA section 274(a) also requires the element of willfulness. In this regard, each subsection of INA section 274(a) includes an element of “knowing” and/or “reckless disregard” indicating that a finding under INA section 274(a) would meet the requirements of the term willfully referenced in INA 214(c)(14) and as defined in applicable civil case law.

For the purposes of civil liability (as opposed to criminal liability), the term “willful” includes both knowing violations and reckless violations.

See, e.g., United States

Hughes,

113 F.4th 1158, 1161-62 (9th Cir. 2024).

See also, Safeco Ins. Co. of Am.,

551 U.S. at 56;

McLaughlin,

486 U.S. at 132-33;

Trans World Airlines,

469 U.S. at 125-26;

Ill. Cent. R. Co.,

303 U.S. at 242-43.

Finally, we note that, as a part of its application for a TLC, an employer must attest that they will comply with applicable Federal, State and local employment-related laws and regulations, and on the H-2 petition itself, they must also attest that they agree to the conditions of H-2 employment, which limits participation in the H-2 program to those petitioners who have not engaged in the types of criminal activities covered by INA section 274(a). Such a limitation is intended to ensure the integrity of the H-2 program, insofar as employers who have been found guilty of engaging in activities related to the bringing in and harboring of certain aliens have a demonstrated record of knowing or reckless disregard for adherence to the immigration law. Given the seriousness of the violations described in section 274(a), there is no assurance that they will take seriously their obligation to abide by the terms and conditions of the H-2 program, or that they have the intention and ability to do so absent the passage of a sufficient time period for them to demonstrate that they in fact will abide by the terms and conditions of the H-2 program. For this reason, DHS has determined that precluding approval of H-2 petitions for employers convicted of a violation of section 274(a) for the period of time specified in this rule is necessary not only to ensure compliance with the H-2 program but to serve as a disincentive to employers from engaging in the types of criminal activities specified in section 274(a) should they wish to avoid the mandatory denial periods set forth in this rule. For these reasons, a violation of INA section 274(a) therefore constitutes a willful violation of section 214 that constitutes a significant deviation from the terms and conditions of a petition that calls into question the petitioner's intent and ability to comply with the requirements of the H-2 program.

In addition, the 1-year denial period for H-2B petitions set forth in new 8 CFR 214.2(h)(6)(i)(C) stems from a willful failure to comply with program requirements that constitutes a significant deviation from the terms and conditions of the petition. Specifically, new 8 CFR 214.2(h)(6)(i)(C) will only apply after USCIS issues a decision denying or revoking on notice an H-2 petition for violation of the prohibited fee provision at paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), or if a petitioner withdraws a petition following USCIS issuance of a request for evidence or notice of intent to deny or revoke the petition for prohibited fees under one of those provisions. The cited provisions, as finalized in this rule, enable a petitioner to avoid denial or revocation—and thus avoid the 1-year denial period—by demonstrating that it made ongoing, good faith, reasonable efforts throughout the process to prevent and learn of the prohibited fee collection or agreement, that it took immediate remedial action upon learning of the fee, that it has made all necessary reimbursements, and, for cases where the petitioner itself collected the fee, that its failure to prevent the fee resulted from extraordinary circumstances beyond its control. As discussed in the NPRM and in this final rule, the prohibitions related to fees charged to workers are a longstanding and important H-2 program requirement, and petitioners have to attest in the H-2 petition that, among other things, they have taken reasonable steps to ensure that prohibited fees are not being charged. As such, it is a petitioner's responsibility and obligation to make ongoing, good faith, reasonable efforts toward the prevention of such fees being charged by its employees and by any third parties within the recruitment chain, to take immediate remedial action if a violation occurs, and to reimburse the affected parties. Accordingly, as the same steps that are required to avoid denial or revocation are in fact petitioner obligations for compliance with program requirements and/or the terms and conditions of the H-2 petition, DHS considers the failure to take steps described above in order to prevent the payment of prohibited fees, and/or provide evidence that such steps were taken, to constitute a substantial failure, that is, a willful failure to comply with INA section 214 requirements that constitutes a significant deviation from the terms and conditions of the H-2B petition.

In this regard, DHS notes that its regulations and petition instructions have long prohibited petitioners and recruiters from collecting prohibited fees and therefore violations of such prohibitions necessarily constitute a significant deviation from longstanding publicly known terms and conditions of a petition.

Similarly, the additional 3-year period described in new 8 CFR 214.2(h)(6)(i)(D) only applies in instances where the petitioner has failed to provide the evidence necessary to avoid denial or revocation under paragraph (h)(6)(i)(B) or (h)(5)(xi)(A). Further, during this 3-year period, USCIS may approve the petition notwithstanding such a denial or revocation upon a showing that each affected beneficiary has been reimbursed or that the beneficiary's designee has been reimbursed if the beneficiary cannot be located or is deceased. DHS considers a petitioner's failure to reimburse all relevant parties despite knowledge of the reimbursement requirement, or failure to provide evidence of such reimbursement, to constitute a willful failure to comply with program requirements that constitutes a significant deviation from the terms and conditions of the petition.

DHS has noted that there are steps a petitioner can take to ensure they will be able to successfully provide reimbursement in the event that a prohibited fee violation occurs. Specifically, in the NPRM, DHS suggested that petitioners, as a matter of best practice, obtain in writing the beneficiary's full contact information (including any contact information abroad), early on during the recruitment process, and to maintain and update such information as needed, as well as obtain full designee information, early on during the recruitment process, and to maintain and update such information as needed to ensure the petitioner's ability to comply with the reimbursement requirement. 88 FR 65040, 65056 (Sept. 20, 2023).

As a matter of policy and condition of participation in H-2 programs, DHS is imposing denials based on a predecessor's substantial failure to comply with program requirements or a willful misrepresentation of material facts, including a predecessor's denial under new 8 CFR 214.2(h)(6)(i)(C) or (D) and (h)(10)(iv), on any successors in interest. While the acceptance of certain liabilities may not be agreed upon by the successor within the documents underlying the acquisition, merger, or other transfer resulting in a successor in interest relationship, under this final rule, DHS has decided to extend the

periods of denial based on a predecessor's willful failure to comply with program requirements to successors in interest regardless of whether any such successor in interest has agreed to succeed to all of the liabilities of the predecessor entity. Accordingly, as proposed in the NPRM and after this rule becomes effective, a successor in interest will be subject to any applicable denial period stemming from the violations of this rule. DHS has made this determination to prevent predecessors that have willfully violated program requirements or mispresented material facts from avoiding any consequences by simply reorganizing into a successor entity. This regulation puts prospective successors in interest on notice that they would assume liability for the predecessor's willful violation(s). To permit successors in interest to avoid successor liability would defeat the purpose/objective of this regulation and would create a loophole to avoid the consequences of a willful failure to abide by the terms and conditions of the H-2 programs. This policy furthers the statutory purpose of ensuring integrity in the H-2 programs.

Comment:

An attorney commenter stated that the NPRM is premised on the belief that there are no material differences between the H-2A and H-2B programs, but they have been developed independently since 1986 and each is subject to its own statutory provisions. The commenter wrote that failing to differentiate between the programs fails to follow congressional policy and rewrites statute. The commenter also said another major premise of the NPRM is the apparent conclusion that H-2B workers deserve or are entitled to extensive regulatory protection, but it is well-established that Congress created all H visas to promote the national interests and alleviate U.S. labor shortages for temporary positions by providing nonimmigrant labor. The commenter said there is no “credible statutory language, structure, or legislative history suggesting that H-2B workers are a protected class” but instead they are “merely a conduit to safeguard the true protected class” by reducing the incentive to bypass U.S. workers and avoid wage depression. The commenter stated that the preamble includes “virtually no discussion” of the national interest, employer interests, or the interests of even U.S. workers, while DHS is effectively erecting a completely new and groundless regulatory structure.

Response:

DHS disagrees with the commenter's assertion that the NPRM is premised on the beliefs that there are no material differences between the H-2A and H-2B programs and that failing to differentiate between them is contrary to congressional intent. While DHS generally agrees with the commenter that the H-2 programs were created to alleviate U.S. labor shortages, and thus promote the national interest, those objectives are consistent with providing protections from abuses common to both H-2A and H-2B workers. Further, the commenter stated that the NPRM failed to address the interests of U.S. workers; however, it is well established that providing protections for H-2 workers also benefits U.S. workers.

For example, the 2023 report of the H-2B Worker Protection Taskforce stated that H-2B workers work alongside U.S. workers in some of our country's most critical occupations, but that structural disincentives to report or leave abusive work conditions not only harm H-2B workers but also undermine the wages and working conditions of U.S. workers who work with them.

With respect to the commenter's contention that the rulemaking fails to address the national interest and employer interests, DHS also disagrees. The NPRM specifically discussed the importance of the H-2 programs to U.S. employers, including the expansion in their use in recent years in a section titled

Importance of the H-2 Programs and the Need for Reforms.

88 FR 65040, 65049 (Sept. 20, 2023). In this section DHS detailed the administration's policies to increase interest and expand access to these programs for employers, as well as the need to balance the expanded use of the H-2 programs with greater protections for workers.

Id.

The NPRM also specifically addressed the proposals that would most benefit U.S. employers, such as portability, as well as both the elimination of the eligible countries lists and the revision of the calculation of the maximum period of stay for H-2 workers.

See generally

Daniel Costa, EPI, “Second-class workers: Assessing H-2 visa programs' impact on workers” (July 20, 2022) (testimony before the Subcommittee on Workforce Protections in the United States House Committee on Education and Labor),

https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-impact-on-workers/.

The White House, “Strengthening Protections for H-2B Temporary Workers: Report of the H-2B Worker Protection Taskforce” (Oct. 2023),

https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf.

DHS also explained that with respect to the H-2B program specifically, the proposed regulations which are also being finalized in this rule are intended to ensure that only those employers who comply with the requirements of the H-2B program will be able to compete for the limited number of available cap-subject visas, by precluding those employers who fail to demonstrate an intent to do so from participating in the H-2B program. 88 FR 65040, 65051-65052 (Sept. 20, 2023).

2. H-2 Program Background

a. Worker Vulnerability

Comment:

A few commenters discussed the vulnerability of H-2 workers to labor abuses and expressed their support for additional labor protections to be put into place. For example, a religious organization stated that foreign workers are uniquely vulnerable given that they are temporary workers, rely on their employers for basic needs, often have a language barrier, and many other factors. The commenter expressed their support for the Department's effort to address ongoing issues within the H-2 programs. A union and a trade association also expressed their support for additional worker protections for H-2 workers, reasoning that H-2 programs are a public benefit and that employers who use them need to be held to the highest possible standards. Similarly, a joint submission expressed their support for the proposed regulatory changes which they stated “would make some badly overdue improvements for these most vulnerable workers.”

Response:

DHS agrees with, and appreciates, the commenters' feedback concerning the vulnerability of H-2 workers and the need for programmatic reforms, as well as their overall support for the rule's efforts to enhance H-2 worker protections.

b. Violations of Labor Laws

Comment:

Several commenters discussed labor violation issues within the H-2 programs and how employers can abuse their H-2 workers due to excessive leeway and weak oversight. Some labor unions stated that the program gives too much leeway to employers and that USCIS does not effectively enforce existing labor rules. The commenters said that this allows employers to bypass hiring procedures even though there are domestic workers available for these jobs. A research organization discussed how both H-2 programs have been plagued with controversy regarding undocumented immigration and human trafficking. The commenter cited reports from DOL showing that 70 percent of the audits for temporary labor certifications (TLCs) led to enforcement actions against the employer ranging from a warning to program debarment. The commenter further stated that Department of State

(DOS) reports showed that these programs enabled human trafficking and that between 2018 and 2020 there were 3,694 potentially identified victims of labor trafficking within the H-2A program. Lastly, the commenter noted that of over 200,000 investigations DOL had done in the seven major H-2B industries, 80 percent found labor violations. A trade association noted that DOL figures showed that only a small percentage of farms, about 5 percent, accounted for 71 percent of all violations over a 15-year period.

A union and a religious organization stated that they have witnessed abuses against migrant workers such as charging fees for basic services, inadequate housing, long work hours, and limited training for the operation of heavy machinery. The commenters further discussed how in addition to these abuses, farm workers are often subject to restrictions on mobility, such as being prohibited from leaving their residences, insufficient health care, and isolation from the community. Lastly, a religious organization stated that workers have reported practices where an employer works its employees for 1 or 2 months with no days off, then replaces them with a different group, and repeats the process. The commenter stated that these practices might even be considered human trafficking under the Trafficking Victims Protection Act of 2000. A joint submission from a union and numerous advocacy organizations noted that 72 percent of labor trafficking victims between 2018 and 2020 reported holding an H-2A or another temporary visa.

A union further discussed how recruitment fees can be predatory and place a worker into an indentured servitude relationship with their employer, and further stated that the H-2 programs are one of the sources of modern forced labor. The commenter cited a study that it said showed about half of all H-2A workers from Mexico surveyed between 2006 and 2011 took out loans to pay for these fees. A separate joint submission from a union and numerous advocacy organizations brought up reports that over half of H-2A workers paid recruitment fees, with some upwards of $4,500. The commenter also brought up concerns related to issues within the construction industry, and cited studies on how foreign workers are more vulnerable to injuries in this dangerous workplace environment.

Commenters also addressed violations related to wage theft and its prevalence among H-2 employers. For example, a union cited studies that it said showed how H-2B employers often pay H-2B employees below what is required by State and Federal law and that this practice has led to almost 2 billion dollars in stolen wages. The commenter noted that another study showed that within the construction sector, foreign workers earn about 24 percent less than domestic workers while in the overall economy, this figure is about 11 percent. A joint submission from a union and numerous advocacy organizations cited other studies that they said showed 73 percent of the back wages and civil money penalties owed by farm employers were due to H-2A violations, and when investigated, agricultural employers are often found to be committing wage or hour theft from employees. A different union noted that this abuse leads workers to be deprived of job opportunities and subjected to lower wages.

Response:

DHS thanks these commenters, many of whom have on-the-ground experience speaking to or working with participants in the H-2 programs, for bringing attention to the violations of various labor laws that many H-2 workers experience and the harms they cause them. Several of the provisions finalized in this rule, such as the strengthened prohibited fee provisions and the new mandatory and discretionary grounds for denial, aim to mitigate against some of these harms and vulnerabilities.

c. Economic and Industry Reliance on H-2 Workers

Comment:

A few commenters, including a religious organization, discussed the current role of H-2 programs in the economy and how it is being used to fulfill labor demands that the domestic workforce is unable to meet. A few commenters discussed the use of the H-2 programs in the agricultural sector and how the industry has become more reliant on H-2A workers. A trade association stated that in part due to increased industrial job opportunities in Mexico, Texas farmers have begun to rely more heavily on H-2A workers to fill labor gaps. A business association noted that due to a shrinking domestic workforce, employers have had to rely more on H-2A workers in recent years and that the number of H-2A workers that are hired can range between a few dozen or thousands per entity. A separate business association discussed how the number of H-2A agricultural workers in states like Washington, Oregon, and Idaho has increased by significant margins in the past few years. The commenter stated that the number of H-2A workers in Washington has increased from 18,800 in 2017 to 38,664 in 2023, while in Oregon the number of H-2A workers increased by a third between 2018 and 2021. The commenter also noted that about 90 percent of these workers return to the same place of employment in the following years.

A trade association noted that over the last decade, an aging domestic workforce and changing economic conditions in Mexico have led the agricultural industry in border states such as Texas to rely on H-2A workers to meet labor demands that are difficult to fulfill through domestic workers and Mexican day laborers. A professional association stated that there was an acute need for the H-2 and other similar programs to fill labor gaps in the U.S. economy, such as the construction industry where the ratio of openings to employment has climbed to 4.4 percent from 2.3 percent in 2015 and there were over 300,000 openings at the time of commenting.

Response:

DHS is aware of the considerable increase in recent years in the utilization of both the H-2A and H-2B programs by U.S. employers and appreciates these commenters offering information on this growth. As noted in the NPRM, both the H-2A and H-2B programs have experienced significant growth over the last decade. H-2A visa issuances have increased by over 365 percent over the last decade, and H-2B visa issuances have nearly doubled over the last decade.

88 FR 65040, 65049 (Sept. 20, 2023). Whether due to U.S. workers seeking employment opportunities in sectors other than agriculture, or due to an aging domestic workforce, or for other reasons, the strong interest from U.S. employers in seeking temporary workers through the H-2 programs is apparent, as these commenters note. The changes to the H-2 programs finalized in this rule will benefit these employers by further streamlining and improving the overall integrity of the programs as these programs grow.

As further explained in the NPRM, while Congress has capped the number of H-2B visas available, the number of H-2B visas issued has regularly far-exceeded the statutory cap as a result of congressionally-provided limited authority to increase the cap over the past several years. 88 FR 65040, 65049 (Sept. 20, 2023).

d. H-2B Program Size

Comment:

A couple of commenters generally discussed the growing size of the H-2 programs and, in particular, issues with the H-2B program exceeding the statutory 66,000 cap in recent years. A union expressed concern with how, through annual riders included in recent appropriations laws and DHS regulations including

returning worker exemptions, the government has been able to effectively increase the cap well above the 66,000 originally set when the H-2B program was established. The commenter also expressed concern that the increase in size and lax enforcement of labor laws has led to an undercutting of domestic labor.

A research organization raised concerns over how the NPRM does not discuss the impact of portability on the H-2B annual cap, the number of extensions of stay with the same employer for the H-2B program, nor the true size of the H-2B program in terms of the total number of H-2B workers employed in a given fiscal year. The commenter noted that publicly available data at the time of comment do not convey the total number of positions filled by H-2B workers, which they stated was “critical to know since H-2B workers who change employers or extend with the same employer will have filled two positions under one slot under the annual cap.” The commenter said that the number of beneficiaries approved for the H-2B program was important to know because the number of H-2B beneficiaries has grown far beyond the annual cap set by statute. The same commenter noted that USCIS calculates the total number of H-2B workers by adding the number of visas approved and the number of new H-2B workers that do not need visas, but that it leaves out H-2B workers that were approved to continue their status with the same employer or were approved to change employers. The commenter said that a similar issue exists with more recent data regarding the total number of H-2B workers because they do not differentiate between a new worker and one that is extending their current status or changing employers. Lastly, the commenter concluded that over the past few years, there have been significantly more H-2B workers than what is allowed by the statutory and supplemental caps. The commenter estimated that there would be a similar proportion of H-2B workers compared to the statutory and supplementary cap in 2023.

Response:

As alluded to by a commenter, the INA sets the annual number of noncitizens who may be issued H-2B visas or otherwise provided H-2B status at 66,000, to be distributed semi-annually beginning in October and April.

See

INA sec. 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B). Under this semi-annual cap, up to 33,000 noncitizens may be issued H-2B visas or provided H-2B nonimmigrant status in the first half of a fiscal year, and the remaining annual allocation, including any unused nonimmigrant H-2B visas from the first half of a fiscal year, will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.

See

INA sec. 214(g)(10), 8 U.S.C. 1184(g)(10). There are some exceptions to the cap, for example, as workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment are not subject to the cap.

See

See id.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt or not subject to the H-2B cap. No provisions adopted in this final rule allow DHS to exceed the statutory limitation on the number of H-2B visas issued per fiscal year. Similarly, no provisions adopted in this final rule alter the current exemptions to the statutory cap for workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment.

In recent fiscal years, Congress has authorized the Secretary of Homeland Security to temporarily increase the statutory cap. Before authorizing the additional visa numbers, the Secretary, in consultation with the Secretary of Labor, considers the needs of businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program. Most recently, on December 2, 2024, DHS and DOL jointly published a temporary final rule (TFR) increasing the numerical limit for FY 2025.

Thisincrease is based on time-limited statutory authority that does not affect the H-2B program in future fiscal years.

This increase in the cap is in accordance with Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by sections 101(6) and 106 of Division A of the Continuing Appropriations and Extensions Act, 2025, Public Law 118-83, which gave the Secretary of Homeland Security the authority to make available additional H-2B visas for FY 2025.

DHS appreciates the commenter's analysis regarding the portability provision but does not agree with the conclusion that DHS fails to adequately assess the impact of the type of portability proposed on the growth and overall size of the H-2B program. Much of the comment's substance focuses on aspects of the H-2 program that, as described above, would not be affected by this rulemaking and therefore should not be considered as an impact of the rule. For instance, this rulemaking does not

establish

the ability to extend stay nor does it speak to which workers are cap exempt or subject to the respective caps. DHS believes that the NPRM's discussion of the marginal impact of portability on the affected population of porting workers is an accurate and sufficient articulation of the impacts of this rule.

See

88 FR 65040, 65074, 65079-80 (Sept. 20, 2023).

Additionally, DHS appreciates the commenters' analysis of available H-2 data and agrees that the combination of data sources and methods described in the comment leads to overcounting of the total universe of H-2B workers in the country in a given fiscal year. More specifically, the commenter noted that the H-2B Data Hub's “Continuing Approvals” field likely overcounts total H-2B workers because of a lack of data on workers who switched employers or changed job conditions while at the same employer. In order to address concerns raised by the commenter, USCIS is providing relevant data in Table 2 and Table 3 below:

BILLING CODE 9111-97-P

ER18DE24.005

ER18DE24.006

BILLING CODE 9111-97-C

Regarding the comment that the increase in H-2 program size and “lax enforcement” of labor laws has led to an undercutting of domestic labor, DHS disagrees and emphasizes that enforcement of labor laws involving domestic labor generally falls under the jurisdiction of DOL. DHS notes that, to avoid the undercutting of domestic workers as mentioned by the commenter, it is a requirement under both H-2 programs that the Secretary of Labor must certify that there are not sufficient able, willing, qualified, and available U.S. workers who can perform such services or labor.

Additionally, H-2 employment may not adversely affect the wages and working conditions of workers in the United States.

An H-2A or H-2B petition must be accompanied by an approved TLC from DOL, issued pursuant to regulations established at 20 CFR part 655, or from the Guam Department of Labor (GDOL) for H-2B workers who will be employed on Guam. The TLC serves as DHS's consultation with DOL or GDOL with respect to whether a qualified U.S. worker is available to fill the petitioning H-2A or H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages and working conditions of similarly employed workers in the United States.

See

INA secs. 101(a)(15)(H)(ii)(a)-(b), 8 U.S.C. 1101(a)(15)(H)(ii)(a)-(b), 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii), (h)(6)(i).

See

INA sec. 218(a)(1)(B), 8 U.S.C. 1188(a)(1)(B) (H-2A); INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b) (H-2B); 8 CFR 214.2(h)(5)(ii), (h)(6)(i).

See

INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(i)(A), (h)(5)(ii), (h)(6)(iii)(A), (h)(6)(v).

D. Program Integrity and Worker Protections

1. Payment of Fees, Penalties, or Other Compensation by H-2 Beneficiaries

a. Use of Phrase “Related to”

Comment:

Several commenters, including a trade association, a union, a joint submission, some advocacy groups, and a religious organization, expressed support for conforming USCIS regulations to DOL's regulatory language, such as the prohibition of fees “related to” employment, or clarifying the term “prohibited fee” to include any fee, penalty, or compensation. The religious organization expressed support for the language change to prohibit fees “related to” H-2 employment in order to better protect workers and urged DHS to adopt the regulation as proposed.

Response:

DHS appreciates the commenters' support for conforming USCIS regulations to DOL's regulatory language. These conforming changes are expected to increase clarity regarding prohibited fees and better protect workers. As discussed below, DHS is making some changes to the proposed regulation in light of other comments that suggested specific changes.

Comment:

A union and a State agency generally supported the language change to prohibit fees “related to” H-2 employment but suggested that USCIS include a list describing prohibited fees

in the regulatory text, similar to the list in the preamble.

Response:

As the commenters noted, the preamble of the NPRM provided examples of fees that are “related to” H-2 employment including, but not limited to, the employer's agent or attorney fees, visa application and petition fees, visa application and petition preparation fees, and recruitment costs.

However, DHS declines the suggestions to include this or another listing of specific prohibited fees in the regulatory text. As noted in the NPRM, DHS is replacing the term “as a condition of” with “related to” to substantially conform with DOL prohibited fee regulations. DHS is also finalizing the clarification that “[t]he passing of a cost to the beneficiary that, by statute or applicable regulations is the responsibility of the petitioner, constitutes the collection of a prohibited fee.” New 8 CFR 214.2(h)(5)(xi)(A), (h)(6)(i)(B). As DOL regulations already provide a non-exhaustive list of fees that are “related to” employment and thus are the responsibility of the employer,

it is unnecessary to repeat that non-exhaustive list in DHS regulations.

88 FR 65040, 65052 (Sept. 20, 2023) (citing DOL, WHD, “Fact Sheet #78D: Deductions and Prohibited Fees under the H-2B Program,”

https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions

See

20 CFR 655.20(o) (stating that fees “related to” H-2B employment “include the employer's attorney or agent fees, application and H-2B Petition fees, recruitment costs, or any fees attributed to obtaining the approved

Application for Temporary Employment Certification

”); 29 CFR 503.16(o) (containing a similar list for fees “related to” H-2B employment); 20 CFR 655.135(j) (stating that fees “related to” H-2A employment include “payment of the employer's attorney fees, application fees, or recruitment costs”).

Comment:

An attorney expressed concern with the phrase “related to,” stating it was “unrestricted” and allows the Department to “sweep up” any and all violations, including violations that are simply inadvertent or technical by “even the most innocent employer.”

Response:

DHS disagrees with the commenter's characterization that the phrase “related to” is “unrestricted” and allows the Department to “sweep up” any violations that are simply inadvertent or technical. Instead, that phrase seeks to balance an interest in protecting workers from prohibited cost-shifting by employers while recognizing that not all payments or reimbursements by workers are forbidden. Moreover, this change in terminology provides consistency across agencies by conforming to the long-standing use of the phrase in DOL regulations.

See

20 CFR 655.135(j) (H-2A); 20 CFR 655.20(o) (H-2B). For readability purposes, this rule refers to all of the H-2B-related provisions of 20 and 29 CFR as “DOL regulations” notwithstanding DHS's joint issuance of some rules affecting these provisions.

The term “related to” is meant to be read broadly to ensure that employers bear the cost of bringing in noncitizen workers under the H-2 programs and prevent employers from passing those costs to H-2 workers, with the resulting consequences of indebtedness, intimidation, and exploitation of nonimmigrant workers that can occur. This is consistent with the intent expressed by DOL in promulgating its own prohibited fee regulations, to “requir[e] employers to bear the full cost of their decision to import foreign workers [as] a necessary step toward preventing the exploitation of foreign workers, with its concomitant adverse effect on U.S. workers.” 75 FR 6884, 6925 (Feb. 12, 2010); 73 FR 77110, 77158 (Dec. 18, 2008). However, the phrase “related to” is not “unrestricted,” as the commenter claimed. Consistent with DOL regulations, DHS recognizes that an H-2 employer is not responsible for costs that are primarily for the benefit of the H-2 worker and will finalize regulatory text making this clear.

See

new 8 CFR 214.2(h)(5)(xi)(A), (h)(6)(i)(B) (“This provision does not prohibit petitioners (including their employees), employers or any joint employers, agents, attorneys, facilitators, recruiters, or similar employment services from receiving reimbursement from the beneficiary for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.”). DHS therefore disagrees with the commenter's concerns about the phrase “related to” being “unrestricted.”

b. Clarification of Acceptable Reimbursement From the Beneficiary for Costs That Are the Responsibility and Primarily for the Benefit of the Worker

Comment:

A professional association expressed support for the clarification that some costs to workers are acceptable if they are for the benefit of the worker and are the worker's responsibility. An advocacy group also supported this new regulatory language, noting that it improves clarity and affirms that an employer is responsible for all costs related to an H-2 worker's employment, other than those costs primarily for the benefit of the worker.

Response:

DHS appreciates the commenters' support for the rule's clarification of certain fees that may be reimbursed by H-2 workers. As noted above, new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B), as modified, will clarify that the prohibited fees provisions do not prohibit petitioners (including their employees), employers or any joint employers, agents, attorneys, facilitators, recruiters, or similar employment services from receiving reimbursement from the beneficiary for costs that are the responsibility and primarily for the benefit of the worker. DHS is slightly modifying this provision from what was proposed by adding “from the beneficiary.” As noted in the proposed rule, it is not the Department's intention to pass to petitioners, employers, agents, attorneys, facilitators, recruiters, or similar employment services, the costs of services or items that are truly personal and voluntary in nature for the worker.

Comment:

Many commenters, including trade associations, a research organization, and a joint submission, stated that DHS should provide additional guidance on what costs, in addition to government-required passport fees, may be considered “the responsibility and primarily for the benefit of the worker” such that they are acceptable for reimbursement by the worker. A professional association noted that “[p]assport fees are expressly excluded in the definition of prohibited fees” but that “there may be other fees that could benefit both employers and the workers not clearly addressed in the proposed rule.” The commenter noted that “[g]reater specificity would be helpful in the scope of the definition of prohibited fees, given that subsequent reimbursement would no longer remedy the error.”

Response:

As explained in the NPRM and codified in this final rule, fees that are “related to” H-2 employment are those that are the responsibility of and primarily for the benefit of the employer and may not be collected at any time from a beneficiary of an H-2A or H-2B petition.

See

new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B); 88 FR 65040, 65052 (Sept. 20, 2023) (stating that fees that are “related to” H-2 employment include, but are not limited to, the employer's agent or attorney fees, visa application and petition fees, visa application and petition preparation fees, and recruitment costs; however, such fees would not include those that are “the responsibility and primarily for the benefit of the worker, such as government-required passport fees.”). Thus, an employer may not seek reimbursement from a worker for fees that are related to H-2 employment. However, an employer may seek reimbursement from a worker for fees

that are “the responsibility and primarily for the benefit of the worker.” As finalized at new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B), fees that are “the responsibility and primarily for the benefit of the worker” include “government-required passport fees.”

This intentionally mirrors DOL's language that its prohibited fee provisions do not “prohibit employers or their agents from receiving reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.” 20 CFR 655.20(o), 655.135(j). Since DOL's regulatory language does not contain examples beyond government-required passport fees, DHS also will not provide other examples in new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).

See

WHD, “Fact Sheet #78F: Inbound and Outbound Transportation Expenses, and Visa and Other Related Fees under the H-2B Program,”

https://www.dol.gov/agencies/whd/fact-sheets/78f-h2b-fees;

DOL, Field Assistance Bulletin NO. 2009-2 (Aug. 21, 2009).

However, to be responsive to commenters' requests for additional guidance on what costs, in addition to government-required passport fees, may be considered “the responsibility and primarily for the benefit of the worker,” DHS hereby clarifies that such fees may also include H-4 visa fees for dependent family members and filing fees for Forms I-539, Application to Extend/Change Nonimmigrant Status, requesting extension of the same status for any H-4 dependents. There may be other instances in which a fee is considered primarily for the benefit of the worker, although, such instances will be limited in light of the fact that employers are responsible for all costs “related to” H-2 employment.

c. Clarification of Acceptable Reimbursement to the Beneficiary for Certain Costs That Are “Related to” H-2 Employment

Comment:

A trade association urged DHS to allow employers to reimburse workers for meals and other costs associated with their travel to the United States, stating that this practice benefits workers. A joint submission expressed concern that leaving the proposed regulation vague about what other fees are acceptable for reimbursement could result in inconsistent application of the regulation. A professional association suggested that “`visa application' should be removed from this section [of prohibited fees] because [visa application fees, that is the DS-160 fee] is recognized elsewhere justifiably as a reimbursable cost.”

Response:

DHS recognizes that it is permissible, in certain limited circumstances, for a worker to initially pay a fee related to H-2 employment and then to be reimbursed by the employer for that expense. In such a case, the fee is still the responsibility of the employer and may not be passed on to the worker, but reimbursement has been deemed to be an allowable mechanism by which the employer can fulfill its responsibility to pay the fee. For example, 20 CFR 655.20(j)(2) states with respect to H-2B workers that “[t]he employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker . . . .” Thus, all visa, visa processing, border crossing, and other related fees are the responsibility of the employer, but DOL allows for the employer to satisfy its obligation to pay these fees by reimbursing the worker within the first workweek.

DHS does not intend to prohibit reimbursement of fees where such reimbursement is specifically allowed by statute or regulations governing the H-2 programs. Therefore, DHS is modifying the regulatory text in this final rule at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to add that “This provision does not prohibit employers from allowing workers to initially incur fees or expenses that the employers are required to subsequently reimburse, where such arrangement is specifically permitted by, and performed in compliance with, statute or regulations governing the [H-2A/H-2B] program.”

In addition, nothing in the regulation prevents an employer from seeking reimbursement from the worker after initially paying costs that are the worker's responsibility and are primarily for the benefit of the worker (such as passport costs). In determining the employer's responsibility to cover expenses related to H-2 employment, the question is not whether H-2 workers derive a benefit from payment of such fees, but whether, under applicable regulations and guidance, the payment is made primarily for the benefit of the employer.

See, e.g.,

29 CFR 531.3(d)(1) (“The cost of furnishing `facilities' found by the Administrator to be primarily for the benefit or convenience of the employer will not be recognized as reasonable and may not therefore be included in computing wages.”); 80 FR 24042, 24063 (Apr. 29, 2015) (“DOL's longstanding position is that deductions or costs incurred for facilities that are primarily for the benefit or convenience of the employer will not be recognized as reasonable and therefore may not be charged to the worker.”);