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

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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, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

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

DATES:

Written comments must be submitted on or before November 20, 2023. The electronic Federal Docket Management System will accept comments prior to midnight eastern time at the end of that day.

ADDRESSES:

You may submit comments on the entirety of this proposed rulemaking package, identified by DHS Docket No. USCIS-2023-0012 through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using http://www.regulations.gov, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Charles L

accepting mailed comments at this time. If you cannot submit your comment by using http://www.regulations.gov, please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.

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. Public Participation II. Executive Summary A. Purpose of the Regulatory Action B. Summary of Major Provisions of the Regulatory Action C. Summary of Costs and Benefits III. Background A. Legal Authority B. Description of the H-2 Nonimmigrant Classifications C. H-2 2008 Final Rules D. Importance of the H-2 Programs and the Need for Reforms IV. Discussion of Proposed Rule A. Program Integrity and Worker Protections B. Worker Flexibilities C. Improving H-2 Program Efficiencies and Reducing Barriers to Legal Migration D. Severability E. Request for Preliminary Public Input Related to Future Actions/Proposals V. Statutory and Regulatory Requirements A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Executive Order 13132 (Federalism) E. Executive Order 12988 (Civil Justice Reform) F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. National Environmental Policy Act H

e Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Executive Order 13132 (Federalism) E. Executive Order 12988 (Civil Justice Reform) F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) G. National Environmental Policy Act H. Paperwork Reduction Act Table of Abbreviations

BLS—Bureau of Labor Statistics CBP—U.S. Customs and Border Protection 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 ETA—Employment and Training Administration FDNS—Fraud Detection and National Security Directorate FY—Fiscal year GAO—Government Accountability Office GDOL—Guam Department of Labor H-2A—Temporary Agricultural Workers Nonimmigrant Classification H-2B—Temporary Nonagricultural Workers Nonimmigrant Classification ICE—U.S. Immigration and Customs Enforcement INA—Immigration and Nationality Act INS—Immigration and Naturalization Service LCA—Labor condition application 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 OIRA—Office of Information and Regulatory Affairs 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 SBA—Small Business Administration SSA—Social Security Administration TFR—Temporary final rule TLC—Temporary labor certification UMRA—Unfunded Mandates Reform Act of 1995 USCIS—U.S. Citizenship and Immigration Services USAID—U.S. Agency for International Development WHD—Wage and Hour Division I

dministration PRA—Paperwork Reduction Act RFA—Regulatory Flexibility Act of 1980 RFE—Request for evidence SBA—Small Business Administration SSA—Social Security Administration TFR—Temporary final rule TLC—Temporary labor certification UMRA—Unfunded Mandates Reform Act of 1995 USCIS—U.S. Citizenship and Immigration Services USAID—U.S. Agency for International Development WHD—Wage and Hour Division I. Public Participation

DHS invites all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to USCIS in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS.

Instructions: If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2023-0012 for this rulemaking. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission http://www.regulations.gov

omments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission http://www.regulations.gov.

Docket: For access to the docket and to read background documents or comments received, go to http://www.regulations.gov, referencing DHS Docket No. USCIS-2023-0012. You may also sign up for email alerts on the online docket to be notified when comments are posted, or a final rule is published.

II. 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 proposed 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. Summary of Major Provisions of the Regulatory Action

DHS proposes to include the following major changes:

• Program Integrity and Worker Protections To improve the integrity of the H-2 programs, DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen the existing prohibition on, and consequences for, charging certain fees to H-2A and H-2B workers, including new bars to approval for some H-2 petitions. Further, as a significant new program integrity measure and a deterrent to petitioners that have been found to have committed labor law violations or abused the H-2 programs, DHS is proposing to institute certain mandatory and discretionary bars to approval of an H-2A or H-2B petition

uences for, charging certain fees to H-2A and H-2B workers, including new bars to approval for some H-2 petitions. Further, as a significant new program integrity measure and a deterrent to petitioners that have been found to have committed labor law violations or abused the H-2 programs, DHS is proposing to institute certain mandatory and discretionary bars to approval of an H-2A or H-2B petition. In addition, to protect workers who report their employers for program violations, DHS is proposing to provide H-2A and H-2B workers with “whistleblower protection” comparable to the protection that is currently offered to H-1B workers. Additionally, DHS proposes to clarify requirements for petitioners and employers to consent to, and fully comply with, USCIS compliance reviews and inspections. DHS also proposes to clarify USCIS's authority to deny or revoke a petition if USCIS is unable to verify information related to the petition, including but not limited to where such inability is due to lack of cooperation from a petitioner or an employer during a site visit or other compliance review.

• Worker Flexibilities DHS is also proposing changes meant to provide greater flexibility to H-2A and H-2B workers. These changes include adjustments to the existing admission periods before and after the validity dates of an approved petition (grace periods) so that H-2 workers would receive up to 10 days prior to the petition's validity period and up to 30 days following the expiration of the petition, as well as an extension of the existing 30-day grace period following revocation of an approved petition during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their nonimmigrant status or accruing unlawful presence for up to 60 days

to the petition's validity period and up to 30 days following the expiration of the petition, as well as an extension of the existing 30-day grace period following revocation of an approved petition during which an H-2 worker may seek new qualifying employment or prepare for departure from the United States without violating their nonimmigrant status or accruing unlawful presence for up to 60 days. In addition, to account for other situations in which a worker may unexpectedly need to stop working or wish to seek new employment, DHS is proposing to provide a new grace period for up to 60 days during which an H-2 worker can cease working for their petitioner while maintaining H-2 status. Further, in a change meant to work in conjunction with the new grace period provisions, DHS proposes to permanently provide portability—the ability to begin new employment upon the proper filing of an extension of stay petition rather than only upon its approval—to H-2A and H-2B workers. Additionally, in the case of petition revocations, DHS proposes to clarify that H-2A employers have the same responsibility that H-2B employers currently have for reasonable costs of return transportation for the beneficiary. DHS also proposes to clarify that H-2 workers will not be considered to have failed to maintain their H-2 status solely on the basis of taking certain steps toward becoming lawful permanent residents of the United States. Finally, DHS proposes to remove the phrase “abscondment,” “abscond,” and its other variations to emphasize that the mere fact of leaving employment, standing alone, does not constitute a basis for assuming wrongdoing by the worker.

e phrase “abscondment,” “abscond,” and its other variations to emphasize that the mere fact of leaving employment, standing alone, does not constitute a basis for assuming wrongdoing by the worker.

• Improving H-2 Program Efficiencies and Reducing Barriers to Legal Migration DHS proposes two changes to improve the efficiency of the H-2 programs and to reduce barriers to use of those two programs. First, DHS proposes to remove the requirement that USCIS may generally only approve petitions for H-2 nonimmigrant status for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as eligible to participate in the H-2 programs. Second, DHS proposes to simplify the regulatory provisions regarding the effect of a departure from the United States on the 3-year maximum period of stay by providing a uniform standard for resetting the 3-year clock following such a departure.

C. Summary of Costs and Benefits

This proposed rule would directly impose costs on petitioners in the form of increased opportunity costs of time to complete and file H-2 petitions and time spent to familiarize themselves with the rule. Other difficult to quantify costs may also be experienced by certain petitioners if selected for a compliance review, petitioners that face stricter consequences regarding prohibited fees, or for those that opt to transport and house H-2A beneficiaries earlier than they would have otherwise based on the proposed extension of the pre-employment grace period from 7 to 10 days. The Federal Government may also face some increased opportunity costs of time for adjudicators to review information regarding debarment and other past violation determinations more closely, issue requests for evidence (RFE) or notices of intent to deny (NOID), and additional costs for related computer system updates.

The benefits of this proposed rule would be diverse, though most are difficult to quantify

Government may also face some increased opportunity costs of time for adjudicators to review information regarding debarment and other past violation determinations more closely, issue requests for evidence (RFE) or notices of intent to deny (NOID), and additional costs for related computer system updates.

The benefits of this proposed rule would be diverse, though most are difficult to quantify. The proposed rule would extend portability to H-2 workers lawfully present in the United States regardless of a porting petitioner's E-Verify standing, affording these workers agency of choice at an earlier moment in time, which is consistent with other portability regulations and more similar to other workers in the labor force. Employers and beneficiaries would also benefit from the extended grace periods and eliminating the interrupted stay provisions and instead reducing the period of absence out of the country to reset their 3-year maximum period of stay. The Federal Government would also realize benefits, mainly through bolstering existing program integrity activities, possible increased compliance with program requirements, and providing a greater ability for USCIS to deny or revoke petitions for issues related to program compliance.

Table 1 provides a more detailed summary of the proposed provisions and their impacts. The impact of the

Table 1—Summary of Provisions and Impacts Provision Purpose of proposed provision Expected impact of the proposed provision 8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F) DHS is proposing to add stronger language requiring petitioners or employers to both consent to and fully comply with any USCIS audit, investigation, or other program integrity activity and clarify USCIS's authority to deny/revoke a petition if unable to verify information related to the petition, including due to lack of cooperation from the petitioner or employer during a site visit or other compliance review

ng to add stronger language requiring petitioners or employers to both consent to and fully comply with any USCIS audit, investigation, or other program integrity activity and clarify USCIS's authority to deny/revoke a petition if unable to verify information related to the petition, including due to lack of cooperation from the petitioner or employer during a site visit or other compliance review. Cost: • Cooperation during a site visit or compliance review may result in opportunity costs of time for petitioners to provide information to USCIS during these compliance reviews and inspections. On average, USCIS site visits last 1.7 hours, which is a reasonable estimate for the marginal time that a petitioner may need to spend in order to comply with a site visit. • Employers that do not cooperate would face denial or revocation of their petition(s), which could result in costs to those businesses. Benefit: • USCIS would have clearer authority to deny or revoke a petition if unable to verify information related to the petition. The effectiveness of existing USCIS program integrity activities would be improved through increased cooperation from employers. 8 CFR 214.2(h)(20) DHS is proposing to provide H-2A and H-2B workers with “whistleblower protection” comparable to the protection currently offered to H-1B workers. Cost: • Employers may face increased RFEs, denials, or other actions on their H-2 petitions, or other program integrity mechanisms available under this rule or existing authorities, as a result of H-2 workers' cooperation in program integrity activity due to whistleblower protections. Such actions may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers

ials, or other actions on their H-2 petitions, or other program integrity mechanisms available under this rule or existing authorities, as a result of H-2 workers' cooperation in program integrity activity due to whistleblower protections. Such actions may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers. Benefit: • Such protections may afford workers the ability to expose issues that harm workers or are not in line with the intent of the H-2 programs while also offering protection to such workers (therefore potentially improving overall working conditions), but the extent to which this would occur is unknown. 8 CFR 214.2(h)(5)(xi)(A), 8 CFR 214.2(h)(5)(xi)(C), 8 CFR 214.2(h)(6)(i)(B), 8 CFR 214.2(h)(6)(i)(C), and 8 CFR 214.2(h)(6)(i)(D) DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen the existing prohibition on, and consequences for, charging certain fees to H-2A and H-2B workers, including new bars on approval for some H-2 petitions. Cost: • Enhanced consequences for petitioners who charge prohibited fees could lead to increased financial losses and extended ineligibility from participating in H-2 programs. Benefit: • Possibly increase compliance with provisions regarding prohibited fees and thus reduce the occurrence and burden of prohibited fees on H-2 beneficiaries. 8 CFR 214.2(h)(10)(iii) DHS is proposing to institute certain mandatory and discretionary bars to approval of an H-2A or H-2B petition. Costs: • USCIS adjudicators may require additional time associated with reviewing information regarding debarment and other past violation determinations more closely, issuing RFEs or NOIDs, and conducting the discretionary analysis for relevant petitions

ciaries. 8 CFR 214.2(h)(10)(iii) DHS is proposing to institute certain mandatory and discretionary bars to approval of an H-2A or H-2B petition. Costs: • USCIS adjudicators may require additional time associated with reviewing information regarding debarment and other past violation determinations more closely, issuing RFEs or NOIDs, and conducting the discretionary analysis for relevant petitions. • The expansion of violation determinations that could be considered during adjudication, as well as the way debarments and other violation determinations would be tracked, would require some computer system updates resulting in costs to USCIS. Benefit: • Possibly increase compliance with H-2 program requirements, thereby increasing protection of H-2 workers. 8 CFR 214.2(h)(2)(ii) and (iii), 8 CFR 214.2(h)(5)(i)(F), and 8 CFR 214.2(h)(6)(i)(E) Eliminate the lists of countries eligible to participate in the H-2 programs. Costs: • None expected. Benefit: • Employers and the Federal Government will benefit from the simplification of Form I-129 adjudications by eliminating the “national interest” portion of the adjudication that USCIS is currently required to conduct for beneficiaries from countries that are not on the lists. • Remove petitioner burden to provide evidence for beneficiaries from countries not on the lists. • Petitioners may have increased access to workers potentially available to the H-2 programs. • Free up agency resources devoted to developing and publishing the eligible country lists in the Federal Register every year. 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(6)(vii)(A) 8 CFR 214.2(h)(11)(iv) and 8 CFR 214.2(h)(13)(i)(C) Change grace periods such that they will be the same for both H-2A and H-2B Programs. Create a 60-day grace period following any H-2A or H-2B revocation or cessation of employment during which the worker will not be considered to have failed to maintain nonimmigrant status and will not accrue any unlawful presence solely on the basis of the revocation or cessation

(iv) and 8 CFR 214.2(h)(13)(i)(C) Change grace periods such that they will be the same for both H-2A and H-2B Programs. Create a 60-day grace period following any H-2A or H-2B revocation or cessation of employment during which the worker will not be considered to have failed to maintain nonimmigrant status and will not accrue any unlawful presence solely on the basis of the revocation or cessation. Costs: 1 • H-2A employers may face additional costs such as for housing, but employers likely would weigh those costs against the benefit of providing employees with additional time to prepare for the start of work. Benefit: • Provides employees (and their employers) with extra time to prepare for the start of work. Provides clarity for adjudicators and makes timeframes consistent for beneficiaries and petitioners. • Provides workers additional time to seek other employment or depart from the United States if their employer faces a revocation or if they cease employment. 8 CFR 214.2(h)(11)(iv) Clarifies responsibility of H-2A employers for reasonable costs of return transportation for beneficiaries following a petition revocation. Costs: • None expected since H-2A petitioning employers are already generally liable for the return transportation costs of H-2A workers. Benefit: • Beneficiaries would benefit in the event that clarified employer responsibility decreased the incidence of workers having to pay their own return travel costs in the event of a petition revocation. 8 CFR 214.2(h)(16)(i) Clarifies that H-2 workers may take steps toward becoming a lawful permanent resident of the United States while still maintaining lawful nonimmigrant status. Costs: • None expected. Benefit: • DHS expects this could enable some H-2 workers who have otherwise been dissuaded to pursue lawful permanent residence with the ability to do so without concern over becoming ineligible for H-2 status

16)(i) Clarifies that H-2 workers may take steps toward becoming a lawful permanent resident of the United States while still maintaining lawful nonimmigrant status. Costs: • None expected. Benefit: • DHS expects this could enable some H-2 workers who have otherwise been dissuaded to pursue lawful permanent residence with the ability to do so without concern over becoming ineligible for H-2 status. 8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(vii), and 8 CFR 214.2(h)(13)(i)(B) Eliminates the “interrupted stay” calculation and instead reduces the period of absence to reset an individual's 3-year period of stay. Costs: • Workers in active H-2 status who would consider making trips abroad for periods of less than 60 days but more than 45 days, may be disincentivized to make such trip. Benefit: • Simplifies and reduces the burden to calculate beneficiary absences for petitioners, beneficiaries, and adjudicators. • May reduce the number of RFEs related to 3-year periods of stay. Transfers: • As a result of a small number of H-2 workers at the 3-year maximum stay responding to the proposed shorter absence requirement by working 30 additional days, DHS estimates upper bound annual transfer payment of $2,918,958 in additional earnings from consumers to H-2 workers and $337,122 in tax transfers from these workers and their employers to tax programs (Medicare and Social Security). 8 CFR 214.2(h)(2)(i)(D), 8 CFR 214.2(h)(2)(i)(I), and 8 CFR 274a.12(b)(21) Make portability permanent for H-2B workers and remove the requirement that H-2A workers can only port to an E-Verify employer. Costs: • The total estimated annual opportunity cost of time to file Form I-129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form I-129 and Form G-28 will range from approximately $90,554 if filed by in-house lawyers to approximately $156,132 if filed by outsourced lawyers

hat H-2A workers can only port to an E-Verify employer. Costs: • The total estimated annual opportunity cost of time to file Form I-129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form I-129 and Form G-28 will range from approximately $90,554 if filed by in-house lawyers to approximately $156,132 if filed by outsourced lawyers. • The total estimated annual costs associated with filing Form I-907 if it is filed with Form I-129 is $4,728 if filed by human resource specialists. The total estimated annual costs associated with filing Form I-907 would range from approximately $9,006 if filed by an in-house lawyer to approximately $15,527 if filed by an outsourced lawyer. • The total estimated annual costs associated with the portability provision ranges from $133,684 to $198,851, depending on the filer. • DHS may incur some additional adjudication costs as more petitioners will likely file Form I-129. However, these additional costs to USCIS are expected to be covered by the fees paid for filing the form. Benefit: • Enabling H-2 workers present in the United States to port to a new petitioning employer affords these workers agency of choice at an earlier moment in time consistent with other portability regulations and more similar to other workers in the labor force. • Replacing the E-Verify requirement for employers wishing to hire porting H-2A workers with strengthened site visit authority and other provisions that maintain program integrity would aid porting beneficiaries in finding petitioners without first needing to confirm if that employer is in good standing in E-Verify. Although this change impacts an unknown portion of new petitions for porting H-2A beneficiaries, no reductions in E-Verify enrollment are anticipated. • An H-2 worker with an employer that is not complying with H-2 program requirements would have additional flexibility in porting to another employer's certified position

out first needing to confirm if that employer is in good standing in E-Verify. Although this change impacts an unknown portion of new petitions for porting H-2A beneficiaries, no reductions in E-Verify enrollment are anticipated. • An H-2 worker with an employer that is not complying with H-2 program requirements would have additional flexibility in porting to another employer's certified position. Transfers: • Annual undiscounted transfers of $636,760 from filing fees for Form I-129 combined with Form I-907 from petitioners to USCIS. 8 CFR 214.2(h)(2)(i)(I)( 3 ) DHS proposes to clarify that a beneficiary of an H-2 portability petition is considered to have been in a period of authorized stay during the pendency of the petition and that the petitioner must still abide by all H-2 program requirements. Benefits: • Provides H-2 workers with requisite protections and benefits as codified in the rule in the event that a porting provision is withdrawn or denied. Costs: • None expected. Cumulative Impacts of Proposed Regulatory Changes DHS proposes to make changes to the Form I-129, to effectuate the proposed regulatory changes Costs: • The time burden to complete and file Form I-129, H Classification Supplement, would increase by 0.3 hours as a result of the proposed changes. The estimated opportunity cost of time for each petition by type of filer would be $15.28 for an HR specialist, $34.25 for an in-house lawyer, and $59.06 for an outsourced lawyer. The estimated total annual opportunity costs of time for petitioners or their representatives to file H-2 petitions under this proposed rule ranges from $745,330 to $985,540. Petitioners or their representatives would familiarize themselves with the rule Costs: • Petitioners or their representatives would need to read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715 to $12,877,651, incurred during the first year of the analysis. Source: USCIS analysis. III. Background

r this proposed rule ranges from $745,330 to $985,540. Petitioners or their representatives would familiarize themselves with the rule Costs: • Petitioners or their representatives would need to read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715 to $12,877,651, incurred during the first year of the analysis. Source: USCIS analysis. III. Background

A. Legal Authority

1 USCIS does not expect any additional costs to H-2B employers as, generally, they do not have to provide housing for workers. Employers are required to provide housing at no cost to H-2A workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4). There is no similar statutory requirement for employers to provide housing to H-2B workers, although there is a regulatory requirement for an H-2B employer to provide housing when it is primarily for the benefit or convenience of the employer. See 20 CFR 655.20(b), (c); 29 CFR 531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015).

The Immigration and Nationality Act (INA or the Act) section 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 2 who are coming to the United States temporarily to perform agricultural labor or services or to perform nonagricultural services or labor, respectively.

2 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 proposed rule can be found in various provisions of the immigration laws. 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 . .

f the immigration laws. 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 HSA sec. 428, 6 U.S.C. 236. The HSA also provides that a primary mission of DHS is to “ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.” HSA sec. 101(b)(1)(F), 6 U.S.C. 111(b)(1)(F).

With respect to nonimmigrants in particular, the INA provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the [Secretary] may by regulations prescribe.” 3 INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). See INA secs. 274A(a)(1) and (h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3) (prohibiting employment of noncitizens who are not authorized for employment). And the HSA transferred to USCIS the authority to adjudicate petitions for H-2 nonimmigrant status, establish policies for performing that function, and set national immigration services policies and priorities. See HSA secs. 451(a)(3), (b); 6 U.S.C. 271(a)(3), (b). In addition, under INA sec. 214(b), 8 U.S.C. 1184(b), every noncitizen, with the exception of noncitizens seeking L, V, or H-1B nonimmigrant status, is presumed to be an immigrant unless the noncitizen establishes the noncitizen's entitlement to a nonimmigrant status. 4 INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1), establishes the nonimmigrant petition process as a prerequisite for obtaining (H), (L), (O), or (P)(i) nonimmigrant status (except for those in the H-1B1 classification)

exception of noncitizens seeking L, V, or H-1B nonimmigrant status, is presumed to be an immigrant unless the noncitizen establishes the noncitizen's entitlement to a nonimmigrant status. 4 INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1), establishes the nonimmigrant petition process as a prerequisite for obtaining (H), (L), (O), or (P)(i) nonimmigrant status (except for those in the H-1B1 classification). This statutory provision provides the Secretary of Homeland Security with exclusive authority to approve or deny H-2 nonimmigrant visa petitions after consultation with the appropriate agencies of the Government. It also authorizes the Secretary to prescribe the form and identify information necessary for the petition. With respect to the H-2A classification, this section defines the term “appropriate agencies of [the] Government” to include the Departments of Labor and Agriculture, and cross-references INA sec. 218, 8 U.S.C. 1188, with respect to the H-2A classification.

3 Although several provisions of the INA discussed in this NPRM refer exclusively to the “Attorney General,” such provisions are now to be read as referring to the Secretary of Homeland Security by operation of the HSA. See 6 U.S.C. 202(3), 251, 271(b), 542 note, 557; 8 U.S.C. 1103(a)(1), (g), 1551 note; Nielsen v. Preap, 139 S. Ct. 954, 959 n.2 (2019).

4 This section also precludes officers or employees of any foreign governments or of any international organizations entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288 et seq. ], or noncitizens who are attendants, servants, employees, or member of the immediate family of such noncitizens from applying for or receiving nonimmigrant visas or entering the United States as immigrants unless they execute a written waiver in the same form and substance as is prescribed by section 1257(b) of this title. This portion of the provision, however, is not relevant to this NPRM.

INA sec. 214(c)(5)(A), 8 U.S.C

tendants, servants, employees, or member of the immediate family of such noncitizens from applying for or receiving nonimmigrant visas or entering the United States as immigrants unless they execute a written waiver in the same form and substance as is prescribed by section 1257(b) of this title. This portion of the provision, however, is not relevant to this NPRM.

INA sec. 214(c)(5)(A), 8 U.S.C. 1184(c)(5)(A), requires the employer to provide or pay for the reasonable cost of return transportation if an H-2B worker was dismissed early from employment, i.e., before the end of the authorized period of admission.

INA sec. 214(c)(14), 8 U.S.C. 1184(c)(14), provides the Secretary of Homeland Security with the authority to impose administrative remedies (including civil monetary penalties), and deny petitions for a period of at least 1 but not more than 5 years, if, after notice and an opportunity for a hearing, the Secretary finds that an employer substantially failed to meet any of the conditions of the H-2B petition or engaged in willful misrepresentation of a material fact in the H-2B petition. See INA sec. 214(c)(14)(A)(i) and (ii), 8 U.S.C. 1184(c)(14)(A)(i) and (ii). It also authorizes the Secretary to delegate to the Secretary of Labor the authority to determine violations and impose administrative remedies, including civil monetary penalties. See INA sec. 214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B). 5 The Secretary of Homeland Security may designate officers or employees to take and consider evidence concerning any matter that is material or relevant to the enforcement of the INA. See INA secs. 235(d)(3), 287(a)(1), (b); 8 U.S.C. 1225(d)(3), 1357(a)(1), (b).

5 In 2009, the Secretary delegated to the Secretary of Labor certain authorities under INA sec. 214(c)(14)(A)(i). See “Delegation of Authority to the Department of Labor under Section 214(c)(14)(A) of the Immigration and Nationality Act” (Jan. 16, 2009).

B. Description of the H-2 Nonimmigrant Classifications

NA. See INA secs. 235(d)(3), 287(a)(1), (b); 8 U.S.C. 1225(d)(3), 1357(a)(1), (b).

B. Description of the H-2 Nonimmigrant Classifications

1. H-2A Temporary Agricultural Workers

The INA establishes the H-2A nonimmigrant classification for temporary agricultural workers, described as a noncitizen “having a residence in a foreign country which he [sic] has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services.” INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a). As noted in the statute, not only must the noncitizen be coming “temporarily” to the United States, but the agricultural labor or services that the noncitizen is performing must also be “of a temporary or seasonal nature.” INA sec. 101(a)(15)(H)(ii)(a).

Current DHS regulations further 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 will, except in extraordinary circumstances, last no longer than 1 year. See 8 CFR 214.2(h)(5)(iv)(A). An employer's seasonal need is defined as employment that is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle and requires labor levels above those necessary for ongoing operations. Id. There is no annual limit or “cap” on the number of noncitizens who may be issued H-2A visas or otherwise provided H-2A status (such as through a change from another nonimmigrant status, see INA sec. 248, 8 U.S.C. 1258).

by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle and requires labor levels above those necessary for ongoing operations. Id. There is no annual limit or “cap” on the number of noncitizens who may be issued H-2A visas or otherwise provided H-2A status (such as through a change from another nonimmigrant status, see INA sec. 248, 8 U.S.C. 1258).

2. H-2B Temporary Nonagricultural Workers

Similarly, the INA establishes the H-2B nonimmigrant classification for temporary nonagricultural workers, described as a noncitizen “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary [nonagricultural] service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b). 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).

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)

s 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, 6 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. 7 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.

6 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). The spouse and children of H-2B workers, classified as H-4 nonimmigrants, also do not count against the cap.

Additionally, 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 Northern Mariana Islands or Guam until Dec. 31, 2029. See Section 14006 of Public Law 108-287, 118 Stat. 951, 1014 (Aug. 5, 2004), and Section 3 of the Northern Mariana Islands U.S

etitions 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 Northern Mariana Islands or Guam until Dec. 31, 2029. See Section 14006 of Public Law 108-287, 118 Stat. 951, 1014 (Aug. 5, 2004), and Section 3 of the Northern Mariana Islands U.S. Workforce Act of 2018, Pub. L. 115-218, 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.

7 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 runs from October 1, 2022, through September 30, 2023.

3. Temporary Labor Certification (TLC) Process

H-2 workers may not displace qualified, available U.S. workers who are capable of performing such services or labor. See INA secs. 101(a)(15)(H)(ii)(a)-(b), 8 U.S.C. 1101 (a)(15)(H)(ii)(a)-(b), and 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii) 8 and (h)(6)(i). In addition, H-2 employment may not adversely affect the wages and working conditions of workers in the United States. 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) and (h)(6)(i). DHS regulations provide that an H-2A or H-2B petition for temporary employment in the United States 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. See, e.g., 8 CFR 214.2(h)(5)(i)(A), (h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A), (v)(A). See generally INA secs. 103(a)(6), 214(c)(1), 8 U.S.C. 1103(a)(6), 1184(c)(1). The TLC serves as DHS's consultation with DOL or GDOL with respect to whether a qualified U.S

suant 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. See, e.g., 8 CFR 214.2(h)(5)(i)(A), (h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A), (v)(A). See generally INA secs. 103(a)(6), 214(c)(1), 8 U.S.C. 1103(a)(6), 1184(c)(1). 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 See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(ii), (h)(6)(iii)(A), and (h)(6)(v).

8 INA sec. 218 governs the temporary agricultural labor certifications issued by the Department of Labor (DOL). That section is implemented through regulations at 20 CFR part 655, subpart B and 29 CFR part 501. By issuing a temporary agricultural labor certification referenced in 8 CFR 214.2(h)(5)(ii), DOL binds the employer to comply with a variety of program obligations, including the prohibition against the layoff of U.S. workers, and several provisions related to the recruitment and hiring of U.S. workers. See 20 CFR 655.135(g); see also 20 CFR 655.135(a), (b), (c), (d), and (h).

4. Current H-2 Petition Procedures

Employers must petition DHS for classification of prospective temporary workers as H-2A or H-2B nonimmigrants. See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1). After receiving an approved TLC, the employer listed on the TLC or the employer's U.S. agent (“H-2 petitioner”) must file the H-2 petition with the appropriate USCIS office. See 8 CFR 214.2(h)(2)(i), (h)(5)(i)(A), (h)(6)(iii)(E), and (h)(6)(vi). The H-2 petitioner must be a U.S. employer, a U.S. agent meeting the requirements of 8 CFR 214.2(h)(2)(i)(F), or a foreign employer filing through a U.S. agent. See 8 CFR 214.2(h)(2)(i)(A), (5)(i)(A) and (h)(6)(iii)(B). The H-2 petitioner may request one or more named or unnamed H-2 workers, but the total number of workers may not exceed the number of positions listed on the TLC. See 8 CFR 214.2(h)(2)(ii) and (iii), (h)(5)(i)(B), and (h)(6)(viii)

agent meeting the requirements of 8 CFR 214.2(h)(2)(i)(F), or a foreign employer filing through a U.S. agent. See 8 CFR 214.2(h)(2)(i)(A), (5)(i)(A) and (h)(6)(iii)(B). The H-2 petitioner may request one or more named or unnamed H-2 workers, but the total number of workers may not exceed the number of positions listed on the TLC. See 8 CFR 214.2(h)(2)(ii) and (iii), (h)(5)(i)(B), and (h)(6)(viii). H-2 petitioners must identify by name the H-2 worker if the worker is in the United States or, under current DHS regulations, if the H-2 worker is a national of a country that is not designated as an H-2 participating country. See 8 CFR 214.2(h)(2)(iii). Generally, USCIS must approve this petition before the beneficiary can be considered eligible for an H-2A or H-2B visa or for H-2A or H-2B nonimmigrant status.

Once the petition is approved, under the INA and current DHS regulations, H-2 workers are limited to employment with the employer listed on the H-2 petition. See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(1)(i); 8 CFR 274a.12(b)(9). An H-2 petitioner generally may submit a new H-2 petition, with a new, approved TLC, to USCIS to request an extension of H-2 nonimmigrant status for the validity of the TLC or for a period of up to 1 year. See 8 CFR 214.2(h)(15)(ii)(C). The H-2 petitioner must name the worker on the new H-2 petition because the H-2 worker is in the United States and requesting an extension of stay. For H-2A petitioners only, in the event of an emergent circumstance, the petitioner may request an extension to continue employment with the same employer not to exceed 2 weeks without first having to obtain an additional approved TLC from DOL if certain criteria are met, by submitting the new H-2A petition. See 8 CFR 214.2(h)(5)(x).

5. Admission and Limitations of Stay

ving to obtain an additional approved TLC from DOL if certain criteria are met, by submitting the new H-2A petition. See 8 CFR 214.2(h)(5)(x).

5. Admission and Limitations of Stay

Upon USCIS approval of the H-2 petition and the H-2 worker's admission to the United States or grant of status under the respective H-2 classification, the employer or U.S. agent may begin to employ the H-2 worker(s). USCIS has authority to approve the worker's H-2A or H-2B classification for up to the period authorized on the approved TLC. See 8 CFR 214.2(h)(9)(iii)(B). H-2 workers who are outside of the United States may apply for a visa with the Department of State (DOS) at a U.S. Embassy or Consulate abroad, if required, and seek admission to the United States as an H-2 nonimmigrant with U.S. Customs and Border Protection (CBP) at a U.S. port of entry. The spouse and children of an H-2 nonimmigrant, if they are accompanying or following to join an H-2 nonimmigrant, may be admitted into the United States, if they are otherwise admissible, as H-4 dependents for the same period of admission (including any extension periods) as the principal spouse or parent. See 8 CFR 214.2(h)(9)(iv). Thus, H-4 dependents of H-2 workers are subject to the same limitations on stay, including permission to remain in the country during the pendency of the new employer's petition, as the H-2 beneficiary, but generally may not engage in employment. See 8 CFR 214.2(h)(9)(iv).

In general, a noncitizen's H-2 status is limited by the validity dates on the approved H-2 petition, typically for a period of up to 1 year. See 8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(iv)(B), 8 CFR 214.2(h)(6)(v)(B), 8 CFR 214.2(h)(9)(iii)(B), and 8 CFR 214.2(h)(15)(ii)(C). H-2A workers may be admitted to the United States for a period of up to 1 week prior to the beginning validity date listed on the approved H-2A petition so that they may travel to their worksites, but H-2A workers may not begin work until the beginning validity date

FR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(iv)(B), 8 CFR 214.2(h)(6)(v)(B), 8 CFR 214.2(h)(9)(iii)(B), and 8 CFR 214.2(h)(15)(ii)(C). H-2A workers may be admitted to the United States for a period of up to 1 week prior to the beginning validity date listed on the approved H-2A petition so that they may travel to their worksites, but H-2A workers may not begin work until the beginning validity date. H-2A workers may also remain in the United States 30 days beyond the expiration date of the approved H-2A petition to prepare for departure or to seek an extension of stay or change of nonimmigrant status but cannot work during this period. See 8 CFR 214.2(h)(5)(viii)(B).

H-2B workers may be admitted to the United States for a period of up to 10 days prior to the beginning validity date listed on the approved H-2B petition so that they may travel to their worksites, but H-2B workers may not begin work until the beginning validity date. Under current DHS regulations, H-2B workers also may remain in the United States up to 10 days beyond the expiration date of the approved H-2B petition to prepare for departure or to seek an extension of stay or change of nonimmigrant status and also cannot work during this period. See 8 CFR 214.2(h)(13)(i)(A). Unless otherwise authorized under 8 CFR 274a.12, H-2A and H-2B workers do not have employment authorization outside of the validity period listed on the approved petition. See 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(13)(i)(A).

The maximum period of stay for a noncitizen in H-2 classification is 3 years (or 45 days in the U.S. Virgin Islands). 9 See 8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(13)(iv), and 8 CFR 214.2(h)(15)(C). Generally, once a noncitizen has held H-2 nonimmigrant status for a total of 3 years, they must depart and remain outside of the United States for an uninterrupted period of 3 months before seeking readmission as an H-2 nonimmigrant. 10 See 8 CFR 214.2(h)(5)(viii)(C) and (h)(13)(iv)

ys in the U.S. Virgin Islands). 9 See 8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(13)(iv), and 8 CFR 214.2(h)(15)(C). Generally, once a noncitizen has held H-2 nonimmigrant status for a total of 3 years, they must depart and remain outside of the United States for an uninterrupted period of 3 months before seeking readmission as an H-2 nonimmigrant. 10 See 8 CFR 214.2(h)(5)(viii)(C) and (h)(13)(iv).

9 Any time an H-2 worker spends in the United States under section 101(a)(15)(H) or (L) of the Act, 8 U.S.C. 1101(a)(15)(H), (L), will count towards the 3-year limitation. See 8 CFR 214.2(h)(13)(iv). Time spent in H-4 or L-2 status will not count towards the 3-year limitation. See USCIS, Additional Guidance on Determining Periods of Admission for Foreign Nationals Previously Admitted as H-4 Nonimmigrants who are Seeking H-2 or H-3 Status (PM-602-0092), https://www.uscis.gov/sites/default/files/document/memos/2013-1111_H-4_Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf.

10 If the H-2 worker's accumulated stay is 18 months or less, an absence of at least 45 days will interrupt the 3-year limitation on admission. If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least 2 months. See 8 CFR 214.2(h)(5)(viii)(C) and (13)(iv); see also 8 CFR 214.2(h)(13)(v) (also excepting from the limitations under 8 CFR 214.2(h)(13)(iii) and (iv), with respect to H-2B beneficiaries, workers who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year, as well as workers who reside abroad and regularly commute to the United States to engage in part-time employment).

C. H-2 2008 Final Rules

ear, as well as workers who reside abroad and regularly commute to the United States to engage in part-time employment).

C. H-2 2008 Final Rules

In December 2008, DHS published two final rules providing that H-2 petitioners must meet certain requirements for an H-2 petition to be approved. See Final Rule Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 FR 78104 (Dec. 19, 2008); Final Rule Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 76891 (Dec. 18, 2008) (collectively “H-2 2008 Final Rules”). Those rules addressed a number of issues in the H-2 programs

DHS, through this proposed rulemaking, seeks to modify several requirements implemented by the H-2 2008 Final Rules. The following subsections describe those provisions as they were finalized in the 2008 rules.

1. Prohibited Fees in the H-2 Nonimmigrant Classifications

Under current regulations, USCIS may deny or revoke a petition when the beneficiary pays, directly or indirectly, certain fees that are conditions of H-2A employment or, for H-2B workers, as a condition of an offer of employment. See 8 CFR 214.2(h)(5)(xi) and 8 CFR 214.2(h)(6)(i). The current regulation at 8 CFR 214.2(h)(5)(xi) prohibits the collection of job placement fees or other compensation (directly or indirectly) from the beneficiary at any time as a condition of H-2A employment, including before or after the filing or approval of the petition. The prohibition applies to the petitioner, agent, facilitator, recruiter, or a similar employment service. However, the current regulation permits the collection of the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees so long as the payment of such fees is not prohibited by statute or DOL regulations, unless the employer agent, facilitator, recruiter, or similar employment service has agreed with the noncitizen to pay such costs and fees

urrent regulation permits the collection of the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees so long as the payment of such fees is not prohibited by statute or DOL regulations, unless the employer agent, facilitator, recruiter, or similar employment service has agreed with the noncitizen to pay such costs and fees. The current regulation at 8 CFR 214.2(h)(6)(i)(B) contains largely identical language applicable to H-2B petitions, but omits mention of the “Department of Labor.” 11

11 The regulations at 20 CFR 655.20(o) (H-2B); 20 CFR 655.135(j) (H-2A); and 29 CFR 503.16(o) (H-2B) contain similar prohibited fee provisions for H-2 employers. In addition, the regulations at 20 CFR 655.20(j) and 29 CFR 655.16(j) (H-2B) and 20 CFR 655.122(h) (H-2A) prohibit, with certain limitations, the collection of transportation and visa fees.

Under current DHS regulations, where such prohibited fees have been collected or the petitioner has entered into an agreement to collect such prohibited fees, including through a deduction or withholding from a worker's wages, an H-2 petition will be denied or revoked on notice unless the petitioner demonstrates that, prior to the filing of the petition, it has reimbursed the beneficiary in full or, where such fee or compensation has not yet been paid by the beneficiary, that the agreement has been terminated. See 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). Generally, the H-2 petition will be denied or revoked if the petitioner knew or should have known that the beneficiary has paid or agreed to pay the prohibited fee as a condition of employment (or, in the H-2B context, as a condition of an offer of employment). See 8 CFR 214.2(h)(5)(xi)( 2 )-( 4 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 )-( 4 ).

214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). Generally, the H-2 petition will be denied or revoked if the petitioner knew or should have known that the beneficiary has paid or agreed to pay the prohibited fee as a condition of employment (or, in the H-2B context, as a condition of an offer of employment). See 8 CFR 214.2(h)(5)(xi)( 2 )-( 4 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 )-( 4 ).

2. H-2 Eligible Countries Lists

USCIS may generally only approve H-2 petitions for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated through a notice published in the Federal Register as countries eligible to participate in the respective H-2A and H-2B programs. See 8 CFR 214.2(h)(5)(i)(F)( 1 )( i ) and 8 CFR 214.2(h)(6)(i)(E)( 1 ). This Federal Register notice is effective for 1 year after publication. See 8 CFR 214.2(h)(5)(i)(F)( 2 ) and 8 CFR 214.2 (h)(6)(i)(E)( 3 ). In designating countries whose nationals can participate in the H-2 programs, DHS takes into account several factors including, but not limited to: (1) the country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)( 1 )( i ) and 8 CFR 214.2(h)(6)(i)(E)( 1 ).

8 CFR 214.2(h)(5)(i)(F)( 1 )( i ) and 8 CFR 214.2(h)(6)(i)(E)( 1 ).

Petitioners who seek H-2 workers from countries that are not designated as eligible to participate in the applicable H-2 program must meet additional criteria showing that it is in the U.S. interest to employ such workers. See 8 CFR 214.2(h)(5)(i)(F)( 1 )( ii ) and 8 CFR 214.2(h)(6)(i)(E)( 2 ). In determining what is in the U.S. interest for purposes of these provisions, the Secretary of Homeland Security has sole and unreviewable discretion to take into account factors including, but not limited to: (1) evidence from the petitioner demonstrating that a worker with the required skills is not available either from among U.S. workers or from among foreign workers from a country currently on the lists described in 8 CFR 214.2(h)(5)(i)(F)( 1 )( i ) and 8 CFR 214.2(h)(6)(i)( E )( 1 ); (2) evidence that the beneficiary has been admitted to the United States previously in H-2 status; (3) the potential for abuse, fraud, or other harm to the integrity of the applicable H-2 visa program through the potential admission of a beneficiary from a country not currently designated as eligible; and (4) such other factors as may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)( 1 )( ii ) and 8 CFR 214.2(h)(6)(i)(E)( 2 ). Petitions for workers from designated countries and undesignated countries should be filed separately. See 8 CFR 214.2(h)(2)(ii). H-2 petitioners must name the H-2 worker if the H-2 worker is a national of a country that is not designated as an H-2 participating country. See 8 CFR 214.2(h)(2)(iii). USCIS reviews each petition naming a national from a country not on the lists and all supporting documentation and makes a determination on a case-by-case basis.

Subsequent to the publication of the H-2 2008 Final Rules, DHS has published annual notices in the Federal Register that designate certain countries as participants in the H-2 programs

participating country. See 8 CFR 214.2(h)(2)(iii). USCIS reviews each petition naming a national from a country not on the lists and all supporting documentation and makes a determination on a case-by-case basis.

Subsequent to the publication of the H-2 2008 Final Rules, DHS has published annual notices in the Federal Register that designate certain countries as participants in the H-2 programs. In December 2008, DHS first published in the Federal Register two notices: Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A Visa Program, and Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2B Visa Program, which designated 28 countries whose nationals were eligible to participate in the H-2A and H-2B programs. See 73 FR 77043 (Dec. 18, 2008); 73 FR 77729 (Dec. 19, 2008). The notices ceased to have effect on January 17, 2010, and January 18, 2010, respectively. DHS has published a notice each year from 2010 through the present, in which various countries have been added or removed from the lists of countries eligible for participation in the H-2 programs. DHS published its most recent notice on November 10, 2022, and announced that the Secretary of Homeland Security, in consultation with the Secretary of State, identified 86 countries whose nationals are eligible to participate in the H-2A program and 87 countries whose nationals are eligible to participate in the H-2B program for 1 year ending November 9, 2023. See Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs, 87 FR 67930 (Nov. 10, 2022).

The notices provide examples of specific factors serving the U.S. interest that are taken into account when considering whether to designate or terminate the designation of a country, which include, but are not limited to:

, 2023. See Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs, 87 FR 67930 (Nov. 10, 2022).

3. H-2A Employers Who are Participants in Good Standing in E-Verify

The 2008 H-2A final rule (but not the H-2B final rule) included a provision allowing H-2A workers who are lawfully present in the United States to begin work with a new petitioning employer upon the filing of a new H-2A petition naming the worker, before petition approval, provided that the new employer is a participant in good standing in E-Verify. 12 See 8 CFR 214.2(h)(2)(i)(D) and 8 CFR 274a.12(b)(21). In such a case, the H-2A worker's employment authorization continues for a period not to exceed 120 days beginning on the “Received Date” on Form I-797, Notice of Action, which acknowledges the receipt of the new H-2A extension petition. Except for the new employer and worksite, the employment authorization extension remains subject to the same conditions and limitations indicated on the initial H-2A petition. The employment authorization extension will terminate automatically if the new employer fails to remain a participant in good standing in E-Verify, as determined by USCIS in its discretion, or after 15 days if USCIS denies the extension request prior to the expiration of the 120-day period.

12 See Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 76891, 76905 (Dec. 8, 2008).

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

DHS recognizes that the H-2A and H-2B programs play a critical role in the U.S. economy, allowing foreign workers to fill temporary jobs for which U.S. workers are not available and qualified

prior to the expiration of the 120-day period.

12 See Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 76891, 76905 (Dec. 8, 2008).

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

DHS recognizes that the H-2A and H-2B programs play a critical role in the U.S. economy, allowing foreign workers to fill temporary jobs for which U.S. workers are not available and qualified. Reflective of their importance, the H-2A and H-2B programs have experienced significant growth since DHS published the H-2 2008 Final Rules. For instance, DOS data indicate that the number of H-2A visas issued has increased by over 365 percent over the last decade, reaching 257,898 visas issued in fiscal year (FY) 2021, compared to 55,384 visas issued in fiscal year 2011. 13 With regard to the H-2B program, because Congress has capped the number of H-2B visas available, the number of H-2B visas issued has not increased at the same rate as H-2A visas. Yet, DOS data indicate that issuance of H-2B visas nearly doubled between fiscal year 2011 (50,826 visas) and fiscal year 2021 (95,053 visas). 14 Because the recent demand for H-2B visas has regularly far-exceeded the statutory cap, Congress has repeatedly provided limited authority to DHS, in consultation with DOL and based on the needs of American businesses, to increase the number of H-2B visas available to U.S. employers over the last several years. 15

13 See DOS, Nonimmigrant Visas Issued by Classification (Including Crewlist Visas and Border Crossing Cards) Fiscal Years 2007 - 2011, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI(B).pdf; DOS, Nonimmigrant Visas Issued by Classification (Including Border Crossing Cards) Fiscal Years 2017 - 2021, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf

Visas and Border Crossing Cards) Fiscal Years 2007 - 2011, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI(B).pdf; DOS, Nonimmigrant Visas Issued by Classification (Including Border Crossing Cards) Fiscal Years 2017 - 2021, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf.

14 See DOS, Nonimmigrant Visas Issued by Classification (Including Crewlist Visas and Border Crossing Cards) Fiscal Years 2007 - 2011, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI(B).pdf; DOS, Nonimmigrant Visas Issued by Classification (Including Border Crossing Cards) Fiscal Years 2017 - 2021, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf.

15 See Consolidated Appropriations Act, 2017, Public Law 115-31, div. F, sec. 543; Consolidated Appropriations Act, 2018, Public Law 115-141, div. M, sec. 205; Consolidated Appropriations Act, 2019, Public Law 116-6, div. H, sec. 105; Further Consolidated Appropriations Act, 2020, Public Law 116-94, div. I, sec. 105; Consolidated Appropriations Act, 2021, Public Law 116-260, div. O, sec. 105; sections 101 and 106(3) of Division A of Public Law 117-43, Continuing Appropriations Act, 2022, Public Law 117-43, div. A, secs. 101, 106(3); section 101 of Division A of Public Law 117-70, Further Continuing Appropriations Act, 2022, Public Law 117-70, div. A, sec. 101; Consolidated Appropriations Act, 2022, Public Law 117-103, div. O, sec. 204; section 101(6) of Division A of Public Law 117-180, Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023, Public Law 117-180, div. A, sec. 101(6); Consolidated Appropriations Act, 2023, Public Law 117-328, div. O, sec. 303

her Continuing Appropriations Act, 2022, Public Law 117-70, div. A, sec. 101; Consolidated Appropriations Act, 2022, Public Law 117-103, div. O, sec. 204; section 101(6) of Division A of Public Law 117-180, Continuing Appropriations and Ukraine Supplemental Appropriations Act, 2023, Public Law 117-180, div. A, sec. 101(6); Consolidated Appropriations Act, 2023, Public Law 117-328, div. O, sec. 303.

In addition, in recent years the administration has sought to expand interest in the H-2 programs as part of its overall strategy to manage safe, orderly, and humane migration to this country. 16 For instance, the U.S. Agency for International Development (USAID) conducted significant outreach focused on building government capacity to facilitate access to temporary worker visas under the H-2 programs. 17 These efforts have successfully encouraged increased use of the H-2 programs when there are not sufficient qualified and available U.S. workers. 18

16 See Executive Order 14010, Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border (Feb. 2, 2021), https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf; National Security Council, Collaborative Migration Management Strategy (July 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf.

oads/2021/07/Collaborative-Migration-Management-Strategy.pdf.

17 In addition to other efforts, when exercising the delegated authority Congress granted it under separate legislation noted above to increase the number of H-2B visas available in a given fiscal year, DHS and DOL used that authority to create specific H-2B visa allocations in furtherance of its efforts to address irregular migration. See Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 86 FR 28198 (May 25, 2021); Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 4722 (Jan. 28, 2022); Exercise of Time-Limited Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 6017 (Feb. 3, 2022) (correction); Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 30334 (May 18, 2022); Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); and Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers; Correction, 87 FR 77979 (Dec. 21, 2022) (correction)

nagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, 87 FR 76816 (Dec. 15, 2022); and Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers; Correction, 87 FR 77979 (Dec. 21, 2022) (correction).

18 See USAID, Administrator Samantha Power at the Summit of the Americas Fair Recruitment and H-2 Visa Side Event, https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa (June 9, 2022) (“Our combined efforts [with the labor ministries in Honduras and Guatemala, and the Foreign Ministry in El Salvador] . . . resulted in a record number of H-2 visas issued in 2021, including a nearly forty percent increase over the pre-pandemic levels in H-2B visas issued across all three countries.”).

At the same time, the administration has consistently recognized the need to balance the expanded use of the H-2 programs with greater protections for workers. The National Security Council noted in its Collaborative Migration Management Strategy that expansion of access to nonimmigrant work visas “must also address the vulnerability of workers to abusive labor practices.” 19 In guidance promoting implementation of best practices by employers and by governments seeking to increase participation in the H-2 visa programs, 20

19 See National Security Council, Collaborative Migration Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021).

ty Council, Collaborative Migration Management Strategy, https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf (July 2021).

20 See DOS, USAID, and DOL, Guidance on Fair Recruitment Practices for Temporary Migrant Workers (June 2022), https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/06/ILAB20220565.pdf; see also U.S. Dep't of Agric., U.S. Department of Agriculture to Invest up to $65 Million in Pilot Program to Strengthen Food Supply Chain, Reduce Irregular Migration, and Improve Working Conditions for Farmworkers (June 10, 2022) (“Strong working conditions are critical to the resiliency of the food and agricultural supply chain. Through this pilot program, [U.S. Department of Agriculture] will support efforts to improve working conditions for both U.S. and H-2A workers and ensure that H-2A workers are not subjected to unfair recruitment practices.”), https://www.usda.gov/media/press-releases/2022/06/10/us-department-agriculture-invest-65-million-pilot-program.

Similarly, in proposing this rule, DHS recognizes that stronger protections are needed for the nonimmigrant workers who participate in the H-2 programs. 21 Numerous reports from Federal Government entities, migrant worker advocates, media, and other stakeholders have noted frequent violations of H-2 workers' rights, both in the United States and prior to admission. 22 For example, a Federal Government report found that workers may experience abuses before and after entering the United States, and during the course of their H-2 employment in the United States. 23 Reports from advocacy groups found that many H-2 workers suffer at least one serious violation of their rights (such as paying prohibited recruitment fees or significant wage violations) or a form of coercion (such as threats, verbal abuse, and withholding of documents) during their employment in the United States

nited States, and during the course of their H-2 employment in the United States. 23 Reports from advocacy groups found that many H-2 workers suffer at least one serious violation of their rights (such as paying prohibited recruitment fees or significant wage violations) or a form of coercion (such as threats, verbal abuse, and withholding of documents) during their employment in the United States. 24 These reports detail a wide range of violations, from coercion to paying illegal fees; wage theft; receiving false job information; 25 discrimination and harassment; 26 and being housed in crowded, unsanitary, and degrading conditions with limited food and water. Other serious violations include forced labor; being held captive without personal documents; threats of arrest, deportation, and violence toward the workers or their families abroad; kidnapping; sexual abuse; rape; and even death. 27 Recent court cases serve to underscore the range and severity of abuses and exploitation faced by H-2 workers in the United States. 28

21 See, e.g., DHS, DHS Announces Process Enhancements for Supporting Labor Enforcement Investigations (Jan. 13, 2023), https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations.

ments-supporting-labor-enforcement-investigations.

22 See, e.g., GAO, Closed Civil and Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and Abuse (GAO-10-1053 ) (2010), https://www.gao.gov/assets/gao-10-1053.pdf; GAO, Increased Protections Needed for Foreign Workers (GAO-15-154 ) (2015), https://www.gao.gov/assets/gao-15-154.pdf; Centro de los Derechos del Migrante, Inc. (CDM), Ripe for Reform: Abuses of Agricultural Workers in the H-2A Visa Program (2020) (noting prevalence of “systemic violations of [H-2A] workers' legal rights”), https://cdmigrante.org/ripe-for-reform/; Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States (2013), https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf (“The current H-2 program. . ..is rife with labor and human rights violations committed by employers who prey on a highly vulnerable workforce.”); Daniel Costa, Temporary work visa programs and the need for reform: A briefing on program frameworks, policy issues and fixes, and the impact of COVID-19, Economic Policy Institute (Feb. 3, 2021), https://files.epi.org/pdf/217871.pdf.

23 See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

24 See Polaris, Labor Exploitation and Trafficking of Agricultural Workers During the Pandemic 6 (2021) (reporting that available data on likely victims of labor trafficking show that 99 percent experienced some type of coercion), https://polarisproject.org/wp-content/uploads/2021/06/Polaris_Labor_Exploitation_and_Trafficking_of_Agricultural_Workers_During_the_Pandemic.pdf,; CDM, Ripe for Reform 4 (2020) (reporting data showing that every worker interviewed, even those most satisfied with their experience, suffered at least one serious legal violation of their rights), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Trafficking on Specific Temporary Work Visas (2022) (reporting that over 68 percent of H-2B workers identified as likely victims of labor tra

df,; CDM, Ripe for Reform 4 (2020) (reporting data showing that every worker interviewed, even those most satisfied with their experience, suffered at least one serious legal violation of their rights), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Trafficking on Specific Temporary Work Visas (2022) (reporting that over 68 percent of H-2B workers identified as likely victims of labor trafficking reported experiencing coercion), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.

25 See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Fake Jobs for Sale: Analyzing Fraud and Advancing Transparency in U.S. Labor Recruitment 4 (2019), https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf.

26 See CDM, Ripe for Reform (2020), https://cdmigrante.org/ripe-for-reform/. For a report illustrating how women, in particular, disproportionately face discrimination in the H-2B program, see CDM, Breaking the Shell: How Maryland's Migrant Crab Pickers Continue to be “Picked Apart” (2020), https://cdmigrante.org/wp-content/uploads/2020/09/Breaking-The-Shell.pdf.

27 See, e.g., Polaris, Labor Trafficking on Specific Temporary Work Visas (2022), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf; CDM, Ripe for Reform (2020), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Exploitation and Trafficking of Agricultural Workers During the Pandemic 6 (2021), https://polarisproject.org/wp-content/uploads/2021/06/Polaris_Labor_Exploitation_and_Trafficking_of_Agricultural_Workers_During_the_Pandemic.pdf.

https://polarisproject.org/wp-content/uploads/2021/06/Polaris_Labor_Exploitation_and_Trafficking_of_Agricultural_Workers_During_the_Pandemic.pdf.

28 See, e.g., Department of Justice (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; DOJ, Three Defendants Sentenced in Multi-State Racketeering Conspiracy Involving the Forced Labor of Mexican Agricultural H-2A Workers (Oct. 27, 2022) (involving forced labor, imposing debts on workers, and subjecting workers to crowded, unsanitary, and degrading living conditions), https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican; DOL, Order Finding Civil Contempt and Imposing Stop Work Order, No. 1:19-cv-00007 (D. N. Mar. I. Jan. 21, 2021) (involving extensive wage violations, substandard living conditions, and threats to withhold food if workers stopped working, among other abuses), https://www.dol.gov/sites/dolgov/files/SOL/files/IPI%20-%20Stop%20Work%20Order.pdf.

A U.S. Government study found that the structure of the H-2A and H-2B programs may create systematic disincentives for workers to report or leave abusive working conditions. 29 One disincentive is that workers are authorized to work only for the petitioning H-2A or H-2B employer; consequently, the workers cannot freely leave to work for another employer, nor do they feel free to report mistreatment by their employer for fear of retaliation or blacklisting (that is, exclusion from future employment opportunities through the same employer or recruiter) 30 despite existing DOL prohibitions on such retaliation

authorized to work only for the petitioning H-2A or H-2B employer; consequently, the workers cannot freely leave to work for another employer, nor do they feel free to report mistreatment by their employer for fear of retaliation or blacklisting (that is, exclusion from future employment opportunities through the same employer or recruiter) 30 despite existing DOL prohibitions on such retaliation. 31 Losing their jobs means losing their legal status and authorization to remain in the United States, and potentially their ability to work in the United States in the future. 32 According to the GAO, workers also fear reporting violations to law enforcement or government entities due generally to their immigration status and lack of knowledge about their rights. 33 Another significant disincentive identified by the GAO is the workers' incurrence of prohibited fees or subjection to other recruitment abuses, as workers or their family members may face retaliation from recruiters or other actors in their home countries if they do not repay these debts. 34

29 See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

30 See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for Reform 4 (2020), https://cdmigrante.org/ripe-for-reform/.

31 See 20 CFR 655.20(n); 655.135(h); and 29 CFR 503.16(n).

32 See CDM, Ripe for Reform 4 (2020), https://cdmigrante.org/ripe-for-reform/; CDM, Recruitment Revealed: Fundamental Flaws in the H-2 Temporary Worker Program and Recommendations for Change 22-24 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf.

33 See GAO-15-154, at 51 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

34 See GAO-15-154, at 37-38 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Recruitment Revealed 22-24 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; CDM, Fake Jobs for Sale, https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf

itment_Revealed.pdf.

33 See GAO-15-154, at 51 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

In a study conducted by migrant worker advocates, a majority of H-2 35 These types of fees perpetuate the cycle of exploitation. Reports indicate that many H-2 workers incur substantial debts before they even get to the United States. 36 Some recruiters target individuals already living in impoverished conditions abroad, often from rural or indigenous communities, further heightening the workers' vulnerability to exploitation. 37 Because they incur substantial debts in connection with (or related to) their seeking to come to this country as H-2 workers, these workers face economic hardship, and in many instances, debt bondage when arriving in the United States. 38 As a result, these workers are less able or willing to report or leave poor working conditions or abusive situations. 39

35 See CDM, Recruitment Revealed 4, 16 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf. This study focused on recruitment in Mexico because Mexico is home to the largest number of H-2 workers. The H-2 workers surveyed in this study worked in the U.S. during or after 2006. See also 8 CFR 214.2(h)(5)(xi); 8 CFR 214.2(h)(6)(i); 20 CFR 655.20(o) and (p); and 20 CFR 655.135(j) and (k).

36 See, e.g., CDM, Ripe for Reform 19 (2020), https://cdmigrante.org/ripe-for-reform/; CDM, Recruitment Revealed 4, 16 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; GAO-15-154, at 28-29 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

37 See CDM, Ripe for Reform 16 (2020), https://cdmigrante.org/ripe-for-reform/

o) and (p); and 20 CFR 655.135(j) and (k).

37 See CDM, Ripe for Reform 16 (2020), https://cdmigrante.org/ripe-for-reform/. This report highlighted how indigenous workers face significant challenges primarily due to their language and cultural differences.

38 See, e.g., Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 8230, 8233 (Feb. 13, 2008) (“USCIS has found that certain job recruiters and U.S. employers are charging potential H-2A workers job placement fees in order to obtain H-2A employment. . . . USCIS has learned that payment by these workers of job placement-related fees not only results in further economic hardship for them, but also, in some instances, has resulted in their effective indenture.”); GAO-15-154, at 30 (2015), https://www.gao.gov/assets/gao-15-154.pdf; CDM, Recruitment Revealed 4 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf (many H-2 workers arrive in the United States in debt, which may lead to situations of debt servitude or other abuse); Daniel Costa, Temporary work visa programs and the need for reform 20 (2021), https://files.epi.org/pdf/217871.pdf (“Many [workers] are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal. Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage.”).

“Debt bondage” is defined in 22 U.S.C

k visa programs and the need for reform 20 (2021), https://files.epi.org/pdf/217871.pdf (“Many [workers] are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal. Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage.”).

“Debt bondage” is defined in 22 U.S.C. 7102(7) as “the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or those of a person under his or her control as security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.”

39 See GAO-15-154 (2015), https://www.gao.gov/assets/gao-15-154.pdf.

While current regulations already contain provisions on prohibited fees intended to protect H-2 workers, DHS recognizes that stronger protections are needed to address many of the reported widespread abuses and make DHS's authority to address these issues explicit. Through this proposed rulemaking, DHS seeks to clarify and strengthen existing provisions on prohibited fees, and furthermore, implement significant new provisions to increase DHS's ability to deter and hold accountable certain employers that have been found to have committed labor law violations and other violations relevant to the H-2 programs, while providing safeguards for workers reporting that they have been subject to payment of prohibited fees.

Aside from prohibited fees, there are other harmful employer, recruiter, or agent behaviors that DHS's current regulations do not address but that are relevant to eligibility and, in some instances, should warrant exclusion from the H-2 programs. Multiple sources have revealed flaws or gaps in the H-2 framework that allow H-2 employers that have committed serious labor law violations to continue using the H-2 programs even after the violations

mful employer, recruiter, or agent behaviors that DHS's current regulations do not address but that are relevant to eligibility and, in some instances, should warrant exclusion from the H-2 programs. Multiple sources have revealed flaws or gaps in the H-2 framework that allow H-2 employers that have committed serious labor law violations to continue using the H-2 programs even after the violations. 40 For instance, a report from an advocacy group highlighted how an H-2 employer that was the subject of over 80 complaints of unpaid wages and violations of employment terms during a single summer season continued using H-2 program to employ H-2 workers. 41 A news article detailed how a company with a history of worker protection violations and vehicle safety violations (including for improper vehicle maintenance and unsafe driving) continued to receive approved TLCs to employ H-2 workers, including within 3 months after it was found responsible for a vehicle crash that killed some of the H-2 workers it employed. 42 A labor union report listed numerous case studies of H-2 employers that continued to receive approved TLCs despite multitudes of labor violations, some of which were deemed “egregious” and “serious.” 43 While these studies focused on available data related to employers' receipt of approved TLCs from DOL, it is apparent to DHS that these and other types of violations can be directly relevant to whether an employer has the ability and intent to comply with DHS's H-2 program requirements. These types of violations should therefore be considered by USCIS in its adjudication of H-2A and H-2B petitions, regardless of whether DOL has taken action on the underlying TLCs

receipt of approved TLCs from DOL, it is apparent to DHS that these and other types of violations can be directly relevant to whether an employer has the ability and intent to comply with DHS's H-2 program requirements. These types of violations should therefore be considered by USCIS in its adjudication of H-2A and H-2B petitions, regardless of whether DOL has taken action on the underlying TLCs. The proposed provisions in this rule, including new bars to approval for prohibited fees as well as for certain findings of labor law and other violations, and holding employers responsible for the actions of their recruiters and others in the recruitment chain, underscore DHS's commitment to addressing aspects of the H-2 programs that may result in the exploitation of persons seeking to come to the United States as H-2 workers. 44

40 See, e.g., AFL-CIO, Comprehensive H-2B Recommendations. See the docket for this rulemaking for a copy of this letter; Farmworker Justice, No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers (2012), https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf; LIUNA, H-2B Guest Worker Program: Lack of Accountability Leads to Exploitation of Workers, https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf.

41 See Farmworker Justice, No Way to Treat a Guest (2012), https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf.

42 See Ken Bensinger, Jessica Garrison, Jeremy Singer-Vine, The Pushovers: Employers Abuse Foreign Workers, U.S. Says, By All Means, Hire More, BuzzFeed News (May 12, 2016), https://www.buzzfeednews.com/article/kenbensinger/the-pushovers.

43 See LIUNA, H-2B Abuse by Construction and Landscaping Companies, https://d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2-9544-bd96627e284d/067fa0a5-659f-4113-8b25-ac60c2060510.pdf

ssica Garrison, Jeremy Singer-Vine, The Pushovers: Employers Abuse Foreign Workers, U.S. Says, By All Means, Hire More, BuzzFeed News (May 12, 2016), https://www.buzzfeednews.com/article/kenbensinger/the-pushovers.

43 See LIUNA, H-2B Abuse by Construction and Landscaping Companies, https://d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2-9544-bd96627e284d/067fa0a5-659f-4113-8b25-ac60c2060510.pdf.

44 See, e.g., DHS, Response to Senator Ossoff letter (May 3, 2022), https://www.ossoff.senate.gov/wp-content/uploads/2022/05/DHS-Response-Blooming-Onion.pdf; DHS, For First Time, DHS to Supplement H-2B Cap with Additional Visas in First Half of Fiscal Year (Dec. 20, 2021), https://www.uscis.gov/newsroom/news-releases/for-first-time-dhs-to-supplement-h-2b-cap-with-additional-visas-in-first-half-of-fiscal-year.

In addition to providing greater protection for a vulnerable population of workers, the reforms proposed in this rulemaking offer a number of benefits to employers. DHS recognizes the immense importance of the H-2A and H-2B programs to U.S. employers that are unable to fill temporary jobs with qualified and available U.S. workers. The proposed portability provision, in addition to offering flexibility to workers, would assist petitioners facing worker shortages by allowing them to more quickly hire H-2A and H-2B workers who are already in the United States without waiting for approval of a new petition. In addition, as discussed in greater detail below, both the proposed elimination of the eligible countries lists and the proposed revision of the calculation of the maximum period of stay for H-2 workers stand to reduce petitioner

IV. Discussion of Proposed Rule

A. Program Integrity and Worker Protections

who are already in the United States without waiting for approval of a new petition. In addition, as discussed in greater detail below, both the proposed elimination of the eligible countries lists and the proposed revision of the calculation of the maximum period of stay for H-2 workers stand to reduce petitioner

IV. Discussion of Proposed Rule

A. Program Integrity and Worker Protections

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

As discussed above, despite 2008 regulatory changes providing that USCIS will deny or revoke a petition when a beneficiary pays a fee as a condition of H-2 employment, reports from various sources indicate that the collection of prohibited fees remains a pervasive problem in the H-2A and H-2B programs. 45 Through this rulemaking, DHS is proposing various amendments to strengthen and clarify the existing regulatory prohibitions, to close potential loopholes, and to modify the consequences for charging prohibited fees to H-2 workers.

45 See, e.g., CDM, Recruitment Revealed 16 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; CDM, Ripe for Reform 20 (2020), https://cdmigrante.org/ripe-for-reform/; Polaris, Labor Trafficking on Specific Temporary Work Visas 14 (2022), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf; Polaris, On-ramps, intersections, and exit routes: A roadmap for systems and industries to prevent and disrupt human trafficking 41 (2018), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf; GAO-10-1053, at 4 (2010), https://www.gao.gov/assets/gao-10-1053.pdf.

-on-Specific-Temporary-Work-Visas-by-Polaris.pdf; Polaris, On-ramps, intersections, and exit routes: A roadmap for systems and industries to prevent and disrupt human trafficking 41 (2018), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf; GAO-10-1053, at 4 (2010), https://www.gao.gov/assets/gao-10-1053.pdf.

a. Fees, Penalties, or Other Compensation “Related To” H-2 Employment

The intent of the prohibited fee provisions in the 2008 H-2 rules was, in part, to establish measures to help avoid economic hardship for H-2 workers and combat effective indenture and similar abuses against H-2 workers. 46 This proposed rule is intended, among other things, to foreclose claims that because a worker agreed (or appears to have agreed) to pay a prohibited fee, such agreement cannot be considered to be a condition of employment.

46 When initially proposing the prohibited fee provisions, DHS explicitly noted these abuses and stated that the provisions were “an effort to protect [H-2] workers from such abuses.” Changes to Requirements Affecting H-2A Nonimmigrants, 73 FR 8230, 8233 (Feb. 13, 2008); Changes to Requirements Affecting H-2B Nonimmigrants and Their Employers, 73 FR 49109, 49112 (Aug. 20, 2008).

To strengthen the prohibited fee provisions and establish substantial uniformity with DOL's prohibited fee provisions, DHS proposes to modify its provisions to state that fees paid by H-2 workers to an employer, joint employer, petitioner (including to its employee), agent, attorney, facilitator, recruiter, similar employment service, related to such workers' H-2 employment, are prohibited. Although DHS used the phrase “as a condition of” in its 2008 final H-2A and H-2B rules, DOL, in promulgating its 2008 H-2A final rule, used instead the phrase “related to” when addressing which costs and fees associated with recruitment and employment are prohibited

loyee), agent, attorney, facilitator, recruiter, similar employment service, related to such workers' H-2 employment, are prohibited. Although DHS used the phrase “as a condition of” in its 2008 final H-2A and H-2B rules, DOL, in promulgating its 2008 H-2A final rule, used instead the phrase “related to” when addressing which costs and fees associated with recruitment and employment are prohibited. 47 As DOL noted in 2008 and reiterated at the time it updated its 2008 H-2A rule in 2010, the intent of the prohibited fees provisions was 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.” 48 DOL affirmed these principles when it updated the H-2A regulations in 2022. 49 Similarly, DOL used the term “related to” rather than “as a condition of” in its 2008 H-2B final rule. 50 By proposing to replace the term “as a condition of” with “related to,” with respect to the scope of the bar on payment of “prohibited fees,” DHS is proposing to modify the language of its H-2A and H-2B prohibited fees rules to substantially conform with DOL prohibited fee regulations. Fees that are “related to” H-2 employment would include, but not be limited to, the employer's agent or attorney fees, visa application and petition fees, visa application and petition preparation fees, and recruitment costs 51 ; 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.” See proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). 52

sport fees.” See proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). 52

47 Current 20 CFR 655.135(j) (H-2A) and 20 CFR 655.20(o) (H-2B). Notably, with respect to H-2A nonimmigrants, the Department of Labor has explained that, even in the case of otherwise permissible fees, “an employee may only pay such fees if they are for services that are voluntarily requested by the . . . employee. If an employee lacks a meaningful opportunity and an independent choice to refuse or decline the service which requires the payment of the fee,” such fee is prohibited. See U.S. Department of Labor, Wage and Hour Field Assistance Bulletin 2011-2, available at https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2 (addressing H-2A fees). Further, DOL has explained that “[t]he signing of a document by a prospective worker stating that he/she has agreed to pay the fee does not, in and of itself, establish that the fee is voluntary.” Id. This proposed rule recognizes that the concerns addressed by DOL with respect to the H-2A program apply equally to the H-2B program, and, as in the case of the H-2A program, this rule would intend to foreclose claims that simply because a worker agreed (or appears to have agreed) to a fee, it cannot be considered to be prohibited.

48 Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884, 6925 (Feb. 12, 2010); Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 FR 77110, 77158 (Dec. 18, 2008).

49 Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 FR 61660, 61744 (Oct. 12, 2022) (revisions to 20 CFR 655.135(k) intended to “mak[e] it clear that foreign labor contractors or recruiters and their agents are not to receive remuneration from prospective employees recruited in exchange for access to a job opportunity or any activity related to obtaining H-2A labor certification”)

ricultural Employment of H-2A Nonimmigrants in the United States, 87 FR 61660, 61744 (Oct. 12, 2022) (revisions to 20 CFR 655.135(k) intended to “mak[e] it clear that foreign labor contractors or recruiters and their agents are not to receive remuneration from prospective employees recruited in exchange for access to a job opportunity or any activity related to obtaining H-2A labor certification”).

50 See former 20 CFR 655.22(j) available at Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, 78060 (Dec. 19, 2008); see also current 20 CFR 655.20(o) and 29 CFR 503.16(o) (both using the term “related to” and clarifying that prohibited fees would broadly include “payment of 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”). 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.

51 See DOL, Fact Sheet #78D: Deductions and Prohibited Fees under the H-2B Program, https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions.

52 DHS notes, however, that while certain fees are not prohibited under this proposed rule, it is not DHS's intent to render a worker subject to any unlawful treatment or harassment resulting from the worker's incurring debt from a petitioner (including a petitioner's employee), agent, attorney, facilitator, recruiter, or similar employment service, or employer or joint employer, to cover such nonprohibited fees.

petitioner (including a petitioner's employee), agent, attorney, facilitator, recruiter, or similar employment service, or employer or joint employer, to cover such nonprohibited fees.

DHS also seeks to clarify that the term “prohibited fee” would include any “fee, penalty, or compensation” related to the H-2A or H-2B employment. See proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). A prohibited fee would include those collected either directly (such as, for instance, through a direct payment from the beneficiary to the petitioner or the petitioner's agent), or indirectly (such as, for instance, through a withholding or deduction from the worker's wages for a service provided earlier by a third party).

To further strengthen the prohibited fee provisions and establish substantial uniformity with DOL's prohibited fee provisions, proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) would have new 53 As before, it is not the intention of DHS to bar the payment of fees to any agent, attorney, facilitator, recruiter, or similar employment service by the petitioner or employer, provided such fees do not come directly or indirectly from H-2 workers themselves. DHS recognizes the role of recruiters and similar employment services in assisting employers in finding H-2 workers. An employer may hire a recruiter and pay the recruiter out of its own funds, as long as it does not pass this cost directly or indirectly on to the worker(s).

53 See 20 CFR 655.20(o), which applies to prohibited fees by “[t]he employer and its attorney, agents, or employees.”

b. Clarification of Acceptable Reimbursement Fees

.20(o), which applies to prohibited fees by “[t]he employer and its attorney, agents, or employees.”

b. Clarification of Acceptable Reimbursement Fees

Further, 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. Despite the phrase related to, not all payments made by prospective or current H-2 workers would be considered prohibited fees or payments related to H-2 employment 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 under the rule and would, therefore, permissibly be considered the responsibility of the worker.

The current regulations state that prohibited fees do not include “the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees, to the extent that the payment of such costs and fees by the beneficiary is not prohibited by statute or DOL regulations, unless the employer agent, facilitator, recruiter, or employment service has agreed with the [noncitizen] to pay such costs and fees.” 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). To simplify the language related to acceptable reimbursement fees and clarify that the exception only applies to costs that are truly for the worker's benefit, DHS proposes to replace 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.” Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B)

at are truly for the worker's benefit, DHS proposes to replace 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.” Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). This proposed language is 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). The proposed provision would clarify the existing prohibition on a beneficiary's payment of costs required by statute or regulation to be paid or otherwise incurred by the petitioner (such as certain transportation costs or, in the H-2A context, certain housing costs). 54 Specifically, the proposed language would make clear that the passing of a cost to the beneficiary that, by statute or applicable regulations is the responsibility of the petitioner, would constitute a collection of a prohibited fee by the petitioner. Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). DHS has proposed the phrase “applicable regulations” to recognize that, in the H-2A context, “applicable regulations” would include DHS and DOL regulations, and in the H-2B context, “applicable regulations” would include DHS, DOL, and GDOL regulations.

54 See 8 CFR 214.2(h)(5)(xi)(A) (acceptable fees exclude fees “to the extent that the passing of such costs to the beneficiary is not prohibited by statute”) and 8 CFR 214.2(h)(6)(i)(B) (acceptable fees exclude fees “to the extent that the payment of such costs and fees by the beneficiary is not prohibited by statute or Department of Labor regulations”). See also INA sec. 218(c)(4) (“Employers shall furnish housing in accordance with regulations.”) and 20 CFR 655.122(d)(1) (“ [t]he employer must provide housing at no cost to H-2A workers . . .” (italics added).

.2(h)(6)(i)(B) (acceptable fees exclude fees “to the extent that the payment of such costs and fees by the beneficiary is not prohibited by statute or Department of Labor regulations”). See also INA sec. 218(c)(4) (“Employers shall furnish housing in accordance with regulations.”) and 20 CFR 655.122(d)(1) (“ [t]he employer must provide housing at no cost to H-2A workers . . .” (italics added).

c. Prohibiting Breach of Contract Fees and Penalties

DHS also proposes to clarify that prohibited fees include any fees or penalties charged to workers who do not complete their contracts. Advocacy groups have reported instances of recruiters forcing, or threatening to force, H-2 workers to pay large “breach” fees of up to thousands of dollars for leaving employment before the scheduled conclusion of work. 55 DHS proposes to explicitly include a “fee or penalty for breach of contract” in the revised prohibited fee provision in order to provide greater clarity for stakeholders, and to emphasize the prohibited nature of such fees. Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).

55 These concerns were raised by representatives from Centro de los Derechos del Migrante, Inc. and Farmworker Justice during a listening session held by DHS on May 16, 2022, and were also raised by Migration that Works in a letter to DHS dated May 17, 2022. See the docket for this rulemaking for access to a transcript of the listening session and a copy of the letter.

d. Strengthening the Prohibited Fees Provisions

ted May 17, 2022. See the docket for this rulemaking for access to a transcript of the listening session and a copy of the letter.

d. Strengthening the Prohibited Fees Provisions

DHS is proposing to amend regulatory language that currently allows petitioners to avoid liability in certain instances despite a USCIS determination that the petitioner collected or planned to collect prohibited fees. Under the current regulations, a petitioner who was found to have collected or entered into an agreement to collect a prohibited fee is not subject to denial or revocation on notice if the petitioner demonstrates that it reimbursed the worker prior to the filing of the petition or, if the fee has not yet been paid by the worker, that the agreement has been terminated. 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). Similarly, if USCIS determines that the petitioner knew or should have known at the time of filing that its agent, facilitator, recruiter, or similar employment service collected or entered into an agreement to collect prohibited fees, the current regulations include exceptions to the requirement that USCIS deny or revoke on notice if the petitioner demonstrates that such fees were reimbursed, the agreement to collect fees was terminated prior to collection, or, in cases where such payment or agreement was made after the filing of the petition, that the petitioner notified DHS of the prohibited fees or agreement within 2 days of learning of them. 8 CFR 214.2(h)(5)(xi)(A)( 2 ) and ( 4 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ) and ( 4 ).

xi)(A)( 2 ) and ( 4 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ) and ( 4 ).

DHS is proposing to eliminate the above-noted exceptions to prohibited fee-related denials or revocations that are based solely on a petitioner's reimbursement, pre-payment cancellation of a prohibited fee agreement, or notification to DHS. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and ( 2 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ) and ( 2 ). Whereas reimbursement, pre-payment cancellation, or notification to DHS, by itself, currently allows a petitioner to avoid a denial or revocation, DHS is proposing to require the petitioner to take additional, significant steps to prevent the unlawful collection of fees and thus avoid a future denial or revocation and the additional consequences that follow. This change is appropriate because, in such cases, petitioners (including their employees) or their third-party associates (including agents, attorneys, facilitators, recruiters, or similar employment services) have already engaged in wrongdoing by taking actions that violate longstanding 56 DHS emphasizes the importance of petitioners reimbursing a worker who has paid a prohibited fee because it mitigates the harm done to the worker. DHS is therefore proposing to incorporate language in the proposed rule regarding the impact reimbursement could have with respect to the consequences for a determination of prohibited fees, as discussed below.

56 A study conducted by the advocacy group Centro de los Derechos del Migrante, Inc. noted that some H-2 workers who go into debt to cover pre-employment expenses are vulnerable to predatory lending practices such as high interest rates and exploitative collateral requirements. See CDM, Recruitment Revealed 18 (2018), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf

ow.

For situations in which a petitioner itself is found to have collected or entered an agreement to collect prohibited fees, such as when an employee of the petitioner engages in such activity, DHS proposes to hold the petitioner or its successor accountable by denying or revoking its approved petition and thereby making it subject to additional consequences described below, except in rare cases involving extraordinary circumstances beyond the petitioner's control. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). Specifically, a petition filed by a petitioner found to have collected or entered into an agreement to collect prohibited fees would be subject to denial or revocation on notice and the resulting additional consequence of a 1-year to 4-year bar to approval of subsequent petitions. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ), 8 CFR 214.2(h)(5)(xi)(B), 8 CFR 214.2(h)(6)(i)(B)( 1 ), and 8 CFR 214.2(h)(6)(i)(C). That petitioner may only avoid such consequences if it demonstrates, through clear and convincing evidence in response to a USCIS notice of intent to deny or revoke, both that extraordinary circumstances beyond its control resulted in its failure to prevent collection or entry into agreement for collection of prohibited fees and that it has fully reimbursed all affected beneficiaries and designees. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). The determination as to whether a petitioner has met this very high standard would be made on a case-by-case basis

circumstances beyond its control resulted in its failure to prevent collection or entry into agreement for collection of prohibited fees and that it has fully reimbursed all affected beneficiaries and designees. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). The determination as to whether a petitioner has met this very high standard would be made on a case-by-case basis. As a baseline, a petitioner would need to first demonstrate that the extraordinary circumstances were rare and unforeseeable, and that it had made significant efforts to prevent prohibited fees prior to the collection of or agreement to collect such fees. As the proposed standard would require evidence of the petitioner's significant efforts to prevent prohibited fees, a petitioner would need to demonstrate that it took affirmative steps to prevent its employees from collecting or agreeing to collect such fees. The petitioner's mere lack of awareness of its employee's collection or agreement to collect such fees would not be sufficient.

In addition to the above, a petitioner would further need to establish that it took immediate remedial action as soon as it became aware of the payment of the prohibited fee. Moreover, a petitioner would need to demonstrate that it has fully reimbursed all affected beneficiaries or their designees. The petitioner would need to establish all of the above elements in order to avoid denial or revocation of its petition. While USCIS may determine that denial or revocation is not appropriate in such an extraordinary case, petitioners would still be accountable for reimbursing workers in full irrespective of the circumstances surrounding their own prohibited fee collections or agreements.

rs in full irrespective of the circumstances surrounding their own prohibited fee collections or agreements.

To further ensure against a petitioner avoiding liability for prohibited fees, DHS proposes to change 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. Under current regulations, in order to hold a petitioner liable for such actions, USCIS must make a determination that the petitioner “knew or should have known” about any such prohibited collection or agreement that was made prior to filing the petition, or that any post-filing collection or agreement was made “with the knowledge of the petitioner.” 8 CFR 214.2(h)(5)(xi)(A)( 2 ) and ( 4 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ) and ( 4 ). This requirement can make it difficult for USCIS to deny a petition, even if there is evidence that prohibited fees were collected. In practice, a petitioner may be able to avoid a denial or revocation based on its lack of knowledge (whether or not as a result of its failure to exercise due diligence) or claimed lack of knowledge of the practices of the third parties with whom it has done business, such as by submitting evidence that the petitioner's contract with a recruitment service includes a clause forbidding the collection of prohibited fees. 57

57 See, e.g., International Labor Recruitment Working Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse 34 (2013) (noting employers' evasion of H-2A and H-2B prohibited fee laws by claiming they are unaware their workers were charged recruitment fees), https://migrationthatworks.org/reports/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse/

Recruitment Working Group, The American Dream Up for Sale: A Blueprint for Ending International Labor Recruitment Abuse 34 (2013) (noting employers' evasion of H-2A and H-2B prohibited fee laws by claiming they are unaware their workers were charged recruitment fees), https://migrationthatworks.org/reports/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse/.

In proposing changes to the above-noted provisions, DHS seeks to clarify and emphasize that it is a petitioner's responsibility to conduct due diligence to ensure that any third-party agent, attorney, facilitator, recruiter, or similar employment service with whom it conducts business will comply with H-2 program requirements, including the prohibition on collection of fees related to H-2 employment. This due diligence obligation applies irrespective of whether the employer is in contractual privity with such third party or whether such third party is located or operating in the United States. Accordingly, DHS is proposing to hold petitioners accountable for any prohibited fee-related violation by these third parties, with only an extremely limited exception.

Specifically, under DHS's proposed provisions, any determination that an H-2 worker has paid or agreed to pay a prohibited fee to the petitioner's agent, facilitator, recruiter, or similar employment service would result in denial of the petition or revocation on notice, “unless the petitioner demonstrates to USCIS through clear and convincing evidence that it did not know and could not, through due diligence, have learned of such payment or agreement and that all affected beneficiaries have been fully reimbursed.” Proposed 8 CFR 214.2(h)(5)(xi)(A)( 2 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ). DHS is also proposing to state that, by itself, a written contract between the petitioner and the third party stating that such fees are prohibited will not be sufficient to meet this standard of proof

ugh due diligence, have learned of such payment or agreement and that all affected beneficiaries have been fully reimbursed.” Proposed 8 CFR 214.2(h)(5)(xi)(A)( 2 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ). DHS is also proposing to state that, by itself, a written contract between the petitioner and the third party stating that such fees are prohibited will not be sufficient to meet this standard of proof. 58 While the language of such a contract may be considered, additional documentation must be provided. Relevant documentation could include evidence

58 DOL already requires employers to contractually forbid third parties whom they engage for the recruitment of workers from seeking or receiving payments or other compensation from prospective employees. See 20 CFR 655.9(a), 20 CFR 655.20(p), and 20 CFR 655.135(k). Accordingly, USCIS's acceptance of such a contract alone as meeting the proposed standard would mean that nearly all petitioners could avoid liability.

Finally, DHS is proposing to add that, in addition to petitioners, agents, facilitators, recruiters, and similar employment services, the prohibited fee provision would apply to any joint employers in the H-2A context, including a petitioner's member employers if the petitioner is an association of U.S. agricultural producers, and any employers (if different from the petitioner) in the H-2B context. Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B). The regulations allow an H-2A petition to be filed by either the employer listed on the TLC, the employer's agent, or the association of U.S. agricultural producers named as a joint employer on the TLC. 8 CFR 214.2(h)(5)(i)(A). Similar to a petitioner's responsibility with the listed third parties discussed above, DHS seeks to clarify and emphasize that an association of U.S

CFR 214.2(h)(6)(i)(B). The regulations allow an H-2A petition to be filed by either the employer listed on the TLC, the employer's agent, or the association of U.S. agricultural producers named as a joint employer on the TLC. 8 CFR 214.2(h)(5)(i)(A). Similar to a petitioner's responsibility with the listed third parties discussed above, DHS seeks to clarify and emphasize that an association of U.S. agricultural producers named as a joint employer on a TLC and other joint employers bear responsibility to conduct due diligence to self-police and ensure that its member or joint employers will comply with H-2A program requirements. Likewise, in a job contracting scenario in which a petitioner brings in H-2B workers to work for one or more employer-clients, 59 DHS seeks to clarify and emphasize that the petitioner is responsible for ensuring that such employers will comply with H-2B program requirements. Therefore, petitioners would be held accountable for any collection or agreement to collect prohibited fees by any such employers and (for H-2A) joint employers, “unless the petitioner demonstrates to USCIS through clear and convincing evidence that it did not know and could not, through due diligence, have learned of such payment or agreement.” Proposed 8 CFR 214.2(h)(5)(xi)(A)( 2 ) and 8 CFR 214.2(h)(6)(i)(B)( 2 ).

59 H-2B job contractors and employer-clients must meet the requirements of the definition of an H-2 “employer” under 20 CFR 655.5 and 655.19.

e. Consequences of a Denial or Revocation Based on Prohibited Fees

Under the current regulations, during the 1-year period following an H-2A or H-2B denial or revocation for prohibited fees, USCIS may only approve a petition filed by the same petitioner for the same classification if the petitioner demonstrates either that each affected beneficiary has been reimbursed in full or that it made reasonable efforts but has failed to locate such beneficiary(ies). 8 CFR 214.2(h)(5)(xi)(C)( 1 ) and 8 CFR 214.2(h)(6)(i)(D)

iod following an H-2A or H-2B denial or revocation for prohibited fees, USCIS may only approve a petition filed by the same petitioner for the same classification if the petitioner demonstrates either that each affected beneficiary has been reimbursed in full or that it made reasonable efforts but has failed to locate such beneficiary(ies). 8 CFR 214.2(h)(5)(xi)(C)( 1 ) and 8 CFR 214.2(h)(6)(i)(D). The current regulations specify that reasonable efforts include contacting the beneficiary's known addresses. 8 CFR 214.2(h)(5)(xi)(C)( 1 ) (with respect to H-2A workers, reasonable efforts include “contacting any of the beneficiary's known addresses”); 8 CFR 214.2(h)(6)(i)(D)( 1 ) (with respect to H-2B workers, reasonable efforts include “contacting all of each such beneficiary's known addresses”). DHS is proposing several changes to these provisions to increase the consequences and provide a stronger deterrent against prohibited fee violations, to incentivize reimbursement when such violations occur, and to better ensure that petitioners do not avoid the consequences of a denial or revocation for such violations.

First, DHS is proposing to create a 1-year bar on H-2 petition approvals following an H-2A or H-2B denial or revocation based in whole or in part on prohibited fees, or following the petitioner's withdrawal of an H-2A or H-2B petition if the withdrawal occurs after USCIS issues a request for evidence or notice of intent to deny or revoke the petition on such a basis. Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8 CFR 214.2(h)(6)(i)(C).

During this 1-year period, the petitioner would be barred from approval of any H-2A or H-2B petition, regardless of whether beneficiaries are reimbursed for payment of prohibited fees. Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8 CFR 214.2(h)(6)(i)(C). 60 This proposed provision is meant to reflect the serious nature of prohibited fee violations, which are not only illegal but also harmful to H-2 workers

ring this 1-year period, the petitioner would be barred from approval of any H-2A or H-2B petition, regardless of whether beneficiaries are reimbursed for payment of prohibited fees. Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8 CFR 214.2(h)(6)(i)(C). 60 This proposed provision is meant to reflect the serious nature of prohibited fee violations, which are not only illegal but also harmful to H-2 workers. As advocacy groups have consistently noted, recruitment fees put workers at risk for exploitation because workers who incur debt to cover such fees are vulnerable to predatory lenders and are at increased risk of debt bondage, human trafficking, and other abuses. 61

60 USCIS would deny any such petition filed during this period and would not refund the filing fee. See 8 CFR 103.2(a)(1).

61 See, e.g., CDM, Recruitment Revealed 18 (2018) (“High interest rates on loans put workers at risk of becoming trapped in debt, and exploitative collateral requirements can cause workers to lose essential property, such as their vehicles or even their homes. Moreover, when workers with abusive loans arrive in the U.S. to work, they are faced with an additional pressure to earn back the money they borrowed in their country of origin.”), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; CDM, Ripe for Reform 21 (2020) (“Our surveys revealed that 26% of workers interviewed were forced to pay recruitment fees as high as $4,500. This practice makes workers vulnerable to abuse. Charging workers for the right to work is illegal and is a serious risk factor for human trafficking

ed in their country of origin.”), https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf; CDM, Ripe for Reform 21 (2020) (“Our surveys revealed that 26% of workers interviewed were forced to pay recruitment fees as high as $4,500. This practice makes workers vulnerable to abuse. Charging workers for the right to work is illegal and is a serious risk factor for human trafficking. Workers are less free to leave an abusive environment when they start the job indebted.”), https://cdmigrante.org/ripe-for-reform/; Polaris, On-Ramps, Intersections, and Exit Routes 43 (2018) (“The financial burdens of recruitment fees can be devastating in and of themselves but they are also—ironically—a necessary backdrop for trafficking to occur.”), https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf; Polaris, Labor Trafficking on Specific Temporary Work Visas 16 (2022) (“Having paid substantial fees in order to get the job—and often having gone into debt to do so—leaves workers with little choice but to try to recoup their losses regardless of the conditions in which they are working.”), https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf.

In addition, for the 3 years following the 1-year bar, DHS proposes to allow petition approval only if each affected beneficiary (or the beneficiary's designee(s), if applicable) has been reimbursed in full, with no exceptions. See proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D). Given the serious nature of prohibited fee violations and the significant harm to beneficiaries who are charged such fees, as discussed above, it would not be appropriate to allow a violator to avoid consequences merely by contacting any known addresses of affected beneficiaries or claiming inability to locate affected beneficiaries

ee proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D). Given the serious nature of prohibited fee violations and the significant harm to beneficiaries who are charged such fees, as discussed above, it would not be appropriate to allow a violator to avoid consequences merely by contacting any known addresses of affected beneficiaries or claiming inability to locate affected beneficiaries. Instead, DHS intends the expanded 3-year time period during which reimbursement would be a condition to petition approval, as well as the removal of the exception for failure to locate the beneficiary(ies), to provide a significantly stronger incentive to ensure that beneficiaries or their designees are in fact reimbursed.

The proposed provision would clarify that a petitioner may only provide reimbursement of prohibited fees to a beneficiary's designee if a beneficiary cannot be located or is deceased. Proposed 8 CFR 214.2(h)(5)(xi)(A)( 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). As this provision is not meant to create a loophole for a petitioner to avoid reimbursement of prohibited fees by not attempting to locate a beneficiary, the petitioner would need to demonstrate 1 ) and 8 CFR 214.2(h)(6)(i)(B)( 1 ). The requirement for “prior written authorization” would better ensure USCIS's ability to determine whether the petitioner in fact reimbursed the appropriate designee. The prohibition against the petitioner or its agent, employer (if different from the petitioner) or any joint employer, attorney, facilitator, recruiter, or similar employment service from acting as the designee or deriving any financial benefit, either directly or indirectly, from the reimbursement would foreclose the possibility that any of these parties could serve as a designee or would use the designee provision as a way to benefit from not reimbursing the beneficiary

rom the petitioner) or any joint employer, attorney, facilitator, recruiter, or similar employment service from acting as the designee or deriving any financial benefit, either directly or indirectly, from the reimbursement would foreclose the possibility that any of these parties could serve as a designee or would use the designee provision as a way to benefit from not reimbursing the beneficiary.

If this provision is finalized, petitioners would be expected, as a matter of best practice, to 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, to better ensure the petitioner's ability to fully reimburse the beneficiary, or the beneficiary's designee(s), for any sums the petitioner may be liable to pay the beneficiary. Petitioners would also be expected to inform the beneficiary, in a language the beneficiary understands, of the beneficiary's ability to name a designee, and obtain full designee information, early on during the recruitment process, and to maintain and update such information as needed to ensure that the petitioner has in fact complied with the reimbursement requirement.

Following a denial or revocation (or withdrawal) for prohibited fees under the proposed provisions, the maximum total period that a petitioner's H-2 petitions would be denied if the petitioner failed to fully reimburse its workers or their designees would be 4 years. DHS believes that this period is sufficient to incentivize compliance with the reimbursement requirement. DHS invites comments as to the proposed maximum 4-year bar to the approval of an H-2A or H-2B petition that would apply if the petitioner cannot demonstrate that it has in fact reimbursed the worker(s) or their designee(s) in full for any prohibited fees paid

their designees would be 4 years. DHS believes that this period is sufficient to incentivize compliance with the reimbursement requirement. DHS invites comments as to the proposed maximum 4-year bar to the approval of an H-2A or H-2B petition that would apply if the petitioner cannot demonstrate that it has in fact reimbursed the worker(s) or their designee(s) in full for any prohibited fees paid.

DHS is proposing to apply the above consequences for prohibited fees not only to the violating petitioner, but also to its successor in interest in order to prevent a petitioning entity from avoiding liability by changing hands, reincorporating, or holding itself out as a new entity. Proposed 8 CFR 214.2(h)(5)(xi)(B) and (C) and 8 CFR 214.2(h)(6)(i)(C) and (D). DHS proposes to define a successor in interest as an employer that is controlling and carrying on the business of a previous employer, regardless of whether such successor in interest has inherited all of the rights and liabilities of the predecessor entity. Proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D). DHS proposes to include the term “regardless of whether such successor in interest has succeeded to all of the rights and liabilities of the predecessor entity” in order to prevent the new entity from avoiding liability by intentionally assuming only some of the petitioner's rights and liabilities. Proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 CFR 214.2(h)(6)(i)(D) further list factors that USCIS may consider as relevant when determining whether an entity would be considered a successor in interest. As made clear in the proposed regulatory text, no one factor is dispositive, and USCIS would make a determination as to whether the entity is a successor in interest, and is therefore liable for reimbursement, based on the circumstances as a whole.

These proposed factors are similar, but not identical, to the factors listed at 8 CFR 214.2(w)(1)(xiv) for the CW-1 nonimmigrant program

in interest. As made clear in the proposed regulatory text, no one factor is dispositive, and USCIS would make a determination as to whether the entity is a successor in interest, and is therefore liable for reimbursement, based on the circumstances as a whole.

These proposed factors are similar, but not identical, to the factors listed at 8 CFR 214.2(w)(1)(xiv) for the CW-1 nonimmigrant program. They are also similar, but not identical, to the factors listed in DOL regulations for the H-2A and H-2B programs. See, e.g., 20 CFR 655.103(b); 20 CFR 655.5; 29 CFR 501.3; 29 CFR 503.4. To the extent that the proposed factors differ from the ones currently in place at 8 CFR 214.2(w)(1)(xiv) and DOL regulations, they generally flow from factors that are currently in place. For example, “Familial or close personal relationships between predecessor and successor owners of the entity” under proposed factor (ix) flows from the current factors on whether the former management or owner retains a direct or indirect interest in the new enterprise, continuity of the work force, similarity of supervisory personnel, and the ability of predecessor to provide relief. “Use of the same or related remittance sources for business payments” under proposed factor (x) flows from current factors on use of the same facilities, substantial continuity of business operations similarities, and similarities in products, services, and production methods. Furthermore, USCIS's adjudicative experience has shown the proposed factors in (ix)-(x) to be relevant when determining the relationship between entities and/or individuals.

x) to be relevant when determining the relationship between entities and/or individuals.

Finally, the proposed bars apply across both H-2 programs, meaning that an H-2B denial or revocation would trigger the bars to H-2A approval under proposed 8 CFR 214.2(h)(5)(xi)(B) and (C), and an H-2A denial or revocation would trigger the bars to H-2B approval under proposed 8 CFR 214.2(h)(6)(i)(C) and (D). Specifically, proposed 8 CFR 214.2(h)(5)(xi)(B) states that the bar would apply within 1 year after the decision denying or revoking on notice “an H-2A or H-2B petition on the basis of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), respectively, of this section” (emphasis added). Likewise, proposed 8 CFR 214.2(h)(6)(i)(C) states that the bar would apply within 1 year after the decision denying or revoking on notice “an H-2B or H-2A petition on the basis of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), respectively, of this section” (emphasis added). The additional 3-year bar at proposed 8 CFR 214.2(h)(5)(xi)(C) and (6)(i)(D) would similarly apply to both classifications whether the underlying petition that was denied or revoked for prohibited fees was an H-2A or H-2B petition. DHS is also proposing to apply the bars across both classifications in cases where a petitioner withdraws the petition after USCIS has issued a notice of intent to deny or revoke based on the H-2A or H-2B prohibited fee provisions.

2. Denial of H-2 Petitions for Certain Violations of Program Requirements

In this proposed rule, DHS, pursuant to its general authority under INA secs. 103(a) and 214(c)(1), as well as its specific authority under INA sec. 214(c)(14)(A)(ii) with respect to the H-2B program, is proposing to enhance worker protections by introducing a provision that allows for the denial of H-2 petitions for employers that have been found to have committed certain labor law violations or otherwise violated the requirements of the H-2 programs

hority under INA secs. 103(a) and 214(c)(1), as well as its specific authority under INA sec. 214(c)(14)(A)(ii) with respect to the H-2B program, is proposing to enhance worker protections by introducing a provision that allows for the denial of H-2 petitions for employers that have been found to have committed certain labor law violations or otherwise violated the requirements of the H-2 programs. See proposed 8 CFR 62 This proposed reform is an important addition in DHS's efforts to improve the integrity of the H-2 programs and to protect H-2 workers by allowing evaluation of a petitioner's past compliance with certain H-2 related laws prior to USCIS approving H-2 petitions. As noted in earlier sections, a worker's H-2 status is tied to the petitioning employer only, and worker advocates have noted that the structure of the programs makes H-2 workers vulnerable to exploitation and abuse. It is necessary, therefore, that USCIS have improved tools to properly identify and vet employers that seek to bring in H-2 workers. The consequences of bad actors participating in the H-2 programs can be extremely harmful. 63 This proposed provision reflects DHS's determination that an employer's past conduct in relation to respecting worker rights, as well as in relation to ensuring the safety and working conditions of its past or current employees, is relevant to petition eligibility as it may inform USCIS of that employer's present intent and ability to comply with H-2 laws and requirements. The phrase “H-2 laws and requirements” includes the obligations and prohibitions specifically outlined in statutes and DHS and DOL regulations

rights, as well as in relation to ensuring the safety and working conditions of its past or current employees, is relevant to petition eligibility as it may inform USCIS of that employer's present intent and ability to comply with H-2 laws and requirements. The phrase “H-2 laws and requirements” includes the obligations and prohibitions specifically outlined in statutes and DHS and DOL regulations. In addition, employers in the H-2 program are required to comply with “all applicable Federal, State, and local employment-related laws and regulations, including health and safety laws.” 64

62 As previously discussed, numerous studies and news articles have recounted instances of employers continuing to access the H-2 programs despite their respective records of labor law and/or safety violations. See, e.g., Farmworker Justice, No Way to Treat a Guest: Why the H-2A Agricultural Visa Program Fails U.S. and Foreign Workers (2012), https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf; LIUNA, H-2B Guest Worker Program: Lack of Accountability Leads to Exploitation of Workers, https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf.

63 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), https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking. Also see the examples of abuse and exploitation of H-2 workers highlighted in section III.D, Importance of the H-2 Programs and the Need for Reforms.

64 See 20 CFR 655.20(z), 29 CFR 503.16(z); see also 20 CFR 655.135(e).

The Secretary of Homeland Security's authority to deny H-2 petitions for certain past violations of program requirements is derived from the INA and the HSA. Specifically, INA sec. 214(c)(1), 8 U.S.C

abuse and exploitation of H-2 workers highlighted in section III.D, Importance of the H-2 Programs and the Need for Reforms.

64 See 20 CFR 655.20(z), 29 CFR 503.16(z); see also 20 CFR 655.135(e).

The Secretary of Homeland Security's authority to deny H-2 petitions for certain past violations of program requirements is derived from the INA and the HSA. Specifically, INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1), states that “the question of importing any [noncitizen] as a nonimmigrant under subparagraph (H) . . . of section 101(a)(15) . . . in any specific case or specific cases shall be determined by the [Secretary of Homeland Security], after consultation with appropriate agencies of the Government, upon petition of the importing employer.” 65 The same provision goes on to state, “The petition shall be in such form and contain such information as the [Secretary of Homeland Security] shall prescribe.” In addition, with respect to H-2B petitions in which DHS has found a substantial failure to meet any conditions of the petition or a willful misrepresentation of a material fact, INA sec. 214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii), states in part that the Secretary of Homeland Security, “after notice and an opportunity for a hearing” 66 . . . “may deny petitions filed with respect to that employer. . . during a period of at least 1 year but not more than 5 years. . . .”

65 See also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1).

14(a)(1), 8 U.S.C. 1184(a)(1).

66 USCIS does not read the phrase “notice and opportunity for a hearing” in INA sec. 214(c)(14) as requiring a formal hearing under 5 U.S.C. 556. USCIS therefore proposes to utilize its existing informal adjudications and appeals processes to satisfy this “notice and opportunity for a hearing” requirement. See 8 CFR 103.2, 103.3. See generally Michael Asimow, Admin. Conference of the U.S., “Federal Administrative Adjudication Outside the Administrative Procedure Act” (2019) (discussing informal adjudication), at https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outside%20the%20APA%20-%20Final.pdf.

The proposed provision is an expansion of existing regulatory authority that bars approval of H-2A petitions for 2 years after an employer or joint employer, or a parent, subsidiary, or affiliate is found to have violated INA sec. 274(a), 8 U.S.C. 1324(a) (criminal penalties for unlawfully bringing in and harboring certain noncitizens) or to have employed an H-2A worker in a position other than that described in the nonimmigrant worker petition. See 8 CFR 214.2(h)(5)(iii)(B). The existing provision at 8 CFR 214.2(h)(5)(iii)(B) is insufficient to address serious violations that occur in the H-2 programs, as it applies only to the H-2A program and does not include all of the types of violations that can be relevant to H-2 program compliance. DHS proposes to replace this existing provision with a more comprehensive provision, proposed 8 CFR 214.2(h)(10)(iii), that includes both mandatory and discretionary grounds for denial depending on the type or severity of violations, including mandatory denial based on a final determination(s) that the employer violated INA sec. 274(a), and DHS is therefore proposing to remove and reserve 8 CFR 214.2(h)(5)(iii)(B).

Additionally, under existing DHS regulations at 8 CFR 214.1(k), USCIS may deny for a period of 1 to 5 years any petition filed for nonimmigrant status under INA sec

depending on the type or severity of violations, including mandatory denial based on a final determination(s) that the employer violated INA sec. 274(a), and DHS is therefore proposing to remove and reserve 8 CFR 214.2(h)(5)(iii)(B).

Additionally, under existing DHS regulations at 8 CFR 214.1(k), USCIS may deny for a period of 1 to 5 years any petition filed for nonimmigrant status under INA sec. 101(a)(15)(H) upon the petitioner's debarment by DOL. 67 DHS would retain the provision at 8 CFR 214.1(k) and believes the addition of proposed 8 CFR 214.2(h)(10)(iii) would complement that provision, in part by allowing DHS to address instances of past labor violations that may result in the abuse or exploitation of individuals seeking to come to the United States as H-2 workers, but that may not have resulted in debarment from the H-2 programs by DOL. 68 Further, proposed 8 CFR 214.2(h)(10)(iii) would provide greater clarity to 8 CFR 214.1(k) regarding how the bar under 8 CFR 214.1(k) would be applied to H-2A and H-2B petitions, as discussed below.

67 Exceptions to the bar under 8 CFR 214.1(k) are made for status under INA secs. 101(a)(15)(H)(i)(b1), (L), (O), and (P)(i).

68 A USCIS decision to deny a petition under proposed 8 CFR 214.2(h)(10)(iii) would not preclude a debarment action by DOL.

Under proposed 8 CFR 214.2(h)(10)(iii), USCIS would have authority to deny H-2 petitions for certain past violations. The proposed provision sets out the conditions which would mandate USCIS denial, as well as instances in which USCIS would evaluate relevant factors to determine whether a discretionary denial is warranted. The violation findings set forth in proposed 8 CFR 214.2(h)(10)(iii)(A) are, by nature, so egregious and directly connected to the H-2 programs that they warrant mandatory denial

st violations. The proposed provision sets out the conditions which would mandate USCIS denial, as well as instances in which USCIS would evaluate relevant factors to determine whether a discretionary denial is warranted. The violation findings set forth in proposed 8 CFR 214.2(h)(10)(iii)(A) are, by nature, so egregious and directly connected to the H-2 programs that they warrant mandatory denial. In contrast, the conditions set forth in 8 CFR 214.2(h)(10)(iii)(B) could potentially be less egregious in nature or less directly related to the H-2 programs, and therefore, would require additional analysis before determining whether a denial is warranted. These proposed provisions are discussed in more detail in the following subsections. Note that under proposed 8 CFR 214.2(h)(10)(iii), USCIS would or could deny an H-2A petition for a violation that occurred in the H-2B program, and vice versa.

a. Mandatory Denial Based on Certain Violations

Proposed 8 CFR 214.2(h)(10)(iii)(A) states that USCIS will deny any H-2A or H-2B petition filed by a petitioner, or the successor in interest of a petitioner as that term is defined in proposed 8 CFR 214.2(h)(5)(xi)(C)( 2 ) and proposed 2 ), that has been the subject of one or more of the three actions discussed below.

First, DHS proposes mandatory denial based on a final administrative determination by the Secretary of Labor under 20 CFR part 655, subpart A or B, or 29 CFR part 501 or 503, debarring the petitioner from filing or receiving a future labor certification, or a final administrative determination by the GDOL debarring the petitioner from issuance of future labor certifications under applicable Guam regulations and rules, if the petition is filed during the debarment period, or if the debarment occurs during the pendency of the petition. See proposed 8 CFR 214.2(h)(10)(iii)(A)( 1 )

the petitioner from filing or receiving a future labor certification, or a final administrative determination by the GDOL debarring the petitioner from issuance of future labor certifications under applicable Guam regulations and rules, if the petition is filed during the debarment period, or if the debarment occurs during the pendency of the petition. See proposed 8 CFR 214.2(h)(10)(iii)(A)( 1 ). The proposed provision is consistent with the existing authority under 8 CFR 214.1(k) to deny petitions based on debarment, but provides greater clarity for H-2A and H-2B petitioners. Specifically, while 8 CFR 214.1(k) states that,

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