January 31, 2025

Summary: How Does DHS’ Final Rule Impact H-2B Visas?

The Department of Homeland Security (“DHS”) released a final rule pertaining to the H-2 visa program that became effective on January 17, 2025. The following is a summary of the final rule’s key impacts on H-2B visas.

Worker Flexibilities

  1. Extended Grace Periods - The final rule modifies the admission periods prior to and after an approved petition’s validity dates (also known as grace periods), such that H-2B workers will have valid status for a maximum of 10 days before the petition is valid and a maximum of 30 days after the petition expires. The pre-existing grace period of 30 days is expanded to 60 days after revocation of an approved petition. During this time, an H-2B worker can pursue new qualifying employment or take steps to depart the U.S. (with no loss of status or accrual of unlawful presence). In consideration of other circumstances involving stopping work or pursuing new employment, DHS is also permitting a new grace period of 60 days maximum for an H-2B worker to stop working for their petitioner (and maintain status). This is a meaningful improvement from the prior 10-day grace period, which limited the ability of certain employees to pursue change of employers (“transfers”).

  2. Portability - The Final Rule permanently instates “portability” to H-2B workers. Portability allows an H-2B worker to change employers and begin the new employment as soon as the H-2B petition is filed with USCIS, instead of when the petition is approved. To benefit from portability, the H-2B employee must be in H-2B status and the current period of stay must be still valid at the time of filing. The new job offer can be from either the same employer that filed the petition or another employer following the H-2B petition filing.

  3. H-2 Validity Period: Reduction of out Country Absence to Reset the 3-Year Maximum Period of Stay - The Final Rule abolishes the “interrupted stay” measure and decreases the time needed restart the 3-year period of stay. Previously, an H-2B worker who held such status for 3 years had to wait 3 uninterrupted months outside the U.S. before being eligible for readmission under H-2 status. Now, a worker can restart the 3-year period of stay after just 60 days outside of the U.S. Instead of counting specific absences toward an “interrupted stay” (in order to exclude this time from the 3-year period of stay), the 3-year period of stay will restart after 60 days of uninterrupted absence regardless of the worker’s accumulated stay in the U.S.

  4. Seeking Permanent Residence Alone is Not a Basis for Denial of H-2 Benefits - The Final Rule clarifies that seeking lawful permanent resident status will not, standing alone, be the basis for denying an H-2 benefit. The Final Rule does not, however, exempt an H-2 worker from the statutory requirement to have a residence in a foreign country with no intention of abandoning, nor from the requirement that the worker be coming temporarily to the U.S. to perform H-2 services or labor.

  5. Eligible Country Lists Eliminated - To improve efficiency and reduce barriers to use of the H-2 programs, the Final Rule removes the eligible country lists from the H-2A and H-2B programs. After the proposed rule was published, DHS published the new Fee Rule that went into effect on April 1, 2024, which replaced the regulatory language allowing grouping of an unlimited number of H-2A and H-2B beneficiaries on a single nonimmigrant petition and imposed a limit of 25 named beneficiaries. Therefore, in addition to amending the language to remove the reference to the eligible country list, the Final Rule is amended to reflect the changes made by the Fee Rule.

USCIS Compliance Reviews and Inspections

Employers or petitioners must consent to and fully comply with USCIS audits, investigations, and other program integrity activities.

  1. Inspection ScopeMay involve site visits, interviews, or correspondence and apply to both pre- and post-adjudication petitions.
  2. Enforcement: USCIS may deny or revoke a petition if information cannot be verified, such as in a case where an employer or petitioner is uncooperative during a compliance review.
  3. Impacts on EmployersInspections may require 1.7 hours of time on average, potentially affecting productivity. However, cooperation reduces inconclusive results and supports program integrity.
  4. BenefitsGreater USCIS authority and cooperation improve fraud detection, benefiting domestic workers, compliant petitioners, and H-2 workers.

The new Form I-129 contains an additional attestation, requiring employers to notify within 2 workdays if: an H-2A/H-2B worker does not report for work within 5 workdays after the employment start date stated on the petition; the agricultural labor or services for which H-2A/H-2B workers were hired is completed more than 30 days early; or the H-2A/ H-2B worker does not report for work for a period of 5 consecutive workdays without the consent of the employer or is terminated prior to the completion of agricultural labor or services for which he or she was hired.

Whistleblower Protections.

The final rule creates whistleblower protections for H-2B workers that are similar to those available to H-1B workers. Under such whistleblower protections, an H-1B worker who meets certain conditions (including experiencing retaliation for reporting a labor condition application violation) may qualify for “extraordinary circumstances” treatment, which may lead to discretionary excusal of failure to maintain status or of loss of status.

  1. ScopeProtects workers reporting employer violations from retaliation and allows USCIS to address cases of extraordinary circumstances.
  2. ImpactsEncourages reporting of violations, potentially improving working conditions, though the extent of cooperation is uncertain.
  3. Costs to EmployersMay face RFEs, denials, or other actions if whistleblower reports reveal non-compliance, resulting in potential losses in productivity and profits.
  4. BenefitsEnhances transparency and compliance, fostering better conditions for both U.S. and noncitizen workers.

Clarifications in the Final Rule on the Prohibitions Against Charging H-2 Fees

The Final Rule is reinforcing the prohibition against and consequences of charging specific fees to H-2B workers and clarifies which costs must be borne by the H-2 employer and which may be the responsibility of the H-2 workers. Costs for the exclusive benefit of the workers, such as passport application or renewal costs, may be the workers’ responsibility. H-2 employers may allow workers initially to pay certain costs for which the employer is legally responsible, such as for transportation to the worksite, and later reimburse the workers, if permitted by law.

  1. Collecting Fees: Collecting fees is prohibited not only from the H-2 worker beneficiary but also anyone acting on the worker’s behalf. Payment or reimbursement to a designee of the H-2 worker is appropriate when such beneficiaries cannot be located or are deceased. Such designee payment or reimbursement is not limited only to fee collected by the H-2 employer but also includes prohibited fees collected by the employer’s agent, attorney, employer, facilitator, recruiter, or similar employment service, or any joint employer.
  2. Breach of Contract Fees: The Final Rule prohibits breach of contract fees and penalties whereby H-2 employers cannot impose monetary or non-monetary penalties on workers or anyone acting on their behalf for a contract breach. In response to public comment, the Final Rule affirms 20 CFR 655.20(y) regarding H-2B employers’ obligations when the H-2B worker voluntarily terminates employment and indicates in the Final Rule that the agency does not interpret that section as a breach of contract penalty.
  3. Extraordinary CircumstancesThe Final Rule clarifies the Extraordinary Circumstances standard by stating that H-2 employers must demonstrate “ongoing, good-faith, reasonable efforts” to prevent or identify prohibited fee collections, replacing “significant efforts” language in response to public comment. Employers must act promptly to learn of any violation and remedy such violations once discovered.
  4. Due DiligenceThe Final Rule clarifies Due Diligence by stating that H-2 employers must make reasonable, good-faith efforts to prevent and identify prohibited fee collections by third parties, including agents, attorneys and recruiters. Immediate action is required by H-2 employers to remedy violations once identified.

Consequences for Violations of the Final Rule

  1. Denial PeriodsThe Final Rule provides for the application of “Denial Periods” rather than “approval bars” with mandatory one (1) year and three (3) year periods in which USCIS will deny petitions filed on or after the effective date of the Final Rule by petitioners determined to have violated the prohibitions against charging fees.
  2. Mandatory GroundsThe Final Rule provides for the application of Mandatory Grounds for denial in certain instances. Petitions will be automatically denied if the petitioner has committed serious violations such as fraud, misrepresentation, or significant breaches of labor laws. These mandatory grounds are designed to ensure that only compliant employers can participate in the H-2 programs.
  3. Discretionary GroundsThe Final Rule provides for the application of Discretionary Grounds for denial, on a case-by-case assessment. DHS will have the discretion to deny petitions based on a range of factors, including the severity and nature of past violations. Discretionary grounds for denial will allow for a nuanced approach, assessing each case individually to determine if the petitioner should be allowed to participate in the H-2 programs. The Final Rule allows for contextual evaluation whereby discretionary denials are applicable when past violations are less severe but still concerning. DHS will evaluate the context and details of the violations to decide whether the petitioner should be allowed to continue participating in the H-2 programs.