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On September 20, 2023, DHS published a notice of proposed rulemaking (NPRM) in which proposed several changes to modernize and reform the H-2A and H-2B nonimmigrant worker programs. Specifically, the NPRM incorporates new policies that if finalized would produce program efficiencies, address current aspects of the program that may have unintentionally resulted in exploitation or other abuse of persons seeking to come to this country as H-2A and H-2B workers, builds upon existing protections against prohibited payments or other assessment of fees and/or salary deductions by H-2A and H-2B employers in connection with recruitment and/or H-2 employment, and otherwise adds protections for workers. DHS has not proposed any changes that would revise the temporary labor certification process or the regulations contained in 20 CFR part 655 or 29 CFR part 501 and 503. The public comment period closes November 20, 2023, and DHS will review the comments received during the comment period and in accordance with the instructions contained in the NPRM before issuing any future final rule.

Statement of Need:

This rulemaking is needed to enhance protections for workers and better ensure the integrity of the H-2A and H-2B programs. In addition, this proposed rule is necessary to improve H-2 program efficiencies and remove certain barriers to program access.

Summary of the Legal Basis:

The Immigration and Nationality Act (INA) charges the Secretary of Homeland Security with the administration and enforcement of the immigration laws and provides that the Secretary shall establish such regulations and perform such other acts as he deems necessary for carrying out his authority under the INA. See INA section 103(a)(1),(3), 8 U.S.C. 1103(a)(1), (3). In addition, the Homeland Security Act of 2002 charges the Secretary with establishing and administering rules governing the granting of visas or other forms of permission to enter the United States to individuals who are not a citizen, or an alien lawfully admitted for permanent residence in the United States. See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 202(4). Congress established the H-2A and H-2B nonimmigrant classifications in INA section 101(a)(15)(H)(ii)(a) and (b), 8 U.S.C. 1101(a)(15)(H)(ii)(a) and (b). With respect to nonimmigrants in particular, the INA provides that the 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. See INA section 214(a)(1), 8 U.S.C. 1184(a)(1). The INA also tasks DHS with approving petitions filed by the importing employers of nonimmigrants, including those in the H nonimmigrant visa classification, before a nonimmigrant visa may be granted. See INA section 214(c)(1), 8 U.S.C. 1184(c)(1).

Anticipated Costs and Benefits:

In the published proposed rule, DHS estimates annualized costs of rule range from $1,998,572 to $2,668,028 at a 3-percent discount rate and $2,186,033 to $2,915,885 at a 7-percent discount rate. In addition, the total annualized transfers (from consumers to a limited number of H-2A and H-2B workers) amount to $2,918,958 in additional earnings at the 3-percent and 7-percent discount rate and related total tax transfers of $337,122. Fees paid for Form I-129 and premium processing as a result of the proposed rule’s portability provision constitute a transfer of $636,760 from petitioners to USCIS (3 and 7-percent annualized equivalent).