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DHS/USCIS RIN: 1615-AC76 Publication ID: Fall 2023 
Title: Modernizing H-2 Program Requirements, Oversight, and Worker Protections 

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.

Agency: Department of Homeland Security(DHS)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: Undetermined  Unfunded Mandates: No 
CFR Citation: 8 CFR 214    8 CFR 274a     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 8 U.S.C. 1103(a)(3)    8 U.S.C. 1001(a)(15)(H)(ii)(a) and (b)    8 U.S.C. 1184(a), (c) and (g)    8 U.S.C. 1324a   
Legal Deadline:  None

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).

Action Date FR Cite
NPRM  09/20/2023  88 FR 65040   
NPRM Comment Period End  11/20/2023 
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: None 
Small Entities Affected: Businesses  Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL:   Public Comment URL:  
RIN Data Printed in the FR: Yes 
Agency Contact:
Charles Nimick
Chief, Business and Foreign Workers Division, Office of Policy and Strategy
Department of Homeland Security
U.S. Citizenship and Immigration Services
5900 Capital Gateway Drive, Suite 4S190,
Camp Springs, MD 20588-0009
Phone:240 721-3000