Proposed Rule2023-20123
Modernizing H-2 Program Requirements, Oversight, and Worker Protections
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Published
September 20, 2023
Issuing agencies
Homeland Security Department
Abstract
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.
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<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
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[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Proposed Rules]
[Pages 65040-65108]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20123]
[[Page 65039]]
Vol. 88
Wednesday,
No. 181
September 20, 2023
Part III
Department of Homeland Security
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8 CFR Parts 214 and 274a
Modernizing H-2 Program Requirements, Oversight, and Worker
Protections; Proposed Rule
Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 /
Proposed Rules
[[Page 65040]]
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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.
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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: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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. 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. 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 <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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
[[Page 65041]]
you make to DHS. DHS may withhold information provided in comments from
public viewing that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy and Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, 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:
<bullet> 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. 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.
<bullet> 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. 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.
<bullet> 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. 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
[[Page 65042]]
costs and benefits described herein are quantified (and monetized)
wherever possible given all available information. Where there are
insufficient data to quantify a given impact, we provide a qualitative
description of the impact.
Table 1--Summary of Provisions and Impacts
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Expected impact of the
Provision Purpose of proposed provision proposed provision
----------------------------------------------------------------------------------------------------------------
8 CFR 214.2(h)(5)(vi)(A) and 8 CFR DHS is proposing to add stronger language Cost:
214.2(h)(6)(i)(F). requiring petitioners or employers to <bullet> Cooperation during a
both consent to and fully comply with any site visit or compliance
USCIS audit, investigation, or other review may result in
program integrity activity and clarify opportunity costs of time
USCIS's authority to deny/revoke a for petitioners to provide
petition if unable to verify information information to USCIS during
related to the petition, including due to these compliance reviews and
lack of cooperation from the petitioner inspections. On average,
or employer during a site visit or other USCIS site visits last 1.7
compliance review. 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.
<bullet> Employers that do
not cooperate would face
denial or revocation of
their petition(s), which
could result in costs to
those businesses.
Benefit:
<bullet> 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 Cost:
workers with ``whistleblower protection'' <bullet> Employers may face
comparable to the protection currently increased RFEs, denials, or
offered to H-1B workers. 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:
<bullet> 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 DHS is proposing significant revisions to Cost:
214.2(h)(5)(xi)(C), 8 CFR the provisions relating to prohibited <bullet> Enhanced
214.2(h)(6)(i)(B), 8 CFR fees to strengthen the existing consequences for petitioners
214.2(h)(6)(i)(C), and 8 CFR prohibition on, and consequences for, who charge prohibited fees
214.2(h)(6)(i)(D). charging certain fees to H-2A and H-2B could lead to increased
workers, including new bars on approval financial losses and
for some H-2 petitions. extended ineligibility from
participating in H-2
programs.
Benefit:
<bullet> 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 Costs:
mandatory and discretionary bars to <bullet> USCIS adjudicators
approval of an H-2A or H-2B petition. 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.
<bullet> 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:
<bullet> Possibly increase
compliance with H-2 program
requirements, thereby
increasing protection of H-2
workers.
[[Page 65043]]
8 CFR 214.2(h)(2)(ii) and (iii), 8 Eliminate the lists of countries eligible Costs:
CFR 214.2(h)(5)(i)(F), and 8 CFR to participate in the H-2 programs. <bullet> None expected.
214.2(h)(6)(i)(E). Benefit:
<bullet> 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.
<bullet> Remove petitioner
burden to provide evidence
for beneficiaries from
countries not on the lists.
<bullet> Petitioners may have
increased access to workers
potentially available to the
H-2 programs.
<bullet> 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 Change grace periods such that they will Costs: \1\
214.2(h)(6)(vii)(A). be the same for both H-2A and H-2B <bullet> H-2A employers may
8 CFR 214.2(h)(11)(iv) and 8 CFR Programs. face additional costs such
214.2(h)(13)(i)(C). Create a 60-day grace period following any as for housing, but
H-2A or H-2B revocation or cessation of employers likely would weigh
employment during which the worker will those costs against the
not be considered to have failed to benefit of providing
maintain nonimmigrant status and will not employees with additional
accrue any unlawful presence solely on time to prepare for the
the basis of the revocation or cessation. start of work.
Benefit:
<bullet> 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.
<bullet> 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 Costs:
for reasonable costs of return <bullet> None expected since
transportation for beneficiaries H-2A petitioning employers
following a petition revocation. are already generally liable
for the return
transportation costs of H-2A
workers.
Benefit:
<bullet> 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 Costs:
toward becoming a lawful permanent <bullet> None expected.
resident of the United States while still Benefit:
maintaining lawful nonimmigrant status. <bullet> 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 Eliminates the ``interrupted stay'' Costs:
214.2(h)(6)(vii), and 8 CFR calculation and instead reduces the <bullet> Workers in active H-
214.2(h)(13)(i)(B). period of absence to reset an 2 status who would consider
individual's 3-year period of stay. making trips abroad for
periods of less than 60 days
but more than 45 days, may
be disincentivized to make
such trip.
.......................................... Benefit:
<bullet> Simplifies and
reduces the burden to
calculate beneficiary
absences for petitioners,
beneficiaries, and
adjudicators.
<bullet> May reduce the
number of RFEs related to 3-
year periods of stay.
.......................................... Transfers:
<bullet> 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).
[[Page 65044]]
8 CFR 214.2(h)(2)(i)(D), 8 CFR Make portability permanent for H-2B Costs:
214.2(h)(2)(i)(I), and 8 CFR workers and remove the requirement that H- <bullet> The total estimated
274a.12(b)(21). 2A workers can only port to an E-Verify annual opportunity cost of
employer. 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.
<bullet> 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.
<bullet> The total estimated
annual costs associated with
the portability provision
ranges from $133,684 to
$198,851, depending on the
filer.
<bullet> 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:
<bullet> 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.
<bullet> 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.
<bullet> 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:
<bullet> 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 Benefits:
of an H-2 portability petition is <bullet> Provides H-2 workers
considered to have been in a period of with requisite protections
authorized stay during the pendency of and benefits as codified in
the petition and that the petitioner must the rule in the event that a
still abide by all H-2 program porting provision is
requirements. withdrawn or denied.
Costs:
<bullet> None expected.
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[[Page 65045]]
Cumulative Impacts of Proposed Regulatory Changes
----------------------------------------------------------------------------------------------------------------
DHS proposes to make changes to the Form I-129, to effectuate the proposed Costs:
regulatory changes. <bullet> 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:
<bullet> 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
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\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).
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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.
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\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).
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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 . . . 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). 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.
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\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.
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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.
[[Page 65046]]
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).
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\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).
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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).
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). 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.
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\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. 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.
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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. worker is available to fill the
petitioning
[[Page 65047]]
H-2A or H-2B employer's job opportunity and whether a foreign worker's
employment in the job opportunity will adversely affect the wages and
working conditions of similarly employed workers in the United States.
See INA 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).
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\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).
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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). 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
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. 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).
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\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), <a href="https://www.uscis.gov/sites/default/files/document/memos/2013-1111_H-4_Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf">https://www.uscis.gov/sites/default/files/document/memos/2013-1111_H-4_Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf</a>.
\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).
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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
[[Page 65048]]
such as requiring that H-2 petitions be filed with a valid TLC approved
by either the DOL or GDOL, as appropriate, prohibiting the imposition
of certain fees on H-2 workers, modifying requirements to allow for
unnamed H-2 beneficiaries in the petition, and amending the definition
of ``temporary services or labor,'' among other changes.
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. 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\
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\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.
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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).
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).
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. 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:
[[Page 65049]]
fraud (such as fraud in the H-2 petition or visa application process by
nationals of the country, the country's level of cooperation with the
U.S. Government in addressing H-2-associated visa fraud, and the
country's level of information sharing to combat immigration-related
fraud); nonimmigrant visa overstay rates for nationals of the country
(including but not limited to H-2A and H-2B nonimmigrant visa overstay
rates); and non-compliance with the terms and conditions of the H-2
visa programs by nationals of the country.
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.
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\12\ See Changes to Requirements Affecting H-2A Nonimmigrants,
73 FR 76891, 76905 (Dec. 8, 2008).
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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\
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\13\ See DOS, Nonimmigrant Visas Issued by Classification
(Including Crewlist Visas and Border Crossing Cards) Fiscal Years
2007-2011, <a href="https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI">https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI</a>(B).pdf; DOS, Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years 2017-2021, <a href="https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf">https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf</a>.
\14\ See DOS, Nonimmigrant Visas Issued by Classification
(Including Crewlist Visas and Border Crossing Cards) Fiscal Years
2007-2011, <a href="https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI">https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2011AnnualReport/FY11AnnualReport-Table%20XVI</a>(B).pdf; DOS, Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years 2017-2021, <a href="https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf">https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf</a>.
\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.
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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\
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\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), <a href="https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf">https://www.govinfo.gov/content/pkg/FR-2021-02-05/pdf/2021-02561.pdf</a>; National Security Council, Collaborative
Migration Management Strategy (July 2021), <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf</a>.
\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).
\18\ See USAID, Administrator Samantha Power at the Summit of
the Americas Fair Recruitment and H-2 Visa Side Event, <a href="https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa">https://www.usaid.gov/news-information/speeches/jun-9-2022-administrator-samantha-power-summit-americas-fair-recruitment-and-h-2-visa</a> (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.'').
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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,
[[Page 65050]]
DOS, USAID, and DOL emphasized that ``[e]xpanding access to [the H-2
programs] and protecting migrant workers' rights are two aspects of the
same agenda.'' \20\
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\19\ See National Security Council, Collaborative Migration
Management Strategy, <a href="https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/07/Collaborative-Migration-Management-Strategy.pdf</a> (July 2021).
\20\ See DOS, USAID, and DOL, Guidance on Fair Recruitment
Practices for Temporary Migrant Workers (June 2022), <a href="https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/06/ILAB20220565.pdf">https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/06/ILAB20220565.pdf</a>; 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.''),
<a href="https://www.usda.gov/media/press-releases/2022/06/10/us-department-agriculture-invest-65-million-pilot-program">https://www.usda.gov/media/press-releases/2022/06/10/us-department-agriculture-invest-65-million-pilot-program</a>.
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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.\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\
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\21\ See, e.g., DHS, DHS Announces Process Enhancements for
Supporting Labor Enforcement Investigations (Jan. 13, 2023), <a href="https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations">https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations</a>.
\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), <a href="https://www.gao.gov/assets/gao-10-1053.pdf">https://www.gao.gov/assets/gao-10-1053.pdf</a>; GAO,
Increased Protections Needed for Foreign Workers (GAO-15-154)
(2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>; 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''), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; Southern Poverty
Law Center, Close to Slavery: Guestworker Programs in the United
States (2013), <a href="https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf">https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf</a>
(``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), <a href="https://files.epi.org/pdf/217871.pdf">https://files.epi.org/pdf/217871.pdf</a>.
\23\ See GAO-15-154 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>.
\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), <a href="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</a>,; 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), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>;
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),
<a href="https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf">https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf</a>.
\25\ See GAO-15-154 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>; CDM, Fake Jobs for Sale: Analyzing Fraud and Advancing
Transparency in U.S. Labor Recruitment 4 (2019), <a href="https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf">https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf</a>.
\26\ See CDM, Ripe for Reform (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>. 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), <a href="https://cdmigrante.org/wp-content/uploads/2020/09/Breaking-The-Shell.pdf">https://cdmigrante.org/wp-content/uploads/2020/09/Breaking-The-Shell.pdf</a>.
\27\ See, e.g., Polaris, Labor Trafficking on Specific Temporary
Work Visas (2022), <a href="https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf">https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf</a>; CDM, Ripe for Reform (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; Polaris, Labor Exploitation and Trafficking of
Agricultural Workers During the Pandemic 6 (2021), <a href="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</a>.
\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), <a href="https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking">https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking</a>; 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), <a href="https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican">https://www.justice.gov/opa/pr/three-defendants-sentenced-multi-state-racketeering-conspiracy-involving-forced-labor-mexican</a>; 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), <a href="https://www.dol.gov/sites/dolgov/files/SOL/files/IPI%20-%20Stop%20Work%20Order.pdf">https://www.dol.gov/sites/dolgov/files/SOL/files/IPI%20-%20Stop%20Work%20Order.pdf</a>.
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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.\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\
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\29\ See GAO-15-154, at 37-38 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>.
\30\ See GAO-15-154, at 37-38 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>; CDM, Ripe for Reform 4 (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>.
\31\ See 20 CFR 655.20(n); 655.135(h); and 29 CFR 503.16(n).
\32\ See CDM, Ripe for Reform 4 (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; CDM, Recruitment Revealed: Fundamental Flaws in
the H-2 Temporary Worker Program and Recommendations for Change 22-
24 (2018), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>.
\33\ See GAO-15-154, at 51 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>.
\34\ See GAO-15-154, at 37-38 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>; CDM, Recruitment Revealed 22-24 (2018),
<a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>; CDM, Fake Jobs for Sale, <a href="https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf">https://cdmigrante.org/wp-content/uploads/2019/04/Fake-Jobs-for-Sale-Report.pdf</a>.
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In a study conducted by migrant worker advocates, a majority of H-2
[[Page 65051]]
workers reported paying recruitment fees, even though charging
recruitment fees to such workers violates current U.S. immigration and
labor regulations.\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\
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\35\ See CDM, Recruitment Revealed 4, 16 (2018), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>.
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), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; CDM, Recruitment Revealed 4, 16
(2018), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>; GAO-15-154, at 28-29 (2015), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>.
\37\ See CDM, Ripe for Reform 16 (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>. 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), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>; CDM, Recruitment Revealed 4
(2018), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a> (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), <a href="https://files.epi.org/pdf/217871.pdf">https://files.epi.org/pdf/217871.pdf</a>
(``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), <a href="https://www.gao.gov/assets/gao-15-154.pdf">https://www.gao.gov/assets/gao-15-154.pdf</a>.
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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.\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. 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\
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\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), <a href="https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf">https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf</a>; LIUNA, H-2B Guest Worker Program:
Lack of Accountability Leads to Exploitation of Workers, <a href="https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf">https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf</a>.
\41\ See Farmworker Justice, No Way to Treat a Guest (2012),
<a href="https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf">https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf</a>.
\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), <a href="https://www.buzzfeednews.com/article/kenbensinger/the-pushovers">https://www.buzzfeednews.com/article/kenbensinger/the-pushovers</a>.
\43\ See LIUNA, H-2B Abuse by Construction and Landscaping
Companies, <a href="https://d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2-9544-bd96627e284d/067fa0a5-659f-4113-8b25-ac60c2060510.pdf">https://d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2-9544-bd96627e284d/067fa0a5-659f-4113-8b25-ac60c2060510.pdf</a>.
\44\ See, e.g., DHS, Response to Senator Ossoff letter (May 3,
2022), <a href="https://www.ossoff.senate.gov/wp-content/uploads/2022/05/DHS-Response-Blooming-Onion.pdf">https://www.ossoff.senate.gov/wp-content/uploads/2022/05/DHS-Response-Blooming-Onion.pdf</a>; DHS, For First Time, DHS to Supplement
H-2B Cap with Additional Visas in First Half of Fiscal Year (Dec.
20, 2021), <a href="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">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</a>.
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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
[[Page 65052]]
burdens such as those associated with information collected at the time
of filing and through subsequent RFEs, increase access to workers, and
improve program efficiency. Further, with respect to the H-2B program,
the proposed regulations are intended to ensure that only those
employers who comply with the requirements of the H-2B program will be
able to compete for the limited number of available cap-subject visas,
by precluding those employers who fail to demonstrate an intent to do
so from participating in the H-2B program.
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.
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\45\ See, e.g., CDM, Recruitment Revealed 16 (2018), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>;
CDM, Ripe for Reform 20 (2020), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; Polaris, Labor Trafficking on Specific Temporary Work Visas
14 (2022), <a href="https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf">https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf</a>;
Polaris, On-ramps, intersections, and exit routes: A roadmap for
systems and industries to prevent and disrupt human trafficking 41
(2018), <a href="https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf">https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf</a>; GAO-10-1053, at 4 (2010), <a href="https://www.gao.gov/assets/gao-10-1053.pdf">https://www.gao.gov/assets/gao-10-1053.pdf</a>.
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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.
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\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).
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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.\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\
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\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 <a href="https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2">https://www.dol.gov/agencies/whd/field-assistance-bulletins/2011-2</a> (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'').
\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, <a href="https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions">https://www.dol.gov/agencies/whd/fact-sheets/78d-h2b-deductions</a>.
\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.
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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
[[Page 65053]]
references to a petitioner's employee or attorney as part of the list
of individuals who may not collect prohibited fees from a
beneficiary.\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).
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\53\ See 20 CFR 655.20(o), which applies to prohibited fees by
``[t]he employer and its attorney, agents, or employees.''
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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). 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.
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\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).
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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).
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\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.
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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).
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
[[Page 65054]]
requirements of the H-2 programs, namely, collecting or taking steps
toward collecting prohibited fees. In addition, the collection or
agreement to collect a prohibited fee has the potential to harm an H-2
worker even if the fee is later reimbursed or the agreement is
cancelled prior to collection, such as by causing the worker to go into
debt related to the payment, or anticipated payment, of the fee.\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.
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\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),
<a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>.
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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. 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.
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\
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\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), <a href="https://migrationthatworks.org/reports/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse/">https://migrationthatworks.org/reports/the-american-dream-up-for-sale-a-blueprint-for-ending-international-labor-recruitment-abuse/</a>.
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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.\58\ While the
language of such a contract may be considered, additional documentation
must be provided. Relevant documentation could include evidence
[[Page 65055]]
of communications showing the petitioner inquired about the third
party's past practices and payment structure to ensure that it obtains
its revenue from sources other than the workers and/or any
documentation that was provided to the petitioner by the third party
about its payment structure and revenue sources. DHS seeks input from
the public regarding other types of evidence that may be relevant and
available to meet the proposed standard.
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\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.
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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. 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).
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\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.
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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). 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.
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\
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\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.''), <a href="https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf">https://cdmigrante.org/wp-content/uploads/2018/02/Recruitment_Revealed.pdf</a>;
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.''), <a href="https://cdmigrante.org/ripe-for-reform/">https://cdmigrante.org/ripe-for-reform/</a>; 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.''),
<a href="https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf">https://polarisproject.org/wp-content/uploads/2018/08/A-Roadmap-for-Systems-and-Industries-to-Prevent-and-Disrupt-Human-Trafficking.pdf</a>;
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.''), <a href="https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf">https://polarisproject.org/wp-content/uploads/2022/07/Labor-Trafficking-on-Specific-Temporary-Work-Visas-by-Polaris.pdf</a>.
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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. 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
[[Page 65056]]
that it made all possible efforts to locate the beneficiary, and then
after exhausting such efforts to locate the beneficiary, that it
reimbursed the appropriate designee. The proposed provision would
clarify that a beneficiary's designee(s) must be an individual(s) or
entity(ies) for whom the beneficiary has provided the petitioner or its
successor in interest prior written authorization to receive such
reimbursement on the beneficiary's behalf, as long as the petitioner or
its successor, its agent, any employer (if different from the
petitioner) or any joint employer, attorney, facilitator, recruiter, or
similar employment service would not act as such designee or derive any
financial benefit, either directly or indirectly, from the
reimbursement. Proposed 8 CFR 214.2(h)(5)(xi)(A)(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.
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.
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. 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.
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. See proposed 8 CFR
[[Page 65057]]
214.2(h)(10)(iii).\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. 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\
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\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), <a href="https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf">https://www.farmworkerjustice.org/wp-content/uploads/2012/05/7.2.a.6-No-Way-To-Treat-A-Guest-H-2A-Report.pdf</a>;
LIUNA, H-2B Guest Worker Program: Lack of Accountability Leads to
Exploitation of Workers, <a href="https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf">https://d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0e-ab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c-279c4e15ce31.pdf</a>.
\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), <a href="https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking">https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking</a>. 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).
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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. . . .''
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\65\ See also INA sec. 214(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 <a href="https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outside%20the%20APA%20-%20Final.pdf">https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outside%20the%20APA%20-%20Final.pdf</a>.
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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. 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.
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\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.
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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. 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
[[Page 65058]]
8 CFR 214.2(h)(6)(i)(D)(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 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, upon
debarment, USCIS may deny a petition ``for a period of at least 1 year
but not more than 5 years,'' proposed 8 CFR 214.2(h)(10)(iii)(A)(1)
would clarify that USCIS must deny H-2 petitions filed during the
specific debarment period set forth by DOL or GDOL, assuming a final
administrative determination as specified in proposed 8 CFR
214.2(h)(10)(iii)(A). In addition, the proposed provision clarifies
that it applies to successors in interest of the debarred petitioner,
as well as in instances when a debarment occurs while a petition is
pending before USCIS. The current language at 8 CFR 214.1(k) would
continue to govern how DOL debarment of an employer from the H-2
program would affect non-H-2 petition adjudications for petitions filed
by that employer under INA sec. 101(a)(15)(H) (except for status under
INA secs. 101(a)(15)(H)(i)(b1), (L), (O), and (P)(i)).
As the second basis for mandatory denial, DHS proposes to include
denial or revocation of a prior H-2A or H-2B petition that includes a
finding of fraud or willful misrepresentation of a material fact during
the pendency of the petition or within 3 years before the filing of the
petition. See proposed 8 CFR 214.2(h)(10)(iii)(A)(2). In order to
trigger a denial under this ground, the USCIS decision on the prior
petition must explicitly contain a finding of fraud or willful
misrepresentation of a material fact, although fraud or willful
misrepresentation of a material fact need not be the only ground(s) for
denial or revocation. Furthermore, the USCIS decision must be an
administratively final decision, meaning there is no pending
administrative appeal or the time for filing a timely administrative
appeal has elapsed.\69\ Because of the inherently serious and relevant
nature of a finding that the petitioner committed fraud or willfully
misrepresented information that was material with respect to a prior
benefit request in the H-2 programs, it is appropriate to exclude from
the program petitioners against whom USCIS has recently made such a
finding. As to how recent such a finding must be in order to impact
adjudication, DHS is proposing a 3-year timeframe as this period
captures an employer's reasonably recent activity, which is a highly
relevant consideration with respect to a petitioner's current intention
and ability to comply with program requirements. The 3-year period
generally would be sufficient to ensure that approval of an H-2
petition would not be detrimental to the rights of H-2 workers or the
integrity of the H-2 program.\70\ DHS seeks public input on the
proposed 3-year timeframe as an appropriate length of time to impose.
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\69\ See generally 8 CFR 103.3 and 8 CFR 103.4 (setting forth
the appeal process for petitioners after a decision is issued).
\70\ The 3-year period is consistent with the time period set
forth in INA sec. 214(c)(14)(A)(ii) with respect to the H-2B
classification. Since similar worker protection and program
integrity concerns apply to the H-2A program, it is appropriate to
use the same timeframe with respect to the H-2A classification.
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Third, DHS proposes mandatory denial based on a final determination
of a violation under INA sec. 274(a), 8 U.S.C. 1324(a),\71\ during the
pendency of the petition or within 3 years before filing the petition.
See proposed 8 CFR 214.2(h)(10)(iii)(A)(3). As noted above, this
proposed provision essentially incorporates and replaces the portion of
the existing provision at 8 CFR 214.2(h)(5)(iii)(B) that bars approval
of H-2A petitions if an employer is found to have violated INA sec.
274(a). It also expands upon 8 CFR 214.2(h)(5)(iii)(B) by making the
bar also applicable to H-2B petitions, applying it to successors in
interest, and extending the 2-year bar to 3 years to make the length
consistent with the length of the other proposed mandatory denial
periods. As above, DHS seeks public input on this proposed time period.
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\71\ INA sec. 274, 8 U.S.C. 1324, is titled ``Bringing in and
Harboring Certain Aliens,'' and paragraph (a) covers ``Criminal
Penalties'' within that section. INA sec. 274(a) is separate and
distinct from INA sec. 274A, 8 U.S.C. 1324a, which is titled
``Unlawful Employment of Aliens.''
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In determining whether one of the proposed mandatory grounds for
denial listed in proposed 8 CFR 214.2(h)(10)(iii)(A) is applicable to
the instant petition, USCIS would not revisit the underlying
substantive determination during adjudication of the petition. That is,
USCIS is not proposing to re-adjudicate or make an independent finding
on the merits of the underlying final administrative determination,
criminal conviction, or civil judgment against the petitioner. Rather,
following issuance of a request for evidence or notice of intent to
deny the petition and providing an opportunity for the petitioner to
respond, USCIS would determine whether such final determination,
conviction, or judgment was made against the petitioner or its
successor in interest within the specified time period. Upon a
determination that any of the proposed mandatory grounds for denial
listed in proposed 8 CFR 214.2(h)(1)(iii)(A) were triggered, USCIS
would provide notice to the petitioner indicating that the ground had
been triggered and that the petition being adjudicated as well as any
pending or subsequently filed H-2 petitions (by the petitioner or a
successor in interest) will be denied on the same basis during the
applicable time period. See proposed 8 CFR 214.2(h)(10)(iii)(E)(1). The
denial notice would also inform the petitioner of the right to appeal
the denial to USCIS's Administrative Appeals Office (AAO), including
the ability to request an oral argument pursuant to 8 CFR 103.3.\72\
Providing such notice would inform the petitioner to refrain from
filing additional H-2 petitions that would be subject to the mandatory
ground for denial, therefore saving the petitioner from paying filing
fees.
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\72\ The denial notice would also inform the petitioner of the
ability to file a motion to reopen or reconsider under 8 CFR
103.5(a). The filing of a motion would not stay the denial decision.
8 CFR 103.5(a)(1)(iv).
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b. Discretionary Denial Based on Certain Violations
In addition to the mandatory denial provision at proposed 8 CFR
214.2(h)(10)(iii)(A), discussed in the preceding subsection, DHS also
proposes a provision at 8 CFR 214.2(h)(10)(iii)(B) that would allow
USCIS to consider other past violations and authorize discretionary
denial in such cases when USCIS determines that the underlying
violation(s) calls into question the petitioner's or successor's
intention or ability to comply with H-2 program requirements. This
proposed provision states that USCIS may deny any H-2 petition filed by
a petitioner, or the successor in interest of a petitioner as defined
in proposed 8 CFR 214.2(h)(5)(xi)(C)(2) and proposed 8 CFR
214.2(h)(6)(i)(D)(2), that has been the subject of one or more of the
enumerated actions, after evaluation of
[[Page 65059]]
relevant factors listed at proposed 8 CFR 214.2(h)(10)(iii)(C). The
final administrative actions listed in proposed 8 CFR
214.2(h)(10)(iii)(B) would be limited to those that have occurred
during the pendency of the petition or within 3 years before the filing
the petition. DHS is proposing this 3-year period as such a period
captures an employer's reasonably recent activity, which is a highly
relevant consideration with respect to a petitioner's current intention
and ability to comply with program requirements. The 3-year period
generally would be sufficient to ensure that approval of an H-2
petition would not be detrimental to the rights of H-2 workers or the
integrity of the H-2 program.\73\ DHS welcomes public input on this
proposed timeframe.
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\73\ The 3-year period is consistent with the time period set
forth in INA sec. 214(c)(14)(A)(ii) with respect to the H-2B
classification. Since similar worker protection and program
integrity concerns apply to the H-2A program, it is appropriate to
use the same timeframe with respect to the H-2A classification.
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First, DHS proposes to allow USCIS to consider a discretionary
denial when the petitioner has been the subject of a final
administrative determination by the Secretary of Labor or GDOL with
respect to a prior H-2A or H-2B TLC that includes: (1) revocation of an
approved TLC under 20 CFR part 655, subpart A or B, or applicable Guam
regulations and rules; (2) DOL debarment under 20 CFR part 655, subpart
A or B, or 29 CFR part 501 or 503, or applicable Guam regulations and
rules, if the debarment period has concluded before filing the
petition; or (3) any other administrative sanction or remedy under 29
CFR part 501 or 503, or applicable Guam regulations and rules,
including assessment of civil money penalties as described in those
parts. See proposed 8 CFR 214.2(h)(10)(iii)(B)(1). This provision is
broader than proposed 8 CFR 214.2(h)(10)(iii)(A)(1) in that it
encompasses other administrative actions beyond debarment by the
Secretary of Labor or GDOL. With respect to debarment, the timing of
the debarment period is what differentiates proposed 8 CFR
214.2(h)(10)(iii)(A)(1) from proposed 8 CFR
214.2(h)(10)(iii)(B)(1)(ii). A debarment period that began during the
last 3 years but has already concluded before the filing of the H-2
petition would fall under 8 CFR 214.2(h)(10)(iii)(B)(1)(ii) and trigger
a discretionary analysis, while a debarment period that is active when
the H-2 petition is filed or while it remains pending would fall under
the mandatory denial provision at proposed 8 CFR
214.2(h)(10)(iii)(A)(1).
As the second basis for discretionary denial consideration, DHS
proposes to include a USCIS decision revoking the approval of a prior
petition that includes one or more of the following findings: the
beneficiary was not employed by the petitioner in the capacity
specified in the petition; the statement of facts contained in the
petition or on the application for a TLC was not true and correct, or
was inaccurate; the petitioner violated terms and conditions of the
approved petition; or the petitioner violated requirements of INA sec.
101(a)(15)(H) or 8 CFR 214.2(h). See proposed 8 CFR
214.2(h)(10)(iii)(B)(2). Unlike USCIS decisions that include a finding
of fraud or willful misrepresentation of a material fact, these
revocation decisions could, but would not always, be relevant to a
petitioner's intent and ability to comply with program requirements.
Inclusion of the phrase ``the beneficiary was not employed by the
petitioner in the capacity specified in the petition'' essentially
incorporates the existing provision at 8 CFR 214.2(h)(5)(iii)(B) that
bars approval of H-2A petitions for 2 years if an employer is found
``to have employed an H-2A worker in a position other than that
described in the relating petition'' and expands it to include H-2B
petitions. However, unlike current 8 CFR 214.2(h)(5)(iii)(B), which
imposes a mandatory denial, discretion is warranted when the
beneficiary was not employed by the petitioner in the capacity
specified in the petition (for instance, the beneficiary was performing
different duties or working outside the identified area of employment)
because the non-compliance could have occurred for a number of reasons,
not all of which would call into question a petitioner's intent and
ability to comply with program requirements going forward. In addition,
the proposed provision would allow consideration of other bases for
revocation as listed above that could potentially relate to a
petitioner's intent and ability to comply with program requirements.
For instance, a USCIS revocation finding that the statement of facts
contained in the petition or on the application for a TLC was not true
and correct \74\ could be based on a petitioner's confiscation and
withholding of its H-2 workers' passports, which is both unlawful and
harmful to workers,\75\ and therefore would be highly relevant to a
petitioner's prospective intent and ability to comply with program
requirements.
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\74\ See 8 CFR 214.2(h)(11)(iii)(A)(2).
\75\ As part of the TLC application process, petitioners are
required to attest that they will comply with relevant laws,
including 18 U.S.C. 1592(a), with respect to prohibitions against
confiscating workers' passports. See 20 CFR 655.20(z), 20 CFR
655.135(e); Form ETA-9142A, H-2A Application for Temporary
Employment Certification, Appendix A, and Form ETA 9142B, H-2B
Application for Temporary Employment Certification, Appendix B,
available at <a href="https://www.dol.gov/agencies/eta/foreign-labor/forms">https://www.dol.gov/agencies/eta/foreign-labor/forms</a>.
See also William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Public Law 110-457; 18 U.S.C. 1592(a).
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Third, DHS proposes to allow USCIS to consider discretionary denial
based on any final administrative or judicial determination (other than
one described in 8 CFR 214.2(h)(10)(iii)(A)) that the petitioner
violated any applicable Federal, State, or local employment-related
laws or regulations, including, but not limited to, health and safety
laws or regulations. See proposed 8 CFR 214.2(h)(10)(iii)(B)(3). This
catch-all provision is consistent with existing DOL regulations
requiring compliance with all such laws,\76\ and it recognizes that
numerous Federal agencies (such as DOL's Occupational Safety and Health
Administration (OSHA), the Department of Transportation (DOT), and
Federal courts), State agencies (such as State departments of labor,
State departments of transportation, and State courts), and local
agencies (such as those involved in setting local housing standards)
have authority in areas affecting H-2 employers and workers. While DHS
recognizes that proposed 8 CFR 214.2(h)(10)(iii)(B)(3) could be broad
in its reach, the key word ``applicable'' and phrase ``may call into
question a petitioner's or successor's intention or ability to
comply,'' would limit the scope of final determinations that USCIS may
consider relevant. For example, USCIS would likely not consider a
single de minimis OSHA violation \77\ or a single DOT violation for
poor vehicle maintenance that did not result in risk or harm to workers
as necessarily relevant to the petitioner's intention or ability to
comply with H-2A program requirements. On the other hand, if a
petitioner has, for instance, a history of serious OSHA violations for
failure to provide workers with personal protective equipment or a
history of DOT violations for poor vehicle maintenance and those
vehicles were continually used to transport the company's H-2 workers,
resulting in the death or injury of (or risk of death or
[[Page 65060]]
injury to) H-2 workers,\78\ then USCIS would likely consider those
violations relevant to the petitioner's intention or ability to comply
with H-2A or H-2B program requirements under proposed 8 CFR
214.2(h)(10)(iii)(B)(3).
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\76\ See 20 CFR 655.20(z), 20 CFR 655.135(e).
\77\ De minimis OSHA violations ``have no direct or immediate
relationship to safety and health.'' DOL, Employment Law Guide,
Safety and Health Standards: Occupational Safety and Health, <a href="https://webapps.dol.gov/elaws/elg/osha.htm">https://webapps.dol.gov/elaws/elg/osha.htm</a>.
\78\ See Ken Bensinger, Jessica Garrison, Jeremy Singer-Vine,
Buzz Feed News, The Pushovers: Employers Abuse Foreign Workers, U.S.
Says, By All Means, Hire More (May 12, 2016) (describing an example
of such an incident), <a href="https://www.buzzfeednews.com/article/kenbensinger/the-pushovers">https://www.buzzfeednews.com/article/kenbensinger/the-pushovers</a>.
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As the denials under proposed 8 CFR 214.2(h)(10)(iii)(B)(3) would
be discretionary, DHS is proposing that USCIS would determine whether
the violations may call into question the petitioner's ability or
intent to comply with H-2 program requirements by examining all
relevant factors. Proposed 8 CFR 214.2(h)(10)(iii)(C) identifies
several factors that could be relevant to the analysis and that USCIS
may therefore consider. The listed factors are not exhaustive;
additional relevant factors that are not listed in the proposed
provision may be considered by USCIS in the totality, but each one,
standing alone, would not be outcome determinative. Further, not all
factors would be relevant in all cases, and different factors may be
weighted differently depending on the circumstances of each case. Any
one of the factors, such as the egregiousness and willfulness \79\ of
the violation(s) under proposed 8 CFR 214.2(h)(10)(iii)(C)(2) and (5),
could be given significant weight in reviewing the totality of the
facts presented, even if other listed factors were absent. For example,
if the petitioner willfully committed a violation that resulted in the
death of several H-2 workers, those two factors alone (i.e.,
willfulness and egregiousness of the violation leading to the death of
the workers) could be sufficient to warrant a discretionary denial
under proposed 8 CFR 214.2(h)(10)(iii)(B), notwithstanding the absence
of other negative factors such as a prior history of violations or
achievement of financial gain.
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\79\ Note that a finding of willfulness must be explicitly
stated in the final agency determination, decision, or conviction.
USCIS would not independently make a finding of willfulness under
proposed 8 CFR 214.2(h)(10)(iii)(C)(5).
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In applying the proposed discretionary analysis, USCIS officers
would use the ``preponderance of the evidence'' standard of proof.\80\
Under this standard, the evidence must demonstrate that the
petitioner's claim that it is willing and able to comply with the
requirements of the H-2 program is ``more likely than not'' true \81\
after taking into consideration the prior violations and any relevant
factors, both negative and positive. While USCIS officers would
evaluate whether the petitioner, more likely than not, will comply with
H-2 requirements, USCIS officers would not revisit the merits of the
underlying final administrative or judicial determination against the
petitioner.
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\80\ See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010)
(``Except where a different standard is specified by law, a
petitioner or applicant in administrative immigration proceedings
must prove by a preponderance of evidence that he or she is eligible
for the benefit sought.'').
\81\ See Matter of Chawathe, 25 I&N Dec. at 376 (AAO 2010).
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When making a determination that any of the proposed discretionary
grounds for denial listed in proposed 8 CFR 214.2(h)(10)(iii)(B) were
triggered and that the analysis warrants a discretionary denial, the
USCIS denial notice would indicate that the triggering of the
discretionary ground for denial may also apply in subsequent
adjudications of pending or future H-2 petitions, depending on the
facts presented with respect to each such petition. See proposed 8 CFR
214.2(h)(10)(iii)(E)(2). The notice would also inform the petitioner of
the right to appeal the denial to the AAO, and the ability to request
oral argument pursuant to 8 CFR 103.3.\82\
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\82\ The denial notice would also inform the petitioner of the
ability to file a motion under 8 CFR 103.5(a). The filing of a
motion would not stay the denial decision. 8 CFR 103.5(a)(1)(iv).
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Providing such notice would enable the petitioner to consider the
impact of the discretionary denial on future H-2 petition
adjudications. It is the intention of DHS that the petitioner or the
petitioner's successor in interest will take corrective actions to
bring itself into, and continue to remain in, compliance with H-2
program requirements. Under this proposal, USCIS would take into
consideration any such corrective action in subsequent adjudications of
H-2 petitions filed by the petitioner or a petitioner's successor in
interest. See proposed 8 CFR 214.2(h)(10)(iii)(C)(8). During the
discretionary denial period, USCIS would consider all of the relevant
factors in each separate adjudication when exercising its discretion
under proposed 8 CFR 214.2(h)(10)(iii)(B).
c. Convictions and Determinations Against Certain Individuals
For the purposes of the mandatory and discretionary denials
discussed above, DHS proposes to state that a criminal conviction or
final administrative or judicial determination against certain
individuals will be treated as a conviction or final administrative or
judicial determination against the petitioner or successor in interest.
The proposed regulatory text clarifies that this would include
convictions and determinations against a person who is acting on behalf
of the petitioning entity, which could include, among others, the
petitioner's owner, employee, or contractor. The proposed regulatory
text would further clarify that, with respect to discretionary denials
under proposed 8 CFR 214.2(h)(10)(iii)(B), this would also include
convictions and determinations against any employee of the petitioning
entity who a reasonable person in the H-2A or H-2B worker's position
would believe is acting on behalf of the petitioning entity. See
proposed 8 CFR 214.2(h)(10)(iii)(D).
Because an employer can rightfully be expected to exercise due
diligence over its employees or contractors acting on its behalf, it
would not be appropriate to allow petitioners to avoid liability merely
because an individual acting on the entity's behalf, rather than the
entity itself, was the subject of the final administrative or judicial
action. Indeed, some of the most egregious violations, such as those
resulting in criminal convictions, involve actions against individuals
in addition to any separate actions against the business entity that
may be listed as petitioner on an H-2A or H-2B petition. For instance,
a recent high-profile investigation into egregious violations in the H-
2A program resulted in criminal convictions of several individuals
related, in part, to human trafficking and forced labor committed
against H-2 workers.\83\ To the extent that convicted individuals acted
in their capacity on behalf of petitioning employers and resulted in
violations of H-2 program requirements, such misconduct is entirely
relevant to the adjudication of future petitions by the petitioning
employers or their successors. Whether the denial of future petitions
would be mandatory or discretionary under the proposed regulation would
depend on the nature of the specific convictions or final
administrative or judicial actions. In other words, the mandatory bar
would apply if the relevant individual was the subject of one or more
actions listed in proposed 8 CFR 214.2(h)(10)(iii)(A), and USCIS would
have the ability to deny as
[[Page 65061]]
a matter of discretion if the relevant individual was the subject of
one or more actions listed in proposed 8 CFR 214.2(h)(10)(iii)(B).
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\83\ See 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, <a href="https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking">https://www.justice.gov/usao-sdga/pr/three-men-sentenced-federal-prison-charges-related-human-trafficking</a>
(Mar. 31, 2022).
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Furthermore, for the purposes of discretionary denials under
proposed 8 CFR 214.2(h)(10)(iii)(B), proposed 8 CFR
214.2(h)(10)(iii)(D)(2) would include convictions and determinations
against ``an employee of the petitioning entity who a reasonable person
in the H-2A or H-2B worker's position would believe is acting on behalf
of the petitioning entity.'' Because employers can rightfully be
expected to exercise due diligence over its employees, it would not be
appropriate to allow petitioners to avoid liability merely by claiming
that an employee was not acting on the petitioner's behalf. At the same
time, to guard against the risk that the petitioner be liable for any
and all unauthorized actions of their employees, this liability would
apply only if a reasonable person in the worker's position would
believe that the employee was acting on behalf of the petitioning
entity. In addition, because liability for this population would be
limited to
[…truncated; see source link]Indexed from Federal Register on September 20, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.