Rule2024-29353
Modernizing H-2 Program Requirements, Oversight, and Worker Protections
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Homeland Security Department
Abstract
The Department of Homeland Security (DHS) is amending its regulations affecting temporary agricultural (H-2A) and temporary nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their employers. This rulemaking is intended to better ensure the integrity of the H-2 programs and enhance protections for workers.
Full Text
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 103202-103335]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29353]
[[Page 103201]]
Vol. 89
Wednesday,
No. 243
December 18, 2024
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; Final Rule
Federal Register / Vol. 89 , No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 103202]]
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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, Department of
Homeland Security (DHS).
ACTION: Final rule.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations affecting temporary agricultural (H-2A) and temporary
nonagricultural (H-2B) nonimmigrant workers (H-2 programs) and their
employers. This rulemaking is intended to better ensure the integrity
of the H-2 programs and enhance protections for workers.
DATES: This final rule is effective January 17, 2025.
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. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of Major Provisions of the Regulatory Action
D. Costs and Benefits
II. Background
A. Description of the H-2 Nonimmigrant Classifications
1. H-2A Temporary Agricultural Workers
2. H-2B Temporary Nonagricultural Workers
III. Changes in the Final Rule
A. Changes to Provisions Related to Payment of Fees, Penalties,
or Other Compensation by H-2 Beneficiaries
1. Clarification of Acceptable Reimbursement Fees
2. Prohibiting Breach of Contract Fees and Penalties
3. Similar Employment Services
4. Extraordinary Circumstances Standard
5. Due Diligence Standard
6. Application of the Prohibited Fee Provisions, and 1- and 3-
Year Denial Periods
B. Application of Mandatory Grounds for Denial
C. Application of Discretionary Grounds for Denial
D. Discretionary Grounds for Denial
E. Conforming Changes To Align With the USCIS Fee Schedule Final
Rule
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
B. General Feedback on the Proposed Rule
1. General Support for the Rule
2. General Overview of Comments Opposing the Rule
3. Other General Feedback Regarding the Rule
C. Legal Authority and Background
1. DHS/USCIS Legal Authority
2. H-2 Program Background
D. Program Integrity and Worker Protections
1. Payment of Fees, Penalties, or Other Compensation by H-2
Beneficiaries
2. Mandatory and Discretionary Denials for Past Violations
3. Compliance Reviews and Inspections
4. Whistleblower Protection
E. Worker Flexibilities
1. Grace Periods/Admission Periods
2. Transportation Costs for Revoked H-2 Petitions
3. Portability and Extension of Stay Petitions
4. Effect on an H-2 Petition of Approval of a Permanent Labor
Certification, Immigrant Visa Petition, or the Filing of an
Application for Adjustment of Status or an Immigrant Visa
5. Removal of ``Abscondment,'' ``Abscond,'' and Its Other
Variations, and Notification to DHS
F. Program Efficiencies and Reducing Barriers to Legal Migration
1. Eligible Countries Lists
2. Eliminating the ``Interrupted Stay'' Calculation, Reducing
the Period of Absence for Resetting the 3-Year Stay Clock
G. Severability
H. Input on Future Actions/Proposals for Beneficiary
Notification
I. Other Comments Related to the Rule or H-2 Programs/
Requirements
1. Alternatives and Other General Comments on the Proposed Rule
2. Implementation
3. Employer/Petitioner Requirements, Processes, and Fees
4. Validity Period and 3-Year Maximum Period of Stay
J. Statutory and Regulatory Requirements
1. Administrative Procedure Act (APA)
2. Regulatory Impact Analysis (RIA) (E.O. 12866 and E.O. 13563)
K. Out of Scope
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
1. Summary of Major Provisions of the Regulatory Action
2. Summary of Costs and Benefits of the Final Rule
3. Summary of Comments Related to the Regulatory Impact Analysis
and Associated Responses
4. Background and Purpose of the Rule
5. Population
6. Cost-Benefit Analysis
B. Regulatory Flexibility Act (RFA) C. Unfunded Mandates Reform
Act of 1995 (UMRA)
D. Congressional Review Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
H. National Environmental Policy Act (NEPA)
I. Paperwork Reduction Act (PRA)
Table of Abbreviations
AAO--Administrative Appeals Office
APA--Administrative Procedure Act
BLS--Bureau of Labor Statistics
CBP--U.S. Customs and Border Protection
CEQ--Council on Environmental Quality
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
ELIS--Electronic Immigration System
ETA--Employment and Training Administration
FAM--Foreign Affairs Manual
FDNS--Fraud Detection and National Security Directorate
FR--Federal Register
FRFA--Final Regulatory Flexibility Analysis
FTE--Full-time equivalent
FY--Fiscal year
GAO--Government Accountability Office
GDOL--Guam Department of Labor
HR--Human Resources
HSA--Homeland Security Act of 2002
H-2A--Temporary Agricultural Workers Nonimmigrant Classification
H-2B--Temporary Nonagricultural Workers Nonimmigrant
Classification
ICE--U.S. Immigration and Customs Enforcement
IEFA--Immigration Examinations Fee Account
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRFA--Initial Regulatory Flexibility Analysis
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
OMB--Office of Management and Budget
OSHA--Occupational Safety and Health Administration
PRA--Paperwork Reduction Act
[[Page 103203]]
RFA--Regulatory Flexibility Act of 1980
RFE--Request for evidence
RIA--Regulatory Impact Analysis
SBA--Small Business Administration
TFR--Temporary final rule
TLC--Temporary labor certification
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
WHD--Wage and Hour Division
I. 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 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. Legal Authority
The Immigration and Nationality Act (INA or the Act) sec.
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 \1\ 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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\1\ 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 rule can be found in various
provisions of the immigration laws, including but not limited to INA
sections 103(a), 8 U.S.C. 1103(a), and 214, 8 U.S.C. 1184.\2\ 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).
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\2\ The broad authority under INA sections 103(a), 8 U.S.C.
1103(a)(3), and 214, 8 U.S.C. 1184, applies with respect to all of
the provisions of this final rule, regardless of whether this
authority is explicitly referenced in responses to specific public
comments on any of the provisions of this final rule.
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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). In addition, 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). Furthermore, 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. 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 of and identify
information necessary to adjudicate 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
(DOL) and Agriculture (USDA), and cross-references INA sec. 218, 8
U.S.C. 1188.
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\3\ Although several provisions of the INA discussed in this
final rule 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, 586 U.S. 392, 397 n.2 (2019).
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Section 214(c)(14) of the INA, 8 U.S.C. 1184(c)(14), provides the
Secretary of Homeland Security with the authority to impose, ``in
addition to any other remedy authorized by law,'' such administrative
remedies (including civil monetary penalties) as the Secretary
``determines to be appropriate'' and to 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 under INA sec.
214(c)(14)(A)(i) to determine violations and impose administrative
remedies, including civil monetary penalties, and any other remedy
authorized by law. See INA sec. 214(c)(14)(B), 8 U.S.C.
1184(c)(14)(B).\4\ 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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\4\ 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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Section 291 of the INA, 8 U.S.C. 1361, establishes that the
petitioner or applicant for a visa or other immigration document bears
the burden of proof with respect to eligibility and inadmissibility,
including that a noncitizen is entitled to the immigration status being
sought.
C. Summary of the Major Provisions of the Regulatory Action
This final rule includes the following major changes:
<bullet> Program Integrity and Worker Protections
To improve the integrity of the H-2 programs, DHS is making
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 bases for denial
for some H-2 petitions.\5\ 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 instituting certain mandatory and discretionary grounds for denial
of an H-2A or H-2B petition. In addition, to protect workers who report
their
[[Page 103204]]
employers for program violations, DHS is providing H-2A and H-2B
workers with ``whistleblower protection'' comparable to the protection
that is currently offered to H-1B workers. Additionally, DHS is
clarifying requirements for petitioners and employers to consent to,
and fully comply with, USCIS compliance reviews and inspections. DHS is
also clarifying USCIS' 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.
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\5\ DHS is making a change from the NPRM in how it refers to
these new bases for denial, referring to the new 1- and 3-year
periods following a petition denial or revocation for a prohibited
fee as denial periods rather than as bars on approval.
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<bullet> Worker Flexibilities
This final rule makes 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 be
considered maintaining valid H-2 status for a period of up to 10 days
prior to the petition's validity period and up to 30 days following the
expiration of the petition. In addition, the final rule provides for an
extension of the existing 30-day grace period to a period of up to 60
days 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 H-2 status or
accruing unlawful presence. Further, to account for other situations in
which a worker may unexpectedly need to stop working or wish to seek
new employment, DHS is providing 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.
Additionally, in a change meant to work in conjunction with the new
grace period provisions, DHS is permanently providing portability--the
ability to begin new employment with the same or new employer upon the
proper filing of an extension of stay petition rather than only upon
its approval--to H-2A and H-2B workers. Furthermore, in the case of
petition revocations, DHS is clarifying that H-2A employers have the
same responsibility that H-2B employers have for reasonable costs of
return transportation for the beneficiary. DHS also is clarifying that
H-2 workers will not be considered to have failed to maintain their H-2
status and will not have H-2 petitions filed on their behalf denied
solely on the basis of taking certain steps mentioned in this rule
toward becoming lawful permanent residents of the United States.
Finally, DHS is removing 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 is making two changes to improve the efficiency of the H-2
programs and to reduce barriers to use of those two programs. First,
DHS is removing 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 is simplifying 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.
D. Costs and Benefits
This final rule will 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 incurred by certain petitioners
who are selected for a compliance review, petitioners that face
stricter consequences for charging prohibited fees, and/or those that
opt to transport and house H-2A beneficiaries earlier than they would
have otherwise based on the extension of the H-2A pre-employment grace
period from 7 to 10 days. The Federal Government may also incur
increased opportunity costs of time for adjudicators to review
information regarding debarment and other past violation determinations
more closely and to issue requests for evidence (RFE) or notices of
intent to deny (NOID), as well as additional costs for related computer
system updates.
The benefits of this final rule will be diverse, though most are
difficult to quantify. The final rule will 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 will also benefit from the extended
grace periods and from eliminating the interrupted stay provisions and
instead reducing the period of absence out of the country to reset
employees' 3-year maximum period of stay. The Federal Government,
employers, and U.S. and noncitizen workers will 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 detailed summary of the provisions in this rule
and their impacts. The impact of the 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.
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II. Background
A. 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 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). USCIS cannot approve petitions for H-2A workers
unless the Secretary of Labor has certified that there are not
sufficient able, willing, qualified, and available U.S. workers who are
capable of performing such services or labor, and H-2A employment will
not adversely affect the wages and working conditions of workers in the
United States. See INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a); INA sec. 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR
214.2(h)(5)(ii).\7\
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\6\ DHS initially proposed this provision as new 8 CFR
214.2(h)(10)(iii). See Modernizing H-2 Program Requirements,
Oversight, and Worker Protections, 88 FR 65040 (Sept. 20, 2023).
Because a separate DHS final rule, Improving the H-1B Registration
Selection Process and Program Integrity, 89 FR 7456 (Feb. 2, 2024)
has since added a subparagraph within 8 CFR 214.2(h)(10), the
provision of this final rule will now be new 8 CFR 214.2(h)(10)(iv).
\7\ DHS regulations provide that an H-2A petition must be
accompanied by a Temporary Labor Certification (TLC) from DOL, which
serves as DHS's consultation with DOL with respect to these
requirements. See 8 U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(i)(A).
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As noted in INA sec. 101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a), 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.'' 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
[[Page 103210]]
be found in this country.'' INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). H-2B workers may not displace qualified,
available U.S. workers who are capable of performing such services or
labor, and H-2B employment may not adversely affect the wages and
working conditions of workers in the United States. See INA sec.
101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see also 8 CFR
214.2(h)(6)(i).\8\ 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).
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\8\ DHS regulations provide that an H-2B petition must be
accompanied by an approved TLC from DOL or from the Guam Department
of Labor (GDOL) for H-2B workers who will be employed on Guam, which
serves as DHS's consultation with DOL or GDOL with respect to these
requirements. 8 CFR 214.2(h)(6)(iii)(A), (C)-(E), (h)(6)(iv)(A),
(h)(6)(v).
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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,\9\ 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,\10\ 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.\11\ 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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\9\ Since 2017, Congress has authorized up to an additional
64,716 visas when the Secretary of Homeland Security, after
consultation with the Secretary of Labor, determines that the needs
of American businesses cannot be satisfied in a given fiscal year
with United States workers who are willing, qualified, and able to
perform temporary nonagricultural labor. For example, on September
25, 2024, Congress passed the FY 2025 authority, Public Law 118-83,
which the President signed the next day. This law extends
authorization under the same terms and conditions provided in
section 105 of Division G, Title I of the FY 2024 Omnibus permitting
the Secretary of Homeland Security to increase the number of H-2B
visas available to U.S. employers in FY 2025, and expires on
December 20, 2024.
\10\ 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)(A) and 8 CFR 214.2(h)(2)(iii).
The spouse and children of H-2B workers, classified as H-4
nonimmigrants, also do not count against the cap. See INA 214(g)(2)
and 8 CFR 214.2(h)(8)(ii). Additionally, until December 31, 2029,
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 the Northern Mariana Islands or Guam. See Public Law
108-287, sec. 14006, 118 Stat. 951, 1014 (Aug. 5, 2004); Northern
Mariana Islands U.S. Workforce Act of 2018, Public Law 115-218, sec.
3, 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.
\11\ 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 ran from October 1, 2022,
through September 30, 2023.
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III. Changes in the Final Rule
Following careful consideration of public comments received, this
final rule adopts the regulatory text proposed in the notice of
proposed rulemaking (NPRM), Modernizing H-2 Program Requirements,
Oversight, and Worker Protections, 88 FR 65040, published in the
Federal Register on September 20, 2023, with some changes. DHS retains
the rationale for the proposed rule and the reasoning provided in that
rule, except as described in the preamble of this final rule. Section
IV of this preamble includes a detailed summary and analysis of the
comments and presents DHS's responses to those comments.
A. Changes to Provisions Related to Payment of Fees, Penalties, or
Other Compensation by H-2 Beneficiaries
1. Clarification of Acceptable Reimbursement Fees
In the NPRM, DHS explained that 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.
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 and would, therefore,
permissibly be considered the responsibility of the worker. To simplify
the language related to acceptable reimbursement fees and to clarify
that the exception only applies to costs that are truly for the
worker's benefit, proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) would have replaced 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.'' As mentioned in the NPRM, this
language was 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).
In response to public comments requesting additional clarity on
this topic, DHS is finalizing the proposed language about costs that
are the responsibility and primarily for the benefit of the worker and
further revising 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B)
to add: ``This provision does not prohibit employers from allowing
workers to initially incur fees or expenses that the employers are
required to subsequently reimburse, where such arrangement is
specifically permitted by, and performed in compliance with, statute or
regulations.'' \12\ Adding this language clarifies that, under certain
conditions, the employer can reimburse the worker after the worker
initially pays costs that are the employer's responsibility (such as
certain transportation costs), and that this would not be considered a
collection of a prohibited fee. This change to specify when an employer
may make reimbursements to the beneficiary for a cost that is
ultimately the employer's responsibility complements the regulatory
text as proposed and finalized in 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) regarding reimbursements from the beneficiary. That
language specifies that the prohibited fee provisions do not prohibit
petitioners and third parties from receiving reimbursement from the
beneficiary for costs that are the responsibility of and primarily for
the benefit of the worker, such as government-required passport fees.
---------------------------------------------------------------------------
\12\ See, e.g., 20 CFR 655.20(j)(2) (``The employer must pay or
reimburse the worker in the first workweek for all visa, visa
processing, border crossing, and other related fees (including those
mandated by the government) incurred by the H-2B worker . . .'').
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[[Page 103211]]
2. Prohibiting Breach of Contract Fees and Penalties
DHS is adding text to the proposed provisions at 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B) to clarify that a
prohibited fee may not be collected from a beneficiary ``or any person
acting on the beneficiary's behalf.'' This revision responds to public
comment in that it strengthens the proposed language in the NPRM
prohibiting the charging of breach of contract fees by barring non-
monetary penalties or penalties imposed on a worker or anyone acting on
behalf of the worker.
3. Similar Employment Services
Based on feedback from commenters requesting greater clarity with
respect to the phrase ``similar employment services,'' DHS is amending
its proposed provisions at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to clarify that ``similar employment service refers
to any person or entity that recruits or solicits prospective
beneficiaries of the [H-2] petition.'' This clarification addresses
commenters' feedback as to what ``similar employment services'' means.
4. Extraordinary Circumstances Standard
In response to public comments, DHS is making several changes to 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) to clarify the
standards under which a petitioner will be held accountable for its own
prohibited fee-related violations or those of its employees. These
changes include removing the proposed ``rare and unforeseeable''
language, as this phrase was always meant to specifically explain
``extraordinary circumstances'' and not create another standard
separate and apart from ``extraordinary circumstance.'' DHS is also
removing the proposed ``To qualify for this exception'' language
because this phrase was intended only to refer to the ``extraordinary
circumstances'' exception, not to create another exception. In
addition, new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) requires the petitioner to demonstrate that it
``made ongoing, good faith, reasonable efforts to prevent and learn of
the prohibited fee collection or agreement by its employees throughout
the recruitment, hiring, and employment process'' instead of
``significant efforts to prevent prohibited fees prior to the
collection of or agreement to collect such fees.'' These changes
clarify what was meant by ``significant''; moreover, they clarify the
petitioner's obligation to not only prevent prohibited fees before the
collection of or agreement to collect such fees occurs, but also to
prevent and learn of any collection or agreement to collect such fees
on an ongoing basis given that such fees could be collected or agreed
upon at various points in time during the recruitment, hiring, or
employment process. DHS is also deleting duplicative language about the
petitioner's obligation to fully reimburse all affected beneficiaries.
5. Due Diligence Standard
In response to public comments, DHS is making several changes at 8
CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2) to clarify 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. Specifically,
DHS is foregoing the proposed ``did not know and could not, through due
diligence, have learned'' language and instead requiring the petitioner
to demonstrate ``ongoing, good faith, reasonable efforts to prevent and
learn of the prohibited fee collection or agreement by such third
parties throughout the recruitment, hiring, and employment process.''
This is not intended to be a substantive change, but instead is
intended to clarify what DHS meant by ``due diligence'' and to better
align the regulatory language at 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) which also requires the same ``ongoing, good
faith, reasonable efforts.'' Further, new 8 CFR 214.2(h)(5)(xi)(A)(2)
and 8 CFR 214.2(h)(6)(i)(B)(2) require the petitioner to take immediate
remedial action as soon as it becomes aware of the payment of or
agreement to pay the prohibited fee, which was missing from these
provisions as proposed in the NPRM. The only difference in the
evidentiary requirements at new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1), compared to new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8
CFR 214.2(h)(6)(i)(B)(2), is that prohibited fee-related violations by
the petitioner or its employees, unlike those by third parties, will
require an additional showing that extraordinary circumstances beyond
the petitioner's control resulted in its failure to prevent collection
or entry into agreement for the collection of prohibited fees in order
to avoid denial or revocation of an H-2 petition on notice.
6. Application of the Prohibited Fee Provisions, and 1- and 3-Year
Denial Periods
As discussed in response to public comments, DHS is clarifying in
this final rule how it will apply the revised provisions governing the
collection of or agreement to collect prohibited fees. Namely, the
denial or revocation of H-2 petitions under the provisions of this
final rule will apply only to petitions filed on or after the effective
date of this rule. New 8 CFR 214.2(h)(5)(xi)(A)(1)-(2) and 8 CFR
214.2(h)(6)(i)(B)(1)-(2). Similarly, DHS is clarifying that the 1-year
and 3-year additional denial periods of H-2 petitions based on the
denial or revocation of petitions for collection or agreement to
collect prohibited fees will apply in cases where the denial or
revocation of the H-2 petition was made on a petition filed on or after
the effective date of this final rule. New 8 CFR 214.2(h)(5)(xi)(B)-(C)
and 8 CFR 214.2(h)(6)(i)(C)-(D). Petitions filed before the effective
date of this final rule will be subject to the provisions in place
before this final rule. DHS has made edits to the relevant regulatory
provisions to ensure consistent application and transparency for the
public.
7. Clarifying When a Designee May Be Reimbursed
DHS is adding language at new 8 CFR 214.2(h)(5)(xi)(A)(2) and
(C)(1), and new 8 CFR 214.2(h)(6)(i)(B)(2) and (D)(1), to clarify that
a beneficiary's designee may be reimbursed only if the affected
beneficiary(ies) cannot be located or is (are) deceased. These are
clarifying, non-substantive changes. While proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) contained the
clarifying clause ``only if such beneficiaries cannot be located or are
deceased,'' DHS never intended for this to apply only when the
prohibited fee was collected by the petitioner pursuant to proposed 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1). To better
ensure parity in the regulations, DHS is adding the same or similar
clause to the other prohibited fee provisions addressing a prohibited
fee collection or agreement by an agent, attorney, employer,
facilitator, recruiter, or similar employment service, or any joint
employer at new 8 CFR 214.2(h)(5)(xi)(A)(2) and (C)(1), and new 8 CFR
214.2(h)(6)(i)(B)(2) and (D)(1).
B. Application of Mandatory Grounds for Denial
DHS is clarifying in this final rule and discussing in more detail
in response to
[[Page 103212]]
public comments how it will apply the new mandatory grounds for denial.
With respect to denials based on final administrative
determinations made by the Secretary of Labor or the Governor of Guam
to debar the petitioner, USCIS will deny a petition pursuant to new 8
CFR 214.2(h)(10)(iv)(A)(1) if it is filed during the debarment period
or if the debarment occurs during the pendency of the petition, as
proposed in the NPRM. 88 FR 65040, 65057-58 (Sept. 20, 2023). This
final rule adds language clarifying that this provision will only apply
if the petition is filed on or after the effective date of the rule and
the final administrative determination to debar the petitioner is
issued on or after the effective date of the rule.
Similarly, as proposed in the NPRM, USCIS will deny petitions
pursuant to new 8 CFR 214.2(h)(10)(iv)(A)(2) if a finding of fraud or
willful misrepresentation of a material fact was included in the
initial denial or revocation of a prior petition if such decision was
issued during the pendency of the petition or within 3 years prior to
filing the petition. 88 FR 65040, 65058 (Sept. 20, 2023). This final
rule rephrases the provision for clarity and adds language specifying
that this provision will only apply if the final denial or revocation
decision is made on a prior petition filed on or after the effective
date of the rule.
When it comes to mandatory denials based on violations of INA sec.
274(a) under new 8 CFR 214.2(h)(10)(iv)(A)(3), USCIS will deny
petitions if there is a final determination of violation(s) under
section 274(a) of the Act during the pendency of the petition or within
3 years prior to filing the petition, as proposed in the NPRM. 88 FR
65040, 65058 (Sept. 20, 2023). This final rule adds language clarifying
that this provision will only apply if the final determination of
violation(s) under section 274(a) of the Act is made on or after the
effective date of the rule and if the petition is filed on or after the
effective date of the rule.
C. Application of Discretionary Grounds for Denial
DHS will apply the discretionary grounds for denial under new 8 CFR
214.2(h)(10)(iv)(B), as proposed in the NPRM. 88 FR 65040, 65058-60
(Sept. 20, 2023). This final rule adds language clarifying that this
provision will apply to petitions filed on or after the effective date
of this final rule, regardless of whether the action(s) or the
violation(s) underlying the determination of violation(s) of the
discretionary grounds for denial occurred before, on, or after the
effective date of this final rule.
D. Discretionary Grounds for Denial
In response to comments, DHS is adding new 8 CFR
214.2(h)(10)(iv)(F) to state that, if USCIS has determined in the
course of a previous adjudication that a petitioner (or the preceding
entity, if the petitioner is a successor in interest) has established
its intention and ability to comply with H-2A or H-2B program
requirements notwithstanding relevant violation determinations under
paragraph (h)(10)(iv)(B), USCIS will not seek to deny a subsequent
petition under paragraph (h)(10)(iv)(B) of this section based on the
same previous violation(s) unless USCIS becomes aware of a new material
fact (such as a repeat of the previous violation(s)) or if USCIS finds
that its previous determination was based on a material error of law.
At 8 CFR 214.2(h)(10)(iv)(B), DHS is making non-substantive changes
to replace ``or'' with ``and/or'' to clarify that USCIS may deny a
petition if the petitioner (or successor in interest) has not
established its ``intention and/or ability to comply with H-2A or H-2B
program requirements.'' Consistent with the NPRM, the petitioner must
demonstrate that it has both the intent and ability to comply with H-2
program requirements, and USCIS can deny a petition under this ground
if the petitioner has not established either its intent to comply with
H-2A or H-2B program requirements, or its ability to comply with H-2A
or H-2B program requirements, or both.
E. Conforming Changes To Align With the USCIS Fee Schedule Final Rule
As DHS proposed to eliminate the eligible countries lists from 8
CFR 214.2(h)(5)(i)(F) and 214.2(h)(6)(C), DHS also proposed to remove a
reference to the eligible countries list from 8 CFR 214.2(h)(2)(ii)
which, at the time of the NPRM, allowed an unlimited number of H-1C, H-
2A, H-2B, and H-3 beneficiaries to be requested on a single
nonimmigrant petition. After the publication of the NPRM, DHS published
the Fee Schedule Final Rule (``Fee Rule'') on January 31, 2024, and
that rule went into effect on April 1, 2024. 89 FR 6194. Most
relevantly, the Fee Rule replaced the language in 8 CFR 214.2(h)(2)(ii)
allowing the grouping of an unlimited number of H-1C, H-2A, H-2B, and
H-3 beneficiaries on a single nonimmigrant petition and imposed a limit
of 25 named beneficiaries. Therefore, in addition to amending the
language in final 8 CFR 214.2(h)(2)(ii) to remove the reference to the
eligible country list, this provision has been amended to reflect the
change made by the Fee Rule.
F. Severability
In the severability clause contained in this final rule, DHS has
identified the second level paragraphs (for example, (h)(6)) in which
the severable amended provisions contained in this final rule can be
found. These references along with the date of the final rule are
intended to better identify the severable provisions and differentiate
them from the existing provisions in 8 CFR 214.2 that are not being
impacted by this final rule.
IV. Response to Public Comments on the Proposed Rule
A. Summary of Comments on the Proposed Rule
DHS received a total of 1,944 public comment submissions in Docket
USCIS-2023-0012 in response to the NPRM. Of the submissions, 223 were
unique submissions, 1,714 were form letter copies, 3 were duplicate
submissions, 1 was out of scope, 2 were foreign language submissions,
and 1 was a partial foreign-language submission. The majority of
comment submissions originated from individual or anonymous commenters,
including attorneys and individual employers or farmers. Other
commenters included companies, trade and business associations,
advocacy groups, professional associations, unions, research
organizations, Federal elected officials, State or local government
agencies, farming or agricultural entities, a religious organization,
and a foreign government. While the great majority of comment
submissions (1,844) were supportive of the rule, some commenters (7)
expressed general opposition to the rule, and many commenters (87)
offered mixed feedback, such as by providing both support for and
opposition to various provisions of the proposed rule throughout their
comment, or by generally providing support or opposition but with
suggested revisions.
B. General Feedback on the Proposed Rule
1. General Support for the Rule
a. Positive Impacts on Nonimmigrants/Workers/Noncitizens,Their
Communities, and Support Systems
Comment: Approximately 1,850 submissions, including a large form
letter campaign, discussed the proposed rule's positive impacts on H-2
beneficiaries, their communities, and support systems.
[[Page 103213]]
A few individual commenters endorsed USCIS' efforts to advance
protections and flexibilities for H-2 workers on the basis that such
measures would be responsive to the needs of nonimmigrants and their
support systems. Numerous commenters, including individual commenters,
unions, joint submissions, advocacy groups, and a group of Federal
elected officials, stated that the proposed rule would address long-
standing issues of abuse, exploitation, and trafficking among H-2
workers by allowing workers to leave an abusive employer in search of
outside opportunities, enhancing enforcement against retaliation, and
protecting visa status for those seeking lawful permanent residence.
Several individual commenters added that the proposed rule's efforts to
provide flexibility and protections for H-2 workers would enhance
workers' well-being and rights, as well as reporting practices.
Similarly, a few individual commenters stated that the changes to
nonimmigrant worker protections would represent a positive step towards
equality and addressing health equity disparities by ensuring proper
compensation, appropriate physical conditions, legal protections, and
equal rights and opportunities relative to U.S. citizens.
Several individual commenters, including an advocacy group, and a
couple of joint submissions provided examples of abusive and
exploitative behavior--such as what was seen in ``Operation Blooming
Onion,'' \13\ employer retaliation against workers for protesting
hazardous conditions, and other anecdotes from H-2 workers that they
said showed the need for increased protections, including those
proposed in the NPRM. A couple of individual commenters wrote that with
the increase in extreme heat resulting from climate change, H-2 workers
need further protection.
---------------------------------------------------------------------------
\13\ 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) (involving
forced labor, keeping workers in substandard conditions, kidnapping,
and rape, among other abuses), <a href="https://www.justice.gov/usao-sdga/pr/">https://www.justice.gov/usao-sdga/pr/</a>
three-men-sentenced-federal-prison-charges-related-human-
trafficking.
---------------------------------------------------------------------------
Numerous individual commenters and a form letter campaign stated
that DHS has a responsibility to protect workers' rights, as H-2
workers help to provide food for the U.S. public, serve as the
``backbone'' of the U.S. agricultural industry, help U.S. society
function, and as a result, strengthen U.S. national security. The form
letter campaign added that the proposed rule would ``not only protect
the rights and dignity of farm workers but also contribute to the
welfare and security of [the] nation's agricultural workforce.''
Several individual commenters and a trade association commented that
implementing measures to protect H-2 workers while ensuring their fair
treatment would align with U.S. and agriculture industry values. An
individual commenter added that farm workers are vital members of
communities they work and live in, and that strengthened protections
would benefit local, regional, and national communities.
A couple of individual commenters and a couple of joint submissions
including one from a union and numerous advocacy organizations stated
that domestic farm workers' labor conditions are undermined by the
exploitation of H-2 workers, highlighting the necessity of the proposed
rule. An individual commenter stated that the proposed rule
demonstrates DHS's commitment to listening to those working in the
agriculture industry, including unions and organizations that represent
migrant and non-English speaking agriculture workers. A joint
submission from a union and numerous advocacy organizations contained
comments from H-2 workers voicing support for the proposed rule changes
on the basis that it would improve their job security and working
conditions, and allow them to better provide for their families.
Response: DHS appreciates public commenters' general support for
this rulemaking and for the Department's ongoing efforts to advance
protections and flexibilities for H-2 workers. As discussed earlier,
DHS is cognizant of the importance of temporary nonimmigrant workers
for agricultural and nonagricultural employers and of the positive
impacts these workers contribute to local and regional economies in the
United States. DHS agrees with the general support of the majority of
commenters that the changes adopted in this rule will help to reduce
the H-2A and H-2B programs' vulnerabilities and better ensure the
rights and dignity of H-2 workers.
b. Positive Impacts on Employers/Petitioners/Farmers, Employment
Service Providers, Workforce, Industry, and Economy
Comment: Approximately 10 submissions discussed the proposed rule's
positive impacts on petitioners, employment service providers, the U.S.
workforce, U.S. industries related to the H-2 program, and the U.S.
economy.
An individual commenter expressed support for the proposed rule's
efforts to streamline the petition process for employers, reasoning
that these measures would reduce administrative and financial burdens
for employers while increasing program efficiency and accessibility.
Several commenters provided feedback on the potential positive
impacts the proposed rule would have on the U.S. agricultural workforce
and labor conditions for U.S. workers. Some individual commenters
stated that H-2 workers are essential for the well-being of the U.S.
economy and agriculture industry as they alleviate domestic workforce
shortages, and stated that as a result, the protections put forth in
the proposed rule are needed. Other individual commenters also voiced
support for the proposed rule on the basis that their farming
operations would benefit from their employees being able to stay for
temporary H-2A employment.
Response: DHS appreciates these commenters' support and their
recognition of the positive impacts the proposed rule would have to the
agricultural industry and the efforts to improve the Department's
administration of the H-2 programs. In addition to the rule's focus on
providing workers with better labor protections and increased
flexibility, streamlining the process for requesting temporary
nonimmigrant workers through reducing administrative and financial
burdens is a positive change for both employers and their employees.
c. Positive Impacts on the Government, Program Operability, and
Integrity
Comment: Approximately 10 unique submissions, including a form
letter campaign, discussed the proposed rule's impacts on the
government, program operability, and integrity.
Several commenters, including multiple advocacy groups, a joint
submission from a union, a form letter campaign, and a group of Federal
elected officials, endorsed the proposed rule's measures to improve
program oversight and enforcement, reasoning that these provisions
would deter misconduct by employers and recruiters while ensuring the
integrity and quality of H-2 programs. Other commenters, including an
advocacy group, a union, the form letter campaign, and joint
submissions, also expressed support for the proposed rule on the
grounds that it would create needed accountability and transparency in
the H-2 programs. A business association provided additional feedback
that the proposed changes would streamline requirements
[[Page 103214]]
between H-2A and H-2B programs, helping USCIS make the those program
more effective and efficient overall.
Multiple commenters, including a joint submission, advocacy groups,
a union, the form letter campaign, and a group of Federal elected
officials, stated that the proposed rule complemented DOL H-2 program
initiatives in making needed program integrity improvements and
enhancing DOL and DHS combined capabilities to protect workers from
exploitation.
Response: The Department appreciates the commenters' support for
the changes finalized in this rule and agrees that the new provisions
herein will have a positive impact on the effort to increase
programmatic efficiency, integrity, and accountability. As demonstrated
by the changes first proposed in the NPRM, and by those adopted as
final in this rule, DHS is committed to efforts that will better
protect workers from exploitation and deter misconduct by employers and
recruiters.
2. General Overview of Comments Opposing the Rule
a. Lack of Need for the Rule
Comment: An individual commenter expressed opposition to the rule
on the basis that there is no need for the proposed changes. In
addition to citing ``obstructive'' costs that will ``fall on general
taxpayer[s],'' the commenter reasoned that DOL already provides a
system of protection for temporary workers.
Response: DHS declines to revise the proposed rule in response to
this comment. The commenter does not identify any specific costs to
general taxpayers or offer data to support the claims of such costs
being ``obstructive.'' The commenter does not contest any of the
Government Accountability Office (GAO) studies or media reports of
abuse of H-2 workers occurring under current regulations that this rule
is designed to curtail. Further, while DOL provides protection for
temporary workers consistent with its authority and available
resources, the changes in this rule are intended to complement DOL
regulations to provide a more comprehensive framework for worker
protections.
b. Negative Impacts on Employers/Petitioners/Farmers, Employment
Service Providers, Workforce, Industry, and Economy
Comment: Approximately 10 submissions discussed the proposed rule's
potential negative impacts on petitioners, employment service
providers, the U.S. workforce, U.S. industries relevant to the H-2
programs, and the U.S. economy.
An individual commenter stated their concern that the proposed rule
could impact the availability and diversity of H-2 workers by deterring
employers from participating or causing them to pass costs to workers.
In support of this position, the commenter cited examples of proposals
that are not included in either the proposed rule or this final rule,
such as increasing filing fees, limiting the number of H-2B visas
available each fiscal year, and excluding certain occupations from the
H-2B program. In a separate comment, a research organization
acknowledged the new flexibilities the NPRM provided for workers but
stated that it does not make use of all the legal authorities available
and does not include any effort to streamline the process for
employers. The commenter expressed concern that the increased costs
would cause employers to leave the program and would lead to more
undocumented immigration and unauthorized employment.
Some commenters expressed concern that the proposed rule would
unfairly target employers who are largely compliant with labor laws and
regulations, with multiple associations and an individual commenter
stating that the Department's approach signals a belief that most
employers are acting in violation of labor laws and that the proposed
rule would debar good faith employers for minor infractions. In
addition, one of the trade associations stated that 80 to 90 percent of
H-2 workers return to previous employers and many refer friends and
family as indication that a majority of petitioners are compliant with
labor laws and treat workers fairly.
In addition, other commenters expressed concern over the general
costs that the proposed rule would have on employers. A trade
association cited statistics on increases in domestic worker wages that
have necessitated employers' reliance on the H-2 program, and stated
that without a dependable workforce and a predictable and stable wage
rate, farmers are making difficult decisions about the crops they grow
and may be forced out of business. An individual commenter expressed a
general, vague concern that the proposed rule ``would have a negative
impact on my farm and the local, healthy food we produce,'' without
further explaining the nature of the claimed negative impacts. Another
individual commenter expressed concern that with the ``lengthy'' list
of regulations both DHS and DOL have released in recent years, the new
proposed rule would complicate farmers' ability to hire the workers
they need in an already complex system. The commenter concluded that
broadening DHS's authority to come onto farmers' property with
``unfettered access'' to employees for interviews without a farmer or
agent present ``worr[ies] American farmers,'' and urged USCIS to ``find
solutions rather than create more problems.'' Another individual
commenter repeated these concerns and added that the ``stringent''
nature of the disciplinary process would exceed State requirements for
employers discharging U.S. workers, exacerbating disparities in
employment law. Referencing the Department's statement on the purpose
of the proposed regulation, a State agency voiced opposition to the
proposed changes to the H-2 programs, reasoning that such changes would
confuse entities in the agricultural industry and increase the
likelihood that they will violate labor laws in the future.
Response: While certain clarifying revisions that DHS has made in
this final rule may address some of the commenters' concerns as
discussed below, DHS is not making changes to the proposal in direct
response to these comments. While a commenter identifies higher fees
for filing petitions and certifications, this rule (both as proposed
and finalized) does not include any higher filing fees. The concern
from this commenter that employers would pass any costs on to workers
is not persuasive as employers are already prohibited from passing
costs to workers and this rule imposes new consequences on employers
who pass those prohibited costs to workers. With respect to limiting
which occupations qualify for H-2B visas, this rule did not remove any
occupations from H-2B eligibility. While DHS appreciates a commenter's
interest in streamlining the process, the commenter's broad
characterization of the H-2 process as being complicated and time-
consuming does not address the specific provisions contained in this
regulation. Among other things, the commenter offers no support in
speculating that extra costs imposed by this rulemaking will inevitably
cause employers to leave the program and result in more immigrants
working without documentation. DHS considered potential costs of this
rule and consequences to employers, such as impacts of site visits and
time estimates for these administrative visits, lost productivity due
to whistleblower revelations, and completing filings for
[[Page 103215]]
porting H-2 workers, and determined that the benefits of the proposed
provisions, as outlined in various parts of this rule, outweighed any
costs.
DHS also maintains that the rule does not unfairly target compliant
employers with loyal employees who return annually and refer their
friends and family or, as the commenter characterizes it, ``debar''
good faith employers for minor infractions. As discussed below, and in
the NPRM, this final rule is not punitive in nature, rather, it is
adjudicative in nature, and, as is extensively explained throughout
this preamble, intended to enhance the integrity of the H-2 program for
the benefit of good faith employers and their workers alike, and to
protect H-2 workers from exploitation and other abuses.
DHS nonetheless is revising the proposed due diligence language
regarding third parties' collection of prohibited fees to minimize
negative impacts on responsible employers who make ongoing, good faith,
reasonable efforts to prevent prohibited fees. Further, as explained
below, mandatory denial is reserved for final determinations involving
very specific egregious conduct, while discretionary denial occurs only
if USCIS has determined, taking into account the totality of the
circumstances and the factors outlined in the proposed regulations,
that the petitioner or successor has not established its intention or
ability to comply with H-2 program requirements. Moreover, DHS is
adding new 8 CFR 214.2(h)(10)(iv)(F) to assure petitioners with past
violations who have established their intention and ability to comply
with H-2A or H-2B program requirements in the course of USCIS'
adjudication of a previously filed H-2 petition that USCIS will not
seek to deny a subsequently filed petition under the discretionary
denial provisions of this final rule based on the same violation(s),
unless USCIS becomes aware of a new material fact or finds that its
previous determination was based on a material error of law.
Regarding concerns about increased wages, DHS reiterates that this
rulemaking does not address worker wages, which is an issue that
broadly falls within the jurisdiction of DOL.
DHS acknowledges that employers will need time to familiarize
themselves with the new regulations, which is why the final rule
clarifies that DHS will apply certain provisions in a manner that
balances the strong interest in enhancing H-2 program integrity and
protection of H-2 workers with, as discussed below, the interest in
providing petitioners with notice of new future effects applicable to
certain conduct. DHS has determined that the benefits of the rule,
including increased worker protections and flexibility as well as
program integrity, outweigh time costs to employers. Finally, DHS notes
that this rule does not create any new labor laws, which are under the
jurisdiction of DOL or other labor agencies.
3. Other General Feedback Regarding the Rule
a. General Feedback Without Stating Support or Opposition to the
Proposed Rule
Comment: An individual commenter provided remarks on labor abuses
in the H-2A visa program without stating a position on the proposed
rule. The commenter expressed the need to address concerns around abuse
and power imbalances through congressional action and comprehensive
immigration reform.
Response: DHS appreciates the commenter's concerns with the
vulnerabilities of H-2 workers and would implement any legislative
changes Congress might make. DHS, however, maintains that it has the
authority to improve the program under current laws as expressed in the
proposed rule and this final rule.
C. Legal Authority and Background
1. DHS/USCIS Legal Authority
a. Congressional Intent and Statutory Authority
Comment: Some commenters contended that DHS exceeded its authority
to make some of the proposed changes. A joint submission from former
DHS senior officials stated that, under the auspices of efficiency,
equity, and ease of the administrative process, the proposed rule
contradicts congressional authority and direction, makes semantic and
substantive changes to undermine immigration enforcement, and removes
one of our strongest defenses against the ``illegal job magnate
[sic].'' However, other commenters, a group of Federal elected
officials, stated that, in creating the H-2 programs, Congress struck a
``delicate balance'' between ensuring that industries have available
workers and that employers in those industries maintain a standard
level of protections, rights, and working conditions for those workers.
The commenters said this rulemaking effectuates congressional intent
for the H-2 programs by protecting vulnerable workers and holding
employers accountable. A union stated that DHS has the necessary
statutory authority to implement the proposed rule. Specifically, the
commenter quoted section 103(a) of the INA and section 402 of the HSA
as granting DHS broad authority to implement the regulations
contemplated in the NPRM. Citing case law, the commenter said courts
have consistently characterized section 103(a) of the INA as a broad
delegation of authority to the Secretary of Homeland Security. The
commenter further quoted section 214(c)(14) of the INA as granting the
Secretary specific authority to impose penalties on employers for ``a
substantial failure to meet any of the conditions of the petition,''
INA sec. 214(c)(14)(A)(i), 8 U.S.C 1184(c)(14)(A)(i), as well as the
authority to deny or approve petitions for foreign temporary workers,
INA sec. 214(c)(14)(A)(ii), 8 U.S.C. 1184(c)(14)(A)(ii). A form letter
campaign stated that the rule would create flexibility inherent in
DHS's immigration authority. The commenter said the proposed changes
complement the improvements created by the DOL H-2 rule by utilizing
the distinct authority of DHS to address abuses against farm workers.
Response: DHS agrees with commenters who indicated that DHS has
broad statutory authority to implement the changes proposed in the NPRM
through this final rule.\14\ DHS set out the legal authority for the
proposed changes in the NPRM in the Legal Authority section of the
preamble at 88 FR 65040, 65045 (Sept. 20, 2023), and has specifically
addressed the legal authority for the proposed changes in the sections
pertaining to those changes. Section 214(a)(1) of the INA, 8 U.S.C.
1184(a)(1), provides DHS with the authority to prescribe conditions for
the admission of nonimmigrants, and section 214(c)(1) of the INA, 8
U.S.C. 1184(c)(1), establishes the nonimmigrant petition process as a
prerequisite for obtaining H-2A or H-2B status (among others). Further,
section 274A(a)(1), 8 U.S.C. 1324a(a)(1), prohibits employment of
noncitizens who are not authorized for employment. Section
214(c)(14)(A) of the INA, 8 U.S.C. 1184(c)(14)(A), authorizes the
Secretary of Homeland Security to impose administrative remedies and to
[[Page 103216]]
deny H-2B petitions for a period of at least 1 but not more than 5
years based on the substantial failure to meet any of the conditions of
the H-2B petition or willful misrepresentation of a material fact in
the H-2B petition. Section 214(c)(14)(B) of the INA, in turn,
authorizes the Secretary to delegate to the Secretary of Labor the
authority Congress provided to DHS under section 214(c)(14)(A)(i) to
determine violations and impose administrative remedies, including
civil monetary penalties. In addition to these specific statutory
authorities, sec. 103(a) of the INA, 8 U.S.C. 1103, provides the
Secretary general authority to administer and enforce the immigration
laws and to issue regulations necessary to carry out that authority.
Further, sec. 402 the HSA, 6 U.S.C. 202, charges the Secretary with
broad authority to establish and administer rules governing the
granting of visas or other forms of permission to enter the United
States and establishing national immigration enforcement policies and
priorities.
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\14\ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2263
(2024) (``In a case involving an agency, of course, the statute's
meaning may well be that the agency is authorized to exercise a
degree of discretion. Congress has often enacted such statutes. For
example, some statutes `expressly delegate' to an agency the
authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to fill up the details of a
statutory scheme, or to regulate subject to the limits imposed by a
term or phrase that leaves agencies with flexibility, such as
`appropriate' or `reasonable.' '') (cleaned up).
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In this final rule, DHS similarly addresses the sources of its
legal authority in the Legal Authority section. DHS is also addressing
questions and comments regarding its authority to make specific changes
in the respective sections of this rule. For example, DHS has
specifically addressed comments challenging its authority to revise 8
CFR 214.2(h)(16)(ii) to preclude denials of a nonimmigrant visa
petition solely on the basis of the filing of a permanent labor
certification or immigrant visa petition for that beneficiary in
Section IV.E.4, Effect on an H-2 Petition of Approval of a Permanent
Labor Certification, Immigrant Visa Petition, or the Filing of an
Application for Adjustment of Status or an Immigrant Visa, in the
subsection titled Opposition on the Basis of Legal Authority of this
final rule. In addition, in Section IV. D. 3.a. Legal Authority for
Compliance Reviews and Inspections, DHS also at length addresses
comments challenging the USCIS Fraud Detection and National Security
Directorate (FDNS) authority to conduct compliance reviews and
inspections.
DHS disagrees with the commenters asserting that DHS lacks
authority to implement the changes proposed in the NPRM, including the
mandatory and discretionary grounds for denial. Contrary to the
commenters' assertion, and as noted in the NPRM, the mandatory and
discretionary denial provisions best ensure the integrity of the H-2
programs and the protection of H-2 workers from exploitation and other
abuses based on and consistent with the statutory authorities discussed
above. DHS also disagrees that its proposed changes undermine
immigration enforcement and remove defenses against unauthorized
immigration and employment. To the contrary, the changes proposed in
the NPRM and finalized in this rule strike a balance between improving
the H-2 programs for workers and their U.S. employers while also
furthering program integrity. First, this final rule does not alter
DHS's authority to deny petitions, as is provided in sections 103(a),
214(a)(1), 214(c)(1), and 214(c)(14)(A)(ii) of the INA. Also, a number
of the changes made through this rulemaking facilitate lawful
participation in the H-2 programs. For example, and as discussed in
more detail elsewhere in this rule, H-2 portability, harmonizing grace
periods and periods of admission, removing the filing of a permanent
labor certification/immigrant visa petition as a sole impediment to
temporary petition approval, all in different ways help workers to find
new H-2 employment and/or to timely depart the United States while
maintaining their status. These protections in turn encourage workers,
who may seek to enter the United States, to go through the proper
channels of the temporary H-2 program and work for employers who need
temporary H-2 workers. Similarly, H-2 workers who may face an
unexpected cessation of employment or are exposed to adverse work
environment that merits a revocation of the petition would not be faced
with potentially finding other work without work authorization and/or
accruing unlawful presence that could result in future bars to entry,
which in turn might create the possibility that workers who are unable
to participate in the program may opt to enter the United States via
unauthorized means. Finally, contrary to the assertion by some
commenters that this final rule ``undermines'' immigration enforcement,
this final rule does not in any way limit the ability of DOL, pursuant
to the authority DHS has delegated to DOL under section 214(c)(14)(B)
of the INA, to impose appropriate civil monetary penalties and other
administrative remedies, or any other remedy authorized by law. This
final rule also does not limit the ability of U.S. Immigration and
Customs Enforcement (ICE) to engage in worksite enforcement or enforce
employment authorization rules.
Comment: A couple of trade associations said some proposed
enforcement changes appear to conflict with current law or lack legal
authority altogether. These commenters said DHS has proposed to
implement investigative and enforcement authority that conflicts with
DOL's investigative and enforcement authority in the H-2A and H-2B
programs, and fails to acknowledge the existing legal investigative and
enforcement structure. A couple of commenters, including one of the
trade associations and an individual commenter stated that the
Secretary of Homeland Security has delegated all of DHS's H-2B
enforcement authority to DOL. Citing case law, the individual commenter
stated that since this redelegation has been unchanged, the
investigative and enforcement power belongs exclusively to DOL Wage and
Hour Division (WHD), as DHS has ``incapacitated itself'' from
exercising any such authority. In addition, citing NPRM references to
``general'' authority, the commenter said Congress subsequently spoke
very specifically--even comprehensively--to the enforcement powers at
issue in the NPRM. The commenter said ``those very-general provisions''
simply do not address the H-2B program or the fact that the Department
has redelegated all of its authority.
Response: DHS disagrees that the changes conflict with the law or
lack legal authority or that DHS's investigative and enforcement
authority conflicts with DOL's or that DHS has delegated all of its
enforcement authority to DOL.
With respect to both H-2A and H-2B nonimmigrant classifications,
DHS has authority to make these changes under INA secs. 214(a)(1) and
214(c)(1), 8 U.S.C. 1184(a)(1) and 8 U.S.C. 1184(c)(1) and, with
respect to the H-2B classification, INA sec. 214(c)(14)(A), 8 U.S.C.
1184(c)(14)(A). In addition to those specific statutory authorities,
the Secretary has broad general authority under INA sec. 103(a), 8
U.S.C. 1103(a) to, among other things, administer the immigration
system, issue regulations and delegate certain duties to any employee
of former INS, including USCIS, as established by HSA sec. 451, 6
U.S.C. 271, and implemented through Delegation 0150.1 (Jun. 5, 2003).
In addition, USCIS has the additional authority to interrogate aliens
and issue subpoenas, administer oaths, take and consider evidence, and
fingerprint and photograph aliens under INA section 287(a), (b), and
(f), 8 U.S.C. 1357(a), (b), and (f), and INA section 235(d), 8 U.S.C.
1225(d). INA sec. 287. Through this final rule DHS is exercising the
delegated authority conferred upon it by Congress to ensure that
participants of the H-2 programs comply with applicable laws. In
particular, as it relates to ensuring compliance with the
[[Page 103217]]
H-2B program, under INA sec. 214(c)(14)(B), Congress explicitly
permitted DHS to delegate to DOL authority under INA sec.
214(c)(14)(A)(i) to impose certain administrative remedies and any
other remedy authorized by law. See INA sec. 214(c)(14)(B). In 2009,
DHS delegated this section 214(c)(14)(A)(i) authority to DOL See 88 FR
65040, 65046 n.5 (Sept. 20, 2023).
Significantly, the 2009 H-2B delegation to DOL cited in the NPRM is
limited to section 214(c)(14)(A)(i) of the INA (as specifically
authorized by section 214(c)(14)(B) of the INA), which focuses on
administrative remedies, including civil monetary penalties.
Notwithstanding the above-described delegation, DHS did not also
delegate its authority to deny petitions for certain periods of time
under INA section 214(c)(14)(A)(ii) pursuant to 214(c)(14)(B). A plain
reading of the statute makes clear that DHS's delegation authority
under section 214(c)(14)(B) does not extend to section
214(c)(14)(A)(ii). Furthermore, section 10.0 of the DHS-DOL Interagency
Agreement implementing the delegation states that ``[n]othing in this
IAA is intended to conflict with current law or regulation. If a term
of this IAA is inconsistent with such authority, then that term shall
be invalid, but the remaining terms and conditions of this IAA shall
remain in full force and effect.'' Thus, as described further below,
DHS maintains its authority to deny petitions filed by petitioners who
failed to follow applicable laws.
DHS recognizes that the delegation mentions DHS's authority to deny
petitions under section 214(c)(14)(A)(ii) of the INA, but it does so
solely in the context of enabling DHS to rely, in DHS's discretion, on
certain DOL findings of fact--after notice and an opportunity for a
hearing--made by DOL in the context of DOL exercising authorities it
was delegated under section 214(c)(14)(A)(i). Specifically, the
delegation states that if DOL has issued a debarment order, DHS ``may''
(but need not) rely on the underlying DOL findings and ``take
appropriate action with respect to the petition, including exercising
[DHS] authorities under 214(c)(14)(A)(ii) of the INA, 8 U.S.C
1184(c)(14)(A)(ii) and other provisions of the immigration laws.''
Nowhere in the delegation, however, is it stated that DHS lacks the
authority to make its own findings of fact, provide notice and an
opportunity for a hearing, or deny petitions in connection with its
exercise of section 214(c)(14)(A)(ii) authority. Under the statute and
the implementing Interagency Agreement, DHS may deny H-2B petitions for
a given period in two potential ways: (a) by relying on DOL findings,
or (b) after conducting its own hearing and by relying on its own
findings.\15\ DHS's section 214(c)(14)(A)(i) delegation does not in any
way limit DHS's authority under section 214(c)(14)(A)(ii), but findings
by DOL provide an additional way for DHS to obtain information helpful
or necessary to exercise its 214(c)(14)(A)(ii) authority, should facts
be uncovered in the course of DOL's exercise of section
214(c)(14)(A)(i) delegated authority. The use of the word ``may''
highlights the nonbinding nature of how DHS uses any findings by DOL
that DOL makes in the course of exercising any enforcement authority
that DHS delegated to DOL with respect to section 214(c)(14)(A)(i).
Under section 214(c)(1) of the INA, DHS--not DOL--is the sole U.S.
governmental agency authorized to determine whether an H-2 (or other H,
L, O, or P) petition may be approved.
---------------------------------------------------------------------------
\15\ See sec. 5.6 of the IAA.
---------------------------------------------------------------------------
DHS, in its discretion, may avail itself of or rely on fact
determinations made by DOL in exercising its delegated authority under
section 214(c)(14)(A)(i). DHS, however, did not delegate its own
authority to make factual determinations (following notice and an
opportunity for a hearing) for purposes of section 214(c)(14)(A)(ii),
nor did DHS delegate its authority under section 214(c)(14)(A)(ii) of
the INA to deny H-2B petitions (or other petitions filed under INA
secs. 204 or 214(c)(1)) from petitioners determined by DHS--based on
its findings of fact, whether in choosing to rely on DOL's fact
findings or DHS's own or both--have violated applicable laws for a 1-
to 5-year period.
The new denial provisions in this rule, as applied to H-2B
petitions, are consistent with INA section 214(c)(14)(A). Specifically,
INA section 214(c)(14)(A) provides that DHS may deny H-2B petitions for
a period of at least 1 year, but not more than 5 years, based on the
substantial failure to meet any of the conditions of the petition or a
willful misrepresentation of a material fact in the petition. Under INA
section 214(c)(14)(D), the term ``substantial failure'' means a willful
failure to comply with requirements of INA section 214 that constitutes
a significant deviation from the terms and conditions of a petition. As
discussed in greater detail below, each of the violations triggering
new denial periods in this final rule, as applied to H-2B petitions,
stems from a willful failure to comply with program requirements. Such
a willful failure to comply would constitute a significant deviation
from the terms and conditions of the petition or a willful
misrepresentation of a material fact. Consistent with caselaw, DHS
interprets the term ``willfully'' in INA 214(c)(14)(A) to mean
``knowingly'' or ``recklessly,'' as distinguished from accidentally,
inadvertently, or in an honest belief that the facts are otherwise.\16\
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\16\ See, e.g., Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57
(2007) (``We have said before that `willfully' is a ``word of many
meanings whose construction is often dependent on the context in
which it appears; and where willfulness is a statutory condition of
civil liability, we have generally taken it to cover not only
knowing violations of a standard, but reckless ones as well.'')
(quotation marks and citations omitted); McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 132-33, (1988) (``willful,'' as used in a
limitation provision for actions under the Fair Labor Standards Act,
covers claims of reckless violation); Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 125-26 (1985) (same, as to a liquidated
damages provision of the Age Discrimination in Employment Act of
1967); United States v. Ill. Cent. R. Co., 303 U.S. 239, 242-43,
(1938) (``willfully,'' as used in a civil penalty provision,
includes '' `conduct marked by careless disregard whether or not one
has the right so to act'') (quotation marks and citation omitted);
Bedrosian v. United States, 912 F.3d 144, 152 (3d Cir. 2018)
(``[G]eneral consensus among courts is that, in the civil context,
the term [``willfulness''] often denotes that which is intentional,
or knowing, or voluntary, as distinguished from accidental, and that
it is employed to characterize conduct marked by careless disregard
whether or not one has the right so to act . . . In particular,
where willfulness is an element of civil liability, we have
generally taken it to cover not only knowing violations of a
standard, but reckless ones as well.'') (quotation marks and
citations omitted); Matter of Healy and Goodchild, 17 l & N Dec. 22,
28 (BIA 1979) (``knowledge of the falsity of a representation'' is
sufficient).
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Each mandatory denial ground in new 8 CFR 214.2(h)(10)(iv)(A), as
applied to H-2B petitions, requires a finding of willfulness that
comports with the applicable case law on willfulness. Specifically,
with respect to 8 CFR 214.2(h)(10)(iv)(A)(1), debarment by DOL from the
H-2B program requires that DOL has found either that the employer
willfully misrepresented a material fact or that the employer willfully
failed to comply with program requirements and the failure constituted
a significant deviation from such requirements. See 20 CFR 655.73(a);
29 CFR 503.19(a). DOL regulations defining willful violations for
purposes of INA sec. 214(c)(14), state, ``A willful misrepresentation
of a material fact or a willful failure to meet the required terms and
conditions occurs when the employer . . . knows a statement is false or
that the conduct is in violation or shows a reckless disregard for the
truthfulness of its representations or for whether its conduct
satisfies the
[[Page 103218]]
required conditions.'' \17\ 20 CFR 655.73(d); 29 CFR 503.19(b).
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\17\ See Temporary Non-Agricultural Employment of H-2B Aliens in
the United States, 80 FR 24042, 24086-87, 24129, 24139 (Apr. 29,
2015).
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A finding of willful material misrepresentation of a material fact
or a finding of fraud by USCIS, as relevant in 8 CFR
214.2(h)(10)(iv)(A)(2), likewise requires a finding of willfulness, in
accordance with established case law. In addition, under 8 CFR
214.2(h)(10)(iv)(A)(3) a finding of violation under INA section 274(a)
also requires the element of willfulness. In this regard, each
subsection of INA section 274(a) includes an element of ``knowing''
and/or ``reckless disregard'' indicating that a finding under INA
section 274(a) would meet the requirements of the term willfully
referenced in INA 214(c)(14) and as defined in applicable civil case
law.\18\
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\18\ For the purposes of civil liability (as opposed to criminal
liability), the term ``willful'' includes both knowing violations
and reckless violations. See, e.g., United States v. Hughes, 113
F.4th 1158, 1161-62 (9th Cir. 2024). See also, Safeco Ins. Co. of
Am., 551 U.S. at 56; McLaughlin, 486 U.S. at 132-33; Trans World
Airlines, 469 U.S. at 125-26; Ill. Cent. R. Co., 303 U.S. at 242-43.
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Finally, we note that, as a part of its application for a TLC, an
employer must attest that they will comply with applicable Federal,
State and local employment-related laws and regulations, and on the H-2
petition itself, they must also attest that they agree to the
conditions of H-2 employment, which limits participation in the H-2
program to those petitioners who have not engaged in the types of
criminal activities covered by INA section 274(a). Such a limitation is
intended to ensure the integrity of the H-2 program, insofar as
employers who have been found guilty of engaging in activities related
to the bringing in and harboring of certain aliens have a demonstrated
record of knowing or reckless disregard for adherence to the
immigration law. Given the seriousness of the violations described in
section 274(a), there is no assurance that they will take seriously
their obligation to abide by the terms and conditions of the H-2
program, or that they have the intention and ability to do so absent
the passage of a sufficient time period for them to demonstrate that
they in fact will abide by the terms and conditions of the H-2 program.
For this reason, DHS has determined that precluding approval of H-2
petitions for employers convicted of a violation of section 274(a) for
the period of time specified in this rule is necessary not only to
ensure compliance with the H-2 program but to serve as a disincentive
to employers from engaging in the types of criminal activities
specified in section 274(a) should they wish to avoid the mandatory
denial periods set forth in this rule. For these reasons, a violation
of INA section 274(a) therefore constitutes a willful violation of
section 214 that constitutes a significant deviation from the terms and
conditions of a petition that calls into question the petitioner's
intent and ability to comply with the requirements of the H-2 program.
In addition, the 1-year denial period for H-2B petitions set forth
in new 8 CFR 214.2(h)(6)(i)(C) stems from a willful failure to comply
with program requirements that constitutes a significant deviation from
the terms and conditions of the petition. Specifically, new 8 CFR
214.2(h)(6)(i)(C) will only apply after USCIS issues a decision denying
or revoking on notice an H-2 petition for violation of the prohibited
fee provision at paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), or if a
petitioner withdraws a petition following USCIS issuance of a request
for evidence or notice of intent to deny or revoke the petition for
prohibited fees under one of those provisions. The cited provisions, as
finalized in this rule, enable a petitioner to avoid denial or
revocation--and thus avoid the 1-year denial period--by demonstrating
that it made ongoing, good faith, reasonable efforts throughout the
process to prevent and learn of the prohibited fee collection or
agreement, that it took immediate remedial action upon learning of the
fee, that it has made all necessary reimbursements, and, for cases
where the petitioner itself collected the fee, that its failure to
prevent the fee resulted from extraordinary circumstances beyond its
control. As discussed in the NPRM and in this final rule, the
prohibitions related to fees charged to workers are a longstanding and
important H-2 program requirement, and petitioners have to attest in
the H-2 petition that, among other things, they have taken reasonable
steps to ensure that prohibited fees are not being charged. As such, it
is a petitioner's responsibility and obligation to make ongoing, good
faith, reasonable efforts toward the prevention of such fees being
charged by its employees and by any third parties within the
recruitment chain, to take immediate remedial action if a violation
occurs, and to reimburse the affected parties. Accordingly, as the same
steps that are required to avoid denial or revocation are in fact
petitioner obligations for compliance with program requirements and/or
the terms and conditions of the H-2 petition, DHS considers the failure
to take steps described above in order to prevent the payment of
prohibited fees, and/or provide evidence that such steps were taken, to
constitute a substantial failure, that is, a willful failure to comply
with INA section 214 requirements that constitutes a significant
deviation from the terms and conditions of the H-2B petition.\19\
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\19\ In this regard, DHS notes that its regulations and petition
instructions have long prohibited petitioners and recruiters from
collecting prohibited fees and therefore violations of such
prohibitions necessarily constitute a significant deviation from
longstanding publicly known terms and conditions of a petition.
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Similarly, the additional 3-year period described in new 8 CFR
214.2(h)(6)(i)(D) only applies in instances where the petitioner has
failed to provide the evidence necessary to avoid denial or revocation
under paragraph (h)(6)(i)(B) or (h)(5)(xi)(A). Further, during this 3-
year period, USCIS may approve the petition notwithstanding such a
denial or revocation upon a showing that each affected beneficiary has
been reimbursed or that the beneficiary's designee has been reimbursed
if the beneficiary cannot be located or is deceased. DHS considers a
petitioner's failure to reimburse all relevant parties despite
knowledge of the reimbursement requirement, or failure to provide
evidence of such reimbursement, to constitute a willful failure to
comply with program requirements that constitutes a significant
deviation from the terms and conditions of the petition.\20\
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\20\ DHS has noted that there are steps a petitioner can take to
ensure they will be able to successfully provide reimbursement in
the event that a prohibited fee violation occurs. Specifically, in
the NPRM, DHS suggested that petitioners, as a matter of best
practice, 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, as well as obtain full designee information,
early on during the recruitment process, and to maintain and update
such information as needed to ensure the petitioner's ability to
comply with the reimbursement requirement. 88 FR 65040, 65056 (Sept.
20, 2023).
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As a matter of policy and condition of participation in H-2
programs, DHS is imposing denials based on a predecessor's substantial
failure to comply with program requirements or a willful
misrepresentation of material facts, including a predecessor's denial
under new 8 CFR 214.2(h)(6)(i)(C) or (D) and (h)(10)(iv), on any
successors in interest. While the acceptance of certain liabilities may
not be agreed upon by the successor within the documents underlying the
acquisition, merger, or other transfer resulting in a successor in
interest relationship, under this final rule, DHS has decided to extend
the
[[Page 103219]]
periods of denial based on a predecessor's willful failure to comply
with program requirements to successors in interest regardless of
whether any such successor in interest has agreed to succeed to all of
the liabilities of the predecessor entity. Accordingly, as proposed in
the NPRM and after this rule becomes effective, a successor in interest
will be subject to any applicable denial period stemming from the
violations of this rule. DHS has made this determination to prevent
predecessors that have willfully violated program requirements or
mispresented material facts from avoiding any consequences by simply
reorganizing into a successor entity. This regulation puts prospective
successors in interest on notice that they would assume liability for
the predecessor's willful violation(s). To permit successors in
interest to avoid successor liability would defeat the purpose/
objective of this regulation and would create a loophole to avoid the
consequences of a willful failure to abide by the terms and conditions
of the H-2 programs. This policy furthers the statutory purpose of
ensuring integrity in the H-2 programs.
Comment: An attorney commenter stated that the NPRM is premised on
the belief that there are no material differences between the H-2A and
H-2B programs, but they have been developed independently since 1986
and each is subject to its own statutory provisions. The commenter
wrote that failing to differentiate between the programs fails to
follow congressional policy and rewrites statute. The commenter also
said another major premise of the NPRM is the apparent conclusion that
H-2B workers deserve or are entitled to extensive regulatory
protection, but it is well-established that Congress created all H
visas to promote the national interests and alleviate U.S. labor
shortages for temporary positions by providing nonimmigrant labor. The
commenter said there is no ``credible statutory language, structure, or
legislative history suggesting that H-2B workers are a protected
class'' but instead they are ``merely a conduit to safeguard the true
protected class'' by reducing the incentive to bypass U.S. workers and
avoid wage depression. The commenter stated that the preamble includes
``virtually no discussion'' of the national interest, employer
interests, or the interests of even U.S. workers, while DHS is
effectively erecting a completely new and groundless regulatory
structure.
Response: DHS disagrees with the commenter's assertion that the
NPRM is premised on the beliefs that there are no material differences
between the H-2A and H-2B programs and that failing to differentiate
between them is contrary to congressional intent. While DHS generally
agrees with the commenter that the H-2 programs were created to
alleviate U.S. labor shortages, and thus promote the national interest,
those objectives are consistent with providing protections from abuses
common to both H-2A and H-2B workers. Further, the commenter stated
that the NPRM failed to address the interests of U.S. workers; however,
it is well established that providing protections for H-2 workers also
benefits U.S. workers.\21\ For example, the 2023 report of the H-2B
Worker Protection Taskforce stated that H-2B workers work alongside
U.S. workers in some of our country's most critical occupations, but
that structural disincentives to report or leave abusive work
conditions not only harm H-2B workers but also undermine the wages and
working conditions of U.S. workers who work with them.\22\ With respect
to the commenter's contention that the rulemaking fails to address the
national interest and employer interests, DHS also disagrees. The NPRM
specifically discussed the importance of the H-2 programs to U.S.
employers, including the expansion in their use in recent years in a
section titled Importance of the H-2 Programs and the Need for Reforms.
88 FR 65040, 65049 (Sept. 20, 2023). In this section DHS detailed the
administration's policies to increase interest and expand access to
these programs for employers, as well as the need to balance the
expanded use of the H-2 programs with greater protections for workers.
Id. The NPRM also specifically addressed the proposals that would most
benefit U.S. employers, such as portability, as well as both the
elimination of the eligible countries lists and the revision of the
calculation of the maximum period of stay for H-2 workers.
---------------------------------------------------------------------------
\21\ See generally Daniel Costa, EPI, ``Second-class workers:
Assessing H-2 visa programs' impact on workers'' (July 20, 2022)
(testimony before the Subcommittee on Workforce Protections in the
United States House Committee on Education and Labor), <a href="https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-impact-on-workers/">https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-impact-on-workers/</a>.
\22\ The White House, ``Strengthening Protections for H-2B
Temporary Workers: Report of the H-2B Worker Protection Taskforce''
(Oct. 2023), <a href="https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf">https://www.whitehouse.gov/wp-content/uploads/2023/10/Final-H-2B-Worker-Protection-Taskforce-Report.pdf</a>.
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DHS also explained that with respect to the H-2B program
specifically, the proposed regulations which are also being finalized
in this rule 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. 88 FR 65040, 65051-65052 (Sept.
20, 2023).
2. H-2 Program Background
a. Worker Vulnerability
Comment: A few commenters discussed the vulnerability of H-2
workers to labor abuses and expressed their support for additional
labor protections to be put into place. For example, a religious
organization stated that foreign workers are uniquely vulnerable given
that they are temporary workers, rely on their employers for basic
needs, often have a language barrier, and many other factors. The
commenter expressed their support for the Department's effort to
address ongoing issues within the H-2 programs. A union and a trade
association also expressed their support for additional worker
protections for H-2 workers, reasoning that H-2 programs are a public
benefit and that employers who use them need to be held to the highest
possible standards. Similarly, a joint submission expressed their
support for the proposed regulatory changes which they stated ``would
make some badly overdue improvements for these most vulnerable
workers.''
Response: DHS agrees with, and appreciates, the commenters'
feedback concerning the vulnerability of H-2 workers and the need for
programmatic reforms, as well as their overall support for the rule's
efforts to enhance H-2 worker protections.
b. Violations of Labor Laws
Comment: Several commenters discussed labor violation issues within
the H-2 programs and how employers can abuse their H-2 workers due to
excessive leeway and weak oversight. Some labor unions stated that the
program gives too much leeway to employers and that USCIS does not
effectively enforce existing labor rules. The commenters said that this
allows employers to bypass hiring procedures even though there are
domestic workers available for these jobs. A research organization
discussed how both H-2 programs have been plagued with controversy
regarding undocumented immigration and human trafficking. The commenter
cited reports from DOL showing that 70 percent of the audits for
temporary labor certifications (TLCs) led to enforcement actions
against the employer ranging from a warning to program debarment. The
commenter further stated that Department of State
[[Page 103220]]
(DOS) reports showed that these programs enabled human trafficking and
that between 2018 and 2020 there were 3,694 potentially identified
victims of labor trafficking within the H-2A program. Lastly, the
commenter noted that of over 200,000 investigations DOL had done in the
seven major H-2B industries, 80 percent found labor violations. A trade
association noted that DOL figures showed that only a small percentage
of farms, about 5 percent, accounted for 71 percent of all violations
over a 15-year period.
A union and a religious organization stated that they have
witnessed abuses against migrant workers such as charging fees for
basic services, inadequate housing, long work hours, and limited
training for the operation of heavy machinery. The commenters further
discussed how in addition to these abuses, farm workers are often
subject to restrictions on mobility, such as being prohibited from
leaving their residences, insufficient health care, and isolation from
the community. Lastly, a religious organization stated that workers
have reported practices where an employer works its employees for 1 or
2 months with no days off, then replaces them with a different group,
and repeats the process. The commenter stated that these practices
might even be considered human trafficking under the Trafficking
Victims Protection Act of 2000. A joint submission from a union and
numerous advocacy organizations noted that 72 percent of labor
trafficking victims between 2018 and 2020 reported holding an H-2A or
another temporary visa.
A union further discussed how recruitment fees can be predatory and
place a worker into an indentured servitude relationship with their
employer, and further stated that the H-2 programs are one of the
sources of modern forced labor. The commenter cited a study that it
said showed about half of all H-2A workers from Mexico surveyed between
2006 and 2011 took out loans to pay for these fees. A separate joint
submission from a union and numerous advocacy organizations brought up
reports that over half of H-2A workers paid recruitment fees, with some
upwards of $4,500. The commenter also brought up concerns related to
issues within the construction industry, and cited studies on how
foreign workers are more vulnerable to injuries in this dangerous
workplace environment.
Commenters also addressed violations related to wage theft and its
prevalence among H-2 employers. For example, a union cited studies that
it said showed how H-2B employers often pay H-2B employees below what
is required by State and Federal law and that this practice has led to
almost 2 billion dollars in stolen wages. The commenter noted that
another study showed that within the construction sector, foreign
workers earn about 24 percent less than domestic workers while in the
overall economy, this figure is about 11 percent. A joint submission
from a union and numerous advocacy organizations cited other studies
that they said showed 73 percent of the back wages and civil money
penalties owed by farm employers were due to H-2A violations, and when
investigated, agricultural employers are often found to be committing
wage or hour theft from employees. A different union noted that this
abuse leads workers to be deprived of job opportunities and subjected
to lower wages.
Response: DHS thanks these commenters, many of whom have on-the-
ground experience speaking to or working with participants in the H-2
programs, for bringing attention to the violations of various labor
laws that many H-2 workers experience and the harms they cause them.
Several of the provisions finalized in this rule, such as the
strengthened prohibited fee provisions and the new mandatory and
discretionary grounds for denial, aim to mitigate against some of these
harms and vulnerabilities.
c. Economic and Industry Reliance on H-2 Workers
Comment: A few commenters, including a religious organization,
discussed the current role of H-2 programs in the economy and how it is
being used to fulfill labor demands that the domestic workforce is
unable to meet. A few commenters discussed the use of the H-2 programs
in the agricultural sector and how the industry has become more reliant
on H-2A workers. A trade association stated that in part due to
increased industrial job opportunities in Mexico, Texas farmers have
begun to rely more heavily on H-2A workers to fill labor gaps. A
business association noted that due to a shrinking domestic workforce,
employers have had to rely more on H-2A workers in recent years and
that the number of H-2A workers that are hired can range between a few
dozen or thousands per entity. A separate business association
discussed how the number of H-2A agricultural workers in states like
Washington, Oregon, and Idaho has increased by significant margins in
the past few years. The commenter stated that the number of H-2A
workers in Washington has increased from 18,800 in 2017 to 38,664 in
2023, while in Oregon the number of H-2A workers increased by a third
between 2018 and 2021. The commenter also noted that about 90 percent
of these workers return to the same place of employment in the
following years.
A trade association noted that over the last decade, an aging
domestic workforce and changing economic conditions in Mexico have led
the agricultural industry in border states such as Texas to rely on H-
2A workers to meet labor demands that are difficult to fulfill through
domestic workers and Mexican day laborers. A professional association
stated that there was an acute need for the H-2 and other similar
programs to fill labor gaps in the U.S. economy, such as the
construction industry where the ratio of openings to employment has
climbed to 4.4 percent from 2.3 percent in 2015 and there were over
300,000 openings at the time of commenting.
Response: DHS is aware of the considerable increase in recent years
in the utilization of both the H-2A and H-2B programs by U.S. employers
and appreciates these commenters offering information on this growth.
As noted in the NPRM, both the H-2A and H-2B programs have experienced
significant growth over the last decade. H-2A visa issuances have
increased by over 365 percent over the last decade, and H-2B visa
issuances have nearly doubled over the last decade.\23\ 88 FR 65040,
65049 (Sept. 20, 2023). Whether due to U.S. workers seeking employment
opportunities in sectors other than agriculture, or due to an aging
domestic workforce, or for other reasons, the strong interest from U.S.
employers in seeking temporary workers through the H-2 programs is
apparent, as these commenters note. The changes to the H-2 programs
finalized in this rule will benefit these employers by further
streamlining and improving the overall integrity of the programs as
these programs grow.
---------------------------------------------------------------------------
\23\ As further explained in the NPRM, while Congress has capped
the number of H-2B visas available, the number of H-2B visas issued
has regularly far-exceeded the statutory cap as a result of
congressionally-provided limited authority to increase the cap over
the past several years. 88 FR 65040, 65049 (Sept. 20, 2023).
---------------------------------------------------------------------------
d. H-2B Program Size
Comment: A couple of commenters generally discussed the growing
size of the H-2 programs and, in particular, issues with the H-2B
program exceeding the statutory 66,000 cap in recent years. A union
expressed concern with how, through annual riders included in recent
appropriations laws and DHS regulations including
[[Page 103221]]
returning worker exemptions, the government has been able to
effectively increase the cap well above the 66,000 originally set when
the H-2B program was established. The commenter also expressed concern
that the increase in size and lax enforcement of labor laws has led to
an undercutting of domestic labor.
A research organization raised concerns over how the NPRM does not
discuss the impact of portability on the H-2B annual cap, the number of
extensions of stay with the same employer for the H-2B program, nor the
true size of the H-2B program in terms of the total number of H-2B
workers employed in a given fiscal year. The commenter noted that
publicly available data at the time of comment do not convey the total
number of positions filled by H-2B workers, which they stated was
``critical to know since H-2B workers who change employers or extend
with the same employer will have filled two positions under one slot
under the annual cap.'' The commenter said that the number of
beneficiaries approved for the H-2B program was important to know
because the number of H-2B beneficiaries has grown far beyond the
annual cap set by statute. The same commenter noted that USCIS
calculates the total number of H-2B workers by adding the number of
visas approved and the number of new H-2B workers that do not need
visas, but that it leaves out H-2B workers that were approved to
continue their status with the same employer or were approved to change
employers. The commenter said that a similar issue exists with more
recent data regarding the total number of H-2B workers because they do
not differentiate between a new worker and one that is extending their
current status or changing employers. Lastly, the commenter concluded
that over the past few years, there have been significantly more H-2B
workers than what is allowed by the statutory and supplemental caps.
The commenter estimated that there would be a similar proportion of H-
2B workers compared to the statutory and supplementary cap in 2023.
Response: As alluded to by a commenter, 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), 8 U.S.C.
1184(g)(1)(B). Under this semi-annual cap, 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. See INA sec. 214(g)(10), 8
U.S.C. 1184(g)(10). There are some exceptions to the cap, for example,
as workers in the United States in H-2B status who extend their stay,
change employers, or change the terms and conditions of employment are
not 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 id.
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. No
provisions adopted in this final rule allow DHS to exceed the statutory
limitation on the number of H-2B visas issued per fiscal year.
Similarly, no provisions adopted in this final rule alter the current
exemptions to the statutory cap for workers in the United States in H-
2B status who extend their stay, change employers, or change the terms
and conditions of employment.
In recent fiscal years, Congress has authorized the Secretary of
Homeland Security to temporarily increase the statutory cap. Before
authorizing the additional visa numbers, the Secretary, in consultation
with the Secretary of Labor, considers the needs of businesses and
other factors, including the impact on U.S. workers and the integrity
of the H-2B program. Most recently, on December 2, 2024, DHS and DOL
jointly published a temporary final rule (TFR) increasing the numerical
limit for FY 2025.\24\ Thisincrease is based on time-limited statutory
authority that does not affect the H-2B program in future fiscal years.
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\24\ This increase in the cap is in accordance with Section 105
of Division G, Title I of the Further Consolidated Appropriations
Act, 2024, Public Law 118-47, as extended by sections 101(6) and 106
of Division A of the Continuing Appropriations and Extensions Act,
2025, Public Law 118-83, which gave the Secretary of Homeland
Security the authority to make available additional H-2B visas for
FY 2025.
---------------------------------------------------------------------------
DHS appreciates the commenter's analysis regarding the portability
provision but does not agree with the conclusion that DHS fails to
adequately assess the impact of the type of portability proposed on the
growth and overall size of the H-2B program. Much of the comment's
substance focuses on aspects of the H-2 program that, as described
above, would not be affected by this rulemaking and therefore should
not be considered as an impact of the rule. For instance, this
rulemaking does not establish the ability to extend stay nor does it
speak to which workers are cap exempt or subject to the respective
caps. DHS believes that the NPRM's discussion of the marginal impact of
portability on the affected population of porting workers is an
accurate and sufficient articulation of the impacts of this rule. See
88 FR 65040, 65074, 65079-80 (Sept. 20, 2023).
Additionally, DHS appreciates the commenters' analysis of available
H-2 data and agrees that the combination of data sources and methods
described in the comment leads to overcounting of the total universe of
H-2B workers in the country in a given fiscal year. More specifically,
the commenter noted that the H-2B Data Hub's ``Continuing Approvals''
field likely overcounts total H-2B workers because of a lack of data on
workers who switched employers or changed job conditions while at the
same employer. In order to address concerns raised by the commenter,
USCIS is providing relevant data in Table 2 and Table 3 below:
BILLING CODE 9111-97-P
[[Page 103222]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.005
[[Page 103223]]
[GRAPHIC] [TIFF OMITTED] TR18DE24.006
BILLING CODE 9111-97-C
Regarding the comment that the increase in H-2 program size and
``lax enforcement'' of labor laws has led to an undercutting of
domestic labor, DHS disagrees and emphasizes that enforcement of labor
laws involving domestic labor generally falls under the jurisdiction of
DOL. DHS notes that, to avoid the undercutting of domestic workers as
mentioned by the commenter, it is a requirement under both H-2 programs
that the Secretary of Labor must certify that there are not sufficient
able, willing, qualified, and available U.S. workers who can perform
such services or labor.\25\ Additionally, H-2 employment may not
adversely affect the wages and working conditions of workers in the
United States.\26\ An H-2A or H-2B petition 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. 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 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.\27\
---------------------------------------------------------------------------
\25\ See INA secs. 101(a)(15)(H)(ii)(a)-(b), 8 U.S.C.
1101(a)(15)(H)(ii)(a)-(b), 218(a)(1), 8 U.S.C. 1188(a)(1); 8 CFR
214.2(h)(5)(ii), (h)(6)(i).
\26\ 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), (h)(6)(i).
\27\ See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR
214.2(h)(5)(i)(A), (h)(5)(ii), (h)(6)(iii)(A), (h)(6)(v).
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D. Program Integrity and Worker Protections
1. Payment of Fees, Penalties, or Other Compensation by H-2
Beneficiaries
a. Use of Phrase ``Related to''
Comment: Several commenters, including a trade association, a
union, a joint submission, some advocacy groups, and a religious
organization, expressed support for conforming USCIS regulations to
DOL's regulatory language, such as the prohibition of fees ``related
to'' employment, or clarifying the term ``prohibited fee'' to include
any fee, penalty, or compensation. The religious organization expressed
support for the language change to prohibit fees ``related to'' H-2
employment in order to better protect workers and urged DHS to adopt
the regulation as proposed.
Response: DHS appreciates the commenters' support for conforming
USCIS regulations to DOL's regulatory language. These conforming
changes are expected to increase clarity regarding prohibited fees and
better protect workers. As discussed below, DHS is making some changes
to the proposed regulation in light of other comments that suggested
specific changes.
Comment: A union and a State agency generally supported the
language change to prohibit fees ``related to'' H-2 employment but
suggested that USCIS include a list describing prohibited fees
[[Page 103224]]
in the regulatory text, similar to the list in the preamble.
Response: As the commenters noted, the preamble of the NPRM
provided examples of fees that are ``related to'' H-2 employment
including, but not limited to, the employer's agent or attorney fees,
visa application and petition fees, visa application and petition
preparation fees, and recruitment costs.\28\ However, DHS declines the
suggestions to include this or another listing of specific prohibited
fees in the regulatory text. As noted in the NPRM, DHS is replacing the
term ``as a condition of'' with ``related to'' to substantially conform
with DOL prohibited fee regulations. DHS is also finalizing the
clarification that ``[t]he passing of a cost to the beneficiary that,
by statute or applicable regulations is the responsibility of the
petitioner, constitutes the collection of a prohibited fee.'' New 8 CFR
214.2(h)(5)(xi)(A), (h)(6)(i)(B). As DOL regulations already provide a
non-exhaustive list of fees that are ``related to'' employment and thus
are the responsibility of the employer,\29\ it is unnecessary to repeat
that non-exhaustive list in DHS regulations.
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\28\ 88 FR 65040, 65052 (Sept. 20, 2023) (citing DOL, WHD,
``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>).
\29\ See 20 CFR 655.20(o) (stating that fees ``related to'' H-2B
employment ``include 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''); 29 CFR 503.16(o) (containing a similar
list for fees ``related to'' H-2B employment); 20 CFR 655.135(j)
(stating that fees ``related to'' H-2A employment include ``payment
of the employer's attorney fees, application fees, or recruitment
costs'').
---------------------------------------------------------------------------
Comment: An attorney expressed concern with the phrase ``related
to,'' stating it was ``unrestricted'' and allows the Department to
``sweep up'' any and all violations, including violations that are
simply inadvertent or technical by ``even the most innocent employer.''
Response: DHS disagrees with the commenter's characterization that
the phrase ``related to'' is ``unrestricted'' and allows the Department
to ``sweep up'' any violations that are simply inadvertent or
technical. Instead, that phrase seeks to balance an interest in
protecting workers from prohibited cost-shifting by employers while
recognizing that not all payments or reimbursements by workers are
forbidden. Moreover, this change in terminology provides consistency
across agencies by conforming to the long-standing use of the phrase in
DOL regulations.\30\
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\30\ See 20 CFR 655.135(j) (H-2A); 20 CFR 655.20(o) (H-2B). 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.
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The term ``related to'' is meant to be read broadly to ensure that
employers bear the cost of bringing in noncitizen workers under the H-2
programs and prevent employers from passing those costs to H-2 workers,
with the resulting consequences of indebtedness, intimidation, and
exploitation of nonimmigrant workers that can occur. This is consistent
with the intent expressed by DOL in promulgating its own prohibited fee
regulations, 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.'' 75 FR 6884, 6925 (Feb. 12, 2010); 73
FR 77110, 77158 (Dec. 18, 2008). However, the phrase ``related to'' is
not ``unrestricted,'' as the commenter claimed. Consistent with DOL
regulations, DHS recognizes that an H-2 employer is not responsible for
costs that are primarily for the benefit of the H-2 worker and will
finalize regulatory text making this clear. See new 8 CFR
214.2(h)(5)(xi)(A), (h)(6)(i)(B) (``This provision does not prohibit
petitioners (including their employees), employers or any joint
employers, agents, attorneys, facilitators, recruiters, or similar
employment services from receiving reimbursement from the beneficiary
for costs that are the responsibility and primarily for the benefit of
the worker, such as government-required passport fees.''). DHS
therefore disagrees with the commenter's concerns about the phrase
``related to'' being ``unrestricted.''
b. Clarification of Acceptable Reimbursement From the Beneficiary for
Costs That Are the Responsibility and Primarily for the Benefit of the
Worker
Comment: A professional association expressed support for the
clarification that some costs to workers are acceptable if they are for
the benefit of the worker and are the worker's responsibility. An
advocacy group also supported this new regulatory language, noting that
it improves clarity and affirms that an employer is responsible for all
costs related to an H-2 worker's employment, other than those costs
primarily for the benefit of the worker.
Response: DHS appreciates the commenters' support for the rule's
clarification of certain fees that may be reimbursed by H-2 workers. As
noted above, new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B),
as modified, will clarify that the prohibited fees provisions do not
prohibit petitioners (including their employees), employers or any
joint employers, agents, attorneys, facilitators, recruiters, or
similar employment services from receiving reimbursement from the
beneficiary for costs that are the responsibility and primarily for the
benefit of the worker. DHS is slightly modifying this provision from
what was proposed by adding ``from the beneficiary.'' As noted in the
proposed rule, it is not the Department's intention 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.
Comment: Many commenters, including trade associations, a research
organization, and a joint submission, stated that DHS should provide
additional guidance on what costs, in addition to government-required
passport fees, may be considered ``the responsibility and primarily for
the benefit of the worker'' such that they are acceptable for
reimbursement by the worker. A professional association noted that
``[p]assport fees are expressly excluded in the definition of
prohibited fees'' but that ``there may be other fees that could benefit
both employers and the workers not clearly addressed in the proposed
rule.'' The commenter noted that ``[g]reater specificity would be
helpful in the scope of the definition of prohibited fees, given that
subsequent reimbursement would no longer remedy the error.''
Response: As explained in the NPRM and codified in this final rule,
fees that are ``related to'' H-2 employment are those that are the
responsibility of and primarily for the benefit of the employer and may
not be collected at any time from a beneficiary of an H-2A or H-2B
petition. See new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B);
88 FR 65040, 65052 (Sept. 20, 2023) (stating that fees that are
``related to'' H-2 employment include, but are not limited to, the
employer's agent or attorney fees, visa application and petition fees,
visa application and petition preparation fees, and recruitment costs;
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.''). Thus, an employer may not seek
reimbursement from a worker for fees that are related to H-2
employment. However, an employer may seek reimbursement from a worker
for fees
[[Page 103225]]
that are ``the responsibility and primarily for the benefit of the
worker.'' As finalized at new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B), fees that are ``the responsibility and primarily for
the benefit of the worker'' include ``government-required passport
fees.'' \31\ This intentionally mirrors DOL's language that its
prohibited fee provisions do not ``prohibit employers or their agents
from receiving reimbursement for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees.'' 20 CFR 655.20(o), 655.135(j). Since DOL's regulatory
language does not contain examples beyond government-required passport
fees, DHS also will not provide other examples in new 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR 214.2(h)(6)(i)(B).
---------------------------------------------------------------------------
\31\ See WHD, ``Fact Sheet #78F: Inbound and Outbound
Transportation Expenses, and Visa and Other Related Fees under the
H-2B Program,'' <a href="https://www.dol.gov/agencies/whd/fact-sheets/78f-h2b-fees">https://www.dol.gov/agencies/whd/fact-sheets/78f-h2b-fees</a>; DOL, Field Assistance Bulletin NO. 2009-2 (Aug. 21, 2009).
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However, to be responsive to commenters' requests for additional
guidance on what costs, in addition to government-required passport
fees, may be considered ``the responsibility and primarily for the
benefit of the worker,'' DHS hereby clarifies that such fees may also
include H-4 visa fees for dependent family members and filing fees for
Forms I-539, Application to Extend/Change Nonimmigrant Status,
requesting extension of the same status for any H-4 dependents. There
may be other instances in which a fee is considered primarily for the
benefit of the worker, although, such instances will be limited in
light of the fact that employers are responsible for all costs
``related to'' H-2 employment.
c. Clarification of Acceptable Reimbursement to the Beneficiary for
Certain Costs That Are ``Related to'' H-2 Employment
Comment: A trade association urged DHS to allow employers to
reimburse workers for meals and other costs associated with their
travel to the United States, stating that this practice benefits
workers. A joint submission expressed concern that leaving the proposed
regulation vague about what other fees are acceptable for reimbursement
could result in inconsistent application of the regulation. A
professional association suggested that ```visa application' should be
removed from this section [of prohibited fees] because [visa
application fees, that is the DS-160 fee] is recognized elsewhere
justifiably as a reimbursable cost.''
Response: DHS recognizes that it is permissible, in certain limited
circumstances, for a worker to initially pay a fee related to H-2
employment and then to be reimbursed by the employer for that expense.
In such a case, the fee is still the responsibility of the employer and
may not be passed on to the worker, but reimbursement has been deemed
to be an allowable mechanism by which the employer can fulfill its
responsibility to pay the fee. For example, 20 CFR 655.20(j)(2) states
with respect to H-2B workers that ``[t]he employer must pay or
reimburse the worker in the first workweek for all visa, visa
processing, border crossing, and other related fees (including those
mandated by the government) incurred by the H-2B worker . . . .'' Thus,
all visa, visa processing, border crossing, and other related fees are
the responsibility of the employer, but DOL allows for the employer to
satisfy its obligation to pay these fees by reimbursing the worker
within the first workweek.
DHS does not intend to prohibit reimbursement of fees where such
reimbursement is specifically allowed by statute or regulations
governing the H-2 programs. Therefore, DHS is modifying the regulatory
text in this final rule at 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to add that ``This provision does not prohibit
employers from allowing workers to initially incur fees or expenses
that the employers are required to subsequently reimburse, where such
arrangement is specifically permitted by, and performed in compliance
with, statute or regulations governing the [H-2A/H-2B] program.''
In addition, nothing in the regulation prevents an employer from
seeking reimbursement from the worker after initially paying costs that
are the worker's responsibility and are primarily for the benefit of
the worker (such as passport costs). In determining the employer's
responsibility to cover expenses related to H-2 employment, the
question is not whether H-2 workers derive a benefit from payment of
such fees, but whether, under applicable regulations and guidance, the
payment is made primarily for the benefit of the employer.\32\
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\32\ See, e.g., 29 CFR 531.3(d)(1) (``The cost of furnishing
`facilities' found by the Administrator to be primarily for the
benefit or convenience of the employer will not be recognized as
reasonable and may not therefore be included in computing wages.'');
80 FR 24042, 24063 (Apr. 29, 2015) (``DOL's longstanding position is
that deductions or costs incurred for facilities that are primarily
for the benefit or convenience of the employer will not be
recognized as reasonable and therefore may not be charged to the
worker.''); see also DOL, ``Travel and Visa Expenses of H-2B Workers
Under the FLSA'' (Aug. 21, 2009) (stating that in determining which
pre-employment expenses incurred by the employee must be reimbursed
back to the employee, ``the question is whether these expenses for
H-2B nonimmigrant workers are `an incident of and necessary to the
employment, and therefore are primarily for the benefit or
convenience of the employer''), <a href="https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf">https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FieldAssistanceBulletin2009_2.pdf</a>.
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d. Prohibiting Breach of Contract Fees and Penalties
Comment: Several commenters, including multiple trade associations,
a union, and a joint submission, generally supported the inclusion of a
breach of contract or penalty as a prohibited fee but requested DHS to
clarify what constitutes a prohibited breach of contract fee or
penalty. For example, multiple trade associations and a joint
submission requested that DHS clarify what would constitute a breach of
contract fee or penalty in circumstances where workers abandon or are
terminated for cause from their work. The commenters requested that DHS
clarify that the employer would not be deemed to have charged a breach
of contract fee for failing to offer guaranteed work hours or provide
return transportation in those cases. The joint submission asked
whether the new regulation would preclude an employer from
incorporating into the H-2A or H-2B contract a ``no complete, no
rehire'' clause stating that workers will not be rehired for future
contracts if they resign without cause prior to the agreed-upon end
date.
Response: DHS will not consider the petitioner's failure to offer
guaranteed work hours, provide return transportation, and pay
subsistence costs as a breach of contract fee or penalty, where DOL or
DHS regulations relieve a petitioner of its responsibility to offer
guaranteed work hours, provide return transportation, and pay
subsistence costs for a beneficiary who has voluntarily left employment
or was terminated for cause. See, e.g., 20 CFR 655.20(y) (abandonment/
termination of employment for H-2B workers); 20 CFR 655.122(n)
(abandonment of employment or termination for cause for H-2A workers).
Similarly, with respect to the commenters' question about a ``no
complete, no rehire'' clause for a beneficiary who voluntarily left
employment or was terminated for cause, DHS will not consider this
clause a prohibited ``fee or penalty for breach of contract'' under new
8 CFR 214.2(h)(5)(xi)(A) or (6)(i)(B) so long as the consequence to the
worker is limited to not being rehired by the petitioner
[[Page 103226]]
and does not include a monetary or financial penalty or fee for such
termination or voluntary departure. However, DHS cautions that while
such a clause does not fall under the ``prohibited fee'' provisions, it
may implicate other statutory or regulatory provisions such as DOL's
prohibition on discrimination or retaliation under the H-2A program at
29 CFR 501.4. Petitioners and employers should take these other
provisions into account when adopting such a clause or taking actions
pursuant to such a clause.
Comment: A State agency stated it is ``understandable to not charge
excessive fees for the worker not completing the contract,'' but
expressed concern that by prohibiting the charging of breach of
contract fees, an employer could pay upfront several hundreds or
thousands of dollars for a worker, just for the worker to leave the job
after a short time without any consequences to the worker.
Response: DHS acknowledges that an employer may be required to
invest significant resources in petitioning for H-2 workers. However,
certain costs associated with participation in the H-2 program are the
responsibility of the employer. These costs remain the responsibility
of the employer even if the worker departs prior to the end of the
petition period and the employer may not seek to recover these costs
through a ``breach of contract'' fee or otherwise.
Comment: A few commenters, including advocacy groups and a
professional association, expressed support for the proposed changes
prohibiting breach of contract fees and penalties. An advocacy group
recommended that USCIS strengthen this language even further by
prohibiting non-monetary penalties or penalties imposed on a worker's
relations or anyone acting on behalf of the worker. The advocacy group
also proposed specific language adjustments for section
214.2(h)(5)(xi)(A) with corresponding changes for section
212.4(h)(6)(i)(B), to specify that ``Requiring a beneficiary or any
person related to the beneficiary or acting on the beneficiary's behalf
to sign a negotiable instrument or grant a security interest in any
collateral constitutes the collection of a prohibited fee.''
Response: In response to the comment from the advocacy group, DHS
is adding text to clarify that a prohibited fee may not be collected
from a beneficiary ``or any person acting on the beneficiary's behalf''
at new 8 CFR 214.2(h)(5)(xi)(A) and (6)(i)(B). This language is meant
to clarify that an employer may not circumvent these provisions by
collecting an otherwise prohibited fee from a third party (such as a
family member) acting on the beneficiary's behalf.
DHS declines to add the remaining suggested text to the final
regulation regarding ``a negotiable instrument or grant a security
interest in any collateral.'' While DHS agrees that prohibited fees may
be collected in a variety of ways, including by requiring a beneficiary
or someone acting on their behalf to grant a security interest in any
collateral, the changes to 8 CFR 214.2(h)(5)(xi)(A) and (6)(i)(B) to
prohibit any ``other fee, penalty, or compensation (either direct or
indirect), related to the H-2[A/B] employment'' are sufficiently broad
to cover this and similar types of scenarios. Additionally, while DHS
agrees that requiring a beneficiary or someone acting on their behalf
to sign a negotiable instrument (such as a promissory note) to pay a
prohibited fee would not be permissible, the phrases ``agreement to
collect'' and ``agreed to pay'' at 8 CFR 214.2(h)(5)(xi)(A)(1) and
(6)(i)(B)(1), and 8 CFR 214.2(h)(5)(xi)(A)(2) and (6)(i)(B)(2),
respectively, are sufficiently broad to cover this scenario and similar
types of scenarios. There may be other fact patterns that could
constitute the collection of or an agreement to collect a prohibited
fee, and as such, codifying the technical terms ``negotiable
instrument,'' ``security interest,'' and ``collateral'' is unnecessary.
e. Strengthening the Prohibited Fee Provisions
Comment: Citing reports and statistics showing the pervasiveness of
prohibited fees, an advocacy group welcomed the Department's efforts to
strengthen enforcement against such fees. Another advocacy group,
citing a statement from an H-2A worker, similarly expressed strong
support for DHS's efforts to provide more effective enforcement on
recruitment fees and other unlawful fees. A union generally endorsed
the Department's efforts to increase accountability for employers who
use foreign recruiters and other third-party agents through the
proposed fee provisions.
An advocacy group similarly expressed support for the proposal to
strengthen the existing prohibition on and consequences for charging
certain fees to H-2A workers. The commenter concurred with the
Department's assessment that the consequences for employers charging
prohibited fees could, in conjunction with the whistleblower
protections, reduce disincentives for workers to report prohibited
fees.
Citing various statistics and reports, a joint submission expressed
broad support for DHS's proposals with respect to prohibited recruiter
fees. The commenters agreed with the Department's rationale that
targeting employers who charge prohibited fees would also help to
target human and labor trafficking. The commenters concluded that the
pervasiveness of trafficking in the H-2A program and the egregiousness
of the associated crimes justify DHS's proposals and require the rule's
swift implementation.
A union expressed strong support for DHS's proposal to eliminate
the current regulatory exemptions that allow employers to avoid
liability for the charging of prohibited fees. The union reasoned that
the current regulations provide too many exemptions and eliminating
them would make it more difficult for employers to avoid the
consequences of their actions, as well as the actions of their agents.
An advocacy group expressed overall support for the proposed
language to strengthen the applicability of the prohibited fees
provisions while citing provisions that would narrow the circumstances
in which petitioners could avoid revocation or denial. The group
acknowledged that the ``very high standard'' established in the
regulations would require petitioners to take an active role in
ensuring that their employees do not charge prohibited fees, and that a
``mere lack of awareness'' would not allow petitioners to avoid
consequences. Citing examples, the commenter reasoned that many H-2
employers rely on employees to recruit new H-2 workers, without taking
any steps to ensure that these employees are not charging fees to their
recruits. The commenter additionally reasoned that H-2 petitioners are
already obligated to ensure their employees comply with various legal
obligations, so compliance with the H-2 regulations on prohibited fees
should not be an exception. While similarly describing the standards
under this section of the rule, another advocacy group emphasized the
need for employers to discourage their agents and employees from
charging prohibited fees, rather than allowing them to claim ignorance
of fees to avoid penalties. The group concluded that the proposed
affirmative obligations for employers would improve and maintain the
integrity of the H-2 program.
Response: DHS appreciates the broad support offered by these
commenters for the changes made in relation to strengthening the H-2
prohibited fees provisions. Despite existing regulatory provisions
against charging certain fees
[[Page 103227]]
to H-2 employees, incidents of workers reporting prohibited fees were
levied on them at some point during the recruitment and hiring process
remain pervasive, as the commenters note. The changes proposed in the
NPRM to enhance the integrity of the H-2 programs and provide
additional worker protections are adopted in this final rule with some
clarifying revisions; any amendments to those proposals based on public
comment are discussed in detail under the appropriate section.
Comment: Multiple commenters expressed concern with DHS's proposal
to eliminate 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, as summarized below.
A joint submission wrote that, under current regulations, employers
must take remedial action as a condition of approval, which provides
employers with a reasonable opportunity to resolve and remedy
violations that occur without their knowledge or involvement. The
commenters said that the proposal to remove such opportunities is
``unbalanced'' and penalizes employers disproportionately. Similarly, a
business association wrote that the proposal is concerning to
businesses and would cause unnecessary disruptions for well-meaning
employers that rely on the H-2 program to meet their workforce needs. A
research organization wrote that the proposal to remove the exception
to denial when an employer reimburses the fee before filing the
petition is ``unjustifiable,'' as it would create an automatic denial
in every situation where a prohibited fee is identified anywhere in the
chain of recruitment.
A few trade associations wrote that they supported strong
enforcement against the unlawful collection of or threats to collect
prohibited fees. However, they expressed concern that the proposal to
eliminate these exceptions would prevent employers from accessing the
program through correctional mechanisms (that is, through reimbursement
or correctional action with DHS) whereby they can rectify situations in
which the unlawful collection of fees occurred outside of their
knowledge, or where it was ``impossible'' to prevent unlawful fee
collection. A couple of these associations additionally wrote that
DHS's proposal to eliminate the exceptions ``takes a sledgehammer to an
issue that requires a scalpel.''
Another trade association similarly expressed support for
enforcement against prohibited fee collection, but said that the
proposal to eliminate the exemptions would prevent growers from
accessing a program on which they depend due to reasons ``far outside
of their control,'' including actors deliberately and deceptively
acting contrary to the employer's direction not to collect prohibited
fees. A few trade associations additionally reasoned that the
collection or threatened collection of prohibited fees often occurs in
home countries, and U.S. employers have limited control in such
situations, so it would be inappropriate to impose serious penalties
any time a prohibited fee is discovered. Another trade association
added that the Department's ``shortsighted'' proposal would disregard
the totality of the implications in such situations and would
negatively impact both employers and employees, rather than holding the
parties conducting the unlawful collection of fees accountable.
A business association wrote that the Department did not consider
other alternatives to removing the current exception, such as retaining
the exception to avoid petition revocation or denial only if workers
are fully reimbursed and where the petitioner had no knowledge of the
unlawful fee, and only denying or revoking a petition for egregious
cases where employers knowingly charged or threatened a prohibited fee.
A joint submission suggested that the Department consider making an
``exception contingent on the employer attesting, under penalty of
perjury, that it had no actual or constructive knowledge of the fee
scheme.'' The commenter further suggested that the Department make this
exemption inapplicable if there is evidence demonstrating that the
petitioner had direct involvement or actual knowledge of the scheme or
benefitted from it financially.
Response: DHS declines to make any revisions based on these
comments to its proposed strengthening of the H-2 prohibited fees
provisions. The proposed changes in the NPRM, and now finalized in this
rule, are meant to address, in part, two major vulnerabilities with
respect to current regulatory provisions requiring reimbursement of
beneficiaries as a condition of approval. First, DHS adopts these
strengthened provisions in recognition of the potential harm to
beneficiaries and in some cases their families who may have to borrow
or otherwise incur debt to pay prohibited fees. Indebted noncitizen
workers are more vulnerable to exploitation and coercive actions of
unscrupulous employers or agents working on the employer's behalf. So,
despite later reimbursement of the fees charged to these workers,
significant damage may have already occurred. Second, in finalizing
these new provisions, DHS recognizes that under the current, long-
standing regulatory framework, reports of prohibited fees paid by
beneficiaries remain prevalent.\33\ Current provisions allow
petitioners to avoid any liability for these types of fees being
charged in cases where they have reimbursed the worker, or if the
worker is unavailable, they claim reasonable efforts have been made to
locate the worker.
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\33\ See, e.g., GAO, GAO-10-1053, ``Closed Civil and Criminal
Cases Illustrate Instances of H-2B Workers Being Targets of Fraud
and Abuse'' (2010) (describing various instances when employer
charge excessive fees), <a href="https://www.gao.gov/assets/gao-10-1053.pdf">https://www.gao.gov/assets/gao-10-1053.pdf</a>;
GAO, GAO-15-154, ``Increased Protections Needed for Foreign
Workers'' (2015) (specifying instances of abuses during the
recruitment process, including the charging of prohibited fees),
<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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Though reimbursing workers charged prohibited fees is vital, and
provisions adopted in this final rule require fully reimbursing such
workers or their designees, DHS's intent here is to maximize incentives
for petitioners to take affirmative measures to prevent workers from
being charged or threatened with these fees in the first instance. The
commenters' suggestions that DHS should maintain the current 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, do not adequately
recognize the harm already done to affected beneficiaries by having to
come up with the funds to pay those fees upfront. Similarly, the
commenters' suggestions to make an exception for petitioners who have
no knowledge of or direct involvement in the prohibited fees do not
adequately recognize the harm already done to affected beneficiaries,
and furthermore, may even incentivize petitioners to remain ignorant
about prohibited fee practices affecting their workers. These
suggestions also do not adequately address the inadequacies of the
current regulatory provisions which focus solely on reimbursement as
the appropriate remedy rather than providing incentives for a
petitioner to prevent these violations from occurring in the first
place.
f. Similar Employment Services
Comment: Multiple trade associations expressed concern about a lack
of clarity around ``similar employment services.''
[[Page 103228]]
Some of these associations regarded the lack of a definition for
``similar employment services'' as concerning given the Department's
push for employers to recruit from Northern Central American countries
through their Ministries of Labor. A few of the associations asked
whether ministries of labor would count as ``similar employment
services.'' Providing examples from recent cases of illegal activity
within a Northern Central American ministry of labor and the Georgia
State Workforce Agency, the commenters added that the vague provision
surrounding ``similar employment services'' is concerning for
employers.
Response: DHS thanks these commenters for their submissions
regarding clarification for the phrase ``similar employment services.''
Noting that this phrase has long been included in DHS H-2A and H-2B
regulations, it is reasonable to amend these provisions to offer
clarification for what may constitute ``similar employment services''
in the context of the strengthened prohibitions on charging H-2 workers
certain fees. Based on feedback from commenters, DHS is amending its
regulatory provisions at new 8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) to now read, ``The term `similar employment service'
refers to any person or entity that recruits or solicits prospective
beneficiaries of the [H-2] petition.'' In accordance with this
clarification, this includes recruitment or employment services offered
by private, nongovernmental individuals and entities, quasi-
governmental entities (such as private entities working jointly with
ministries of labor), and governmental entities (such as ministries of
labor).
g. Due Diligence Standard
Comment: An advocacy group welcomed DHS's clarification around the
petitioners' responsibility to conduct ``due diligence'' to ensure that
recruiters and other agents in their labor supply chain are not
charging prohibited fees. Another advocacy group wrote that workers
were generally optimistic that the due diligence provisions would cause
employers to be more cautious in the recruitment process, particularly
with regard to fees charged by third-party recruiters and their own
employees.
A joint submission generally acknowledged that under the proposed
rule, H-2 employers would be responsible for conducting due diligence
to ensure that their recruiters and other employees do not charge
workers unlawful recruitment or other fees. The commenters said that
the proposed provisions would strengthen the enforcement of
prohibitions on charging unlawful fees, which severely harm workers.
Response: DHS appreciates the support from these commenters. H-2
employers are responsible for ensuring that individuals and entities
that recruit, or that otherwise act on behalf of the employer and/or
the recruiter, comply with all H-2 program requirements, including the
prohibition on collection of fees related to H-2 employment. Based on
feedback requesting clarification as to what constitutes due diligence
that DHS received on its proposed rule, DHS is revising the provisions
introduced in the NPRM as discussed in detail below.
Comment: Numerous trade and business associations and a
professional association expressed concern with the requirement that
employers demonstrate to USCIS that they engaged in ``due diligence''
to prevent the collection of prohibited fees on the basis that the
provision lacks a clear explanation for satisfying the requirement and
is overly broad as to what ``due diligence'' would entail. A trade
association urged the Department to address this concern in the final
rule.
A joint submission wrote that the provisions do not offer a
definition of ``due diligence'' or provide examples of what this
requirement would look like, except to say that a written contract ``by
itself'' is insufficient. The commenters said that the Department's
attempt to mitigate uncertainty through this statement is inadequate to
protect against the provision's overreach. The commenters wrote that,
as the rule does not adequately apprise the regulated community as to
its obligations, the rule is impermissibly vague and violates due
process.
A couple of trade associations similarly remarked that the proposed
rule is impermissibly vague and fails to define what specific objective
steps must be taken to fulfill the ``due diligence'' requirement. The
associations said that the proposed rule's failure to discuss the
applicable standard of proof and failure to establish an objective
standard deprive the public of the opportunity to comment on the
proposal.
A trade association reasoned that the ``broad and vague'' wording
around due diligence would leave employers with a lack of understanding
of agency expectations and would create challenges for employers to
avoid penalties despite their ``good faith efforts'' to adhere to due
diligence obligations. The association additionally wrote that vague
due diligence requirements without parameters would prevent the
application of a consistent standard and raise the risk of penalization
for employers depending on how the agency interprets the requirement in
each situation.
Another association wrote that the proposed due diligence standard
is unreasonably broad and unattainable such that employers would
``never be able to reasonably meet its conditions.'' The association
further remarked that while the Department explains that a lack of
knowledge of an incident or even explicit contract terms prohibiting
such fees are not sufficient to meet the ``due diligence'' standard, it
does not explain what measures it would deem sufficient.
A research organization stated that, under the proposed rule, ``a
mere lack of awareness'' is no excuse for employers, yet the rule does
not offer advice to employers on what constitutes ``due diligence'' to
avoid mistakes or the collection of prohibited fees.
Response: DHS appreciates the attention paid by commenters on its
proposed provisions on prohibited fees and reiterates its commitment
that employers conduct due diligence to ensure all parties acting on
the employers' behalf comply with all H-2 program requirements. In
light of commenters' calls for additional clarity regarding the due
diligence standard, however, the Department is revising proposed
214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2) to offer greater
clarification and simplification. Specifically, DHS is foregoing the
proposed ``did not know and could not, through due diligence, have
learned'' language and instead requiring the petitioner to demonstrate
``ongoing, good faith, reasonable efforts to prevent and learn of the
prohibited fee collection or agreement by such third parties throughout
the recruitment, hiring, and employment process.'' This revision is
intended to clarify what ``due diligence'' means and better aligns the
regulatory language at new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2) with new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1).\34\ This revision also
[[Page 103229]]
more clearly explains the petitioner's obligation to not only prevent
prohibited fee collection or agreement, but also an ongoing obligation
to prevent and learn of such fees, given that such fees could be
collected or agreed upon at various points in time during the
recruitment, hiring, or employment process. Although DHS is replacing
``due diligence'' with ``ongoing, good faith, reasonable efforts'' in
light of comments requesting clarity on the ``due diligence'' standard,
DHS emphasizes that is not a substantive change as ``due diligence''
and ``ongoing, good faith, reasonable efforts'' in this context require
the same diligent level of effort by the petitioner.\35\
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\34\ As will be discussed below, DHS is making corresponding
revisions to new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1) to clarify the standards under which a
petitioner will be held accountable for its own prohibited fee-
related violations or those of its employees. As finalized, new 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) will
require the petitioner to demonstrate that it ``made ongoing, good
faith, reasonable efforts to prevent and learn of the prohibited fee
collection or agreement by its employees throughout the recruitment,
hiring, and employment process.'' This language replaces the
``significant efforts'' language in proposed 8 CFR
214.2(h)(5)(xi)(A)(1), 8 CFR 214.2(h)(6)(i)(B)(1), and also the
proposed ``due diligence'' language in proposed 8 CFR
214.2(h)(5)(xi)(A)(2), 8 CFR 214.2(h)(6)(i)(B)(2). These changes
clarify that the proposed ``significant efforts'' and ``due
diligence'' standards were not meant to be materially different from
each other.
\35\ One dictionary definition of ``due diligence'' is ``action
that is considered reasonable for people to be expected to take in
order to keep themselves or others and their property safe.''
Cambridge Dictionary, ``Due Diligence,'' <a href="https://dictionary.cambridge.org/us/dictionary/english/due-diligence">https://dictionary.cambridge.org/us/dictionary/english/due-diligence</a>; see
also Merriam Webster Dictionary (defining ``due diligence'' as ``the
care that a reasonable person exercises to avoid harm to other
persons or their property''), <a href="https://www.merriam-webster.com/dictionary/due%20diligence">https://www.merriam-webster.com/dictionary/due%20diligence</a>; Black's Law Dictionary (12th ed. 2024)
(``The diligence reasonably expected from, and ordinarily exercised
by, a person who seeks to satisfy a legal requirement or to
discharge an obligation.'').
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Further, new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2) require the petitioner to take immediate remedial
action as soon as it becomes aware of the payment of or agreement to
pay the prohibited fee. While this requirement was initially proposed
for 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1), it was
not initially proposed for 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2), and is now included in the final regulatory text
to better ensure parity between 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1), and 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2). These changes also are responsive to comments
about the importance of ensuring that the petitioner take immediate
remedial action to resolve and remedy violations, which can include
immediate termination of the relationship with the recruiter or agent
(in addition to full reimbursement to the beneficiary or the designee).
DHS agrees with these comments and, as reflected by these changes,
emphasizes that a petitioner should take immediate remedial action as
soon as it becomes aware of the payment of or agreement to pay the
prohibited fee, regardless of whether the prohibited fee payment or
agreement to pay the prohibited fee was made to the petitioner, or to
its agent, attorney, employer, facilitator, recruiter, or similar
employment service, or joint employer as applicable.
To summarize, under new 8 CFR 214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2), if it is determined that the beneficiary paid or
agreed to pay a prohibited fee related to the H-2 employment to any
agent, attorney, employer, facilitator, recruiter, or similar
employment service, or any joint employer as applicable, whether before
or after the filing of the H-2 petition, the petition will be denied or
revoked on notice unless the following factors are demonstrated through
clear and convincing evidence:
(1) The petitioner made ongoing, good faith, reasonable efforts to
prevent and learn of the prohibited fee collection or agreement by its
employees throughout the recruitment, hiring, and employment process;
(2) The petitioner took immediate remedial action as soon as it
became aware of the payment of or agreement to pay the prohibited fee;
and
(3) The petitioner fully reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be located or are deceased, it fully
reimbursed the beneficiaries' designees.
Overall, these changes clarify what specific steps a petitioner
must take to avoid liability for prohibited fee collection or agreement
by a third party. These changes should help alleviate the commenters'
concerns about the proposed provisions being overly broad, vague,
unattainable, or having undefined standards. To provide further
clarity, DHS discusses additional non-exclusive examples of how a
petitioner may demonstrate that it made ongoing, good faith, reasonable
efforts in another comment response below. DHS assures petitioners that
the intent of the ``ongoing, good faith, reasonable efforts''
requirement is to ensure the integrity of the H-2 programs and to
provide worker protections by better ensuring petitioners exercise
ongoing reasonable efforts, based on the totality of the circumstances,
to prevent the payment or collection of prohibited fees.
Comment: A trade association said that placing the burden on
employers to root out prohibited fee collection among various actors,
is ``unfairly strict and impractical.'' The group wrote that, under the
proposed rule, employers could be held responsible for monitoring
actions hundreds or thousands of miles away. A few individual
commenters remarked that ``forcing'' employers to show due diligence
would be ``onerous'' and suggested that this work be carried out by
enforcement on recruiters. An individual commenter stated that the
provisions to deny or revoke H-2 petitions based on undefined standards
are ``heavy-handed and arbitrary.'' The commenter wrote that employers
would have to go to ``extreme lengths'' to show due diligence that they
worked to prevent prohibited recruitment fees under the proposed
provisions. A professional association similarly regarded the proposed
rule's standards as ``extremely high'' and ``relentless'' with respect
to employer requirements, penalties, and limited opportunities for
relief.
A trade association wrote that placing the burden on petitioners to
``police'' the payment of prohibited fees would be unreasonable and
unfair. The association remarked that it would not be feasible for
petitioners to conduct every step of recruitment themselves and thus,
they must rely on foreign recruiters. The association, along with
another trade association, said that, as proposed, DHS unfairly places
the burden on petitioners to prevent the collection of prohibited fees
and issues unjust consequences if they fail.
Other commenters claim that, by removing the knowledge requirement
from the violation and abolishing the current safe harbor provision,
the Department is proposing a ``strict liability system'' in which the
mere allegation of the payment or solicitation of fees results in the
petitioner being deemed guilty and then the petitioner must prove by an
extraordinarily high burden that he is innocent. A trade association
wrote that placing ``strict liability'' on U.S. employers for actions
taken by a foreign recruiter is not an appropriate solution. Another
association said that the broadly defined due diligence requirement
would amount to ``strict liability.''
A joint submission wrote that employers would be limited in their
ability to prevent wrongdoing by third parties, and they cannot
guarantee compliance with the rules at all times by all persons. While
acknowledging that the risk to employers may increase with the scale of
the agent or facilitators they hire, the commenters warned that the
proposed rule may have the opposite of its intended effect and instead
incentivize employers to hire smaller, less reputable, less ethical
agents or facilitators as they may be perceived to be easier to
monitor, which would result in less compliance and more worker
exploitation.
[[Page 103230]]
A professional association expressed opposition to the prohibited
fee provision that would impose liability on employers for the actions
of third parties. The association stated that employers would have to
take affirmative steps to demonstrate that the third party was not
engaging in prohibited conduct, or else be liable for the associated
penalties. The association warned that such punitive measures would
disincentivize employers to participate in the H-2 program to avoid the
risk of liability for actions outside of their control.
While articulating the need for petitioners to take steps to
monitor their supply chains, a professional association voiced concern
that employers cannot reasonably know everything that is happening. The
association said that petitioners should not be held liable for the
actions of third parties if they took immediate remedial action upon
learning about a potential violation.
Another trade association expressed concern that employers acting
in good faith and engaging recruitment services from vetted entities
would not be able to preclude the possibility of prohibited fees by any
one employee of a third-party entity and, under the proposed
provisions, would effectively be barred from the program no matter what
preventative measures they took. The association urged the Department
to be more judicious in considering what standards are fair to place on
the regulated community. The association concluded that the Department
should consider ``reasonable'' alternative measures, though offering no
specific proposals, to reduce instances of prohibited fee payments
while allowing employers to protect workers, rather than subjecting
them to ``strict liability'' for unknown actions of third parties.
A couple of trade associations expressed concern that employers
would be held liable for actions by individuals who are not in
contractual privity with them. The associations also stated that the
Department's proposal fails to account for varying circumstances and
different actors in the context of the collection of prohibited fees.
For example, the associations indicated that under the proposed rule,
employers would be liable for actions beyond their control, such as the
collection of improper fees by foreign government officials. In
considering these issues, the associations regarded DHS's proposal to
punish employers for actions by third parties beyond their control,
including those with whom they have no contractual relationship, as
``imprudent'' and ``unreasonable.''
Response: DHS disagrees with commenters' statements that the
Department is being unfair, impractical, unreasonable, or imprudent in
ensuring the burden is on petitioners to properly monitor and assume
responsibility for the actions of third parties engaging in recruitment
activities on its behalf. DHS acknowledges the comments that
petitioners cannot always conduct each step of the recruitment process
themselves and therefore often rely on foreign recruiters, agents, or
other third parties to do so. Nevertheless, it is reasonable to place
the burden on the petitioner to ensure that prohibited fees are not
collected by such third parties. The petitioner, in hiring recruiters
or other third parties, is in a position to condition the hiring of
such parties upon the latter monitoring the activities of those further
down the recruitment and hiring chain, even if the latter are located
outside of the United States. In this regard, it is in the mutual
interest of petitioners and recruiters to ensure against denials of
petitions based on payment of prohibited fees. Furthermore, DHS reminds
these commenters of the long-standing regulatory provisions against
prohibited fees being charged to H-2 workers by foreign recruiters. It
is therefore reasonable to expect that petitioners who currently work
with foreign recruiters already have at least some practices in place
in which to effectively monitor the activities of those recruiters and
ensure compliance with H-2 regulations. In other words, the requirement
to oversee or monitor the charging of prohibited fees is not new with
the NPRM or with this final rule.
This final rule does adopt measures to better ensure petitioners
are liable for the actions of the third parties they engage for
recruitment services. It is possible, however, for petitioners to avoid
liability and possible consequences of a finding of prohibited fees
charged by third parties if they demonstrate through clear and
convincing evidence that they made ongoing, good faith, reasonable
efforts to prevent and learn of the prohibited fee collection or
agreement by such third parties throughout the recruitment, hiring, and
employment process; they took immediate remedial action as soon as it
became aware of the payment of the prohibited fee or agreement; and
that all affected beneficiaries or, in certain circumstances, their
designees have been fully reimbursed. See new 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR 214.2(h)(6)(i)(B)(2). Therefore, DHS
disagrees with some commenters' characterizations of these provisions
as creating a new ``strict liability'' standard that would effectively
deny a petitioner ``no matter what preventative measures they took.''
To the contrary, the new provisions incentivize petitioners to exercise
ongoing, good faith, reasonable efforts, based on the totality of the
circumstances, to prevent the payment of prohibited fees in the first
place.
Finally, regarding the concerns that these provisions may
incentivize employers to hire smaller, less reputable, less ethical
agents which would result in less compliance and more worker
exploitation, or may even disincentivize employers from participating
in the H-2 program, such an assertion is speculative. For the reasons
stated above, DHS assumes that good faith employers and agents have
and, under this rule, will continue to have a strong incentive to
ensure compliance with the terms and conditions of the H-2 program.
Comment: Several commenters who opposed the proposed ``due
diligence'' provisions expressed specific concerns about the negative
impact these provisions would have on H-2 workers. For instance, a
research organization articulated its concern that the proposed rule
would not be a rights-enhancing provision for the impacted population.
The organization further remarked that the rule would be unfair to
workers who would lose their ability to work in the United States for
an employer who wants to rectify the infraction. The commenter urged
DHS to consider what would happen to workers who are unjustly denied a
visa under the proposed rule and concluded that restricting the H-2
visa would lead to unauthorized immigration.
Another commenter, along with a joint submission, further remarked
that the nature of the proposal is such that it would discourage
workers from reporting fee violations for fear of losing employment or
jeopardizing their relationships with the employer.
Other commenters said that the rule, as proposed, would harm
domestic and H-2A farm workers by reducing employment opportunities and
diverting employer resources away from workers by making employers
spend more resources to prove that prohibited fee collections or
agreements did not occur.
Response: DHS appreciates the commenters' concerns about the
potential negative effects of the proposed changes on H-2 workers. DHS
anticipates that other provisions in this rule, such as the new
whistleblower protections, grace periods, and permanent portability
provisions, will
[[Page 103231]]
provide significant relief to affected workers by increasing their
ability to seek new employment and potentially lessening the impact of
reporting fee violations or otherwise jeopardizing their relationships
with an employer.
With respect to the comment that the prohibited fee provisions of
this rule would lead to unauthorized immigration, DHS disagrees with
this assertion, which is speculative and assumes that participants in
the H-2 program will be inclined to violate immigration laws rather
than comply with the terms and conditions of the H-2 program. Regarding
the comment asserting that the provisions would reduce employment
opportunities and divert employer resources away from workers by making
employers spend more resources to prove that prohibited fee collections
or agreements did not occur, the commenter did not provide support for
this assertion. While DHS anticipates this rule may result in some
increased costs for employers in instances where there is evidence that
prohibited fees may have been paid or agreed to, the commenter provides
no basis for its claims that the costs in these limited instances will
cause additional harm to workers, and the rule does not otherwise
create any new reporting or evidentiary requirements for employers
related to prohibited fees. Any employer costs incurred to prevent
prohibited fees are not new costs imposed by this rule as the
regulations this rule replaces already prohibits the collection of such
fees and as such, petitioners were reasonably expected under the
previous rule to have taken appropriate steps to ensure against the
collection of such fees.
Comment: In light of concerns with respect to the proposed ``due
diligence'' standard, a business association requested that the
Department provide a definition of ``due diligence'' and asked DHS to
clarify what documentation would suffice to demonstrate a petitioner's
efforts to meet this standard. The association requested that the
Department consider allowances for situations in which a petitioner is
not aware of an improper action by an agent, despite conducting due
diligence and including expectations within the contract, and asked
what courses of action are available for petitioners when a third party
is not responsive.
A trade association urged the Department to define ``measurable,
reasonable `affirmative steps''' employers could take to prevent the
collection of prohibited fees while recognizing the good practices that
employers already use. The association also recommended that the
Department consider which mitigating factors would be appropriate to
avoid debarment. A joint submission similarly requested that DHS
articulate specific guidance around due diligence, such as specifying
whether it is sufficient to require agents and facilitators to ask
workers during intake whether they have paid or been solicited to pay
fees, or have workers sign a written attestation that they have not
paid fees.
A trade association suggested that DHS clarify that an employer's
documented, good faith vetting of third parties would allow them to
avoid liability for conduct outside of their knowledge. The association
provided examples of this due diligence, such as written inquiries with
responses from the third party, requests to review employment
documents, and payment ledgers between visa applicants.
While discussing the due diligence provisions, a member farm
organization stated the need to establish reasonable expectations as to
what an employer can do from the United States when recruiters may be
``hundreds and even thousands of miles away.'' The group requested that
DHS reconsider what it considered to be overly strict provisions and
work with agricultural employers to find a ``healthy middle ground''
that benefits all parties.
Some advocacy groups responded to DHS's request for comment
regarding the types of due diligence activities that employers should
be required to undertake. The advocacy groups suggested that employers:
<bullet> Create mechanisms to communicate with workers directly
during the recruitment process and promptly investigate any reports of
prohibited fees;
<bullet> Seek out ways to be available to workers during the
recruitment process and create procedures for addressing abuses
promptly (for example, through a designated Compliance Officer who
reports to the employer and investigates and addresses unlawful fee
collection);
<bullet> Take immediate remedial action in the event a petitioner
discovers that a recruiter or agent has charged or entered into an
agreement to charge a prohibited fee (including, at a minimum, full
reimbursement and immediate termination of the relationship with the
recruiter or agent);
<bullet> Implement rigorous vetting and monitoring procedures, such
as through: (1) obtaining the agent's financial records, documentation
of compliance with applicable laws, and records related to their prior
recruitment of H-2 workers; (2) identifying agents or intermediaries
upon which recruiters rely, and creating processes to identify agents
or intermediaries not voluntarily disclosed; (3) conducting periodic
audits of recruiters' practices and finances and communicating policies
against recruitment fees; and
<bullet> Ensure that all agreements with recruiters provide for a
realistic fee structure that will not incentivize recruiters to pass
costs to workers to remain profitable.
The other advocacy group endorsed the above commenters'
recommendations in their submission and wrote that the first
recommendation would be especially critical for the proposed rule to
benefit workers.
A professional association expressed concerns with the examples of
relevant documentation provided in the NPRM, including ``evidence 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.'' In this regard, the
association said it should not be mandated for disclosure to DHS ``for
a [f]ishing expedition'' and that DHS must show cause on an individual
basis prior to soliciting this type of ``proprietary'' information.
Response: DHS acknowledges the concerns raised by these commenters
regarding the potential need for additional clarity as to the steps
employers should implement to exercise appropriate due diligence. As
clarified elsewhere, DHS is responding to feedback on its NPRM by
revising and clarifying the proposed due diligence provisions.
Specifically, DHS is removing the term ``due diligence'' from the
regulatory text to instead state that petitioners must have made
ongoing, good faith, reasonable efforts throughout the recruiting and
employment period to prevent and learn of the collection of a
prohibited fee. DHS emphasizes again that this revision is not intended
to be a less stringent standard than the proposed due diligence
requirement, but instead the change is offered as a more descriptive
process than the provision included in the NPRM.
DHS is particularly appreciative of those commenters who provided
specific examples in response to the NPRM's request for public input in
the NPRM. Indeed, the Department anticipated some interest and feedback
on this provision, and in the NPRM explicitly requested public input
regarding specific types of evidence that may be relevant and available
to meet the proposed changes. 88 FR 65040,
[[Page 103232]]
65055 (Sept. 20, 2023). Based on these comments, DHS is providing the
following examples of non-exclusive factors that may demonstrate
whether a petitioner has made ongoing, good faith, reasonable efforts
to prevent such fees. These factors may include, but are not limited to
(1) whether the petitioner was providing compensation to the third
party entity such that the third party would have no incentive to pass
on costs to workers; (2) whether the petitioner had procedures to
contact and monitor the performance of relevant parties in the
recruitment chain, whether located in the United States or abroad; and
(3) whether the petitioner has a mechanism to communicate directly with
workers during and after the recruitment process and properly
investigate any reports of prohibited fees. As noted above, the
determination under new 214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2)
will be made on a case-by-case basis, taking into consideration all of
the facts presented.
To show that a petitioner was providing compensation to the third
party entity such that it would have no incentive to pass on costs to
workers, the NPRM provided examples of documentation that could be
submitted including ``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.'' 88 FR 65040,
65054-55 (Sept. 20, 2023). Contrary to a commenter's claim that
``[t]his type of information is proprietary and should not be mandated
to be disclosed to DHS for a [f]ishing expedition,'' these are merely
examples of the types of evidence a petitioner may submit to
demonstrate due diligence (which DHS now calls ``ongoing, good faith,
reasonable efforts''). New 214.2(h)(5)(xi)(A)(2) and
214.2(h)(6)(i)(B)(2) do not mandate the submission of any specific
document nor the disclosure of any specific financial or proprietary
information. Further, the petitioner may redact or sanitize a document
in a manner that the document is still sufficiently detailed and
comprehensive yet does not reveal sensitive financial or proprietary
information. These clarifications should alleviate the petitioner's
concerns about providing proprietary or sensitive financial information
to DHS. DHS therefore disagrees with the commenter's suggestion that in
providing these examples in its NPRM as to evidence that may meet the
proposed due diligence requirement that the Department would solicit
proprietary information to engage in a ``[f]ishing expedition.''
To show what procedures a petitioner has in place to properly vet
and monitor the recruiters, agents, or other third parties that it
utilizes to recruit H-2 workers, commenters provided various examples
such as: written inquiries with responses from the third party,
requests to review relevant employment documents, evidence that agents/
facilitators asked workers during intake whether they have paid or been
solicited to pay fees; evidence that the petitioner asked recruiters to
identify agents or intermediaries upon which the recruiters rely and
created processes to identify agents or intermediaries not voluntarily
disclosed; and evidence that the petitioner conducted periodic audits
of recruiters' practices and finances and communicate policies against
recruitment fees. DHS agrees with these examples, and notes that they
are non-exhaustive examples of the types of documentation a petitioner
may submit under this factor; no one document will be dispositive, and
all of the circumstances will be considered as a whole. DHS reminds
petitioners that, under new 214.2(h)(5)(xi)(A)(2) and
214.2(h)(6)(i)(B)(2), a written contract between the petitioner and the
third-party agent, attorney, facilitator, recruiter, similar employment
service, or member employer stating that such fees were prohibited will
not, by itself, be sufficient to demonstrate reasonable efforts. While
the language of such a contract may be considered, additional
documentation must be provided.
To show whether the petitioner has a mechanism to communicate
directly with workers during and after the recruitment process and
promptly investigate any reports of prohibited fees, commenters
suggested that a petitioner could submit evidence that it has a
designated Compliance Officer who reports to the employer and
investigates and addresses unlawful fee collection. A commenter further
suggested that a petitioner could submit evidence that they require
their recruiters to provide the Compliance Officer's contact
information to workers as part of the initial job offer, as well as
information about their rights in the recruitment process and
assurances against retaliation for reporting any concerns. Again, these
are just illustrative examples of the types of documentation a
petitioner may submit under this factor; no one document will be
dispositive, and all of the circumstances will be considered as a
whole.
Comment: An advocacy group and a union supported the proposed
specification that the prohibited fee provisions would also apply to
joint employers in the H-2A context and any employers in addition to
the petitioner in the H-2B context.
Response: DHS appreciates these commenters' support and adopts the
proposed specifications that prohibited fee provisions apply to joint
employers in the H-2A context, and any employer if different from the
petitioner in the H-2A and H-2B context, in this final rule.
Comment: A few trade associations indicated that they cannot
support the proposed regulations regarding joint employers and due
diligence as proposed. These commenters said that while they support
employers performing due diligence, an innocent member of an
association of U.S. agricultural producers should not have their
enterprise jeopardized by a ``bad actor'' within the association.
Response: As noted by the commenters, the provision at new 8 CFR
214.2(h)(5)(xi)(A) prohibits fees collected by any joint employer
including a member employer if the petitioner is an association of U.S.
agricultural employers. Further, under new 8 CFR 214.2(h)(5)(xi)(A)(2),
a USCIS determination that a beneficiary has paid or agreed to pay such
a fee to a member employer will result in a denial or revocation unless
the petitioner (in this case the association U.S. agricultural
employers) can establish that it qualifies for the limited exception in
that provision, which among other things, requires evidence that it
engaged in ongoing, good faith, reasonable efforts to prevent and learn
of its member employers' collection of prohibited fees. It is
reasonable to expect that any petitioner filing on behalf of both
itself and joint employers, including an association of U.S.
agricultural employers acting as petitioner, will take steps to ensure
that the representations it makes on other entities' behalf are
accurate, and that such entities in fact comply with program
requirements.\36\
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\36\ When filing the Form I-129 petition, an association of
agricultural employers certifies to the accuracy of the information
in the petition, including the representations it makes on behalf of
its joint employers, and agrees to the conditions of H-2A
employment. Each joint employer also signs the petition, assuming
responsibility for the representations in the petition and agreeing
to the conditions of H-2A eligibility.
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DHS recognizes that, under the new rule, a member employer who
complies with H-2 program requirements with
[[Page 103233]]
respect to its own workers could nonetheless be impacted by the
prohibited fee violation of a different employer listed on the same
petition. Specifically, such a prohibited fee violation may ultimately
lead to denial or revocation of the entire petition if the petitioner
is unable to demonstrate eligibility for the narrow exception. It is
worth noting, however, that the 1- to 4-year denial period following a
denial or revocation for prohibited fees would apply to the
petitioner--that is, the U.S. association of agricultural producers--
and not to each member employer listed as a joint employer on the
petition. Regardless, DHS notes that member employers have the option
to file individual petitions, and it is DHS's expectation that
employers will exercise care in determining with which, if any,
entities they will file jointly.
Comment: Several commenters cited examples of prohibited fees being
charged by government officials of countries where the United States
government has helped to promote recruitment of H-2 workers. The
commenters provided these examples to ask for more clarity regarding
the due diligence standard.
Response: DHS acknowledges the concerns regarding instances of
prohibited fees by some ministry of labor officials in foreign
governments which the United States government partnered with to
promote the H-2 programs. DHS clarifies that it may consider whether
the petitioner used one of these recruitment systems as a relevant
factor in determining whether the petitioner engaged in ongoing, good
faith, reasonable efforts. However, the fact that a petitioner used a
recruitment system developed in partnership with the U.S. government
will not by itself excuse an employer's failure to engage in the
requisite reasonable and ongoing efforts to ensure against the payment
of such prohibited fees. In all cases, DHS will make its determination
with respect to the question of prohibited fees based on all of the
facts presented.
Comment: Regarding the due diligence standard, a joint commenter
asked whether it would matter if ``the agent or facilitator has been
certified by a third-party such as the Equitable Food Initiative, the
U.N. Global Compact, or other organizations.''
Response: DHS declines to address third party certifications, as
the commenter did not provide any additional information about the
referenced certification programs nor demonstrate these programs'
relevance to how a petitioner might demonstrate due diligence, now
phrased as ``ongoing, good faith, reasonable efforts,'' under new
214.2(h)(5)(xi)(A)(2) and 214.2(h)(6)(i)(B)(2).
Comment: A professional association recommended that, instead of
placing the burden on employers to perform due diligence, DHS should
provide safe harbor for employers who use recruiters included in DOL's
H-2B Foreign Labor Recruiter List.
Response: DHS declines to adopt the suggestion to provide safe
harbor for employers who use recruiters included in DOL's H-2B Foreign
Labor Recruiter List. As stated on DOL's Foreign Labor Recruiter List
web page, by providing the information on this list, DOL ``will be able
to verify whether a recruiter is recruiting for legitimate H-2B job
opportunities in the United States.'' \37\ However, the web page
expressly states that DOL ``does not endorse any foreign labor agent or
recruiter included in the Foreign Labor Recruiter List, nor does
inclusion on this list signify that the recruiter is in compliance with
the H-2B program.'' DHS disagrees, therefore, that use of recruiters
from the list is a sufficient factor to provide a safe harbor for
petitioners, in part because DOL does not endorse any foreign labor
agent or recruiter included in the list and inclusion on the list does
not signify that the recruiter is in compliance with the H-2B program,
and because DHS does not verify this recruiter list or vet any of the
individual recruiters listed therein.
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\37\ DOL, Employment and Training Administration, ``Foreign
Labor Recruiter List,'' <a href="https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list">https://www.dol.gov/agencies/eta/foreign-labor/recruiter-list</a>.
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Comment: An advocacy group suggested that the Federal Government
provide more information about and control over the H-2 hiring process
overall and work to develop a multilingual, accessible platform
providing access to vetted employers and verified job offers. While
quoting a member of the affected population, the comm
[…truncated; see source link]Indexed from Federal Register on December 18, 2024.
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.