📣 Key Takeaways from the H-2 Modernization Final Rule

The H-2 Modernization Final Rule amending regulations for the H-2A (agricultural) and H-2B (non-agricultural) visa programs goes into effect on Friday, Jan 17, 2025. As a reminder, the rule focuses on worker protections, program flexibility, and efficiency improvements.

Major Updates:

Worker Protections & Fees

✅ Fee Prohibitions: Employers cannot charge workers for costs they are legally responsible for, such as transportation to worksites, though workers may pay for personal expenses like passport renewals. Employers can reimburse workers later if allowed by law.

✅ Breach of Contract Fees: Employers are prohibited from imposing penalties on workers for contract breaches.

✅ Due Diligence: Employers must take reasonable steps to prevent third parties (agents, recruiters, attorneys) from collecting prohibited fees and act immediately to address violations.

Consequences for Violations

✅ Denial Periods: Employers who violate fee prohibitions face mandatory denial periods of 1-3 years for petitions filed after the rule’s effective date.

✅ Mandatory Denials: Petitions will be denied for severe violations such as fraud or labor law breaches.

✅ Discretionary Denials: DHS may deny petitions for less severe violations, considering factors like the violation's nature and context.

Compliance Reviews

✅ USCIS will conduct compliance reviews and inspections, including site visits and interviews. Employers who fail to cooperate risk denial or revocation of petitions.

Whistleblower Protections

✅ H-2 workers reporting employer violations are protected from retaliation. Protections include the ability for workers to stay in the U.S. under extraordinary circumstances.

Worker Flexibilities

✅ Grace Periods: H-2 workers now have pre-validity grace periods of 10 days and post-validity grace periods of up to 30 days (60 days for employment cessation or petition revocation). These adjustments align with or exceed those for H-1B workers.

✅ Permanent Residence: Seeking lawful permanent residence is not a basis for H-2 benefit denial, though workers must maintain their foreign residence and temporary status requirements.

✅ Portability: Workers can change employers if a non-frivolous H-2 petition is filed on their behalf, provided their stay is still valid.

Program Efficiencies

✅ Eligible Country Lists: The rule eliminates the eligible country lists to reduce barriers, emphasizing fairness over geopolitical interests.

✅ 3-Year Stay Reset: The 3-year maximum stay for H-2 workers now resets after 60 uninterrupted days outside the U.S., replacing the previous interrupted stay provisions.

✅ Filing Process: Paper-based I-129 filing procedures remain unchanged, and petition updates will continue to be sent to the employer, petitioner, or attorney.

Applying for, and complying with, H-2A and H-2B visas is not easy. Let us help you.

Contact Denizen Immigration to discuss how we can help you today.