The Biden Administration has announced a final rule amending regulations for the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs. Issued by the Department of Homeland Security (DHS), the new rule is designed to strengthen worker protections while providing greater flexibility for employers and workers.
“The final rule significantly strengthens worker protections by, among other things, imposing new consequences on companies that charge prohibited fees or violate our labor laws, and provides greater flexibility for H-2A and H-2B workers,” said USCIS.
The changes, which take effect on January 17, 2025, introduce significant updates to compliance measures, whistleblower protections, and the eligibility criteria for H-2 programs.
One of the key highlights of the rule is the enhanced protection for workers against exploitative practices. Companies are now strictly prohibited from charging certain fees to H-2A and H-2B workers. Violators of this provision face stricter consequences, including the denial of H-2 petitions.
The rule also introduces mandatory and discretionary grounds for rejecting petitions from employers found guilty of labor or legal violations or misuse of the H-2 programs. Additionally, whistleblower protections have been extended to H-2A and H-2B workers, granting them safeguards similar to those available to H-1B workers, ensuring they can report workplace abuses without fear of retaliation.
The rule also emphasizes compliance by requiring petitioners and employers to cooperate fully with USCIS compliance reviews and inspections. Employers who fail to comply risk having their petitions denied or revoked. USCIS now has the authority to deny or revoke petitions if information related to the petition cannot be verified, particularly if petitioners do not cooperate during site visits or compliance reviews.
To improve flexibility for H-2 workers, the rule introduces portability, allowing eligible workers to begin new employment immediately after filing a petition to amend their stay, rather than waiting for the petition to be approved. This change is expected to provide workers with greater mobility and reduce delays for employers.
Other updates simplify the eligibility rules. The new regulation eliminates the need for DHS to publish annual lists of designated countries eligible for H-2 programs, removing restrictions based on workers’ nationalities. For instance, Nepal was not on the eligible country list before, but starting January 17, Nepal will be eligible for H-2 visas.
Additionally, the rule standardizes the process for resetting the maximum three-year stay period for H-2 workers, requiring only a uniform 60-day absence from the U.S., replacing the previous “interrupted” stay provisions that were more complex and restrictive.
As part of the implementation, employers must use a new edition of Form I-129, Petition for a Nonimmigrant Worker, starting January 17, 2025. This administrative update ensures alignment with the revised regulations.
The H-2A and H-2B visa programs allow U.S. employers to hire foreign nationals for temporary agricultural and nonagricultural jobs, respectively. The H-2A visa is not subject to any numerical limitations, while the H-2B visa is subject to a statutory annual cap of 66,000, although this limit can be increased at DHS’s discretion. H-2A visas, which are for agricultural workers, are not subject to any numerical cap.
From fiscal year 1992 to 2023, the number of H-2A and H-2B visas issued annually varied significantly. In 1992, 6,445 H-2A visas and 12,552 H-2B visas were issued. Over the years, the number of H-2A visas increased steadily, reaching 31,774 in 2004 and continuing to rise to 108,144 in 2015. The peak came in 2022, with 298,336 H-2A visas issued. In fiscal year 2023, the U.S. Department of State issued 310,676 H-2A visas, the highest number recorded to date. On the other hand, H-2B visas followed a different trend, with their issuance rising more sharply in the early 2000s, reaching 122,541 in 2006 and peaking at 131,704 in 2023.
For H-2A visas, the number issued in 1992 was 6,445, increasing to 31,774 by 2004, and peaking in 2023 at 310,676 visas. During this period, the issuance of H-2A visas saw gradual growth with notable increases, particularly from 2016 to 2022, where it rose from 134,368 in 2016 to 257,898 in 2021. The number then surpassed 300,000 in 2023, marking a significant rise.
Similarly, for H-2B visas, the number issued was 12,552 in 1992, which steadily increased, reaching 129,547 in 2007. The number of H-2B visas continued to rise, reaching a high of 131,704 in 2023. The issuance of H-2B visas saw dramatic increases in the years leading up to 2007, with figures rising from 12,552 in 1992 to 122,541 in 2006. The number of H-2B visas issued then began to stabilize, remaining around 80,000 annually in recent years, with the exception of 2022, which saw a spike to 124,644, and 2023, which saw another significant increase to 131,704.
The issuance of H-2A and H-2B visas has fluctuated significantly over the years, with both programs experiencing periods of growth, peaking in recent years. The year 2023 saw the highest number of both H-2A and H-2B visas issued, reflecting the continued demand for foreign workers in both agricultural and nonagricultural sectors in the U.S.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
