The Biden Administration’s new rule amending the regulations for the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs takes effect today, January 17, 2025. Issued by the Department of Homeland Security (DHS), the rule is designed to enhance worker protections while increasing flexibility for both workers and employers. These changes mark a significant shift in how the H-2 programs operate.
A key focus of the new rule is strengthening protections for temporary workers. Employers are now strictly prohibited from charging certain fees to H-2A and H-2B workers, and violations of this rule could result in severe penalties, including the denial of visa petitions. Additionally, whistleblower protections have been expanded, allowing H-2 workers to report workplace abuses without fear of retaliation. These safeguards align with those already available to H-1B workers. The rule also introduces new criteria for rejecting petitions from employers found guilty of labor law violations or misuse of the H-2 programs.
To ensure greater compliance, the rule imposes stricter requirements on employers. Petitioners must fully cooperate with compliance reviews and site inspections conducted by USCIS. Employers who fail to comply may have their visa petitions denied or revoked. Furthermore, USCIS now has the authority to reject applications if critical information cannot be verified, particularly in cases where employers do not cooperate with site visits or compliance checks.
The rule also increases flexibility for H-2 workers by introducing employment portability. Under the new provisions, eligible workers can start new jobs immediately after filing a petition to amend their stay, rather than waiting for approval. This change is expected to reduce employment delays for both workers and employers. Additionally, the rule simplifies eligibility requirements by removing nationality-based restrictions. Previously, DHS maintained an annual list of countries eligible for H-2 programs, but this requirement has been eliminated. As a result, Nepal, which was not on the list before, is now eligible for H-2 visas starting today.
Administrative updates have also been introduced to streamline the visa process. Starting today, employers must use a new edition of Form I-129 when petitioning for H-2 workers to ensure compliance with the revised regulations. The rule also standardizes the process for resetting the three-year stay limit for H-2 workers, requiring only a 60-day absence from the U.S., replacing the previous complex “interrupted stay” provisions.
The H-2A and H-2B visa programs have seen significant growth over the years, reflecting the increasing reliance on temporary foreign labor in both agricultural and nonagricultural sectors. In 2023, the U.S. issued a record-breaking 310,676 H-2A visas and 131,704 H-2B visas. With today’s implementation of these reforms, the Biden Administration aims to balance the need for foreign labor with stronger protections for workers, ensuring that the programs continue to meet economic demands while preventing exploitation.