65040 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

[CIS No. 2740–23; DHS Docket No. USCIS– 

2023–0012] 

RIN 1615–AC76 

Modernizing H–2 Program 

Requirements, Oversight, and Worker 

Protections 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security (DHS) proposes to amend its 

regulations affecting temporary 

agricultural (H–2A) and temporary 

nonagricultural (H–2B) nonimmigrant 

workers (H–2 programs) and their 

employers. This notice of proposed 

rulemaking is intended to better ensure 

the integrity of the H–2 programs and 

enhance protections for workers. 

DATES: Written comments must be 

submitted on or before November 20, 

2023. The electronic Federal Docket 

Management System will accept 

comments prior to midnight eastern 

time at the end of that day. 

ADDRESSES: You may submit comments 

on the entirety of this proposed 

rulemaking package, identified by DHS 

Docket No. USCIS–2023–0012 through 

the Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

Comments submitted in a manner 

other than the one listed above, 

including emails or letters sent to DHS 

or USCIS officials, will not be 

considered comments on the proposed 

rule and may not receive a response 

from DHS. Please note that DHS and 

USCIS cannot accept any comments that 

are hand-delivered or couriered. In 

addition, USCIS cannot accept 

comments contained on any form of 

digital media storage devices, such as 

CDs/DVDs and USB drives. USCIS is 

also not accepting mailed comments at 

this time. If you cannot submit your 

comment by using http://

www.regulations.gov, please contact 

Samantha Deshommes, Chief, 

Regulatory Coordination Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, by 

telephone at (240) 721–3000 for 

alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, MD, Camp Springs, 

20746; telephone (240) 721–3000. (This 

is not a toll-free number.) Individuals 

with hearing or speech impairments 

may access the telephone numbers 

above via TTY by calling the toll-free 

Federal Information Relay Service at 1– 

877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of Major Provisions of the 

Regulatory Action 

C. Summary of Costs and Benefits 

III. Background 

A. Legal Authority 

B. Description of the H–2 Nonimmigrant 

Classifications 

C. H–2 2008 Final Rules 

D. Importance of the H–2 Programs and the 

Need for Reforms 

IV. Discussion of Proposed Rule 

A. Program Integrity and Worker 

Protections 

B. Worker Flexibilities 

C. Improving H–2 Program Efficiencies and 

Reducing Barriers to Legal Migration 

D. Severability 

E. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

V. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

B. Regulatory Flexibility Act 

C. Unfunded Mandates Reform Act of 1995 

D. Executive Order 13132 (Federalism) 

E. Executive Order 12988 (Civil Justice 

Reform) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. National Environmental Policy Act 

H. Paperwork Reduction Act 

Table of Abbreviations 

BLS—Bureau of Labor Statistics 

CBP—U.S. Customs and Border Protection 

CFR—Code of Federal Regulations 

CPI–U—Consumer Price Index for All Urban 

Consumers 

DHS—Department of Homeland Security 

DOJ—Department of Justice 

DOL—Department of Labor 

DOS—Department of State 

DOT—Department of Transportation 

ETA—Employment and Training 

Administration 

FDNS—Fraud Detection and National 

Security Directorate 

FY—Fiscal year 

GAO—Government Accountability Office 

GDOL—Guam Department of Labor 

H–2A—Temporary Agricultural Workers 

Nonimmigrant Classification 

H–2B—Temporary Nonagricultural Workers 

Nonimmigrant Classification 

ICE—U.S. Immigration and Customs 

Enforcement 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization Service 

LCA—Labor condition application 

MOU—Memorandum of understanding 

NAICS—North American Industry 

Classification System 

NEPA—National Environmental Policy Act 

NOID—Notice of intent to deny 

NPRM—Notice of proposed rulemaking 

OFLC—Office of Foreign Labor Certification 

OIRA—Office of Information and Regulatory 

Affairs 

OMB—Office of Management and Budget 

OSHA—Occupational Safety and Health 

Administration 

PRA—Paperwork Reduction Act 

RFA—Regulatory Flexibility Act of 1980 

RFE—Request for evidence 

SBA—Small Business Administration 

SSA—Social Security Administration 

TFR—Temporary final rule 

TLC—Temporary labor certification 

UMRA—Unfunded Mandates Reform Act of 

1995 

USCIS—U.S. Citizenship and Immigration 

Services 

USAID—U.S. Agency for International 

Development 

WHD—Wage and Hour Division 

I. Public Participation 

DHS invites all interested parties to 

participate in this rulemaking by 

submitting written data, views, 

comments, and arguments on all aspects 

of this proposed rule. DHS also invites 

comments that relate to the economic, 

environmental, or federalism effects that 

might result from this proposed rule. 

Comments must be submitted in 

English, or an English translation must 

be provided. Comments that will 

provide the most assistance to USCIS in 

implementing these changes will 

reference a specific portion of the 

proposed rule, explain the reason for 

any recommended change, and include 

data, information, or authority that 

support such recommended change. 

Comments submitted in a manner other 

than the one listed above, including 

emails or letters sent to DHS or USCIS 

officials, will not be considered 

comments on the proposed rule and 

may not receive a response from DHS. 

Instructions: If you submit a 

comment, you must include the agency 

name (U.S. Citizenship and Immigration 

Services) and the DHS Docket No. 

USCIS–2023–0012 for this rulemaking. 

Regardless of the method used for 

submitting comments or material, all 

submissions will be posted, without 

change, to the Federal eRulemaking 

Portal at http://www.regulations.gov, 

and will include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. You may wish to consider 

limiting the amount of personal 

information that you provide in any 

voluntary public comment submission 


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you make to DHS. DHS may withhold 

information provided in comments from 

public viewing that it determines may 

impact the privacy of an individual or 

is offensive. For additional information, 

please read the Privacy and Security 

Notice available at http://

www.regulations.gov. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to http://

www.regulations.gov, referencing DHS 

Docket No. USCIS–2023–0012. You may 

also sign up for email alerts on the 

online docket to be notified when 

comments are posted, or a final rule is 

published. 

II. Executive Summary 

A. Purpose of the Regulatory Action 

The purpose of this rulemaking is to 

modernize and improve the DHS 

regulations relating to the H–2A 

temporary agricultural worker program 

and the H–2B temporary nonagricultural 

worker program (H–2 programs). 

Through this proposed rule, DHS seeks 

to strengthen worker protections and the 

integrity of the H–2 programs, provide 

greater flexibility for H–2A and H–2B 

workers, and improve program 

efficiency. 

B. Summary of Major Provisions of the 

Regulatory Action 

DHS proposes to include the 

following major changes: 

• Program Integrity and Worker 

Protections 

To improve the integrity of the H–2 

programs, DHS is proposing significant 

revisions to the provisions relating to 

prohibited fees to strengthen the 

existing prohibition on, and 

consequences for, charging certain fees 

to H–2A and H–2B workers, including 

new bars to approval for some H–2 

petitions. Further, as a significant new 

program integrity measure and a 

deterrent to petitioners that have been 

found to have committed labor law 

violations or abused the H–2 programs, 

DHS is proposing to institute certain 

mandatory and discretionary bars to 

approval of an H–2A or H–2B petition. 

In addition, to protect workers who 

report their employers for program 

violations, DHS is proposing to provide 

H–2A and H–2B workers with 

‘‘whistleblower protection’’ comparable 

to the protection that is currently 

offered to H–1B workers. Additionally, 

DHS proposes to clarify requirements 

for petitioners and employers to consent 

to, and fully comply with, USCIS 

compliance reviews and inspections. 

DHS also proposes to clarify USCIS’s 

authority to deny or revoke a petition if 

USCIS is unable to verify information 

related to the petition, including but not 

limited to where such inability is due to 

lack of cooperation from a petitioner or 

an employer during a site visit or other 

compliance review. 

• Worker Flexibilities 

DHS is also proposing changes meant 

to provide greater flexibility to H–2A 

and H–2B workers. These changes 

include adjustments to the existing 

admission periods before and after the 

validity dates of an approved petition 

(grace periods) so that H–2 workers 

would receive up to 10 days prior to the 

petition’s validity period and up to 30 

days following the expiration of the 

petition, as well as an extension of the 

existing 30-day grace period following 

revocation of an approved petition 

during which an H–2 worker may seek 

new qualifying employment or prepare 

for departure from the United States 

without violating their nonimmigrant 

status or accruing unlawful presence for 

up to 60 days. In addition, to account 

for other situations in which a worker 

may unexpectedly need to stop working 

or wish to seek new employment, DHS 

is proposing to provide a new grace 

period for up to 60 days during which 

an H–2 worker can cease working for 

their petitioner while maintaining H–2 

status. Further, in a change meant to 

work in conjunction with the new grace 

period provisions, DHS proposes to 

permanently provide portability—the 

ability to begin new employment upon 

the proper filing of an extension of stay 

petition rather than only upon its 

approval—to H–2A and H–2B workers. 

Additionally, in the case of petition 

revocations, DHS proposes to clarify 

that H–2A employers have the same 

responsibility that H–2B employers 

currently have for reasonable costs of 

return transportation for the beneficiary. 

DHS also proposes to clarify that H–2 

workers will not be considered to have 

failed to maintain their H–2 status 

solely on the basis of taking certain 

steps toward becoming lawful 

permanent residents of the United 

States. Finally, DHS proposes to remove 

the phrase ‘‘abscondment,’’ ‘‘abscond,’’ 

and its other variations to emphasize 

that the mere fact of leaving 

employment, standing alone, does not 

constitute a basis for assuming 

wrongdoing by the worker. 

• Improving H–2 Program Efficiencies 

and Reducing Barriers to Legal 

Migration 

DHS proposes two changes to 

improve the efficiency of the H–2 

programs and to reduce barriers to use 

of those two programs. First, DHS 

proposes to remove the requirement that 

USCIS may generally only approve 

petitions for H–2 nonimmigrant status 

for nationals of countries that the 

Secretary of Homeland Security, with 

the concurrence of the Secretary of 

State, has designated as eligible to 

participate in the H–2 programs. 

Second, DHS proposes to simplify the 

regulatory provisions regarding the 

effect of a departure from the United 

States on the 3-year maximum period of 

stay by providing a uniform standard for 

resetting the 3-year clock following such 

a departure. 

C. Summary of Costs and Benefits 

This proposed rule would directly 

impose costs on petitioners in the form 

of increased opportunity costs of time to 

complete and file H–2 petitions and 

time spent to familiarize themselves 

with the rule. Other difficult to quantify 

costs may also be experienced by certain 

petitioners if selected for a compliance 

review, petitioners that face stricter 

consequences regarding prohibited fees, 

or for those that opt to transport and 

house H–2A beneficiaries earlier than 

they would have otherwise based on the 

proposed extension of the preemployment grace period from 7 to 10 

days. The Federal Government may also 

face some increased opportunity costs of 

time for adjudicators to review 

information regarding debarment and 

other past violation determinations 

more closely, issue requests for 

evidence (RFE) or notices of intent to 

deny (NOID), and additional costs for 

related computer system updates. 

The benefits of this proposed rule 

would be diverse, though most are 

difficult to quantify. The proposed rule 

would extend portability to H–2 

workers lawfully present in the United 

States regardless of a porting petitioner’s 

E-Verify standing, affording these 

workers agency of choice at an earlier 

moment in time, which is consistent 

with other portability regulations and 

more similar to other workers in the 

labor force. Employers and beneficiaries 

would also benefit from the extended 

grace periods and eliminating the 

interrupted stay provisions and instead 

reducing the period of absence out of 

the country to reset their 3-year 

maximum period of stay. The Federal 

Government would also realize benefits, 

mainly through bolstering existing 

program integrity activities, possible 

increased compliance with program 

requirements, and providing a greater 

ability for USCIS to deny or revoke 

petitions for issues related to program 

compliance. 

Table 1 provides a more detailed 

summary of the proposed provisions 

and their impacts. The impact of the 


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costs and benefits described herein are 

quantified (and monetized) wherever 

possible given all available information. 

Where there are insufficient data to 

quantify a given impact, we provide a 

qualitative description of the impact. 

TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F) ..... DHS is proposing to add 

stronger language requiring petitioners or employers to both consent to 

and fully comply with any 

USCIS audit, investigation, or other program integrity activity and clarify 

USCIS’s authority to 

deny/revoke a petition if 

unable to verify information related to the petition, including due to lack 

of cooperation from the 

petitioner or employer 

during a site visit or other 

compliance review. 

Cost: 

• Cooperation during a site visit or compliance review 

may result in opportunity costs of time for petitioners 

to provide information to USCIS during these compliance reviews and inspections. On average, USCIS 

site visits last 1.7 hours, which is a reasonable estimate for the marginal time that a petitioner may need 

to spend in order to comply with a site visit. 

• Employers that do not cooperate would face denial 

or revocation of their petition(s), which could result in 

costs to those businesses. 

Benefit: 

• USCIS would have clearer authority to deny or revoke a petition if unable to verify information related 

to the petition. The effectiveness of existing USCIS 

program integrity activities would be improved 

through increased cooperation from employers. 

8 CFR 214.2(h)(20) .......................................................... DHS is proposing to provide H–2A and H–2B 

workers with ‘‘whistleblower protection’’ comparable to the protection 

currently offered to H–1B 

workers. 

Cost: 

• Employers may face increased RFEs, denials, or 

other actions on their H–2 petitions, or other program 

integrity mechanisms available under this rule or existing authorities, as a result of H–2 workers’ cooperation in program integrity activity due to whistleblower protections. Such actions may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers. 

Benefit: 

• Such protections may afford workers the ability to expose issues that harm workers or are not in line with 

the intent of the H–2 programs while also offering 

protection to such workers (therefore potentially improving overall working conditions), but the extent to 

which this would occur is unknown. 

8 CFR 214.2(h)(5)(xi)(A), 8 CFR 214.2(h)(5)(xi)(C), 8 

CFR 214.2(h)(6)(i)(B), 8 CFR 214.2(h)(6)(i)(C), and 8 

CFR 214.2(h)(6)(i)(D).

DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen 

the existing prohibition 

on, and consequences 

for, charging certain fees 

to H–2A and H–2B workers, including new bars 

on approval for some H– 

2 petitions. 

Cost: 

• Enhanced consequences for petitioners who charge 

prohibited fees could lead to increased financial 

losses and extended ineligibility from participating in 

H–2 programs. 

Benefit: 

• Possibly increase compliance with provisions regarding prohibited fees and thus reduce the occurrence 

and burden of prohibited fees on H–2 beneficiaries. 

8 CFR 214.2(h)(10)(iii) ...................................................... DHS is proposing to institute certain mandatory 

and discretionary bars to 

approval of an H–2A or 

H–2B petition. 

Costs: 

• USCIS adjudicators may require additional time associated with reviewing information regarding debarment and other past violation determinations more 

closely, issuing RFEs or NOIDs, and conducting the 

discretionary analysis for relevant petitions. 

• The expansion of violation determinations that could 

be considered during adjudication, as well as the way 

debarments and other violation determinations would 

be tracked, would require some computer system updates resulting in costs to USCIS. 

Benefit: 

• Possibly increase compliance with H–2 program requirements, thereby increasing protection of H–2 

workers. 


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TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(2)(ii) and (iii), 8 CFR 214.2(h)(5)(i)(F), 

and 8 CFR 214.2(h)(6)(i)(E).

Eliminate the lists of countries eligible to participate 

in the H–2 programs. 

Costs: 

• None expected. 

Benefit: 

• Employers and the Federal Government will benefit 

from the simplification of Form I–129 adjudications by 

eliminating the ‘‘national interest’’ portion of the adjudication that USCIS is currently required to conduct 

for beneficiaries from countries that are not on the 

lists. 

• Remove petitioner burden to provide evidence for 

beneficiaries from countries not on the lists. 

• Petitioners may have increased access to workers 

potentially available to the H–2 programs. 

• Free up agency resources devoted to developing and 

publishing the eligible country lists in the Federal 

Register every year. 

8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(6)(vii)(A)

8 CFR 214.2(h)(11)(iv) and 8 CFR 214.2(h)(13)(i)(C) .....

Change grace periods such 

that they will be the same 

for both H–2A and H–2B 

Programs. 

Create a 60-day grace period following any H–2A 

or H–2B revocation or 

cessation of employment 

during which the worker 

will not be considered to 

have failed to maintain 

nonimmigrant status and 

will not accrue any unlawful presence solely on 

the basis of the revocation or cessation. 

Costs: 1

• H–2A employers may face additional costs such as 

for housing, but employers likely would weigh those 

costs against the benefit of providing employees with 

additional time to prepare for the start of work. 

Benefit: 

• Provides employees (and their employers) with extra 

time to prepare for the start of work. Provides clarity 

for adjudicators and makes timeframes consistent for 

beneficiaries and petitioners. 

• Provides workers additional time to seek other employment or depart from the United States if their employer faces a revocation or if they cease employment. 

8 CFR 214.2(h)(11)(iv) ..................................................... Clarifies responsibility of H– 

2A employers for reasonable costs of return transportation for beneficiaries 

following a petition revocation. 

Costs: 

• None expected since H–2A petitioning employers are 

already generally liable for the return transportation 

costs of H–2A workers. 

Benefit: 

• Beneficiaries would benefit in the event that clarified 

employer responsibility decreased the incidence of 

workers having to pay their own return travel costs in 

the event of a petition revocation. 

8 CFR 214.2(h)(16)(i) ....................................................... Clarifies that H–2 workers 

may take steps toward 

becoming a lawful permanent resident of the 

United States while still 

maintaining lawful nonimmigrant status. 

Costs: 

• None expected. 

Benefit: 

• DHS expects this could enable some H–2 workers 

who have otherwise been dissuaded to pursue lawful 

permanent residence with the ability to do so without 

concern over becoming ineligible for H–2 status. 

8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(vii), and 8 

CFR 214.2(h)(13)(i)(B).

Eliminates the ‘‘interrupted 

stay’’ calculation and instead reduces the period 

of absence to reset an individual’s 3-year period of 

stay. 

Costs: 

• Workers in active H–2 status who would consider 

making trips abroad for periods of less than 60 days 

but more than 45 days, may be disincentivized to 

make such trip. 

Benefit: 

• Simplifies and reduces the burden to calculate beneficiary absences for petitioners, beneficiaries, and adjudicators. 

• May reduce the number of RFEs related to 3-year 

periods of stay. 

Transfers: 

• As a result of a small number of H–2 workers at the 

3-year maximum stay responding to the proposed 

shorter absence requirement by working 30 additional days, DHS estimates upper bound annual 

transfer payment of $2,918,958 in additional earnings 

from consumers to H–2 workers and $337,122 in tax 

transfers from these workers and their employers to 

tax programs (Medicare and Social Security). 


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TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(2)(i)(D), 8 CFR 214.2(h)(2)(i)(I), and 8 

CFR 274a.12(b)(21).

Make portability permanent 

for H–2B workers and remove the requirement 

that H–2A workers can 

only port to an E-Verify 

employer. 

Costs: 

• The total estimated annual opportunity cost of time to 

file Form I–129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form I–129 and Form G– 

28 will range from approximately $90,554 if filed by 

in-house lawyers to approximately $156,132 if filed 

by outsourced lawyers. 

• The total estimated annual costs associated with filing Form I–907 if it is filed with Form I–129 is $4,728 

if filed by human resource specialists. The total estimated annual costs associated with filing Form I–907 

would range from approximately $9,006 if filed by an 

in-house lawyer to approximately $15,527 if filed by 

an outsourced lawyer. 

• The total estimated annual costs associated with the 

portability provision ranges from $133,684 to 

$198,851, depending on the filer. 

• DHS may incur some additional adjudication costs as 

more petitioners will likely file Form I–129. However, 

these additional costs to USCIS are expected to be 

covered by the fees paid for filing the form. 

Benefit: 

• Enabling H–2 workers present in the United States to 

port to a new petitioning employer affords these 

workers agency of choice at an earlier moment in 

time consistent with other portability regulations and 

more similar to other workers in the labor force. 

• Replacing the E-Verify requirement for employers 

wishing to hire porting H–2A workers with strengthened site visit authority and other provisions that 

maintain program integrity would aid porting beneficiaries in finding petitioners without first needing to 

confirm if that employer is in good standing in EVerify. Although this change impacts an unknown 

portion of new petitions for porting H–2A beneficiaries, no reductions in E-Verify enrollment are anticipated. 

• An H–2 worker with an employer that is not complying with H–2 program requirements would have 

additional flexibility in porting to another employer’s 

certified position. 

Transfers: 

• Annual undiscounted transfers of $636,760 from filing 

fees for Form I–129 combined with Form I–907 from 

petitioners to USCIS. 

8 CFR 214.2(h)(2)(i)(I)(3) ................................................. DHS proposes to clarify 

that a beneficiary of an 

H–2 portability petition is 

considered to have been 

in a period of authorized 

stay during the pendency 

of the petition and that 

the petitioner must still 

abide by all H–2 program 

requirements. 

Benefits: 

• Provides H–2 workers with requisite protections and 

benefits as codified in the rule in the event that a 

porting provision is withdrawn or denied. 

Costs: 

• None expected. 


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1USCIS does not expect any additional costs to 

H–2B employers as, generally, they do not have to 

provide housing for workers. Employers are 

required to provide housing at no cost to H–2A 

workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4). 

There is no similar statutory requirement for 

employers to provide housing to H–2B workers, 

although there is a regulatory requirement for an H– 

2B employer to provide housing when it is 

primarily for the benefit or convenience of the 

employer. See 20 CFR 655.20(b), (c); 29 CFR 

531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015). 

2For 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). 

3Although several provisions of the INA 

discussed in this NPRM refer exclusively to the 

‘‘Attorney General,’’ such provisions are now to be 

read as referring to the Secretary of Homeland 

Security by operation of the HSA. See 6 U.S.C. 

202(3), 251, 271(b), 542 note, 557; 8 U.S.C. 

1103(a)(1), (g), 1551 note; Nielsen v. Preap, 139 S. 

Ct. 954, 959 n.2 (2019). 

4This section also precludes officers or 

employees of any foreign governments or of any 

international organizations entitled to enjoy 

privileges, exemptions, and immunities under the 

International Organizations Immunities Act [22 

U.S.C. 288 et seq.], or noncitizens who are 

attendants, servants, employees, or member of the 

immediate family of such noncitizens from 

applying for or receiving nonimmigrant visas or 

entering the United States as immigrants unless 

they execute a written waiver in the same form and 

substance as is prescribed by section 1257(b) of this 

title. This portion of the provision, however, is not 

relevant to this NPRM. 

TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

Cumulative Impacts of Proposed Regulatory Changes 

DHS proposes to make changes to the Form I–129, to effectuate the proposed regulatory changes.Costs: 

• The time burden to complete and file Form I–129, H 

Classification Supplement, would increase by 0.3 

hours as a result of the proposed changes. The estimated opportunity cost of time for each petition by 

type of filer would be $15.28 for an HR specialist, 

$34.25 for an in-house lawyer, and $59.06 for an 

outsourced lawyer. The estimated total annual opportunity costs of time for petitioners or their representatives to file H–2 petitions under this proposed rule 

ranges from $745,330 to $985,540. 

Petitioners or their representatives would familiarize themselves with the rule ............... Costs: 

• Petitioners or their representatives would need to 

read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715 to 

$12,877,651, incurred during the first year of the 

analysis. 

Source: USCIS analysis. 

III. Background 

A. Legal Authority 

The Immigration and Nationality Act 

(INA or the Act) section 

101(a)(15)(H)(ii)(a) and (b), 8 U.S.C. 

1101(a)(15)(H)(ii)(a) and (b), establishes 

the H–2A and H–2B nonimmigrant visa 

classifications for noncitizens 2 who are 

coming to the United States temporarily 

to perform agricultural labor or services 

or to perform nonagricultural services or 

labor, respectively. 

The Secretary’s authority for this 

proposed rule can be found in various 

provisions of the immigration laws. INA 

sec. 103(a), as amended, 8 U.S.C. 

1103(a), provides the Secretary general 

authority to administer and enforce the 

immigration laws and to issue 

regulations necessary to carry out that 

authority. Section 402 of the Homeland 

Security Act of 2002 (HSA), Public Law 

107–296, 116 Stat. 2135, 6 U.S.C. 202, 

charges the Secretary with 

‘‘[e]stablishing and administering rules 

. . . governing the granting of visas or 

other forms of permission . . . to enter 

the United States’’ and ‘‘[e]stablishing 

national immigration enforcement 

policies and priorities.’’ See also HSA 

sec. 428, 6 U.S.C. 236. The HSA also 

provides that a primary mission of DHS 

is to ‘‘ensure that the overall economic 

security of the United States is not 

diminished by efforts, activities, and 

programs aimed at securing the 

homeland.’’ HSA sec. 101(b)(1)(F), 6 

U.S.C. 111(b)(1)(F). 

With respect to nonimmigrants in 

particular, the INA provides that ‘‘[t]he 

admission to the United States of any 

alien as a nonimmigrant shall be for 

such time and under such conditions as 

the [Secretary] may by regulations 

prescribe.’’ 3 INA sec. 214(a)(1), 8 U.S.C. 

1184(a)(1). See INA secs. 274A(a)(1) and 

(h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3) 

(prohibiting employment of noncitizens 

who are not authorized for 

employment). And the HSA transferred 

to USCIS the authority to adjudicate 

petitions for H–2 nonimmigrant status, 

establish policies for performing that 

function, and set national immigration 

services policies and priorities. See HSA 

secs. 451(a)(3), (b); 6 U.S.C. 271(a)(3), 

(b). In addition, under INA sec. 214(b), 

8 U.S.C. 1184(b), every noncitizen, with 

the exception of noncitizens seeking L, 

V, or H–1B nonimmigrant status, is 

presumed to be an immigrant unless the 

noncitizen establishes the noncitizen’s 

entitlement to a nonimmigrant status.4

INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1), 

establishes the nonimmigrant petition 

process as a prerequisite for obtaining 

(H), (L), (O), or (P)(i) nonimmigrant 

status (except for those in the H–1B1 

classification). This statutory provision 

provides the Secretary of Homeland 

Security with exclusive authority to 

approve or deny H–2 nonimmigrant visa 

petitions after consultation with the 

appropriate agencies of the Government. 

It also authorizes the Secretary to 

prescribe the form and identify 

information necessary for the petition. 

With respect to the H–2A classification, 

this section defines the term 

‘‘appropriate agencies of [the] 

Government’’ to include the 

Departments of Labor and Agriculture, 

and cross-references INA sec. 218, 8 

U.S.C. 1188, with respect to the H–2A 

classification. 

INA sec. 214(c)(5)(A), 8 U.S.C. 

1184(c)(5)(A), requires the employer to 

provide or pay for the reasonable cost of 

return transportation if an H–2B worker 

was dismissed early from employment, 

i.e., before the end of the authorized 

period of admission. 


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5 In 2009, the Secretary delegated to the Secretary 

of Labor certain authorities under INA sec. 

214(c)(14)(A)(i). See ‘‘Delegation of Authority to the 

Department of Labor under Section 214(c)(14)(A) of 

the Immigration and Nationality Act’’ (Jan. 16, 

2009). 

6 Generally, workers in the United States in H–2B 

status who extend their stay, change employers, or 

change the terms and conditions of employment 

will not be subject to the cap. See 8 CFR 

214.2(h)(8)(ii). Similarly, H–2B workers who have 

previously been counted against the cap in the same 

fiscal year that the proposed employment begins 

will not be subject to the cap if the employer names 

them on the petition and indicates that they have 

already been counted. See 8 CFR 214.2(h)(8)(ii). The 

spouse and children of H–2B workers, classified as 

H–4 nonimmigrants, also do not count against the 

cap. 

Additionally, petitions for the following types of 

workers are exempt from the H–2B cap: Fish roe 

processors, fish roe technicians, or supervisors of 

fish roe processing; and workers performing labor 

or services in the Commonwealth of Northern 

Mariana Islands or Guam until Dec. 31, 2029. See 

Section 14006 of Public Law 108–287, 118 Stat. 

951, 1014 (Aug. 5, 2004), and Section 3 of the 

Northern Mariana Islands U.S. Workforce Act of 

2018, Pub. L. 115–218, 132 Stat. 1547, 1547 (July 

24, 2018).). Once the H–2B cap is reached, USCIS 

may only accept petitions for H–2B workers who 

are exempt or not subject to the H–2B cap. 

7The Federal Government’s fiscal year runs from 

October 1 of the prior calendar year through 

September 30 of the year being described. For 

example, fiscal year 2023 runs from October 1, 

2022, through September 30, 2023. 

8 INA sec. 218 governs the temporary agricultural 

labor certifications issued by the Department of 

Labor (DOL). That section is implemented through 

regulations at 20 CFR part 655, subpart B and 29 

CFR part 501. By issuing a temporary agricultural 

labor certification referenced in 8 CFR 

214.2(h)(5)(ii), DOL binds the employer to comply 

with a variety of program obligations, including the 

prohibition against the layoff of U.S. workers, and 

several provisions related to the recruitment and 

hiring of U.S. workers. See 20 CFR 655.135(g); see 

also 20 CFR 655.135(a), (b), (c), (d), and (h). 

INA sec. 214(c)(14), 8 U.S.C. 

1184(c)(14), provides the Secretary of 

Homeland Security with the authority to 

impose administrative remedies 

(including civil monetary penalties), 

and deny petitions for a period of at 

least 1 but not more than 5 years, if, 

after notice and an opportunity for a 

hearing, the Secretary finds that an 

employer substantially failed to meet 

any of the conditions of the H–2B 

petition or engaged in willful 

misrepresentation of a material fact in 

the H–2B petition. See INA sec. 

214(c)(14)(A)(i) and (ii), 8 U.S.C. 

1184(c)(14)(A)(i) and (ii). It also 

authorizes the Secretary to delegate to 

the Secretary of Labor the authority to 

determine violations and impose 

administrative remedies, including civil 

monetary penalties. See INA sec. 

214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B).5

The Secretary of Homeland Security 

may designate officers or employees to 

take and consider evidence concerning 

any matter that is material or relevant to 

the enforcement of the INA. See INA 

secs. 235(d)(3), 287(a)(1), (b); 8 U.S.C. 

1225(d)(3), 1357(a)(1), (b). 

B. Description of the H–2 Nonimmigrant 

Classifications 

1. H–2A Temporary Agricultural 

Workers 

The INA establishes the H–2A 

nonimmigrant classification for 

temporary agricultural workers, 

described as a noncitizen ‘‘having a 

residence in a foreign country which he 

[sic] has no intention of abandoning 

who is coming temporarily to the 

United States to perform agricultural 

labor or services.’’ INA sec. 

101(a)(15)(H)(ii)(a), 8 U.S.C. 

1101(a)(15)(H)(ii)(a). As noted in the 

statute, not only must the noncitizen be 

coming ‘‘temporarily’’ to the United 

States, but the agricultural labor or 

services that the noncitizen is 

performing must also be ‘‘of a temporary 

or seasonal nature.’’ INA sec. 

101(a)(15)(H)(ii)(a). 

Current DHS regulations further 

define an employer’s temporary need as 

employment that is of a temporary 

nature where the employer’s need to fill 

the position with a temporary worker 

will, except in extraordinary 

circumstances, last no longer than 1 

year. See 8 CFR 214.2(h)(5)(iv)(A). An 

employer’s seasonal need is defined as 

employment that is tied to a certain time 

of year by an event or pattern, such as 

a short annual growing cycle or a 

specific aspect of a longer cycle and 

requires labor levels above those 

necessary for ongoing operations. Id. 

There is no annual limit or ‘‘cap’’ on the 

number of noncitizens who may be 

issued H–2A visas or otherwise 

provided H–2A status (such as through 

a change from another nonimmigrant 

status, see INA sec. 248, 8 U.S.C. 1258). 

2. H–2B Temporary Nonagricultural 

Workers 

Similarly, the INA establishes the H– 

2B nonimmigrant classification for 

temporary nonagricultural workers, 

described as a noncitizen ‘‘having a 

residence in a foreign country which he 

has no intention of abandoning who is 

coming temporarily to the United States 

to perform other temporary 

[nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 

be found in this country.’’ INA sec. 

101(a)(15)(H)(ii)(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(b). Current DHS 

regulations define an employer’s 

temporary need as employment that is 

of a temporary nature where the 

employer’s need to fill the position with 

a temporary worker generally will last 

no longer than 1 year, unless the 

employer’s need is a one-time event, in 

which case the need could last up to 3 

years. See 8 CFR 214.2(h)(1)(ii)(D), 

(h)(6)(ii), and (h)(6)(vi)(D). 

Unlike the H–2A classification, there 

is a statutory annual limit or ‘‘cap’’ on 

the number of noncitizens who may be 

issued H–2B visas or otherwise 

provided H–2B status. Specifically, the 

INA sets the annual number of 

noncitizens who may be issued H–2B 

visas or otherwise provided H–2B status 

at 66,000, to be distributed semiannually beginning in October and 

April. See INA sec. 214(g)(1)(B) and 

(g)(10), 8 U.S.C. 1184(g)(1)(B) and 

(g)(10). With certain exceptions,6 up to 

33,000 noncitizens may be issued H–2B 

visas or provided H–2B nonimmigrant 

status in the first half of a fiscal year, 

and the remaining annual allocation, 

including any unused nonimmigrant H– 

2B visas from the first half of a fiscal 

year, will be available for employers 

seeking to hire H–2B workers during the 

second half of the fiscal year.7 If 

insufficient petitions are approved to 

use all available H–2B numbers in a 

given fiscal year, the unused numbers 

cannot be carried over for petition 

approvals for employment start dates 

beginning on or after the start of the 

next fiscal year. 

3. Temporary Labor Certification (TLC) 

Process 

H–2 workers may not displace 

qualified, available U.S. workers who 

are capable of performing such services 

or labor. See INA secs. 

101(a)(15)(H)(ii)(a)–(b), 8 U.S.C. 1101 

(a)(15)(H)(ii)(a)–(b), and 218(a)(1), 8 

U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii) 8

and (h)(6)(i). In addition, H–2 

employment may not adversely affect 

the wages and working conditions of 

workers in the United States. See INA 

sec. 218(a)(1)(B), 8 U.S.C. 1188(a)(1)(B) 

(H–2A); INA sec. 101(a)(15)(H)(ii)(b), 8 

U.S.C. 1101(a)(15)(H)(ii)(b) (H–2B); 8 

CFR 214.2(h)(5)(ii) and (h)(6)(i). DHS 

regulations provide that an H–2A or H– 

2B petition for temporary employment 

in the United States must be 

accompanied by an approved TLC from 

DOL, issued pursuant to regulations 

established at 20 CFR part 655, or from 

the Guam Department of Labor (GDOL) 

for H–2B workers who will be employed 

on Guam. See, e.g., 8 CFR 

214.2(h)(5)(i)(A), (h)(6)(iii)(A), (C)–(E), 

(h)(6)(iv)(A), (v)(A). See generally INA 

secs. 103(a)(6), 214(c)(1), 8 U.S.C. 

1103(a)(6), 1184(c)(1). The TLC serves as 

DHS’s consultation with DOL or GDOL 

with respect to whether a qualified U.S. 

worker is available to fill the petitioning 


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9Any time an H–2 worker spends in the United 

States under section 101(a)(15)(H) or (L) of the Act, 

8 U.S.C. 1101(a)(15)(H), (L), will count towards the 

3-year limitation. See 8 CFR 214.2(h)(13)(iv). Time 

spent in H–4 or L–2 status will not count towards 

the 3-year limitation. See USCIS, Additional 

Guidance on Determining Periods of Admission for 

Foreign Nationals Previously Admitted as H–4 

Nonimmigrants who are Seeking H–2 or H–3 Status 

(PM–602–0092), https://www.uscis.gov/sites/ 

default/files/document/memos/2013-1111_H-4_

Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf. 

10 If the H–2 worker’s accumulated stay is 18 

months or less, an absence of at least 45 days will 

interrupt the 3-year limitation on admission. If the 

accumulated stay is greater than 18 months, an 

absence is interruptive if it lasts for at least 2 

months. See 8 CFR 214.2(h)(5)(viii)(C) and (13)(iv); 

see also 8 CFR 214.2(h)(13)(v) (also excepting from 

the limitations under 8 CFR 214.2(h)(13)(iii) and 

(iv), with respect to H–2B beneficiaries, workers 

who did not reside continually in the United States 

and whose employment in the United States was 

seasonal or intermittent or was for an aggregate of 

6 months or less per year, as well as workers who 

reside abroad and regularly commute to the United 

States to engage in part-time employment). 

H–2A or H–2B employer’s job 

opportunity and whether a foreign 

worker’s employment in the job 

opportunity will adversely affect the 

wages and working conditions of 

similarly employed workers in the 

United States. See INA sec. 214(c)(1), 8 

U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(ii), 

(h)(6)(iii)(A), and (h)(6)(v). 

4. Current H–2 Petition Procedures 

Employers must petition DHS for 

classification of prospective temporary 

workers as H–2A or H–2B 

nonimmigrants. See INA sec. 214(c)(1), 

8 U.S.C. 1184(c)(1). After receiving an 

approved TLC, the employer listed on 

the TLC or the employer’s U.S. agent 

(‘‘H–2 petitioner’’) must file the H–2 

petition with the appropriate USCIS 

office. See 8 CFR 214.2(h)(2)(i), 

(h)(5)(i)(A), (h)(6)(iii)(E), and (h)(6)(vi). 

The H–2 petitioner must be a U.S. 

employer, a U.S. agent meeting the 

requirements of 8 CFR 214.2(h)(2)(i)(F), 

or a foreign employer filing through a 

U.S. agent. See 8 CFR 214.2(h)(2)(i)(A), 

(5)(i)(A) and (h)(6)(iii)(B). The H–2 

petitioner may request one or more 

named or unnamed H–2 workers, but 

the total number of workers may not 

exceed the number of positions listed on 

the TLC. See 8 CFR 214.2(h)(2)(ii) and 

(iii), (h)(5)(i)(B), and (h)(6)(viii). H–2 

petitioners must identify by name the 

H–2 worker if the worker is in the 

United States or, under current DHS 

regulations, if the H–2 worker is a 

national of a country that is not 

designated as an H–2 participating 

country. See 8 CFR 214.2(h)(2)(iii). 

Generally, USCIS must approve this 

petition before the beneficiary can be 

considered eligible for an H–2A or H– 

2B visa or for H–2A or H–2B 

nonimmigrant status. 

Once the petition is approved, under 

the INA and current DHS regulations, 

H–2 workers are limited to employment 

with the employer listed on the H–2 

petition. See INA sec. 214(c)(1), 8 U.S.C. 

1184(c)(1); 8 CFR 214.2(h)(1)(i); 8 CFR 

274a.12(b)(9). An H–2 petitioner 

generally may submit a new H–2 

petition, with a new, approved TLC, to 

USCIS to request an extension of H–2 

nonimmigrant status for the validity of 

the TLC or for a period of up to 1 year. 

See 8 CFR 214.2(h)(15)(ii)(C). The H–2 

petitioner must name the worker on the 

new H–2 petition because the H–2 

worker is in the United States and 

requesting an extension of stay. For H– 

2A petitioners only, in the event of an 

emergent circumstance, the petitioner 

may request an extension to continue 

employment with the same employer 

not to exceed 2 weeks without first 

having to obtain an additional approved 

TLC from DOL if certain criteria are met, 

by submitting the new H–2A petition. 

See 8 CFR 214.2(h)(5)(x). 

5. Admission and Limitations of Stay 

Upon USCIS approval of the H–2 

petition and the H–2 worker’s 

admission to the United States or grant 

of status under the respective H–2 

classification, the employer or U.S. 

agent may begin to employ the H–2 

worker(s). USCIS has authority to 

approve the worker’s H–2A or H–2B 

classification for up to the period 

authorized on the approved TLC. See 8 

CFR 214.2(h)(9)(iii)(B). H–2 workers 

who are outside of the United States 

may apply for a visa with the 

Department of State (DOS) at a U.S. 

Embassy or Consulate abroad, if 

required, and seek admission to the 

United States as an H–2 nonimmigrant 

with U.S. Customs and Border 

Protection (CBP) at a U.S. port of entry. 

The spouse and children of an H–2 

nonimmigrant, if they are accompanying 

or following to join an H–2 

nonimmigrant, may be admitted into the 

United States, if they are otherwise 

admissible, as H–4 dependents for the 

same period of admission (including 

any extension periods) as the principal 

spouse or parent. See 8 CFR 

214.2(h)(9)(iv). Thus, H–4 dependents of 

H–2 workers are subject to the same 

limitations on stay, including 

permission to remain in the country 

during the pendency of the new 

employer’s petition, as the H–2 

beneficiary, but generally may not 

engage in employment. See 8 CFR 

214.2(h)(9)(iv). 

In general, a noncitizen’s H–2 status 

is limited by the validity dates on the 

approved H–2 petition, typically for a 

period of up to 1 year. See 8 CFR 

214.2(h)(5)(viii)(C), 8 CFR 

214.2(h)(6)(iv)(B), 8 CFR 

214.2(h)(6)(v)(B), 8 CFR 

214.2(h)(9)(iii)(B), and 8 CFR 

214.2(h)(15)(ii)(C). H–2A workers may 

be admitted to the United States for a 

period of up to 1 week prior to the 

beginning validity date listed on the 

approved H–2A petition so that they 

may travel to their worksites, but H–2A 

workers may not begin work until the 

beginning validity date. H–2A workers 

may also remain in the United States 30 

days beyond the expiration date of the 

approved H–2A petition to prepare for 

departure or to seek an extension of stay 

or change of nonimmigrant status but 

cannot work during this period. See 8 

CFR 214.2(h)(5)(viii)(B). 

H–2B workers may be admitted to the 

United States for a period of up to 10 

days prior to the beginning validity date 

listed on the approved H–2B petition so 

that they may travel to their worksites, 

but H–2B workers may not begin work 

until the beginning validity date. Under 

current DHS regulations, H–2B workers 

also may remain in the United States up 

to 10 days beyond the expiration date of 

the approved H–2B petition to prepare 

for departure or to seek an extension of 

stay or change of nonimmigrant status 

and also cannot work during this 

period. See 8 CFR 214.2(h)(13)(i)(A). 

Unless otherwise authorized under 8 

CFR 274a.12, H–2A and H–2B workers 

do not have employment authorization 

outside of the validity period listed on 

the approved petition. See 8 CFR 

214.2(h)(5)(viii)(B) and 8 CFR 

214.2(h)(13)(i)(A). 

The maximum period of stay for a 

noncitizen in H–2 classification is 3 

years (or 45 days in the U.S. Virgin 

Islands).9 See 8 CFR 214.2(h)(5)(viii)(C), 

8 CFR 214.2(h)(13)(iv), and 8 CFR 

214.2(h)(15)(C). Generally, once a 

noncitizen has held H–2 nonimmigrant 

status for a total of 3 years, they must 

depart and remain outside of the United 

States for an uninterrupted period of 3 

months before seeking readmission as 

an H–2 nonimmigrant.10 See 8 CFR 

214.2(h)(5)(viii)(C) and (h)(13)(iv). 

C. H–2 2008 Final Rules 

In December 2008, DHS published 

two final rules providing that H–2 

petitioners must meet certain 

requirements for an H–2 petition to be 

approved. See Final Rule Changes to 

Requirements Affecting H–2B 

Nonimmigrants and Their Employers, 

73 FR 78104 (Dec. 19, 2008); Final Rule 

Changes to Requirements Affecting H– 

2A Nonimmigrants, 73 FR 76891 (Dec. 

18, 2008) (collectively ‘‘H–2 2008 Final 

Rules’’). Those rules addressed a 

number of issues in the H–2 programs 


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11The regulations at 20 CFR 655.20(o) (H–2B); 20 

CFR 655.135(j) (H–2A); and 29 CFR 503.16(o) (H– 

2B) contain similar prohibited fee provisions for H– 

2 employers. In addition, the regulations at 20 CFR 

655.20(j) and 29 CFR 655.16(j) (H–2B) and 20 CFR 

655.122(h) (H–2A) prohibit, with certain 

limitations, the collection of transportation and visa 

fees. 

such as requiring that H–2 petitions be 

filed with a valid TLC approved by 

either the DOL or GDOL, as appropriate, 

prohibiting the imposition of certain 

fees on H–2 workers, modifying 

requirements to allow for unnamed H– 

2 beneficiaries in the petition, and 

amending the definition of ‘‘temporary 

services or labor,’’ among other changes. 

DHS, through this proposed 

rulemaking, seeks to modify several 

requirements implemented by the H–2 

2008 Final Rules. The following 

subsections describe those provisions as 

they were finalized in the 2008 rules. 

1. Prohibited Fees in the H–2 

Nonimmigrant Classifications 

Under current regulations, USCIS may 

deny or revoke a petition when the 

beneficiary pays, directly or indirectly, 

certain fees that are conditions of H–2A 

employment or, for H–2B workers, as a 

condition of an offer of employment. 

See 8 CFR 214.2(h)(5)(xi) and 8 CFR 

214.2(h)(6)(i). The current regulation at 

8 CFR 214.2(h)(5)(xi) prohibits the 

collection of job placement fees or other 

compensation (directly or indirectly) 

from the beneficiary at any time as a 

condition of H–2A employment, 

including before or after the filing or 

approval of the petition. The prohibition 

applies to the petitioner, agent, 

facilitator, recruiter, or a similar 

employment service. However, the 

current regulation permits the collection 

of the lesser of the fair market value or 

actual costs of transportation and any 

government-mandated passport, visa, or 

inspection fees so long as the payment 

of such fees is not prohibited by statute 

or DOL regulations, unless the employer 

agent, facilitator, recruiter, or similar 

employment service has agreed with the 

noncitizen to pay such costs and fees. 

The current regulation at 8 CFR 

214.2(h)(6)(i)(B) contains largely 

identical language applicable to H–2B 

petitions, but omits mention of the 

‘‘Department of Labor.’’ 11

Under current DHS regulations, where 

such prohibited fees have been collected 

or the petitioner has entered into an 

agreement to collect such prohibited 

fees, including through a deduction or 

withholding from a worker’s wages, an 

H–2 petition will be denied or revoked 

on notice unless the petitioner 

demonstrates that, prior to the filing of 

the petition, it has reimbursed the 

beneficiary in full or, where such fee or 

compensation has not yet been paid by 

the beneficiary, that the agreement has 

been terminated. See 8 CFR 

214.2(h)(5)(xi)(A)(1) and 8 CFR 

214.2(h)(6)(i)(B)(1). Generally, the H–2 

petition will be denied or revoked if the 

petitioner knew or should have known 

that the beneficiary has paid or agreed 

to pay the prohibited fee as a condition 

of employment (or, in the H–2B context, 

as a condition of an offer of 

employment). See 8 CFR 

214.2(h)(5)(xi)(2)–(4) and 8 CFR 

214.2(h)(6)(i)(B)(2)–(4). 

2. H–2 Eligible Countries Lists 

USCIS may generally only approve H– 

2 petitions for nationals of countries 

that the Secretary of Homeland Security, 

with the concurrence of the Secretary of 

State, has designated through a notice 

published in the Federal Register as 

countries eligible to participate in the 

respective H–2A and H–2B programs. 

See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 

CFR 214.2(h)(6)(i)(E)(1). This Federal 

Register notice is effective for 1 year 

after publication. See 8 CFR 

214.2(h)(5)(i)(F)(2) and 8 CFR 214.2 

(h)(6)(i)(E)(3). In designating countries 

whose nationals can participate in the 

H–2 programs, DHS takes into account 

several factors including, but not 

limited to: (1) the country’s cooperation 

with respect to issuance of travel 

documents for citizens, subjects, 

nationals and residents of that country 

who are subject to a final order of 

removal; (2) the number of final and 

unexecuted orders of removal against 

citizens, subjects, nationals, and 

residents of that country; (3) the number 

of orders of removal executed against 

citizens, subjects, nationals, and 

residents of that country; and (4) such 

other factors as may serve the U.S. 

interest. See 8 CFR 214.2(h)(5)(i)(F)(1)(i) 

and 8 CFR 214.2(h)(6)(i)(E)(1). 

Petitioners who seek H–2 workers 

from countries that are not designated as 

eligible to participate in the applicable 

H–2 program must meet additional 

criteria showing that it is in the U.S. 

interest to employ such workers. See 8 

CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR 

214.2(h)(6)(i)(E)(2). In determining what 

is in the U.S. interest for purposes of 

these provisions, the Secretary of 

Homeland Security has sole and 

unreviewable discretion to take into 

account factors including, but not 

limited to: (1) evidence from the 

petitioner demonstrating that a worker 

with the required skills is not available 

either from among U.S. workers or from 

among foreign workers from a country 

currently on the lists described in 8 CFR 

214.2(h)(5)(i)(F)(1)(i) and 8 CFR 

214.2(h)(6)(i)(E)(1); (2) evidence that the 

beneficiary has been admitted to the 

United States previously in H–2 status; 

(3) the potential for abuse, fraud, or 

other harm to the integrity of the 

applicable H–2 visa program through 

the potential admission of a beneficiary 

from a country not currently designated 

as eligible; and (4) such other factors as 

may serve the U.S. interest. See 8 CFR 

214.2(h)(5)(i)(F)(1)(ii) and 8 CFR 

214.2(h)(6)(i)(E)(2). Petitions for workers 

from designated countries and 

undesignated countries should be filed 

separately. See 8 CFR 214.2(h)(2)(ii). H– 

2 petitioners must name the H–2 worker 

if the H–2 worker is a national of a 

country that is not designated as an H– 

2 participating country. See 8 CFR 

214.2(h)(2)(iii). USCIS reviews each 

petition naming a national from a 

country not on the lists and all 

supporting documentation and makes a 

determination on a case-by-case basis. 

Subsequent to the publication of the 

H–2 2008 Final Rules, DHS has 

published annual notices in the Federal 

Register that designate certain countries 

as participants in the H–2 programs. In 

December 2008, DHS first published in 

the Federal Register two notices: 

Identification of Foreign Countries 

Whose Nationals Are Eligible to 

Participate in the H–2A Visa Program, 

and Identification of Foreign Countries 

Whose Nationals Are Eligible to 

Participate in the H–2B Visa Program, 

which designated 28 countries whose 

nationals were eligible to participate in 

the H–2A and H–2B programs. See 73 

FR 77043 (Dec. 18, 2008); 73 FR 77729 

(Dec. 19, 2008). The notices ceased to 

have effect on January 17, 2010, and 

January 18, 2010, respectively. DHS has 

published a notice each year from 2010 

through the present, in which various 

countries have been added or removed 

from the lists of countries eligible for 

participation in the H–2 programs. DHS 

published its most recent notice on 

November 10, 2022, and announced that 

the Secretary of Homeland Security, in 

consultation with the Secretary of State, 

identified 86 countries whose nationals 

are eligible to participate in the H–2A 

program and 87 countries whose 

nationals are eligible to participate in 

the H–2B program for 1 year ending 

November 9, 2023. See Identification of 

Foreign Countries Whose Nationals Are 

Eligible To Participate in the H–2A and 

H–2B Nonimmigrant Worker Programs, 

87 FR 67930 (Nov. 10, 2022). 

The notices provide examples of 

specific factors serving the U.S. interest 

that are taken into account when 

considering whether to designate or 

terminate the designation of a country, 

which include, but are not limited to: 


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12See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 76891, 76905 (Dec. 8, 2008). 

13See DOS, Nonimmigrant Visas Issued by 

Classification (Including Crewlist Visas and Border 

Crossing Cards) Fiscal Years 2007–2011, https://

travel.state.gov/content/dam/visas/Statistics/ 

AnnualReports/FY2011AnnualReport/

FY11AnnualReport-Table%20XVI(B).pdf; DOS, 

Nonimmigrant Visas Issued by Classification 

(Including Border Crossing Cards) Fiscal Years 

2017–2021, https://travel.state.gov/content/dam/ 

visas/Statistics/AnnualReports/ 

FY2021AnnualReport/FY21_%20TableXVB.pdf. 

14See DOS, Nonimmigrant Visas Issued by 

Classification (Including Crewlist Visas and Border 

Crossing Cards) Fiscal Years 2007–2011, https://

travel.state.gov/content/dam/visas/Statistics/ 

AnnualReports/FY2011AnnualReport/

FY11AnnualReport-Table%20XVI(B).pdf; DOS, 

Nonimmigrant Visas Issued by Classification 

(Including Border Crossing Cards) Fiscal Years 

2017–2021, https://travel.state.gov/content/dam/ 

visas/Statistics/AnnualReports/

FY2021AnnualReport/FY21_%20TableXVB.pdf. 

15See Consolidated Appropriations Act, 2017, 

Public Law 115–31, div. F, sec. 543; Consolidated 

Appropriations Act, 2018, Public Law 115–141, div. 

M, sec. 205; Consolidated Appropriations Act, 

2019, Public Law 116–6, div. H, sec. 105; Further 

Consolidated Appropriations Act, 2020, Public Law 

116–94, div. I, sec. 105; Consolidated 

Appropriations Act, 2021, Public Law 116–260, div. 

O, sec. 105; sections 101 and 106(3) of Division A 

of Public Law 117–43, Continuing Appropriations 

Act, 2022, Public Law 117–43, div. A, secs. 101, 

106(3); section 101 of Division A of Public Law 

117–70, Further Continuing Appropriations Act, 

2022, Public Law 117–70, div. A, sec. 101; 

Consolidated Appropriations Act, 2022, Public Law 

117–103, div. O, sec. 204; section 101(6) of Division 

A of Public Law 117–180, Continuing 

Appropriations and Ukraine Supplemental 

Appropriations Act, 2023, Public Law 117–180, div. 

A, sec. 101(6); Consolidated Appropriations Act, 

2023, Public Law 117–328, div. O, sec. 303. 

16See Executive Order 14010, Creating a 

Comprehensive Regional Framework to Address the 

Causes of Migration, to Manage Migration 

Throughout North and Central America, and to 

Provide Safe and Orderly Processing of Asylum 

Seekers at the United States Border (Feb. 2, 2021), 

https://www.govinfo.gov/content/pkg/FR-2021-02- 

05/pdf/2021-02561.pdf; National Security Council, 

Collaborative Migration Management Strategy (July 

2021), https://www.whitehouse.gov/wp-content/ 

uploads/2021/07/Collaborative-MigrationManagement-Strategy.pdf. 

17 In addition to other efforts, when exercising the 

delegated authority Congress granted it under 

separate legislation noted above to increase the 

number of H–2B visas available in a given fiscal 

year, DHS and DOL used that authority to create 

specific H–2B visa allocations in furtherance of its 

efforts to address irregular migration. See Exercise 

of Time-Limited Authority To Increase the Fiscal 

Year 2021 Numerical Limitation for the H–2B 

Temporary Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers Seeking To 

Change Employers, 86 FR 28198 (May 25, 2021); 

Exercise of Time-Limited Authority To Increase the 

Fiscal Year 2022 Numerical Limitation for the H– 

2B Temporary Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers Seeking To 

Change Employers, 87 FR 4722 (Jan. 28, 2022); 

Exercise of Time-Limited Authority To Increase the 

Fiscal Year 2022 Numerical Limitation for the H– 

2B Temporary Nonagricultural Worker Program and 

Portability Flexibility for H–2B Workers Seeking To 

Change Employers, 87 FR 6017 (Feb. 3, 2022) 

(correction); Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for Second Half 

of FY 2022 for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

30334 (May 18, 2022); Exercise of Time-Limited 

Authority To Increase the Numerical Limitation for 

FY 2023 for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

76816 (Dec. 15, 2022); and Exercise of Time-Limited 

Authority To Increase the Numerical Limitation for 

FY 2023 for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers; Correction, 

87 FR 77979 (Dec. 21, 2022) (correction). 

18See USAID, Administrator Samantha Power at 

the Summit of the Americas Fair Recruitment and 

H–2 Visa Side Event, https://www.usaid.gov/newsinformation/speeches/jun-9-2022-administratorsamantha-power-summit-americas-fair-recruitmentand-h-2-visa (June 9, 2022) (‘‘Our combined efforts 

[with the labor ministries in Honduras and 

Guatemala, and the Foreign Ministry in El Salvador] 

. . . resulted in a record number of H–2 visas 

issued in 2021, including a nearly forty percent 

increase over the pre-pandemic levels in H–2B visas 

issued across all three countries.’’). 

19See National Security Council, Collaborative 

Migration Management Strategy, https://

www.whitehouse.gov/wp-content/uploads/2021/07/ 

Collaborative-Migration-Management-Strategy.pdf 

(July 2021). 

fraud (such as fraud in the H–2 petition 

or visa application process by nationals 

of the country, the country’s level of 

cooperation with the U.S. Government 

in addressing H–2-associated visa fraud, 

and the country’s level of information 

sharing to combat immigration-related 

fraud); nonimmigrant visa overstay rates 

for nationals of the country (including 

but not limited to H–2A and H–2B 

nonimmigrant visa overstay rates); and 

non-compliance with the terms and 

conditions of the H–2 visa programs by 

nationals of the country. 

3. H–2A Employers Who are 

Participants in Good Standing in EVerify 

The 2008 H–2A final rule (but not the 

H–2B final rule) included a provision 

allowing H–2A workers who are 

lawfully present in the United States to 

begin work with a new petitioning 

employer upon the filing of a new H– 

2A petition naming the worker, before 

petition approval, provided that the new 

employer is a participant in good 

standing in E-Verify.12 See 8 CFR 

214.2(h)(2)(i)(D) and 8 CFR 

274a.12(b)(21). In such a case, the H–2A 

worker’s employment authorization 

continues for a period not to exceed 120 

days beginning on the ‘‘Received Date’’ 

on Form I–797, Notice of Action, which 

acknowledges the receipt of the new H– 

2A extension petition. Except for the 

new employer and worksite, the 

employment authorization extension 

remains subject to the same conditions 

and limitations indicated on the initial 

H–2A petition. The employment 

authorization extension will terminate 

automatically if the new employer fails 

to remain a participant in good standing 

in E-Verify, as determined by USCIS in 

its discretion, or after 15 days if USCIS 

denies the extension request prior to the 

expiration of the 120-day period. 

D. Importance of the H–2 Programs and 

the Need for Reforms 

DHS recognizes that the H–2A and H– 

2B programs play a critical role in the 

U.S. economy, allowing foreign workers 

to fill temporary jobs for which U.S. 

workers are not available and qualified. 

Reflective of their importance, the H–2A 

and H–2B programs have experienced 

significant growth since DHS published 

the H–2 2008 Final Rules. For instance, 

DOS data indicate that the number of 

H–2A visas issued has increased by over 

365 percent over the last decade, 

reaching 257,898 visas issued in fiscal 

year (FY) 2021, compared to 55,384 

visas issued in fiscal year 2011.13 With 

regard to the H–2B program, because 

Congress has capped the number of H– 

2B visas available, the number of H–2B 

visas issued has not increased at the 

same rate as H–2A visas. Yet, DOS data 

indicate that issuance of H–2B visas 

nearly doubled between fiscal year 2011 

(50,826 visas) and fiscal year 2021 

(95,053 visas).14 Because the recent 

demand for H–2B visas has regularly 

far-exceeded the statutory cap, Congress 

has repeatedly provided limited 

authority to DHS, in consultation with 

DOL and based on the needs of 

American businesses, to increase the 

number of H–2B visas available to U.S. 

employers over the last several years.15

In addition, in recent years the 

administration has sought to expand 

interest in the H–2 programs as part of 

its overall strategy to manage safe, 

orderly, and humane migration to this 

country.16 For instance, the U.S. Agency 

for International Development (USAID) 

conducted significant outreach focused 

on building government capacity to 

facilitate access to temporary worker 

visas under the H–2 programs.17 These 

efforts have successfully encouraged 

increased use of the H–2 programs when 

there are not sufficient qualified and 

available U.S. workers.18

At the same time, the administration 

has consistently recognized the need to 

balance the expanded use of the H–2 

programs with greater protections for 

workers. The National Security Council 

noted in its Collaborative Migration 

Management Strategy that expansion of 

access to nonimmigrant work visas 

‘‘must also address the vulnerability of 

workers to abusive labor practices.’’ 19

In guidance promoting implementation 

of best practices by employers and by 

governments seeking to increase 

participation in the H–2 visa programs, 


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20See DOS, USAID, and DOL, Guidance on Fair 

Recruitment Practices for Temporary Migrant 

Workers (June 2022), https://www.dol.gov/sites/ 

dolgov/files/OPA/newsreleases/2022/06/ 

ILAB20220565.pdf; see also U.S. Dep’t of Agric., 

U.S. Department of Agriculture to Invest up to $65 

Million in Pilot Program to Strengthen Food Supply 

Chain, Reduce Irregular Migration, and Improve 

Working Conditions for Farmworkers (June 10, 

2022) (‘‘Strong working conditions are critical to the 

resiliency of the food and agricultural supply chain. 

Through this pilot program, [U.S. Department of 

Agriculture] will support efforts to improve 

working conditions for both U.S. and H–2A workers 

and ensure that H–2A workers are not subjected to 

unfair recruitment practices.’’), https://

www.usda.gov/media/press-releases/2022/06/10/ 

us-department-agriculture-invest-65-million-pilotprogram. 

21See, e.g., DHS, DHS Announces Process 

Enhancements for Supporting Labor Enforcement 

Investigations (Jan. 13, 2023), https://www.dhs.gov/ 

news/2023/01/13/dhs-announces-processenhancements-supporting-labor-enforcementinvestigations. 

22See, e.g., GAO, Closed Civil and Criminal Cases 

Illustrate Instances of H–2B Workers Being Targets 

of Fraud and Abuse (GAO–10–1053) (2010), https:// 

www.gao.gov/assets/gao-10-1053.pdf; GAO, 

Increased Protections Needed for Foreign Workers 

(GAO–15–154) (2015), https://www.gao.gov/assets/ 

gao-15-154.pdf; Centro de los Derechos del 

Migrante, Inc. (CDM), Ripe for Reform: Abuses of 

Agricultural Workers in the H–2A Visa Program 

(2020) (noting prevalence of ‘‘systemic violations of 

[H–2A] workers’ legal rights’’), https:// 

cdmigrante.org/ripe-for-reform/; Southern Poverty 

Law Center, Close to Slavery: Guestworker 

Programs in the United States (2013), https://

www.splcenter.org/sites/default/files/d6_legacy_

files/downloads/publication/SPLC-Close-to-Slavery2013.pdf (‘‘The current H–2 program. . ..is rife 

with labor and human rights violations committed 

by employers who prey on a highly vulnerable 

workforce.’’); Daniel Costa, Temporary work visa 

programs and the need for reform: A briefing on 

program frameworks, policy issues and fixes, and 

the impact of COVID–19, Economic Policy Institute 

(Feb. 3, 2021), https://files.epi.org/pdf/217871.pdf. 

23See GAO–15–154 (2015), https://www.gao.gov/ 

assets/gao-15-154.pdf. 

24See Polaris, Labor Exploitation and Trafficking 

of Agricultural Workers During the Pandemic 6 

(2021) (reporting that available data on likely 

victims of labor trafficking show that 99 percent 

experienced some type of coercion), https://

polarisproject.org/wp-content/uploads/2021/06/ 

Polaris_Labor_Exploitation_and_Trafficking_of_

Agricultural_Workers_During_the_Pandemic.pdf,; 

CDM, Ripe for Reform 4 (2020) (reporting data 

showing that every worker interviewed, even those 

most satisfied with their experience, suffered at 

least one serious legal violation of their rights), 

https://cdmigrante.org/ripe-for-reform/; Polaris, 

Labor Trafficking on Specific Temporary Work 

Visas (2022) (reporting that over 68 percent of H– 

2B workers identified as likely victims of labor 

trafficking reported experiencing coercion), https:// 

polarisproject.org/wp-content/uploads/2022/07/ 

Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf. 

25See GAO–15–154 (2015), https://www.gao.gov/ 

assets/gao-15-154.pdf; CDM, Fake Jobs for Sale: 

Analyzing Fraud and Advancing Transparency in 

U.S. Labor Recruitment 4 (2019), https://

cdmigrante.org/wp-content/uploads/2019/04/FakeJobs-for-Sale-Report.pdf. 

26See CDM, Ripe for Reform (2020), https://

cdmigrante.org/ripe-for-reform/. For a report 

illustrating how women, in particular, 

disproportionately face discrimination in the H–2B 

program, see CDM, Breaking the Shell: How 

Maryland’s Migrant Crab Pickers Continue to be 

‘‘Picked Apart’’ (2020), https://cdmigrante.org/wpcontent/uploads/2020/09/Breaking-The-Shell.pdf. 

27See, e.g., Polaris, Labor Trafficking on Specific 

Temporary Work Visas (2022), https://

polarisproject.org/wp-content/uploads/2022/07/ 

Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf; CDM, Ripe for Reform (2020), 

https://cdmigrante.org/ripe-for-reform/; Polaris, 

Labor Exploitation and Trafficking of Agricultural 

Workers During the Pandemic 6 (2021), https://

polarisproject.org/wp-content/uploads/2021/06/ 

Polaris_Labor_Exploitation_and_Trafficking_of_

Agricultural_Workers_During_the_Pandemic.pdf. 

28See, e.g., Department of Justice (DOJ), U.S. 

Attorney’s Office, Southern District of Georgia, 

Three men sentenced to federal prison on charges 

related to human trafficking: Each admitted to role 

in forced farm labor in Operation Blooming Onion 

(Mar. 31, 2022) (involving forced labor, keeping 

workers in substandard conditions, kidnapping, 

and rape, among other abuses), https://

www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking; DOJ, Three Defendants Sentenced in 

Multi-State Racketeering Conspiracy Involving the 

Forced Labor of Mexican Agricultural H–2A 

Workers (Oct. 27, 2022) (involving forced labor, 

imposing debts on workers, and subjecting workers 

to crowded, unsanitary, and degrading living 

conditions), https://www.justice.gov/opa/pr/threedefendants-sentenced-multi-state-racketeeringconspiracy-involving-forced-labor-mexican; DOL, 

Order Finding Civil Contempt and Imposing Stop 

Work Order, No. 1:19-cv-00007 (D. N. Mar. I. Jan. 

21, 2021) (involving extensive wage violations, 

substandard living conditions, and threats to 

withhold food if workers stopped working, among 

other abuses), https://www.dol.gov/sites/dolgov/ 

files/SOL/files/IPI%20-%20Stop

%20Work%20Order.pdf. 

29See GAO–15–154, at 37–38 (2015), https://

www.gao.gov/assets/gao-15-154.pdf. 

30See GAO–15–154, at 37–38 (2015), https://

www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for 

Reform 4 (2020), https://cdmigrante.org/ripe-forreform/. 

31See 20 CFR 655.20(n); 655.135(h); and 29 CFR 

503.16(n). 

32See CDM, Ripe for Reform 4 (2020), https:// 

cdmigrante.org/ripe-for-reform/; CDM, Recruitment 

Revealed: Fundamental Flaws in the H–2 

Temporary Worker Program and Recommendations 

for Change 22–24 (2018), https://cdmigrante.org/ 

wp-content/uploads/2018/02/Recruitment_

Revealed.pdf. 

33See GAO–15–154, at 51 (2015), https://

www.gao.gov/assets/gao-15-154.pdf. 

34See GAO–15–154, at 37–38 (2015), https://

www.gao.gov/assets/gao-15-154.pdf; CDM, 

Recruitment Revealed 22–24 (2018), https:// 

cdmigrante.org/wp-content/uploads/2018/02/ 

Recruitment_Revealed.pdf; CDM, Fake Jobs for 

Sale, https://cdmigrante.org/wp-content/uploads/ 

2019/04/Fake-Jobs-for-Sale-Report.pdf. 

DOS, USAID, and DOL emphasized that 

‘‘[e]xpanding access to [the H–2 

programs] and protecting migrant 

workers’ rights are two aspects of the 

same agenda.’’ 20

Similarly, in proposing this rule, DHS 

recognizes that stronger protections are 

needed for the nonimmigrant workers 

who participate in the H–2 programs.21

Numerous reports from Federal 

Government entities, migrant worker 

advocates, media, and other 

stakeholders have noted frequent 

violations of H–2 workers’ rights, both 

in the United States and prior to 

admission.22 For example, a Federal 

Government report found that workers 

may experience abuses before and after 

entering the United States, and during 

the course of their H–2 employment in 

the United States.23 Reports from 

advocacy groups found that many H–2 

workers suffer at least one serious 

violation of their rights (such as paying 

prohibited recruitment fees or 

significant wage violations) or a form of 

coercion (such as threats, verbal abuse, 

and withholding of documents) during 

their employment in the United 

States.24 These reports detail a wide 

range of violations, from coercion to 

paying illegal fees; wage theft; receiving 

false job information; 25 discrimination 

and harassment; 26 and being housed in 

crowded, unsanitary, and degrading 

conditions with limited food and water. 

Other serious violations include forced 

labor; being held captive without 

personal documents; threats of arrest, 

deportation, and violence toward the 

workers or their families abroad; 

kidnapping; sexual abuse; rape; and 

even death.27 Recent court cases serve to 

underscore the range and severity of 

abuses and exploitation faced by H–2 

workers in the United States.28

A U.S. Government study found that 

the structure of the H–2A and H–2B 

programs may create systematic 

disincentives for workers to report or 

leave abusive working conditions.29

One disincentive is that workers are 

authorized to work only for the 

petitioning H–2A or H–2B employer; 

consequently, the workers cannot freely 

leave to work for another employer, nor 

do they feel free to report mistreatment 

by their employer for fear of retaliation 

or blacklisting (that is, exclusion from 

future employment opportunities 

through the same employer or 

recruiter) 30 despite existing DOL 

prohibitions on such retaliation.31

Losing their jobs means losing their 

legal status and authorization to remain 

in the United States, and potentially 

their ability to work in the United States 

in the future.32 According to the GAO, 

workers also fear reporting violations to 

law enforcement or government entities 

due generally to their immigration 

status and lack of knowledge about their 

rights.33 Another significant 

disincentive identified by the GAO is 

the workers’ incurrence of prohibited 

fees or subjection to other recruitment 

abuses, as workers or their family 

members may face retaliation from 

recruiters or other actors in their home 

countries if they do not repay these 

debts.34

In a study conducted by migrant 

worker advocates, a majority of H–2 


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35See CDM, Recruitment Revealed 4, 16 (2018), 

https://cdmigrante.org/wp-content/uploads/2018/ 

02/Recruitment_Revealed.pdf. This study focused 

on recruitment in Mexico because Mexico is home 

to the largest number of H–2 workers. The H–2 

workers surveyed in this study worked in the U.S. 

during or after 2006. See also 8 CFR 214.2(h)(5)(xi); 

8 CFR 214.2(h)(6)(i); 20 CFR 655.20(o) and (p); and 

20 CFR 655.135(j) and (k). 

36See, e.g., CDM, Ripe for Reform 19 (2020), 

https://cdmigrante.org/ripe-for-reform/; CDM, 

Recruitment Revealed 4, 16 (2018), https:// 

cdmigrante.org/wp-content/uploads/2018/02/ 

Recruitment_Revealed.pdf; GAO–15–154, at 28–29 

(2015), https://www.gao.gov/assets/gao-15-154.pdf. 

37See CDM, Ripe for Reform 16 (2020), https:// 

cdmigrante.org/ripe-for-reform/. This report 

highlighted how indigenous workers face 

significant challenges primarily due to their 

language and cultural differences. 

38See, e.g., Changes to Requirements Affecting H– 

2A Nonimmigrants, 73 FR 8230, 8233 (Feb. 13, 

2008) (‘‘USCIS has found that certain job recruiters 

and U.S. employers are charging potential H–2A 

workers job placement fees in order to obtain H– 

2A employment. . . . USCIS has learned that 

payment by these workers of job placement-related 

fees not only results in further economic hardship 

for them, but also, in some instances, has resulted 

in their effective indenture.’’); GAO–15–154, at 30 

(2015), https://www.gao.gov/assets/gao-15-154.pdf; 

CDM, Recruitment Revealed 4 (2018), https:// 

cdmigrante.org/wp-content/uploads/2018/02/ 

Recruitment_Revealed.pdf (many H–2 workers 

arrive in the United States in debt, which may lead 

to situations of debt servitude or other abuse); 

Daniel Costa, Temporary work visa programs and 

the need for reform 20 (2021), https://files.epi.org/ 

pdf/217871.pdf (‘‘Many [workers] are required to 

pay exorbitant fees to labor recruiters to secure U.S. 

employment opportunities, even though such fees 

are usually illegal. Those fees leave them indebted 

to recruiters or third-party lenders, which can result 

in a form of debt bondage.’’). 

‘‘Debt bondage’’ is defined in 22 U.S.C. 7102(7) 

as ‘‘the status or condition of a debtor arising from 

a pledge by the debtor of his or her personal 

services or those of a person under his or her 

control as security for a debt, if the value of those 

services as reasonably assessed is not applied 

toward the liquidation of the debt or the length and 

nature of those services are not respectively limited 

and defined.’’ 

39See GAO–15–154 (2015), https://www.gao.gov/ 

assets/gao-15-154.pdf. 40See, e.g., AFL–CIO, Comprehensive H–2B 

Recommendations. See the docket for this 

rulemaking for a copy of this letter; Farmworker 

Justice, No Way to Treat a Guest: Why the H–2A 

Agricultural Visa Program Fails U.S. and Foreign 

Workers (2012), https://www.farmworkerjustice.org/ 

wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf; LIUNA, H–2B 

Guest Worker Program: Lack of Accountability 

Leads to Exploitation of Workers, https://

d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0eab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c279c4e15ce31.pdf. 

41See Farmworker Justice, No Way to Treat a 

Guest (2012), https://www.farmworkerjustice.org/ 

wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf. 42See Ken Bensinger, Jessica Garrison, Jeremy 

Singer-Vine, The Pushovers: Employers Abuse 

Foreign Workers, U.S. Says, By All Means, Hire 

More, BuzzFeed News (May 12, 2016), https://

www.buzzfeednews.com/article/kenbensinger/thepushovers. 

43See LIUNA, H–2B Abuse by Construction and 

Landscaping Companies, https:// 

d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b2- 

9544-bd96627e284d/067fa0a5-659f-4113-8b25- 

ac60c2060510.pdf. 

44See, e.g., DHS, Response to Senator Ossoff 

letter (May 3, 2022), https://www.ossoff.senate.gov/ 

wp-content/uploads/2022/05/DHS-ResponseBlooming-Onion.pdf; DHS, For First Time, DHS to 

Supplement H–2B Cap with Additional Visas in 

First Half of Fiscal Year (Dec. 20, 2021), https://

www.uscis.gov/newsroom/news-releases/for-firsttime-dhs-to-supplement-h-2b-cap-with-additionalvisas-in-first-half-of-fiscal-year. 

workers reported paying recruitment 

fees, even though charging recruitment 

fees to such workers violates current 

U.S. immigration and labor 

regulations.35 These types of fees 

perpetuate the cycle of exploitation. 

Reports indicate that many H–2 workers 

incur substantial debts before they even 

get to the United States.36 Some 

recruiters target individuals already 

living in impoverished conditions 

abroad, often from rural or indigenous 

communities, further heightening the 

workers’ vulnerability to exploitation.37

Because they incur substantial debts in 

connection with (or related to) their 

seeking to come to this country as H– 

2 workers, these workers face economic 

hardship, and in many instances, debt 

bondage when arriving in the United 

States.38 As a result, these workers are 

less able or willing to report or leave 

poor working conditions or abusive 

situations.39

While current regulations already 

contain provisions on prohibited fees 

intended to protect H–2 workers, DHS 

recognizes that stronger protections are 

needed to address many of the reported 

widespread abuses and make DHS’s 

authority to address these issues 

explicit. Through this proposed 

rulemaking, DHS seeks to clarify and 

strengthen existing provisions on 

prohibited fees, and furthermore, 

implement significant new provisions to 

increase DHS’s ability to deter and hold 

accountable certain employers that have 

been found to have committed labor law 

violations and other violations relevant 

to the H–2 programs, while providing 

safeguards for workers reporting that 

they have been subject to payment of 

prohibited fees. 

Aside from prohibited fees, there are 

other harmful employer, recruiter, or 

agent behaviors that DHS’s current 

regulations do not address but that are 

relevant to eligibility and, in some 

instances, should warrant exclusion 

from the H–2 programs. Multiple 

sources have revealed flaws or gaps in 

the H–2 framework that allow H–2 

employers that have committed serious 

labor law violations to continue using 

the H–2 programs even after the 

violations.40 For instance, a report from 

an advocacy group highlighted how an 

H–2 employer that was the subject of 

over 80 complaints of unpaid wages and 

violations of employment terms during 

a single summer season continued using 

H–2 program to employ H–2 workers.41

A news article detailed how a company 

with a history of worker protection 

violations and vehicle safety violations 

(including for improper vehicle 

maintenance and unsafe driving) 

continued to receive approved TLCs to 

employ H–2 workers, including within 

3 months after it was found responsible 

for a vehicle crash that killed some of 

the H–2 workers it employed.42 A labor 

union report listed numerous case 

studies of H–2 employers that continued 

to receive approved TLCs despite 

multitudes of labor violations, some of 

which were deemed ‘‘egregious’’ and 

‘‘serious.’’ 43 While these studies 

focused on available data related to 

employers’ receipt of approved TLCs 

from DOL, it is apparent to DHS that 

these and other types of violations can 

be directly relevant to whether an 

employer has the ability and intent to 

comply with DHS’s H–2 program 

requirements. These types of violations 

should therefore be considered by 

USCIS in its adjudication of H–2A and 

H–2B petitions, regardless of whether 

DOL has taken action on the underlying 

TLCs. The proposed provisions in this 

rule, including new bars to approval for 

prohibited fees as well as for certain 

findings of labor law and other 

violations, and holding employers 

responsible for the actions of their 

recruiters and others in the recruitment 

chain, underscore DHS’s commitment to 

addressing aspects of the H–2 programs 

that may result in the exploitation of 

persons seeking to come to the United 

States as H–2 workers.44

In addition to providing greater 

protection for a vulnerable population 

of workers, the reforms proposed in this 

rulemaking offer a number of benefits to 

employers. DHS recognizes the 

immense importance of the H–2A and 

H–2B programs to U.S. employers that 

are unable to fill temporary jobs with 

qualified and available U.S. workers. 

The proposed portability provision, in 

addition to offering flexibility to 

workers, would assist petitioners facing 

worker shortages by allowing them to 

more quickly hire H–2A and H–2B 

workers who are already in the United 

States without waiting for approval of a 

new petition. In addition, as discussed 

in greater detail below, both the 

proposed elimination of the eligible 

countries lists and the proposed 

revision of the calculation of the 

maximum period of stay for H–2 

workers stand to reduce petitioner 


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45See, e.g., CDM, Recruitment Revealed 16 

(2018), https://cdmigrante.org/wp-content/uploads/ 

2018/02/Recruitment_Revealed.pdf; CDM, Ripe for 

Reform 20 (2020), https://cdmigrante.org/ripe-forreform/; Polaris, Labor Trafficking on Specific 

Temporary Work Visas 14 (2022), https:// 

polarisproject.org/wp-content/uploads/2022/07/ 

Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf; Polaris, On-ramps, 

intersections, and exit routes: A roadmap for 

systems and industries to prevent and disrupt 

human trafficking 41 (2018), https:// 

polarisproject.org/wp-content/uploads/2018/08/ARoadmap-for-Systems-and-Industries-to-Preventand-Disrupt-Human-Trafficking.pdf; GAO–10– 

1053, at 4 (2010), https://www.gao.gov/assets/gao10-1053.pdf. 

46When initially proposing the prohibited fee 

provisions, DHS explicitly noted these abuses and 

stated that the provisions were ‘‘an effort to protect 

[H–2] workers from such abuses.’’ Changes to 

Requirements Affecting H–2A Nonimmigrants, 73 

FR 8230, 8233 (Feb. 13, 2008); Changes to 

Requirements Affecting H–2B Nonimmigrants and 

Their Employers, 73 FR 49109, 49112 (Aug. 20, 

2008). 

47Current 20 CFR 655.135(j) (H–2A) and 20 CFR 

655.20(o) (H–2B). Notably, with respect to H–2A 

nonimmigrants, the Department of Labor has 

explained that, even in the case of otherwise 

permissible fees, ‘‘an employee may only pay such 

fees if they are for services that are voluntarily 

requested by the . . . employee. If an employee 

lacks a meaningful opportunity and an independent 

choice to refuse or decline the service which 

requires the payment of the fee,’’ such fee is 

prohibited. See U.S. Department of Labor, Wage 

and Hour Field Assistance Bulletin 2011–2, 

available at https://www.dol.gov/agencies/whd/ 

field-assistance-bulletins/2011-2 (addressing H–2A 

fees). Further, DOL has explained that ‘‘[t]he 

signing of a document by a prospective worker 

stating that he/she has agreed to pay the fee does 

not, in and of itself, establish that the fee is 

voluntary.’’ Id. This proposed rule recognizes that 

the concerns addressed by DOL with respect to the 

H–2A program apply equally to the H–2B program, 

and, as in the case of the H–2A program, this rule 

would intend to foreclose claims that simply 

because a worker agreed (or appears to have agreed) 

to a fee, it cannot be considered to be prohibited. 

48Temporary Agricultural Employment of H–2A 

Aliens in the United States, 75 FR 6884, 6925 (Feb. 

12, 2010); Temporary Agricultural Employment of 

H–2A Aliens in the United States; Modernizing the 

Labor Certification Process and Enforcement, 73 FR 

77110, 77158 (Dec. 18, 2008). 49Temporary Agricultural Employment of H–2A 

Nonimmigrants in the United States, 87 FR 61660, 

61744 (Oct. 12, 2022) (revisions to 20 CFR 

655.135(k) intended to ‘‘mak[e] it clear that foreign 

labor contractors or recruiters and their agents are 

not to receive remuneration from prospective 

employees recruited in exchange for access to a job 

opportunity or any activity related to obtaining H– 

2A labor certification’’). 

50See former 20 CFR 655.22(j) available at Labor 

Certification Process and Enforcement for 

Temporary Employment in Occupations Other 

Than Agriculture or Registered Nursing in the 

United States (H–2B Workers), and Other Technical 

Changes, 73 FR 78020, 78060 (Dec. 19, 2008); see 

also current 20 CFR 655.20(o) and 29 CFR 503.16(o) 

(both using the term ‘‘related to’’ and clarifying that 

prohibited fees would broadly include ‘‘payment of 

the employer’s attorney or agent fees, application 

and H–2B Petition fees, recruitment costs, or any 

fees attributed to obtaining the approved 

Application for Temporary Employment 

Certification’’). For readability purposes, this rule 

refers to all of the H–2B-related provisions of 20 

and 29 CFR as ‘‘DOL regulations’’ notwithstanding 

DHS’s joint issuance of some rules affecting these 

provisions. 

51See DOL, Fact Sheet #78D: Deductions and 

Prohibited Fees under the H–2B Program, https://

www.dol.gov/agencies/whd/fact-sheets/78d-h2bdeductions. 

52 DHS notes, however, that while certain fees are 

not prohibited under this proposed rule, it is not 

DHS’s intent to render a worker subject to any 

unlawful treatment or harassment resulting from 

the worker’s incurring debt from a petitioner 

(including a petitioner’s employee), agent, attorney, 

facilitator, recruiter, or similar employment service, 

or employer or joint employer, to cover such 

nonprohibited fees. 

burdens such as those associated with 

information collected at the time of 

filing and through subsequent RFEs, 

increase access to workers, and improve 

program efficiency. Further, with 

respect to the H–2B program, the 

proposed regulations are intended to 

ensure that only those employers who 

comply with the requirements of the H– 

2B program will be able to compete for 

the limited number of available capsubject visas, by precluding those 

employers who fail to demonstrate an 

intent to do so from participating in the 

H–2B program. 

IV. Discussion of Proposed Rule 

A. Program Integrity and Worker 

Protections 

1. Payment of Fees, Penalties, or Other 

Compensation by H–2 Beneficiaries 

As discussed above, despite 2008 

regulatory changes providing that 

USCIS will deny or revoke a petition 

when a beneficiary pays a fee as a 

condition of H–2 employment, reports 

from various sources indicate that the 

collection of prohibited fees remains a 

pervasive problem in the H–2A and H– 

2B programs.45 Through this 

rulemaking, DHS is proposing various 

amendments to strengthen and clarify 

the existing regulatory prohibitions, to 

close potential loopholes, and to modify 

the consequences for charging 

prohibited fees to H–2 workers. 

a. Fees, Penalties, or Other 

Compensation ‘‘Related To’’ H–2 

Employment 

The intent of the prohibited fee 

provisions in the 2008 H–2 rules was, in 

part, to establish measures to help avoid 

economic hardship for H–2 workers and 

combat effective indenture and similar 

abuses against H–2 workers.46 This 

proposed rule is intended, among other 

things, to foreclose claims that because 

a worker agreed (or appears to have 

agreed) to pay a prohibited fee, such 

agreement cannot be considered to be a 

condition of employment. 

To strengthen the prohibited fee 

provisions and establish substantial 

uniformity with DOL’s prohibited fee 

provisions, DHS proposes to modify its 

provisions to state that fees paid by H– 

2 workers to an employer, joint 

employer, petitioner (including to its 

employee), agent, attorney, facilitator, 

recruiter, similar employment service, 

related to such workers’ H–2 

employment, are prohibited. Although 

DHS used the phrase ‘‘as a condition of’’ 

in its 2008 final H–2A and H–2B rules, 

DOL, in promulgating its 2008 H–2A 

final rule, used instead the phrase 

‘‘related to’’ when addressing which 

costs and fees associated with 

recruitment and employment are 

prohibited.47 As DOL noted in 2008 and 

reiterated at the time it updated its 2008 

H–2A rule in 2010, the intent of the 

prohibited fees provisions was to 

‘‘requir[e] employers to bear the full cost 

of their decision to import foreign 

workers [as] a necessary step toward 

preventing the exploitation of foreign 

workers, with its concomitant adverse 

effect on U.S. workers.’’ 48 DOL affirmed 

these principles when it updated the H– 

2A regulations in 2022.49 Similarly, 

DOL used the term ‘‘related to’’ rather 

than ‘‘as a condition of’’ in its 2008 H– 

2B final rule.50 By proposing to replace 

the term ‘‘as a condition of’’ with 

‘‘related to,’’ with respect to the scope 

of the bar on payment of ‘‘prohibited 

fees,’’ DHS is proposing to modify the 

language of its H–2A and H–2B 

prohibited fees rules to substantially 

conform with DOL prohibited fee 

regulations. Fees that are ‘‘related to’’ 

H–2 employment would include, but 

not be limited to, the employer’s agent 

or attorney fees, visa application and 

petition fees, visa application and 

petition preparation fees, and 

recruitment costs 51; however, such fees 

would not include those that are ‘‘the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’ See 

proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 

CFR 214.2(h)(6)(i)(B).52

DHS also seeks to clarify that the term 

‘‘prohibited fee’’ would include any 

‘‘fee, penalty, or compensation’’ related 

to the H–2A or H–2B employment. See 

proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 

CFR 214.2(h)(6)(i)(B). A prohibited fee 

would include those collected either 

directly (such as, for instance, through 

a direct payment from the beneficiary to 

the petitioner or the petitioner’s agent), 

or indirectly (such as, for instance, 

through a withholding or deduction 

from the worker’s wages for a service 

provided earlier by a third party). 

To further strengthen the prohibited 

fee provisions and establish substantial 

uniformity with DOL’s prohibited fee 

provisions, proposed 8 CFR 

214.2(h)(5)(xi)(A) and 8 CFR 

214.2(h)(6)(i)(B) would have new 


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53See 20 CFR 655.20(o), which applies to 

prohibited fees by ‘‘[t]he employer and its attorney, 

agents, or employees.’’ 

54See 8 CFR 214.2(h)(5)(xi)(A) (acceptable fees 

exclude fees ‘‘to the extent that the passing of such 

costs to the beneficiary is not prohibited by 

statute’’) and 8 CFR 214.2(h)(6)(i)(B) (acceptable 

fees exclude fees ‘‘to the extent that the payment 

of such costs and fees by the beneficiary is not 

prohibited by statute or Department of Labor 

regulations’’). See also INA sec. 218(c)(4) 

(‘‘Employers shall furnish housing in accordance 

with regulations.’’) and 20 CFR 655.122(d)(1) (‘‘[t]he 

employer must provide housing at no cost to H–2A 

workers . . .’’ (italics added). 

55These concerns were raised by representatives 

from Centro de los Derechos del Migrante, Inc. and 

Farmworker Justice during a listening session held 

by DHS on May 16, 2022, and were also raised by 

Migration that Works in a letter to DHS dated May 

17, 2022. See the docket for this rulemaking for 

access to a transcript of the listening session and 

a copy of the letter. 

references to a petitioner’s employee or 

attorney as part of the list of individuals 

who may not collect prohibited fees 

from a beneficiary.53 As before, it is not 

the intention of DHS to bar the payment 

of fees to any agent, attorney, facilitator, 

recruiter, or similar employment service 

by the petitioner or employer, provided 

such fees do not come directly or 

indirectly from H–2 workers 

themselves. DHS recognizes the role of 

recruiters and similar employment 

services in assisting employers in 

finding H–2 workers. An employer may 

hire a recruiter and pay the recruiter out 

of its own funds, as long as it does not 

pass this cost directly or indirectly on 

to the worker(s). 

b. Clarification of Acceptable 

Reimbursement Fees 

Further, it is not the intention of DHS 

to pass to petitioners, employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services, the costs 

of services or items that are truly 

personal and voluntary in nature for the 

worker. Despite the phrase related to, 

not all payments made by prospective or 

current H–2 workers would be 

considered prohibited fees or payments 

related to H–2 employment under the 

proposed rule. Payments made 

primarily for the benefit of the worker, 

such as a passport fee, would not be 

prohibited fees or payments related to 

the H–2 employment under the rule and 

would, therefore, permissibly be 

considered the responsibility of the 

worker. 

The current regulations state that 

prohibited fees do not include ‘‘the 

lesser of the fair market value or actual 

costs of transportation and any 

government-mandated passport, visa, or 

inspection fees, to the extent that the 

payment of such costs and fees by the 

beneficiary is not prohibited by statute 

or DOL regulations, unless the employer 

agent, facilitator, recruiter, or 

employment service has agreed with the 

[noncitizen] to pay such costs and fees.’’ 

8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 

214.2(h)(6)(i)(B). To simplify the 

language related to acceptable 

reimbursement fees and clarify that the 

exception only applies to costs that are 

truly for the worker’s benefit, DHS 

proposes to replace the existing 

regulatory language on this topic with 

text stating that the provision would not 

prevent relevant parties ‘‘from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’ 

Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8 

CFR 214.2(h)(6)(i)(B). This proposed 

language is derived from, and is 

consistent with, DOL regulations on 

prohibited fees for H–2B and H–2A 

workers at 20 CFR 655.20(o), 29 CFR 

503.16(o), and 20 CFR 655.135(j). The 

proposed provision would clarify the 

existing prohibition on a beneficiary’s 

payment of costs required by statute or 

regulation to be paid or otherwise 

incurred by the petitioner (such as 

certain transportation costs or, in the H– 

2A context, certain housing costs).54

Specifically, the proposed language 

would make clear that the passing of a 

cost to the beneficiary that, by statute or 

applicable regulations is the 

responsibility of the petitioner, would 

constitute a collection of a prohibited 

fee by the petitioner. Proposed 8 CFR 

214.2(h)(5)(xi)(A) and 8 CFR 

214.2(h)(6)(i)(B). DHS has proposed the 

phrase ‘‘applicable regulations’’ to 

recognize that, in the H–2A context, 

‘‘applicable regulations’’ would include 

DHS and DOL regulations, and in the 

H–2B context, ‘‘applicable regulations’’ 

would include DHS, DOL, and GDOL 

regulations. 

c. Prohibiting Breach of Contract Fees 

and Penalties 

DHS also proposes to clarify that 

prohibited fees include any fees or 

penalties charged to workers who do not 

complete their contracts. Advocacy 

groups have reported instances of 

recruiters forcing, or threatening to 

force, H–2 workers to pay large 

‘‘breach’’ fees of up to thousands of 

dollars for leaving employment before 

the scheduled conclusion of work.55

DHS proposes to explicitly include a 

‘‘fee or penalty for breach of contract’’ 

in the revised prohibited fee provision 

in order to provide greater clarity for 

stakeholders, and to emphasize the 

prohibited nature of such fees. Proposed 

8 CFR 214.2(h)(5)(xi)(A) and 8 CFR 

214.2(h)(6)(i)(B). 

d. Strengthening the Prohibited Fees 

Provisions 

DHS is proposing to amend regulatory 

language that currently allows 

petitioners to avoid liability in certain 

instances despite a USCIS 

determination that the petitioner 

collected or planned to collect 

prohibited fees. Under the current 

regulations, a petitioner who was found 

to have collected or entered into an 

agreement to collect a prohibited fee is 

not subject to denial or revocation on 

notice if the petitioner demonstrates 

that it reimbursed the worker prior to 

the filing of the petition or, if the fee has 

not yet been paid by the worker, that the 

agreement has been terminated. 8 CFR 

214.2(h)(5)(xi)(A)(1) and 8 CFR 

214.2(h)(6)(i)(B)(1). Similarly, if USCIS 

determines that the petitioner knew or 

should have known at the time of filing 

that its agent, facilitator, recruiter, or 

similar employment service collected or 

entered into an agreement to collect 

prohibited fees, the current regulations 

include exceptions to the requirement 

that USCIS deny or revoke on notice if 

the petitioner demonstrates that such 

fees were reimbursed, the agreement to 

collect fees was terminated prior to 

collection, or, in cases where such 

payment or agreement was made after 

the filing of the petition, that the 

petitioner notified DHS of the 

prohibited fees or agreement within 2 

days of learning of them. 8 CFR 

214.2(h)(5)(xi)(A)(2) and (4) and 8 CFR 

214.2(h)(6)(i)(B)(2) and (4). 

DHS is proposing to eliminate the 

above-noted exceptions to prohibited 

fee-related denials or revocations that 

are based solely on a petitioner’s 

reimbursement, pre-payment 

cancellation of a prohibited fee 

agreement, or notification to DHS. 

Proposed 8 CFR 214.2(h)(5)(xi)(A)(1) 

and (2) and 8 CFR 214.2(h)(6)(i)(B)(1) 

and (2). Whereas reimbursement, prepayment cancellation, or notification to 

DHS, by itself, currently allows a 

petitioner to avoid a denial or 

revocation, DHS is proposing to require 

the petitioner to take additional, 

significant steps to prevent the unlawful 

collection of fees and thus avoid a 

future denial or revocation and the 

additional consequences that follow. 

This change is appropriate because, in 

such cases, petitioners (including their 

employees) or their third-party 

associates (including agents, attorneys, 

facilitators, recruiters, or similar 

employment services) have already 

engaged in wrongdoing by taking 

actions that violate longstanding 


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56A study conducted by the advocacy group 

Centro de los Derechos del Migrante, Inc. noted that 

some H–2 workers who go into debt to cover preemployment expenses are vulnerable to predatory 

lending practices such as high interest rates and 

exploitative collateral requirements. See CDM, 

Recruitment Revealed 18 (2018), https:// 

cdmigrante.org/wp-content/uploads/2018/02/ 

Recruitment_Revealed.pdf. 

57See, e.g., International Labor Recruitment 

Working Group, The American Dream Up for Sale: 

A Blueprint for Ending International Labor 

Recruitment Abuse 34 (2013) (noting employers’ 

evasion of H–2A and H–2B prohibited fee laws by 

claiming they are unaware their workers were 

charged recruitment fees), https:// 

migrationthatworks.org/reports/the-americandream-up-for-sale-a-blueprint-for-endinginternational-labor-recruitment-abuse/. 

58 DOL already requires employers to 

contractually forbid third parties whom they engage 

for the recruitment of workers from seeking or 

receiving payments or other compensation from 

prospective employees. See 20 CFR 655.9(a), 20 

CFR 655.20(p), and 20 CFR 655.135(k). 

Accordingly, USCIS’s acceptance of such a contract 

alone as meeting the proposed standard would 

mean that nearly all petitioners could avoid 

liability. 

requirements of the H–2 programs, 

namely, collecting or taking steps 

toward collecting prohibited fees. In 

addition, the collection or agreement to 

collect a prohibited fee has the potential 

to harm an H–2 worker even if the fee 

is later reimbursed or the agreement is 

cancelled prior to collection, such as by 

causing the worker to go into debt 

related to the payment, or anticipated 

payment, of the fee.56 DHS emphasizes 

the importance of petitioners 

reimbursing a worker who has paid a 

prohibited fee because it mitigates the 

harm done to the worker. DHS is 

therefore proposing to incorporate 

language in the proposed rule regarding 

the impact reimbursement could have 

with respect to the consequences for a 

determination of prohibited fees, as 

discussed below. 

For situations in which a petitioner 

itself is found to have collected or 

entered an agreement to collect 

prohibited fees, such as when an 

employee of the petitioner engages in 

such activity, DHS proposes to hold the 

petitioner or its successor accountable 

by denying or revoking its approved 

petition and thereby making it subject to 

additional consequences described 

below, except in rare cases involving 

extraordinary circumstances beyond the 

petitioner’s control. Proposed 8 CFR 

214.2(h)(5)(xi)(A)(1) and 8 CFR 

214.2(h)(6)(i)(B)(1). Specifically, a 

petition filed by a petitioner found to 

have collected or entered into an 

agreement to collect prohibited fees 

would be subject to denial or revocation 

on notice and the resulting additional 

consequence of a 1-year to 4-year bar to 

approval of subsequent petitions. 

Proposed 8 CFR 214.2(h)(5)(xi)(A)(1), 8 

CFR 214.2(h)(5)(xi)(B), 8 CFR 

214.2(h)(6)(i)(B)(1), and 8 CFR 

214.2(h)(6)(i)(C). That petitioner may 

only avoid such consequences if it 

demonstrates, through clear and 

convincing evidence in response to a 

USCIS notice of intent to deny or 

revoke, both that extraordinary 

circumstances beyond its control 

resulted in its failure to prevent 

collection or entry into agreement for 

collection of prohibited fees and that it 

has fully reimbursed all affected 

beneficiaries and designees. Proposed 8 

CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR 

214.2(h)(6)(i)(B)(1). The determination 

as to whether a petitioner has met this 

very high standard would be made on 

a case-by-case basis. As a baseline, a 

petitioner would need to first 

demonstrate that the extraordinary 

circumstances were rare and 

unforeseeable, and that it had made 

significant efforts to prevent prohibited 

fees prior to the collection of or 

agreement to collect such fees. As the 

proposed standard would require 

evidence of the petitioner’s significant 

efforts to prevent prohibited fees, a 

petitioner would need to demonstrate 

that it took affirmative steps to prevent 

its employees from collecting or 

agreeing to collect such fees. The 

petitioner’s mere lack of awareness of its 

employee’s collection or agreement to 

collect such fees would not be 

sufficient. 

In addition to the above, a petitioner 

would further need to establish that it 

took immediate remedial action as soon 

as it became aware of the payment of the 

prohibited fee. Moreover, a petitioner 

would need to demonstrate that it has 

fully reimbursed all affected 

beneficiaries or their designees. The 

petitioner would need to establish all of 

the above elements in order to avoid 

denial or revocation of its petition. 

While USCIS may determine that denial 

or revocation is not appropriate in such 

an extraordinary case, petitioners would 

still be accountable for reimbursing 

workers in full irrespective of the 

circumstances surrounding their own 

prohibited fee collections or agreements. 

To further ensure against a petitioner 

avoiding liability for prohibited fees, 

DHS proposes to change the standards 

under which a petitioner may be held 

accountable for the prohibited feerelated violations of its agents, 

attorneys, facilitators, recruiters, or 

similar employment services. Under 

current regulations, in order to hold a 

petitioner liable for such actions, USCIS 

must make a determination that the 

petitioner ‘‘knew or should have 

known’’ about any such prohibited 

collection or agreement that was made 

prior to filing the petition, or that any 

post-filing collection or agreement was 

made ‘‘with the knowledge of the 

petitioner.’’ 8 CFR 214.2(h)(5)(xi)(A)(2) 

and (4) and 8 CFR 214.2(h)(6)(i)(B)(2) 

and (4). This requirement can make it 

difficult for USCIS to deny a petition, 

even if there is evidence that prohibited 

fees were collected. In practice, a 

petitioner may be able to avoid a denial 

or revocation based on its lack of 

knowledge (whether or not as a result of 

its failure to exercise due diligence) or 

claimed lack of knowledge of the 

practices of the third parties with whom 

it has done business, such as by 

submitting evidence that the petitioner’s 

contract with a recruitment service 

includes a clause forbidding the 

collection of prohibited fees.57

In proposing changes to the abovenoted provisions, DHS seeks to clarify 

and emphasize that it is a petitioner’s 

responsibility to conduct due diligence 

to ensure that any third-party agent, 

attorney, facilitator, recruiter, or similar 

employment service with whom it 

conducts business will comply with H– 

2 program requirements, including the 

prohibition on collection of fees related 

to H–2 employment. This due diligence 

obligation applies irrespective of 

whether the employer is in contractual 

privity with such third party or whether 

such third party is located or operating 

in the United States. Accordingly, DHS 

is proposing to hold petitioners 

accountable for any prohibited feerelated violation by these third parties, 

with only an extremely limited 

exception. 

Specifically, under DHS’s proposed 

provisions, any determination that an 

H–2 worker has paid or agreed to pay 

a prohibited fee to the petitioner’s agent, 

facilitator, recruiter, or similar 

employment service would result in 

denial of the petition or revocation on 

notice, ‘‘unless the petitioner 

demonstrates to USCIS through clear 

and convincing evidence that it did not 

know and could not, through due 

diligence, have learned of such payment 

or agreement and that all affected 

beneficiaries have been fully 

reimbursed.’’ Proposed 8 CFR 

214.2(h)(5)(xi)(A)(2) and 8 CFR 

214.2(h)(6)(i)(B)(2). DHS is also 

proposing to state that, by itself, a 

written contract between the petitioner 

and the third party stating that such fees 

are prohibited will not be sufficient to 

meet this standard of proof.58 While the 

language of such a contract may be 

considered, additional documentation 

must be provided. Relevant 

documentation could include evidence 


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59H–2B job contractors and employer-clients 

must meet the requirements of the definition of an 

H–2 ‘‘employer’’ under 20 CFR 655.5 and 655.19. 

60USCIS would deny any such petition filed 

during this period and would not refund the filing 

fee. See 8 CFR 103.2(a)(1). 

61See, e.g., CDM, Recruitment Revealed 18 (2018) 

(‘‘High interest rates on loans put workers at risk 

of becoming trapped in debt, and exploitative 

collateral requirements can cause workers to lose 

essential property, such as their vehicles or even 

their homes. Moreover, when workers with abusive 

loans arrive in the U.S. to work, they are faced with 

an additional pressure to earn back the money they 

borrowed in their country of origin.’’), https:// 

cdmigrante.org/wp-content/uploads/2018/02/ 

Recruitment_Revealed.pdf; CDM, Ripe for Reform 

21 (2020) (‘‘Our surveys revealed that 26% of 

workers interviewed were forced to pay recruitment 

fees as high as $4,500. This practice makes workers 

vulnerable to abuse. Charging workers for the right 

to work is illegal and is a serious risk factor for 

human trafficking. Workers are less free to leave an 

abusive environment when they start the job 

indebted.’’), https://cdmigrante.org/ripe-for-reform/; 

Polaris, On-Ramps, Intersections, and Exit Routes 

43 (2018) (‘‘The financial burdens of recruitment 

fees can be devastating in and of themselves but 

they are also—ironically—a necessary backdrop for 

trafficking to occur.’’), https://polarisproject.org/wpcontent/uploads/2018/08/A-Roadmap-for-Systemsand-Industries-to-Prevent-and-Disrupt-HumanTrafficking.pdf; Polaris, Labor Trafficking on 

Specific Temporary Work Visas 16 (2022) (‘‘Having 

paid substantial fees in order to get the job—and 

often having gone into debt to do so—leaves 

workers with little choice but to try to recoup their 

losses regardless of the conditions in which they are 

working.’’), https://polarisproject.org/wp-content/ 

uploads/2022/07/Labor-Trafficking-on-SpecificTemporary-Work-Visas-by-Polaris.pdf. 

of communications showing the 

petitioner inquired about the third 

party’s past practices and payment 

structure to ensure that it obtains its 

revenue from sources other than the 

workers and/or any documentation that 

was provided to the petitioner by the 

third party about its payment structure 

and revenue sources. DHS seeks input 

from the public regarding other types of 

evidence that may be relevant and 

available to meet the proposed standard. 

Finally, DHS is proposing to add that, 

in addition to petitioners, agents, 

facilitators, recruiters, and similar 

employment services, the prohibited fee 

provision would apply to any joint 

employers in the H–2A context, 

including a petitioner’s member 

employers if the petitioner is an 

association of U.S. agricultural 

producers, and any employers (if 

different from the petitioner) in the H– 

2B context. Proposed 8 CFR 

214.2(h)(5)(xi)(A) and 8 CFR 

214.2(h)(6)(i)(B). The regulations allow 

an H–2A petition to be filed by either 

the employer listed on the TLC, the 

employer’s agent, or the association of 

U.S. agricultural producers named as a 

joint employer on the TLC. 8 CFR 

214.2(h)(5)(i)(A). Similar to a 

petitioner’s responsibility with the 

listed third parties discussed above, 

DHS seeks to clarify and emphasize that 

an association of U.S. agricultural 

producers named as a joint employer on 

a TLC and other joint employers bear 

responsibility to conduct due diligence 

to self-police and ensure that its 

member or joint employers will comply 

with H–2A program requirements. 

Likewise, in a job contracting scenario 

in which a petitioner brings in H–2B 

workers to work for one or more 

employer-clients,59 DHS seeks to clarify 

and emphasize that the petitioner is 

responsible for ensuring that such 

employers will comply with H–2B 

program requirements. Therefore, 

petitioners would be held accountable 

for any collection or agreement to 

collect prohibited fees by any such 

employers and (for H–2A) joint 

employers, ‘‘unless the petitioner 

demonstrates to USCIS through clear 

and convincing evidence that it did not 

know and could not, through due 

diligence, have learned of such payment 

or agreement.’’ Proposed 8 CFR 

214.2(h)(5)(xi)(A)(2) and 8 CFR 

214.2(h)(6)(i)(B)(2). 

e. Consequences of a Denial or 

Revocation Based on Prohibited Fees 

Under the current regulations, during 

the 1-year period following an H–2A or 

H–2B denial or revocation for 

prohibited fees, USCIS may only 

approve a petition filed by the same 

petitioner for the same classification if 

the petitioner demonstrates either that 

each affected beneficiary has been 

reimbursed in full or that it made 

reasonable efforts but has failed to 

locate such beneficiary(ies). 8 CFR 

214.2(h)(5)(xi)(C)(1) and 8 CFR 

214.2(h)(6)(i)(D). The current 

regulations specify that reasonable 

efforts include contacting the 

beneficiary’s known addresses. 8 CFR 

214.2(h)(5)(xi)(C)(1) (with respect to H– 

2A workers, reasonable efforts include 

‘‘contacting any of the beneficiary’s 

known addresses’’); 8 CFR 

214.2(h)(6)(i)(D)(1) (with respect to H– 

2B workers, reasonable efforts include 

‘‘contacting all of each such 

beneficiary’s known addresses’’). DHS is 

proposing several changes to these 

provisions to increase the consequences 

and provide a stronger deterrent against 

prohibited fee violations, to incentivize 

reimbursement when such violations 

occur, and to better ensure that 

petitioners do not avoid the 

consequences of a denial or revocation 

for such violations. 

First, DHS is proposing to create a 1- 

year bar on H–2 petition approvals 

following an H–2A or H–2B denial or 

revocation based in whole or in part on 

prohibited fees, or following the 

petitioner’s withdrawal of an H–2A or 

H–2B petition if the withdrawal occurs 

after USCIS issues a request for 

evidence or notice of intent to deny or 

revoke the petition on such a basis. 

Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8 

CFR 214.2(h)(6)(i)(C). 

During this 1-year period, the 

petitioner would be barred from 

approval of any H–2A or H–2B petition, 

regardless of whether beneficiaries are 

reimbursed for payment of prohibited 

fees. Proposed 8 CFR 214.2(h)(5)(xi)(B) 

and 8 CFR 214.2(h)(6)(i)(C).60 This 

proposed provision is meant to reflect 

the serious nature of prohibited fee 

violations, which are not only illegal but 

also harmful to H–2 workers. As 

advocacy groups have consistently 

noted, recruitment fees put workers at 

risk for exploitation because workers 

who incur debt to cover such fees are 

vulnerable to predatory lenders and are 

at increased risk of debt bondage, 

human trafficking, and other abuses.61

In addition, for the 3 years following 

the 1-year bar, DHS proposes to allow 

petition approval only if each affected 

beneficiary (or the beneficiary’s 

designee(s), if applicable) has been 

reimbursed in full, with no exceptions. 

See proposed 8 CFR 214.2(h)(5)(xi)(C) 

and 8 CFR 214.2(h)(6)(i)(D). Given the 

serious nature of prohibited fee 

violations and the significant harm to 

beneficiaries who are charged such fees, 

as discussed above, it would not be 

appropriate to allow a violator to avoid 

consequences merely by contacting any 

known addresses of affected 

beneficiaries or claiming inability to 

locate affected beneficiaries. Instead, 

DHS intends the expanded 3-year time 

period during which reimbursement 

would be a condition to petition 

approval, as well as the removal of the 

exception for failure to locate the 

beneficiary(ies), to provide a 

significantly stronger incentive to 

ensure that beneficiaries or their 

designees are in fact reimbursed. 

The proposed provision would clarify 

that a petitioner may only provide 

reimbursement of prohibited fees to a 

beneficiary’s designee if a beneficiary 

cannot be located or is deceased. 

Proposed 8 CFR 214.2(h)(5)(xi)(A)(1) 

and 8 CFR 214.2(h)(6)(i)(B)(1). As this 

provision is not meant to create a 

loophole for a petitioner to avoid 

reimbursement of prohibited fees by not 

attempting to locate a beneficiary, the 

petitioner would need to demonstrate 


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that it made all possible efforts to locate 

the beneficiary, and then after 

exhausting such efforts to locate the 

beneficiary, that it reimbursed the 

appropriate designee. The proposed 

provision would clarify that a 

beneficiary’s designee(s) must be an 

individual(s) or entity(ies) for whom the 

beneficiary has provided the petitioner 

or its successor in interest prior written 

authorization to receive such 

reimbursement on the beneficiary’s 

behalf, as long as the petitioner or its 

successor, its agent, any employer (if 

different from the petitioner) or any 

joint employer, attorney, facilitator, 

recruiter, or similar employment service 

would not act as such designee or derive 

any financial benefit, either directly or 

indirectly, from the reimbursement. 

Proposed 8 CFR 214.2(h)(5)(xi)(A)(1) 

and 8 CFR 214.2(h)(6)(i)(B)(1). The 

requirement for ‘‘prior written 

authorization’’ would better ensure 

USCIS’s ability to determine whether 

the petitioner in fact reimbursed the 

appropriate designee. The prohibition 

against the petitioner or its agent, 

employer (if different from the 

petitioner) or any joint employer, 

attorney, facilitator, recruiter, or similar 

employment service from acting as the 

designee or deriving any financial 

benefit, either directly or indirectly, 

from the reimbursement would 

foreclose the possibility that any of 

these parties could serve as a designee 

or would use the designee provision as 

a way to benefit from not reimbursing 

the beneficiary. 

If this provision is finalized, 

petitioners would be expected, as a 

matter of best practice, to obtain in 

writing the beneficiary’s full contact 

information (including any contact 

information abroad), early on during the 

recruitment process, and to maintain 

and update such information as needed, 

to better ensure the petitioner’s ability 

to fully reimburse the beneficiary, or the 

beneficiary’s designee(s), for any sums 

the petitioner may be liable to pay the 

beneficiary. Petitioners would also be 

expected to inform the beneficiary, in a 

language the beneficiary understands, of 

the beneficiary’s ability to name a 

designee, and obtain full designee 

information, early on during the 

recruitment process, and to maintain 

and update such information as needed 

to ensure that the petitioner has in fact 

complied with the reimbursement 

requirement. 

Following a denial or revocation (or 

withdrawal) for prohibited fees under 

the proposed provisions, the maximum 

total period that a petitioner’s H–2 

petitions would be denied if the 

petitioner failed to fully reimburse its 

workers or their designees would be 4 

years. DHS believes that this period is 

sufficient to incentivize compliance 

with the reimbursement requirement. 

DHS invites comments as to the 

proposed maximum 4-year bar to the 

approval of an H–2A or H–2B petition 

that would apply if the petitioner 

cannot demonstrate that it has in fact 

reimbursed the worker(s) or their 

designee(s) in full for any prohibited 

fees paid. 

DHS is proposing to apply the above 

consequences for prohibited fees not 

only to the violating petitioner, but also 

to its successor in interest in order to 

prevent a petitioning entity from 

avoiding liability by changing hands, 

reincorporating, or holding itself out as 

a new entity. Proposed 8 CFR 

214.2(h)(5)(xi)(B) and (C) and 8 CFR 

214.2(h)(6)(i)(C) and (D). DHS proposes 

to define a successor in interest as an 

employer that is controlling and 

carrying on the business of a previous 

employer, regardless of whether such 

successor in interest has inherited all of 

the rights and liabilities of the 

predecessor entity. Proposed 8 CFR 

214.2(h)(5)(xi)(C) and 8 CFR 

214.2(h)(6)(i)(D). DHS proposes to 

include the term ‘‘regardless of whether 

such successor in interest has succeeded 

to all of the rights and liabilities of the 

predecessor entity’’ in order to prevent 

the new entity from avoiding liability by 

intentionally assuming only some of the 

petitioner’s rights and liabilities. 

Proposed 8 CFR 214.2(h)(5)(xi)(C) and 8 

CFR 214.2(h)(6)(i)(D) further list factors 

that USCIS may consider as relevant 

when determining whether an entity 

would be considered a successor in 

interest. As made clear in the proposed 

regulatory text, no one factor is 

dispositive, and USCIS would make a 

determination as to whether the entity 

is a successor in interest, and is 

therefore liable for reimbursement, 

based on the circumstances as a whole. 

These proposed factors are similar, 

but not identical, to the factors listed at 

8 CFR 214.2(w)(1)(xiv) for the CW–1 

nonimmigrant program. They are also 

similar, but not identical, to the factors 

listed in DOL regulations for the H–2A 

and H–2B programs. See, e.g., 20 CFR 

655.103(b); 20 CFR 655.5; 29 CFR 501.3; 

29 CFR 503.4. To the extent that the 

proposed factors differ from the ones 

currently in place at 8 CFR 

214.2(w)(1)(xiv) and DOL regulations, 

they generally flow from factors that are 

currently in place. For example, 

‘‘Familial or close personal 

relationships between predecessor and 

successor owners of the entity’’ under 

proposed factor (ix) flows from the 

current factors on whether the former 

management or owner retains a direct or 

indirect interest in the new enterprise, 

continuity of the work force, similarity 

of supervisory personnel, and the ability 

of predecessor to provide relief. ‘‘Use of 

the same or related remittance sources 

for business payments’’ under proposed 

factor (x) flows from current factors on 

use of the same facilities, substantial 

continuity of business operations 

similarities, and similarities in 

products, services, and production 

methods. Furthermore, USCIS’s 

adjudicative experience has shown the 

proposed factors in (ix)–(x) to be 

relevant when determining the 

relationship between entities and/or 

individuals. 

Finally, the proposed bars apply 

across both H–2 programs, meaning that 

an H–2B denial or revocation would 

trigger the bars to H–2A approval under 

proposed 8 CFR 214.2(h)(5)(xi)(B) and 

(C), and an H–2A denial or revocation 

would trigger the bars to H–2B approval 

under proposed 8 CFR 214.2(h)(6)(i)(C) 

and (D). Specifically, proposed 8 CFR 

214.2(h)(5)(xi)(B) states that the bar 

would apply within 1 year after the 

decision denying or revoking on notice 

‘‘an H–2A or H–2B petition on the basis 

of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), 

respectively, of this section’’ (emphasis 

added). Likewise, proposed 8 CFR 

214.2(h)(6)(i)(C) states that the bar 

would apply within 1 year after the 

decision denying or revoking on notice 

‘‘an H–2B or H–2A petition on the basis 

of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), 

respectively, of this section’’ (emphasis 

added). The additional 3-year bar at 

proposed 8 CFR 214.2(h)(5)(xi)(C) and 

(6)(i)(D) would similarly apply to both 

classifications whether the underlying 

petition that was denied or revoked for 

prohibited fees was an H–2A or H–2B 

petition. DHS is also proposing to apply 

the bars across both classifications in 

cases where a petitioner withdraws the 

petition after USCIS has issued a notice 

of intent to deny or revoke based on the 

H–2A or H–2B prohibited fee 

provisions. 

2. Denial of H–2 Petitions for Certain 

Violations of Program Requirements 

In this proposed rule, DHS, pursuant 

to its general authority under INA secs. 

103(a) and 214(c)(1), as well as its 

specific authority under INA sec. 

214(c)(14)(A)(ii) with respect to the H– 

2B program, is proposing to enhance 

worker protections by introducing a 

provision that allows for the denial of 

H–2 petitions for employers that have 

been found to have committed certain 

labor law violations or otherwise 

violated the requirements of the H–2 

programs. See proposed 8 CFR 


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62As previously discussed, numerous studies and 

news articles have recounted instances of 

employers continuing to access the H–2 programs 

despite their respective records of labor law and/ 

or safety violations. See, e.g., Farmworker Justice, 

No Way to Treat a Guest: Why the H–2A 

Agricultural Visa Program Fails U.S. and Foreign 

Workers (2012), https://www.farmworkerjustice.org/ 

wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf; LIUNA, H–2B 

Guest Worker Program: Lack of Accountability 

Leads to Exploitation of Workers, https:// 

d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0eab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c279c4e15ce31.pdf. 

63See, 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), https:// 

www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking. Also see the examples of abuse and 

exploitation of H–2 workers highlighted in section 

III.D, Importance of the H–2 Programs and the Need 

for Reforms. 

64See 20 CFR 655.20(z), 29 CFR 503.16(z); see 

also 20 CFR 655.135(e). 

65See also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1). 66USCIS does not read the phrase ‘‘notice and 

opportunity for a hearing’’ in INA sec. 214(c)(14) as 

requiring a formal hearing under 5 U.S.C. 556. 

USCIS therefore proposes to utilize its existing 

informal adjudications and appeals processes to 

satisfy this ‘‘notice and opportunity for a hearing’’ 

requirement. See 8 CFR 103.2, 103.3. See generally 

Michael Asimow, Admin. Conference of the U.S., 

‘‘Federal Administrative Adjudication Outside the 

Administrative Procedure Act’’ (2019) (discussing 

informal adjudication), at https://www.acus.gov/ 

sites/default/files/documents/

Federal%20Administrative

%20Adj%20Outside%20the%20APA%20- 

%20Final.pdf. 

67Exceptions to the bar under 8 CFR 214.1(k) are 

made for status under INA secs. 101(a)(15)(H)(i)(b1), 

(L), (O), and (P)(i). 

68A USCIS decision to deny a petition under 

proposed 8 CFR 214.2(h)(10)(iii) would not 

preclude a debarment action by DOL. 

214.2(h)(10)(iii).62 This proposed reform 

is an important addition in DHS’s efforts 

to improve the integrity of the H–2 

programs and to protect H–2 workers by 

allowing evaluation of a petitioner’s 

past compliance with certain H–2 

related laws prior to USCIS approving 

H–2 petitions. As noted in earlier 

sections, a worker’s H–2 status is tied to 

the petitioning employer only, and 

worker advocates have noted that the 

structure of the programs makes H–2 

workers vulnerable to exploitation and 

abuse. It is necessary, therefore, that 

USCIS have improved tools to properly 

identify and vet employers that seek to 

bring in H–2 workers. The consequences 

of bad actors participating in the H–2 

programs can be extremely harmful.63

This proposed provision reflects DHS’s 

determination that an employer’s past 

conduct in relation to respecting worker 

rights, as well as in relation to ensuring 

the safety and working conditions of its 

past or current employees, is relevant to 

petition eligibility as it may inform 

USCIS of that employer’s present intent 

and ability to comply with H–2 laws 

and requirements. The phrase ‘‘H–2 

laws and requirements’’ includes the 

obligations and prohibitions specifically 

outlined in statutes and DHS and DOL 

regulations. In addition, employers in 

the H–2 program are required to comply 

with ‘‘all applicable Federal, State, and 

local employment-related laws and 

regulations, including health and safety 

laws.’’ 64

The Secretary of Homeland Security’s 

authority to deny H–2 petitions for 

certain past violations of program 

requirements is derived from the INA 

and the HSA. Specifically, INA sec. 

214(c)(1), 8 U.S.C. 1184(c)(1), states that 

‘‘the question of importing any 

[noncitizen] as a nonimmigrant under 

subparagraph (H) . . . of section 

101(a)(15) . . . in any specific case or 

specific cases shall be determined by 

the [Secretary of Homeland Security], 

after consultation with appropriate 

agencies of the Government, upon 

petition of the importing employer.’’ 65

The same provision goes on to state, 

‘‘The petition shall be in such form and 

contain such information as the 

[Secretary of Homeland Security] shall 

prescribe.’’ In addition, with respect to 

H–2B petitions in which DHS has found 

a substantial failure to meet any 

conditions of the petition or a willful 

misrepresentation of a material fact, INA 

sec. 214(c)(14)(A)(ii), 8 U.S.C. 

1184(c)(14)(A)(ii), states in part that the 

Secretary of Homeland Security, ‘‘after 

notice and an opportunity for a 

hearing’’ 66 . . . ‘‘may deny petitions 

filed with respect to that employer. . . 

during a period of at least 1 year but not 

more than 5 years. . . .’’ 

The proposed provision is an 

expansion of existing regulatory 

authority that bars approval of H–2A 

petitions for 2 years after an employer 

or joint employer, or a parent, 

subsidiary, or affiliate is found to have 

violated INA sec. 274(a), 8 U.S.C. 

1324(a) (criminal penalties for 

unlawfully bringing in and harboring 

certain noncitizens) or to have 

employed an H–2A worker in a position 

other than that described in the 

nonimmigrant worker petition. See 8 

CFR 214.2(h)(5)(iii)(B). The existing 

provision at 8 CFR 214.2(h)(5)(iii)(B) is 

insufficient to address serious violations 

that occur in the H–2 programs, as it 

applies only to the H–2A program and 

does not include all of the types of 

violations that can be relevant to H–2 

program compliance. DHS proposes to 

replace this existing provision with a 

more comprehensive provision, 

proposed 8 CFR 214.2(h)(10)(iii), that 

includes both mandatory and 

discretionary grounds for denial 

depending on the type or severity of 

violations, including mandatory denial 

based on a final determination(s) that 

the employer violated INA sec. 274(a), 

and DHS is therefore proposing to 

remove and reserve 8 CFR 

214.2(h)(5)(iii)(B). 

Additionally, under existing DHS 

regulations at 8 CFR 214.1(k), USCIS 

may deny for a period of 1 to 5 years 

any petition filed for nonimmigrant 

status under INA sec. 101(a)(15)(H) 

upon the petitioner’s debarment by 

DOL.67 DHS would retain the provision 

at 8 CFR 214.1(k) and believes the 

addition of proposed 8 CFR 

214.2(h)(10)(iii) would complement that 

provision, in part by allowing DHS to 

address instances of past labor 

violations that may result in the abuse 

or exploitation of individuals seeking to 

come to the United States as H–2 

workers, but that may not have resulted 

in debarment from the H–2 programs by 

DOL.68 Further, proposed 8 CFR 

214.2(h)(10)(iii) would provide greater 

clarity to 8 CFR 214.1(k) regarding how 

the bar under 8 CFR 214.1(k) would be 

applied to H–2A and H–2B petitions, as 

discussed below. 

Under proposed 8 CFR 

214.2(h)(10)(iii), USCIS would have 

authority to deny H–2 petitions for 

certain past violations. The proposed 

provision sets out the conditions which 

would mandate USCIS denial, as well as 

instances in which USCIS would 

evaluate relevant factors to determine 

whether a discretionary denial is 

warranted. The violation findings set 

forth in proposed 8 CFR 

214.2(h)(10)(iii)(A) are, by nature, so 

egregious and directly connected to the 

H–2 programs that they warrant 

mandatory denial. In contrast, the 

conditions set forth in 8 CFR 

214.2(h)(10)(iii)(B) could potentially be 

less egregious in nature or less directly 

related to the H–2 programs, and 

therefore, would require additional 

analysis before determining whether a 

denial is warranted. These proposed 

provisions are discussed in more detail 

in the following subsections. Note that 

under proposed 8 CFR 214.2(h)(10)(iii), 

USCIS would or could deny an H–2A 

petition for a violation that occurred in 

the H–2B program, and vice versa. 

a. Mandatory Denial Based on Certain 

Violations 

Proposed 8 CFR 214.2(h)(10)(iii)(A) 

states that USCIS will deny any H–2A 

or H–2B petition filed by a petitioner, or 

the successor in interest of a petitioner 

as that term is defined in proposed 8 

CFR 214.2(h)(5)(xi)(C)(2) and proposed 


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69See generally 8 CFR 103.3 and 8 CFR 103.4 

(setting forth the appeal process for petitioners after 

a decision is issued). 70The 3-year period is consistent with the time 

period set forth in INA sec. 214(c)(14)(A)(ii) with 

respect to the H–2B classification. Since similar 

worker protection and program integrity concerns 

apply to the H–2A program, it is appropriate to use 

the same timeframe with respect to the H–2A 

classification. 71 INA sec. 274, 8 U.S.C. 1324, is titled ‘‘Bringing 

in and Harboring Certain Aliens,’’ and paragraph (a) 

covers ‘‘Criminal Penalties’’ within that section. 

INA sec. 274(a) is separate and distinct from INA 

sec. 274A, 8 U.S.C. 1324a, which is titled 

‘‘Unlawful Employment of Aliens.’’ 

72The denial notice would also inform the 

petitioner of the ability to file a motion to reopen 

or reconsider under 8 CFR 103.5(a). The filing of 

a motion would not stay the denial decision. 8 CFR 

103.5(a)(1)(iv). 

8 CFR 214.2(h)(6)(i)(D)(2), that has been 

the subject of one or more of the three 

actions discussed below. 

First, DHS proposes mandatory denial 

based on a final administrative 

determination by the Secretary of Labor 

under 20 CFR part 655, subpart A or B, 

or 29 CFR part 501 or 503, debarring the 

petitioner from filing or receiving a 

future labor certification, or a final 

administrative determination by the 

GDOL debarring the petitioner from 

issuance of future labor certifications 

under applicable Guam regulations and 

rules, if the petition is filed during the 

debarment period, or if the debarment 

occurs during the pendency of the 

petition. See proposed 8 CFR 

214.2(h)(10)(iii)(A)(1). The proposed 

provision is consistent with the existing 

authority under 8 CFR 214.1(k) to deny 

petitions based on debarment, but 

provides greater clarity for H–2A and 

H–2B petitioners. Specifically, while 8 

CFR 214.1(k) states that, upon 

debarment, USCIS may deny a petition 

‘‘for a period of at least 1 year but not 

more than 5 years,’’ proposed 8 CFR 

214.2(h)(10)(iii)(A)(1) would clarify that 

USCIS must deny H–2 petitions filed 

during the specific debarment period set 

forth by DOL or GDOL, assuming a final 

administrative determination as 

specified in proposed 8 CFR 

214.2(h)(10)(iii)(A). In addition, the 

proposed provision clarifies that it 

applies to successors in interest of the 

debarred petitioner, as well as in 

instances when a debarment occurs 

while a petition is pending before 

USCIS. The current language at 8 CFR 

214.1(k) would continue to govern how 

DOL debarment of an employer from the 

H–2 program would affect non-H–2 

petition adjudications for petitions filed 

by that employer under INA sec. 

101(a)(15)(H) (except for status under 

INA secs. 101(a)(15)(H)(i)(b1), (L), (O), 

and (P)(i)). 

As the second basis for mandatory 

denial, DHS proposes to include denial 

or revocation of a prior H–2A or H–2B 

petition that includes a finding of fraud 

or willful misrepresentation of a 

material fact during the pendency of the 

petition or within 3 years before the 

filing of the petition. See proposed 8 

CFR 214.2(h)(10)(iii)(A)(2). In order to 

trigger a denial under this ground, the 

USCIS decision on the prior petition 

must explicitly contain a finding of 

fraud or willful misrepresentation of a 

material fact, although fraud or willful 

misrepresentation of a material fact 

need not be the only ground(s) for 

denial or revocation. Furthermore, the 

USCIS decision must be an 

administratively final decision, meaning 

there is no pending administrative 

appeal or the time for filing a timely 

administrative appeal has elapsed.69

Because of the inherently serious and 

relevant nature of a finding that the 

petitioner committed fraud or willfully 

misrepresented information that was 

material with respect to a prior benefit 

request in the H–2 programs, it is 

appropriate to exclude from the program 

petitioners against whom USCIS has 

recently made such a finding. As to how 

recent such a finding must be in order 

to impact adjudication, DHS is 

proposing a 3-year timeframe as this 

period captures an employer’s 

reasonably recent activity, which is a 

highly relevant consideration with 

respect to a petitioner’s current 

intention and ability to comply with 

program requirements. The 3-year 

period generally would be sufficient to 

ensure that approval of an H–2 petition 

would not be detrimental to the rights 

of H–2 workers or the integrity of the H– 

2 program.70 DHS seeks public input on 

the proposed 3-year timeframe as an 

appropriate length of time to impose. 

Third, DHS proposes mandatory 

denial based on a final determination of 

a violation under INA sec. 274(a), 8 

U.S.C. 1324(a),71 during the pendency 

of the petition or within 3 years before 

filing the petition. See proposed 8 CFR 

214.2(h)(10)(iii)(A)(3). As noted above, 

this proposed provision essentially 

incorporates and replaces the portion of 

the existing provision at 8 CFR 

214.2(h)(5)(iii)(B) that bars approval of 

H–2A petitions if an employer is found 

to have violated INA sec. 274(a). It also 

expands upon 8 CFR 214.2(h)(5)(iii)(B) 

by making the bar also applicable to H– 

2B petitions, applying it to successors in 

interest, and extending the 2-year bar to 

3 years to make the length consistent 

with the length of the other proposed 

mandatory denial periods. As above, 

DHS seeks public input on this 

proposed time period. 

In determining whether one of the 

proposed mandatory grounds for denial 

listed in proposed 8 CFR 

214.2(h)(10)(iii)(A) is applicable to the 

instant petition, USCIS would not 

revisit the underlying substantive 

determination during adjudication of 

the petition. That is, USCIS is not 

proposing to re-adjudicate or make an 

independent finding on the merits of the 

underlying final administrative 

determination, criminal conviction, or 

civil judgment against the petitioner. 

Rather, following issuance of a request 

for evidence or notice of intent to deny 

the petition and providing an 

opportunity for the petitioner to 

respond, USCIS would determine 

whether such final determination, 

conviction, or judgment was made 

against the petitioner or its successor in 

interest within the specified time 

period. Upon a determination that any 

of the proposed mandatory grounds for 

denial listed in proposed 8 CFR 

214.2(h)(1)(iii)(A) were triggered, USCIS 

would provide notice to the petitioner 

indicating that the ground had been 

triggered and that the petition being 

adjudicated as well as any pending or 

subsequently filed H–2 petitions (by the 

petitioner or a successor in interest) will 

be denied on the same basis during the 

applicable time period. See proposed 8 

CFR 214.2(h)(10)(iii)(E)(1). The denial 

notice would also inform the petitioner 

of the right to appeal the denial to 

USCIS’s Administrative Appeals Office 

(AAO), including the ability to request 

an oral argument pursuant to 8 CFR 

103.3.72 Providing such notice would 

inform the petitioner to refrain from 

filing additional H–2 petitions that 

would be subject to the mandatory 

ground for denial, therefore saving the 

petitioner from paying filing fees. 

b. Discretionary Denial Based on Certain 

Violations 

In addition to the mandatory denial 

provision at proposed 8 CFR 

214.2(h)(10)(iii)(A), discussed in the 

preceding subsection, DHS also 

proposes a provision at 8 CFR 

214.2(h)(10)(iii)(B) that would allow 

USCIS to consider other past violations 

and authorize discretionary denial in 

such cases when USCIS determines that 

the underlying violation(s) calls into 

question the petitioner’s or successor’s 

intention or ability to comply with H– 

2 program requirements. This proposed 

provision states that USCIS may deny 

any H–2 petition filed by a petitioner, or 

the successor in interest of a petitioner 

as defined in proposed 8 CFR 

214.2(h)(5)(xi)(C)(2) and proposed 8 

CFR 214.2(h)(6)(i)(D)(2), that has been 

the subject of one or more of the 

enumerated actions, after evaluation of 


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73The 3-year period is consistent with the time 

period set forth in INA sec. 214(c)(14)(A)(ii) with 

respect to the H–2B classification. Since similar 

worker protection and program integrity concerns 

apply to the H–2A program, it is appropriate to use 

the same timeframe with respect to the H–2A 

classification. 

74See 8 CFR 214.2(h)(11)(iii)(A)(2). 

75As part of the TLC application process, 

petitioners are required to attest that they will 

comply with relevant laws, including 18 U.S.C. 

1592(a), with respect to prohibitions against 

confiscating workers’ passports. See 20 CFR 

655.20(z), 20 CFR 655.135(e); Form ETA–9142A, H– 

2A Application for Temporary Employment 

Certification, Appendix A, and Form ETA 9142B, 

H–2B Application for Temporary Employment 

Certification, Appendix B, available at https://

www.dol.gov/agencies/eta/foreign-labor/forms. See 

also William Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008, Public Law 

110–457; 18 U.S.C. 1592(a). 

76See 20 CFR 655.20(z), 20 CFR 655.135(e). 

77 De minimis OSHA violations ‘‘have no direct 

or immediate relationship to safety and health.’’ 

DOL, Employment Law Guide, Safety and Health 

Standards: Occupational Safety and Health, https:// 

webapps.dol.gov/elaws/elg/osha.htm. 

relevant factors listed at proposed 8 CFR 

214.2(h)(10)(iii)(C). The final 

administrative actions listed in 

proposed 8 CFR 214.2(h)(10)(iii)(B) 

would be limited to those that have 

occurred during the pendency of the 

petition or within 3 years before the 

filing the petition. DHS is proposing this 

3-year period as such a period captures 

an employer’s reasonably recent 

activity, which is a highly relevant 

consideration with respect to a 

petitioner’s current intention and ability 

to comply with program requirements. 

The 3-year period generally would be 

sufficient to ensure that approval of an 

H–2 petition would not be detrimental 

to the rights of H–2 workers or the 

integrity of the H–2 program.73 DHS 

welcomes public input on this proposed 

timeframe. 

First, DHS proposes to allow USCIS to 

consider a discretionary denial when 

the petitioner has been the subject of a 

final administrative determination by 

the Secretary of Labor or GDOL with 

respect to a prior H–2A or H–2B TLC 

that includes: (1) revocation of an 

approved TLC under 20 CFR part 655, 

subpart A or B, or applicable Guam 

regulations and rules; (2) DOL 

debarment under 20 CFR part 655, 

subpart A or B, or 29 CFR part 501 or 

503, or applicable Guam regulations and 

rules, if the debarment period has 

concluded before filing the petition; or 

(3) any other administrative sanction or 

remedy under 29 CFR part 501 or 503, 

or applicable Guam regulations and 

rules, including assessment of civil 

money penalties as described in those 

parts. See proposed 8 CFR 

214.2(h)(10)(iii)(B)(1). This provision is 

broader than proposed 8 CFR 

214.2(h)(10)(iii)(A)(1) in that it 

encompasses other administrative 

actions beyond debarment by the 

Secretary of Labor or GDOL. With 

respect to debarment, the timing of the 

debarment period is what differentiates 

proposed 8 CFR 214.2(h)(10)(iii)(A)(1) 

from proposed 8 CFR 

214.2(h)(10)(iii)(B)(1)(ii). A debarment 

period that began during the last 3 years 

but has already concluded before the 

filing of the H–2 petition would fall 

under 8 CFR 214.2(h)(10)(iii)(B)(1)(ii) 

and trigger a discretionary analysis, 

while a debarment period that is active 

when the H–2 petition is filed or while 

it remains pending would fall under the 

mandatory denial provision at proposed 

8 CFR 214.2(h)(10)(iii)(A)(1). 

As the second basis for discretionary 

denial consideration, DHS proposes to 

include a USCIS decision revoking the 

approval of a prior petition that 

includes one or more of the following 

findings: the beneficiary was not 

employed by the petitioner in the 

capacity specified in the petition; the 

statement of facts contained in the 

petition or on the application for a TLC 

was not true and correct, or was 

inaccurate; the petitioner violated terms 

and conditions of the approved petition; 

or the petitioner violated requirements 

of INA sec. 101(a)(15)(H) or 8 CFR 

214.2(h). See proposed 8 CFR 

214.2(h)(10)(iii)(B)(2). Unlike USCIS 

decisions that include a finding of fraud 

or willful misrepresentation of a 

material fact, these revocation decisions 

could, but would not always, be 

relevant to a petitioner’s intent and 

ability to comply with program 

requirements. Inclusion of the phrase 

‘‘the beneficiary was not employed by 

the petitioner in the capacity specified 

in the petition’’ essentially incorporates 

the existing provision at 8 CFR 

214.2(h)(5)(iii)(B) that bars approval of 

H–2A petitions for 2 years if an 

employer is found ‘‘to have employed 

an H–2A worker in a position other than 

that described in the relating petition’’ 

and expands it to include H–2B 

petitions. However, unlike current 8 

CFR 214.2(h)(5)(iii)(B), which imposes a 

mandatory denial, discretion is 

warranted when the beneficiary was not 

employed by the petitioner in the 

capacity specified in the petition (for 

instance, the beneficiary was performing 

different duties or working outside the 

identified area of employment) because 

the non-compliance could have 

occurred for a number of reasons, not all 

of which would call into question a 

petitioner’s intent and ability to comply 

with program requirements going 

forward. In addition, the proposed 

provision would allow consideration of 

other bases for revocation as listed 

above that could potentially relate to a 

petitioner’s intent and ability to comply 

with program requirements. For 

instance, a USCIS revocation finding 

that the statement of facts contained in 

the petition or on the application for a 

TLC was not true and correct 74 could be 

based on a petitioner’s confiscation and 

withholding of its H–2 workers’ 

passports, which is both unlawful and 

harmful to workers,75 and therefore 

would be highly relevant to a 

petitioner’s prospective intent and 

ability to comply with program 

requirements. 

Third, DHS proposes to allow USCIS 

to consider discretionary denial based 

on any final administrative or judicial 

determination (other than one described 

in 8 CFR 214.2(h)(10)(iii)(A)) that the 

petitioner violated any applicable 

Federal, State, or local employmentrelated laws or regulations, including, 

but not limited to, health and safety 

laws or regulations. See proposed 8 CFR 

214.2(h)(10)(iii)(B)(3). This catch-all 

provision is consistent with existing 

DOL regulations requiring compliance 

with all such laws,76 and it recognizes 

that numerous Federal agencies (such as 

DOL’s Occupational Safety and Health 

Administration (OSHA), the Department 

of Transportation (DOT), and Federal 

courts), State agencies (such as State 

departments of labor, State departments 

of transportation, and State courts), and 

local agencies (such as those involved in 

setting local housing standards) have 

authority in areas affecting H–2 

employers and workers. While DHS 

recognizes that proposed 8 CFR 

214.2(h)(10)(iii)(B)(3) could be broad in 

its reach, the key word ‘‘applicable’’ and 

phrase ‘‘may call into question a 

petitioner’s or successor’s intention or 

ability to comply,’’ would limit the 

scope of final determinations that 

USCIS may consider relevant. For 

example, USCIS would likely not 

consider a single de minimis OSHA 

violation 77 or a single DOT violation for 

poor vehicle maintenance that did not 

result in risk or harm to workers as 

necessarily relevant to the petitioner’s 

intention or ability to comply with H– 

2A program requirements. On the other 

hand, if a petitioner has, for instance, a 

history of serious OSHA violations for 

failure to provide workers with personal 

protective equipment or a history of 

DOT violations for poor vehicle 

maintenance and those vehicles were 

continually used to transport the 

company’s H–2 workers, resulting in the 

death or injury of (or risk of death or 


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78See Ken Bensinger, Jessica Garrison, Jeremy 

Singer-Vine, Buzz Feed News, The Pushovers: 

Employers Abuse Foreign Workers, U.S. Says, By 

All Means, Hire More (May 12, 2016) (describing an 

example of such an incident), https://

www.buzzfeednews.com/article/kenbensinger/thepushovers. 

79Note that a finding of willfulness must be 

explicitly stated in the final agency determination, 

decision, or conviction. USCIS would not 

independently make a finding of willfulness under 

proposed 8 CFR 214.2(h)(10)(iii)(C)(5). 

80See Matter of Chawathe, 25 I&N Dec. 369, 376 

(AAO 2010) (‘‘Except where a different standard is 

specified by law, a petitioner or applicant in 

administrative immigration proceedings must prove 

by a preponderance of evidence that he or she is 

eligible for the benefit sought.’’). 

81See Matter of Chawathe, 25 I&N Dec. at 376 

(AAO 2010). 

82The denial notice would also inform the 

petitioner of the ability to file a motion under 8 CFR 

103.5(a). The filing of a motion would not stay the 

denial decision. 8 CFR 103.5(a)(1)(iv). 

83See 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, https://

www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking (Mar. 31, 2022). 

injury to) H–2 workers,78 then USCIS 

would likely consider those violations 

relevant to the petitioner’s intention or 

ability to comply with H–2A or H–2B 

program requirements under proposed 8 

CFR 214.2(h)(10)(iii)(B)(3). 

As the denials under proposed 8 CFR 

214.2(h)(10)(iii)(B)(3) would be 

discretionary, DHS is proposing that 

USCIS would determine whether the 

violations may call into question the 

petitioner’s ability or intent to comply 

with H–2 program requirements by 

examining all relevant factors. Proposed 

8 CFR 214.2(h)(10)(iii)(C) identifies 

several factors that could be relevant to 

the analysis and that USCIS may 

therefore consider. The listed factors are 

not exhaustive; additional relevant 

factors that are not listed in the 

proposed provision may be considered 

by USCIS in the totality, but each one, 

standing alone, would not be outcome 

determinative. Further, not all factors 

would be relevant in all cases, and 

different factors may be weighted 

differently depending on the 

circumstances of each case. Any one of 

the factors, such as the egregiousness 

and willfulness 79 of the violation(s) 

under proposed 8 CFR 

214.2(h)(10)(iii)(C)(2) and (5), could be 

given significant weight in reviewing 

the totality of the facts presented, even 

if other listed factors were absent. For 

example, if the petitioner willfully 

committed a violation that resulted in 

the death of several H–2 workers, those 

two factors alone (i.e., willfulness and 

egregiousness of the violation leading to 

the death of the workers) could be 

sufficient to warrant a discretionary 

denial under proposed 8 CFR 

214.2(h)(10)(iii)(B), notwithstanding the 

absence of other negative factors such as 

a prior history of violations or 

achievement of financial gain. 

In applying the proposed 

discretionary analysis, USCIS officers 

would use the ‘‘preponderance of the 

evidence’’ standard of proof.80 Under 

this standard, the evidence must 

demonstrate that the petitioner’s claim 

that it is willing and able to comply 

with the requirements of the H–2 

program is ‘‘more likely than not’’ 

true 81 after taking into consideration the 

prior violations and any relevant factors, 

both negative and positive. While 

USCIS officers would evaluate whether 

the petitioner, more likely than not, will 

comply with H–2 requirements, USCIS 

officers would not revisit the merits of 

the underlying final administrative or 

judicial determination against the 

petitioner. 

When making a determination that 

any of the proposed discretionary 

grounds for denial listed in proposed 8 

CFR 214.2(h)(10)(iii)(B) were triggered 

and that the analysis warrants a 

discretionary denial, the USCIS denial 

notice would indicate that the triggering 

of the discretionary ground for denial 

may also apply in subsequent 

adjudications of pending or future H–2 

petitions, depending on the facts 

presented with respect to each such 

petition. See proposed 8 CFR 

214.2(h)(10)(iii)(E)(2). The notice would 

also inform the petitioner of the right to 

appeal the denial to the AAO, and the 

ability to request oral argument 

pursuant to 8 CFR 103.3.82

Providing such notice would enable 

the petitioner to consider the impact of 

the discretionary denial on future H–2 

petition adjudications. It is the intention 

of DHS that the petitioner or the 

petitioner’s successor in interest will 

take corrective actions to bring itself 

into, and continue to remain in, 

compliance with H–2 program 

requirements. Under this proposal, 

USCIS would take into consideration 

any such corrective action in 

subsequent adjudications of H–2 

petitions filed by the petitioner or a 

petitioner’s successor in interest. See 

proposed 8 CFR 214.2(h)(10)(iii)(C)(8). 

During the discretionary denial period, 

USCIS would consider all of the 

relevant factors in each separate 

adjudication when exercising its 

discretion under proposed 8 CFR 

214.2(h)(10)(iii)(B). 

c. Convictions and Determinations 

Against Certain Individuals 

For the purposes of the mandatory 

and discretionary denials discussed 

above, DHS proposes to state that a 

criminal conviction or final 

administrative or judicial determination 

against certain individuals will be 

treated as a conviction or final 

administrative or judicial determination 

against the petitioner or successor in 

interest. The proposed regulatory text 

clarifies that this would include 

convictions and determinations against 

a person who is acting on behalf of the 

petitioning entity, which could include, 

among others, the petitioner’s owner, 

employee, or contractor. The proposed 

regulatory text would further clarify 

that, with respect to discretionary 

denials under proposed 8 CFR 

214.2(h)(10)(iii)(B), this would also 

include convictions and determinations 

against any employee of the petitioning 

entity who a reasonable person in the 

H–2A or H–2B worker’s position would 

believe is acting on behalf of the 

petitioning entity. See proposed 8 CFR 

214.2(h)(10)(iii)(D). 

Because an employer can rightfully be 

expected to exercise due diligence over 

its employees or contractors acting on 

its behalf, it would not be appropriate 

to allow petitioners to avoid liability 

merely because an individual acting on 

the entity’s behalf, rather than the entity 

itself, was the subject of the final 

administrative or judicial action. 

Indeed, some of the most egregious 

violations, such as those resulting in 

criminal convictions, involve actions 

against individuals in addition to any 

separate actions against the business 

entity that may be listed as petitioner on 

an H–2A or H–2B petition. For instance, 

a recent high-profile investigation into 

egregious violations in the H–2A 

program resulted in criminal 

convictions of several individuals 

related, in part, to human trafficking 

and forced labor committed against H– 

2 workers.83 To the extent that 

convicted individuals acted in their 

capacity on behalf of petitioning 

employers and resulted in violations of 

H–2 program requirements, such 

misconduct is entirely relevant to the 

adjudication of future petitions by the 

petitioning employers or their 

successors. Whether the denial of future 

petitions would be mandatory or 

discretionary under the proposed 

regulation would depend on the nature 

of the specific convictions or final 

administrative or judicial actions. In 

other words, the mandatory bar would 

apply if the relevant individual was the 

subject of one or more actions listed in 

proposed 8 CFR 214.2(h)(10)(iii)(A), and 

USCIS would have the ability to deny as 


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84See 8 CFR 103.2(b). In evaluating the evidence, 

the ‘‘truth is to be determined not by the quantity 

of evidence alone but by its quality.’’ Matter of 

Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 

(quoting Matter of E–M-, 20 I&N Dec. 77, 80 

(Comm’r 1989)). 

85H–2B job contractors and employer-clients 

must meet the requirements of the definition of an 

H–2 ‘‘employer’’ under 20 CFR 655.5 and 655.19. 

86H–2A labor contractors must meet all of the 

requirements of the definition of an H–2 

‘‘employer’’ under 20 CFR 655.103 and 655.132. 

87See GAO–15–154, at 37 (2015), https://

www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for 

Reform 27 (2020), https://cdmigrante.org/ripe-forreform/. 

a matter of discretion if the relevant 

individual was the subject of one or 

more actions listed in proposed 8 CFR 

214.2(h)(10)(iii)(B). 

Furthermore, for the purposes of 

discretionary denials under proposed 8 

CFR 214.2(h)(10)(iii)(B), proposed 8 CFR 

214.2(h)(10)(iii)(D)(2) would include 

convictions and determinations against 

‘‘an employee of the petitioning entity 

who a reasonable person in the H–2A or 

H–2B worker’s position would believe is 

acting on behalf of the petitioning 

entity.’’ Because employers can 

rightfully be expected to exercise due 

diligence over its employees, it would 

not be appropriate to allow petitioners 

to avoid liability merely by claiming 

that an employee was not acting on the 

petitioner’s behalf. At the same time, to 

guard against the risk that the petitioner 

be liable for any and all unauthorized 

actions of their employees, this liability 

would apply only if a reasonable person 

in the worker’s position would believe 

that the employee was acting on behalf 

of the petitioning entity. In addition, 

because liability for this population 

would be limited to the discretionary 

denial provision, petitioners would 

have an opportunity to provide 

information regarding the circumstances 

of the employee’s actions, and USCIS 

would consider all relevant factors in 

determining whether the petitioner had 

established its intention and ability to 

comply with H–2 program 

requirements. 

3. Investigation and Verification 

Authority 

Pursuant to its authorities under INA 

secs. 103(a) and 214, 8 U.S.C. 1103(a) 

and 1184, HSA sec. 451, 6 U.S.C. 271, 

and 8 CFR part 103, among other 

provisions of law, USCIS conducts 

inspections, evaluations, verifications, 

and compliance reviews, to ensure that 

a beneficiary is eligible for the benefit 

sought and that all laws have been 

complied with before and after approval 

of such benefits. These inspections, 

verifications, and other compliance 

reviews may be conducted 

telephonically or electronically, as well 

as through physical on-site inspections 

(site visits). The existing authority to 

conduct inspections, verifications, and 

other compliance reviews is vital to the 

integrity of the immigration system as a 

whole, and to the H–2A and H–2B 

programs specifically. In this rule, DHS 

is proposing to add regulations specific 

to the H–2A and H–2B programs to 

codify its existing authority and clarify 

the scope of inspections and the 

consequences of a refusal or failure to 

fully cooperate with these inspections. 

See proposed 8 CFR 214.2(h)(5)(vi)(A) 

and 8 CFR 214.2(h)(6)(i)(F)(2). The 

authority of USCIS to conduct on-site 

inspections, verifications, or other 

compliance reviews to verify 

information does not relieve the 

petitioner of its burden of proof or 

responsibility to provide information in 

the petition (and evidence submitted in 

support of the petition) that is complete, 

true, and correct.84

The proposed regulations would make 

clear that inspections may include, but 

are not limited to, an on-site visit of the 

petitioning organization’s facilities, 

interviews with its officials, review of 

its records related to compliance with 

immigration laws and regulations, and 

interviews with any other individuals or 

review of any other records that USCIS 

may lawfully obtain and that it 

considers pertinent to verify facts 

related to the adjudication of the 

petition, such as facts relating to the 

petitioner’s and beneficiary’s eligibility 

and continued compliance with the 

requirements of the H–2 program. See 

proposed 8 CFR 214.2(h)(5)(vi)(A) and 8 

CFR 214.2(h)(6)(i)(F)(2). The proposed 

provisions would also make clear that 

an H–2A or H–2B petitioner and any 

employer must allow access to all sites 

where the labor will be performed for 

the purpose of determining compliance 

with applicable H–2A and H–2B 

requirements. The word ‘‘employer’’ 

used in this context would include H– 

2B job contractors and employer-clients 

as reported on the temporary labor 

certification 85 and H–2A contractors 86

and joint employers, including member 

employers if the petitioner is an 

association of agricultural employers. 

The petitioner and any employers must 

also agree to USCIS officials 

interviewing H–2A or H–2B workers, 

and any other similarly situated 

employees working for the H–2A or H– 

2B employer or joint employer, if 

necessary, including in the absence of 

the employer or the employer’s 

representatives. The interviews may 

take place on the employer’s property, 

or as feasible, at a neutral location 

agreed to by the employee and USCIS 

away from the employer’s property. The 

ability to inspect any and all of the 

various locations where the labor will 

be performed is critical because the 

purpose of a site inspection is to 

confirm information related to the 

petition, and any one of these locations 

may have information relevant to a 

given petition. In addition, DHS 

proposes to require access to the sites 

where H–2A workers are housed. H–2A 

petitioners are required to provide 

housing to H–2A workers at no cost to 

the workers. See INA sec. 218(c)(4) and 

20 CFR 655.1304(d). While USCIS does 

not, and would not, conduct inspections 

regarding the standard of housing 

provided, access to H–2A worker 

housing is appropriate to ensure USCIS 

has access to the workers themselves 

during the course of compliance review 

activities. In addition, the proposed 

requirement that USCIS be allowed to 

interview workers without the employer 

or its representatives present is based on 

reports indicating that H–2 workers may 

currently underreport abuse for fear of 

reprisal by employers.87 The presence of 

employer representatives during such 

interviews can reasonably be expected 

to have a chilling effect on the ability of 

interviewed workers to speak freely, and 

in turn, impede the Government’s 

ability to ensure compliance with the 

terms and conditions of the H–2 

program. 

The proposed regulation also states 

that if USCIS is unable to verify facts 

related to the H–2 petition, including 

due to the failure or refusal of the 

petitioner or employer to cooperate in 

an inspection or other compliance 

review, then the lack of verification of 

pertinent facts, including from failure or 

refusal to cooperate, may result in 

denial or revocation of any petition for 

workers performing services at the 

location or locations that are a subject 

of inspection or compliance review. See 

proposed 8 CFR 214.2(h)(5)(vi)(A) and 8 

CFR 214.2(h)(6)(i)(F)(2). A 

determination that a petitioner or 

employer failed or refused to cooperate 

would be case-specific but could 

include situations where one or more 

USCIS officers arrived at a petitioner’s 

worksite, made contact with the 

petitioner or employer and properly 

identified themselves to a petitioner’s 

representative, and the petitioner or 

employer refused to speak to the officers 

or were refused entry into the premises 

or refused permission to review human 

resources records pertaining to the 

beneficiary(ies). Failure or refusal to 

cooperate could also include situations 

where a petitioner or employer agreed to 

speak but did not provide the 


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88See Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 81 

FR 82398, 82452 (Nov. 18, 2016) (final rule); see 

also INA sec. 212(n)(2)(C)(v), 8 U.S.C. 

1182(n)(2)(c)(V). 

89See Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 80 

FR 81900, 81920 (Dec. 31, 2015) (proposed rule) 

(citing ACWIA sec. 413 (INA sec. 212(n)(2)(C), 8 

U.S.C. 1182(n)(2)(C))). 

90See, e.g., Cheney R.R. Co., Inc. v. ICC, 902 F.2d 

66, 69 (D.C. Cir. 1990) (‘‘[T]he contrast between 

Congress’s mandate in one context with its silence 

in another suggests not a prohibition but simply a 

decision not to mandate any solution in the second 

context, i.e., to leave the question to agency 

discretion.’’). 

91See GAO–15–154, at 37 (2015), https://

www.gao.gov/assets/gao-15-154.pdf. 

92See Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 80 

FR 81900, at 81920 (Dec. 31, 2015). 

93See Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 81 

FR 82398, 82454 (Nov. 18, 2016). 

information requested within the time 

period specified, or did not respond to 

a written request for information within 

the time period specified. Before 

denying or revoking the petition, USCIS 

would provide the petitioner an 

opportunity to rebut adverse 

information and present information on 

its own behalf in compliance with 8 

CFR 103.2(b)(16). 

This new provision would put 

petitioners on notice of the specific 

consequences for noncompliance, 

whether by them or the employer, if 

applicable. As stated above, relevant 

employers would include H–2A labor 

contractors and would also include joint 

employers. It has long been established 

that it is the petitioner’s burden to 

establish eligibility for the immigration 

benefit sought. If USCIS conducts a site 

visit in order to verify facts related to an 

H–2A or H–2B petition or to verify that 

the beneficiary is being employed 

consistently with the terms of the 

petition approval, and is unable to 

verify relevant facts and otherwise 

confirm compliance, then the petition 

may be properly denied or revoked. 

This would be true whether the 

unverified facts relate to a petitioner 

worksite or another worksite at which a 

beneficiary has been or will be placed 

by the petitioner. It would also be true 

whether the failure or refusal to 

cooperate is by the petitioner or 

employer. 

4. H–2 Whistleblower Protection 

As noted above, DHS is proposing to 

provide H–2A and H–2B workers with 

‘‘whistleblower protection’’ comparable 

to the protection currently offered to H– 

1B workers. See proposed 8 CFR 

214.2(h)(20). Under current 8 CFR 

214.2(h)(20), a qualifying employer 

seeking an extension of stay for an H– 

1B nonimmigrant worker, or a change of 

status for a worker from H–1B status to 

another nonimmigrant classification, is 

able to submit documentary evidence 

indicating that the beneficiary faced 

retaliatory action from their employer 

based on a report regarding a violation 

of the employer’s labor condition 

application (LCA) obligations. If DHS 

determines such documentary evidence 

to be credible, DHS may consider any 

loss or failure to maintain H–1B status 

by the beneficiary related to such 

violation as an ‘‘extraordinary 

circumstance’’ for purposes of 8 CFR 

214.1(c)(4) and 8 CFR 248.1(b). Those 

regulations authorize DHS to grant a 

discretionary extension of H–1B stay or 

a change of status to another 

nonimmigrant classification even when 

the worker has failed to maintain the 

previously accorded status or where 

such status expired before the extension 

of stay or change of status request was 

filed.88

When it proposed the H–1B 

whistleblower protection provision, 

DHS noted that it was required under 

the American Competitiveness and 

Workforce Improvement Act of 1998 

(ACWIA), Public Law 101–649, to create 

a process under which an H–1B 

nonimmigrant worker who files a 

complaint with DOL regarding such 

illegal retaliation, and is otherwise 

eligible to remain and work in the 

United States, could seek other 

employment in the United States.89

While not similarly required by statute 

in the H–2A and H–2B contexts, it is 

appropriate to afford such protections to 

H–2A and H–2B workers in light of the 

vulnerability of H–2 workers to 

exploitation and abuse as described at 

length above. Given DHS’s role in 

ensuring the integrity of the H–2 

programs and consistent with its 

statutory authorities under, e.g., INA 

secs. 103(a) and 214, 8 U.S.C. 1103(a) 

and 1184, it is within DHS’s authority 

and interest to take steps to ensure that 

program violations come to light.90 As 

discussed previously, a GAO report has 

noted that the incidence of abuses in the 

H–2A and H–2B programs may 

currently be underreported, in part due 

to workers’ fear of retaliation by their 

employer.91 The proposed 

whistleblower provision, in conjunction 

with other proposed changes in this 

rulemaking, including those related to 

grace periods and portability, may help 

mitigate the above-discussed structural 

disincentives that workers could face 

with respect to reporting abuses. 

In order to qualify under the new 

provision at proposed 8 CFR 

214.2(h)(20)(ii), DHS proposes requiring 

‘‘credible documentary evidence . . . 

indicating that the beneficiary faced 

retaliatory action from their employer 

based on a reasonable claim of a 

violation or potential violation of any 

applicable program requirements or 

based on engagement in another 

protected activity’’ to be submitted in 

support of the relevant petition on the 

beneficiary’s behalf seeking an 

extension of stay or a change of status 

to another classification. To allow 

flexibility in the types of documentation 

that may be submitted, DHS has not 

proposed specifying any particular form 

that a ‘‘claim’’ or the ‘‘credible 

documentary evidence’’ must take. In 

this respect, the proposed provision is 

similar to the approach taken in the H– 

1B whistleblower provision. In the 

NPRM that included the H–1B 

whistleblower provision, DHS noted 

that ‘‘[c]redible documentary evidence 

may include a copy of the complaint 

filed by the individual, along with 

corroborative documentation that such a 

complaint has resulted in retaliatory 

action against the individual . . . .’’ 92

In the final rule, DHS noted that it ‘‘has 

not limited the scope of credible 

evidence that may be included to 

document an employer violation. 

Rather, DHS generally requests credible 

documentary evidence indicating that 

the beneficiary faced retaliatory action 

from their employer due to a report 

regarding a violation of the employer’s 

LCA obligations.’’ 93 Thus, while a 

formal written complaint, if available, 

would be acceptable under the proposed 

H–2A and H–2B whistleblower 

provision, DHS does not propose a 

requirement that the submitted evidence 

must include a formal written 

complaint, written evidence that the 

worker engaged in protected activity, or 

another type of written report filed by 

the affected H–2 worker. DHS notes that 

a report could be made orally. 

DHS is proposing some variations 

from the language used in the existing 

H–1B whistleblower provision in order 

to increase H–2 workers’ protection 

from threats that could chill workers 

from exercising their rights. For 

instance, the proposed H–2 provision 

would specify that the claim could 

relate to a violation ‘‘or potential 

violation,’’ as long as such claim was 

reasonable, to reflect that even if a 

worker is mistaken about the existence 

of a violation, a complaint regarding a 

potential violation is protected from 

retaliation. Proposed 214.2(h)(20)(ii). 

Furthermore, a report (whether made 


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94See 20 CFR 655.135(h); 29 CFR 501.4(a); DOL 

Wage and Hour Division (WHD), Field Assistance 

Bulletin No. 2022–02, https://www.dol.gov/sites/ 

dolgov/files/WHD/fab/fab-2022-2.pdf. 

95See 81 FR 82408, 82428. Cf. Burlington N. & 

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) 

(concluding that an adverse action is one that might 

dissuade a reasonable worker from asserting his or 

her rights). 

96Currently, 8 CFR 214.2(h)(6)(vii) only applies 

to traded professional H–2B athletes. DHS proposes 

to move this existing provision into a new 

paragraph (D) within 8 CFR 214.2(h)(6)(vii) and 

would move provisions generally relating to H–2B 

periods of admission and limits on stay under 

current 8 CFR 214.2(h)(13) to proposed 8 CFR 

214.2(h)(6)(vii)(A) through (C). 

97Nonimmigrants in the E–1, E–2, E–3, H–1B1, 

L–1, O–1, and TN classifications are also afforded 

an initial 10-day grace period under 8 CFR 

214.1(l)(i). 

98See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 76891, 76903 (Dec. 18, 

2008). 

99See id. 

orally or in writing) is not required 

under proposed 8 CFR 214.2(h)(20)(ii) 

in that the retaliatory action could be 

either based on ‘‘a reasonable claim’’ or 

‘‘based on engagement in another 

protected activity.’’ In this sense, the 

proposed H–2 whistleblower provision 

would be broader than the current H–1B 

whistleblower provision. Under 

proposed 8 CFR 214.2(h)(20)(ii), a report 

would not be required if the H–2 

petitioner demonstrates that the 

retaliatory action was based on a 

worker’s engagement in a protected 

activity. Examples of protected activity 

include making a complaint to a 

manager, employer, a labor union, or a 

government agency (including a 

complaint where the worker reasonably 

believes there is a violation or potential 

violation of applicable program 

requirements or based on engagement in 

other protected activities but was 

mistaken about the existence of a 

violation or an adjudicator determines 

that the employer did not violate the 

applicable program, and an employer’s 

mistaken belief that a worker has made 

a complaint); cooperating with a 

government investigation; requesting 

payment of wages; refusing to return 

back wages to the employer; complaints 

by a third party on behalf of an 

employee; consulting with a labor 

agency; exercising rights or attempting 

to exercise rights, such as requesting 

certain types of leave; testifying at trial; 

and consulting with an employee of a 

legal assistance program or an attorney 

on matters related to their 

employment.94

DHS recognizes that employer 

retaliation is not limited to termination 

of employment and could include any 

number of adverse actions, including 

harassment, intimidation, threats, 

restraint, coercion, blacklisting, 

intimidating employees to return back 

wages found due (‘‘kickbacks’’), or 

discrimination, that could dissuade an 

employee from raising a concern about 

a possible violation or engaging in other 

protected activity.95 These examples do 

not identify all potential fact patterns 

that could constitute retaliatory action. 

To ensure flexibility, and to conform to 

the current approach for H–1B petitions 

at 8 CFR 214.2(h)(20), DHS is not 

proposing to define ‘‘retaliatory action.’’ 

Finally, DHS notes that the proposed 

retaliatory action provision under 8 CFR 

214.2(h)(20)(i)–(ii) would not preclude 

other sets of facts from potentially 

qualifying as ‘‘extraordinary 

circumstances’’ under 8 CFR 214.1(c)(4) 

and 8 CFR 248.1(b). For example, if an 

H–2 worker is involved in a labor 

dispute or terminates employment 

because of unsafe working conditions, 

that could still qualify as ‘‘extraordinary 

circumstances’’ under 8 CFR 214.1(c)(4) 

and 8 CFR 248.1(b) even if the worker 

did not face retaliatory action from the 

employer, as required under proposed 8 

CFR 214.2(h)(20)(ii). 

B. Worker Flexibilities 

1. Grace Periods 

DHS seeks to expand and harmonize 

the grace periods afforded to H–2 

workers. Expanding the length and 

types of grace periods afforded to H–2 

workers is intended to increase worker 

flexibility, mobility, and protections. 

Furthermore, harmonizing grace periods 

for H–2A and H–2B workers should 

reduce confusion and better ensure 

consistency in granting the appropriate 

grace periods. 

First, DHS seeks to provide workers in 

both H–2 classifications with an initial 

grace period of up to 10 days prior to 

the petition’s validity period. Currently, 

an H–2A nonimmigrant will be 

admitted for an additional period of ‘‘up 

to one week’’ before the beginning of the 

approved validity period, see 8 CFR 

214.2(h)(5)(viii)(B), while an H–2B 

nonimmigrant will be admitted for an 

additional period of ‘‘up to 10 days’’ 

before the validity period begins, see 8 

CFR 214.2(h)(13)(i)(A). Under proposed 

8 CFR 214.2(h)(5)(viii)(B), DHS seeks to 

extend the initial grace period for H–2A 

nonimmigrants to up to 10 days to align 

it with the initial 10-day grace period 

already afforded to H–2B 

nonimmigrants under current 8 CFR 

214.2(h)(13)(i)(A). DHS would maintain 

the initial 10-day grace period currently 

afforded to H–2Bs at 8 CFR 

214.2(h)(13)(i)(A) but proposes to codify 

it at proposed 8 CFR 

214.2(h)(6)(vii)(A).96

The initial 10-day grace period allows 

H–2B nonimmigrant workers to make 

necessary preparations for their 

employment in the United States. 

Because an initial 10-day grace period is 

a reasonable period of time to allow for 

preparation for employment in the 

United States, DHS has previously 

afforded the 10-day grace period to 

other nonimmigrant classifications.97

For this reason, DHS now proposes to 

extend this initial 10-day grace period to 

H–2A workers to benefit workers and 

employers. As with the existing initial 

grace period for H–2A and H–2B 

nonimmigrants, the proposed initial 

grace period would apply to their 

dependents in H–4 classification by 

virtue of 8 CFR 214.2(h)(9)(iv) (‘‘The 

spouse and children of an H 

nonimmigrant, if they are accompanying 

or following to join such H 

nonimmigrant in the United States, may 

be admitted, if otherwise admissible, as 

H–4 nonimmigrants for the same period 

of admission or extension as the 

principal spouse or parent.’’). 

DHS further seeks to harmonize the 

grace periods by providing both H–2A 

and H–2B nonimmigrants a grace period 

of up to 30 days following the 

expiration of the petition, subject to the 

3-year limitation on stay. See proposed 

8 CFR 214.2(h)(5)(viii)(B); proposed 8 

CFR 214.2(h)(6)(vii)(A). Having 

consistent grace periods for H–2A and 

H–2B workers should reduce confusion 

and better ensure consistency in 

granting the appropriate grace periods. 

Currently, H–2A nonimmigrants have a 

30-day grace period following the 

expiration of their petition under 8 CFR 

214.2(h)(5)(viii)(B), while H–2B 

nonimmigrants have a 10-day grace 

period following the expiration of their 

petition under 8 CFR 214.2(h)(13)(i)(A). 

Under proposed 8 CFR 

214.2(h)(6)(vii)(A), both H–2A and H– 

2B nonimmigrants would have the same 

initial grace period of up to 10 days 

before the beginning of the approved 

validity period and the same grace 

period of up to 30 days following the 

expiration of the H–2 petition. 

The post-validity 30-day grace period 

at current 8 CFR 214.2(h)(5)(viii)(B) was 

provided to H–2A workers so that they 

would have enough time to prepare for 

departure or apply for an extension of 

stay based on a subsequent offer of 

employment.98 In establishing this 30- 

day grace period for H–2A workers, 

DHS also noted that this period would 

facilitate the then newly provided 

benefit of portability to E-Verify 

employers.99 As DHS is now proposing 

to extend portability to H–2B workers, 

DHS proposes to also extend this 30-day 


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100 DHS believes its previous characterization of 

the post-validity grace periods as ‘‘absolute’’ could 

be erroneously construed as extending the 

maximum period of H–2 stay beyond three years. 

See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 8230, 8235 (Feb. 18, 2008) 

(‘‘This rule proposes to extend the H–2A admission 

period following the expiration of the H–2A 

petition from not more than ten days to an absolute 

thirty-day period. See proposed 8 CFR 

214.2(h)(5)(viii)(B).’’). The reference to ‘‘an absolute 

thirty-day’’ period should have read ‘‘a maximum 

thirty-day period, subject to an absolute maximum 

period of H–2A stay of three years.’’ This NPRM 

proposes to clarify this point. 101See 20 CFR 655.122(o). 

102Retention of EB–1, EB–2, and EB–3 Immigrant 

Workers and Program Improvements Affecting 

High-Skilled Nonimmigrant Workers, 81 FR 82398, 

82438–39 (Nov. 18, 2016). 

103 81 FR 82439. 

grace period to H–2B workers in order 

to facilitate the use of this benefit. As 

proposed, USCIS will include such 

grace period when extending workers’ 

H–2A or H–2B status or changing their 

status to H–2A or H–2B status, subject 

to the 3-year maximum limitation of 

stay. 

In this context, ‘‘subject to the 3-year 

maximum limitation of stay’’ means that 

an H–2 worker who has reached their 3- 

year limitation of stay would not be 

afforded a post-validity grace period, or 

that an H–2 worker approaching their 3- 

year limitation of stay may be afforded 

a post-validity grace period of less than 

30 days. Because grace periods count 

towards an H–2 worker’s 3-year 

limitation on stay, proposed 8 CFR 

214.2(h)(5)(viii)(B) and proposed 8 CFR 

214.2(h)(6)(vii)(A) would both state that, 

following the expiration of the H–2A or 

H–2B petition, the H–2 worker will be 

admitted for an additional period of ‘‘up 

to 30 days subject to the 3-year 

limitation.’’ This would represent a 

change from the language at current 8 

CFR 214.2(h)(5)(viii)(B) and 8 CFR 

214.2(h)(13)(i)(A) which do not contain 

the same ‘‘up to’’ or ‘‘subject to’’ 

language with respect to the 30-day or 

10-day post-validity grace period for H– 

2A workers or H–2B workers, but would 

clarify, consistent with USCIS practice, 

that the general 3-year maximum limit 

on H–2A or H–2B stay includes their 

respective grace periods. Current USCIS 

practice is to shorten the post-validity 

grace period if the H–2 worker is 

approaching their 3-year maximum 

limitation of stay so that the total period 

of stay does not exceed 3 years. 

Proposed 8 CFR 214.2(h)(5)(viii)(B) and 

proposed 8 CFR 214.2(h)(6)(vii)(A) 

would conform with and clarify current 

practice.100

Third, DHS seeks to provide a new 

60-day grace period following a 

cessation of H–2 employment, for 

example, if the H–2 worker was 

terminated, has resigned, or otherwise 

ceased employment prior to the end 

date of their authorized validity period. 

Under proposed 8 CFR 

214.2(h)(13)(i)(C), an H–2A or H–2B 

beneficiary (and their dependents) 

would not be deemed to have failed to 

maintain nonimmigrant status, and 

would not accrue any period of 

unlawful presence for purposes of 

section 212(a)(9) of the Act, 8 U.S.C. 

1182(a)(9), solely on the basis of a 

cessation of the employment on which 

the beneficiary’s classification was 

based, for 60 consecutive days or until 

the end of the authorized period of 

admission, whichever is shorter. The 

‘‘authorized period of admission’’ in 

proposed 8 CFR 214.2(h)(13)(i)(C) refers 

to the end date listed on a worker’s 

Form I–94, which will normally be a 

date 30 days after the end of the petition 

validity period to account for the 30-day 

grace period at proposed 8 CFR 

214.2(h)(5)(viii)(B) or proposed 8 CFR 

214.2(h)(6)(vii). Accordingly, an H–2 

worker who ceases employment less 

than 60 days before the end of the 

period of admission will be afforded a 

grace period through the remainder of 

the authorized period of admission. 

The 60-day grace period under 

proposed 8 CFR 214.2(h)(13)(i)(C) 

would be available only once during 

each authorized period of admission. In 

addition, an H–2 worker who already 

had a 60-day grace period for cessation 

of employment under proposed 8 CFR 

214.2(h)(13)(i)(C) would not receive 

another 30-day grace period under 

proposed 8 CFR 214.2(h)(5)(viii)(B) or 

proposed 8 CFR 214.2(h)(6)(vii) at the 

end of the 60-day grace period. 

Proposed 8 CFR 214.2(h)(13)(i)(C) 

would offer relief to H–2 workers whose 

employment ceased before the 

expiration of their petition validity, 

regardless of the reason for employment 

cessation. The proposed 60-day grace 

period may be used to seek new 

employment, make preparations for 

departure from the United States, or 

seek a change of status to a different 

nonimmigrant classification. For 

example, an H–2 worker could use this 

grace period to seek new employment 

after leaving an abusive employment 

situation, stopping work due to 

unforeseen hazardous conditions, or if 

their employer had to terminate 

employment due to contract 

impossibility.101 DHS is proposing this 

60-day grace period following a 

cessation of employment to allow H–2 

workers sufficient time to respond to 

sudden or unexpected changes related 

to their employment. Because a 

cessation of employment may come as 

an unexpected and harsh burden on an 

already financially vulnerable H–2 

worker, and the likelihood that a 30-day 

grace period would not be sufficient to 

find new employment or make other 

appropriate arrangements, DHS is 

proposing a 60-day grace period as 

opposed to the shorter 30-day grace 

period following the expiration of the 

H–2 petition under proposed 8 CFR 

214.2(h)(5)(viii)(B) or proposed 8 CFR 

214.2(h)(6)(vii). 

While the 60-day grace period at 

proposed 8 CFR 214.2(h)(13)(i)(C) 

would be similar to the one afforded to 

nonimmigrants included under 8 CFR 

214.1(l)(2), there are notable differences. 

Unlike the grace period in 8 CFR 

214.1(l)(2), the grace period at proposed 

8 CFR 214.2(h)(13)(i)(C) would be set at 

either 60 days or the end date of the 

authorized period of admission, 

whichever is shorter.’’ 102 DHS’s intent 

in proposing a grace period that would 

be set at either 60 days, or the end date 

of the authorized period of admission if 

shorter than 60 days, is to give more 

certainty to affected H–2 workers of the 

time they have in the grace period. 

Giving more certainty of the length of 

the grace period could help alleviate 

some fears held by H–2 workers who are 

facing abusive employment situations, 

or otherwise wish to change jobs, but 

are reluctant to leave such employment 

due to uncertainty surrounding whether 

they would benefit from a grace period 

and how long the grace period would 

be. 

The rulemaking promulgating current 

8 CFR 214.1(l)(2) explained that the 60- 

day grace period is discretionary, and 

that DHS may determine whether to 

grant or shorten the grace period based 

on an individualized assessment that 

considers the totality of the 

circumstances surrounding the 

cessation of employment and the 

beneficiary’s activities after such 

cessation.103 While this reasoning 

remains valid for highly skilled 

nonimmigrants in the E–1, E–2, E–3, H– 

1B, H–1B1, L–1, O–1, and TN 

classifications, DHS believes this 

reasoning is less persuasive for H–2 

nonimmigrants who, as discussed 

throughout this proposed rule, generally 

are particularly vulnerable to abusive 

labor practices. As such, it is our view 

that H–2 workers would benefit greatly 

from the increased certainty of this 

proposed 60-day grace period. 

DHS acknowledges that proposed 8 

CFR 214.2(h)(13)(i)(C) would not 

prevent an H–2 worker whose employer 

had good cause to terminate their 

employment from receiving the 60-day 

grace period upon cessation of 


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104 81 FR 82438–39. 

105As with current practice, all time spent in the 

United States pursuant to the proposed 10-day, 30- 

day, and 60-day grace periods described above 

would be considered time spent in H–2A or H–2B 

status and would count toward the 3-year limitation 

of stay. 

106The existing provision at 8 CFR 

214.2(h)(5)(xii) also includes language providing 

that an employer’s H–2A petition is immediately 

and automatically revoked if DOL revokes the 

underlying TLC, but that language is not needed as 

it is covered by the existing provision at 8 CFR 

214.2(h)(11)(ii). 

107The current provision at 8 CFR 

214.2(h)(5)(viii)(B) contains a reference to 

employment authorization under section 214(n) of 

the Act. However, as that section of the Act relates 

only to portability for H–1B nonimmigrants, DHS 

proposes to eliminate that reference from proposed 

8 CFR 214.2(h)(5)(viii)(B). 

108See, e.g., Retention of EB–1, EB–2, and EB–3 

Immigrant Workers and Program Improvements 

Affecting High-Skilled Nonimmigrant Workers, 81 

FR 82398, 82439 (Nov. 18, 2016) (‘‘Consistent with 

longstanding policy, DHS declines to authorize 

individuals to work during these grace periods.’’). 

109See, e.g., Letter from Migration that Works to 

DHS dated May 17, 2022; Letter from Centro de los 

Derechos del Migrante, Inc. to DHS dated June 1, 

2022. These letters are included in the docket for 

this proposed rulemaking. 

employment. The rulemaking 

promulgating current 8 CFR 214.1(l)(2) 

explained that the ‘‘up to’’ language was 

specifically intended to allow DHS to 

shorten or entirely refuse the 60-day 

grace period for violations of status, 

unauthorized employment during the 

grace period, fraud or national security 

concerns, or criminal convictions, 

among other reasons.104 However, DHS 

believes that situations where it would 

need to shorten or eliminate the grace 

period for such reasons would be rare, 

and that the importance of protecting 

H–2 workers substantially outweighs 

the risk that some H–2 workers who 

might not be deserving would also 

benefit from this proposed provision. 

Further, the proposed limitation that 

this grace period would apply ‘‘solely 

on the basis of a cessation of 

employment’’ (emphasis added) should 

mitigate the risk that some workers 

would try to use this grace period to 

engage in unauthorized employment or 

other unlawful behavior. 

Proposed 8 CFR 214.2(h)(13)(i)(C) 

would also specify that the H–2 worker 

‘‘will not accrue any period of unlawful 

presence under section 212(a)(9) of the 

Act (8 U.S.C. 1182(a)(9))’’ solely on the 

basis of a cessation of employment. This 

language is intended to assure H–2 

workers that a cessation of employment, 

in and of itself, would not automatically 

start the accrual of unlawful presence. 

While current 8 CFR 214.1(l)(2) does not 

explicitly mention unlawful presence, 

the phrase in current 8 CFR 214.1(l)(2) 

‘‘shall not be considered to have failed 

to maintain nonimmigrant status’’ 

already implies that the nonimmigrants 

covered by that provision also will not 

accrue unlawful presence solely on the 

basis of a cessation of the employment. 

Therefore, the inclusion of the phrase 

‘‘will not accrue any period of unlawful 

presence under section 212(a)(9) of the 

Act (8 U.S.C. 1182(a)(9))’’ in proposed 8 

CFR 214.2(h)(13)(i)(C) would not 

represent a substantive change from 

current 8 CFR 214.1(l)(2). 

Proposed 8 CFR 214.2(h)(13)(i)(C) 

would not require H–2 workers to notify 

DHS or USCIS that they are ceasing 

employment in order to take advantage 

of the new grace period. DHS notes that 

it has not proposed to eliminate the 

separate requirements that H–2A and 

H–2B employers notify DHS when a 

worker does not report for work, is 

terminated, or the work is completed 

more than 30 days early under 8 CFR 

214.2(h)(5)(vi)(B) and 8 CFR 

214.2(h)(6)(i)(F), as this information 

collection continues to have value. 

However, as is reinforced in the grace 

period provision at proposed 8 CFR 

214.2(h)(13)(i)(C), such notification by 

an employer would not be considered 

an indication that a worker is 

immediately out of status. DHS notes 

that in subsequent petitions on the 

workers’ behalf, information or evidence 

may be requested regarding the date of 

cessation to demonstrate maintenance of 

status (for instance, by showing that a 

new petition requesting extension of 

stay was filed within 60 days after the 

beneficiary ceased employment with the 

prior employer). 

Fourth, DHS proposes to provide a 

new 60-day grace period following the 

revocation of an approved H–2 petition. 

Under proposed 8 CFR 214.2(h)(11)(iv), 

an H–2 beneficiary (and their 

dependents) would not be deemed to 

have failed to maintain nonimmigrant 

status, and would not accrue any period 

of unlawful presence under section 

212(a)(9) of the Act (8 U.S.C. 1182(a)(9)), 

solely on the basis of the petition 

revocation for a 60-day period following 

the revocation of the petitioner’s H–2 

petition on their behalf, or until the end 

of the authorized period of admission, 

whichever is shorter. DHS is proposing 

this additional 60-day grace period 

following revocation of a petition 

approval to give H–2 workers another 

layer of protection and stability because 

a worker cannot always anticipate if and 

when the H–2 petition on their behalf 

may be revoked, and moreover, if and 

when the petitioning employer may 

provide them with notification of the 

petition revocation. This proposed 60- 

day grace period would provide these 

workers with additional time to make 

arrangements for departure, to seek an 

extension based on a subsequent offer of 

employment, or seek a change of status 

to a different nonimmigrant 

classification. However, depending on 

when a worker reaches their 3-year 

maximum limitation of stay, the postrevocation grace period under proposed 

8 CFR 214.2(h)(11)(iv) may be less than 

60 days or may not be available.105 As 

the post-revocation grace periods for 

both H–2A and H–2B workers are 

covered by proposed 8 CFR 

214.2(h)(11)(iv), DHS is also proposing 

to remove the current provision at 8 

CFR 214.2(h)(5)(xii).106

None of the proposed grace periods 

would independently authorize the 

beneficiary to work. See proposed 8 CFR 

214.2(h)(5)(viii)(B) (‘‘Unless authorized 

under 8 CFR 274a.12, the beneficiary 

may not work except during the validity 

period of the petition.’’); proposed 8 

CFR 214.2(h)(6)(vii) (‘‘Unless authorized 

under 8 CFR 274a.12, the beneficiary 

may not work except during the validity 

period of the petition.’’); proposed 8 

CFR 214.2(h)(11)(iv) (‘‘During such a 

period, the alien may only work as 

otherwise authorized under 8 CFR 

274a.12.’’); and proposed 8 CFR 

214.2(h)(13)(i)(C) (‘‘During such a 

period, the alien may only work as 

otherwise authorized under 8 CFR 

274a.12.’’). In this regard, DHS proposes 

to stay consistent with the current 

framework for grace periods afforded to 

H–2 workers at 8 CFR 

214.2(h)(5)(viii)(B) (‘‘Unless authorized 

under 8 CFR 274a.12 . . ., the 

beneficiary may not work except during 

the validity period of the petition.’’) 107

and 8 CFR 214.2(h)(13)(i)(A) (‘‘The 

beneficiary may not work except during 

the validity period of the petition.’’), as 

well as the grace periods afforded to 

other nonimmigrant classifications at 8 

CFR 214.1(l)(1) (‘‘Unless authorized 

under 8 CFR 274a.12, the alien may not 

work except during the validity period 

of the petition.’’) and 8 CFR 214.1(l)(2) 

(‘‘Unless authorized under 8 CFR 

274a.12, the alien may not work except 

during such a period.’’). None of these 

existing grace period provisions 

independently authorize employment. It 

has long been the policy of DHS that 

grace periods do not authorize 

employment.108

Nevertheless, stakeholders have 

recommended that DHS provide a grace 

period with employment 

authorization.109 To the extent that 

work authorization for H–2 workers 

prior to or subsequent to petition 

validity and after a petition is revoked 

is permissible, consistent with INA sec. 


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110As stated in the final rule codifying the 60-day 

grace period for cessation of employment under 8 

CFR 214.1(l)(2) that applies to other nonimmigrant 

classifications, 60 days allows ‘‘sufficient time to 

respond to sudden or unexpected changes related 

to their employment.’’ Retention of EB–1, EB–2, and 

EB–3 Immigrant Workers and Program 

Improvements Affecting High-Skilled 

Nonimmigrant Workers, 81 FR 82398, 82438 (Nov. 

18, 2016). 

111See Changes to Requirements Affecting H–2B 

Nonimmigrants and Their Employers, 73 FR 49109, 

49113 (Aug. 20, 2008). 112See current 20 CFR 655.122(h)(2). Subsequent 

to DHS’s publication of its current H–2A 

regulations in 2008, the Department of Labor 

revised its H–2A regulations regarding return 

transportation fees. See 87 FR 61660 (Oct. 12, 2022); 

75 FR 6883 (Feb. 12, 2010); see also DOL Wage and 

Hour Division, Field Assistance Bulletin, 2009–02, 

available at https://www.dol.gov/sites/dolgov/files/ 

WHD/legacy/files/FieldAssistanceBulletin2009_

2.pdf; current 8 CFR 214.2(h)(5)(xi)(A) (specifically 

limiting the payment of costs and fees by H–2A 

beneficiaries to those not prohibited by DOL 

regulations). 

113See DOL Wage and Hour Division, Field 

Assistance Bulletin No. 2012–1 (Feb. 28, 2012) (‘‘[I]f 

a worker departs employment because working 

conditions have become so intolerable that a 

reasonable person in the worker’s position would 

not stay, the worker’s departure may constitute a 

constructive discharge and not abandonment.’’), 

https://www.dol.gov/agencies/whd/field-assistancebulletins/2012-1. 

114 In addition to adding a reference to the newly 

added portability provision, DHS’s proposed 

changes to 8 CFR 214.2(h)(2)(i)(D) include replacing 

the reference to ‘‘Form I–129’’ with a more general 

reference to a petition ‘‘for a nonimmigrant 

worker.’’ Where feasible, DHS prefers to change 

specific form names to a more general reference in 

case of future changes to the form name or number. 

214(c)(1), DHS does not consider a grace 

period with employment authorization 

to be feasible and therefore did not 

propose such a provision in this NPRM. 

For example, DHS considered 

operational challenges and costs 

associated with issuing appropriate 

evidence of work authorization within 

such a short period of time. DHS 

ultimately determined that creating a 

process whereby, upon cessation of 

employment, a worker would file, with 

fee, a request for work authorization for 

a limited period of 60 days and receive 

evidence of that work authorization 

before the 60-day period had elapsed, 

likely would not be an attractive option 

for the filer nor operationally feasible 

for the agency. DHS additionally 

considered whether it should allow 

work authorization without issuing an 

actual employment authorization 

document to the worker. DHS ultimately 

determined this to be an unacceptable 

potential solution in recognition of the 

difficulties employers would face in 

satisfying the employment verification 

requirements of section 274A of the Act, 

as well as the potential for abuse or 

fraud inherent in allowing employment 

authorization without proper 

documentation. 

DHS did consider different lengths of 

time for the grace periods under 

proposed 8 CFR 214.2(h)(11)(iv) and 

proposed 8 CFR 214.2(h)(13)(i)(C), 

specifically, 30 or 90 days. However, 

DHS chose to propose 60 days in order 

to be consistent with the grace period 

already provided to other nonimmigrant 

classifications and because 60 days 

should allow sufficient time to respond 

to sudden or unexpected changes 

related to their employment.110

2. Transportation Costs for Revoked H– 

2 Petitions 

In addition to the post-revocation 

grace period discussed above, proposed 

8 CFR 214.2(h)(11)(iv) would state that, 

upon revocation of an H–2A or H–2B 

petition, the petitioning employer 

would be liable for the H–2 beneficiary’s 

reasonable costs of return transportation 

to their last place of foreign residence 

abroad, unless the beneficiary obtains 

an extension of stay based on an 

approved petition in the same 

classification filed by a different 

employer. Such a requirement already 

exists at 8 CFR 214.2(h)(6)(i)(C) for H– 

2B revocations, but not for H–2A 

revocations. As DHS recognized when 

promulgating 8 CFR 214.2(h)(6)(i)(C) in 

2008, this requirement would 

‘‘minimize the costs to H–2B workers 

who are affected by the revocation of a 

petition.’’ 111 This proposed provision is 

necessary in light of the overall intent 

of this regulation to provide protections 

for both H–2A and H–2B workers from 

bearing fees and costs that are primarily 

for the benefit of their H–2 employers, 

ensuring parallel treatment of 

prohibited fees for both H–2A and H–2B 

workers, and providing consistency 

with current DOL regulations governing 

return transportation fees with respect 

to H–2A workers.112 Finally, DHS 

proposes to codify this requirement 

within 8 CFR 214.2(h)(11)(iv), which 

deals generally with petition 

revocations, rather than having 

duplicate language in both 8 CFR 

214.2(h)(5) and (6). 

DHS is not proposing changes related 

to transportation costs outside of the 

revocation scenario. Under the existing 

regulation at 8 CFR 214.2(h)(6)(vi)(E), an 

employer is responsible for the return 

transportation costs of an H–2B worker 

if the worker is dismissed for any reason 

other than if the worker ‘‘voluntarily 

terminates his or her employment’’ prior 

to the expiration of the validity period. 

DHS notes that an H–2B worker who is 

leaving an abusive employment 

situation would not be considered to 

have ‘‘voluntarily’’ terminated the 

employment, so the employer’s 

responsibility for transportation costs 

would still apply. While there is no 

parallel provision in the DHS H–2A 

regulations, DOL H–2A regulations at 20 

CFR 655.122(h)(2) and (n) already 

render an employer responsible to pay 

for return transportation costs when a 

worker’s employment ends early, unless 

the worker ‘‘voluntarily abandons 

employment’’ or is terminated for cause 

and the employer properly notifies DOL 

and DHS of the separation, and related 

DOL guidance clarifies that departure 

due to intolerable working conditions 

would not constitute voluntary 

abandonment.113 With respect to both 

the H–2A and H–2B classifications, if 

USCIS were to determine that an 

employer failed to pay transportation 

costs that were required under DHS or 

DOL regulations, thereby passing the 

costs on to H–2 workers, this failure 

would constitute an indirect collection 

of a prohibited fee under the provisions 

at 8 CFR 214.2(h)(5)(xi)(A) or 8 CFR 

214.2(h)(6)(i)(B), respectively, and 

under the proposed regulations would 

subject the employer to the resulting 

consequences described in 8 CFR 

214.2(h)(5)(xi)(B) and (C) or 8 CFR 

214.2(h)(6)(i)(C) and (D). Alternately, 

depending on the nature of any related 

final determinations made by USCIS or 

DOL, such action could potentially 

make the employer subject to the 

consequences described in 8 CFR 

214.2(h)(10)(iii)(A) through (D), if 

applicable. 

3. Portability 

To provide additional flexibility to H– 

2 workers as well as to employers by 

allowing workers in the United States to 

begin new employment in the same 

classification more expeditiously, 

thereby avoiding gaps in employment 

and potential hardship to workers, as 

well as provide employers with better 

access to available and willing workers, 

DHS proposes to permanently provide 

portability to H–2 workers. Specifically, 

DHS proposes that an eligible H–2A or 

H–2B nonimmigrant would be 

authorized to start new employment 

upon the proper filing of a nonfrivolous 

H–2A or H–2B extension of stay petition 

filed on behalf of the worker, or as of the 

requested start date, whichever is later. 

See proposed 8 CFR 214.2(h)(2)(i)(I); 

proposed 8 CFR 274a.12(b)(21); see also 

proposed 8 CFR 214.2(h)(2)(i)(D).114

Proposed 8 CFR 214.2(h)(2)(i)(I) would 

define an ‘‘eligible H–2A or H–2B 

nonimmigrant’’ as an individual: (1) 

who has been lawfully admitted into the 

United States in, or otherwise provided, 

H–2A or H–2B nonimmigrant status; (2) 

on whose behalf a nonfrivolous H–2A or 


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115For instance, the filing of a petition 

unsupported by a temporary labor certification 

would be considered frivolous. 

116This definition would be the same definition 

of who is ‘‘eligible’’ for H–1B portability under 8 

CFR 214.2(h)(2)(i)(H). More generally, the H–2 

portability provisions at proposed 8 CFR 

214.2(h)(2)(i)(I) substantively mirror the existing H– 

1B portability provisions at 8 CFR 214.2(h)(2)(i)(H), 

except that the H–2 portability provisions would 

not refer to ‘‘concurrent’’ employment because H– 

2 employment must be full-time, thereby 

precluding concurrent employment. The H–2 

portability provisions would also contain new 

language at proposed 8 CFR 214.2(h)(2)(i)(I)(3). 

117See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 8230, 8235 (Feb. 13, 2008) 

(NPRM); Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 76891, 76905 (Dec. 18, 2008) 

(final rule). 

118 DHS remains committed to promoting the use 

of E-Verify to ensure a legal workforce; however, 

DHS no longer believes it is appropriate to restrict 

the benefit of portability to H–2A workers seeking 

employment with E-Verify employers particularly 

given the need to increase these workers’ mobility. 

119We note that in some cases, the petitioner may 

be different from the employer, such as when the 

petitioner is an association of agricultural 

employers filing the petition on behalf of its 

member-farmers as an agent, and not as a joint 

employer. 

H–2B petition 115 for new employment 

has been properly filed, including a 

petition for new employment with the 

same employer, with a request to amend 

or extend the H–2A or H–2B 

nonimmigrant’s stay in the same 

classification that the nonimmigrant 

currently holds, before the H–2A or H– 

2B nonimmigrant’s period of stay 

authorized by the Secretary of 

Homeland Security expires; and (3) who 

has not been employed without 

authorization in the United States from 

the time of last admission through the 

filing of the petition for new 

employment.116

Currently, H–2A nonimmigrants only 

have portability if they are porting to a 

new employer that has enrolled in and 

is a participant in good standing in EVerify, subject to any conditions and 

limitations noted on the initial 

authorization, except as to the employer 

and place of employment. See 8 CFR 

274a.12(b)(21). DHS initially limited H– 

2A portability to E-Verify employers to 

incentivize the use of E-Verify and to 

reduce opportunities for unauthorized 

workers to work in the agricultural 

sector.117 However, because DHS is 

seeking to increase the ability of H–2A 

workers to change employers, especially 

in circumstances where a worker is 

facing dangerous or abusive working 

conditions, the proposed portability 

provision for H–2A workers would not 

be limited to E-Verify employers, thus 

allowing greater flexibility to workers. 

See proposed 8 CFR 274a.12(b)(21).118

While H–2B nonimmigrants can 

currently port to a new H–2B employer, 

this portability flexibility is only 

temporarily in place until the end of 

January 24, 2024. In contrast, the 

proposed portability provisions for both 

H–2A and H–2B workers would be 

permanent and would apply to new 

employment in the same classification 

with the same or different employer. 

See proposed 8 CFR 

214.2(h)(2)(i)(I)(1)(ii) (‘‘including a 

petition for new employment with the 

same employer’’). Further, current H–2A 

portability is limited to a maximum of 

120 days from the receipt date of the 

new petition, see 8 CFR 274a.12(b)(21), 

while the current temporary H–2B 

portability is only valid for up to 60 

days as of the receipt date of the new 

petition or the start date on the new 

petition, whichever is later, see 8 CFR 

214.2(h)(29); 8 CFR 274a.12(b)(33). The 

proposed H–2 portability that allows 

new employment would continue as 

long as the new H–2 petition remains 

pending, and would automatically cease 

upon the adjudication or withdrawal of 

the H–2 petition. See proposed 8 CFR 

214.2(h)(2)(i)(I)(2) and proposed 8 CFR 

274a.12(b)(21). 

In addition, the proposed portability 

provision would not limit employment 

to the conditions and limitations noted 

on the initial authorization, but would 

allow workers to perform entirely 

different jobs within the same 

nonimmigrant classification, while still 

being afforded the protections of this 

proposed rule. See proposed 8 CFR 

274a.12(b)(21). Doing so would provide 

more flexibility to employers and 

workers, regardless of whether the 

beneficiary would begin a new job with 

the same employer or move to a new 

employer. Specifically, while H–2A and 

H–2B workers, among others, can 

currently continue to work for the same 

employer for a period not to exceed 240 

days based on a timely filed extension 

of stay pursuant to 8 CFR 

274a.12(b)(20), that authorization is 

limited to the conditions and limitations 

noted on the initial authorization, and 

therefore requires the worker to 

continue to be employed in the position 

described in the initially approved 

petition. In contrast, the proposed 

portability provision provides more 

flexibility for both employers and 

beneficiaries by allowing beneficiaries 

to start working in the same or different 

job within the same nonimmigrant 

classification pursuant to a newly filed 

nonimmigrant visa petition after that 

petition is properly filed but before it is 

approved. See proposed 8 CFR 

214.2(h)(2)(i)(I). 

The proposed provision also 

addresses circumstances where there 

may be successive portability petitions. 

In those cases the ability to port would 

end when any successive H–2A or H– 

2B portability petition in the succession 

is denied, unless the beneficiary’s 

previously approved period of H–2A or 

H–2B status remains valid. See 

proposed 8 CFR 214.2(h)(2)(i)(I)(4)(ii). 

The denial of a successive portability 

petition would not, however, affect the 

ability of an H–2A or H–2B beneficiary 

to continue or resume working in 

accordance with the previously 

approved H–2A or H–2B petition, if that 

petition remains valid and the 

beneficiary maintained H–2A or H–2B 

status or a period of authorized stay and 

has not been employed in the United 

States without authorization. See 

proposed 8 CFR 214.2(h)(2)(i)(I)(4)(iii). 

Note that the portability provisions at 

proposed 8 CFR 214.2(h)(2)(i)(I) would 

not allow an H–2A worker to port to an 

H–2B employer, or vice versa. 

DHS is also proposing to clarify that 

a beneficiary of an H–2 portability 

petition generally is considered to have 

been in a period of authorized stay 

during the pendency of the petition and 

generally will not be considered to have 

been employed in the United States 

without authorization. Specifically, 

during the pendency of the H–2 

portability petition, and 

notwithstanding any subsequent denial 

or withdrawal of that petition, a 

beneficiary will not be considered to 

have been in a period of unauthorized 

stay during the pendency of the petition 

and will not be considered to have been 

employed in the United States without 

authorization solely on the basis of 

employment pursuant to that petition. 

See proposed 8 CFR 214.2(h)(2)(i)(I)(3). 

In addition, by filing a new H–2A or H– 

2B petition supported by a valid 

temporary labor certification on behalf 

of the beneficiary seeking to port, the 

petitioner and any employer agrees to 

comply with the applicable H–2A or H– 

2B program requirements. Therefore, 

during the employment period when 

that beneficiary is working while the H– 

2 portability petition filed on the 

beneficiary’s behalf is pending, the new 

petitioner and any employer,119 as well 

as the beneficiary, are subject to H–2A 

or H–2B program requirements, as 

applicable under the relevant program, 

including worker protections, even if 

the relevant petition is subsequently 

withdrawn or denied. See proposed 8 

CFR 214.2(h)(2)(i)(I)(3). 

DHS believes that its proposal to 

extend portability, particularly when 

combined with the extended grace 

periods, would benefit H–2 workers and 

employers. These provisions would 

work together to provide an H–2 worker 


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120When a qualifying H–2 petition is properly 

filed on the H–2 nonimmigrant worker’s behalf 

requesting a start date during this 60-day grace 

period, DHS would consider the individual to no 

longer be in the 60-daygrace period. As stated 

above, during the time a qualifying H–2 petition 

remains pending, the porting H–2 beneficiary 

receives H–2 protections for that period. Further, 

absent his or her violating the terms of his or her 

authorized period of stay, the porting beneficiary 

remains in a period of authorized stay. 

121 In the recent joint TFRs providing 

supplemental H–2B visas, which have included a 

similar, but temporary, portability provision, DHS 

and DOL have noted that portability is ‘‘an 

additional option for employers that cannot find 

U.S. workers.’’ Exercise of Time-Limited Authority 

To Increase the Fiscal Year 2021 Numerical 

Limitation for the H–2B Temporary Nonagricultural 

Worker Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers,86 FR 

281980, 28210 (May 25, 2021); Exercise of TimeLimited Authority To Increase the Fiscal Year 2022 

Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

Employers, 87 FR 4722, 4736 (Jan. 28, 2022); 

Exercise of Time-Limited Authority To Increase the 

Numerical Limitation for Second Half of FY 2022 

for the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

30334, 30349 (May 18, 2022); Exercise of TimeLimited Authority To Increase the Numerical 

Limitation for FY 2023 for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

Employers, 87 FR 76816 (Dec. 15, 2022). 

122Similar flexibility is currently provided by 

regulation to P nonimmigrants who, like H–2 

nonimmigrants, are required to maintain a foreign 

residence that they have no intention of 

abandoning. INA sec. 101(a)(15)(P), 8 U.S.C. 

1101(a)(15)(P); 8 CFR 214.2(p)(15). See also Matter 

of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975) 

(‘‘[T]he filing of an application for adjustment of 

status is not necessarily inconsistent with the 

maintenance of lawful nonimmigrant status.’’). 

123See Temporary Alien Workers Seeking 

Classification Under the Immigration and 

Nationality Act, 55 FR 2606, 2619 (final rule) (Jan. 

26, 1990). This rule was issued by the former 

Immigration and Naturalization Service (INS). 

124See Temporary Alien Workers Seeking 

Classification Under the Immigration and 

Nationality Act, 55 FR 2606, 2619 (final rule) (Jan. 

26, 1990). 

125See Temporary Alien Workers Seeking 

Classification Under the Immigration and 

Nationality Act, 55 FR 2606, 2619 (final rule) (Jan. 

26, 1990). 

126See, e.g., Polaris, On-ramps, intersections, and 

exit routes 41 (2018), https://polarisproject.org/wpcontent/uploads/2018/08/A-Roadmap-for-Systemsand-Industries-to-Prevent-and-Disrupt-HumanTrafficking.pdf. 

facing dangerous or abusive working 

conditions, for instance, the ability to 

leave their employer and still maintain 

status for 60 days. If during those 60 

days the worker finds a new H–2 

employer, they could begin working for 

that new employer immediately upon 

the filing of a new nonfrivolous H–2 

petition on the worker’s behalf.120 The 

proposed portability provisions together 

with the proposed grace period 

provisions would therefore improve H– 

2 worker flexibilities and protections. 

In addition, employers would benefit 

from these provisions by having more 

time to recruit H–2 workers during the 

extended grace periods and being able 

to employ H–2 workers upon filing of 

the petition rather than having to wait 

for petition approval. For petitioners 

seeking workers under the cap-subject 

H–2B classification, this would also 

serve as an alternative for those who 

have not been able to find U.S. workers 

and have not been able to obtain H–2B 

workers subject to the statutory 

numerical limitations.121

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 

DHS proposes to increase flexibility 

by clarifying that an H–2 worker may 

take steps toward becoming a lawful 

permanent resident while still 

maintaining lawful nonimmigrant 

status.122 Under proposed 8 CFR 

214.2(h)(16)(ii), the fact that DOL has 

approved a permanent labor 

certification, or that an immigrant visa 

petition was filed by or on behalf of a 

beneficiary, or that the beneficiary has 

applied to adjust to lawful permanent 

resident status or for an immigrant visa 

would not, by itself, be a violation of H– 

2 status or show an intent to abandon 

a foreign residence. Such fact, standing 

alone, would not constitute a basis for 

denying an H–2A or H–2B petition or 

the beneficiary’s admission in H–2A or 

H–2B status, or a petition to change 

status or extend status. USCIS would 

consider such fact, however, together 

with all other facts presented, in 

determining whether the beneficiary is 

maintaining H–2 status and has a 

residence in a foreign country which he 

or she has no intention of abandoning. 

This change would therefore 

complement DHS’s other proposals to 

establish longer grace periods and 

provide permanent portability 

flexibility, all toward the goal of further 

improving H–2 worker mobility. 

Under existing regulations, approval 

of a permanent labor certification, or the 

filing of a preference petition for an H– 

2A or H–2B worker currently employed 

by or in a training position with the 

same petitioner, is considered sufficient 

reason, by itself, to deny the worker’s 

extension of stay. 8 CFR 214.2(h)(16)(ii). 

DHS acknowledges that, when it 

finalized the current 8 CFR 214.2(h)(16) 

in 1990,123 in response to a commenter’s 

assertion that H–2 workers are capable 

of simultaneously having the same 

lawful temporary and permanent intent 

as H–1B workers, the agency stated that 

it could not extend the concept of 

temporary/permanent intent to the H–2 

classifications because ‘‘[c]ontinuing H– 

2A and B status requires the employer’s 

need for the services to remain 

temporary.’’ 124 However, upon 

consideration, DHS now recognizes that 

this stated rationale conflates the 

beneficiary’s nonimmigrant intent with 

the nature of the employer’s need. 

Further, while at that time the agency 

stressed the importance of not allowing 

petitioners to circumvent the 

requirement to demonstrate a temporary 

need by petitioning for permanent status 

on behalf of the worker even in a 

different job,125 DHS now believes that 

such a prohibition is overly broad and 

that it is important to increase H–2 

workers’ mobility to the extent possible, 

particularly given the vulnerability of 

H–2 workers to potential intimidation 

and threats made on the basis of their 

nonimmigrant status.126 The 

requirements that an H–2A or H–2B 

petitioner must establish temporary 

and/or seasonal need, as applicable, will 

remain covered by the provisions at 8 

CFR 214.2(h)(5)(iv) and 8 CFR 

214.2(h)(6)(ii), respectively. 

5. Removing ‘‘Abscondment,’’ 

‘‘Abscond,’’ and Its Other Variations 

DHS proposes a technical change that 

would remove the words 

‘‘abscondment,’’ ‘‘abscond,’’ and its 

other variations from the H–2 

regulations. More specifically, DHS 

proposes to remove the definition of 

‘‘abscondment,’’ replace the word 

‘‘absconds’’ with the phrase ‘‘does not 

report for work for a period of 5 

consecutive workdays without the 

consent of the employer.’’ This 

replacement language is based on the 

definition contained in current 8 CFR 

214.2(h)(5)(v)(E) and (h)(6)(i)(F), and 

would replace the phrase ‘‘fails to’’ with 

‘‘does not,’’ among other related 

changes. See proposed 8 CFR 

214.2(h)(5)(vi)(B) and (E), 8 CFR 

214.2(h)(5)(ix), and 8 CFR 

214.2(h)(6)(i)(F). The words and phrases 

relating to ‘‘abscondment’’ inherently 

convey or imply wrongdoing by the H– 

2 worker when in fact there could be 

many legitimate reasons why an H–2 

worker does not report for work, 

including unsafe conditions at the work 

site. Replacing these negatively charged 

words with more neutral words and 

phrases signifies DHS’s recognition that 

each H–2 worker deserves to be treated 

fairly and their situation should be 

considered based on all of the relevant 

circumstances. 

Further, while DHS is not proposing 

to eliminate or substantively change the 


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127See E.O. 14012 of February 2, 2021, at 86 FR 

8277, Restoring Faith in Our Legal Immigration 

Systems and Strengthening Integration and 

Inclusion Efforts for New Americans, https://

www.federalregister.gov/documents/2021/02/05/ 

2021-02563/restoring-faith-in-our-legalimmigration-systems-and-strengthening-integrationand-inclusion-efforts; The White House, Los 

Angeles Declaration on Migration and Protection 

(June 10, 2022), https://www.whitehouse.gov/ 

briefing-room/statements-releases/2022/06/10/losangeles-declaration-on-migration-and-protection/. 

128See 8 CFR 214.2(h)(2)(ii) (petitions for workers 

from designated countries and undesignated 

countries ‘‘should be filed separately’’); see also 

USCIS, Form I–129 Instructions for Petition for a 

Nonimmigrant Worker (recommending that H–2A 

and H–2B petitions for workers from countries not 

listed on the respective eligible countries lists be 

filed separately), https://www.uscis.gov/sites/ 

default/files/document/forms/i-129instr.pdf. 

notification requirements in 8 CFR 

214.2(h)(5)(vi)(B) and 8 CFR 

214.2(h)(6)(i)(F), DHS reiterates that it 

does not consider the information 

provided in an employer notification, 

alone, to be conclusive evidence 

regarding the worker’s current status or 

the start date of the worker’s 60-day 

grace period under proposed 8 CFR 

214.2(h)(13)(i)(C), if applicable. If and 

when a subsequent petition requesting 

extension of stay or change of status is 

filed for the beneficiary, the new 

petitioner should provide information 

or evidence regarding the timing of the 

beneficiary’s cessation of prior 

employment to demonstrate 

maintenance of status. In the event that 

the information in an employer 

notification calls into question the 

timing of cessation (for instance, if it 

calls into question whether the grace 

period ended prior to the filing of the 

new petition), the new petitioner would 

receive an opportunity to rebut that 

information. 

C. Improving H–2 Program Efficiencies 

and Reducing Barriers to Legal 

Migration 

1. Removal of the H–2 Eligible Countries 

Lists Provisions 

DHS, with the concurrence of the 

Secretary of State, is proposing to 

remove the regulations at 8 CFR 

214.2(h)(5)(i)(F) and 214.2(h)(6)(E), 

under which, as explained in more 

detail above, USCIS generally may only 

approve petitions for H–2A and H–2B 

classification for nationals of countries 

that the Secretary of Homeland Security, 

with the concurrence of the Secretary of 

State, has designated by notice 

published in the Federal Register. This 

yearly notice is often referred to as the 

‘‘eligible countries lists.’’ 

Such designations must be published 

as a notice in the Federal Register and 

expire after one year. In designating 

countries to include on the lists, the 

Secretary, with the concurrence of the 

Secretary of State, takes into account 

factors including, but not limited to: (1) 

the country’s cooperation with respect 

to issuance of travel documents for 

citizens, subjects, nationals, and 

residents of that country who are subject 

to a final order of removal; (2) the 

number of final and unexecuted orders 

of removal against citizens, subjects, 

nationals, and residents of that country; 

(3) the number of orders of removal 

executed against citizens, subjects, 

nationals, and residents of that country; 

and (4) such other factors as may serve 

the U.S. interest. See 8 CFR 

214.2(h)(5)(i)(F)(1)(i) and 8 CFR 

214.2(h)(6)(i)(E)(1). Examples of specific 

factors serving the U.S. interest that are 

taken into account when considering 

whether to designate or terminate the 

designation of a country include, but are 

not limited to: fraud (e.g., fraud in the 

H–2 petition or visa application process 

by nationals of the country, the 

country’s level of cooperation with the 

U.S. Government in addressing H–2 

associated visa fraud, and the country’s 

level of information sharing to combat 

immigration-related fraud), 

nonimmigrant visa overstay rates for 

nationals of the country (including but 

not limited to H–2A and H–2B 

nonimmigrant visa overstay rates), and 

noncompliance with the terms and 

conditions of the H–2 visa programs by 

nationals of the country. See, e.g., 

Identification of Foreign Countries 

Whose Nationals Are Eligible To 

Participate in the H–2A and H–2B 

Nonimmigrant Worker Programs, 87 FR 

67930 (Nov. 10, 2022). 

Removing the eligible countries lists 

requirements would improve H–2 

program efficiency by reducing burdens 

on DHS, USCIS, and H–2 employers, 

consistent with DHS’s goal of 

streamlining the H–2 petition process. 

Further, removal of the eligible 

countries lists requirements would 

enhance accessibility of the H–2 

programs, consistent with DHS’s 

commitment to eliminate unnecessary 

barriers to legal migration and promote 

regular migration.127 Along with the 

removal of 8 CFR 214.2(h)(5)(i)(F) and 

214.2(h)(6)(C), DHS proposes to revise 8 

CFR 214.2(h)(2)(ii) and (iii) to eliminate 

language about specific filing 

requirements for workers from countries 

that are not on the eligible country lists. 

Removal of the eligible countries lists 

requirements would free up DHS 

resources devoted to developing and 

publishing the eligible countries lists in 

the Federal Register every year. 

Currently, several DHS components and 

agencies, as well as DOS, provide data, 

collaboration, and research towards the 

publication of the eligible countries 

lists. 

USCIS incurs burdens associated with 

adjudicating waiver requests for 

nationals of countries not on the eligible 

countries lists. These waiver 

adjudications are generally complex, as 

they require officers to determine 

whether it is in the U.S. interest for a 

worker to be a beneficiary of such a 

petition based on numerous factors, 

including: whether a worker with the 

required skills is not available from 

among foreign workers from a country 

currently on the respective lists; 

whether the beneficiary has been 

admitted to the United States previously 

in H–2 status; the potential for abuse, 

fraud, or other harm to the integrity of 

the H–2 programs through the potential 

admission of a beneficiary from a 

country not currently on the lists; and 

such other factors as may serve the U.S. 

interest. See 8 CFR 

214.2(h)(5)(i)(F)(1)(ii) and 

214.2(h)(6)(E)(2). USCIS may incur 

additional burdens by separating out 

requests for workers who are nationals 

on the respective eligible countries lists 

and workers who are not nationals on 

the respective eligible countries lists. 

For instance, while USCIS recommends 

that H–2A and H–2B petitions for 

workers from countries not listed on the 

respective eligible countries lists be 

filed separately from petitions for 

workers from countries on the 

respective eligible countries lists, this is 

not a current regulatory requirement.128

The eligible countries lists also create 

burdens for petitioners. An unexpected 

change in the lists from one year to the 

next could impact a petitioner’s 

operations or ability to plan for its 

workforce. Further, petitioners incur 

extra burdens to prepare a petition 

requesting a worker from a country not 

on the respective eligible countries list, 

including naming each beneficiary, 

providing initial evidence to support the 

waiver request, and providing any 

additional evidence requested by 

USCIS. DHS recognizes that the 

additional requirements imposed on 

petitioners seeking workers from nonparticipating countries may be 

burdensome to employers and delay 

time-sensitive H–2 petitions, 

particularly in the H–2A agricultural 

program context, which is highly timesensitive. For instance, the time-delay 

associated with issuance of a request for 

additional evidence when the 

petitioner’s initial evidence did not 

establish the requisite U.S. interest to 

have its H–2A petition approved, when 

seeking nationals from countries not on 


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129See Changes to Requirements Affecting H–2B 

Nonimmigrants and Their Employers, 73 FR 78104, 

78110 (Dec. 19, 2008). 

130See Changes to Requirements Affecting H–2A 

Nonimmigrants,73 FR 8230, 8234 (Feb. 13, 2008); 

Changes to Requirements Affecting H–2B 

Nonimmigrants and Their Employers, 73 FR 49109, 

49111 (Aug. 20, 2008). 

131See, e.g., Identification of Foreign Countries 

Whose Nationals Are Eligible To Participate in the 

H–2A and H–2B Nonimmigrant Worker Programs, 

87 FR 67930 (Nov. 10, 2022). 

132For example, DHS removed Moldova from the 

list of countries eligible to participate in the H–2A 

program in 2021 based, in part, on DOS evidence 

of agents in Moldova charging prohibited 

recruitment fees. See Identification of Foreign 

Countries Whose Nationals Are Eligible To 

Participate in the H–2A and H–2B Nonimmigrant 

Worker Programs, 86 FR 62559, 62561 (Nov. 10, 

2021). While the proposed removal of the eligible 

countries lists would mean that DHS could no 

longer bar participation by nationals of a country 

in which prohibited fees have been charged, the 

proposed regulation includes provisions that 

otherwise enhance DHS’ ability to enforce the 

prohibition on prohibited fees. 

133For purposes of interrupted stays, the terms ‘‘a 

period of absence’’ or ‘‘an absence’’ refer to a single, 

consecutive period of time spent outside of the 

United States. 

134For purposes of interrupted stays, a day is a 

full 24-hour period (from midnight to midnight) 

outside the United States. USCIS calculates a travel 

day to or from the United States as a full day in 

the United States—even if the H–2 worker departs 

at 12:01 a.m. See USCIS, Calculating Interrupted 

Stays for the H–2 Classifications, https://

www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-2a-agricultural-workers/ 

calculating-interrupted-stays-for-the-h-2- 

classifications. 

135For purposes of interrupted stays, a month can 

be anywhere from 28 to 31 days, depending on 

which month is used to calculate the interruption. 

See USCIS, Calculating Interrupted Stays for the H– 

2 Classifications, https://www.uscis.gov/working-inthe-united-states/temporary-workers/h-2aagricultural-workers/calculating-interrupted-staysfor-the-h-2-classifications. 

the list, could profoundly impact the 

success of a harvest season. Eliminating 

the eligible countries lists in the entirety 

would therefore streamline 

adjudications and benefit petitioners, 

their prospective workers, and ease 

burdens on DHS and USCIS. 

DHS acknowledges that the eligible 

countries lists have been used as a tool 

to ‘‘encourage countries to work 

collaboratively with the United States to 

ensure the timely return of their 

nationals who have been subject to a 

final order of removal.’’ 129 In proposing 

these regulations in 2008, DHS noted 

that it had faced ‘‘an ongoing problem 

of countries refusing to accept or 

unreasonably delaying the acceptance of 

their nationals who have been 

removed,’’ and further noted that 

‘‘Congress gave the Secretary of State 

the authority to discontinue the 

issuance of visas to citizens, subjects, 

nationals, and residents of a country 

upon notification by the Secretary of 

Homeland Security that the government 

of that country refuses to accept their 

return’’ under INA sec. 243(d), 8 U.S.C. 

1253(d).130 However, neither the 

problem of countries refusing or 

delaying acceptance of removed 

nationals, nor the authority to 

discontinue issuance of visas under INA 

sec. 243(d), 8 U.S.C. 1253(d), is specific 

or unique to the H–2A and H–2B 

programs. Overall, DHS does not believe 

that using participation in these 

programs as a tool to address the 

problem or that the limited benefits of 

the eligible countries lists, outweigh the 

burdens associated with administering 

the eligible countries lists and the 

benefits of eliminating the lists. 

Similarly, to the extent that the 

eligible countries lists have been used to 

address concerns of fraud and abuse, 

DHS believes that such concerns are 

instead better addressed at the 

petitioner level, rather than the country 

level. As noted above, DHS has 

referenced fraud concerns as among the 

examples of specific factors serving the 

U.S. interest that are taken into account 

when considering whether to designate 

or terminate the designation of a 

country.131 Rather than seeking to 

address such concerns using the eligible 

countries lists, which affect all 

petitioners seeking to hire workers from 

a given country, DHS is proposing to 

enhance program integrity through 

various provisions in this proposed rule 

that focus specifically on individual 

petitioners that have violated program 

requirements.132

DHS considered an alternative to 

removing the provisions in title 8 of the 

CFR designating certain countries as 

eligible participants for the H–2 

program. Under this alternative, instead 

of automatic expiration after 1 year, the 

H–2 eligible countries designations 

would remain in effect until DHS, with 

the concurrence of DOS, publishes new 

designations of countries. This 

alternative would also require that the 

Secretary of Homeland Security, in 

consultation with the Secretary of State, 

review the lists no less than every 3 

years, instead of the current 1 year, 

following which review DHS could, if 

necessary and with the concurrence of 

DOS, publish new designations. Absent 

the mandate to publish a new notice 

annually, under this alternative DHS 

and DOS would have greater flexibility 

to consider important factors using more 

timely and relevant data than the 

current annual designation periods 

allow. 

Ultimately, however, DHS has 

decided to forego this alternative and 

instead proposes to remove in their 

entirety the provisions requiring 

designation of countries eligible to 

participate in the H–2 programs. If DHS 

were to adopt the alternative to 

maintain the lists but simply amend the 

timing of designating eligible countries, 

the fundamental flaws of the provisions 

would largely remain, namely, the 

aforementioned significant burdens it 

places on petitioners, USCIS, and DHS. 

Furthermore, this alternative could lock 

in place the lists for a longer period and 

potentially tie the agency’s hands when 

seeking to eliminate countries from the 

lists or delay the inclusion of countries 

for which favorable factors would 

warrant designation on the lists. 

2. Eliminating the H–2 ‘‘Interrupted 

Stay’’ Calculation and Reducing the 

Period of Absence To Restart the 3-Year 

Maximum Period of Stay Clock 

DHS is proposing to eliminate the 

regulations relating to absences from the 

United States that will ‘‘interrupt’’ the 

accrual of time toward an individual’s 

total period of stay in H–2 status. See 

proposed 8 CFR 214.2(h)(5)(viii)(C) and 

(D); 8 CFR 214.2(h)(6)(vii)(A) through 

(C); 8 CFR 214.2(h)(13)(i)(B); 8 CFR 

214.2(h)(13)(iv); and 8 CFR 

214.2(h)(13)(v). An individual’s total 

period of stay in H–2A or H–2B 

nonimmigrant status may not exceed 3 

years. Under current regulations, an 

individual who has spent 3 years in H– 

2A or H–2B status may not seek 

extension, change status, or be 

readmitted to the United States in H–2 

status unless the individual has been 

outside of the United States for an 

uninterrupted period of 3 months. See 

8 CFR 214.2(h)(5)(viii)(C) and 

214.2(h)(13)(iv). However, certain 

periods of time spent outside the United 

States are deemed to interrupt the 

period of stay and temporarily ‘‘stop the 

clock’’ toward the accrual of the 3-year 

limit. See 8 CFR 214.2(h)(5)(viii)(C) 

(relating to H–2A workers) and 8 CFR 

214.2(h)(13)(v) (relating to H–2B 

workers). Specifically, under current 

regulations, a period of absence 133 from 

the United States will interrupt the stay 

of H–2 workers (the time periods are the 

same for both H–2A and H–2B workers) 

in the following circumstances: 

• If the accumulated stay is 18 

months or less, an absence is 

interruptive if it lasts for at least 45 

days.134

• If the accumulated stay is greater 

than 18 months, an absence is 

interruptive if it lasts for at least 2 

months.135

If H–2 time is interrupted, time stops 

accruing toward the H–2 worker’s 3-year 


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136See USCIS, Calculating Interrupted Stays for 

the H–2 Classifications, https://www.uscis.gov/ 

working-in-the-united-states/temporary-workers/h2a-agricultural-workers/calculating-interruptedstays-for-the-h-2-classifications. 

137See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 76891 (Dec. 18, 2008); 

Changes to Requirements Affecting H–2B 

Nonimmigrants and Their Employers, 73 FR 78104 

(Dec. 19, 2008). 

138See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 8230, 8235 (Feb. 13, 2008). 

139See 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 

214.2(h)(13)(iv); see also USCIS, Calculating 

Interrupted Stays for the H–2 Classifications (May 

6, 2020), https://www.uscis.gov/working-in-theunited-states/temporary-workers/h-2a-agriculturalworkers/calculating-interrupted-stays-for-the-h-2- 

classifications. 

140See Changes to Requirements Affecting H–2A 

Nonimmigrants, 73 FR 8230, 8235 (Feb. 13, 2008) 

(proposing the reduction to 3 months); Changes to 

Requirements Affecting H–2A Nonimmigrants, 73 

FR 76891, 76904 (Dec. 18, 2008) (adopting the 

proposed reduction in waiting time without change 

and agreeing with comments stating that 3 months 

would ‘‘enhance the workability of the H–2A 

program for employers while not offending the 

fundamental temporary nature of employment 

under the H–2A program’’); Changes to 

Requirements Affecting H–2B Nonimmigrants and 

Their Employers, 73 FR 49109, 49111 (Aug. 20, 

2008) (proposing to reduce the required absence 

period to 3 months to ‘‘reduce the amount of time 

employers would be required to be without the 

services of needed workers while not offending the 

fundamental temporary nature of employment 

under the H–2B program’’); Changes to 

Requirements Affecting H–2B Nonimmigrants and 

Their Employers, 73 FR 78104 (Dec. 19, 2008) 

Continued 

limit. Once the individual returns to the 

United States in H–2 status, time toward 

the 3-year limit begins to accrue again 

from the point where it stopped. 

However, if at any time the H–2 worker 

is outside the United States for at least 

3 months, their 3-year limit restarts from 

the beginning upon the worker’s 

readmission to the United States in H– 

2 status.136

The current regulations regarding 

interrupted periods of stay were 

published in 2008.137 The regulations 

made the time periods for interrupted 

periods of stay consistent for H–2A and 

H–2B nonimmigrants. In addition to 

making the time periods consistent, 

DHS explained in proposing the 

regulations relating to H–2A workers 

that the purpose was to ‘‘reduce the 

amount of time employers are required 

to be without the services of needed 

workers and enable the employers to 

have a set timeframe from which they 

can better monitor compliance with the 

terms and conditions of H–2A 

status.’’ 138

However, the current regulations on 

interrupted periods of stay have caused 

confusion for employers and are 

challenging for USCIS to implement. 

The confusion often relates to the 

different timeframes for an interrupted 

stay—45 days or 2 months—that is 

determined by the duration of the 

accumulated stay—18 months or less, or 

more than 18 months. Currently, in 

order to accurately demonstrate when 

an individual’s limit on H–2 status will 

be reached, employers and workers 

need to monitor and document the 

accumulated time in H–2 status, track 

when the amount of time required for an 

interruptive stay changes from 45 days 

to 2 months, and calculate the total time 

in H–2 status across multiple time 

periods following interruptive absences. 

Adjudicators must also make these same 

determinations in adjudicating H–2 

petitions with named workers to assess 

whether a beneficiary is eligible for the 

requested period of stay. The varying 

timeframes and starting and stopping of 

the accumulated stay in H–2 status can 

be confusing and frequently results in 

RFEs in adjudicating H–2 petitions, 

which leads to delays for employers and 

workers and inefficiencies for USCIS. In 

an effort to streamline the 

administration of the H–2 programs, 

DHS seeks to eliminate the current 

interrupted stay provisions that 

temporarily ‘‘stop the clock’’ toward the 

accrual of the 3-year limit. Eliminating 

these interrupted stay provisions would 

reduce potential confusion for 

employers and workers and simplify 

USCIS adjudications, resulting in fewer 

RFEs and greater efficiency in 

adjudicating H–2 petitions. 

Recognizing that the interrupted stay 

provisions provide some benefit to H–2 

workers and employers in the event of 

a worker’s departure from the country, 

DHS proposes to shorten the period of 

absence that will reset the 3-year limit 

of stay. Currently, once an H–2 worker 

is outside the United States for an 

uninterrupted period of 3 months 

(‘‘period of absence’’), their 3-year 

limitation on stay will restart from the 

beginning upon that worker’s 

readmission to the United States in H– 

2 status.139 DHS proposes to shorten the 

current 3-month period of absence to 60 

days. 

Under proposed 8 CFR 

214.2(h)(5)(vi)(C) and (D) and 8 CFR 

214.2(h)(6)(vii)(B) and (C), an 

uninterrupted absence for the 

designated period of at least 60 days 

would in all cases ‘‘reset’’ the H–2 

clock, allowing for an additional 3 years 

in the United States in H–2 status upon 

the worker’s readmission, regardless of 

whether an H–2 worker has already 

reached the 3-year maximum. This 

change would make it easier to 

determine how much time a given H–2 

worker had remaining in H–2 status. For 

example, if an employer knew that a 

given worker had been outside the 

United States for at least 60 days, the 

employer would also know that the 

worker’s H–2 clock had ‘‘reset’’ and thus 

the worker would again be eligible to 

spend up to 3 years in the United States 

in H–2 status. There would be no need 

for the employer or worker to look back 

at periods of stay prior to that 60-day 

absence to determine the amount of H– 

2 time remaining. Resetting the clock at 

60 days instead of 3 months is also 

intended to benefit H–2 workers seeking 

readmission in H–2 status by allowing 

them the option to remain outside of the 

United States for a shorter period of 

time between periods of H–2 

employment. 

Further, reducing the period of 

absence from the United States from 3 

months to 60 days would provide 

workers and their employers with 

greater flexibility while still ensuring 

that such workers’ stay is temporary in 

nature. The intent of having a required 

period of absence is to ensure that the 

H–2 worker qualifies as a nonimmigrant 

and that their stay remains temporary in 

nature. H–2 eligibility requires that 

employment be seasonal or temporary. 

See INA secs. 101(a)(15)(H)(ii)(a)–(b); 8 

CFR 214.2(h)(5)(iv)(A); 8 CFR 

214.2(h)(6)(i)(A). It also requires that the 

beneficiary qualify as a nonimmigrant. 

See INA secs. 101(a)(15)(H)(ii)(a)–(b). In 

a 1987 interim final rule, the former INS 

maintained the existing 3-year limit on 

an H–2 worker’s stay, and also imposed 

a new, but still ‘‘significant absence’’ 

standard of 6 months, in order to ensure 

a meaningful interruption in the H–2A 

worker’s employment in the United 

States. Nonimmigrant Classes, 52 FR 

20554 (June 1, 1987). The rule 

explained: ‘‘If a significant absence is 

not required, an alien would be able to 

effectively bypass the limitation and 

indefinitely work in the United States at 

various temporary jobs by vacationing 

abroad every three years.’’ 52 FR 20555. 

The INA does not specify what length 

of absence would be sufficient to ensure 

that the H–2A or H–2B worker’s stay in 

the United States is considered 

temporary. The former INS, in its 1987 

interim rule, chose to require a 6-month 

period of absence. In doing so, however, 

the agency did not state that 6 months 

must be the absolute floor to ensure 

compliance with the statute. 

In 2008, this 6-month period of 

absence was reduced to 3 months ‘‘in 

order to reduce the amount of time 

employers would be required to be 

without the services of needed workers, 

while not offending the fundamental 

temporary nature of employment under 

the H–2A program.’’ 140 Beyond that 


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(adopting the proposed reduction in waiting time 

without change). 141 DHS is also proposing uniform evidentiary 

requirements for demonstrating an H–2B worker’s 

absence(s) from the United States. Currently, the 

regulations require ‘‘clear and convincing proof’’ to 

establish that an H–2B worker resides abroad and 

commutes or is only seasonally or intermittently 

employed in the United States for 6 months or less 

per year, while the regulations only require 

‘‘information about the alien’s employment, place 

of residence, and the dates and purposes of any 

trips to the United States’’ to show that an H–2B 

worker has been absent long enough to reset or 

interrupt the period of stay. See 8 CFR 

214.2(h)(13)(v) and 214.2(h)(13)(i)(B), respectively. 

142See 8 CFR 214.2(h)(13)(iv) (‘‘An H–2B alien 

who has spent 3 years in the United States under 

section 101(a)(15)(H) and/or (L) of the Act may not 

seek extension, change status, or be readmitted to 

the United States under sections 101(a)(15)(H) and/ 

or (L) of the Act unless the alien has resided and 

been physically present outside the United States 

for the immediately preceding 3 months.’’); 8 CFR 

214.2(h)(15)(ii)(C) (‘‘The alien’s total period of stay 

as an H–2A or H–2B worker may not exceed three 

years’’) 8 CFR 214.2(h)(13)(i)(B) (‘‘When an alien in 

an H classification has spent the maximum 

allowable period of stay in the United States, a new 

petition under sections 101(a)(15)(H) or (L) of the 

Act may not be approved unless that alien has 

resided and been physically present outside the 

United States . . . for the time limit imposed on the 

particular H classification. . . . A certain period of 

absence from the United States of H–2A and H–2B 

aliens can interrupt the accrual of time spent in 

such status against the 3-year limit set forth in 8 

CFR 214.2(h)(13).’’); see also USCIS, H–2A 

Temporary Agricultural Workers, Period of Stay, 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-2a-temporary-agriculturalworkers (‘‘A person who has held H–2A 

nonimmigrant status for a total of 3 years must 

depart and remain outside the United States for an 

uninterrupted period of 3 months before seeking 

readmission as an H–2A nonimmigrant. 

Additionally, previous time spent in other H or L 

classifications counts toward total H–2A time.’’). 

143See, e.g., DHS, Office of the Citizenship and 

Immigration Services Ombudsman, 

Recommendation to Remove a Barrier Pursuant to 

Executive Order 14012: Improving U.S. Citizenship 

and Immigration Services’ Form I–129 Notification 

Procedures Recommendation Number 62 (Mar. 31, 

2022), https://www.dhs.gov/sites/default/files/2022- 

03/CIS%20OMBUDSMAN_I-129_

general explanation, however, DHS, in 

reducing the required period of absence 

from 6 months to 3 months, did not 

specifically explain how it arrived at 3 

months as the appropriate period of 

absence as opposed to another period of 

time, nor did it state that 3 months is 

the absolute floor for ensuring that an 

H–2 worker’s stay is temporary in 

nature. 

It is DHS’s position that reducing the 

current 3-month period of absence to 60 

days would accomplish the same goal of 

reducing the amount of time employers 

would be required to be without the 

services of needed workers, while still 

ensuring adherence to the fundamental 

requirement under the H–2 programs 

that an H–2 worker’s period of 

admission to this country be temporary 

by continuing to impose a significant 

absence. 

The proposed regulation also clarifies 

that, to avail itself of the benefits of this 

provision, the petitioner must provide 

evidence that the beneficiary had an 

uninterrupted 60-day period of absence. 

The proposed regulation would provide 

examples of the types of evidence that 

may be provided to establish a period of 

absence from the United States. In 

addition, DHS is proposing to move the 

provisions relating to periods of absence 

for H–2B workers from its current 

location at 8 CFR 214.2(h)(13)(iv)–(v) to 

proposed 8 CFR 214.2(h)(6)(vii)(C) in 

order to consolidate provisions 

regarding period of admission into one 

section specific to H–2B workers and to 

reflect the change from 3 months to 60 

days.141 DHS proposes to keep the 

proposed H–2A period of absence 

provision under 8 CFR 214.2(h)(5)(viii) 

but would move it to a new dedicated 

subordinate paragraph (D) and revise 

the language to reflect the change from 

3 months to 60 days. The proposed 

changes to the regulations regarding 

calculation of stay would benefit the 

agency, employers, and workers because 

they would provide greater clarity for 

employers and workers and greater 

efficiency for DHS. DHS seeks 

comments on all aspects of this 

provision, and particularly the 60-day 

duration of absence that would reset the 

clock for purposes of the 3-year 

maximum period of stay. 

As an alternative to the complicated 

calculations needed to determine an 

interrupted stay under the current H–2 

framework, DHS considered adopting an 

interrupted stay provision similar to the 

current ‘‘recapture’’ provision for H–1B 

beneficiaries. For H–1Bs, current DHS 

regulations at 8 CFR 214.2(h)(13)(iii)(C) 

generally state that time spent outside 

the United States exceeding 24 hours by 

a noncitizen will not be considered for 

purposes of calculating the H–1B 

beneficiary’s total period of authorized 

admission. Furthermore, the time spent 

physically outside of the United States 

may be ‘‘recaptured’’ in a subsequent H– 

1B petition on behalf of the noncitizen, 

though it is the petitioner’s burden to 

request and demonstrate the specific 

amount of time for recapture on behalf 

of the beneficiary. See 8 CFR 

214.2(h)(13)(iii)(C)(1). 

In the end, DHS chose to propose the 

changes explained above rather than 

match the H–1B provision because it 

believes the H–1B provision to 

‘‘recapture time’’ would be only a 

minimally less confusing calculation for 

petitioners and H–2 workers, as well as 

for USCIS adjudicators. It is likely also 

that because of the shorter duration of 

H–2 petition validity periods relative to 

those in the H–1B program, and perhaps 

for other reasons specific to the different 

classifications (e.g., different types of 

occupations), fewer H–2 beneficiaries 

travel outside of the United States or H– 

2 beneficiaries travel abroad for fewer 

days during their period of admission, 

so the amount of time available for these 

workers to ‘‘recapture’’ would be 

minimal compared to H–1B 

beneficiaries. DHS believes a single, 

consistent standard under which an 

uninterrupted absence of at least 60 

days would reset the 3-year limitation 

represents the best way to reduce 

confusion, resulting in fewer RFEs and 

greater efficiency in adjudicating H–2 

petitions. 

Finally, DHS seeks to make clarifying 

edits at proposed 8 CFR 

214.2(h)(5)(viii)(C)–(D) and 8 CFR 

214.2(h)(6)(vii)(B)–(C). These edits 

would clarify that any time spent in H– 

2A or H–2B status would count toward 

the 3-year limitation of stay, consistent 

with current practice and other H–2 

regulations governing the 3-year 

limitation on stay.142

D. Severability 

As stated at proposed 214.2(h)(30), 

DHS intends for the provisions of this 

proposed rule, if finalized, to be 

severable from each other such that if a 

court were to hold that any provision is 

invalid or unenforceable as to a 

particular person or circumstance, the 

rule would remain in effect as to any 

other person or circumstance. While the 

various provisions of this proposed rule, 

taken together, would provide 

maximum benefit with respect to 

strengthening program integrity, 

increasing worker flexibility, and 

improving program efficiency, none of 

the provisions are interdependent and 

unable to operate separately, nor is any 

single provision essential to the rule’s 

overall workability. DHS welcomes 

public input on the proposed 

severability clause at 8 CFR 

214.2(h)(30). 

E. Request for Preliminary Public Input 

Related to Future Actions/Proposals 

DHS is seeking preliminary public 

input on ways to provide H–2 and other 

Form I–129 beneficiaries with notice of 

USCIS actions taken on petitions filed 

on their behalf, including receipt 

notices for a petition to extend, amend, 

or change status filed on their behalf. 

USCIS does not currently provide 

notices directly to Form I–129 

beneficiaries. DHS is aware that the lack 

of petition information may leave Form 

I–129 beneficiaries unable to verify their 

own immigration status and susceptible 

to employer abuse.143 DHS is also aware 


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BENEFICIARY_RECOMMENDATION_fnl_03-2022_

508.pdf (‘‘lack of direct notification may leave them 

without status documentation, rendering them 

noncompliant with the law, susceptible to abuse by 

employers, and unable to access benefits requiring 

proof of status’’). This report formally 

recommended that USCIS directly notify 

beneficiaries of Form I–129 actions taken in the 

petition on their behalf. DHS also received several 

stakeholder letters advocating for H–2 beneficiaries 

to receive case status information. For example, see 

the Letter from Migration that Works to DHS dated 

May 17, 2022; Letter from Centro de los Derechos 

del Migrante, Inc. to DHS dated June 1, 2022; Letter 

from AFL–CIO to DHS; Farmworkers Justice 

Comment to USCIS dated May 19, 2021. All of these 

letters are included in the docket for this proposed 

rulemaking. In addition, Members of Congress 

recently indicated in explanatory remarks the need 

to provide status documentation directly to certain 

beneficiaries so that they can better understand 

their immigration status. See Joint Explanatory 

Statement to Department of Homeland Security 

Appropriations Act, 2022, 168 Cong. Rec. H2395, 

H2418 (daily ed. March 9, 2022) (‘‘USCIS shall also 

establish a process whereby workers may confirm 

that they are the beneficiaries of H–2A petitions and 

can receive information about their own 

immigration status, including their authorized 

period of stay and the status of any requested visa 

extensions.’’), available at https://

www.congress.gov/congressional-record/volume168/issue-42/house-section/article/H1709-1. 

144The Form I–797 approval notice instructs 

petitioners that the lower portion of the notice, 

including Form I–94, ‘‘should be given to the 

beneficiary(ies).’’ 

145See USCIS Memorandum, Response to 

Recommendations on Improving Form I–129 

Notification Procedures (Aug. 11, 2022), https://

www.dhs.gov/sites/default/files/2022-08/

SIGNED%20USCIS%20Response%20to%20Formal

%20Recommendation%20-%20Form%20I129.08122022_v2.pdf. 

that having case status information 

would promote the benefits intended by 

the proposed portability provisions in 

this rule, and more generally, improve 

worker mobility and protections as 

intended in this rule. 

DHS is committed to addressing the 

issue of beneficiary notification but is 

not at this time proposing a specific 

beneficiary notification process or 

regulation. The agency continues to 

research and consider the feasibility, 

benefits, and costs of various options 

separate and apart from this proposed 

rule. At this time, DHS would like to 

solicit preliminary public comments on 

requiring H–2 petitioners to provide a 

copy of the notice of USCIS actions to 

beneficiaries in the United States 

seeking extension or change of status. 

This option is being considered for 

potential future action separate from 

this rulemaking. In addition, DHS is 

interested in any other suggestions from 

the public regarding ways to ensure 

adequate notification to beneficiaries of 

actions taken with respect to petitions 

filed on their behalf. 

Limiting this notification requirement 

to beneficiaries in the United States 

seeking extension or change of status is 

intended to recognize the challenges 

associated with providing notices to 

unnamed H–2 workers. In addition, 

DHS believes such notification may be 

especially beneficial in the context of 

extensions or changes of status. While 

petition beneficiaries who are outside of 

the United States will receive basic 

petition information on Form I–94, 

Arrival-Departure Record, and on their 

nonimmigrant visa, beneficiaries who 

are already in the United States must 

rely entirely on petitioners and 

employers to provide such 

information.144 DHS recognizes this 

option would leave open the possibility 

that unscrupulous petitioners would not 

comply with this requirement, 

something DHS intends to forestall, but 

believes it would still provide benefits 

and worker protections while USCIS 

continues to explore other options, 

including the feasibility of technological 

solutions that would allow USCIS to 

directly notify beneficiaries or allow 

beneficiaries to directly access case 

status.145 DHS is particularly interested 

in comments that cite evidence of the 

expected costs and burdens on 

petitioners as a result of such a 

requirement, as well as comments and 

evidence about the extent that such a 

provision would benefit H–2 workers, 

which DHS will take into consideration 

when crafting potential future solutions 

or regulatory proposals. 

V. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and Executive 

Order 14094 (Modernizing Regulatory 

Review) 

Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review) and E.O. 14094 

(Modernizing Regulatory Review) direct 

agencies to assess the costs and benefits 

of available regulatory alternatives. If a 

regulation is necessary, these Executive 

Orders direct that, to the extent 

permitted by law, agencies ensure that 

the benefits of a regulation justify its 

costs and select the regulatory approach 

that maximizes net benefits (including 

potential economic, environmental, 

public health and safety effects, 

distributive impacts, and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. It explicitly draws attention 

to ‘‘equity, human dignity, fairness, and 

distributive impacts,’’ values that are 

difficult or impossible to quantify. All of 

these considerations are relevant in this 

rulemaking. 

The Office of Management and Budget 

(OMB) has designated this rule a 

‘‘significant regulatory action’’ as 

defined under section 3(f) of E.O. 12866, 

as amended by E.O. 14094. Accordingly, 

OMB has reviewed this regulation. 

1. Summary of Major Provisions of the 

Regulatory Action 

As discussed in the preamble, DHS is 

amending its regulations affecting 

temporary agricultural and temporary 

nonagricultural workers within the H–2 

programs, and their employers. The 

proposed rule seeks to better ensure the 

integrity of the H–2 programs, enhance 

protection for workers, and clarify 

requirements and consequences of 

actions incongruent with the intent of 

H–2 employment. The provisions of this 

proposed rule subject to this regulatory 

analysis are grouped into four 

categories: (1) integrity and worker 

protections; (2) worker flexibilities; (3) 

improving H–2 program efficiencies and 

reducing barriers to legal migration; and 

(4) forms and technical updates. 

2. Summary of Costs and Benefits of the 

Proposed Rule 

This proposed rule would impose 

new direct costs on petitioners in the 

form of opportunity costs of time to 

complete and file H–2 petitions and 

time spent to familiarize themselves 

with the rule. The quantifiable costs of 

this rule that would impact petitioners 

consistently and directly are the 

increased opportunity cost of time to 

complete Form I–129 H Classification 

Supplement and opportunity costs of 

time related to the rule’s portability 

provision. Over the 10-year period of 

analysis, DHS estimates the total costs 

of the proposed rule would be 

approximately $18,640,075 to 

$24,901,101 (undiscounted). DHS 

estimates annualized costs of this 

proposed rule range from $1,998,572 to 

$2,668,028 at a 3-percent discount rate 

and $2,186,033 to $2,915,885 at a 7- 

percent discount rate. In addition, the 

rule results in transfers from consumers 

to a limited number of H–2A and H–2B 

workers that may choose to supply 

additional labor. The total annualized 

transfer amounts to $2,918,958 in 

additional earnings at the 3-percent and 

7-percent discount rate and related tax 

transfers of $337,122 ($168,561 from 

these workers + $168,561 from 

employers). Fees paid for Form I–129 

and premium processing as a result of 

the proposed rule’s portability provision 

constitute a transfer of $636,760 from 


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petitioners of porting workers to USCIS 

(3 and 7-percent annualized equivalent). 

Certain petitioners may also incur 

other difficult to quantify costs. For 

example, certain petitioners may incur 

additional opportunity costs of time 

should they be selected for a 

compliance review or a site visit. Other 

petitioners may face stricter 

consequences regarding prohibited fees, 

or may opt to transport and house H– 

2A beneficiaries earlier than they would 

have otherwise based on the proposed 

extension of the pre-employment grace 

period from 7 to 10 days. In general, 

petitioners who are found to be 

noncompliant with the provisions of the 

rule (or other existing authorities) may 

incur costs related to lost sales, 

productivity, or profits as well as 

additional opportunity costs of time 

spent attempting to comply with the 

rule. Moreover, USCIS may incur 

increased opportunity costs of time for 

adjudicators to review information 

regarding debarment and other past 

violation determinations more closely, 

issue RFEs or NOIDs, and for related 

computer system updates. 

The benefits of this proposed rule 

would be diverse, though most are 

difficult to quantify. The proposed rule 

extends portability to H–2 workers 

lawfully present in the United States 

who are seeking to extend their stay 

regardless of a porting petitioner’s EVerify standing, allowing for greater 

consistency across portability 

regulations and other nonimmigrant 

worker categories. Beneficiaries would 

also benefit from the extended grace 

periods, the permanent ability to port, 

the clarification that employers who 

utilize porting workers must continue to 

abide by all H–2 requirements regarding 

worker benefits and protections, and 

eliminating the interrupted stay 

provisions and instead reducing the 

period of absence out of the country to 

reset their 3-year maximum period of 

stay. The Federal Government would 

also enjoy benefits, mainly through 

bolstering existing program integrity 

activities and providing a greater ability 

for USCIS to deny or revoke petitions 

for issues related to program 

compliance. Table 2 provides a more 

detailed summary of the proposed 

provisions and their impacts. 

TABLE—SUMMARY OF PROVISIONS AND IMPACTS

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(5)(vi)(A) and 8 

CFR 214.2(h)(6)(i)(F).

DHS is proposing to add stronger language requiring petitioners or employers to both consent to 

and fully comply with any USCIS audit, investigation, or other program integrity activity and clarify 

USCIS’s authority to deny/revoke a petition if unable to verify information related to the petition, 

including due to lack of cooperation from the petitioner or employer during a site visit or other 

compliance review.

Cost: 

• Cooperation during a site visit or compliance review may result in opportunity costs of time for 

petitioners to provide information to USCIS during 

these compliance reviews and inspections. On 

average, USCIS site visits last 1.7 hours, which is 

a reasonable estimate for the marginal time that a 

petitioner may need to spend in order to comply 

with a site visit. 

• Employers that do not cooperate would face denial or revocation of their petition(s), which could 

result in costs to those businesses. 

Benefit: 

• USCIS would have clearer authority to deny or 

revoke a petition if unable to verify information related to the petition. The effectiveness of existing 

USCIS program integrity activities would be improved through increased cooperation from employers. 

8 CFR 214.2(h)(20) ......................... DHS is proposing to provide H–2A and H–2B workers with ‘‘whistleblower protection’’ comparable to 

the protection currently offered to H–1B workers.

Cost: 

• Employers may face increased RFEs, denials, or 

other actions on their H–2 petitions, or other program integrity mechanisms available under this 

rule or existing authorities, as a result of H–2 

workers’ cooperation in program integrity activity 

due to whistleblower protections. Such actions 

may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers. 

Benefit: 

• Such protections may afford workers the ability to 

expose issues that harm workers or are not in 

line with the intent of the H–2 programs while 

also offering protection to such workers (therefore 

potentially improving overall working conditions), 

but the extent to which this would occur is unknown. 


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TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(5)(xi)(A), 8 CFR 

214.2(h)(5)(xi)(C), 8 CFR 

214.2(h)(6)(i)(B), 8 CFR 

214.2(h)(6)(i)(C), and 8 CFR 

214.2(h)(6)(i)(D).

DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen the 

existing prohibition on, and consequences for, 

charging certain fees to H–2A and H–2B workers, 

including new bars on approval for some H–2 petitions.

Cost: 

• Enhanced consequences for petitioners who 

charge prohibited fees could lead to increased financial losses and extended ineligibility from participating in H–2 programs. 

Benefit: 

• Possibly increase compliance with provisions regarding prohibited fees and thus reduce the occurrence and burden of prohibited fees on H–2 

beneficiaries. 

8 CFR 214.2(h)(10)(iii) .................... DHS is proposing to institute certain mandatory and 

discretionary bars to approval of an H–2A or H– 

2B petition.

Costs: 

• USCIS adjudicators may require additional time 

associated with reviewing information regarding 

debarment and other past violation determinations more closely, issuing RFEs or NOIDs, and 

conducting the discretionary analysis for relevant 

petitions. 

• The expansion of violation determinations that 

could be considered during adjudication, as well 

as the way debarments and other violation determinations would be tracked, would require some 

computer system updates resulting in costs to 

USCIS. 

Benefit: 

• Possibly increase compliance with H–2 program 

requirements, thereby increasing protection of H– 

2 workers. 

8 CFR 214.2(h)(2)(ii) and (iii), 8 

CFR 214.2(h)(5)(i)(F), and 8 CFR 

214.2(h)(6)(i)(E).

Eliminate the lists of countries eligible to participate 

in the H–2 programs.

Costs: 

• None expected. 

Benefits: 

• Employers and the Federal Government will benefit from the simplification of Form I–129 adjudications by eliminating the ‘‘national interest’’ 

portion of the adjudication that USCIS is currently 

required to conduct for beneficiaries from countries that are not on the lists. 

• Remove petitioner burden to provide evidence for 

beneficiaries from countries not on the lists. 

• Petitioners may have increased access to workers potentially available to the H–2 programs. 

• Free up agency resources devoted to developing 

and publishing the eligible country lists in the 

FEDERAL REGISTER every year. 

8 CFR 214.2(h)(5)(viii)(B) and 8 

CFR 214.2(h)(6)(vii)(A).

8 CFR 214.2(h)(11)(iv) and 8 CFR 

214.2(h)(13)(i)(C).

Change grace periods such that they will be the 

same for both H–2A and H–2B Programs.

Create a 60-day grace period following any H–2A or 

H–2B revocation or cessation of employment during which the worker will not be considered to 

have failed to maintain nonimmigrant status and 

will not accrue any unlawful presence solely on 

the basis of the revocation or cessation.

Costs 146: 

• H–2A employers may face additional costs such 

as for housing, but employers likely would weigh 

those costs against the benefit of providing employees with additional time to prepare for the 

start of work. 

Benefits: 

• Provides employees (and their employers) with 

extra time to prepare for the start of work. Provides clarity for adjudicators and makes timeframes consistent for beneficiaries and petitioners. 

• Provides workers additional time to seek other 

employment or depart from the United States if 

their employer faces a revocation or if they cease 

employment. 

8 CFR 214.2(h)(11)(iv) .................... Clarifies responsibility of H–2A employers for reasonable costs of return transportation for beneficiaries following a petition revocation.Costs: 

• None expected since H–2A petitioning employers 

are already generally liable for the return transportation costs of H–2A workers. 

Benefits: 

• Beneficiaries would benefit in the event that clarified employer responsibility decreased the incidence of workers having to pay their own return 

travel costs in the event of a petition revocation. 


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TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

8 CFR 214.2(h)(16)(i) ...................... Clarifies that H–2 workers may take steps toward 

becoming a lawful permanent resident of the 

United States while still maintaining lawful 

nonimmigtarant status.

Costs: 

• None expected. 

Benefits: 

• DHS expects this could enable some H–2 workers who have otherwise been dissuaded to pursue lawful permanent residence with the ability to 

do so without concern over becoming ineligible 

for H–2 status. 

8 CFR 214.2(h)(5)(viii)(C), 8 CFR 

214.2(h)(6)(vii), and 8 CFR 

214.2(h)(13)(i)(B).

Eliminates the ‘‘interrupted stay’’ calculation and instead reduces the period of absence to reset an 

individual’s 3-year period of stay.

Costs: 

• Workers in active H–2 status who would consider 

making trips abroad for periods of less than 60 

days but more than 45 days, may be 

disincentivized to make such trip. 

Benefit: 

• Simplifies and reduces the burden to calculate 

beneficiary absences for petitioners, beneficiaries, 

and adjudicators. 

• May reduce the number of RFEs related to 3-year 

periods of stay. 

Transfers: 

• As a result of a small number of H–2 workers at 

the 3-year maximum stay responding to the proposed shorter absence requirement by working 

30 additional days, DHS estimates upper bound 

annual transfer payment of $2,918,958 in additional earnings from consumers to H–2 workers 

and $337,122 in tax transfers from these workers 

and their employers to tax programs (Medicare 

and Social Security). 

8 CFR 214.2(h)(2)(i)(D), 8 CFR 

214.2(h)(2)(i)(I), and 8 CFR 

274a.12(b)(21).

Make portability permanent for H–2B workers and 

remove the requirement that H–2A workers can 

only port to an E-Verify employer.

Costs: 

• The total estimated annual opportunity cost of 

time to file Form I–129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form 

I–129 and Form G–28 will range from approximately $90,554 if filed by in-house lawyers to approximately $156,132 if filed by outsourced lawyers. 

• The total estimated annual costs associated with 

filing Form I–907 if it is filed with Form I–129 is 

$4,728 if filed by human resource specialists. The 

total estimated annual costs associated with filing 

Form I–907 would range from approximately 

$9,006 if filed by an in-house lawyer to approximately $15,527 if filed by an outsourced lawyer. 

• The total estimated annual costs associated with 

the portability provision ranges from $133,684 to 

$198,851, depending on the filer. 

• DHS may incur some additional adjudication 

costs as more petitioners will likely file Form I– 

129. However, these additional costs to USCIS 

are expected to be covered by the fees paid for 

filing the form. 


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146USCIS does not expect any additional costs to 

H–2B employers as, generally, they do not have to 

provide housing for workers. Employers are 

required to provide housing at no cost to H–2A 

workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4). 

There is no similar statutory requirement for 

employers to provide housing to H–2B workers, 

although there is a regulatory requirement for an H– 

2B employer to provide housing when it is 

primarily for the benefit or convenience of the 

employer. See 20 CFR 655.20(b), (c); 29 CFR 

531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015). 

TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued 

Provision Purpose of 

proposed provision 

Expected impact of the 

proposed provision 

Benefit: 

• Enabling H–2 workers present in the United 

States to port to a new petitioning employer affords these workers agency of choice at an earlier moment in time consistent with other portability regulations and more similar to other workers in the labor force. 

• Replacing the E-Verify requirement for employers 

wishing to hire porting H–2A workers with 

strengthened site visit authority and other provisions that maintain program integrity would aid 

porting beneficiaries in finding petitioners without 

first needing to confirm if that employer is in good 

standing in E-Verify. Although this change impacts an unknown portion of new petitions for 

porting H–2A beneficiaries, no reductions in EVerify enrollment are anticipated. 

• An H–2 worker with an employer that is not complying with H–2 program requirements would 

have additional flexibility in porting to another employer’s certified position. 

Transfers: 

• Annual undiscounted transfers of $636,760 from 

filing fees for Form I–129 combined with Form I– 

907 from petitioners to USCIS. 

8 CFR 214.2(h)(2)(i)(I)(3) ................ DHS proposes to clarify that a beneficiary of an H– 

2 portability petition is considered to have been in 

a period of authorized stay during the pendency 

of the petition and that the petitioner must still 

abide by all H–2 program requirements.

Benefits: 

• Provides H–2 workers with requisite protections 

and benefits as codified in the rule in the event 

that a porting provision is withdrawn or denied. 

Costs: 

• None expected. 

Cumulative Impacts of Proposed Regulatory Changes 

DHS proposes to make changes to the Form I–129, to effectuate the proposed regulatory 

changes.

Costs: 

• The time burden to complete and file Form I–129, 

H Classification Supplement, would increase by 

0.3 hours as a result of the proposed changes. 

The estimated opportunity cost of time for each 

petition by type of filer would be $15.28 for an HR 

specialist, $34.25 for an in-house lawyer, and 

$59.06 for an outsourced lawyer. The estimated 

total annual opportunity costs of time for petitioners or their representatives to file H–2 petitions under this proposed rule ranges from 

$745,330 to $985,540. 

Petitioners or their representatives would familiarize themselves with the rule ..................... Costs: 

• Petitioners or their representatives would need to 

read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715 

to $12,877,651, incurred during the first year of 

the analysis. 

Source: USCIS analysis. 


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OMB A–4 ACCOUNTING STATEMENT TIME PERIOD: FY 2024 THROUGH FY 2033 

[$ millions, FY 2022)] 

Category Primary estimate Minimum 

estimate 

Maximum 

estimate 

Source 

citation 

Benefits 

Monetized Benefits ..................................... N/A ............................................................ N/A N/A Regulatory Impact 

Analysis (‘‘RIA’’). 

Annualized quantified, but unmonetized, 

benefits.

N/A ............................................................ N/A N/A RIA. 

Unquantified Benefits ................................. Strengthened protections for workers who 

expose program or labor law violations, 

and for workers benefitting from increased grace periods; improvements 

to program integrity from reduced incentives for employers to collect prohibited fees and increased incentives to 

comply with program requirements; and 

increased access to workers potentially 

available to businesses that utilize the 

H–2 programs.

........................ ........................ RIA. 

Elimination of the eligible countries lists 

would reduce burdens upon DHS, 

USCIS, and H–2 employers. DHS 

would focus these resources on continuing to identify human trafficking and 

other forms of noncompliance with the 

H–2 visa programs.

Costs 

Annualized monetized costs (7%) .............. $2.33 ......................................................... $2.00 $2.67 RIA 

Annualized monetized costs (3%) .............. $2.55 ......................................................... $2.19 $2.92 

Annualized quantified, but unmonetized, 

costs.

Increased cooperation with existing 

USCIS site visits that average 1.7 

hours in duration. Whereas 12-percent 

of petitioners underestimated compliance burdens, additional costs to comply with existing program requirements 

may occur.

Qualitative (unquantified) costs .................. Certain employers may incur costs (including, but not limited to, lost sales, 

productivity, or profits and additional 

opportunity costs of time) for failing to 

comply with investigative or adjudicative actions undertaken due to the rule.

........................ ........................ RIA. 

Transfers 

Annualized monetized transfers: From consumers to limited number of workers 

supplying more labor.

(3% and 7%) $2.92 ................................... N/A N/A RIA. 

Annualized monetized transfers: From limited number of H–2 workers to taxes.(3% and 7%) $0.17 ................................... N/A N/A RIA. 

Annualized monetized transfers: From limited number of H–2 employers to taxes.(3% and 7%) $0.17 ................................... N/A N/A RIA. 

Annualized monetized transfers: Fees from 

petitioners to USCIS.

(3% and 7%) $0.64 ................................... N/A N/A RIA. 

Miscellaneous analyses/category Effects Source 

citation 

Effects on State, local, or tribal governments .................................................................................................................. None .......... RIA. 

Effects on small businesses ............................................................................................................................................ None .......... RIA. 

Effects on wages .............................................................................................................................................................. None .......... None. 

Effects on growth ............................................................................................................................................................. None .......... None. 

3. Background and Purpose of the Rule 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–2A temporary 

agricultural worker program and the H– 

2B temporary nonagricultural worker 

program (collectively ‘‘H–2 programs’’). 

Through this proposed rule, DHS seeks 

to strengthen worker protections and the 

integrity of the H–2 programs, provide 

greater flexibility for H–2A and H–2B 

workers, and improve program 


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147Revised effective January 18, 2009 (73 FR 

78104). 

148See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C. 

1184(g)(1)(B), (g)(10). 

149A TLC approved by DOL must accompany an 

H–2B petition. The employment start date stated on 

the petition generally must match the start date 

listed on the TLC. See 8 CFR 214.2(h)(6)(iv)(A) and 

(D). 

150See Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for FY 2023 for 

the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

76816 (Dec. 15, 2022) (providing temporary H–2B 

portability to petitioners and H–2B nonimmigrant 

workers initiating employment through the end of 

January 24, 2024). 

151 DHS notes that the number of filed H–2A 

petitions has grown by an approximately 12.76 

compound average growth rate between FY2013 

and FY2022. DHS acknowledges that potential costs 

may be underestimated in this analysis if historical 

growth rates continue. 

efficiency and reduce barriers to legal 

migration. 

The H–2A temporary agricultural 

nonimmigrant classification allows U.S. 

employers unable to find sufficient able, 

willing, qualified, and available U.S. 

workers to bring foreign nationals to the 

United States to fill seasonal and 

temporary agricultural jobs. To qualify 

as seasonal, employment must be tied to 

a certain time of year by an event or 

pattern, such as a short annual growing 

cycle or specific aspect of a longer cycle 

and requires labor levels far above those 

necessary for ongoing operations. To 

qualify as temporary, the employer’s 

need to fill the position will, except in 

extraordinary circumstances, last no 

longer than 1 year. 

The H–2B visa classification program 

was designed to serve U.S. businesses 

that are unable to find a sufficient 

number of qualified U.S. workers to 

perform nonagricultural work of a 

temporary or seasonal nature. For an H– 

2A or H–2B nonimmigrant worker to be 

admitted into the United States under 

one of these nonimmigrant 

classifications, the hiring employer is 

required to: (1) obtain a TLC from DOL 

(or, in the case of H–2B employment on 

Guam, from the Governor of Guam); and 

(2) file a Form I–129 with DHS. The 

temporary nature of the services or labor 

described on the approved TLC is 

subject to DHS review during 

adjudication of Form I–129.147

For the H–2B program there is a 

statutory cap of 66,000 visas allocated 

per fiscal year, with up to 33,000 

allocated in each half of a fiscal year, for 

the number of nonimmigrants who may 

be granted H–2B nonimmigrant 

status.148 Any unused numbers from the 

first half of the fiscal year will be 

available for employers seeking to hire 

H–2B workers during the second half of 

the fiscal year. However, any unused H– 

2B numbers from one fiscal year do not 

carry over into the next and will 

therefore not be made available.149

4. Population 

The proposed rule would impact 

petitioners (employers) who file Form I– 

129, Petition for a Nonimmigrant 

Worker, seeking to bring foreign 

nationals (beneficiaries or workers) to 

the United States to fill temporary 

agricultural and nonagricultural jobs 

through the H–2A and H–2B visa 

programs, respectively. This proposed 

rule also would have additional impacts 

on employers and workers presently in 

the United States under the H–2A and 

H–2B programs by permanently 

providing ‘‘portability’’ to all H–2A and 

H–2B workers. Portability, for purposes 

of this proposed rule, is the ability to 

begin new qualifying employment upon 

the filing of a nonfrivolous petition 

rather than upon petition approval. 

Workers may transfer, or ‘‘port,’’ to a 

qualifying new job offer that is in the 

same nonimmigrant classification that 

the worker currently holds. Porting, as 

proposed in this NPRM, does not 

include transferring from one H visa 

classification to another—for example, 

from H–2A to H–2B or vice versa. The 

new job offer may be through the same 

employer that filed the petition or a 

different employer after an H–2B 

petition is filed. This proposed 

provision would apply to all H–2A and 

H–2B workers on a permanent basis, 

whereas currently portability applies to 

only certain H–2A workers and on a 

time-limited basis to all H–2B 

workers.150 Portability allows H–2A and 

H–2B workers to continue to earn wages 

and gaining employers to continue 

obtaining necessary workers. Table 3 

and Table 4 present the total 

populations this proposed rule would 

impact. For provisions impacting a 

subset of these populations, the analysis 

provides separate population totals, 

when possible, for more specific 

analysis. 

TABLE 3—TOTAL H–2A PETITIONS RECEIVED USING FORM I–129 FOR TOTAL BENEFICIARIES WITH TOTAL APPROVED H– 

2A PETITIONS AND BENEFICIARIES, FY 2013 THROUGH FY 2022 

Fiscal year 

Total 

petitions 

received 

Total 

number of 

beneficiaries 

Total 

petitions 

approved 

Total 

beneficiaries 

approved 

2013 ................................................................................................................. 7,332 105,095 7,280 104,487 

2014 ................................................................................................................. 8,226 123,328 8,189 122,816 

2015 ................................................................................................................. 9,158 157,622 9,077 155,683 

2016 ................................................................................................................. 10,248 178,249 9,989 172,661 

2017 ................................................................................................................. 11,602 218,372 11,504 216,000 

2018 ................................................................................................................. 13,444 262,630 13,315 258,360 

2019 ................................................................................................................. 15,509 287,606 15,356 282,133 

2020 ................................................................................................................. 17,012 306,746 16,776 300,834 

2021 ................................................................................................................. 20,323 353,650 19,853 339,419 

2022 ................................................................................................................. 24,370 415,229 23,704 396,255 

Total ................................................................................................................. 137,224 2,408,527 135,043 2,348,648 

10-year Average .............................................................................................. 13,722 240,853 13,504 234,865 

Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct. 18, 2022. 

As shown in Table 3, the number of 

Form I–129 H–2A petitions increased 

from 7,332 in FY 2013 to 24,370 in FY 

2022 while approved petitions 

increased from 7,280 in FY 2013 to 

23,704 in FY 2022.151 The number of 

beneficiaries also increased over this 

time period from 105,095 to 415,229 

with approved beneficiaries increasing 

from 104,487 to 396,255. Note that 

petitioners can petition for multiple 

beneficiaries on one petition, hence the 

much larger number of beneficiaries to 

petitions received and approved. On 

average, 13,722 H–2A petitions were 


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152Although Congress provided the Secretary of 

Homeland Security with the discretionary authority 

to increase the H–2B cap in FY 2020, the Secretary 

did not exercise that authority. See Exercise of 

Time-Limited Authority To Increase the Fiscal Year 

2021 Numerical Limitation for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

Employers, 86 FR 28202 (May 25, 2021). 

153On October 12, 2022, DHS announced that it 

will make available to employers an additional 

64,716 H–2B temporary nonagricultural worker 

visas for fiscal year 2023. See DHS, DHS to 

Supplement H–2B Cap with Nearly 65,000 

Additional Visas for Fiscal Year 2023 (Oct. 12, 

2022), https://www.dhs.gov/news/2022/10/12/dhssupplement-h-2b-cap-nearly-65000-additionalvisas-fiscal-year-2023. 

154See section 543 of Division F of the 

Consolidated Appropriations Act, 2017, Public Law 

115–31; section 205 of Division M of the 

Consolidated Appropriations Act, 2018, Public Law 

115–141; section 105 of Division H of the 

Consolidated Appropriations Act, 2019, Public Law 

116–6; section 105 of Division I of the Further 

Consolidated Appropriations Act, 2020, Public Law 

116–94; section 105 of Division O of the 

Consolidated Appropriations Act, 2021, Public Law 

116–260 (FY 2021 Omnibus); section 105 of 

Division O of the Consolidated Appropriations Act, 

2021, FY 2021 Omnibus, sections 101 and 106(3) 

of Division A of Public Law 117–43, Continuing 

Appropriations Act, 2022, and section 101 of 

Division A of Public Law 117–70, Further 

Continuing Appropriations Act, 2022; section 204 

of Division O of the Consolidated Appropriations 

Act, 2022, Public Law 117–103, and section 101(6) 

of Division A of Public Law 117–180, Continuing 

Appropriations and Ukraine Supplemental 

Appropriations Act, 2023, and section 303 of 

Division O, Consolidated Appropriations Act, 2023, 

Public Law 117–328. 

155See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C. 

1184(g)(1)(B), (g)(10). 

156For more information on site visits, see USCIS, 

Administrative Site Visit and Verification Program 

(Sept. 9, 2019), https://www.uscis.gov/about-us/ 

directorates-and-program-offices/fraud-detectionand-national-security/administrative-site-visit-andverification-program. 

157The expected time burden to comply with 

audits conducted by DHS and OFLC is 12 hours. 

The number in hours for audits was provided by 

received for an average 240,853 

beneficiaries and 13,504 H–2A petitions 

were approved for an annual average of 

234,865 beneficiaries. 

TABLE 4—TOTAL H–2B PETITIONS RECEIVED USING FORM I–129 FOR TOTAL BENEFICIARIES WITH TOTAL APPROVED H– 

2B PETITIONS AND BENEFICIARIES, FY 2013 THROUGH FY 2022 

Fiscal year 

Total 

petitions 

received 

Total 

number of 

beneficiaries 

Total 

petitions 

approved 

Total 

beneficiaries 

approved 

2013 ................................................................................................................. 4,720 81,220 4,546 78,532 

2014 ................................................................................................................. 5,314 91,150 5,132 87,859 

2015 ................................................................................................................. 5,412 93,160 5,165 90,031 

2016 ................................................................................................................. 6,527 114,181 5,946 105,213 

2017 ................................................................................................................. 6,112 110,794 5,860 105,839 

2018 ................................................................................................................. 6,148 113,850 5,941 108,380 

2019 ................................................................................................................. 7,461 128,122 7,337 125,773 

2020 ................................................................................................................. 5,422 95,826 5,269 93,345 

2021 ................................................................................................................. 9,160 160,790 8,937 156,528 

2022 ................................................................................................................. 12,388 185,705 12,120 181,775 

Total ................................................................................................................. 68,664 1,174,798 66,253 1,133,275 

10-year average ............................................................................................... 6,866 117,480 6,625 113,328 

Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct. 18, 2022. 

Table 4 shows that the number of 

Form I–129 H–2B petitions and number 

of beneficiaries increased from FY 2013 

through FY 2019, declined in FY 2020 

due to labor market conditions during 

COVID–19, and then increased again in 

FY 2021 and FY 2022.152 As previously 

discussed, the total number of H–2B 

visas is constrained in recent fiscal 

years by statutory numerical limits, or 

‘‘caps,’’ with some exceptions, on the 

total number of noncitizens who may be 

issued an initial H–2B visa or otherwise 

granted H–2B status during each fiscal 

year.153 Whereas the exact statutory 

limits (including any supplemental 

limits) on H–2B visas are unknown for 

FY 2024 and beyond, the receipts and 

approvals seen in FY 2022 are assumed 

to be a reasonable estimate of future H– 

2B petitions and beneficiaries. 

As these tables show, U.S. employers 

and foreign temporary workers have 

been increasingly interested in the H– 

2A and H–2B programs from FY 2013 to 

FY 2022 as evidenced by an increasing 

number of petitions filed for an 

increasing number of beneficiaries. 

However, the H–2B program remains 

constrained by the statutory cap of 

66,000 visas allocated per fiscal year, 

provided for under INA sec. 

214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B), 

though Congress, through time-limited 

legislation, has allowed, to date, 

supplemental allocations beyond that 

66,000 visa cap.154 The supplements 

allocate additional visas for 

nonimmigrants who may be granted H– 

2B nonimmigrant status in each half of 

a fiscal year.155

5. Cost-Benefit Analysis 

The provisions of this proposed rule 

subject to this regulatory analysis are 

grouped into the following four 

categories: (1) integrity and worker 

protections; (2) worker flexibilities; (3) 

improving H–2 program efficiencies and 

reducing barriers to legal migration; and 

(4) forms and technical updates. Each 

subsection that follows explains the 

proposed provision, its population if 

available, and its potential impacts. 

a. Integrity and Worker Protections 

To improve the integrity of the H–2 

programs, DHS proposes to provide 

clearer requirements for USCIS 

compliance reviews and inspections, to 

provide H–2A and H–2B workers 

‘‘whistleblower protections,’’ revise the 

provisions relating to prohibited fees, 

and to institute certain mandatory and 

discretionary bars to approval of an H– 

2A or H–2B petition. We address each 

of these provisions in turn below. 

(1) USCIS Compliance Reviews and 

Inspections 

DHS is proposing new provisions 

specific to the H–2A and H–2B 

programs to conduct compliance 

inspections, clarify the scope of 

inspections, and specify the 

consequences of a refusal or failure to 

fully cooperate with such compliance 

reviews and inspections. While no 

inspection that the USCIS Fraud 

Detection and National Security 

Directorate (FDNS) conducts is 

mandatory, if an inspection is 

conducted, this provision would make 

the successful completion of an 

inspection required for a petition’s 

approval.156 Inspections can include 

site visits, telephone interviews, or 

correspondence (both electronic and 

mail).157 This regulatory change would 


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USCIS, Service Center Operations. See Exercise of 

Time-Limited Authority To Increase the Numerical 

Limitation for FY 2023 for the H–2B Temporary 

Nonagricultural Worker Program and Portability 

Flexibility for H–2B Workers Seeking To Change 

Employers, 87 FR 76816 (Dec. 15, 2022). 

158The H–2B petitions were randomly selected so 

they do not represent a population that data led 

USCIS to believe were more vulnerable to fraud or 

abuse. 

159Site visits can be categorized as 

‘‘inconclusive’’ for a variety of reasons including, 

but not limited to, noncooperation or a lack of 

personnel (petitioner, beneficiary, or other relevant 

personnel) present at the respective site. 

160 Data from USCIS FDNS, Reports and Analysis 

Branch. 

161See USCIS, Combating Fraud and Abuse in the 

H–1B Visa Program (Feb. 9, 2021), https://

www.uscis.gov/scams-fraud-and-misconduct/ 

report-fraud/combating-fraud-and-abuse-in-the-h1b-visa-program. 

162WHD prohibits retaliation and publishes fact 

sheets and other resources online. See, e.g., 

Retaliation | U.S. Department of Labor (dol.gov); 

WHD, Fact Sheet #77D: Retaliation Prohibited 

under the H–2A Temporary Visa Program (Apr. 

2012), https://www.dol.gov/agencies/whd/factsheets/77d-h2a-prohibiting-retaliation; Fact Sheet 

#78H: Retaliation Prohibited under the H–2B 

Temporary Visa Program, https://www.dol.gov/ 

agencies/whd/fact-sheets/78h-h2b-retaliationprohibited. 

apply to both pre- and post-adjudication 

petitions, which would provide USCIS 

the ability to either deny or revoke 

petitions accordingly. This proposed 

rule would provide USCIS with a 

greater ability to obtain compliance 

from petitioners and employers. Outside 

of this proposed rulemaking, USCIS is 

planning to conduct future site visits for 

both H–2A and H–2B work sites, some 

of which are expected to occur in late 

FY 2023. 

Data on H–2 program inspections are 

limited and generally consist of site 

visits. USCIS has conducted only 189 

H–2A program site visits associated 

with fraud investigations since calendar 

year 2004. With respect to H–2B 

program inspections, USCIS conducted 

a limited site visit pilot in FY 2018 and 

FY 2019 in which USCIS completed 364 

(randomly selected) H–2B employment 

sites for inspection and conducted site 

visits.158 Of the site visits USCIS 

conducted, USCIS officers were unable 

to make contact with employers or 

workers over 12 percent of the time (45 

instances).159 On average, each site visit 

took 1.7 hours.160 Of the limited number 

of site visits USCIS has conducted thus 

far, non-cooperation exists in at least 

some cases. Cooperation is crucial to 

USCIS’s ability to verify information 

about employers and workers, and the 

overall conditions of employment. 

This proposed rule would provide a 

clear disincentive for petitioners who do 

not cooperate with compliance reviews 

and inspections while giving USCIS a 

greater ability to access and confirm 

information about employers and 

workers as well as identify fraud. 

Employers who may be selected to 

participate in such inspections may 

incur costs related to the opportunity 

cost of time to provide information to 

USCIS instead of performing other 

work. As discussed above, FDNS data 

on previous H–2B site visits show that 

the average site visit takes 1.7 hours. 

DHS believes that, due to the rule’s 

provisions clarifying the consequences 

of a refusal or failure to fully cooperate 

with compliance reviews and 

inspections, the rate of ‘‘inconclusive’’ 

site visits will be negligible. As such, 

each site visit that warrants a conclusive 

finding under the rule that would have 

warranted an ‘‘inconclusive’’ finding 

under the baseline scenario would 

therefore cause a 1.7-hour time burden 

to accrue to the respective petitioner 

due the petitioner now expending time 

cooperating that they would not have 

under the baseline. 

DHS cannot quantify these costs, 

however, because the relevant hourly 

opportunity cost of time is highly 

specific to the affected petitioner and, as 

such, any average would likely not be 

informative. DHS expects the benefit of 

participation in the H–2 program would 

outweigh these costs, however. 

Additionally, employers who do not 

cooperate would face denial or 

revocation of their petition(s), which 

could result in costs to those businesses. 

USCIS does not expect this proposed 

provision would result in additional 

costs to the Federal Government 

because it would not require additional 

resources or time to perform compliance 

reviews and inspections and, at the 

same time, USCIS is not proposing to 

establish a particular number of 

compliance reviews and inspections to 

complete annually or increase the 

number of compliance reviews and 

inspections or the number of H–2 

program site visits. A benefit is that 

USCIS would have the authority to deny 

or revoke a petition if unable to verify 

information related to the petition. 

Additionally, existing USCIS program 

integrity activities would be made more 

effective by additional cooperation from 

employers. 

DHS welcomes public comment on 

the costs H–2 program employers and 

workers would incur based on the 

proposed changes related to compliance 

reviews and inspections. 

(2) Whistleblower Protections 

DHS is proposing to provide H–2A 

and H–2B workers with ‘‘whistleblower 

protections’’ comparable to the 

protections currently offered to H–1B 

workers.161 For example, if an H–1B 

worker (1) applies to extend their H–1B 

status or change their nonimmigrant 

status; (2) indicates that they faced 

retaliatory action from their employer 

because they reported an LCA violation; 

and (3) lost or failed to maintain their 

H–1B status, USCIS may consider this 

situation to be an instance of 

‘‘extraordinary circumstances’’ as 

defined by sections 8 CFR 214.1(c)(4) 

and 248.1(b). In addition, H–1B workers 

normally are not eligible to extend or 

change their status if they have lost or 

failed to maintain their H–1B status. 

However, if they can demonstrate 

‘‘extraordinary circumstances,’’ USCIS 

may use its discretion to excuse this 

requirement on a case-by-case basis. 

USCIS does not currently have data 

specific to whistleblower protections for 

the H–1B program nor does it have data 

on other similar types of reports on 

worker issues from the H–2 

population.162 Therefore, it is possible 

that whistleblower protections may 

afford H–2 workers the ability to expose 

issues that harm beneficiaries or are not 

congruent with the intent of H–2 

employment. This impact could, 

potentially, improve working conditions 

but the extent to which H–2 workers 

would cooperate in program integrity 

activities as a direct result of 

prohibitions on specified employer 

retaliations is unknown. It is also 

possible that employers may face 

increased RFEs, denials, or other actions 

on their H–2 petitions, or other program 

integrity mechanisms available under 

this rule or existing authorities, as a 

result of H–2 workers’ cooperation in 

program integrity activity due to 

whistleblower protections. Such actions 

may result in potential costs such as lost 

productivity and profits to employers 

whose noncompliance with the program 

is revealed by whistleblowers. The 

Department invites comments from 

petitioners regarding compliance costs 

resulting from whistleblower 

protections. 

(3) Prohibited Fees 

DHS is proposing to revise the 

provisions relating to prohibited fees to 

strengthen the existing prohibition on, 

and consequences for, charging certain 

fees to H–2A and H–2B workers, 

including new bars on approval for 

some H–2 petitions. The economic 

impacts of these proposed changes are 

difficult to assess because USCIS 

currently does not have the means to 

track or identify petitions associated 

with the payment of prohibited fees. 

Prohibited fees are paid by a worker and 

include, but are not limited to, 

withholding or deducting workers’ 


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163 Information from email discussions. See DOS 

Emails Re_Prohibited fees (H–2) (Sept. 19, 2022). 

164 Id. 

165Workers have a disincentive to report 

prohibited fees since regulations stipulate that a 

visa should be denied to those admitting to paying 

these fees. 

166 Information from email discussions. See DOS 

Emails Re_Prohibited fees (H–2) (Sept. 19, 2022). 

167 Id. 

168 In additional to the non-exhaustive list of 

prohibited fees, there are also other types of nonfee payments, including favors, meals, or even the 

transfer of livestock. 

169See Centro de los Derechos del Migrante, 

Recruitment Revealed: Fundamental Flaws in the 

H–2 Temporary Worker Program and 

Recommendations for Change. Not dated. Available 

at https://cdmigrante.org/wp-content/uploads/ 

2018/02/Recruitment_Revealed.pdf. Last accessed 

Mar. 31, 2023. 170FY 2022 Total H–2A beneficiaries 415,229 × 

0.58 = 240,833 (rounded); FY 2022 Total H–2B 

beneficiaries 185,705 × 0.58 = 107,709 (rounded). 

171We take an average of the range provided by 

the consular office in Mexico: ($800+$1000)/ 

2=$900. 

172Calculations: Half of FY 2022 H–2A 

beneficiaries 240,833 × $900 fee = $216.7 million 

(rounded); Half of FY 2022 H–2B beneficiaries 

107,709 × $900 fee = $96.9 million (rounded). 

wages; directly or indirectly paying a 

recruiter, employer, agent, or anyone 

else in the recruitment chain agent; or 

paying for other work-related expenses 

the employer is required by statute or 

regulation to cover. 

USCIS generally has no direct 

interaction with beneficiaries, so it 

currently depends in significant part on 

findings by DOS consulates to 

determine if prohibited fees have been 

paid, usually in relation to applicant 

interviews or investigations. For 

example, the DOS Office of Fraud 

Prevention, in collaboration with 

several consulates in Mexico, confirmed 

they do not have data on the average 

number of prohibited fees charged nor 

the amount paid.163 A consulate in 

Mexico shared that during visa 

interviews beneficiaries may disclose 

the payment of prohibited fees, but 

typically these admissions are for fees 

paid to previous facilitators or 

employers from returning applicants 

who are going to work for a new 

employer.164 This is likely due to 

disincentives to admitting to the 

payment of fees for current petitions for 

fear of losing the proffered job 

opportunity in the United States.165

DOS assumes it only receives reports 

from a small fraction of the workers who 

pay prohibited fees because they still 

are able to obtain work and make more 

money in the United States than they 

would in Mexico regardless of whether 

they pay fees or not leading some 

workers to choose not to report the 

prohibited fees.166 Further, DOS also 

noted that workers usually only report 

paying prohibited fees when fees are 

increased, when they do not have the 

money to pay the fee in a current year, 

or they are excluded from being listed 

on a petition. 

Moreover, DOS noted that prohibited 

fees are commonplace and pervasive in 

the H–2 program, but that this issue 

largely goes unreported.167 Consular 

employees noted, in their experience, 

that fees ordinarily range from $800 to 

$1,000 for a beneficiary to be included 

on a petition but that non-monetary 

transfers may also occur.168

Data on the prevalence of prohibited 

fees is very limited. However, according 

to one non-profit organization that 

conducted a survey, about 58 percent of 

H–2 workers reported paying a 

prohibited fee.169 Since data on the 

prevalence of prohibited fees is very 

limited, we use the 58 percent estimate 

as a primary estimate of beneficiaries 

that may be subject to some form of 

prohibited fee. Using this estimated 

percentage, we can multiply by the total 

number of FY 2022 beneficiaries to 

consider the potential population 

impacted by prohibited fees.170 If we 

assume 58 percent of beneficiaries pay 

an average fee of $900,171 we estimate 

that prohibited fees (including those 

incurred both within and outside of the 

United States) may have cost H–2A 

workers around $216.7 million and H– 

2B workers around $96.9 million in FY 

2022.172 If prohibited fees are a 

prevalent problem on such an 

economically significant scale, it may 

not be reasonable to assume that this 

rule would stop all fees paid by H–2 

workers. However, for beneficiaries who 

currently pay prohibited fees or could 

pay them in the future, this proposed 

provision seeks to minimize the 

occurrence and burden of prohibited 

fees on H–2 beneficiaries. 

It is difficult to estimate the specific 

impacts that this proposed change 

would have, but DHS expects that 

enhanced consequences for petitioners 

would act as a deterrent to charge or 

collect prohibited fees from H–2 

workers. In addition, the harsher 

consequences for employers charging 

prohibited fees could, in conjunction 

with whistleblower protections 

proposed in this rule, reduce 

disincentives for workers to report that 

prohibited fees had been charged. 

However, DHS is not able to estimate 

whether and to what extent those 

disincentives are expected to be 

reduced. Consequently, under this 

proposed rule, there would be 

additional unquantifiable and nonmonetizable reductions in indenture 

and harms from other more serious 

abuses such as those discussed in 

section III, Background. 

DHS welcomes public comment on 

the prevalence, population, and cost of 

prohibited fees and their impacts on H– 

2 workers. 

(4) Mandatory and Discretionary Bars 

As another integrity measure and 

deterrent for petitioners that have been 

found to have committed labor law 

violations or abused the H–2 programs, 

DHS is proposing to institute certain 

mandatory and discretionary bars to 

approval of an H–2A or H–2B petition. 

The impacts of this proposed provision 

are targeted at H–2 petitioners that have 

committed serious violations or have 

otherwise not complied with H–2 

program requirements. 

To understand the baseline, USCIS 

has data on current debarments. USCIS 

relies on debarment data shared by DOL 

to determine the eligibility of certain H– 

2 petitions. As of December 19, 2022, 

there were 76 active debarments for 

both the H–2A and H–2B programs. 

Historically, from FY 2013 through FY 

2022, USCIS has tracked a total of 326 

recorded debarments for a company, 

individual or agent as provided by DOL. 

USCIS regularly performs additional 

research to confirm debarment and 

petitioner information to assist in 

adjudications. For the period of 

debarment, a petition covered by the 

debarment may not be approved where 

the debarred organization, or its 

successor-in-interest in some limited 

circumstances, whether or not having 

the same name as that listed, is the 

petitioner or employer. 

Costs under this provision of the 

proposed rule would be borne by such 

petitioners or their successor in interest 

through denials and bars to 

participating in the H–2 program for a 

period of between 1 to 5 years. More 

petitioners may face financial losses as 

a result of these bars because they may 

lose access to labor for extended 

periods, which could result in too few 

workers, loss of revenue, and some 

could go out of business. DHS expects 

program participants to comply with 

program requirements, however, and 

notes that those that do not could 

experience significant impacts due to 

this proposed rule. DHS expects that the 

proposed rule would hold certain 

petitioners more accountable for 

violations, including certain findings of 

labor law and other violations, and 

would result in fewer instances of 

worker exploitation and safer working 

environments for beneficiaries. 

The Federal Government may 

experience costs associated with 

implementing this provision. 


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173H–2A workers must be provided housing. See 

WHD, H–2A: Temporary Agricultural Employment 

of Foreign Workers, https://www.dol.gov/agencies/ 

whd/agriculture/h2a. 

Specifically, USCIS adjudicators may 

require additional time associated with 

reviewing petitioner information 

relating to debarment by DOL and other 

determinations of past violations more 

closely (as they would now be able to 

consider past noncompliance in the 

current adjudications), issuing an RFE 

or NOID, and, if the violation 

determination is covered under the 

discretionary bar provision, including 

when debarment has concluded, 

conducting the discretionary analysis 

for relevant petitions. Additionally, the 

proposed expansion of bases for 

debarment as well as the way 

debarments are tracked in current 

USCIS systems would require additional 

inter-agency coordination and 

information sharing. 

DHS welcomes public comments on 

any costs resulting from these proposed 

mandatory and discretionary bars to 

employers, if the proposed bars are 

adequate to address misconduct, and if 

there are data available that should be 

considered. 

b. Worker Flexibilities 

DHS is proposing changes to provide 

greater flexibility to H–2A and H–2B 

workers by implementing grace periods, 

clarifying the responsibility of H–2A 

employers for reasonable costs of return 

transportation for beneficiaries 

following a petition revocation, 

clarifying expressly that H–2 workers 

may take steps toward becoming a 

permanent resident of the United States 

while still maintaining lawful 

nonimmigrant status, and expanding job 

portability. We address each of the 

provisions regarding these worker 

flexibilities in turn below. 

(1) Grace Periods 

DHS proposes to provide increased 

flexibility for H–2 workers by extending 

grace periods. Workers would not 

experience an increase in work time due 

to these extended grace periods. More 

specifically, this rule proposes to 

provide the same 10-day grace period 

prior to a petition’s validity period that 

H–2B nonimmigrants currently receive 

to H–2A nonimmigrants, resulting in the 

extension of the initial grace period of 

an approved H–2A petition from 1 week 

to 10 days. The proposed initial grace 

period would also apply to their 

dependents in the H–4 visa 

classification. USCIS does not have data 

on how early H–2 workers arrive in the 

United States prior to a petition’s 

validity period. As a result, we do not 

know how many H–2B workers 

currently or historically arrive up to 10 

days prior to their employment start 

date, nor do we know how many H–2A 

workers currently or historically arrive 

a full week (7 days) early. Further, the 

portion of the H–2A populations that 

may benefit from this proposed 

provision is unknown. Extending the 

grace period prior to a petition’s validity 

period for H–2A workers by 3 days may 

result in additional costs to employers, 

such as for housing.173 However, since 

H–2A employers pay for and normally 

arrange transportation to the worksite, 

USCIS assumes employers would weigh 

the costs of providing additional days of 

housing to H–2A workers against the 

benefit of providing their employees 

with additional time to prepare for the 

start of work. For example, it may be 

beneficial for an employer to provide 

workers additional time to adjust to a 

new time zone or climate. 

DHS also proposes to extend the 10- 

day grace period following the 

expiration of their petition from 10 days 

to 30 days for H–2B nonimmigrants, 

subject to the 3-year maximum 

limitation of stay. USCIS does not have 

data on the length of time H–2A or H– 

2B workers typically spend in the 

United States following the validity 

period of a petition because departures 

from the United States are not always 

tracked. Unlike the general practice 

regarding entries, departures are not 

always tracked and do not typically 

require an encounter with U.S. Customs 

and Border Protection, so it is difficult 

to determine when nonimmigrants leave 

the United States. Therefore, the 

population that may benefit from this 

proposed provision is unknown. 

However, because this proposed rule 

would extend only the H–2B grace 

period, USCIS does not expect any 

additional costs to employers as they 

generally are not required to provide 

housing for their workers during the 

time of employment or during the grace 

period. The extended grace period for 

H–2B workers would benefit the 

workers by providing additional time to 

prepare for departure or seek alternative 

work arrangements such as applying for 

an extension of stay based on a 

subsequent offer of employment or 

porting to a new employer. 

Additionally, this proposed provision 

would align the grace periods for H–2A 

and H–2B workers so that they both are 

afforded 10 days prior to the approved 

validity period and 30 days following 

the expiration of an H–2 petition, 

thereby reducing confusion for potential 

employers and better ensuring 

consistency in granting workers the 

grace periods. 

DHS is also proposing to provide a 

new 60-day grace period following a 

cessation of H–2 employment or until 

the end of the authorized period of 

admission, whichever is shorter. USCIS 

does not have data on H–2 employment 

cessations and, therefore, the impact of 

this provision on the portion of the H– 

2A and H–2B populations is unknown. 

However, this provision would likely 

offer H–2 workers time to respond to 

sudden or unexpected changes related 

to their employment, regardless of the 

reason for employment cessation. The 

time could be used to seek new 

employment, prepare for departure from 

the United States, or seek a change of 

status to a different nonimmigrant 

classification. 

DHS welcomes public comments on 

any costs resulting from the proposed 

grace period extensions from 1 week to 

10 days prior to a petition’s validity 

period for H–2A nonimmigrants and 

from 10 days to 30 days following the 

expiration of their petition for H–2B 

nonimmigrants, subject to the 3-year 

maximum limitation of stay. DHS also 

welcomes public comments on the 

proposed grace period of 60 days 

following a cessation of H–2 

employment or until the end of the 

authorized period of admission, 

whichever is shorter. 

(2) Transportation Costs for Revoked H– 

2 Petitions 

DHS proposes to add language 

clarifying that upon revocation of an H– 

2A or H–2B petition, the petitioning 

employer would be liable for the H–2 

beneficiary’s reasonable costs of return 

transportation to their last place of 

foreign residence abroad. Under existing 

20 CFR 655.20(j)(1)(ii) and 20 CFR 

655.122(h)(2), as well as 8 CFR 

214.2(h)(6)(i)(C) and 8 CFR 

214.2(h)(6)(vi)(E), petitioning employers 

are already generally liable for the 

return transportation costs of H–2 

workers, so this proposed change is not 

expected to result in any additional 

costs to employers. 

(3) 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 Immigrant Visa 

DHS proposes to clarify that H–2 

workers may take certain steps toward 

becoming lawful permanent residents of 

the United States while still maintaining 

lawful nonimmigrant status. The 

population impacted by this provision 

can be seen in Table 5. Historical 

receipts data for Form I–485 


lotter on DSK11XQN23PROD with PROPOSALS2
65084 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules 

174While unrelated to this NPRM, we note that 

on April 20, 2020, a final rule published to 

temporarily amend its regulations to allow H–2A 

workers to immediately work for any new H–2A 

employer to mitigate the impact on the agricultural 

industry due to COVID–19. This temporary final 

rule (TFR) was effective from April 20, 2020, 

through August 18, 2020. See Temporary Changes 

to Requirements Affecting H–2A Nonimmigrants 

Due to the COVID–19 National Emergency, 85 FR 

21739 (Apr. 20, 2020). Another TFR published 

August 20, 2020, again allowing H–2A workers to 

immediately work for any new H–2A employer. 

That TFR was effective from August 19, 2020, 

through August 19, 2023 and allowed employers to 

request the flexibilities under this TFR by filing an 

H–2A petition on or after August 19, 2020, and 

through December 17, 2020. See Temporary 

Changes to Requirements Affecting H–2A 

Nonimmigrants Due To the COVID–19 National 

Emergency: Partial Extension of Certain 

Flexibilities, 85 FR 51304 (Aug. 20, 2020). 

175See DHS, About E-Verify, https://www.everify.gov/about-e-verify (last updated Apr. 10, 

2018). 

176Employers already participating in E-Verify 

likely already attend webinars and learn about and 

incorporate new features and system changes 

annually because they voluntarily chose to enroll or 

because of rules or regulations beyond the scope of 

this proposed rule. DHS anticipates that such 

employers would continue to use E-Verify 

regardless of their decision to hire H–2A workers 

or not. 

(Application to Register Permanent 

Residence or Adjust Status) show a 5- 

year total of 9,748 receipts from 

applicants with H–2A and H–2B status. 

The annual average is 1,950 receipts. 

TABLE 5—FORM I–485 RECEIPTS FROM APPLICANTS WITH H–2A AND H–2B STATUS, FY 2018 THROUGH FY 2022 

Fiscal year Receipts Approved Denied 

Admin 

close/ 

withdraw 

2018 ................................................................................................................................................. 1,294 240 22 2 

2019 ................................................................................................................................................. 1,698 1,032 81 2 

2020 ................................................................................................................................................. 2,491 1,366 87 1 

2021 ................................................................................................................................................. 2,701 2,411 97 2 

2022 ................................................................................................................................................. 1,564 1,832 138 6 

Total .......................................................................................................................................... 9,748 6,881 425 13 

5-year average ................................................................................................................................. 1,950 1,376 85 3 

Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Nov. 4, 2022. 

USCIS does not have information on 

how many H–2 workers have been 

deemed to have violated their H–2 

status or abandoned their foreign 

residence. However, DHS expects this 

could enable some H–2 workers who 

have otherwise been dissuaded to 

pursue lawful permanent residence with 

the ability to do so without concern over 

becoming ineligible for H–2 status. This 

proposed rule would not expand the 

underlying eligibility of H–2 workers for 

lawful permanent resident status. 

DHS welcomes public comments on 

the impacts that may result from this 

proposed provision to allow H–2 

workers to take steps toward becoming 

permanent residents of the United 

States. 

(4) Portability 

DHS proposes to permanently provide 

portability for eligible H–2A and H–2B 

nonimmigrants. The population affected 

by this provision are nonimmigrants in 

H–2A and H–2B status who are present 

in the United States on whose behalf a 

nonfrivolous H–2 petition for new 

employment has been filed, with a 

request to amend or extend the H–2A or 

H–2B nonimmigrant’s stay in the same 

classification they currently hold, before 

their period of stay expires and who 

have not been employed without 

authorization in the United States from 

the time of last admission through the 

filing of the petition for new 

employment. Codifying this provision 

in regulation for H–2 nonimmigrants 

would provide stability and job 

flexibility to the beneficiaries of 

approved H–2 visa petitions. This 

portability provision would facilitate 

the ability of individuals to move to 

more favorable employment situations 

and/or extend employment in the 

United States without being tied to one 

position with one employer. 

Additionally, DHS is proposing an 

additional portability provision that 

would clarify that H–2 employers must 

comply with all H–2 program 

requirements and responsibilities (such 

as worker protections) in the event that 

a petition for a porting worker is 

withdrawn or denied. 

Currently, portability is available on a 

permanent basis to H–2A workers, but 

it is limited to E-Verify employers.174 EVerify is a DHS web-based system that 

allows enrolled employers to confirm 

the identity and eligibility of their 

employees to work in the United States 

by electronically matching information 

provided by employees on the 

Employment Eligibility Verification 

(Form I–9) against records available to 

DHS and the Social Security 

Administration (SSA).175 DHS does not 

charge a fee for employers to participate 

in E-Verify and create cases to confirm 

the identity and employment eligibility 

of newly hired employees. Under this 

proposed rule, employers petitioning for 

a porting H–2A worker would no longer 

need to be enrolled in E-Verify, but 

would remain subject to all program 

requirements based on the approved 

TLC and the filing of the H–2 petition. 

Although there is no fee to use EVerify, this proposed requirement 

would result in savings to newly 

enrolling employers. Employers that 

newly enroll in E-Verify to hire H–2 

workers incur startup enrollment or 

program initiation costs as well as 

additional opportunity costs of time for 

users to participate in webinars and 

learn about and incorporate any new 

features and system updates that EVerify may have every year. DHS 

assumes that most employers that are 

currently participating in E-Verify 

would not realize cost savings of these 

expenses since they previously incurred 

enrollment costs and would continue to 

participate in webinars and incorporate 

any new E-Verify features and system 

changes regardless of this proposed 

rule.176 Additionally, DHS expects that 

only those employers who would have 

enrolled for the explicit purpose of 

petitioning on behalf of a porting 

employee would realize a cost savings 

for verifying the identity and work 

authorization of all their newly hired 

employees, including any new H–2A 

workers as a result of this proposed rule. 

For employers currently enrolled in EVerify that choose to hire an H–2A 

worker, the proposed rule would not 

result in a cost savings to such 

employers since they already must use 

E-Verify for all newly hired employees 

as of the date they signed the E-Verify 

Memorandum of Understanding 


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177See DHS, About E-Verify, Questions and 

Answers (last updated Sept. 15, 2022), https://

www.e-verify.gov/about-e-verify/questions-andanswers?tid=All&page=0. 178See DHS, Enrolling in E-Verify, The 

Enrollment Process (last updated Aug. 9, 2022), 

https://www.e-verify.gov/employers/enrolling-in-everify/the-enrollment-process. 179An employer that discriminates in its use of 

E-Verify based on an individual’s citizenship status 

or national origin may also violate the INA’s antidiscrimination provision, at 8 U.S.C. 1324b. 180See USCIS, The E-Verify Memorandum of 

Understanding for Employers (June 1, 2013), http:// 

www.uscis.gov/sites/default/files/USCIS/ 

Verification/E-Verify/E-Verify_Native_Documents/ 

MOU_for_E-Verify_Employer.pdf. 181The USCIS Office of Policy and Strategy, PRA 

Compliance Branch estimates the average time 

burdens. See PRA E-Verify Program (OMB Control 

Number 1615–0092) (Mar. 30, 2021). The PRA 

Supporting Statement can be found at https://

www.reginfo.gov/public/do/

PRAViewDocument?ref_nbr=202103-1615-015, 

under Question 12 (Last accessed Apr. 4, 2023). 182 Id. 183See BLS, Occupational Employment and 

Wages, May 2022, Human Resources Specialist (13– 

1071), https://www.bls.gov/oes/2022/may/ 

oes131071.htm. 

184The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) = $42.48/ 

$29.32 = 1.45 (rounded). See BLS, Economic News 

Release, Employer Cost for Employee 

Compensation—December 2021, Table 1. Employer 

costs per hour worked for employee compensation 

and costs as a percent of total compensation: 

Civilian workers, by major occupational and 

industry group (Mar. 17, 2023), https://

www.bls.gov/news.release/archives/ecec_

03172023.pdf. 

185Calculation: $35.13 average hourly wage rate 

for HR specialists × 1.45 benefits-to-wage multiplier 

= $50.94 (rounded). 

186Calculation: 2.26 hours for the enrollment 

process × $50.94 total compensation wage rate for 

an HR specialist = $115.12. 

187The USCIS Office of Policy and Strategy, PRA 

Compliance Branch estimates the average time 

burdens. See PRA E-Verify Program (OMB Control 

Number 1615–0092), March 30, 2021. The PRA 

Supporting Statement can be found at https://

www.reginfo.gov/public/do/

PRAViewDocument?ref_nbr=202103-1615-015 

under Question 12 (Last accessed Apr. 4, 2023) 

188Calculation: 0.121 hours to submit a query × 

$50.94 total compensation wage rate for an HR 

specialist = $6.57 (rounded). 

(MOU).177 Therefore, with or without 

the proposed rule, an employer already 

enrolled in E-Verify that chooses to hire 

a porting H–2A worker would continue 

to incur the opportunity cost of time to 

confirm the employment authorization 

of any newly hired employees. 

Participating in E-Verify and 

remaining in good standing requires 

employers to enroll in the program 

online,178 electronically sign the 

associated MOU with DHS that sets the 

terms and conditions for participation 

and create E-Verify cases for all newly 

hired employees. The MOU requires 

employers to abide by lawful hiring 

procedures and to ensure that no 

employee will be unfairly discriminated 

against as a result of E-Verify.179 If an 

employer violates the terms of this 

agreement, it can be grounds for 

immediate termination from E-Verify.180

Additionally, employers are required to 

designate and register at least one 

person that serves as an E-Verify 

administrator on their behalf. 

For this analysis, DHS assumes that 

each employer participating in E-Verify 

designates one HR specialist to manage 

the program on its behalf. Based on the 

most recent Paperwork Reduction Act 

(PRA) Information Collection Package 

for E-Verify, DHS estimates the time 

burden for an HR specialist to undertake 

the tasks associated with E-Verify. DHS 

estimates the time burden for an HR 

specialist to complete the enrollment 

process is 2 hours 16 minutes (2.26 

hours), on average, to provide basic 

company information, review and sign 

the MOU, take a new user training, and 

review the user guides.181 Once enrolled 

in E-Verify, DHS estimates the time 

burden is 1 hour to users who may 

participate in voluntary webinars and 

learn about and incorporate new 

features and system updates to E-Verify 

annually.182 This may be an 

overestimate in some cases as webinars 

are not mandatory, but we recognize 

that some recurring burden to users 

exists to remain in good standing with 

E-Verify. 

Cost savings due to this provision 

relate only to the opportunity costs of 

time to petitioners associated with the 

time an employer would save by not 

newly enrolling or participating in EVerify. In this analysis, DHS uses an 

hourly compensation rate for estimating 

the opportunity cost of time for an HR 

specialist. DHS uses this occupation as 

a proxy for those who might prepare 

and complete the Form I–9, 

Employment Eligibility Verification, 

and create the E-Verify case for an 

employer. DHS notes that not all 

employers may have an HR specialist, 

but rather some equivalent occupation 

may prepare and complete the Form I– 

9 and create the E-Verify case. 

According to Bureau of Labor 

Statistics (BLS) data, the average hourly 

wage rate for HR specialists is $35.13.183

DHS accounts for worker benefits by 

calculating a benefits-to-wage multiplier 

using the most recent BLS report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates the 

benefits-to-wage multiplier is 1.45 and, 

therefore, is able to estimate the full 

opportunity cost per E-Verify user, 

including employee wages and salaries 

and the full cost of benefits such as paid 

leave, insurance, and retirement, etc.184

Therefore, DHS calculates an average 

hourly compensation rate of $50.94 for 

HR specialists.185 Applying this average 

hourly compensation rate to the 

estimated time burden of 2.26 hours for 

the enrollment process, DHS estimates 

an average opportunity cost of time 

savings for a new employer to enroll in 

E-Verify is $115.12.186 DHS assumes the 

estimated opportunity cost of time to 

enroll in E-Verify is a one-time cost to 

employers. In addition, DHS estimates 

an opportunity cost of time savings 

associated with 1 hour of each E-Verify 

user to attend voluntary webinars and 

learn about and incorporate new 

features and system changes for newly 

enrolled entities would be $50.94 

annually in the years following 

enrollment. 

Newly enrolled employers would also 

incur opportunity costs of time savings 

from not having to enter employee 

information into E-Verify to confirm 

their identity and employment 

authorization. DHS estimates the time 

burden for an HR specialist to create a 

case in E-Verify is 7.28 minutes (or 

0.121 hours).187 Therefore, DHS 

estimates the opportunity cost of time 

savings would be approximately $6.57 

per case.188 These employers would not 

be able to verify the employment 

eligibility information of newly hired 

employees against government data 

systems if they fail to register and use 

E-Verify. 

Table 6 shows the number of Form I– 

129 H–2A petitions filed for extensions 

of stay due to change of employer and 

Form I–129 H–2A petitions filed for 

new employment for FY 2018 through 

FY 2022. The average rate of extension 

of stay due to change of employer 

compared to new employment was 

approximately 6.7 percent over this time 

period. USCIS also considered the 

number of beneficiaries that correspond 

to the Form I–129 H–2A petitions that 

filed extensions of stay due to a change 

of employer to estimate the average 

number of beneficiaries per petition of 

six. Table 6 also shows that although 

petitions have been increasing for 

extension of stay due to change of 

employer, the number of beneficiaries 

on each petition has declined from FY 

2018 to FY 2022. This indicates that it 

may be harder for petitioners to find 

porting workers. One reason may be 

because petitioners face certain 

constraints such as the ability for 

petitioners to access workers seeking to 

port or a limited number of workers 

seeking to port. 


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65086 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules 

189See DOL, H–2A Application for Temporary 

Employment Certification Form ETA–9142A (OMB 

Control Number 1205–0466), Expires Oct. 31, 2025. 

The PRA Supporting Statement can be found at 

https://www.reginfo.gov/public/do/

PRAViewDocument?ref_nbr=202303-1205-002 

under Question 12 (Last accessed Apr. 4, 2023); see 

also DOL, Supplementary Documents, Appendix— 

Breakdown of Hourly Burden Estimates, H–2A 

Application for Temporary Employment 

Certification Form ETA–9142A (OMB Control 

Number 1205–0537), Id. at Section C. (Last accessed 

Apr. 4, 2023). DOL estimates the time burden for 

completing Form ETA–9142A is 3.63 hours, 

including 0.33 hours to complete Form ETA– 

9142A, 1.33 hours to H–2ALC Filing Requirements, 

0.50 hours to complete Waiver for Emergency 

Situations, 0.25 hours to complete Modify 

Application/Job Order, 0.50 hours to complete 

Amend Application/Job Order, and 0.50 hours to 

complete Herder Variance Request. 

190Calculations: HR specialist: $50.94 hourly 

wage × 3.63 hours = $184.91 (rounded), In-house 

lawyer: $114.17 hourly wage × 3.63 hours = $414.44 

(rounded); Out-sourced lawyer = $196.85 hourly 

wage × 3.63 hours = $714.57 (rounded). 

191Calculation: $115.12 enrollment + $50.94 

annual training + $6.57 query submission = 

$172.63. 

192 DHS recognizes that the opportunity cost of 

time would be higher than this absolute minimum 

because employers would have more than one 

employee and E-Verify participants are required to 

query every employee. 

193See Exercise of Time-Limited Authority To 

Increase the Numerical Limitation for FY 2023 for 

the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers, 87 FR 

76816 (Dec. 15, 2022). 

194 Id. 

195On May 14, 2020, a final rule published to 

temporarily amend its regulations to allow H–2B 

workers to immediately work for any new H–2B 

employer to mitigate the impact on nonagricultural 

services or labor essential to the U.S. food supply 

chain due to COVID–19. Since the analysis is based 

on annual fiscal years, data from the months 

between May and September 2020 are not able to 

be separated out to determine those early impacts 

on portability. See Temporary Changes to 

Requirements Affecting H–2B Nonimmigrants Due 

to the COVID–19 National Emergency, 85 FR 28843 

(May 14, 2020). 

TABLE 6—NUMBER OF FORM I–129 H–2A PETITIONS AND BENEFICIARIES FILED FOR EXTENSION OF STAY DUE TO

CHANGE OF EMPLOYER AND FORM I–129 H–2A PETITIONS FILED FOR NEW EMPLOYMENT, FY 2018—FY 2022 

Fiscal year 

Form I–129 

H–2A 

petitions filed 

for extension 

of stay due to 

change of 

employer 

Form I–129 

H–2A 

petitions filed 

for new 

employment 

Rate of 

extension to 

stay due to 

change of 

employer 

filings relative 

to new 

employment 

filings 

Number of 

beneficiaries 

corresponding 

to Form I–129 

H–2A 

extension of 

stay petitions 

filed 

Average 

number of 

beneficiaries 

per petition 

filed for 

extension of 

stay due to 

change of 

employer 

A B C = A/B D E = D/A 

2018 ..................................................................................... 425 10,841 0.039 3,566 8 

2019 ..................................................................................... 626 12,177 0.051 4,265 7 

2020 ..................................................................................... 915 12,989 0.070 5,995 7 

2021 ..................................................................................... 1,334 15,128 0.088 7,226 5 

2022 ..................................................................................... 1,526 18,093 0.084 7,250 5 

Total .............................................................................. 4,826 69,228 ........................ 28,302 ........................

5-year Average .................................................................... 965 13,846 0.067 5,660 6 

Source: USCIS, Office of Policy and Strategy—C3, ELIS USCIS Data System, as of Oct. 18, 2022 and USCIS Analysis. 

DHS expects that existing H–2A 

petitioners would continue to 

participate in E-Verify and would thus 

not realize a cost savings due to this 

proposed rule. For employers that do 

not yet port H–2A workers but do obtain 

TLCs from DOL, they would experience 

a cost-savings relevant to avoiding 

enrollment and participation in E-Verify 

but would not be able to verify the 

employment eligibility information of 

newly hired employees against 

government data systems. However, for 

employers that do not yet port H–2A 

workers and do not yet obtain TLCs, the 

cost-savings would be offset by their 

need to submit DOL’s Employment and 

Training Administration (ETA) Form 

9142A. The public reporting burden for 

Form ETA–9142A is estimated to 

average 3.63 hours per response for H– 

2A.189 Depending on the filer, the cost 

to submit Form ETA–9142A is 

estimated at $184.91 for an HR 

specialist, $414.44 for an in-house 

lawyer, and $ 714.57 for an out-sourced 

lawyer.190 Compared to the absolute 

minimum opportunity cost of time to 

enroll in, participate in an hour of 

training, and submit one query in EVerify of $172.63,191 regardless of the 

filer, a new H–2A porting employer 

needing to obtain TLCs would not 

experience a cost-savings in the first 

year following this rule.192

By removing the requirement for a 

petitioner to participate in E-Verify in 

order to benefit from portability, this 

provision may result in some increased 

demand for H–2A petitioners to apply to 

port eligible H–2A workers. DHS 

expects H–2A petitioners that already 

hire porting H–2A beneficiaries to 

continue to use E-Verify in the future. 

However, DHS is unable to estimate the 

number of future employers that would 

opt not to enroll in E-Verify in the 

future as a result of this rule or how 

many would need to obtain TLCs. DHS 

does not expect any reduction in 

protection to the legal workforce as a 

result of this rule as some H–2A 

petitioners would continue to use EVerify. Any new petitioners for porting 

H–2A workers would still be required to 

obtain TLCs through DOL, these H–2A 

employers would be subject to the site 

visit requirements and comply with the 

terms and conditions of H–2 

employment set forth in this NPRM and 

under other related regulations, and the 

porting worker would have already been 

approved to legally work in the United 

States as an H–2A worker. 

Temporary portability for H–2B 

workers has been provided as recently 

as the FY 2023 H–2B Supplemental Cap 

temporary final rule (TFR) and was 

available under previous supplemental 

caps dating back to FY 2021.193

However, data show that there is a 

longer history of extensions of stay due 

to changes of employer for H–2B 

petitions filed even in years when 

portability was not authorized.194 Since 

it is difficult to isolate the impacts of 

inclusion of temporary portability 

provisions in the FY 2021 through FY 

2023 H–2B Supplemental Cap TFRs 

from the extensions of stay due to 

changes of employer that would be 

expected in the absence of this proposed 

provision, we reproduce the FY 2023 H– 

2B Supplemental Cap TFR’s analysis 

here.195 Additionally, USCIS is unclear 

how many additional H–2B visas 

Congress would allocate in future fiscal 


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196This number may overestimate H–2B workers 

who have already completed employment and 

departed and may underestimate H–2B workers not 

reflected in the current cap and long-term H–2B 

workers. In FY 2021, USCIS approved 735 requests 

for change of status to H–2B, and Customs and 

Border Protection (CBP) processed 1,341 crossings 

of visa-exempt H–2B workers. See USCIS, 

Characteristics of H–2B Nonagricultural Temporary 

Workers FY2021 Report to Congress, https://

www.uscis.gov/sites/default/files/document/ 

reports/H-2B-FY21-Characteristics-Report.pdf (Mar. 

10, 2022). DHS assumes some of these workers, 

along with current workers with a valid H–2B visa 

under the cap, could be eligible to port under this 

new provision. DHS does not know the exact 

number of H–2B workers who would be eligible to 

port at this time but uses the cap and supplemental 

cap allocations as a possible proxy for this 

population. 

197USCIS, Office of Performance and Quality, 

SAS PME C3 Consolidated, data queried October 

2022, TRK 10638. 198USCIS, Office of Performance and Quality, 

SAS PME C3 Consolidated, data queried October 

2022, TRK 10638. 199Calculation, Step 1: 1,113 Form I–129 

petitions for extension of stay due to change of 

employer FY 2021 + 1,791 Form I–129 petitions for 

extension of stay due to change of employer in FY 

2022 = 2,904 Form I–129 petitions filed extension 

of stay due to change of employer in portability 

provision years. 

Calculation, Step 2: 7,207 Form I–129 petitions 

filed for new employment in FY 2021 + 9,233 Form 

I–129 petitions filed for new employment in FY 

2022 = 16,440 Form I–129 petitions filed for new 

employment in portability provision years. 

Calculation, Step 3: 2,904 extensions of stay due 

to change of employment petitions/16,440 new 

employment petitions = 17.7 percent rate of 

extension of stay due to change of employment to 

new employment. 

200Calculation for expected petitions: 66,000 

beneficiaries allowed by the annual statutory cap/ 

15.01 historical average of beneficiaries per petition 

= 4,398 Forms I–129 filed due to the rule’s 

portability provision (rounded). 

201Calculation: 4,398 Form I–129 H–2B petitions 

filed for new employment × 10.5 percent = 462 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, no portability provision. 

202Calculation: 4,398 Form I–129 H–2B petitions 

filed for new employment × 17.7 percent = 778 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, with a portability provision. 

years beyond the 66,000 statutory cap 

for H–2B nonimmigrants. 

The population affected by this 

provision are nonimmigrants in H–2B 

status who are present in the United 

States and the employers with valid 

TLCs seeking to hire H–2B workers. In 

the FY 2023 H–2B Supplemental Cap 

TFR, USCIS uses the population of 

66,000 H–2B workers authorized by 

statute and the 64,716 additional H–2B 

workers authorized by the rule as a 

proxy for the H–2B population that 

could be currently present in the United 

States.196 USCIS uses the number of 

Form I–129 petitions filed for extension 

of stay due to change of employer 

relative to the number of petitions filed 

for new employment from FY 2011 

though FY 2020. This includes the 10 

years prior to the implementation of the 

first portability provision in an H–2B 

Supplemental Cap TFR. Using these 

data, we estimate the baseline rate and 

compare it to the average rate from FY 

2011 through FY 2020 (Table 7). We 

find that the average rate of extension of 

stay due to change of employer 

compared to new employment from FY 

2011 through FY 2020 is approximately 

10.5 percent. 

TABLE 7—NUMBERS OF FORM I–129 H–2B PETITIONS FILED FOR EXTENSION OF STAY DUE TO CHANGE OF EMPLOYER

AND FORM I–129 H–2B PETITIONS FILED FOR NEW EMPLOYMENT, FY 2011 THROUGH FY 2020 

Fiscal year 

Form I– 

129 H–2B 

petitions 

filed for 

extension 

of stay 

due to 

change of 

employer 

Form I– 

129 H–2B 

petitions 

filed for 

new employment 

Rate of 

extension 

to stay 

due to 

change of 

employer 

filings relative to 

new employment 

filings 

2011 ..................................................................................................................................................................... 360 3,887 0.093 

2012 ..................................................................................................................................................................... 293 3,688 0.079 

2013 ..................................................................................................................................................................... 264 4,120 0.064 

2014 ..................................................................................................................................................................... 314 4,666 0.067 

2015 ..................................................................................................................................................................... 415 4,596 0.090 

2016 ..................................................................................................................................................................... 427 5,750 0.074 

2017 ..................................................................................................................................................................... 556 5,298 0.105 

2018 ..................................................................................................................................................................... 744 5,136 0.145 

2019 ..................................................................................................................................................................... 812 6,251 0.130 

2020 ..................................................................................................................................................................... 804 3,997 0.201 

FY 2011 through FY 2020 Total .......................................................................................................................... 4,990 47,389 0.105 

Source: USCIS, Office of Performance and Quality—SAS PME C3 Consolidated, as of Oct. 10, 2022, TRK 10638 

In FY 2021, the first year an H–2B 

Supplemental Cap TFR included a 

portability provision, there were 1,113 

petitions filed using Form I–129 for 

extension of stay due to change of 

employer compared to 7,207 petitions 

filed for new employment.197 In FY 

2022, there were 1,791 petitions filed 

using Form I–129 for extension of stay 

due to change of employer compared to 

9,233 petitions filed for new 

employment.198 Over the period when a 

portability provision was in place for H– 

2B workers, the rate of petitions filed 

using Form I–129 for extension of stay 

due to change of employer relative to 

new employment was 17.7 percent.199

This is above the 10.5 percent rate of 

filings expected when there was no 

portability provision in place. We 

estimate that a rate of about 17.7 percent 

should be expected in periods with a 

portability provision in a H–2B 

Supplemental Cap TFR that provides an 

additional allocation of visas. Using 

4,398 as our estimate for the number of 

petitions filed using Form I–129 for H– 

2B new employment in FY 2023, we 

estimate that 462 petitions for extension 

of stay due to change of employer would 

be filed in absence of this rulemaking’s 

portability provision. 200 201 With the 

rule’s portability provision in effect, we 

estimate that 778 petitions would be 

filed using Form I–129 for extension of 

stay due to change of employer.202 As a 

result of this provision, we estimate 316 

additional petitions using Forms I–129 

would be filed.203 As shown in Table 12 


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203Calculation: 778 estimated number of Form I– 

129 H–2B petitions filed for extension of stay due 

to change of employer, with a portability 

provision—462 estimated number of Form I–129 H– 

2B petitions filed for extension of stay due to 

change of employer, no portability provision = 316 

Form I–129 H–2B petition increase as a result of 

portability provision. 

204Calculation, Lawyers: 316 additional Form I– 

129 due to portability provision × 45.84 percent of 

Form I–129 for H–2B positions filed by an attorney 

or accredited representative = 145 (rounded) 

estimated Form I–129 filed by a lawyer. 

Calculation, HR specialist: 316 additional Form 

I–129 due to portability provision—145 estimated 

Form I–129 filed by a lawyer = 171 estimated Form 

I–129 filed by an HR specialist. 

205Calculation: 316 Form I–129 H–2B petitions × 

93.57 percent premium processing filing rate = 296 

(rounded) Forms I–907. 

206Calculation, Lawyers: 296 Forms I–907 × 45.84 

percent filed by an attorney or accredited 

representative = 136 Forms I–907 filed by a lawyer. 

Calculation, HR specialists: 296 Forms I–907— 

136 Forms I–907 filed by lawyer = 160 Forms I–907 

filed by an HR specialist. 

207The current filing fee for Form I–129 is $460 

and employers filing H–2B petitions must submit 

an additional fee of $150. See Instructions for 

Petition for Nonimmigrant Worker Department of 

Homeland Security, USCIS Form I–129, OMB 

Control Number 1615–0009 (expires November 30, 

2025), https://www.uscis.gov/sites/default/files/ 

document/forms/i-129instr.pdf. 

208Calculation, HR Specialist: $50.94 hourly 

opportunity cost of time x 4.64-hour time burden 

for form I–129 = $236.36 estimated cost to file a 

Form I–129 H–2B petition. 

Calculation, In-house lawyer: $114.17 hourly 

opportunity cost of time × 5.47-hour time burden 

for form I–129 and Form G–28 = $624.51 estimated 

cost to file a Form I–129 H–2B petition. 

Calculation, outsourced lawyer: $196.85 hourly 

opportunity cost of time × 5.47-hour time burden 

for form I–129 and Form G–28 = $1,076.77 

(rounded) estimated cost to file a Form I–129 H–2B 

petition. 

209Calculation, HR specialist: $236.36 estimated 

cost to file a Form I–129 H–2B petition × 171 

petitions = $40,418 (rounded). 

210Calculation, In-house Lawyer: $624.51 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 × 145 petitions = 

$90,554 (rounded). 

Calculation, Outsourced Lawyer: $1,076.77 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 × 145 petitions = 

$156,132 (rounded). 

211Calculation: 316 estimated additional Form I– 

129 H–2B petitions × 93.57 percent accompanied by 

Form I–907 = 296 (rounded) additional Form I–907. 

212Calculation, Lawyers: 296 additional Form I– 

907 × 45.84 percent = 136 (rounded) Form I–907 

filed by a lawyer. Calculation, HR specialists: 296 

Form I–907—136 Form I–907 filed by a lawyer = 

160 Form I–907 filed by an HR specialist. 

213Calculation, HR Specialist: $50.94 hourly 

opportunity cost of time x 0.58-hour time burden 

to file Form I–907 = $29.55 cost to file Form I–907. 

Calculation, In-house lawyer: $114.17 hourly 

opportunity cost of time x 0.58-hour time burden 

to file Form I–907 = $66.22 cost to file Form I–907. 

Calculation, outsourced lawyer: $196.85 hourly 

opportunity cost of time x 0.58-hour time burden 

to file Form I–907 = $114.17 cost to file Form I– 

907. 

214Calculation, HR specialist: $29.55 to file a 

Form I–907 × 160 forms = $4,728 (rounded). 

215Calculation, In-house lawyer: $66.22 to file a 

Form I–907 × 136 forms = $9,006 (rounded). 

Calculation for an outsourced lawyer: $114.17 to 

file a Form I–907 × 136 forms = $15,527 (rounded). 

216Calculation for HR specialists and in-house 

lawyers: $40,418 for HR specialists to file Form I– 

129 H–2B petitions + $90,554 for in-house lawyers 

to file Form I–129 and the accompanying Form G– 

28 + $4,728 for HR specialists to file Form I–907 

+ $9,006 for in-house lawyers to file Form I–907 = 

$144,706. 

Calculation for HR specialists and outsourced 

lawyers: $40,418 for HR specialists to file Form I– 

129 H–2B petitions + $156,132 for outsourced 

lawyers to file Form I–129 and the accompanying 

Form G–28 + $4,728 for HR specialists to file Form 

I–907 + $15,527 for outsourced lawyers to file Form 

I–907 = $216,805. 

217See Instructions for Petition for Nonimmigrant 

Worker Department of Homeland Security, USCIS 

Form I–129, OMB Control Number 1615–0009 

(expires Nov. 30, 2025), https://www.uscis.gov/ 

sites/default/files/document/forms/i-129instr.pdf; 

see also INA sec. 214(c)(13), 8 U.S.C. 1184(c)(13). 

218Calculation: 316 petitions × $610 per petition 

= $192,760. 

219See Instructions for Request for Premium 

Processing Service, USCIS Form I–907, OMB 

Control Number 1615–0048 (expires Nov. 30, 2022), 

45.84 percent of petitions using Form I– 

129 will be filed by an in-house or 

outsourced lawyer. Therefore, we expect 

that a lawyer would file 145 of these 

petitions and an HR specialist would 

file the remaining 171.204 Similarly, we 

estimated that about 93.57 percent of 

petitions using Form I–129 for H–2B 

beneficiaries are filed with Form I–907 

to request premium processing. As a 

result of this portability provision, we 

expect that an additional 296 requests 

using Form I–907 would be filed.205 We 

expect lawyers to file 136 requests using 

Forms I–907 and HR specialists to file 

the remaining 160 requests.206

Petitioners seeking to hire H–2B 

nonimmigrants who are currently 

present in the United States in lawful 

H–2B status would need to file Form I– 

129 and pay the associated fees.207

Additionally, if a petitioner is 

represented by a lawyer, the lawyer 

must file Form G–28; if premium 

processing is desired, a petitioner must 

file Form I–907 and pay the associated 

fee. We expect these actions to be 

performed by an HR specialist, in-house 

lawyer, or an outsourced lawyer. 

Moreover, as previously stated, we 

expect that about 45.84 percent of 

petitions using Form I–129 would be 

filed by an in-house or outsourced 

lawyer. Therefore, we expect that 145 

petitions would be filed by a lawyer and 

the remaining 171 petitions would be 

filed by an HR specialist. The 

opportunity cost of time to file a Form 

I–129 H–2B petition would be $236.36 

for an HR specialist; and the 

opportunity cost of time to file a Form 

I–129 H–2B petition with accompanying 

Form G–28 would be $624.51 for an inhouse lawyer and $1,076.77 for an 

outsourced lawyer.208 Therefore, we 

estimate the cost of the additional 

petitions filed using Form I–129 from 

the portability provision for HR 

specialists would be $40,418.209 The 

estimated cost of the additional 

petitions filed using Form I–129 

accompanied by Forms G–28 from the 

portability provision for lawyers would 

be $90,554 if filed by in-house lawyers 

and $156,132 if filed by outsourced 

lawyers.210

We previously stated that about 93.57 

percent of Form I–129 H–2B petitions 

are filed with Form I–907 for premium 

processing. As a result of this provision, 

we expect that an additional 296 

requests for premium processing using 

Form I–907 will be filed.211 We expect 

136 of those requests would be filed by 

a lawyer and the remaining 160 would 

be filed by an HR specialist.212 The 

estimated opportunity cost of time to 

file Form I–907 would be about $29.55 

for an HR specialist; and the estimated 

opportunity cost of time for an in-house 

lawyer to file Form I–907 would be 

approximately $66.22 and for an 

outsourced lawyer it would be about 

$114.17.213 The estimated annual cost of 

filing additional requests for premium 

processing using Form I–907 if HR 

specialists file would be approximately 

$4,728.214 The estimated annual cost of 

filing additional requests for premium 

processing using Form I–907 would be 

about $9,006 if filed by in-house 

lawyers, and approximately $15,527 if 

filed by outsourced lawyers.215

The estimated annual cost of this 

provision ranges from $144,706 to 

$216,805 depending on what share of 

the forms are filed by in-house or 

outsourced lawyers.216

The transfer payments from filing 

petitions using Form I–129 for an H–2B 

beneficiary include the filing costs to 

submit the form. The current filing fee 

for Form I–129 is $460 plus an 

additional fee of $150 for employers 

petitioning for H–2B beneficiaries.217

These filing fees are not a cost to society 

or an expenditure of new resources but 

a transfer from the petitioner to USCIS 

in exchange for agency services. USCIS 

anticipates that petitioners would file an 

additional 316 petitions using Form I– 

129 due to the portability provision in 

the proposed rule. The annual value of 

transfers from petitioners to the 

Government for filing Form I–129 due to 

the proposed rule would be 

approximately $192,760.218

Additionally, employers may use 

Form I–907 to request premium 

processing of Form I–129 petitions for 

H–2B visas. The current filing fee for 

Form I–907 to request premium 

processing for H–2B petitions is 

$1,500.219 Based on historical trends, 


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https://www.uscis.gov/sites/default/files/document/ 

forms/i-907instr.pdf. 

220Calculation: 316 petitions × 93.57 Form I–907 

rate = 296 Forms I–907 (rounded). 

221Calculation: $1,500 per petition × 296 Forms 

I–907 = $444,000. 

222Calculation: $192,760 + $444,000 = $636,760. 

223 It is possible that the combination of porting 

workers and workers availing themselves of 

increased grace periods may increase tax transfers 

from workers to the Federal Government. DHS 

cannot estimate the magnitude of these transfers, 

however, because of a lack of detailed data 

regarding the workers utilizing these provisions 

separately or jointly. 

224See Instructions for Petition for Nonimmigrant 

Worker Department of Homeland Security, USCIS 

Form I–129, OMB Control Number 1615–0009 

(expires November 30, 2025), https://

www.uscis.gov/sites/default/files/document/forms/ 

i-129instr.pdf. 

225Country of citizenship data is available for 

about 20 percent of the H–2A category but not for 

the H–2B category. For consistency and because 

there is slightly more data available, we use country 

of birth data in this analysis. 

226The most recent publication of the eligible 

countries lists for H–2A and H–2B visa programs 

was published on November 10, 2022. See 

Identification of Foreign Countries Whose Nationals 

Are Eligible To Participate in the H–2A and H–2B 

Nonimmigrant Worker Programs, 87 FR 67930 (Nov. 

10, 2022). For the purpose of this analysis, we rely 

on the eligible countries lists from 2021 because we 

have data from FY 2022 that would include any 

impacts of that prior lists on the behavior of 

petitioners and their beneficiaries. 

227See Identification of Foreign Countries Whose 

Nationals Are Eligible to Participate in the H–2A 

and H–2B Nonimmigrant Worker Programs, 87 FR 

67930 (Nov. 10, 2022). 

228See USCIS, Calculating Interrupted Stays for 

the H–2 Classifications, What do I need to know if 

I choose to file separate petitions for H–2 workers? 

(May 6, 2020), https://www.uscis.gov/working-inthe-united-states/temporary-workers/h-2aagricultural-workers/calculating-interrupted-staysfor-the-h-2-classifications. 

229See Instructions for Petition for Nonimmigrant 

Worker Department of Homeland Security, USCIS 

Form I–129, OMB Control Number 1615–0009 

(expires Nov. 30, 2025), https://www.uscis.gov/ 

sites/default/files/document/forms/i-129instr.pdf. 

DHS expects that 93.57 percent of 

petitioners would file a Form I–907 with 

Form I–129. Applying that rate to the 

expected number of filings of Form I– 

129 petitions would result in 296 

requests for premium processing using 

Form I–907 filed due to the rule.220 We 

estimate that the annual transfers from 

petitioners to the Federal Government 

related to filing Form I–907 due to the 

rule would be approximately 

$444,000.221 The undiscounted annual 

transfers from petitioners to the Federal 

Government due to the rule are 

$636,760.222 223

Portability is a benefit to employers 

that cannot find U.S. workers, and as an 

additional flexibility for H–2 employees 

seeking to begin work with a new H–2 

employer. This rule would allow 

petitioners to immediately employ 

certain H–2 workers who are present in 

the United States in H–2 status without 

waiting for approval of the H–2 petition. 

DHS welcomes public comments on 

the annual time burden associated with 

users remaining in good standing with 

E-Verify as well as the impacts of 

permanent portability on H–2 

petitioners and beneficiaries. 

c. Improving H–2 Program Efficiencies 

and Reducing Barriers to Legal 

Migration 

This section is divided into two 

subheadings where each provision and 

its expected impacts are discussed. 

DHS’s proposals include the following: 

(1) removing the eligible countries lists; 

and (2) eliminating the calculation of 

interrupted stays and reducing the 

period of absence that would reset an 

individual’s 3-year maximum period of 

stay. 

(1) Eligible Countries Lists 

USCIS is proposing to remove the lists 

that designate certain countries as 

eligible to participate in the H–2 

programs. Currently, nationals of 

countries that are not eligible to 

participate in the H–2 programs may 

still be named as beneficiaries on an H– 

2A or H–2B petition. However, 

petitioners must: (1) name each 

beneficiary who is not from an eligible 

country; and (2) provide evidence to 

show that it is in the U.S. interest for the 

individual to be the beneficiary of such 

a petition. USCIS also recommends that 

H–2A and H–2B petitions for workers 

from countries not listed on the 

respective eligible countries lists be 

filed separately.224

To understand the population of 

beneficiaries who come from countries 

not on the eligible countries lists and 

the petitioners who apply for these 

workers, we considered historical data 

from FY 2013 through FY 2022 on the 

beneficiary country of birth for both H– 

2A and H–2B receipts by fiscal year.225

The data are extremely limited, with an 

average of 77 percent and 75 percent of 

H–2A and H–2B receipts, respectively, 

missing the beneficiary country of birth. 

Data are primarily limited because of 

the high percentage of H–2 petitions 

filed requesting unnamed beneficiaries. 

Additionally, this data is input 

manually, with only certain fields 

entered. Country of birth is not a 

mandatory field and tends to be blank. 

On the eligible countries lists 

published November 10, 2021, FY 

2022 226 data did not identify any H–2A 

beneficiaries with a country of birth 

from 55 of 85 eligible countries.227

Additionally, 30 petitions with 141 

beneficiaries from 12 countries were not 

on the eligible countries list. Of the 86 

eligible countries for H–2B 

beneficiaries, the FY 2022 data did not 

identify any beneficiaries with a country 

of birth from 43 of these countries. It 

also showed that there was only a total 

of 12 petitions with 79 beneficiaries 

from five countries not on the eligible 

countries list. 

From these limited data, we can see 

that USCIS does receive petitions for 

beneficiaries outside of those on the 

eligible countries lists. However, it is 

unclear if the lists may act as a deterrent 

with the additional burden on 

petitioners. The data provide some 

insight into the potential concentration 

of H–2 visas in FY 2022, where the 

greatest number of petitions had 

beneficiaries listed with Mexico as their 

country of birth (1,628 petitions and 

30,075 H–2A beneficiaries, and 1,523 

petitions and 21,136 H–2B beneficiaries, 

respectively). However, because only 

about 12 percent of H–2A beneficiaries 

and 29 percent of H–2B beneficiaries in 

FY 2022 had a country of birth listed, 

it is difficult to draw any strong 

conclusions. 

As stated earlier, USCIS recommends 

that H–2A and H–2B petitions for 

workers from countries not listed on the 

respective eligible countries lists be 

filed separately. USCIS does not have 

data on the number of H–2 employers 

that file petitions separately for workers 

from countries not listed on the 

respective eligible countries lists from 

those on the eligible countries lists. For 

those that file separately, though, this 

proposed provision would result in 

saved fees.228 The current base fee to 

file Form I–129 is $460. Employers 

filing H–2B petitions must also submit 

an additional fee of $150. Therefore, 

employers currently filing separate 

petitions could save $460 per H–2A 

petition and $610 ($460 + $150) per H– 

2B petition.229

To produce the eligible countries lists 

each year, several DHS components and 

agencies provide data, collaboration, 

and research. For DHS, this includes 

months of work to gather 

recommendations and information from 

offices across U.S. Immigration and 

Customs Enforcement (ICE), CBP, and 

USCIS, compile statistics, and cooperate 

closely with DOS. Research in these 

efforts focuses on topics including 

overstays, fraud, human trafficking 

concerns, and more. However, some of 

the work involved in creating the 

eligible countries lists is duplicative, 

time-consuming, and limited in its 

response to ever-changing global 

dynamics. For example, DOS already 

performs regular national interest 

assessments and would not approve H– 


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230USCIS officers use the term ‘‘interrupted stay’’ 

when adjudicating extension of stay requests in the 

H–2A and H–2B nonimmigrant classifications. It 

refers to certain periods of time an H–2 worker 

spends outside the United States during an 

authorized period of stay that do not count toward 

the noncitizen’s maximum 3-year limit in the 

classification. See USCIS, Calculating Interrupted 

Stays for the H–2 Classifications (May 6, 2020), 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-2a-agricultural-workers/ 

calculating-interrupted-stays-for-the-h-2- 

classifications. 231See DOL, H–2A Temporary Labor Certification 

for Agriculture Workers (‘‘The need for the work 

must be seasonal or temporary in nature [. . .] 

normally lasting 10 months or less’’ for H–2A 

Temporary Certification For Agriculture Workers), 

https://flag.dol.gov/programs/H-2A (last visited 

May 31, 2023); DOL, H–2B, Temporary Labor 

Certification for Non-Agriculture Workers (‘‘The 

employer’s job opportunities must be. . . 

[t]emporary (9 months or less, except one-time 

occurrences)’’), https://flag.dol.gov/programs/H-2B 

(last visited May 31, 2023). DOL regulations at 20 

CFR 655.6(b) limit an H–2B period of need to 9 

months, except where the employer’s need is based 

on a one-time occurrence, but due to an 

appropriations rider that is currently in place, DOL 

uses the definition of temporary need as provided 

in 8 CFR 214.2(h)(6)(ii)(B), which does not list a 9 

month limit. Consolidated Appropriations Act 

2023, Public Law 117–328, Division H, Title I, Sec. 

111. 

2 work visas that it deems problematic 

regardless of the country’s standing on 

the eligible countries lists. 

Benefits of this proposed provision 

include freeing up resources currently 

dedicated to publishing the eligible 

countries lists every year, which could 

be used more effectively on other 

pressing projects across DHS and DOS. 

This change would also reduce the 

burden on petitioners that seek to hire 

H–2 workers from countries not 

designated as eligible since they would 

no longer need to meet additional 

criteria showing that it is in the U.S. 

interest to employ such workers. This 

provision would also increase access to 

workers potentially available to 

businesses that utilize the H–2 

programs. 

DHS welcomes public comments on 

impacts on petitioners, beneficiaries, 

and the Federal Government resulting 

from the proposal to eliminate the 

eligible countries lists. 

(2) Eliminate Interrupted Stays and 

Reduce Period of Absence 

DHS is proposing to eliminate the 

‘‘interrupted stay’’ calculation and 

reduce the period of absence from the 

United States from 3 months to 60 days 

to reset an individual’s 3-year period of 

stay.230 Under current regulations, an 

individual’s total period of stay in H–2A 

or H–2B nonimmigrant status may not 

exceed 3 years. Currently, an individual 

who has spent 3 years in H–2A or H– 

2B status may not seek extension, 

change status, or be readmitted to the 

United States in H–2 status unless the 

individual has been outside of the 

United States for an uninterrupted 

period of 3 months. In the proposed 

rule, the total period of stay of 3 years 

would remain unchanged, but the 

period of absence that would reset an 

individual’s 3-year period of stay would 

be reduced. For ease of understanding, 

the term ‘‘clock’’ will be used in this 

section to describe the 3-year maximum 

period of stay for an H–2 worker and the 

term ‘‘absence’’ will generally be used 

in place of ‘‘interruption.’’ As critical 

context, the estimated population 

impacted by this proposed change is 

constrained because the DOL-certified 

seasonal or temporary nature of H–2A 

and H–2B labor needs means that, 

currently, most beneficiaries’ clocks are 

effectively reset each year upon 

completion of the first and only 

petitioner’s labor need and subsequent 

departure from the country. Instructions 

on DOL’s Foreign Application Gateway 

(FLAG) state that petitioners’ certified 

seasonal or temporary labor needs must 

not exceed 9 months for H–2B labor 

certifications and should not normally 

exceed 10 months for H–2A 

certifications, so there would be no 

direct impacts nor costs to an employer 

from the proposed simplifications to the 

existing definition of absence for the 

purpose of resetting the 3-year clock.231

Additionally, under this proposed 

simplification, USCIS would no longer 

recognize certain absences as an 

‘‘interrupted stay’’ for purposes of 

pausing the calculation of the 3-year 

limit of stay. Thus, if a worker leaves 

the United States for less than 60 days, 

the absence would not pause the 3-year 

maximum period of stay clock nor 

extend the timeframe in which a worker 

could work in H–2 status upon their 

return from abroad. This change to the 

calculation of interrupted stay is not 

expected to impact the two current 

subset populations of H–2A and H–2B 

workers whose accumulated stay is 18 

months or less whose clock currently 

pauses when they leave the United 

States for at least 45 days but less than 

3 months, and those whose accumulated 

stay is greater than 18 months but less 

than 3 years. Under this proposed rule, 

the 3-year clock would no longer pause, 

as it does now, when an individual 

leaves the United States for the period 

of time specified in rows 2 and 3 of 

Table 8; rather, the 3-year clock would 

now reset following an uninterrupted 

absence of 60 days, irrespective of the 

individual’s period of accumulated stay 

in the United States. 

TABLE 8—H–2 CLOCK AND ABSENCES FROM THE UNITED STATES DURING A 3-YEAR MAXIMUM PERIOD OF STAY. 

Time worked in H–2 status Current clock reset or 

interruption * 

Proposal and impact to H–2 workers and employers 

Proposed absence counted as 

reset Cost Benefit 

3 years ...................................... Reset at 3 months ................... Reset at 60 days ..................... N/A 30 fewer days required to reset 

clock. 

18 months or less ..................... Interruption pause accrues at 

45 days, but less than 3 

months.

Reset at 60 days ..................... N/A N/A. 

More than 18 months, but less 

than 3 years.

Interruption pause accrues at 2 

months, but less than 3 

months.

Reset at 60 days ..................... N/A N/A. 

Source: USCIS analysis. 

* An interruption is when the 3-year clock is paused, meaning the period of time outside the United Stated, the absence, isn’t counted towards 

3-year maximum period of stay. 

USCIS next considers a potential 

subpopulation of workers who, under 

the baseline, might port from one 

petitioning employer with a labor 

certification to a subsequent petitioner 

with a temporary labor certification 

three or more times in an effort to 

maximize earnings over the 3-year 

(1,095 days) limit. USCIS does not have 


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232See WHD, Fact Sheet #26: Section H–2A of the 

Immigration and Nationality Act (INA) (Feb. 2010), 

https://www.dol.gov/sites/dolgov/files/WHD/legacy/ 

files/whdfs26.pdf, and Fact Sheet #78C: Wage 

Requirements under the H–2B Program (Apr. 2015), 

https://www.dol.gov/sites/dolgov/files/WHD/legacy/ 

files/whdfs78c.pdf. 

233See WHD, Wages and the Fair Labor 

Standards Act, https://www.dol.gov/agencies/whd/ 

flsa (last visited Dec. 15, 2022). 

234See 29 U.S.C. 206, ‘‘Minimum wage,’’ https:// 

www.gpo.gov/fdsys/pkg/USCODE-2011-title29/ 

html/USCODE-2011-title29-chap8-sec206.htm 

(accessed Dec. 15, 2022). See also WHD, Minimum 

Wage, https://www.dol.gov/general/topic/wages/ 

minimumwage (the minimum wage in effect as of 

Dec. 15, 2022). 

235See Occupational Employment and Wage 

Estimates United States. May 2022. BLS, 

Occupational Employment Statistics program, All 

Occupations, available at https://www.bls.gov/oes/ 

2022/may/oes_nat.htm#00-0000 (last visited July 

28, 2023). 

236The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) = $42.48/ 

$29.32 = 1.450 = 1.45 (rounded). See BLS, 

Economic News Release, Employer Cost for 

Employee Compensation—December 2022, Table 1. 

Employer costs per hour worked for employee 

compensation and costs as a percent of total 

compensation: Civilian workers, by major 

occupational and industry group (Mar. 17, 2023), 

https://www.bls.gov/news.release/archives/ecec_

03172023.pdf. 

237Calculations (1) for lower bound 

compensation: $13.14 lower bound wage * 1.45 

total compensation factor = $19.05 (rounded to 2 

decimal places); (2) (($19.05 wage¥$10.51 wage)/ 

$10.51)) wage = 0.813, which rounded and 

multiplied by 100 = 81.3 percent. 

238The average wage for agricultural workers is 

found at BLS, Occupational Employment and 

Wages—May 2022 (Apr. 25, 2023), Table 1. 

National employment and wage data from the 

Occupational Employment and Wage Statistics 

survey by occupation, May 2022, https://

www.bls.gov/news.release/archives/ocwage_

04252023.pdf. 

239Calculation of the weighted mean hourly wage 

for agricultural workers: $17.04 per hour × 1.45 

benefits-to-wage multiplier = $24.71 (rounded). 

240The average wage for all occupations is found 

at BLS, Occupational Employment and Wages— 

May 2022 (Apr. 25, 2023), Table 1. National 

employment and wage data from the Occupational 

Employment and Wage Statistics survey by 

occupation, May 2022, https://www.bls.gov/ 

news.release/archives/ocwage_04252023.pdf. 

241The calculation of the weighted mean hourly 

wage for applicants: $29.76 per hour × 1.45 

benefits-to-wage multiplier = $43.15 (rounded) per 

hour. 

242USCIS did review DOL disclosure data on 

basic number of hours and found the average 

number of hours per week to be around 40 hours. 

For this reason, we assume a typical 40-hour 

workweek for both H–2A and H–2B workers for this 

analysis. 

243Calculations: E10th percentile wage (lower 

bound): 0.714 × 8 hours per day × $19.05 wage = 

$108.81 (rounded). H–2A average wage for 

agricultural workers (upper bound): 0.714 × 8 hours 

per day × $24.71 wage = $141.14 (rounded). H–2B 

average wage for all occupations (upper bound): 

0.714 × 8 hours per day × $43.15 wage = $246.47 

rounded. 

244Calculations: t10th percentile wage (lower 

bound): $108.81 × 30 days = $3,264 (rounded). H– 

2A average wage for agricultural workers (upper 

bound): $141.14 × 30 days = $4,234 (rounded). H– 

Continued 

data on the size of the H–2A or H–2B 

worker populations that currently leave 

the United States while in H–2 status or 

for how long. Without information on 

the number of workers who experience 

absences from the United States, it is 

not possible to predict additional 

impacts to the behavior of H–2 visa 

holders and the petitioners with DOLcertified seasonal or temporary labor 

needs, however, the observed rates of 

porting shown in Tables 6 and 7 suggest 

beneficiaries porting more than 3 times 

without leaving the country is small to 

non-existent at present. DOL requires 

H–2A and H–2B employers to pay 

workers at least the highest of the 

prevailing wage rate obtained from the 

ETA or the applicable Federal, State, or 

local minimum wage.232 Additionally, 

we know that the Fair Labor Standards 

Act covers requirements for all workers 

in the United States with respect to 

overtime and a job offer must always be 

consistent with Federal, State, and local 

laws.233

To estimate the potential impacts 

from a small number of H–2 workers 

choosing to provide 30 additional days 

of labor every 3 years, we first consider 

wages. The Federal minimum wage is 

currently $7.25.234 While using the 

Federal minimum wage may be 

appropriate in some instances, DHS 

recognizes that many States have higher 

minimum wage rates than the Federal 

minimum. Therefore, DHS believes that 

a more accurate and timely estimate of 

wages is available via data from the 

Department of Labor. More specifically, 

DHS uses the most recent wage data 

from DOL’s Bureau of Labor Statistics’ 

(BLS) National Occupational 

Employment and Wage Estimates. DHS 

believes that the unweighted, 10th 

percentile wage estimate for all 

occupations of $13.14 per hour is a 

reasonable lower bound for the 

population in question.235 DHS 

accounts for worker benefits by 

calculating a benefits-to-wage multiplier 

using the most recent BLS report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates the 

benefits-to-wage multiplier is 1.45 and, 

therefore, is able to estimate the full 

opportunity cost per applicant, 

including employee wages and salaries 

and the full cost of benefits such as paid 

leave, insurance, and retirement, etc.236

Although the Federal minimum wage 

could be considered a lower bound 

income for the population of interest, 

DHS calculates the total rate of 

compensation for the 10th percentile 

hourly wage is $19.05, which is 81.3 

percent higher than the Federal 

minimum wage.237

DHS does not rule out the possibility 

that some portion of H–2A and H–2B 

employees might earn more than the 

10th percentile wage, but without 

empirical information, DHS believes 

that including a range with the lower 

bound relying on the 10th percentile 

wage with benefits of $19.05 is 

justifiable for both H–2A and H–2B 

workers. For H–2A workers, DHS uses 

an upper bound wage specific to 

agricultural workers of $17.04.238 DHS 

calculates the average total rate of 

compensation for agricultural workers 

as $24.71 per hour, where the mean 

hourly wage is $17.04 per hour worked 

and average benefits are $7.67 per 

hour.239 For H–2B workers, DHS relies 

on the average wage rate for all 

occupations of $29.76 as an upper 

bound in consideration of the variance 

in average wages across professions and 

States.240 Therefore, DHS calculates the 

average total rate of compensation for all 

occupations as $43.15 per hour, where 

the mean hourly wage is $29.76 per 

hour worked and average benefits are 

$13.39 per hour.241

Since DHS calculated absences from 

the United States centered on calendar 

days, and wage estimates are 

specifically linked to hours, we apply 

the scalar developed as follows. 

Calendar days are transformed into 

workdays to account for the actuality 

that typically, 5 out of 7, or 71.4 

percent, of the calendar week is allotted 

to work-time, and that a workday is 

typically 8 hours.242 Thus, in limited 

instances, individuals resetting their 

clock at or immediately after the 1,095th 

day of the 3-year limitation may be 

afforded an opportunity to work 30 

additional calendar days, or 

approximately 21 days of H–2. DHS 

notes that some H–2 workers may work 

more days or hours per week in some 

instances. Additionally, if overtime 

hours are worked, DHS has no basis for 

which to measure the extent to which 

this may occur among these 

populations. Based on the 10th 

percentile wage (lower bound), each 

calendar day generates about $108.81 in 

relevant earnings for potential H–2 

workers. It follows that for the upper 

wage bounds that each calendar day 

generates about $141.14 per H–2A 

worker and about $246.47 per H–2B 

worker in relevant earnings.243 Over 30 

potential workdays, this equates to a 

lower bound of $3,264 in additional 

earnings with upper bounds of $4,234 

for H–2A workers and $7,394 for H–2B 

workers (see Table 9).244


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2B average wage for all occupations (upper bound): 

$246.47 × 30 days = $7,394 (rounded). 245See Quentin Fottrell, More than 44 percent of 

Americans pay no federal income tax, MarketWatch 

(Aug. 28, 2019), https://www.marketwatch.com/ 

story/81-million-americans-wont-pay-any-federalincome-taxes-this-year-heres-why-2018-04-16. 246The various employment taxes are discussed 

in more detail at https://www.irs.gov/businesses/ 

small-businesses-self-employed/understandingemployment-taxes. See Internal Revenue Service 

Publication 15, Circular E, Employer’s Tax Guide 

(Dec. 16, 2021), https://www.irs.gov/pub/irs-pdf/ 

p15.pdf, for specific information on employment 

tax rates. 

247See Federal Income Tax and FICA 

Withholding for Foreign Agricultural Workers with 

an H–2A Visa, https://www.irs.gov/pub/irs-pdf/ 

p5144.pdf (last accessed July 31, 2023). 

248Calculation: (6.2 percent Social Security + 

1.45 percent Medicare) × 2 employee and employer 

losses = 15.3 percent total estimated tax transfer 

payment to government. 

249On July 25, 2022, USCIS extended its COVID– 

19-related flexibilities for responding to RFEs 

through October 23, 2022. This provides recipients 

an additional 60 calendar days after the due date 

on an RFE to provide a response. Ultimately, while 

this flexibility may prove helpful to petitioners it 

also adds up to an additional 2 months of time to 

the adjudication process. See USCIS, USCIS 

Extends COVID–19-related Flexibilities (July 25, 

2022), https://www.uscis.gov/newsroom/alerts/ 

uscis-extends-covid-19-related-flexibilities. 

TABLE 9—EARNINGS ESTIMATES FOR H–2 WORKERS WITH 30 ADDITIONAL DAYS. 

Hourly wage Calendar 

day scalar Work hours Daily additional wages 

Additional 

wages for 

30 days 

Additional taxes 

A B C D = A × B × C E = D × 30 F = E × 15.3% 

Lower Bound ........................................................ $19.05 0.714 8 $108.81 $3,264 0 * 

H–2A Upper Bound .............................................. 24.71 .................... .................... 141.14 4,234 0 * 

H–2B Upper Bound .............................................. 43.15 .................... .................... 246.47 7,394 1,131 

Source: USCIS analysis. 

* H–2A workers and employers are not subject to U.S. social security and Medicare taxes. 

In instances where an employer with 

a DOL-certified temporary labor need 

cannot transfer the 21 days of work onto 

other H–2 workers, DHS acknowledges 

that this additional work may result in 

additional tax revenue to the 

government. It is difficult to quantify 

income tax transfers because individual 

tax situations vary widely,245 but DHS 

estimates the potential payments to 

other employment tax programs, namely 

Medicare and Social Security, which 

have a combined tax rate of 7.65 percent 

(6.2 percent and 1.45 percent, 

respectively).246 While H–2A wages are 

exempt from these taxes, H–2B wages 

are not.247 With both the employee and 

employer paying their respective 

portion of Medicare and Social Security 

taxes, the total estimated tax transfer for 

Medicare and Social Security is 15.3 

percent.248 DHS recognizes this 

quantified estimate is not representative 

of all potential tax losses by Federal, 

State, and local governments and we 

make no claims this quantified estimate 

includes all tax losses. We continue to 

acknowledge the potential for additional 

Federal, State, and local government tax 

losses in the scenario where a company 

cannot transfer additional work onto 

current employees and cannot hire 

replacement labor for the position the 

H–2 worker is absent. As seen in Table 

9, tax transfers could range from $0 for 

H–2A workers and up to $1,131 for H– 

2B workers over a 30-day period. 

One benefit of this proposed 

provision is that it would make it easier 

for DHS, petitioners and beneficiaries to 

calculate when a beneficiary reaches 

their 3-year limit on stay, irrespective of 

how long the individual has been in the 

United States in H–2 status. As 

described earlier, to accurately 

demonstrate when an individual’s limit 

on H–2 status will be reached, 

employers and workers currently need 

to monitor and document the 

accumulated time in H–2 status and 

calculate the total time in H–2 status 

across multiple time periods following 

interruptive absences. USCIS 

adjudicators must also make these same 

determinations in adjudicating H–2 

petitions with named workers to assess 

whether a beneficiary is eligible for the 

requested period of stay. No longer 

needing to monitor absences from the 

United States of less than 60 days 

simplifies calculations for employers, 

workers, and adjudicators. Additionally, 

DHS expects that USCIS adjudicators 

may issue fewer RFEs related to the 3- 

year maximum period of stay to workers 

with absences, which would reduce the 

burden on employers, workers, and 

adjudicators and save time in processing 

petitions. As shown in Table 10, RFEs 

related to the 3-year maximum period of 

stay have increased since FY 2020 for 

H–2A workers and have generally 

remained stable at between 200 to 300 

each year since FY 2020 for H–2B 

workers. 

TABLE 10—RFES RELATING TO 3- 

YEAR MAXIMUM STAY FOR H–2 

WORKERS

Fiscal year H–2A H–2B 

2018 .................................. 63 134 

2019 .................................. 53 649 

2020 .................................. 22 207 

2021 .................................. 272 292 

2022 .................................. 436 208 

Total .................................. 846 1,490 

TABLE 10—RFES RELATING TO 3- 

YEAR MAXIMUM STAY FOR H–2 

WORKERS—Continued 

Fiscal year H–2A H–2B 

5-Year Average ................ 169 298 

SOURCE: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct. 

8, 2022. 

While it is not clear how many RFEs 

are directly related to the calculation of 

interruptions while in H–2 status, as 

opposed to RFEs for those who may be 

reaching the maximum 3-year period of 

stay generally, DHS anticipates that 

eliminating the calculation for 

interrupted stays would at least render 

some RFEs unnecessary.249 This would 

in turn reduce the burden on employers, 

workers, and adjudicators associated 

with calculating interruptions and 

through subsequent RFEs and petitions 

could be processed more expeditiously. 

Collectively, Tables 6, 7, and 10 

indicate very few H–2 workers approach 

the 3-year limitation despite existing 

potential to port from certified 

temporary labor need for 3 years before 

exiting the country for 90 days. 

Nevertheless, USCIS has considered as 

an upper bound, possible additional 

earnings and related labor market 

impacts should workers already 

approaching the 3-year limit respond to 

this proposed change by working 30 

additional days at the end of their 1,095 

days or at the start of their subsequent 

3-year period. Recall that if the worker 

intended to return to their home country 

before 3-years, as most do upon 

completing their temporary labor for the 

initial petitioner, this change has no 


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250The public reporting burden for this form is 

2.34 hours for Form I–129 and an additional 2 

hours for H Classification Supplement. See 

Instructions for Petition for Nonimmigrant Worker 

Department of Homeland Security, USCIS Form I– 

129, OMB Control Number 1615–0009 (expires Nov. 

30, 2025), https://www.uscis.gov/sites/default/files/ 

document/forms/i-129instr.pdf. 251 Id. 

252For the purposes of this analysis, DHS 

assumes a human resource specialist, or some 

similar occupation, completes and files these forms 

as the employer or petitioner who is requesting the 

H–2 worker. However, DHS understands that not all 

entities have human resources departments or 

occupations and, therefore, recognizes equivalent 

occupations may prepare these petitions. 

253For the purposes of this analysis, DHS adopts 

the terms ‘‘in-house’’ and ‘‘outsourced’’ lawyers as 

they were used in ICE, Final Small Entity Impact 

Analysis: Safe-Harbor Procedures for Employers 

Who Receive a No-Match Letter, at G–4 (posted 

Nov. 5, 2008), http://www.regulations.gov/ 

document/ICEB-2006-0004-0922. The ICE analysis 

highlighted the variability of attorney wages and 

was based on information received in public 

comment to that rule. We believe the distinction 

between the varied wages among lawyers is 

appropriate for our analysis. 

254See BLS, Occupational Employment and 

Wages, May 2022, Human Resources Specialist (13– 

1071), https://www.bls.gov/oes/2022/may/ 

oes131071.htm. 

255See BLS, Occupational Employment and 

Wages, May 2022, Lawyers (23–1011), https://

www.bls.gov/oes/2022/may/oes231011.htm. 

256Calculation for the total wage of an in-house 

lawyer: $78.74 × 1.45 = $114.17 (rounded). 

257Calculation: Average hourly wage rate of 

lawyers × Benefits-to-wage multiplier for 

outsourced lawyer = $78.74 × 2.5 = $196.85 

(rounded). 

258The ICE ‘‘Safe-Harbor Procedures for 

Employers Who Receive a No-Match Letter’’ used 

a multiplier of 2.5 to convert in-house attorney 

wages to the cost of outsourced attorney based on 

information received in public comment to that 

rule. We believe the explanation and methodology 

used in the Final Small Entity Impact Analysis for 

that rule remains sound for using 2.5 as a multiplier 

for outsourced labor wages in this rule, see https:// 

www.regulations.gov/document/ICEB-2006-0004- 

0922, at page G–4 (Sept. 1, 2015). 

259USCIS, Filing Your Form G–28 (Aug. 10, 

2020), https://www.uscis.gov/forms/filing-yourform-g-28. 

260See USCIS, Form G–28 Instructions for Notice 

of Entry of Appearance as Attorney or Accredited 

Representative, OMB Control Number 1615–0105 

(expires May 31, 2021), https://www.uscis.gov/sites/ 

default/files/document/forms/g-28instr.pdf. 

261HR specialist calculation: $50.94 × (0.3 hours) 

= $15.28. 

In-house lawyer calculation: $114.17 × (0.3 hours) 

= $34.25. 

Outsourced lawyer calculation: $196.85 × (0.3) = 

59.06 (rounded). 

262Calculation: 24,370 H–2A + 12,388 H–2B = 

36,758 H–2 petitioners in FY 2022 as estimated as 

the population who would be most likely be 

affected by this rule. 

impact to the employer nor to wages 

earned by the worker. Multiplying the 

169 H–2A subpopulation in Table 10 by 

$4,234 in additional wages for 30 days 

in Table 9 bounds potential additional 

annual earnings at $715,546. 

Additionally, the 298 H–2B population 

in Table 10 multiplied by $7,394 in 

Table 9 bounds additional annual H–2B 

earnings at $2,203,412 with estimated 

tax transfers of $337,122. For H–2A and 

H–2B workers, the total impact from 

this change is $2,918,958 in additional 

earnings and $337,122 in tax transfers 

($168,561 from workers + $168,561 from 

employers). 

d. Other Impacts of the Proposed Rule 

(1) Form I–129 Updates 

The costs for this form include filing 

costs and the opportunity costs of time 

to complete and file the form. The 

current filing fee for Form I–129 is $460 

and the estimated time needed to 

complete and file Form I–129 is 2.34 

hours.250 There is an additional $150 fee 

for employers filing H–2B petitions.251

There is also an estimated time burden 

of 2 hours for petitioners to complete 

the H classification supplement for 

Form I–129. The total time burden of 

4.34 hours for Form I–129 also includes 

the time for reviewing instructions, to 

file and retain documents, and submit 

the request. In this proposed rule, the 

fees for Form I–129 and the H 

classification supplement and time 

burden for Form I–129 would remain 

unchanged, only the estimated burden 

to complete the H classification 

supplement would change. This 

proposed rule would increase the public 

reporting burden for the H Classification 

Supplement by 0.3 hours to a total 2.3 

hours. This added time would result in 

a total time burden of 4.64 hours for 

Form I–129 H–2 petitioners. The 

petition must be filed by a U.S. 

employer, a U.S. agent, or a foreign 

employer filing through the U.S. agent. 

8 CFR 214.2(h)(2). DHS was unable to 

obtain data on the number of Form I– 

129 H–2A and H–2B petitions filed 

directly by a petitioner and those that 

are filed by a lawyer on behalf of the 

petitioner. Therefore, DHS presents a 

range of estimated costs, including if 

only human resource (HR) specialists 

file Form I–129 or if only lawyers file 

Form I–129.252 Further, DHS presents 

cost estimates for lawyers filing on 

behalf of petitioners based on whether 

all Form I–129 petitions are filed by inhouse lawyers or by outsourced 

lawyers.253 DHS presents an estimated 

range of costs assuming that only HR 

specialists, in-house lawyers, or 

outsourced lawyers file these forms, 

though DHS recognizes that it is likely 

that filing will be conducted by a 

combination of these different types of 

filers. 

To estimate the total opportunity cost 

of time to petitioners who complete and 

file Form I–129, DHS uses the mean 

hourly wage rate of HR specialists of 

$35.13 as the base wage rate.254 If 

applicants hire an in-house or 

outsourced lawyer to file Form I–129 on 

their behalf, DHS uses the mean hourly 

wage rate of $78.74 as the base wage 

rate.255 DHS multiplied the average 

hourly U.S. wage rate for HR specialists 

and for in-house lawyers by the 

benefits-to-wage multiplier of 1.45 to 

estimate the full cost of employee 

wages. The total per hour wage is $50.94 

for an HR specialist and $114.17 for an 

in-house lawyer.256 In addition, DHS 

recognizes that an entity may not have 

in-house lawyers and therefore, seek 

outside counsel to complete and file 

Form I–129 on behalf of the petitioner. 

Therefore, DHS presents a second wage 

rate for lawyers labeled as outsourced 

lawyers. DHS estimates the total per 

hour wage is $196.85 for an outsourced 

lawyer.257 258 If a lawyer submits Form 

I–129 on behalf of the petitioner, Form 

G–28 (Notice of Entry of Appearance as 

Attorney or Accredited Representative), 

must accompany the Form I–129 

submission.259 DHS estimates the time 

burden to complete and submit Form G– 

28 for a lawyer is 50 minutes (0.83 

hours, rounded).260

Since only the time burden for the H 

Classification Supplement would 

change, this analysis only considers the 

additional opportunity cost of time for 

0.3 hours as a direct cost of this rule. 

Therefore, the added opportunity cost of 

time for an HR specialist to complete 

and file Form I–129 for an H–2 petition 

is $15.28, for an in-house lawyer to 

complete and file is $34.25, and for an 

outsourced lawyer to complete and file 

is $59.06.261

DHS expects this rule would impose 

costs on the population of employers 

that currently petition for H–2 workers; 

an estimated 36,758 petitioners.262 We 

expect filing would be performed by a 

HR specialist, in-house lawyer, or 

outsourced lawyer, and this would be 

done at the same rate as petitioners who 

file a Form G–28; 

To properly account for the costs 

associated with filing across the entire 

H–2 population, DHS must calculate a 

weighted average rate for G–28 filing 

across the separate H–2A and H–2B 

populations. Table 11 and Table 12 

show the recent G–28 filing trends for 

each separate H–2 population. 


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263Calculation: Step 1. 12,607 H–2A petitions 

with G–28 + 18,602 H–2B petitions with G–28 = 

31,209 H–2 petitions with G–28; Step 2. 77,890 total 

H–2A petitions + 40,579 total H–2B petitions = 

118,469 total H–2 petitions; Step 3. 31,209 H–2 

petitions with G–28/118,469 total H–2 petitions = 

.2634 (rounded). 

264Calculation for lawyers: 36,758 H–2 

petitioners × 26.34 percent represents by a lawyer 

= 9,682 (rounded) represented by a lawyer. 

Calculation for HR specialists: 36,758 H–2 

petitioners—9,682 represented by a lawyer = 27,076 

represented by a HR specialist. 

265Calculation: $15.28 additional burden × 

27,076 HR specialists = $413,721. 

266Calculations: $34.25 additional burden × 9,682 

in-house lawyers = $331,609; $59.06 additional 

burden × 9,682 outsourced lawyers = $571,819 

(rounded). 

267Calculation: HR specialists $413,721 + inhouse lawyers $331,609 = $745,330; HR specialists 

$413,721 + outsourced lawyers $571,819 = 

$985,540. 

268Calculation: 24,370 H–2A + 12,388 H–2B = 

36,758 H–2 petitioners in FY 2022 as estimated as 

the population who would be most likely to read 

this rule. 

269Calculation for lawyers: 36,758 H–2 

petitioners × 44.43 percent represents by a lawyer 

= 9,682 (rounded) represented by a lawyer. 

Calculation for HR specialists: 36,758 H–2 

petitioners × 9,682 represented by a lawyer = 27,076 

represented by a HR specialist. 

270Marc Brysbaert (April 12, 2019), How many 

words do we read per minute? A review and metaanalysis of reading rate, https://doi.org/10.1016/

j.jml.2019.104047 (accessed Dec. 15, 2022). We use 

the average speed for silent reading of English 

nonfiction by adults. 

271Please note that the actual word count of the 

proposed rule may differ from the estimated length 

presented here. 

272Calculation: 56,000 words/238 words per 

minute = 235 (rounded) minutes. 235 minutes/60 

minutes per hour = 3.92 (rounded) hours. 

TABLE 11—FORM I–129 H–2A PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28, FY 2017–2021 

Fiscal year 

Number of 

form I–129 H– 

2A petitions 

accompanied 

by a form G– 

28 

Total number 

of form I–129 

H–2A petitions 

received 

Percent of 

form I–129 H– 

2A petitions 

accompanied 

by a form G– 

28 

2017 ............................................................................................................................................. 1,648 11,602 14.20 

2018 ............................................................................................................................................. 2,166 13,444 16.11 

2019 ............................................................................................................................................. 2,617 15,509 16.87 

2020 ............................................................................................................................................. 2,854 17,012 16.78 

2021 ............................................................................................................................................. 3,322 20,323 16.35 

2017–2021 Total .......................................................................................................................... 12,607 77,890 16.19 

SOURCE: USCIS, Office of Policy & Strategy—C3, ELIS USCIS Data System. 

TABLE 12—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28, FY 2018–2022 

Fiscal year 

Number of 

form I–129 H– 

2B petitions 

accompanied 

by a form G– 

28 

Total number 

of form I–129 

H–2B petitions 

received 

Percent of 

form I–129 H– 

2B petitions 

accompanied 

by a form G– 

28 

2018 ............................................................................................................................................. 2,625 6,148 42.70% 

2019 ............................................................................................................................................. 3,335 7,461 44.70 

2020 ............................................................................................................................................. 2,434 5,422 44.89 

2021 ............................................................................................................................................. 4,230 9,160 46.18 

2022 ............................................................................................................................................. 5,978 12,388 48.26 

2018—2022 Total ........................................................................................................................ 18,602 40,579 45.84 

SOURCE: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 10/2022, TRK 10638. 

Using the data from Table 11 and 

Table 12, DHS calculates that the 

weighted average rate of G–28 filing 

across the entire H–2 population is 

26.34%.263

Therefore, we estimate that 9,682 

lawyers would incur additional filing 

costs and 27,076 HR specialists would 

incur additional filing costs.264

The estimated total opportunity cost 

of time for 27,076 HR specialists to file 

petitions under this proposed rule is 

approximately $413,721.265 The 

estimated annual opportunity cost of 

time for 9,682 lawyers to file petitions 

under this proposed rule is 

approximately $331,609 if they are all 

in-house lawyers and $571,819 if they 

are all outsourced lawyers.266 The 

estimated annual opportunity costs of 

time for petitioners or their 

representatives to file H–2 petitions 

under this proposed rule ranges from 

$745,330 to $985,540.267

(2) Technical Definitional Updates 

There is a technical update proposed 

in this rule for clarification purposes to 

remove the phrase ‘‘abscond’’ and the 

definition of ‘‘abscondment.’’ DHS 

expects these proposed changes would 

have only marginal impacts. 

(3) Familiarization Costs 

DHS expects this rule would impose 

one-time familiarization costs associated 

with reading and understanding this 

rule on the population of employers that 

currently petition for H–2 workers; an 

estimated 36,758 petitioners.268 We 

expect familiarization with the rule 

would be performed by a HR specialist, 

in-house lawyer, or outsourced lawyer, 

and this would be done at the same rate 

as petitioners who file a Form G–28.An 

estimated 26.34 percent would be 

performed by lawyers and the remaining 

73.66 percent by an HR specialist.. 

Therefore, we estimate that 9,682 

lawyers would incur familiarization 

costs and 27,076 HR specialists would 

incur familiarization costs.269

To estimate the cost of rule 

familiarization, we estimate the time it 

would take to read and understand the 

rule by assuming a reading speed of 238 

words per minute.270 This rule has 

approximately 56,000 words.271 Using a 

reading speed of 238 words per minute, 

DHS estimates it would take 

approximately 3.92 hours to read and 

become familiar with this rule.272 The 

estimated hourly total compensation for 

a HR specialist, in-house lawyer, and 

outsourced lawyer are $50.94, $114.17, 

and $196.85 respectively. The estimated 

opportunity cost of time for each of 

these filers to familiarize themselves 

with the rule are $199.68, $447.55, and 


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273Calculation: Total respective hourly 

compensation HR $50.94 × 3.5 hours = $199.68, Inhouse Lawyer $114.17 × 3.92 = $447.55, or 

Outsourced Lawyer $196.85 × 3.92 hours = $771.65. 274Calculation, lower bound: $5,406,536 

familiarization costs, HR Representative + 

$4,333,179 familiarization costs, in-house lawyer = 

$9,739,715. Calculation, upper bound: $5,406,536 

familiarization costs, HR Representative + 

$7,471,115 familiarization costs, outsourced lawyer 

= $12,877,651. 

275Calculation, lower bound: $745,330 annual 

costs from marginal OCT to file Forms I–129 + 

$144,706 in costs due to the portability provision 

= $890,036 annual costs in years 1 through 10. 

Calculation, upper bound: $985,540 annual costs 

from marginal OCT to file Forms I–129 + $216,805 

in costs due to the portability provision = 

$1,202,345 annual costs in years 1 through 10. 

276Calculation, lower bound: familiarization costs 

of $9,739,715 (year 1) + $890,036 annual costs due 

to the rule (year 1–10) = $18,640,075 over 10-year 

period of analysis. Calculation, upper bound: 

familiarization costs of $12,877,651 (year 1) + 

$1,202,345 annual costs due to the rule (year 1–10) 

= $24,901,101 over 10-year period of analysis. 

277The Hoovers website can be found at http:// 

www.hoovers.com/; the Manta website can be found 

at http://www.manta.com/; and the Cortera website 

can be found at https://www.cortera.com/. NAICS 

2017 classifications were used for the purpose of 

this analysis as provided by these databases. 

278The Small Business Administration (SBA) has 

developed size standards to carry out the purposes 

of the Small Business Act and those size standards 

can be found in 13 CFR, section 121.201. At the 

time this analysis was conducted, NAICS 2017 

classifications were in effect. SBA size standards 

effective August 19, 2019, https://www.sba.gov/ 

sites/default/files/2019-08/SBA%20Table%20

of%20Size%20Standards_

Effective%20Aug%2019%2C%202019.pdf. 

$771.65 respectively.273 The estimated 

total opportunity cost of time for 27,076 

HR specialists to familiarize themselves 

with this rule is approximately 

$5,406,536. Additionally, the estimated 

total opportunity cost of time for 9,682 

lawyers to familiarize themselves with 

this rule is approximately $4,333,179 if 

they are all in-house lawyers or 

$7,471,115 if they are all outsourced 

lawyers. Thus, the estimated total 

opportunity costs of time for petitioners 

or their representatives to familiarize 

themselves with this rule ranges from 

$9,739,715 to $12,877,651, incurred the 

first year of the period of analysis.274

e. Total Costs of the Rule 

In the previous sections we presented 

the estimates of the impacts of the 

proposed rule. The quantifiable costs of 

this rule that would impact petitioners 

consistently and directly are the costs 

associated with an increased 

opportunity cost of time to complete 

Form I–129 H Classification 

Supplement and opportunity costs of 

time related to the rule’s portability 

provision. Annual costs due to the rule 

range from $890,036 to $1,202,345 

depending on the filer.275 Over the 10- 

year period of analysis, DHS estimates 

the total costs of the proposed rule 

would be approximately $18,640,075 to 

$24,901,101 (undiscounted).276 DHS 

estimates annualized costs of this 

proposed rule range from $1,998,572 to 

$2,668,028 at a 3-percent discount rate 

and $2,186,033 to $2,915,885 at a 7- 

percent discount rate. The midpoint of 

these ranges, $2,333,300 at a 3-percent 

discount rate and $2,550,959 at a 7- 

percent discount rate is presented as the 

primary estimate. 

In addition, the rule results in 

transfers from consumers of goods and 

services to a limited number of H–2A 

and H–2B workers that may choose to 

supply additional labor. The total 

annualized transfer amounts to 

$2,918,958 in additional earnings at the 

3-percent and 7-percent discount rate 

and related tax transfers of $337,122 

($168,561 from these workers + 

$168,561 from employers). 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, requires Federal 

agencies to consider the potential 

impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. An 

‘‘individual’’ is not defined by the RFA 

as a small entity and costs to an 

individual from a rule are not 

considered for RFA purposes. In 

addition, the courts have held that the 

RFA requires an agency to perform an 

initial regulatory flexibility analysis of 

small entity impacts only when a rule 

directly regulates small entities. 

Consequently, any indirect impacts 

from a rule to a small entity are not 

considered to be costs for RFA 

purposes. 

This proposed rule may have direct 

impacts to those entities that petition on 

behalf of H–2 workers. Generally, 

petitions are filed by a sponsoring 

employer who would incur some 

additional costs from the Form I–129 H 

Classification Supplement burden 

change and familiarization of the rule. 

Petitioning employers may also incur 

costs they would not have otherwise 

incurred if they opt to transport and 

house H–2A workers earlier as well as 

opportunity costs of time if they are 

selected to participate in compliance 

reviews or inspections that are 

necessary for the approval of a petition. 

Therefore, DHS examines the direct 

impact of this proposed rule on small 

entities in the analysis that follows. 

1. Initial Regulatory Flexibility Analysis 

(IRFA) 

Small entities primarily impacted by 

this proposed rule are those that would 

incur additional direct costs to complete 

an H–2 petition. DHS conducted an 

analysis using a statistically valid 

sample of H–2 petitions to determine 

the number of small entities directly 

impacted by this proposed rule. These 

costs are related to the additional 

opportunity cost of time for a selected 

small entity to complete the updated 

Form I–129 H Classification 

Supplement proposed in this rule. DHS 

welcomes any public comment on the 

methodology and conclusions on the 

number of small entities estimated and 

the impacts to those small entities. 

a. A Description of the Reasons Why the 

Action by the Agency is Being 

Considered 

The purpose of this rulemaking is to 

modernize and improve the regulations 

relating to the H–2A temporary 

agricultural worker program and the H– 

2B temporary nonagricultural worker 

program. 

b. A Succinct Statement of The 

Objectives of, and Legal Basis for, the 

Proposed Rule 

DHS objectives and legal authority for 

this proposed rule are discussed in the 

preamble of this proposed rulemaking. 

c. A Description of and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Changes 

Would Apply 

DHS conducted the analysis using a 

statistically valid sample of H–2 

petitions to determine the maximum 

potential number of small entities 

directly impacted by this proposed rule. 

DHS used a subscription-based online 

database of U.S. entities, Hoovers 

Online, as well as two other openaccess, free databases of public and 

private entities, Manta and Cortera, to 

determine the North American Industry 

Classification System (NAICS) code, 

revenue, and employee count for each 

entity.277 In order to determine the size 

of a small entity, DHS first classified 

each entity by its NAICS code, and then 

used Small Business Administration 

(SBA) guidelines to note the requisite 

revenue or employee count threshold 

for each entity.278 Some entities were 

classified as small based on their annual 

revenue and some by number of 

employees. 


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279USCIS Office of Policy and Strategy, C3, ELIS 

(Oct. 19, 2022). 

280Calculation: 368 + (368 × 10 percent) = 405. 

281Calculation: 13,244 entities × 96 percent = 

12,714 small entities (rounded). 

282USCIS Office of Policy and Strategy, C3, ELIS 

(Oct. 19, 2022). 

Using FY 2018 to FY 2022 data on H– 

2A petitions, DHS collected internal 

data for each filing organization.279 Each 

entity may make multiple filings. For 

instance, there were 90,658 H–2A 

petitions filed over the 5 fiscal years, 

but only 13,244 unique entities that 

filed H–2A petitions. DHS devised a 

methodology to conduct the small entity 

analysis based on a representative, 

random sample of the potentially 

impacted population. To achieve a 95 

percent confidence level and a 5 percent 

confidence interval on a population of 

13,244 entities, DHS determined that a 

minimum sample size of 374 entities 

was necessary. However, DHS drew a 

sample size 10 percent greater than the 

minimum statistically valid sample for 

a sample size of 411 in order to increase 

the likelihood that our matches would 

meet or exceed the minimum required 

sample.280 Of the 411 entities sampled, 

387 instances resulted in entities 

defined as small (see Table 13). Of the 

387 small entities, 344 entities were 

classified as small by revenue or 

number of employees. The remaining 63 

entities were classified as small because 

information was not found (either no 

petitioner name was found, or not 

enough information was found in the 

databases). A total of 24 entities were 

classified as not small. Therefore, of the 

13,244 entities that filed at least one 

Form I–129 in FYs 2018 through 2022, 

DHS estimates that 96 percent or 15,636 

entities are considered small based on 

SBA size standards.281

TABLE 13—SUMMARY AND RESULTS OF SMALL ENTITY ANALYSIS OF H–2A PETITIONS

Parameter Quantity 

Proportion 

of sample 

(percent) 

Population—H–2A petitions ............................................................................................................................................. 90,658 ....................

Population—Unique H–2A Entities .................................................................................................................................. 13,244 ....................

Minimum Required Sample ............................................................................................................................................. 374 ....................

Selected Sample .............................................................................................................................................................. 411 100 

Entities Classified as ‘‘Not Small’’: 

by revenue ................................................................................................................................................................ 23 6 

by number of employees .......................................................................................................................................... 1 0 

Entities Classified as ‘‘Small’’: 

by revenue ................................................................................................................................................................ 281 69 

by number of employees .......................................................................................................................................... 43 11 

because not enough information found in databases .............................................................................................. 63 16 

Total Number of Small Entities ........................................................................................................................................ 387 a 96 

Source: USCIS analysis. 

a Calculation: 69 percent (Entities classified as small by revenue) + 11 percent (Entities classified as small by number of employees) + 16 percent (Entities classified as small because no information found in database) = 96 percent (total number of small entities, rounded). 

As previously stated, DHS classified 

each entity by its NAICS code to 

determine the size of each entity. Table 

14 shows a list of the top 10 NAICS 

industries that submit an H–2A petition. 

TABLE 14—TOP 10 NAICS INDUSTRIES SUBMITTING FORM I–129 FOR H–2A PETITIONS, SMALL ENTITY ANALYSIS

RESULTS

Rank NAICS 

code NAICS U.S. industry title Frequency 

Size 

standards in 

millions of 

dollars a

Size 

standards in 

number of 

employees a

Percent 

1 111998 All Other Miscellaneous Crop Farming ........................................... 79 $1.0 .................... 19.2 

2 N/A Unclassified Establishments ............................................................ 25 8.0 .................... 6.1 

3 561499 All Other Business Support Services .............................................. 15 16.5 .................... 3.6 

4 111331 Apple Orchards ............................................................................... 12 1.0 .................... 2.9 

5 112111 Beef Cattle Ranching and Farming ................................................. 12 1.0 .................... 2.9 

6 112990 All Other Animal Production ............................................................ 9 1.0 .................... 2.2 

7 111421 Nursery and Tree Production .......................................................... 8 1.0 .................... 1.9 

8 424910 Farm Supplies Merchant Wholesalers ............................................ 8 .................... 200 1.9 

9 112112 Cattle Feedlots ................................................................................ 7 8.0 .................... 1.7 

10 561990 All Other Support Services .............................................................. 7 12.0 .................... 1.7 

Source: USCIS analysis. 

The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act and those size 

standards can be found in 13 CFR, section 121.201. At the time this analysis was conducted, NAICS 2017 classifications were in effect. 

DHS used the methodology developed 

for H–2A petitions for H–2B petitions as 

well. Using FY 2018 to FY 2022 data on 

H–2B petitions, DHS collected internal 

data for each filing organization.282 Each 

entity may make multiple filings. For 

instance, there were 40,579 H–2B 

petitions filed over these 5 fiscal years 

by 8,506 unique entities. DHS devised a 

methodology to conduct the small entity 

analysis based on a representative, 

random sample of the potentially 

impacted population. To achieve a 95 

percent confidence level and a 5 percent 

confidence interval on a population of 


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283Calculation: 368 + (368 × 10 percent) = 405. 284Calculation: 8,506 entities × 95 percent = 

8,175 small entities (rounded). 

8,506 entities, DHS determined that a 

minimum sample size of 368 entities 

was necessary. DHS created a sample 

size 10 percent greater than the 

minimum statistically valid sample for 

a sample size of 368 in order to increase 

the likelihood that our matches would 

meet or exceed the minimum required 

sample.283 Of the 405 entities sampled, 

384 instances resulted in entities 

defined as small (see Table 15). Of the 

384 small entities, 307 entities were 

classified as small by revenue or 

number of employees. The remaining 46 

entities were classified as small because 

information was not found (either no 

petitioner name was found, or not 

enough information was found in the 

databases). A total of 21 entities were 

classified as not small. Therefore, of the 

8,506 entities that filed at least one 

Form I–129 in FY 2018 through FY 

2022, DHS estimates that 95 percent or 

8,175 entities are considered small 

based on SBA size standards.284

TABLE 15—SUMMARY AND RESULTS OF SMALL ENTITY ANALYSIS OF H–2B PETITIONS

Parameter Quantity 

Proportion 

of sample 

(percent) 

Population—H–2B petitions ............................................................................................................................................. 40,579 ....................

Population—Unique H–2B Entities .................................................................................................................................. 8,506 ....................

Minimum Required Sample ............................................................................................................................................. 368 ....................

Selected Sample .............................................................................................................................................................. 405 100 

Entities Classified as ‘‘Not Small’’: 

by revenue ................................................................................................................................................................ 20 5 

by number of employees .......................................................................................................................................... 1 0 

Entities Classified as ‘‘Small’’: 

by revenue ................................................................................................................................................................ 307 76 

by number of employees .......................................................................................................................................... 31 8 

because not enough information found in databases .............................................................................................. 46 11 

Total Number of Small Entities ........................................................................................................................................ 384 a 95 

Source: USCIS analysis. a Calculation: 76 percent (Entities classified as small by revenue) + 8 percent (Entities classified as small by number of employees) + 11 percent (Entities classified as small because no information found in database) = 95 percent (total number of small entities, rounded). 

As previously stated, DHS classified 

each entity by its NAICS code to 

determine each business’ size. Table 16 

shows a list of the top 10 NAICS 

industries that submit an H–2B petition. 

TABLE 16—TOP 10 NAICS INDUSTRIES SUBMITTING FORM I–129 FOR H–2B PETITIONS, SMALL ENTITY ANALYSIS

RESULTS

Rank NAICS 

code NAICS U.S. industry title Frequency 

Size 

standards in 

millions of 

dollars a

Size 

standards in 

number of 

employees a

Percent 

1 561730 Landscaping Services ..................................................................... 56 8.0 .................... 13.8 

2 541320 Landscape Architectural Services ................................................... 55 8.0 .................... 13.6 

3 721110 Hotels (except Casino Hotels) and Motels ..................................... 22 35.0 .................... 5.4 

4 N/A Unclassified Establishments ............................................................ 19 8.0 .................... 4.7 

5 722511 Full-Service Restaurants ................................................................. 12 8.0 .................... 3.0 

6 713910 Golf Courses and Country Clubs .................................................... 12 16.5 .................... 3.0 

7 236115 New Single-Family Housing Construction (except For-Sale Builders).10 39.5 .................... 2.5 

8 424460 Fish and Seafood Merchant Wholesalers ....................................... 9 .................... 100 2.2 

9 238160 Roofing Contractors ........................................................................ 6 16.5 .................... 1.5 

10 561990 All Other Support Services .............................................................. 6 12.0 .................... 1.5 

Source: USCIS analysis. a The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act and those size 

standards can be found in 13 CFR section 121.201. At the time this analysis was conducted, NAICS 2017 classifications were in effect. 

Because the random sample is drawn 

from the H–2 petitioner population atlarge, it is not practical to estimate small 

entities’ representation within this 

noncooperative subpopulation. Thus, 

the IRFA assumes 12 percent of small 

entities, like larger entities, may have 

underestimated the reasonable, existing 

compliance burden of site visits and 

thus incur some additional compliance 

costs. 

Petitioner-employers are not expected 

to be impacted by proposed changes to 

the interrupted stay calculation. USCIS 

cannot determine how beneficiaries’ 

behavior would change as a result of 

this simplification to the USCIS 

calculation. If indirectly impacted 

industries have evidence to the 

contrary, this IRFA affords the public 

the opportunity to comment upon this 

rationale before DHS would begin work 

on the FRFA. DHS welcomes public 

comments on this issue. Similarly, DHS 

does not expect flexibilities that allow 

beneficiaries to arrive in-country earlier 

would impose any compliance costs 


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285Calculation: 13,722 petitions received 

annually × 96 percent = 13,173 submitted by small 

entities (rounded). 

286Calculation: 6,866 annually selected petitions 

× 95 percent = 6,523 submitted by small entities 

(rounded). 

287HR specialist calculation: $50.94 × (0.3 hours) 

= $15.28 (rounded). 

288 In-house lawyer calculation: $114.17 × (0.3 

hours) = $34.25 (rounded). 

289Outsourced lawyer calculation: $196.85 × (0.3) 

= $59.06 (rounded). 

upon industries that choose to petition 

for or employ H–2 workers. 

Table 3 shows that an average 13,722 

H–2A petitions are received annually. 

Table 13 shows that 96 percent of 

entities that petition for H–2A workers 

are considered small based on SBA size 

standards. Therefore, DHS reasonably 

assumes that of the 13,722 H–2A 

petitions received, 13,500 285 petitions 

are submitted by small entities. 

Table 4 shows that USCIS receives an 

average of 6,866 H–2B petitions 

annually. Table 15 shows that 95 

percent of entities that petition for H– 

2B workers are considered small based 

on SBA size standards. Therefore, DHS 

reasonably assumes that of the 6,866 H– 

2B petitions received, 6,523 286 petitions 

are submitted by small entities. 

d. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities That Will 

Be Subject to the Requirement and the 

Type of Professional Skills 

This proposed rule does not impose 

any new or additional direct ‘‘reporting’’ 

or ‘‘recordkeeping’’ requirements on 

filers of H–2 petitions. The proposed 

rule does not require any new 

professional skills for reporting. As 

discussed, to the extent that existing 

statutorily and regulatorily authorized 

site visits described in the current Form 

I–129 instructions result in neither a 

finding of compliance nor 

noncompliance (described throughout 

this rule as noncooperation), the 

proposal to revoke or deny petitions 

may result in unquantified additional 

compliance burdens to those petitioners 

that underestimate the reasonable 

burden of compliance with 

unannounced site visits. Under the 

proposed rule, a petitioner that was 

selected for a site visit and would not 

have cooperated under the baseline 

would face an (up to) 1.7-hour marginal 

time burden (on average) in order to 

comply with the provisions of the rule. 

Also, the provisions of this proposed 

rule regarding prohibited fees and labor 

law violations (see proposed 8 CFR 

214.2(h)(5)(xi)(A) through (C), 8 CFR 

214.2(h)(6)(i)(B) through (D) regarding 

prohibited fees. See proposed 8 CFR 

214.2(h)(10)(iii) regarding labor law 

violations) would subject petitioners, 

including small entities, to future bars 

to petition approval should they engage 

in activities that are prohibited by the 

proposed rule. 

Denial or revocation of petitions for 

noncooperation with existing site visit 

and verification requirements is 

expected to impact 12 percent of 

petitioners who, despite agreeing to 

permit the statutorily and regulatorily 

authorized site visits on their Form I– 

129 petition, yielded inconclusive (‘‘not 

defined’’) site visit results. Petitioners 

that do not cooperate with all site visit 

requirements may have underestimated 

the reasonable compliance burden they 

assented to, and, due to this proposed 

rule, would experience or expect to 

experience additional compliance 

burden associated with unchanged site 

visits and verification activities. DHS 

notes that employers who do not 

cooperate would face denial or 

revocation of their petition(s), which 

could result in costs to those businesses 

such as potential lost revenue or 

potential lost profits due to not having 

access to workers. 

Furthermore, the proposed rule 

causes direct costs to accrue to affected 

petitioners due to opportunity costs of 

time from both marginal time burden 

increases (for H Classification 

Supplement to Form I–129) and 

increased filing volumes (additional 

Forms I–129 filed due to the rule’s 

portability provision). 

The increase in cost per petition to 

file the H classification supplement for 

Form I–129 on behalf of an H–2 worker 

is the additional opportunity cost of 

time of 0.3 hours. As previously stated 

in Section d(1) of the regulatory impact 

analysis, this proposed rule will add 

$15.28 287 in costs if an HR specialist 

files, $34.25 288 in costs if an in-house 

lawyer files, and $59.06 289 in costs if an 

outsourced lawyer files. 

In all instances, USCIS acknowledges 

that several aspects of the rule impose 

costs on affected entities. USCIS has 

determined, however, that these costs 

are outweighed by the benefits of 

increased program integrity and 

compliance. USCIS has considered 

opportunities to achieve the rule’s 

stated objectives while minimizing costs 

to small entities and welcomes public 

comment. 

e. An Identification of All Relevant 

Federal Rules, to the Extent Practical, 

That May Duplicate, Overlap, or 

Conflict With the Proposed Rule. 

DHS is unaware of any duplicative, 

overlapping, or conflicting Federal 

rules, but invites any comment and 

information regarding any such rules. 

f. Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 

Applicable Statutes and That Minimize 

Any Significant Economic Impact of the 

Proposed Rule on Small Entities 

DHS considered alternatives to 

elements of the proposed rule that 

would minimize the impact on small 

entities while still accomplishing the 

rule’s objectives, such as improving the 

integrity and efficiency of the H–2 

program. First, USCIS acknowledges 

that, as discussed above, the vast 

majority (approximately 96% of H–2A 

petitioners and 95% of H–2B 

petitioners) of affected petitioners are 

small businesses. Therefore, costs due to 

the rule would necessarily be borne by 

those small businesses. Minimizing any 

costs due to the rule would therefore 

compromise the ability of this 

regulation to effectively address the 

goals stated in the preamble. 

USCIS considered not proposing 

regulations that would revoke or deny 

petitioners refusing to cooperate with 

current statutorily and regulatorily 

authorized USCIS site visit and 

verification activities. Roughly 12 

percent of current H–2 site visits are 

inconclusive due to noncooperation on 

the part of petitioners. USCIS’s inability 

to reach a conclusion concerning 

compliance or noncompliance 

concerning petitioners that triggered a 

site visit is critical to oversight of the 

program and integrity measures. The 

compliance burden for a small entity is 

not the duration of the site visit and 

verification activities, but rather the 

discrepancy between what USCIS and 

the assenting petitioner estimated such 

reasonable compliance burdens to be. 

USCIS will not consider permitting any 

small entity to willfully violate the 

statutory and regulatory requirements 

explained in the existing Form I–129 

instructions, thus the IRFA alternative 

considered was rejected for failing to 

meet the rule’s objective of improving 

H–2 program integrity. Furthermore, 12 

percent of USCIS resources dedicated 

toward investigating noncompliance 

with H–2 program requirements are 

sunk, resulting in no findings. USCIS 

investigative officers are an important 

tool and a scarce resource. These 

investigatory resources could be made 


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290 2 U.S.C. 1532(a). 

291See U.S. Department of Labor, BLS, 

‘‘Historical Consumer Price Index for All Urban 

Consumers (CPI–U): U.S. city average, all items, by 

month,’’ available at www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202212.pdf (last 

visited Jan. 19, 2023). Calculation of inflation: (1) 

Calculate the average monthly CPI–U for the 

reference year (1995) and the current year (2022); 

(2) Subtract reference year CPI–U from current year 

CPI–U; (3) Divide the difference of the reference 

year CPI–U and current year CPI–U by the reference 

year CPI–U; (4) Multiply by 100 = [(Average 

monthly CPI–U for 2022 ¥ Average monthly CPI– 

U for 1995)/(Average monthly CPI–U for 

1995)] *100 = [(292.655 ¥ 152.383)/152.383] *100 = 

(140.272/152.383) *100 = 0.92052263 *100 = 92.05 

percent = 92 percent (rounded). Calculation of 

inflation-adjusted value: $100 million in 1995 

dollars *1.92 = $192 million in 2022 dollars. 

292See 2 U.S.C. 1502(1), 658(6). 

293 2 U.S.C. 658(5). 

294 2 U.S.C. 658(7). 

295See 2 U.S.C. 1502(1), 658(6). 

296See Public Law 91–190, 42 U.S.C. 4321 

through 4347. 

297See DHS, Implementing the National 

Environmental Policy Act, DHS Directive 023–01, 

Rev 01 (Oct. 31, 2014), and DHS Instruction Manual 

Rev. 01(Nov. 6, 2014), https://www.dhs.gov/ 

publication/directive-023-01-rev-01-andinstruction-manual-023-01-001-01-rev-01-andcatex. 

298See 40 CFR parts 1500 through 1508. 

299See 40 CFR 1501.4(a). 

more effective if, at some additional 

compliance costs to would-be 

noncooperative small entities, USCIS 

was able to reach a finding. For this 

reason, USCIS rejected the IRFA 

alternative for failing to meet the rule’s 

objective of improving H–2 efficiency 

with respect to USCIS investigative 

resources. 

Finally, an additional objective of the 

rule is enhancement of worker 

protections. The IRFA alternative of 

minimizing additional compliance 

burdens to 12 percent of entities from 

site visits and verification activities was 

rejected because it risks undermining 

the impacts of other proposed 

provisions of this rule that are expected 

to achieve greater protections for 

workers who report violations. 

Furthermore, DHS considered not 

expanding porting to minimize those 

impacts to small entities, but concluded 

that the availability of porting is integral 

to accomplishing the objectives of 

enhancing program integrity and 

increasing worker protections. 

C. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed rule, or final rule 

that may result in a $100 million or 

more expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector.290

In addition, the inflation-adjusted 

value of $100 million in 1995 is 

approximately $192 million in 2022 

based on the Consumer Price Index for 

All Urban Consumers (‘‘CPI–U’’).291

The term ‘‘Federal mandate’’ means a 

Federal intergovernmental mandate or a 

Federal private sector mandate.292 The 

term ‘‘Federal intergovernmental 

mandate’’ means, in relevant part, a 

provision that would impose an 

enforceable duty upon State, local, or 

Tribal governments (except as a 

condition of Federal assistance or a duty 

arising from participation in a voluntary 

Federal program).293 The term ‘‘Federal 

private sector mandate’’ means, in 

relevant part, a provision that would 

impose an enforceable duty upon the 

private sector (except as a condition of 

Federal assistance or a duty arising from 

participation in a voluntary Federal 

program).294

This proposed rule does not contain 

such a mandate, because it does not 

impose any enforceable duty upon any 

other level of government or private 

sector entity. Any downstream effects 

on such entities would arise solely due 

to their voluntary choices, and the 

voluntary choices of others, and would 

not be a consequence of an enforceable 

duty imposed by this rule. Similarly, 

any costs or transfer effects on State and 

local governments would not result 

from a Federal mandate as that term is 

defined under UMRA.295 The 

requirements of title II of UMRA, 

therefore, do not apply, and DHS has 

not prepared a statement under UMRA. 

DHS has, however, analyzed many of 

the potential effects of this action in the 

regulatory impact analysis above. 

D. Executive Order 13132 (Federalism) 

E.O. 13132 was issued to ensure the 

appropriate division of policymaking 

authority between the States and the 

Federal Government and to further the 

policies of the Unfunded Mandates Act. 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. DHS does not 

expect that this rule would impose 

substantial direct compliance costs on 

State and local governments or preempt 

State law. Therefore, in accordance with 

section 6 of Executive Order 13132, it is 

determined that this proposed rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

E. Executive Order 12988 (Civil Justice 

Reform) 

This proposed rule meets the 

applicable standards set forth in section 

3(a) and (b)(2) of Executive Order 12988. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This proposed rule would not have 

Tribal implications under Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, because it would not have 

a substantial direct effect on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

G. National Environmental Policy Act 

DHS and its components analyze 

proposed actions to determine whether 

the National Environmental Policy 

Act 296 (NEPA) applies to them and, if 

so, what degree of analysis is required. 

DHS Directive 023–01, Rev. 01 

(Directive) and Instruction Manual 023– 

01–001–01, Rev. 01 (Instruction 

Manual) 297 establish the procedures 

DHS and its components use to comply 

with NEPA and the Council on 

Environmental Quality (CEQ) 

regulations for implementing NEPA.298

The CEQ regulations allow Federal 

agencies to establish in their NEPA 

implementing procedures categories of 

actions (‘‘categorical exclusions’’) that 

experience has shown normally do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require preparation of an Environmental 

Assessment (EA) or Environmental 

Impact Statement (EIS).299 Instruction 

Manual, Appendix A, Table 1 lists the 

DHS categorical exclusions. 

Under DHS NEPA implementing 

procedures, for an action to be 

categorically excluded, it must satisfy 

each of the following three conditions: 

(1) The entire action clearly fits within 

one or more of the categorical 

exclusions; (2) the action is not a piece 

of a larger action; and (3) no 

extraordinary circumstances exist that 


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300See Instruction Manual, section V.B.2 (a-c). 

create the potential for a significant 

environmental effect.300

This proposed rule includes a number 

of proposed regulatory improvements. If 

finalized, it will improve program 

integrity while increasing flexibility, 

efficiency, and improving access to the 

H–2 programs. Specifically, DHS 

proposes to clarify the fees prohibited 

under H–2 regulations, strengthen the 

prohibition on collecting such fees from 

H–2 workers, extend grace periods for 

H–2 workers to give them the same 

amount of flexibility to come to the 

United States early and prepare for 

employment, and to remain in the U.S. 

after their employment ends to prepare 

for departure or seek new employment. 

The proposed rule also includes a new, 

longer grace period for H–2 workers 

whose employment terminated early. 

DHS also proposes to make portability 

permanent in the H–2 programs, and to 

allow H–2 workers to take steps toward 

becoming permanent residents of the 

United States while still maintaining 

lawful nonimmigrant status. DHS 

further proposes efficiencies in H–2 

program administration by eliminating 

the H–2 eligible countries lists and the 

H–2 ‘‘interrupted stay’’ provisions and 

reducing the period of absence needed 

to reset a worker’s 3-year maximum 

period of stay. 

DHS is not aware of any significant 

impact on the environment, or any 

change in the environmental effect from 

current H–2 program rules, that will 

result from the proposed rule changes. 

DHS therefore finds this proposed rule 

clearly fits within categorical exclusion 

A3 established in the Department’s 

implementing procedures. Instruction 

Manual, Appendix A. 

The proposed amendments, if 

finalized, would be stand-alone rule 

changes for USCIS H–2 programs and 

are not a part of any larger action. In 

accordance with the Instruction Manual, 

DHS finds no extraordinary 

circumstances associated with the 

proposed rules that may give rise to 

significant environmental effects 

requiring further environmental analysis 

and documentation. Therefore, this 

action is categorically excluded and no 

further NEPA analysis is required. 

H. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all agencies 

are required to submit to OMB, for 

review and approval, any reporting 

requirements inherent in a rule. In 

preparation for the submission, all 

agencies are required to submit the 

proposed new, revised or discontinued 

information collections for public 

comment. The paragraphs below 

summarize the changes proposed to 

OMB Control Number 1615–0009, 

Petition for Nonimmigrant Worker 

(Form I–129). 

DHS and USCIS invite the general 

public and other Federal agencies to 

comment on the impact to the proposed 

collection of information. In accordance 

with the PRA, the information 

collection notice is published in the 

Federal Register to obtain comments 

regarding the proposed edits to the 

information collection instrument. 

Comments are encouraged and will be 

accepted for 60 days from the 

publication date of the proposed rule. 

All submissions received must include 

the OMB Control Number 1615–0009 in 

the body of the letter and the agency 

name. To avoid duplicate submissions, 

please use only one of the methods 

under the ADDRESSES and I. Public 

Participation section of this rule to 

submit comments. Comments on this 

information collection should address 

one or more of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology 

(e.g., permitting electronic submission 

of responses). 

Overview of information collection: 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Petition for Nonimmigrant Worker. 

(3) Agency form number, if any, and 

the applicable component of DHS 

sponsoring the collection: I–129; USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: 

Primary: Business or other for-profit. 

USCIS uses the data collected on this 

form to determine eligibility for the 

requested nonimmigrant petition and/or 

requests to extend or change 

nonimmigrant status. An employer (or 

agent, where applicable) uses this form 

to petition USCIS for a noncitizen to 

temporarily enter as a nonimmigrant 

worker. An employer (or agent, where 

applicable) also uses this form to 

request an extension of stay or change 

of status on behalf of the nonimmigrant 

worker. The form serves the purpose of 

standardizing requests for 

nonimmigrant workers and ensuring 

that basic information required for 

assessing eligibility is provided by the 

petitioner while requesting that 

beneficiaries be classified under certain 

nonimmigrant employment categories. It 

also assists USCIS in compiling 

information required by Congress 

annually to assess effectiveness and 

utilization of certain nonimmigrant 

classifications. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection I–129 is 294,751 and the 

estimated hour burden per response is 

2.34 hours; the estimated total number 

of respondents for the information 

collection E–1/E–2 Classification 

Supplement to Form I–129 is 4,760 and 

the estimated hour burden per response 

is 0.67 hours; the estimated total 

number of respondents for the 

information collection Trade Agreement 

Supplement to Form I–129 is 3,057 and 

the estimated hour burden per response 

is 0.67 hours; the estimated total 

number of respondents for the 

information collection H Classification 

Supplement to Form I–129 is 96,291 

and the estimated hour burden per 

response is 2.3 hours; the estimated 

total number of respondents for the 

information collection H–1B and H–1B1 

Data Collection and Filing Fee 

Exemption Supplement is 96,291 and 

the estimated hour burden per response 

is 1 hour; the estimated total number of 

respondents for the information 

collection L Classification Supplement 

to Form I–129 is 37,831 and the 

estimated hour burden per response is 

1.34 hours; the estimated total number 

of respondents for the information 

collection O and P Classifications 

Supplement to Form I–129 is 22,710 

and the estimated hour burden per 

response is 1 hour; the estimated total 

number of respondents for the 

information collection Q–1 

Classification Supplement to Form I– 

129 is 155 and the estimated hour 

burden per response is 0.34 hour; and 

the estimated total number of 

respondents for the information 

collection R–1 Classification 

Supplement to Form I–129 is 6,635 and 


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the estimated hour burden per response 

is 2.34 hours. 

Form name/form No. Number of 

respondents 

Currently 

approved 

burden 

estimates Difference 

(in hours) 

New burden 

estimates 

Avg. burden 

per response 

(in hours) 

Avg. burden 

per response 

(in hours) 

Petition for Nonimmigrant Worker (Form I–129) ............................................. 294,751 2.34 0 2.34 

E–/E–2 Classification Supplement to Form I–129 ........................................... 4,760 0.67 0 0.67 

Trade Agreement Supplement to Form I–129 ................................................. 3.057 0.67 0 0.67 

H Classification Supplement to Form I–129 .................................................... 96,291 2 0.3 2.3 

H–1B and H–1B1 Data Collection and Filing Fee Exemption Supplement .... 96,291 1 0 1 

L Classification Supplement to Form I–129 .................................................... 37,831 1.34 0 1.34 

O and P Classifications Supplement to Form I–129 ....................................... 22,710 1 0 1 

Q–1 Classifications Supplement to Form I–129 .............................................. 155 0.34 0 0.34 

R–1 Classifications Supplement to Form I–129 .............................................. 6,635 2.34 0 2.34 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection is 1,101,697 hours. This is an 

increase from the current estimate of 

1,072,810 burden hours annually. The 

overall change in burden estimates 

reflects the proposed changes in the rule 

related to the removal of the list of 

countries of citizenship section on the 

form and eligible countries list from the 

instructions, addition of question on 

exception to the three-year limit and 

requests for evidence, rewriting of 

questions and instructional content on 

prohibited fees and evidence and other 

H–2A and H–2B violations, addition of 

clarifying language to H–2A and H–2B 

petitioner and employer obligations 

questions, addition of questions and 

reformatting for the joint employer 

section, removal of E-Verify and 

corresponding H–2A petitions 

instructions, addition of instructional 

content in the recruitment of H–2A and 

H–2B workers section, removal of 

instructional content on interrupted 

stays, and addition of clarifying 

language to the notification 

requirements instructional content. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is $70,681,290. 

List of Subjects 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Foreign officials, 

Health professions, Reporting and 

recordkeeping requirements, Students. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Cultural exchange 

program, Employment, Penalties, 

Reporting and recordkeeping 

requirements, Students. 

Regulatory Amendments 

Accordingly, DHS proposes to amend 

chapter I of title 8 of the Code of Federal 

Regulations as follows: 

PART 214—NONIMMIGRANT CLASSES 

■ 1. The authority citation for part 214 

continues to read as follows: 

Authority: 6 U.S.C. 202, 236; 8 U.S.C. 

1101, 1102, 1103, 1182, 1184, 1186a, 1187, 

1188, 1221, 1281, 1282, 1301–1305, 1357, 

and 1372; sec. 643, Pub. L. 104–208, 110 Stat. 

3009–708; Pub. L. 106–386, 114 Stat. 1477– 

1480; section 141 of the Compacts of Free 

Association with the Federated States of 

Micronesia and the Republic of the Marshall 

Islands, and with the Government of Palau, 

48 U.S.C. 1901 note and 1931 note, 

respectively; 48 U.S.C. 1806; 8 CFR part 2; 

Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 

1806). 

■ 2. Section 214.2 is amended by: 

■ a. Revising paragraph (h)(2)(i)(D); 

■ b. Redesignating paragraph (h)(2)(i)(I) 

as paragraph (h)(2)(i)(J), and adding a 

new paragraph (h)(2)(i)(I); 

■ c. Revising paragraphs (h)(2)(ii) and 

(iii); 

■ d. Removing paragraph (h)(5)(i)(F); 

■ e. Removing and reserving paragraph 

(h)(5)(iii)(B); 

■ f. Revising paragraphs (h)(5)(vi)(A), 

(B)(1)(i) and (iii), and removing 

(h)(5)(vi)(E); 

■ g. Revising paragraphs (h)(5)(viii)(B) 

and (C) and adding (D); 

■ h. Revising paragraphs (h)(5)(ix) and 

(xi); 

■ i. Removing paragraph (h)(5)(xii); 

■ j. Revising paragraphs (h)(6)(i)(B) 

through (D); 

■ k. Removing and reserving paragraph 

(h)(6)(i)(E); 

■ l. Revising paragraph (h)(6)(i)(F); 

■ m. Revising paragraph (h)(6)(vii); 

■ n. Adding paragraph (h)(10)(iii); 

■ o. Adding paragraph (h)(11)(iv); 

■ p. Revising paragraphs (h)(13)(i), (iv) 

and (v); 

■ q. Revising paragraph (h)(16)(ii) and 

adding (h)(16)(iii); 

■ r. Revising paragraph (h)(20); and 

■ s. Adding paragraph (h)(30). 

The revisions and additions read as 

follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(h) * * * 

(2) * * * 

(i) * * * 

(D) Change of employers. If the alien 

is in the United States and seeks to 

change employers, the prospective new 

employer must file a petition for a 

nonimmigrant worker requesting 

classification and an extension of the 

alien’s stay in the United States. If the 

new petition is approved, the extension 

of stay may be granted for the validity 

of the approved petition. The validity of 

the petition and the alien’s extension of 

stay must conform to the limits on the 

alien’s temporary stay that are 

prescribed in paragraph (h)(13) of this 

section. Except as provided in 

paragraph (h)(2)(i)(I) of this section, 8 

CFR 274a.12(b)(21), or section 214(n) of 

the Act, 8 U.S.C. 1184(n), the alien is 

not authorized to begin the employment 

with the new petitioner until the 

petition is approved. An H–1C 

nonimmigrant alien may not change 

employers. 

* * * * * 

(I) H–2A and H–2B portability. An 

eligible H–2A or H–2B nonimmigrant is 


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authorized to start new employment 

upon the proper filing, in accordance 

with 8 CFR 103.2(a), of a nonfrivolous 

H–2A or H–2B petition on behalf of 

such alien requesting the same 

classification that the nonimmigrant 

alien currently holds, or as of the 

requested start date, whichever is later. 

(1) Eligible H–2A or H–2B 

nonimmigrant. For H–2A and H–2B 

portability purposes, an eligible H–2A 

or H–2B nonimmigrant is defined as an 

alien: 

(i) Who has been lawfully admitted 

into the United States in, or otherwise 

provided, H–2A or H–2B nonimmigrant 

status; 

(ii) On whose behalf a nonfrivolous 

H–2A or H–2B petition for new 

employment has been properly filed, 

including a petition for new 

employment with the same employer, 

with a request to amend or extend the 

H–2A or H–2B nonimmigrant’s stay in 

the same classification that the 

nonimmigrant currently holds, before 

the H–2A or H–2B nonimmigrant’s 

period of stay authorized by the 

Secretary of Homeland Security expires; 

and 

(iii) Who has not been employed 

without authorization in the United 

States from the time of last admission 

through the filing of the petition for new 

employment. 

(2) Length of employment. 

Employment authorized under this 

paragraph (h)(2)(i)(I) automatically 

ceases upon the adjudication or 

withdrawal of the H–2A or H–2B 

petition described in paragraph 

(h)(2)(i)(I)(1)(ii) of this section. 

(3) Application of H–2A or H–2B 

program requirements during the 

pendency of the petition. The petitioner 

and any employer is required to comply 

with all H–2A or H–2B program 

requirements, as applicable under the 

relevant program, with respect to an 

alien who has commenced new 

employment with that petitioner or 

employer based on a properly filed 

nonfrivolous petition and while that 

petition is pending, even if the petition 

is subsequently denied or withdrawn. 

During the pendency of the petition, the 

alien will not be considered to have 

been in a period of unauthorized stay or 

employed in the United States without 

authorization solely on the basis of 

employment pursuant to the new 

petition, even if the petition is 

subsequently denied or withdrawn. 

(4) Successive H–2A or H–2B 

portability petitions. (i) An alien 

maintaining authorization for 

employment under this paragraph 

(h)(2)(i)(I), whose status, as indicated on 

the Arrival-Departure Record (Form I– 

94), has expired, will be considered to 

be in a period of stay authorized by the 

Secretary of Homeland Security for 

purposes of paragraph (h)(2)(i)(I)(1)(ii) of 

this section. If otherwise eligible under 

this paragraph (h)(2)(i)(I), such alien 

may begin working in a subsequent 

position upon the filing of another H– 

2A or H–2B petition in the same 

classification that the nonimmigrant 

alien currently holds or from the 

requested start date, whichever is later, 

notwithstanding that the previous H–2A 

or H–2B petition upon which 

employment is authorized under this 

paragraph (h)(2)(i)(I) remains pending 

and regardless of whether the validity 

period of an approved H–2A or H–2B 

petition filed on the alien’s behalf 

expired during such pendency. 

(ii) A request to amend the petition or 

for an extension of stay in any 

successive H–2A or H–2B portability 

petition requesting the same 

classification that the nonimmigrant 

alien currently holds cannot be 

approved if a request to amend the 

petition or for an extension of stay in 

any preceding H–2A or H–2B portability 

petition in the succession is denied, 

unless the beneficiary’s previously 

approved period of H–2A or H–2B 

status remains valid. 

(iii) Denial of a successive portability 

petition does not affect the ability of the 

H–2A or H–2B beneficiary to continue 

or resume working in accordance with 

the terms of an H–2A or H–2B petition 

previously approved on behalf of the 

beneficiary if that petition approval 

remains valid, and the beneficiary has 

either maintained H–2A or H–2B status, 

as appropriate, or been in a period of 

authorized stay and has not been 

employed in the United States without 

authorization. 

* * * * * 

(ii) Multiple beneficiaries. More than 

one beneficiary may be included in an 

H–1C, H–2A, H–2B, or H–3 petition if 

the beneficiaries will be performing the 

same service, or receiving the same 

training, for the same period of time, 

and in the same location. 

(iii) Naming beneficiaries. H–1B, H– 

1C, and H–3 petitions must include the 

name of each beneficiary. Except as 

provided in this paragraph (h), all H–2A 

and H–2B petitions must include the 

name of each beneficiary who is 

currently in the United States, but need 

not name any beneficiary who is not 

currently in the United States. Unnamed 

beneficiaries must be shown on the 

petition by total number. USCIS may 

require the petitioner to name H–2B 

beneficiaries where the name is needed 

to establish eligibility for H–2B 

nonimmigrant status. If all of the 

beneficiaries covered by an H–2A or H– 

2B temporary labor certification have 

not been identified at the time a petition 

is filed, multiple petitions for 

subsequent beneficiaries may be filed at 

different times but must include a copy 

of the same temporary labor 

certification. Each petition must 

reference all previously filed petitions 

associated with that temporary labor 

certification. 

* * * * * 

(5) * * * 

(vi) * * * 

(A) Consent. In filing an H–2A 

petition, a petitioner and each employer 

consents to allow Government access to 

all sites where the labor is being or will 

be performed and where workers are or 

will be housed and agrees to fully 

cooperate with any compliance review, 

evaluation, verification, or inspection 

conducted by USCIS, including an onsite inspection of the employer’s 

facilities, review of the employer’s 

records related to the compliance with 

immigration laws and regulations, and 

interview of the employer’s employees 

and any other individuals possessing 

pertinent information, which may be 

conducted in the absence of the 

employer or the employer’s 

representatives, as a condition for the 

approval of the petition. The interviews 

may be conducted on the employer’s 

property, or as feasible, at a neutral 

location agreed to by the employee and 

USCIS away from the employer’s 

property. If USCIS is unable to verify 

facts, including due to the failure or 

refusal of the petitioner or employer to 

cooperate in an inspection or other 

compliance review, then such inability 

to verify facts, including due to failure 

or refusal to cooperate, may result in 

denial or revocation of any H–2A 

petition for H–2A workers performing 

services at the location or locations that 

are a subject of inspection or 

compliance review. 

(B) * * * 

(1) * * * 

(i) An H–2A worker does not report to 

work within 5 workdays of the 

employment start date on the H–2A 

petition or within 5 workdays of the 

start date established by their employer, 

whichever is later; 

* * * * * 

(iii) The H–2A worker does not report 

for work for a period of 5 consecutive 

workdays without the consent of the 

employer or is terminated prior to the 

completion of agricultural labor or 

services for which they were hired. 

* * * * * 

(viii) * * * 


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(B) Period of admission. An alien 

admissible as an H–2A nonimmigrant 

will be admitted for the period of the 

approved petition. Such alien will be 

admitted for an additional period of up 

to 10 days before the beginning of the 

approved period for the purpose of 

travel to the worksite, and up to 30 days 

subject to the 3-year limitation in 

paragraph (h)(5)(viii)(C) of this section 

following the expiration of the H–2A 

petition for the purpose of departure or 

to seek an extension based on a 

subsequent offer of employment. Unless 

authorized under 8 CFR 274a.12, the 

alien may not work except during the 

validity period of the petition. 

(C) Limits on an individual’s stay. 

Except as provided in paragraph 

(h)(5)(viii)(B) of this section, an alien’s 

stay as an H–2A nonimmigrant is 

limited by the period of time stated in 

an approved petition. An alien may 

remain longer to engage in other 

qualifying temporary agricultural 

employment by obtaining an extension 

of stay. However, an individual who has 

held H–2A or H–2B status for a total of 

3 years may not again be granted H–2A 

status until such time as they remain 

outside the United States for an 

uninterrupted period of at least 60 days. 

Eligibility under this paragraph 

(h)(5)(viii)(C) will be determined during 

adjudication of a request for admission, 

change of status or extension. An alien 

found eligible for a shorter period of H– 

2A status than that indicated by the 

petition due to the application of this 

paragraph (h)(5)(viii)(C) will only be 

admitted for that shorter period. 

(D) Period of absence. An absence 

from the United States for an 

uninterrupted period of at least 60 days 

at any time will result in the alien 

becoming eligible for a new 3-year 

maximum period of H–2 stay. To 

qualify, the petitioner must provide 

evidence documenting the alien’s 

relevant absence(s) from the United 

States, such as, but not limited to, 

arrival and departure records, copies of 

tax returns, and records of employment 

abroad. 

(ix) Substitution of beneficiaries after 

admission. An H–2A petition may be 

filed to replace H–2A workers whose 

employment was terminated earlier than 

the end date stated on the H–2A petition 

and before the completion of work; who 

do not report to work within 5 workdays 

of the employment start date on the H– 

2A petition or within 5 workdays of the 

start date established by their employer, 

whichever is later; or who do not report 

for work for a period of 5 consecutive 

workdays without the consent of the 

employer. The petition must be filed 

with a copy of the temporary labor 

certification, a copy of the approval 

notice covering the workers for which 

replacements are sought, and other 

evidence required by paragraph 

(h)(5)(i)(D) of this section. It must also 

be filed with a statement giving the 

name, date and country of birth, 

termination date, and the reason for 

termination, if applicable, for such 

worker and the date that USCIS was 

notified that the worker was terminated 

or did not report for work for a period 

of 5 consecutive workdays without the 

consent of the employer. A petition for 

a replacement will not be approved 

where the requirements of paragraph 

(h)(5)(vi) of this section have not been 

met. A petition for replacements does 

not constitute the notification required 

by paragraph (h)(5)(vi)(B)(1) of this 

section. 

* * * * * 

(xi) Treatment of petitions and alien 

beneficiaries upon a determination that 

fees were collected from alien 

beneficiaries—(A) Denial or revocation 

of petition for prohibited fees. As a 

condition to approval of an H–2A 

petition, no job placement fee, fee or 

penalty for breach of contract, or other 

fee, penalty, or compensation (either 

direct or indirect), related to the H–2A 

employment (collectively, ‘‘prohibited 

fees’’) may be collected at any time from 

a beneficiary of an H–2A petition by a 

petitioner, a petitioner’s employee, 

agent, attorney, facilitator, recruiter, or 

similar employment service, or by any 

employer (if different from the 

petitioner) or any joint employer, 

including a member employer if the 

petitioner is an association of U.S. 

agricultural producers. The 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. This provision does not prohibit 

petitioners (including its employees), 

employers or any joint employers, 

agents, attorneys, facilitators, recruiters, 

or similar employment services from 

receiving reimbursement for costs that 

are the responsibility and primarily for 

the benefit of the worker, such as 

government-required passport fees. 

(1) If USCIS determines that the 

petitioner or any of its employees, 

whether before or after the filing of the 

H–2A petition, has collected, or entered 

into an agreement to collect, a 

prohibited fee related to the H–2A 

employment, the H–2A petition will be 

denied or revoked on notice unless the 

petitioner demonstrates through clear 

and convincing evidence that 

extraordinary circumstances beyond the 

petitioner’s control resulted in its failure 

to prevent collection or entry into 

agreement for collection of prohibited 

fees, and that it has fully reimbursed all 

affected beneficiaries or the 

beneficiaries’ designees. To qualify for 

this exception, a petitioner must first 

establish the circumstances were rare 

and unforeseeable, and that it had made 

significant efforts to prevent prohibited 

fees prior to the collection of or 

agreement to collect such fees. Further, 

a petitioner must establish that it took 

immediate remedial action as soon as it 

became aware of the payment of the 

prohibited fee. Moreover, a petitioner 

must establish that it has fully 

reimbursed all affected beneficiaries or, 

only if such beneficiaries cannot be 

located or are deceased, that it has fully 

reimbursed their designees. A designee 

must be an individual or entity for 

whom the beneficiary has provided the 

petitioner or its successor in interest 

prior written authorization to receive 

such reimbursement, as long as the 

petitioner or its successor in interest, or 

its agent, employer (if different from the 

petitioner), or any joint employer, 

attorney, facilitator, recruiter, or similar 

employment service would not act as 

such designee or derive any financial 

benefit, either directly or indirectly, 

from the reimbursement. 

(2) If USCIS determines that the 

beneficiary has paid or agreed to pay a 

prohibited fee related to the H–2A 

employment, whether before or after the 

filing of the H–2A petition, to any agent, 

attorney, employer, facilitator, recruiter, 

or similar employment service, or any 

joint employer, including a member 

employer if the petitioner is an 

association of U.S. agricultural 

producers, the H–2A petition will be 

denied or revoked on notice unless the 

petitioner demonstrates to USCIS 

through clear and convincing evidence 

that it did not know and could not, 

through due diligence, have learned of 

such payment or agreement and that all 

affected beneficiaries or their designees 

have been fully reimbursed. A written 

contract between the petitioner and the 

agent, attorney, facilitator, recruiter, 

similar employment service, or member 

employer stating that such fees were 

prohibited will not, by itself, be 

sufficient to meet this standard of proof. 

(B) 1-year bar on approval of 

subsequent H–2A petitions. USCIS will 

deny any H–2A petition filed by the 

same petitioner or a successor in 

interest within 1 year after the decision 

denying or revoking on notice an H–2A 

or H–2B petition on the basis of 

paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), 

respectively, of this section. In addition, 

USCIS will deny any H–2A petition 

filed by the same petitioner or successor 


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in interest within 1 year after 

withdrawal of an H–2A or H–2B 

petition that was withdrawn following 

USCIS issuance of a request for 

evidence or notice of intent to deny or 

revoke the petition on the basis of 

paragraph (h)(5)(xi)(A) or (h)(6)(i)(B), 

respectively, of this section. 

(C) Reimbursement as condition to 

approval of future H–2A petitions—(1) 

Additional 3-year bar on approval of 

subsequent H–2A petitions. For an 

additional 3 years after the 1-year period 

described in paragraph (h)(5)(xi)(B) of 

this section, USCIS will deny any H–2A 

petition filed by the same petitioner or 

successor in interest, unless the 

petitioner or successor in interest 

demonstrates to USCIS that the 

petitioner, successor in interest, or the 

petitioner’s or successor in interest’s 

agent, facilitator, recruiter, or similar 

employment service, or any joint 

employer, including a member 

employer if the petitioner is an 

association of U.S. agricultural 

producers, reimbursed in full each 

beneficiary, or the beneficiary’s 

designee, of the denied or revoked 

petition from whom a prohibited fee 

was collected. 

(2) Successor in interest. For the 

purposes of paragraphs (h)(5)(xi)(B) and 

(C) of this section, successor in interest 

means an employer that is controlling 

and carrying on the business of a 

previous employer regardless of 

whether such successor in interest has 

succeeded to all of the rights and 

liabilities of the predecessor entity. The 

following factors may be considered by 

USCIS in determining whether an 

employer is a successor in interest; no 

one factor is dispositive, but all of the 

circumstances will be considered as a 

whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Substantial continuity of the work 

force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, production methods, or 

assets required to conduct business; 

(viii) Similarity of products and 

services; 

(ix) Familial or close personal 

relationships between predecessor and 

successor owners of the entity; and 

(x) Use of the same or related 

remittance sources for business 

payments. 

(6) * * * 

(i) * * * 

(B) Denial or revocation of petition for 

prohibited fees. As a condition of 

approval of an H–2B petition, no job 

placement fee, fee or penalty for breach 

of contract, or other fee, penalty, or 

compensation (either direct or indirect), 

related to the H–2B employment 

(collectively, ‘‘prohibited fees’’) may be 

collected at any time from a beneficiary 

of an H–2B petition by a petitioner, a 

petitioner’s employee, agent, attorney, 

facilitator, recruiter, or similar 

employment service, or any employer (if 

different from the petitioner). The 

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. This provision does not prohibit 

petitioners (including its employees), 

employers, agents, attorneys, 

facilitators, recruiters, or similar 

employment services from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. 

(1) If USCIS determines that the 

petitioner or any of its employees, 

whether before or after the filing of the 

H–2B petition, has collected or entered 

into an agreement to collect a prohibited 

fee related to the H–2B employment, the 

H–2B petition will be denied or revoked 

on notice unless the petitioner 

demonstrates through clear and 

convincing evidence that extraordinary 

circumstances beyond the petitioner’s 

control resulted in its failure to prevent 

collection or entry into agreement for 

collection of prohibited fees, and that it 

has fully reimbursed all affected 

beneficiaries or the beneficiaries’ 

designees. To qualify for this exception, 

a petitioner must first establish that the 

circumstances were rare and 

unforeseeable, and that it had made 

significant efforts to prevent prohibited 

fees prior to the collection of or 

agreement to collect such fees. Further, 

a petitioner must establish that it took 

immediate remedial action as soon as it 

became aware of the payment of the 

prohibited fee. Moreover, a petitioner 

must establish that it has fully 

reimbursed all affected beneficiaries or, 

only if such beneficiaries cannot be 

located or are deceased, that it has fully 

reimbursed their designees. A designee 

must be an individual or entity for 

whom the beneficiary has provided the 

petitioner or its successor in interest 

prior written authorization to receive 

such reimbursement, as long as the 

petitioner or its successor in interest, or 

its agent, employer, attorney, facilitator, 

recruiter, or similar employment service 

would not act as such designee or derive 

any financial benefit, either directly or 

indirectly, from the reimbursement. 

(2) If USCIS determines that the 

beneficiary has paid or agreed to pay 

any employer, agent, attorney, 

facilitator, recruiter, or similar 

employment service a prohibited fee 

related to the H–2B employment, 

whether before or after the filing of the 

H–2B petition, the H–2B petition will be 

denied or revoked on notice unless the 

petitioner demonstrates to USCIS 

through clear and convincing evidence 

that it did not know and could not, 

through due diligence, have learned of 

such payment or agreement and that all 

affected beneficiaries or their designees 

have been fully reimbursed. A written 

contract between the petitioner and the 

facilitator, recruiter, or similar 

employment service stating that such 

fees were prohibited will not, by itself, 

be sufficient to meet this standard of 

proof. 

(C) 1-year bar on approval of 

subsequent H–2B petitions. USCIS will 

deny any H–2B petition filed by the 

same petitioner or a successor in 

interest within 1 year after the decision 

denying or revoking on notice an H–2B 

or H–2A petition on the basis of 

paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), 

respectively, of this section. In addition, 

USCIS will deny any H–2B petition 

filed by the same petitioner or successor 

in interest within 1 year after 

withdrawal of an H–2B or H–2A 

petition that was withdrawn following 

USCIS issuance of a request for 

evidence or notice of intent to deny or 

revoke the petition on the basis of 

paragraph (h)(6)(i)(B) or (h)(5)(xi)(A), 

respectively, of this section. 

(D) Reimbursement as condition to 

approval of future H–2B petitions —(1) 

Additional 3-year bar on approval of 

subsequent H–2B petitions. For an 

additional 3 years after the 1-year period 

described in paragraph (h)(6)(i)(C) of 

this section, USCIS will deny any H–2B 

petition filed by the same petitioner or 

successor in interest, unless the 

petitioner or successor in interest 

demonstrates to USCIS that the 

petitioner or successor in interest, or the 

petitioner’s or successor in interest’s 

agent, facilitator, recruiter, or similar 

employment service, reimbursed in full 

each beneficiary, or the beneficiary’s 

designee, of the denied or revoked 

petition from whom a prohibited fee 

was collected. 

(2) Successor in interest. For the 

purposes of paragraphs (h)(6)(i)(C) and 

(D) of this section, successor in interest 

means an employer that is controlling 

and carrying on the business of a 

previous employer regardless of 


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whether such successor in interest has 

succeeded to all of the rights and 

liabilities of the predecessor entity. The 

following factors may be considered by 

USCIS in determining whether an 

employer is a successor in interest; no 

one factor is dispositive, but all of the 

circumstances will be considered as a 

whole: 

(i) Substantial continuity of the same 

business operations; 

(ii) Use of the same facilities; 

(iii) Substantial continuity of the work 

force; 

(iv) Similarity of jobs and working 

conditions; 

(v) Similarity of supervisory 

personnel; 

(vi) Whether the former management 

or owner retains a direct or indirect 

interest in the new enterprise; 

(vii) Similarity in machinery, 

equipment, production methods, or 

assets required to conduct business; 

(viii) Similarity of products and 

services; 

(ix) Familial or close personal 

relationships between predecessor and 

successor owners of the entity; and 

(x) Use of the same or related 

remittance sources for business 

payments. 

* * * * * 

(F) Petitioner agreements and 

notification requirements—(1) 

Agreements. The petitioner must notify 

DHS, within 2 workdays, and beginning 

on a date and in a manner specified in 

a notice published in the Federal 

Register if: An H–2B worker does not 

report for work within 5 workdays after 

the employment start date stated on the 

petition; the nonagricultural labor or 

services for which H–2B workers were 

hired were completed more than 30 

days early; or an H–2B worker does not 

report for work for a period of 5 

consecutive workdays without the 

consent of the employer or is terminated 

prior to the completion of the 

nonagricultural labor or services for 

which they were hired. The petitioner 

must also retain evidence of such 

notification and make it available for 

inspection by DHS officers for a 1-year 

period beginning on the date of the 

notification. 

(2) Consent. In filing an H–2B 

petition, the petitioner and each 

employer (if different from the 

petitioner) consent to allow Government 

access to all sites where the labor is 

being or will be performed and agrees to 

fully cooperate with any compliance 

review, evaluation, verification, or 

inspection conducted by USCIS, 

including an on-site inspection of the 

employer’s facilities, review of the 

employer’s records related to the 

compliance with immigration laws and 

regulations, and interview of the 

employer’s employees and any other 

individuals possessing pertinent 

information, which may be conducted 

in the absence of the employer or the 

employer’s representatives, as a 

condition for the approval of the 

petition. The interviews may be 

conducted on the employer’s property, 

or as feasible, at a neutral location 

agreed to by the employee and USCIS 

away from the employer’s property. If 

USCIS is unable to verify facts, 

including due to the failure or refusal of 

the petitioner or employer to cooperate 

in an inspection or other compliance 

review, then such inability to verify 

facts, including due to failure or refusal 

to cooperate, may result in denial or 

revocation of any H–2B petition for H– 

2B workers performing services at the 

location or locations that are a subject 

of inspection or compliance review. 

* * * * * 

(vii) Admission—(A) Period of 

admission. An alien admissible as an H– 

2B nonimmigrant will be admitted for 

the period of the approved petition. 

Such alien will be admitted for an 

additional period of up to 10 days 

before the beginning of the approved 

period for the purpose of travel to the 

worksite, and up to 30 days subject to 

the 3-year limitation in paragraph 

(h)(6)(vii)(B) of this section following 

the expiration of the H–2B petition for 

the purpose of departure or to seek an 

extension based on a subsequent offer of 

employment. Unless authorized under 8 

CFR 274a.12, the alien may not work 

except during the validity period of the 

petition. 

(B) Limits on an individual’s stay. 

Except as provided in paragraph 

(h)(6)(vii)(A) of this section, an alien’s 

stay as an H–2B nonimmigrant is 

limited by the period of time stated in 

an approved petition. An alien may 

remain longer to engage in other 

qualifying temporary nonagricultural 

employment by obtaining an extension 

of stay. However, an individual who has 

held H–2A or H–2B status for a total of 

3 years may not again be granted H–2B 

status until such time as they remain 

outside the United States for an 

uninterrupted period of at least 60 days. 

Eligibility under this paragraph 

(h)(6)(vii)(B) will be determined during 

adjudication of a request for admission, 

change of status or extension of stay. An 

alien found eligible for a shorter period 

of H–2B status than that indicated by 

the petition due to the application of 

this paragraph (h)(6)(vii)(B) will only be 

admitted for that shorter period. 

(C) Period of absence. An absence 

from the United States for an 

uninterrupted period of at least 60 days 

at any time will result in the alien 

becoming eligible for a new 3-year 

maximum period of H–2 stay. The 

limitation in paragraph (h)(6)(vii)(B) of 

this section will not apply to H–2B 

aliens who did not reside continually in 

the United States and whose 

employment in the United States was 

seasonal or intermittent or was for an 

aggregate of 6 months or less per year. 

In addition, the limitation in paragraph 

(h)(6)(vii)(B) of this section will not 

apply to aliens who reside abroad and 

regularly commute to the United States 

to engage in part-time employment. To 

qualify, the petitioner must provide 

evidence documenting the alien’s 

relevant absence(s) from the United 

States, such as, but not limited to, 

arrival and departure records, copies of 

tax returns, and records of employment 

abroad. 

(D) Traded professional H–2B 

athletes. In the case of a professional H– 

2B athlete who is traded from one 

organization to another organization, 

employment authorization for the player 

will automatically continue for a period 

of 30 days after the player’s acquisition 

by the new organization, within which 

time the new organization is expected to 

file a new application or petition for H– 

2B nonimmigrant classification. If a new 

application or petition is not filed 

within 30 days, employment 

authorization will cease. If a new 

application or petition is filed within 30 

days, the professional athlete will be 

deemed to be in valid H–2B status, and 

employment will continue to be 

authorized, until the petition is 

adjudicated. If the new petition is 

denied, employment authorization will 

cease. 

* * * * * 

(10) * * * 

(iii) H–2A and H–2B violators—(A) 

USCIS will deny any H–2A or H–2B 

petition filed by a petitioner, or the 

successor in interest of a petitioner as 

defined in paragraphs (h)(5)(xi)(C)(2) 

and (h)(6)(i)(D)(2) of this section, that 

has been the subject of one or more of 

the following actions: 

(1) A final administrative 

determination by the Secretary of Labor 

under 20 CFR part 655, subpart A or B, 

or 29 CFR part 501 or 503 debarring the 

petitioner from filing or receiving a 

future labor certification, or a final 

administrative determination by the 

Governor of Guam debarring the 

petitioner from issuance of future labor 

certifications under applicable Guam 

regulations and rules, if the petition is 


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filed during the debarment period, or if 

the debarment occurs during the 

pendency of the petition; or 

(2) A final USCIS denial or revocation 

decision with respect to a prior H–2A or 

H–2B petition that includes a finding of 

fraud or willful misrepresentation of a 

material fact during the pendency of the 

petition or within 3 years prior to filing 

the petition; or 

(3) 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. 

(B) Except as provided in paragraph 

(h)(10)(iii)(A) of this section, USCIS may 

deny any H–2A or H–2B petition filed 

by a petitioner, or the successor in 

interest of a petitioner as defined in 

paragraphs (h)(5)(xi)(C)(2) and 

(h)(6)(i)(D)(2) of this section, that has 

been the subject of one or more of the 

following actions during the pendency 

of the petition or within 3 years prior to 

filing the petition. USCIS may deny 

such a petition if it determines that the 

petitioner or successor has not 

established its intention or the ability to 

comply with H–2A or H–2B program 

requirements. The violation(s) 

underlying the following actions may 

call into question a petitioner’s or 

successor’s intention or ability to 

comply: 

(1) A final administrative 

determination by the Secretary of Labor 

or the Governor of Guam with respect to 

a prior H–2A or H–2B temporary labor 

certification that includes: 

(i) Revocation of an approved 

temporary labor certification under 20 

CFR part 655, subpart A or B, or 

applicable Guam regulations and rules; 

(ii) Debarment under 20 CFR part 655, 

subpart A or B, or 29 CFR part 501 or 

503, or applicable Guam regulations and 

rules, if the debarment period has 

concluded prior to filing the petition; or 

(iii) Any other administrative sanction 

or remedy under 29 CFR part 501 or 

503, or applicable Guam regulations and 

rules, including assessment of civil 

money penalties as described in those 

parts. 

(2) A USCIS decision revoking the 

approval of a prior petition that 

includes one or more of the following 

findings: the beneficiary was not 

employed by the petitioner in the 

capacity specified in the petition; the 

statement of facts contained in the 

petition or on the application for a 

temporary labor certification was not 

true and correct, or was inaccurate; the 

petitioner violated terms and conditions 

of the approved petition; or the 

petitioner violated requirements of 

section 101(a)(15)(H) of the Act or this 

paragraph (h); or 

(3) Any final administrative or 

judicial determination (other than one 

described in paragraph (h)(10)(iii)(A) of 

this section) that the petitioner violated 

any applicable employment-related laws 

or regulations, including health and 

safety laws or regulations. 

(C) In determining whether the 

underlying violation(s) in paragraph 

(h)(10)(iii)(B) of this section calls into 

question the ability or intention of the 

petitioner or its successor in interest to 

comply with H–2A or H–2B program 

requirements, USCIS will consider all 

relevant factors, including, but not 

limited to: 

(1) The recency and number of 

violations; 

(2) The egregiousness of the 

violation(s), including how many 

workers were affected, and whether it 

involved a risk to the health or safety of 

workers; 

(3) Overall history or pattern of prior 

violations; 

(4) The severity or monetary amount 

of any penalties imposed; 

(5) Whether the final determination, 

decision, or conviction included a 

finding of willfulness; 

(6) The extent to which the violator 

achieved a financial gain due to the 

violation(s), or the potential financial 

loss or potential financial injury to the 

workers; 

(7) Timely compliance with all 

penalties and remedies ordered under 

the final determination(s), decision(s), 

or conviction(s); and 

(8) Other corrective actions taken by 

the petitioner or its successor in interest 

to cure its violation(s) or prevent future 

violations. 

(D) For purposes of paragraph 

(h)(10)(iii) of this section, a criminal 

conviction or final administrative or 

judicial determination against any one 

of the following individuals will be 

treated as a conviction or final 

administrative or judicial determination 

against the petitioner or successor in 

interest: 

(1) An individual acting on behalf of 

the petitioning entity, which could 

include, among others, the petitioner’s 

owner, employee, or contractor; or 

(2) With respect to paragraph 

(h)(10)(iii)(B) of this section, an 

employee of the petitioning entity who 

a reasonable person in the H–2A or H– 

2B worker’s position would believe is 

acting on behalf of the petitioning 

entity. 

(E)(1) With respect to denials under 

paragraph (h)(10)(iii)(A) of this section, 

USCIS will inform the petitioner of the 

right to appeal the denial under 8 CFR 

103.3, and indicate in the denial notice 

that the mandatory ground of denial 

will also apply in the adjudication of 

any other pending or future H–2 

petition filed by the petitioner or a 

successor in interest during the 

applicable time period. 

(2) With respect to denials under 

paragraph (h)(10)(iii)(B) of this section, 

USCIS will inform the petitioner of the 

right to appeal the denial under 8 CFR 

103.3, and indicate in the denial notice 

that the discretionary ground of denial 

may also apply in the adjudication of 

any other pending or future H–2 

petition filed by the petitioner or a 

successor in interest during the 

applicable time period. 

(11) * * * 

(iv) Effect of H–2A or H–2B petition 

revocation. Upon revocation of the 

approval of an employer’s H–2A or H– 

2B petition, the beneficiary and their 

dependents will not be considered to 

have failed to maintain nonimmigrant 

status, and will not accrue any period of 

unlawful presence under section 

212(a)(9) of the Act (8 U.S.C. 1182(a)(9)), 

solely on the basis of the petition 

revocation for a 60-day period following 

the date of the revocation, or until the 

end of the authorized period of 

admission, whichever is shorter. During 

such a period, the alien may only work 

as otherwise authorized under 8 CFR 

274a.12. The employer will be liable for 

the alien beneficiary’s reasonable costs 

of return transportation to their last 

place of foreign residence abroad, unless 

such alien obtains an extension of stay 

based on an approved petition in the 

same classification filed by a different 

employer. 

* * * * * 

(13) * * * 

(i) General. (A) An H–3 beneficiary 

will be admitted to the United States for 

the validity period of the petition, plus 

a period of up to 10 days before the 

validity period begins and 10 days after 

the validity period ends. The 

beneficiary may not work except during 

the validity period of the petition. 

(B) When an alien in an H 

classification has spent the maximum 

allowable period of stay in the United 

States, a new petition under section 

101(a)(15)(H) or (L) of the Act may not 

be approved unless that alien has 

resided and been physically present 

outside the United States, except for 

brief trips for business or pleasure, for 

the time limit imposed on the particular 

H classification. Brief trips to the United 

States for business or pleasure during 

the required time abroad are not 

interruptive, but do not count toward 

fulfillment of the required time abroad. 


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A certain period of absence from the 

United States of H–2A and H–2B aliens, 

as set forth in 8 CFR 214.2(h)(5)(viii)(D) 

and 8 CFR 214.2(h)(6)(vii)(C), 

respectively, will provide a new total of 

3 years that H–2A or H–2B status may 

be granted. The petitioner must provide 

information about the alien’s 

employment, place of residence, and the 

dates and purposes of any trips to the 

United States during the period that the 

alien was required to reside abroad. 

(C) An alien admitted or otherwise 

provided status in H–2A or H–2B 

classification and their dependents will 

not be considered to have failed to 

maintain nonimmigrant status, and will 

not accrue any period of unlawful 

presence under section 212(a)(9) of the 

Act (8 U.S.C. 1182(a)(9)), solely on the 

basis of a cessation of the employment 

on which the alien’s classification was 

based, for 60 consecutive days or until 

the end of the authorized period of 

admission, whichever is shorter, once 

during each authorized period of 

admission. During such a period, the 

alien may only work as otherwise 

authorized under 8 CFR 274a.12. 

(D) An alien in any authorized period 

described in paragraph (C) of this 

section may apply for and be granted an 

extension of stay under 8 CFR 

214.1(c)(4) or change of status under 8 

CFR 248.1, if otherwise eligible. 

* * * * * 

(iv) H–3 limitation on admission. An 

H–3 alien participant in a special 

education program who has spent 18 

months in the United States under 

sections 101(a)(15)(H) and/or (L) of the 

Act; and an H–3 alien trainee who has 

spent 24 months in the United States 

under sections 101(a)(15)(H) and/or (L) 

of the Act may not seek extension, 

change status, or be readmitted to the 

United States under sections 

101(a)(15)(H) and/or (L) of the Act 

unless the alien has resided and been 

physically present outside the United 

States for the immediate prior 6 months. 

(v) Exceptions. The limitations in 

paragraphs (h)(13)(iii) and (iv) of this 

section will not apply to H–1B and H– 

3 aliens who did not reside continually 

in the United States and whose 

employment in the United States was 

seasonal or intermittent or was for an 

aggregate of 6 months or less per year. 

In addition, the limitations will not 

apply to aliens who reside abroad and 

regularly commute to the United States 

to engage in part-time employment. To 

qualify for this exception, the petitioner 

and the alien must provide clear and 

convincing proof that the alien qualifies 

for such an exception. Such proof shall 

consist of evidence such as arrival and 

departure records, copies of tax returns, 

and records of employment abroad. 

* * * * * 

(16) * * * 

(ii) H–2A or H–2B classification. The 

approval of a permanent labor 

certification, the filing of a preference 

petition for an alien, or an application 

by an alien to seek lawful permanent 

residence or an immigrant visa, will not, 

standing alone, be the basis for denying 

an H–2 petition, a request to extend 

such a petition, or an application for 

admission in, change of status to, or 

extension of stay in H–2 status. The 

approval of a permanent labor 

certification, filing of a preference 

petition, or filing of an application for 

adjustment of status or an immigrant 

visa will be considered, together with 

all other facts presented, in determining 

whether the H–2 nonimmigrant is 

maintaining his or her H–2 status and 

whether the alien has a residence in a 

foreign country which he or she has no 

intention of abandoning. 

(iii) H–3 classification. The approval 

of a permanent labor certification, or the 

filing of a preference petition for an 

alien currently employed by or in a 

training position with the same 

petitioner, will be a reason, by itself, to 

deny the alien’s extension of stay. 

* * * * * 

(20) Retaliatory action claims. (i) If 

credible documentary evidence is 

provided in support of a petition 

seeking an extension of H–1B stay in or 

change of status to another classification 

indicating that the beneficiary faced 

retaliatory action from their employer 

based on a report regarding a violation 

of that employer’s labor condition 

application obligations under section 

212(n)(2)(C)(iv) of the Act, USCIS may 

consider a loss or failure to maintain H– 

1B status by the beneficiary related to 

such violation as due to, and 

commensurate with, ‘‘extraordinary 

circumstances’’ as defined by 

§ 214.1(c)(4) and 8 CFR 248.1(b). 

(ii) If credible documentary evidence 

is provided in support of a petition 

seeking an extension of H–2A or H–2B 

stay in or change of status to another 

classification indicating that the 

beneficiary faced retaliatory action from 

their employer based on a reasonable 

claim of a violation or potential 

violation of any applicable program 

requirements or based on engagement in 

another protected activity, USCIS may 

consider a loss or failure to maintain H– 

2A or H–2B status by the beneficiary 

related to such violation as due to, and 

commensurate with, ‘‘extraordinary 

circumstances’’ as defined by 

§ 214.1(c)(4) and 8 CFR 248.1(b). 

* * * * * 

(30) Severability. The Department 

intends that should any of the 

[amendments made by ‘‘Modernizing 

H–2 Program Requirements, Oversight, 

and Worker Protections’’], be held to be 

invalid or unenforceable by their terms 

or as applied to any person or 

circumstance they should nevertheless 

be construed so as to continue to give 

the maximum effect to the provision(s) 

permitted by law. If, however, such 

holding is that the provision(s) is 

wholly invalid and unenforceable, the 

[amendments to those provision(s)] 

should be severed from the remainder of 

[the rule], and the holding should not 

affect the remainder of the sections 

amended [by the rule] or the application 

of the provision(s) to persons not 

similarly situated or to dissimilar 

circumstances 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 3. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1105a, 

1324a; 48 U.S.C. 1806; Pub. L. 101–410, 104 

Stat. 890, as amended by Pub. L. 114–74, 129 

Stat. 599; Title VII of Pub. L. 110–229, 122 

Stat. 754; Pub. L. 115–218, 132 Stat. 1547; 8 

CFR part 2. 

■ 4. Section 274a.12 is amended by 

revising paragraph (b)(21) to read as 

follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

* * * * * 

(b) * * * 


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65108 Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules 

(21) A nonimmigrant alien within the 

class of aliens described in 8 CFR 

214.2(h)(1)(ii)(C) or 8 CFR 

214.2(h)(1)(ii)(D) for whom a 

nonfrivolous petition requesting an 

extension of stay is properly filed 

pursuant to 8 CFR 214.2 and 8 CFR 

103.2(a) requesting the same 

classification that the nonimmigrant 

alien currently holds. Pursuant to 8 CFR 

214.2(h)(2)(i)(I), such alien is authorized 

to start new employment upon the 

proper filing of the nonfrivolous 

petition requesting an extension of stay 

in the same classification, or as of the 

requested start date, whichever is later. 

The employment authorization under 

this paragraph (b)(21) automatically 

ceases upon the adjudication or 

withdrawal of the H–2A or H–2B 

petition; 

* * * * * 

Alejandro N. Mayorkas, 

Secretary, U.S. Department of Homeland 

Security. 

[FR Doc. 2023–20123 Filed 9–18–23; 8:45 am] 

BILLING CODE 9111–97–P 


lotter on DSK11XQN23PROD with PROPOSALS2