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DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 214 and 274a 

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

2023–0012] 

RIN 1615–AC76 

Modernizing H–2 Program 

Requirements, Oversight, and Worker 

Protections 

AGENCY: U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security (DHS). 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations affecting temporary 

agricultural (H–2A) and temporary 

nonagricultural (H–2B) nonimmigrant 

workers (H–2 programs) and their 

employers. This rulemaking is intended 

to better ensure the integrity of the H– 

2 programs and enhance protections for 

workers. 

DATES: This final rule is effective 

January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Charles L. Nimick, Chief, Business and 

Foreign Workers Division, Office of 

Policy and Strategy, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 5900 Capital 

Gateway Drive, MD, Camp Springs, 

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

is not a toll-free number.) Individuals 

with hearing or speech impairments 

may access the telephone numbers 

above via TTY by calling the toll-free 

Federal Information Relay Service at 1– 

877–889–5627 (TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Legal Authority 

C. Summary of Major Provisions of the 

Regulatory Action 

D. Costs and Benefits 

II. Background 

A. Description of the H–2 Nonimmigrant 

Classifications 

1. H–2A Temporary Agricultural Workers 

2. H–2B Temporary Nonagricultural 

Workers 

III. Changes in the Final Rule 

A. Changes to Provisions Related to 

Payment of Fees, Penalties, or Other 

Compensation by H–2 Beneficiaries 

1. Clarification of Acceptable 

Reimbursement Fees 

2. Prohibiting Breach of Contract Fees and 

Penalties 

3. Similar Employment Services 

4. Extraordinary Circumstances Standard 

5. Due Diligence Standard 

6. Application of the Prohibited Fee 

Provisions, and 1- and 3-Year Denial 

Periods 

B. Application of Mandatory Grounds for 

Denial 

C. Application of Discretionary Grounds 

for Denial 

D. Discretionary Grounds for Denial 

E. Conforming Changes To Align With the 

USCIS Fee Schedule Final Rule 

IV. Response to Public Comments on the 

Proposed Rule 

A. Summary of Comments on the Proposed 

Rule 

B. General Feedback on the Proposed Rule 

1. General Support for the Rule 

2. General Overview of Comments 

Opposing the Rule 

3. Other General Feedback Regarding the 

Rule 

C. Legal Authority and Background 

1. DHS/USCIS Legal Authority 

2. H–2 Program Background 

D. Program Integrity and Worker 

Protections 

1. Payment of Fees, Penalties, or Other 

Compensation by H–2 Beneficiaries 

2. Mandatory and Discretionary Denials for 

Past Violations 

3. Compliance Reviews and Inspections 

4. Whistleblower Protection 

E. Worker Flexibilities 

1. Grace Periods/Admission Periods 

2. Transportation Costs for Revoked H–2 

Petitions 

3. Portability and Extension of Stay 

Petitions 

4. Effect on an H–2 Petition of Approval of 

a Permanent Labor Certification, 

Immigrant Visa Petition, or the Filing of 

an Application for Adjustment of Status 

or an Immigrant Visa 

5. Removal of ‘‘Abscondment,’’ 

‘‘Abscond,’’ and Its Other Variations, and 

Notification to DHS 

F. Program Efficiencies and Reducing 

Barriers to Legal Migration 

1. Eligible Countries Lists 

2. Eliminating the ‘‘Interrupted Stay’’ 

Calculation, Reducing the Period of 

Absence for Resetting the 3-Year Stay 

Clock 

G. Severability 

H. Input on Future Actions/Proposals for 

Beneficiary Notification 

I. Other Comments Related to the Rule or 

H–2 Programs/Requirements 

1. Alternatives and Other General 

Comments on the Proposed Rule 

2. Implementation 

3. Employer/Petitioner Requirements, 

Processes, and Fees 

4. Validity Period and 3-Year Maximum 

Period of Stay 

J. Statutory and Regulatory Requirements 

1. Administrative Procedure Act (APA) 

2. Regulatory Impact Analysis (RIA) (E.O. 

12866 and E.O. 13563) 

K. Out of Scope 

V. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

1. Summary of Major Provisions of the 

Regulatory Action 

2. Summary of Costs and Benefits of the 

Final Rule 

3. Summary of Comments Related to the 

Regulatory Impact Analysis and 

Associated Responses 

4. Background and Purpose of the Rule 

5. Population 

6. Cost-Benefit Analysis 

B. Regulatory Flexibility Act (RFA) C. 

Unfunded Mandates Reform Act of 1995 

(UMRA) 

D. Congressional Review Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 12988 (Civil Justice 

Reform) 

G. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

H. National Environmental Policy Act 

(NEPA) 

I. Paperwork Reduction Act (PRA) 

Table of Abbreviations 

AAO—Administrative Appeals Office 

APA—Administrative Procedure Act 

BLS—Bureau of Labor Statistics 

CBP—U.S. Customs and Border Protection 

CEQ—Council on Environmental Quality 

CFR—Code of Federal Regulations 

CPI–U—Consumer Price Index for All 

Urban Consumers 

DHS—Department of Homeland Security 

DOJ—Department of Justice 

DOL—Department of Labor 

DOS—Department of State 

DOT—Department of Transportation 

ELIS—Electronic Immigration System 

ETA—Employment and Training 

Administration 

FAM—Foreign Affairs Manual 

FDNS—Fraud Detection and National 

Security Directorate 

FR—Federal Register 

FRFA—Final Regulatory Flexibility 

Analysis 

FTE—Full-time equivalent 

FY—Fiscal year 

GAO—Government Accountability Office 

GDOL—Guam Department of Labor 

HR—Human Resources 

HSA—Homeland Security Act of 2002 

H–2A—Temporary Agricultural Workers 

Nonimmigrant Classification 

H–2B—Temporary Nonagricultural 

Workers Nonimmigrant Classification 

ICE—U.S. Immigration and Customs 

Enforcement 

IEFA—Immigration Examinations Fee 

Account 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization 

Service 

IRFA—Initial Regulatory Flexibility 

Analysis 

MOU—Memorandum of understanding 

NAICS—North American Industry 

Classification System 

NEPA—National Environmental Policy Act 

NOID—Notice of intent to deny 

NPRM—Notice of proposed rulemaking 

OFLC—Office of Foreign Labor 

Certification 

OMB—Office of Management and Budget 

OSHA—Occupational Safety and Health 

Administration 

PRA—Paperwork Reduction Act 


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1For 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). 

2The broad authority under INA sections 103(a), 

8 U.S.C. 1103(a)(3), and 214, 8 U.S.C. 1184, applies 

with respect to all of the provisions of this final 

rule, regardless of whether this authority is 

explicitly referenced in responses to specific public 

comments on any of the provisions of this final 

rule. 

3Although several provisions of the INA 

discussed in this final rule refer exclusively to the 

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

read as referring to the Secretary of Homeland 

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

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

1103(a)(1), (g), 1551 note; Nielsen v. Preap, 586 U.S. 

392, 397 n.2 (2019). 

4 In 2009, the Secretary delegated to the Secretary 

of Labor certain authorities under INA sec. 

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

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

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

2009). 

5 DHS is making a change from the NPRM in how 

it refers to these new bases for denial, referring to 

the new 1- and 3-year periods following a petition 

denial or revocation for a prohibited fee as denial 

periods rather than as bars on approval. 

RFA—Regulatory Flexibility Act of 1980 

RFE—Request for evidence 

RIA—Regulatory Impact Analysis 

SBA—Small Business Administration 

TFR—Temporary final rule 

TLC—Temporary labor certification 

UMRA—Unfunded Mandates Reform Act 

of 1995 

USCIS—U.S. Citizenship and Immigration 

Services 

USDA—U.S. Department of Agriculture 

WHD—Wage and Hour Division 

I. Executive Summary 

A. Purpose of the Regulatory Action 

The purpose of this rulemaking is to 

modernize and improve the DHS 

regulations relating to the H–2A 

temporary agricultural worker program 

and the H–2B temporary nonagricultural 

worker program (H–2 programs). 

Through this rule, DHS seeks to 

strengthen worker protections and the 

integrity of the H–2 programs, provide 

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

workers, and improve program 

efficiency. 

B. Legal Authority 

The Immigration and Nationality Act 

(INA or the Act) sec. 101(a)(15)(H)(ii)(a) 

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

and (b), establishes the H–2A and H–2B 

nonimmigrant visa classifications for 

noncitizens 1 who are coming to the 

United States temporarily to perform 

agricultural labor or services or to 

perform nonagricultural services or 

labor, respectively. 

The Secretary’s authority for this rule 

can be found in various provisions of 

the immigration laws, including but not 

limited to INA sections 103(a), 8 U.S.C. 

1103(a), and 214, 8 U.S.C. 1184.2 INA 

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

1103(a), provides the Secretary general 

authority to administer and enforce the 

immigration laws and to issue 

regulations necessary to carry out that 

authority. Section 402 of the Homeland 

Security Act of 2002 (HSA), Public Law 

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

charges the Secretary with 

‘‘[e]stablishing and administering rules 

. . . governing the granting of visas or 

other forms of permission . . . to enter 

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

national immigration enforcement 

policies and priorities.’’ See also HSA 

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

provides that a primary mission of DHS 

is to ‘‘ensure that the overall economic 

security of the United States is not 

diminished by efforts, activities, and 

programs aimed at securing the 

homeland.’’ HSA sec. 101(b)(1)(F), 6 

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

With respect to nonimmigrants in 

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

admission to the United States of any 

alien as a nonimmigrant shall be for 

such time and under such conditions as 

the [Secretary] may by regulations 

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

1184(a)(1); see INA secs. 274A(a)(1) and 

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

(prohibiting employment of noncitizens 

who are not authorized for 

employment). In addition, the HSA 

transferred to USCIS the authority to 

adjudicate petitions for H–2 

nonimmigrant status, establish policies 

for performing that function, and set 

national immigration services policies 

and priorities. See HSA secs. 451(a)(3), 

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

under INA sec. 214(b), 8 U.S.C. 1184(b), 

every noncitizen, with the exception of 

noncitizens seeking L, V, or H–1B 

nonimmigrant status, is presumed to be 

an immigrant unless the noncitizen 

establishes the noncitizen’s entitlement 

to a nonimmigrant status. INA sec. 

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

establishes the nonimmigrant petition 

process as a prerequisite for obtaining 

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

status (except for those in the H–1B1 

classification). This statutory provision 

provides the Secretary of Homeland 

Security with exclusive authority to 

approve or deny H–2 nonimmigrant visa 

petitions after consultation with the 

appropriate agencies of the Government. 

It also authorizes the Secretary to 

prescribe the form of and identify 

information necessary to adjudicate the 

petition. With respect to the H–2A 

classification, this section defines the 

term ‘‘appropriate agencies of [the] 

Government’’ to include the 

Departments of Labor (DOL) and 

Agriculture (USDA), and crossreferences INA sec. 218, 8 U.S.C. 1188. 

Section 214(c)(14) of the INA, 8 U.S.C. 

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

Homeland Security with the authority to 

impose, ‘‘in addition to any other 

remedy authorized by law,’’ such 

administrative remedies (including civil 

monetary penalties) as the Secretary 

‘‘determines to be appropriate’’ and to 

deny petitions for a period of at least 1 

but not more than 5 years, if, after notice 

and an opportunity for a hearing, the 

Secretary finds that an employer 

substantially failed to meet any of the 

conditions of the H–2B petition or 

engaged in willful misrepresentation of 

a material fact in the H–2B petition. See 

INA sec. 214(c)(14)(A)(i) and (ii), 8 

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

authorizes the Secretary to delegate to 

the Secretary of Labor the authority 

under INA sec. 214(c)(14)(A)(i) to 

determine violations and impose 

administrative remedies, including civil 

monetary penalties, and any other 

remedy authorized by law. See INA sec. 

214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B).4

The Secretary of Homeland Security 

may designate officers or employees to 

take and consider evidence concerning 

any matter that is material or relevant to 

the enforcement of the INA. See INA 

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

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

Section 291 of the INA, 8 U.S.C. 1361, 

establishes that the petitioner or 

applicant for a visa or other immigration 

document bears the burden of proof 

with respect to eligibility and 

inadmissibility, including that a 

noncitizen is entitled to the immigration 

status being sought. 

C. Summary of the Major Provisions of 

the Regulatory Action 

This final rule includes the following 

major changes: 

• Program Integrity and Worker 

Protections 

To improve the integrity of the H–2 

programs, DHS is making significant 

revisions to the provisions relating to 

prohibited fees to strengthen the 

existing prohibition on, and 

consequences for, charging certain fees 

to H–2A and H–2B workers, including 

new bases for denial for some H–2 

petitions.5 Further, as a significant new 

program integrity measure and a 

deterrent to petitioners that have been 

found to have committed labor law 

violations or abused the H–2 programs, 

DHS is instituting certain mandatory 

and discretionary grounds for denial of 

an H–2A or H–2B petition. In addition, 

to protect workers who report their 


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employers for program violations, DHS 

is providing H–2A and H–2B workers 

with ‘‘whistleblower protection’’ 

comparable to the protection that is 

currently offered to H–1B workers. 

Additionally, DHS is clarifying 

requirements for petitioners and 

employers to consent to, and fully 

comply with, USCIS compliance 

reviews and inspections. DHS is also 

clarifying USCIS’ authority to deny or 

revoke a petition if USCIS is unable to 

verify information related to the 

petition, including but not limited to 

where such inability is due to lack of 

cooperation from a petitioner or an 

employer during a site visit or other 

compliance review. 

• Worker Flexibilities 

This final rule makes changes meant 

to provide greater flexibility to H–2A 

and H–2B workers. These changes 

include adjustments to the existing 

admission periods before and after the 

validity dates of an approved petition 

(grace periods) so that H–2 workers 

would be considered maintaining valid 

H–2 status for a period of up to 10 days 

prior to the petition’s validity period 

and up to 30 days following the 

expiration of the petition. In addition, 

the final rule provides for an extension 

of the existing 30-day grace period to a 

period of up to 60 days following 

revocation of an approved petition 

during which an H–2 worker may seek 

new qualifying employment or prepare 

for departure from the United States 

without violating their nonimmigrant 

H–2 status or accruing unlawful 

presence. Further, to account for other 

situations in which a worker may 

unexpectedly need to stop working or 

wish to seek new employment, DHS is 

providing a new grace period for up to 

60 days during which an H–2 worker 

can cease working for their petitioner 

while maintaining H–2 status. 

Additionally, in a change meant to 

work in conjunction with the new grace 

period provisions, DHS is permanently 

providing portability—the ability to 

begin new employment with the same 

or new employer upon the proper filing 

of an extension of stay petition rather 

than only upon its approval—to H–2A 

and H–2B workers. Furthermore, in the 

case of petition revocations, DHS is 

clarifying that H–2A employers have the 

same responsibility that H–2B 

employers have for reasonable costs of 

return transportation for the beneficiary. 

DHS also is clarifying that H–2 workers 

will not be considered to have failed to 

maintain their H–2 status and will not 

have H–2 petitions filed on their behalf 

denied solely on the basis of taking 

certain steps mentioned in this rule 

toward becoming lawful permanent 

residents of the United States. Finally, 

DHS is removing the phrase 

‘‘abscondment,’’ ‘‘abscond,’’ and its 

other variations to emphasize that the 

mere fact of leaving employment, 

standing alone, does not constitute a 

basis for assuming wrongdoing by the 

worker. 

• Improving H–2 Program Efficiencies 

and Reducing Barriers to Legal 

Migration 

DHS is making two changes to 

improve the efficiency of the H–2 

programs and to reduce barriers to use 

of those two programs. First, DHS is 

removing the requirement that USCIS 

may generally only approve petitions for 

H–2 nonimmigrant status for nationals 

of countries that the Secretary of 

Homeland Security, with the 

concurrence of the Secretary of State, 

has designated as eligible to participate 

in the H–2 programs. Second, DHS is 

simplifying the regulatory provisions 

regarding the effect of a departure from 

the United States on the 3-year 

maximum period of stay by providing a 

uniform standard for resetting the 3-year 

clock following such a departure. 

D. Costs and Benefits 

This final rule will directly impose 

costs on petitioners in the form of 

increased opportunity costs of time to 

complete and file H–2 petitions and 

time spent to familiarize themselves 

with the rule. Other difficult to quantify 

costs may also be incurred by certain 

petitioners who are selected for a 

compliance review, petitioners that face 

stricter consequences for charging 

prohibited fees, and/or those that opt to 

transport and house H–2A beneficiaries 

earlier than they would have otherwise 

based on the extension of the H–2A preemployment grace period from 7 to 10 

days. The Federal Government may also 

incur increased opportunity costs of 

time for adjudicators to review 

information regarding debarment and 

other past violation determinations 

more closely and to issue requests for 

evidence (RFE) or notices of intent to 

deny (NOID), as well as additional costs 

for related computer system updates. 

The benefits of this final rule will be 

diverse, though most are difficult to 

quantify. The final rule will extend 

portability to H–2 workers lawfully 

present in the United States regardless 

of a porting petitioner’s E-Verify 

standing, affording these workers 

agency of choice at an earlier moment 

in time, which is consistent with other 

portability regulations and more similar 

to other workers in the labor force. 

Employers and beneficiaries will also 

benefit from the extended grace periods 

and from eliminating the interrupted 

stay provisions and instead reducing the 

period of absence out of the country to 

reset employees’ 3-year maximum 

period of stay. The Federal Government, 

employers, and U.S. and noncitizen 

workers will realize benefits, mainly 

through bolstering existing program 

integrity activities, possible increased 

compliance with program requirements, 

and providing a greater ability for 

USCIS to deny or revoke petitions for 

issues related to program compliance. 

Table 1 provides a detailed summary 

of the provisions in this rule and their 

impacts. The impact of the costs and 

benefits described herein are quantified 

(and monetized) wherever possible 

given all available information. Where 

there are insufficient data to quantify a 

given impact, we provide a qualitative 

description of the impact. 

BILLING CODE 9111–97–P 


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6 DHS initially proposed this provision as new 8 

CFR 214.2(h)(10)(iii). See Modernizing H–2 Program 

Requirements, Oversight, and Worker Protections, 

88 FR 65040 (Sept. 20, 2023). Because a separate 

DHS final rule, Improving the H–1B Registration 

Selection Process and Program Integrity, 89 FR 7456 

(Feb. 2, 2024) has since added a subparagraph 

within 8 CFR 214.2(h)(10), the provision of this 

final rule will now be new 8 CFR 214.2(h)(10)(iv). 

7 DHS regulations provide that an H–2A petition 

must be accompanied by a Temporary Labor 

Certification (TLC) from DOL, which serves as 

DHS’s consultation with DOL with respect to these 

requirements. See 8 U.S.C. 1184(c)(1); 8 CFR 

214.2(h)(5)(i)(A). 

BILLING CODE 9111–97–C 

II. Background 

A. Description of the H–2 Nonimmigrant 

Classifications 

1. H–2A Temporary Agricultural 

Workers 

The INA establishes the H–2A 

nonimmigrant classification for 

temporary agricultural workers, 

described as a noncitizen ‘‘having a 

residence in a foreign country which he 

has no intention of abandoning who is 

coming temporarily to the United States 

to perform agricultural labor or 

services.’’ INA sec. 101(a)(15)(H)(ii)(a), 8 

U.S.C. 1101(a)(15)(H)(ii)(a). USCIS 

cannot approve petitions for H–2A 

workers unless the Secretary of Labor 

has certified that there are not sufficient 

able, willing, qualified, and available 

U.S. workers who are capable of 

performing such services or labor, and 

H–2A employment will not adversely 

affect the wages and working conditions 

of workers in the United States. See INA 

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

1101(a)(15)(H)(ii)(a); INA sec. 218(a)(1), 

8 U.S.C. 1188(a)(1); 8 CFR 

214.2(h)(5)(ii).7

As noted in INA sec. 

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

1101(a)(15)(H)(ii)(a), not only must the 

noncitizen be coming ‘‘temporarily’’ to 

the United States, but the agricultural 

labor or services that the noncitizen is 

performing must also be ‘‘of a temporary 

or seasonal nature.’’ Current DHS 

regulations further define an employer’s 

temporary need as employment that is 

of a temporary nature where the 

employer’s need to fill the position with 

a temporary worker will, except in 

extraordinary circumstances, last no 

longer than 1 year. See 8 CFR 

214.2(h)(5)(iv)(A). An employer’s 

seasonal need is defined as employment 

that is tied to a certain time of year by 

an event or pattern, such as a short 

annual growing cycle or a specific 

aspect of a longer cycle and requires 

labor levels above those necessary for 

ongoing operations. Id. There is no 

annual limit or ‘‘cap’’ on the number of 

noncitizens who may be issued H–2A 

visas or otherwise provided H–2A status 

(such as through a change from another 

nonimmigrant status, see INA sec. 248, 

8 U.S.C. 1258). 

2. H–2B Temporary Nonagricultural 

Workers 

Similarly, the INA establishes the H– 

2B nonimmigrant classification for 

temporary nonagricultural workers, 

described as a noncitizen ‘‘having a 

residence in a foreign country which he 

has no intention of abandoning who is 

coming temporarily to the United States 

to perform other temporary 

[nonagricultural] service or labor if 

unemployed persons capable of 

performing such service or labor cannot 


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8 DHS regulations provide that an H–2B petition 

must be accompanied by an approved TLC from 

DOL or from the Guam Department of Labor (GDOL) 

for H–2B workers who will be employed on Guam, 

which serves as DHS’s consultation with DOL or 

GDOL with respect to these requirements. 8 CFR 

214.2(h)(6)(iii)(A), (C)–(E), (h)(6)(iv)(A), (h)(6)(v). 

9Since 2017, Congress has authorized up to an 

additional 64,716 visas when the Secretary of 

Homeland Security, after consultation with the 

Secretary of Labor, determines that the needs of 

American businesses cannot be satisfied in a given 

fiscal year with United States workers who are 

willing, qualified, and able to perform temporary 

nonagricultural labor. For example, on September 

25, 2024, Congress passed the FY 2025 authority, 

Public Law 118–83, which the President signed the 

next day. This law extends authorization under the 

same terms and conditions provided in section 105 

of Division G, Title I of the FY 2024 Omnibus 

permitting the Secretary of Homeland Security to 

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

employers in FY 2025, and expires on December 20, 

2024. 

10 Generally, workers in the United States in H– 

2B status who extend their stay, change employers, 

or change the terms and conditions of employment 

will not be subject to the cap. See 8 CFR 

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

previously been counted against the cap in the same 

fiscal year that the proposed employment begins 

will not be subject to the cap if the employer names 

them on the petition and indicates that they have 

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

and 8 CFR 214.2(h)(2)(iii). The spouse and children 

of H–2B workers, classified as H–4 nonimmigrants, 

also do not count against the cap. See INA 214(g)(2) 

and 8 CFR 214.2(h)(8)(ii). Additionally, until 

December 31, 2029, petitions for the following types 

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

processors, fish roe technicians, or supervisors of 

fish roe processing; and workers performing labor 

or services in the Commonwealth of the Northern 

Mariana Islands or Guam. See Public Law 108–287, 

sec. 14006, 118 Stat. 951, 1014 (Aug. 5, 2004); 

Northern Mariana Islands U.S. Workforce Act of 

2018, Public Law 115–218, sec. 3, 132 Stat. 1547, 

1547 (July 24, 2018). Once the H–2B cap is reached, 

USCIS may only accept petitions for H–2B workers 

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

11The Federal Government’s fiscal year runs from 

October 1 of the prior calendar year through 

September 30 of the year being described. For 

example, fiscal year 2023 ran from October 1, 2022, 

through September 30, 2023. 

12See, e.g., 20 CFR 655.20(j)(2) (‘‘The employer 

must pay or reimburse the worker in the first 

workweek for all visa, visa processing, border 

crossing, and other related fees (including those 

mandated by the government) incurred by the H– 

2B worker . . .’’). 

be found in this country.’’ INA sec. 

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

1101(a)(15)(H)(ii)(b). H–2B workers may 

not displace qualified, available U.S. 

workers who are capable of performing 

such services or labor, and H–2B 

employment may not adversely affect 

the wages and working conditions of 

workers in the United States. See INA 

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

1101(a)(15)(H)(ii)(b); see also 8 CFR 

214.2(h)(6)(i).8 Current DHS regulations 

define an employer’s temporary need as 

employment that is of a temporary 

nature where the employer’s need to fill 

the position with a temporary worker 

generally will last no longer than 1 year, 

unless the employer’s need is a one-time 

event, in which case the need could last 

up to 3 years. See 8 CFR 

214.2(h)(1)(ii)(D), (h)(6)(ii), and 

(h)(6)(vi)(D). 

Unlike the H–2A classification, there 

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

the number of noncitizens who may be 

issued H–2B visas or otherwise 

provided H–2B status. Specifically, the 

INA sets the annual number of 

noncitizens who may be issued H–2B 

visas or otherwise provided H–2B status 

at 66,000,9 to be distributed 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,10 up to 

33,000 noncitizens may be issued H–2B 

visas or provided H–2B nonimmigrant 

status in the first half of a fiscal year, 

and the remaining annual allocation, 

including any unused nonimmigrant H– 

2B visas from the first half of a fiscal 

year, will be available for employers 

seeking to hire H–2B workers during the 

second half of the fiscal year.11 If 

insufficient petitions are approved to 

use all available H–2B numbers in a 

given fiscal year, the unused numbers 

cannot be carried over for petition 

approvals for employment start dates 

beginning on or after the start of the 

next fiscal year. 

III. Changes in the Final Rule 

Following careful consideration of 

public comments received, this final 

rule adopts the regulatory text proposed 

in the notice of proposed rulemaking 

(NPRM), Modernizing H–2 Program 

Requirements, Oversight, and Worker 

Protections, 88 FR 65040, published in 

the Federal Register on September 20, 

2023, with some changes. DHS retains 

the rationale for the proposed rule and 

the reasoning provided in that rule, 

except as described in the preamble of 

this final rule. Section IV of this 

preamble includes a detailed summary 

and analysis of the comments and 

presents DHS’s responses to those 

comments. 

A. Changes to Provisions Related to 

Payment of Fees, Penalties, or Other 

Compensation by H–2 Beneficiaries 

1. Clarification of Acceptable 

Reimbursement Fees 

In the NPRM, DHS explained that it 

is not the intention of DHS to pass to 

petitioners, employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services, the costs 

of services or items that are truly 

personal and voluntary in nature for the 

worker. Under the proposed rule, 

payments made primarily for the benefit 

of the worker, such as a passport fee, 

would not be prohibited fees or 

payments related to the H–2 

employment and would, therefore, 

permissibly be considered the 

responsibility of the worker. To simplify 

the language related to acceptable 

reimbursement fees and to clarify that 

the exception only applies to costs that 

are truly for the worker’s benefit, 

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

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

replaced the existing regulatory 

language on this topic with text stating 

that the provision would not prevent 

relevant parties ‘‘from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’ As 

mentioned in the NPRM, this language 

was derived from, and is consistent 

with, DOL regulations on prohibited 

fees for H–2B and H–2A workers at 20 

CFR 655.20(o), 29 CFR 503.16(o), and 20 

CFR 655.135(j). 

In response to public comments 

requesting additional clarity on this 

topic, DHS is finalizing the proposed 

language about costs that are the 

responsibility and primarily for the 

benefit of the worker and further 

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

CFR 214.2(h)(6)(i)(B) to add: ‘‘This 

provision does not prohibit employers 

from allowing workers to initially incur 

fees or expenses that the employers are 

required to subsequently reimburse, 

where such arrangement is specifically 

permitted by, and performed in 

compliance with, statute or 

regulations.’’ 12 Adding this language 

clarifies that, under certain conditions, 

the employer can reimburse the worker 

after the worker initially pays costs that 

are the employer’s responsibility (such 

as certain transportation costs), and that 

this would not be considered a 

collection of a prohibited fee. This 

change to specify when an employer 

may make reimbursements to the 

beneficiary for a cost that is ultimately 

the employer’s responsibility 

complements the regulatory text as 

proposed and finalized in 8 CFR 

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

214.2(h)(6)(i)(B) regarding 

reimbursements from the beneficiary. 

That language specifies that the 

prohibited fee provisions do not 

prohibit petitioners and third parties 

from receiving reimbursement from the 

beneficiary for costs that are the 

responsibility of and primarily for the 

benefit of the worker, such as 

government-required passport fees. 


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2. Prohibiting Breach of Contract Fees 

and Penalties 

DHS is adding text to the proposed 

provisions at 8 CFR 214.2(h)(5)(xi)(A) 

and 8 CFR 214.2(h)(6)(i)(B) to clarify 

that a prohibited fee may not be 

collected from a beneficiary ‘‘or any 

person acting on the beneficiary’s 

behalf.’’ This revision responds to 

public comment in that it strengthens 

the proposed language in the NPRM 

prohibiting the charging of breach of 

contract fees by barring non-monetary 

penalties or penalties imposed on a 

worker or anyone acting on behalf of the 

worker. 

3. Similar Employment Services 

Based on feedback from commenters 

requesting greater clarity with respect to 

the phrase ‘‘similar employment 

services,’’ DHS is amending its 

proposed provisions at 8 CFR 

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

214.2(h)(6)(i)(B) to clarify that ‘‘similar 

employment service refers to any person 

or entity that recruits or solicits 

prospective beneficiaries of the [H–2] 

petition.’’ This clarification addresses 

commenters’ feedback as to what 

‘‘similar employment services’’ means. 

4. Extraordinary Circumstances 

Standard 

In response to public comments, DHS 

is making several changes to 8 CFR 

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

214.2(h)(6)(i)(B)(1) to clarify the 

standards under which a petitioner will 

be held accountable for its own 

prohibited fee-related violations or 

those of its employees. These changes 

include removing the proposed ‘‘rare 

and unforeseeable’’ language, as this 

phrase was always meant to specifically 

explain ‘‘extraordinary circumstances’’ 

and not create another standard separate 

and apart from ‘‘extraordinary 

circumstance.’’ DHS is also removing 

the proposed ‘‘To qualify for this 

exception’’ language because this phrase 

was intended only to refer to the 

‘‘extraordinary circumstances’’ 

exception, not to create another 

exception. In addition, new 8 CFR 

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

214.2(h)(6)(i)(B)(1) requires the 

petitioner to demonstrate that it ‘‘made 

ongoing, good faith, reasonable efforts to 

prevent and learn of the prohibited fee 

collection or agreement by its 

employees throughout the recruitment, 

hiring, and employment process’’ 

instead of ‘‘significant efforts to prevent 

prohibited fees prior to the collection of 

or agreement to collect such fees.’’ 

These changes clarify what was meant 

by ‘‘significant’’; moreover, they clarify 

the petitioner’s obligation to not only 

prevent prohibited fees before the 

collection of or agreement to collect 

such fees occurs, but also to prevent and 

learn of any collection or agreement to 

collect such fees on an ongoing basis 

given that such fees could be collected 

or agreed upon at various points in time 

during the recruitment, hiring, or 

employment process. DHS is also 

deleting duplicative language about the 

petitioner’s obligation to fully reimburse 

all affected beneficiaries. 

5. Due Diligence Standard 

In response to public comments, DHS 

is making several changes at 8 CFR 

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

214.2(h)(6)(i)(B)(2) to clarify the 

standards under which a petitioner may 

be held accountable for the prohibited 

fee-related violations of its agents, 

attorneys, facilitators, recruiters, or 

similar employment services. 

Specifically, DHS is foregoing the 

proposed ‘‘did not know and could not, 

through due diligence, have learned’’ 

language and instead requiring the 

petitioner to demonstrate ‘‘ongoing, 

good faith, reasonable efforts to prevent 

and learn of the prohibited fee 

collection or agreement by such third 

parties throughout the recruitment, 

hiring, and employment process.’’ This 

is not intended to be a substantive 

change, but instead is intended to 

clarify what DHS meant by ‘‘due 

diligence’’ and to better align the 

regulatory language at 8 CFR 

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

214.2(h)(6)(i)(B)(1) which also requires 

the same ‘‘ongoing, good faith, 

reasonable efforts.’’ Further, new 8 CFR 

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

214.2(h)(6)(i)(B)(2) require the petitioner 

to take immediate remedial action as 

soon as it becomes aware of the 

payment of or agreement to pay the 

prohibited fee, which was missing from 

these provisions as proposed in the 

NPRM. The only difference in the 

evidentiary requirements at new 8 CFR 

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

214.2(h)(6)(i)(B)(1), compared to new 8 

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

214.2(h)(6)(i)(B)(2), is that prohibited 

fee-related violations by the petitioner 

or its employees, unlike those by third 

parties, will require an additional 

showing that extraordinary 

circumstances beyond the petitioner’s 

control resulted in its failure to prevent 

collection or entry into agreement for 

the collection of prohibited fees in order 

to avoid denial or revocation of an H– 

2 petition on notice. 

6. Application of the Prohibited Fee 

Provisions, and 1- and 3-Year Denial 

Periods 

As discussed in response to public 

comments, DHS is clarifying in this 

final rule how it will apply the revised 

provisions governing the collection of or 

agreement to collect prohibited fees. 

Namely, the denial or revocation of H– 

2 petitions under the provisions of this 

final rule will apply only to petitions 

filed on or after the effective date of this 

rule. New 8 CFR 214.2(h)(5)(xi)(A)(1)– 

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

Similarly, DHS is clarifying that the 1- 

year and 3-year additional denial 

periods of H–2 petitions based on the 

denial or revocation of petitions for 

collection or agreement to collect 

prohibited fees will apply in cases 

where the denial or revocation of the H– 

2 petition was made on a petition filed 

on or after the effective date of this final 

rule. New 8 CFR 214.2(h)(5)(xi)(B)-(C) 

and 8 CFR 214.2(h)(6)(i)(C)-(D). 

Petitions filed before the effective date 

of this final rule will be subject to the 

provisions in place before this final rule. 

DHS has made edits to the relevant 

regulatory provisions to ensure 

consistent application and transparency 

for the public. 

7. Clarifying When a Designee May Be 

Reimbursed 

DHS is adding language at new 8 CFR 

214.2(h)(5)(xi)(A)(2) and (C)(1), and new 

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

clarify that a beneficiary’s designee may 

be reimbursed only if the affected 

beneficiary(ies) cannot be located or is 

(are) deceased. These are clarifying, 

non-substantive changes. While 

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

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

the clarifying clause ‘‘only if such 

beneficiaries cannot be located or are 

deceased,’’ DHS never intended for this 

to apply only when the prohibited fee 

was collected by the petitioner pursuant 

to proposed 8 CFR 214.2(h)(5)(xi)(A)(1) 

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

ensure parity in the regulations, DHS is 

adding the same or similar clause to the 

other prohibited fee provisions 

addressing a prohibited fee collection or 

agreement by an agent, attorney, 

employer, facilitator, recruiter, or 

similar employment service, or any joint 

employer at new 8 CFR 

214.2(h)(5)(xi)(A)(2) and (C)(1), and new 

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

B. Application of Mandatory Grounds 

for Denial 

DHS is clarifying in this final rule and 

discussing in more detail in response to 


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public comments how it will apply the 

new mandatory grounds for denial. 

With respect to denials based on final 

administrative determinations made by 

the Secretary of Labor or the Governor 

of Guam to debar the petitioner, USCIS 

will deny a petition pursuant to new 8 

CFR 214.2(h)(10)(iv)(A)(1) if it is filed 

during the debarment period or if the 

debarment occurs during the pendency 

of the petition, as proposed in the 

NPRM. 88 FR 65040, 65057–58 (Sept. 

20, 2023). This final rule adds language 

clarifying that this provision will only 

apply if the petition is filed on or after 

the effective date of the rule and the 

final administrative determination to 

debar the petitioner is issued on or after 

the effective date of the rule. 

Similarly, as proposed in the NPRM, 

USCIS will deny petitions pursuant to 

new 8 CFR 214.2(h)(10)(iv)(A)(2) if a 

finding of fraud or willful 

misrepresentation of a material fact was 

included in the initial denial or 

revocation of a prior petition if such 

decision was issued during the 

pendency of the petition or within 3 

years prior to filing the petition. 88 FR 

65040, 65058 (Sept. 20, 2023). This final 

rule rephrases the provision for clarity 

and adds language specifying that this 

provision will only apply if the final 

denial or revocation decision is made on 

a prior petition filed on or after the 

effective date of the rule. 

When it comes to mandatory denials 

based on violations of INA sec. 274(a) 

under new 8 CFR 214.2(h)(10)(iv)(A)(3), 

USCIS will deny petitions if there is a 

final determination of violation(s) under 

section 274(a) of the Act during the 

pendency of the petition or within 3 

years prior to filing the petition, as 

proposed in the NPRM. 88 FR 65040, 

65058 (Sept. 20, 2023). This final rule 

adds language clarifying that this 

provision will only apply if the final 

determination of violation(s) under 

section 274(a) of the Act is made on or 

after the effective date of the rule and if 

the petition is filed on or after the 

effective date of the rule. 

C. Application of Discretionary Grounds 

for Denial 

DHS will apply the discretionary 

grounds for denial under new 8 CFR 

214.2(h)(10)(iv)(B), as proposed in the 

NPRM. 88 FR 65040, 65058–60 (Sept. 

20, 2023). This final rule adds language 

clarifying that this provision will apply 

to petitions filed on or after the effective 

date of this final rule, regardless of 

whether the action(s) or the violation(s) 

underlying the determination of 

violation(s) of the discretionary grounds 

for denial occurred before, on, or after 

the effective date of this final rule. 

D. Discretionary Grounds for Denial 

In response to comments, DHS is 

adding new 8 CFR 214.2(h)(10)(iv)(F) to 

state that, if USCIS has determined in 

the course of a previous adjudication 

that a petitioner (or the preceding entity, 

if the petitioner is a successor in 

interest) has established its intention 

and ability to comply with H–2A or H– 

2B program requirements 

notwithstanding relevant violation 

determinations under paragraph 

(h)(10)(iv)(B), USCIS will not seek to 

deny a subsequent petition under 

paragraph (h)(10)(iv)(B) of this section 

based on the same previous violation(s) 

unless USCIS becomes aware of a new 

material fact (such as a repeat of the 

previous violation(s)) or if USCIS finds 

that its previous determination was 

based on a material error of law. 

At 8 CFR 214.2(h)(10)(iv)(B), DHS is 

making non-substantive changes to 

replace ‘‘or’’ with ‘‘and/or’’ to clarify 

that USCIS may deny a petition if the 

petitioner (or successor in interest) has 

not established its ‘‘intention and/or 

ability to comply with H–2A or H–2B 

program requirements.’’ Consistent with 

the NPRM, the petitioner must 

demonstrate that it has both the intent 

and ability to comply with H–2 program 

requirements, and USCIS can deny a 

petition under this ground if the 

petitioner has not established either its 

intent to comply with H–2A or H–2B 

program requirements, or its ability to 

comply with H–2A or H–2B program 

requirements, or both. 

E. Conforming Changes To Align With 

the USCIS Fee Schedule Final Rule 

As DHS proposed to eliminate the 

eligible countries lists from 8 CFR 

214.2(h)(5)(i)(F) and 214.2(h)(6)(C), DHS 

also proposed to remove a reference to 

the eligible countries list from 8 CFR 

214.2(h)(2)(ii) which, at the time of the 

NPRM, allowed an unlimited number of 

H–1C, H–2A, H–2B, and H–3 

beneficiaries to be requested on a single 

nonimmigrant petition. After the 

publication of the NPRM, DHS 

published the Fee Schedule Final Rule 

(‘‘Fee Rule’’) on January 31, 2024, and 

that rule went into effect on April 1, 

2024. 89 FR 6194. Most relevantly, the 

Fee Rule replaced the language in 8 CFR 

214.2(h)(2)(ii) allowing the grouping of 

an unlimited number of H–1C, H–2A, 

H–2B, and H–3 beneficiaries on a single 

nonimmigrant petition and imposed a 

limit of 25 named beneficiaries. 

Therefore, in addition to amending the 

language in final 8 CFR 214.2(h)(2)(ii) to 

remove the reference to the eligible 

country list, this provision has been 

amended to reflect the change made by 

the Fee Rule. 

F. Severability 

In the severability clause contained in 

this final rule, DHS has identified the 

second level paragraphs (for example, 

(h)(6)) in which the severable amended 

provisions contained in this final rule 

can be found. These references along 

with the date of the final rule are 

intended to better identify the severable 

provisions and differentiate them from 

the existing provisions in 8 CFR 214.2 

that are not being impacted by this final 

rule. 

IV. Response to Public Comments on 

the Proposed Rule 

A. Summary of Comments on the 

Proposed Rule 

DHS received a total of 1,944 public 

comment submissions in Docket 

USCIS–2023–0012 in response to the 

NPRM. Of the submissions, 223 were 

unique submissions, 1,714 were form 

letter copies, 3 were duplicate 

submissions, 1 was out of scope, 2 were 

foreign language submissions, and 1 was 

a partial foreign-language submission. 

The majority of comment submissions 

originated from individual or 

anonymous commenters, including 

attorneys and individual employers or 

farmers. Other commenters included 

companies, trade and business 

associations, advocacy groups, 

professional associations, unions, 

research organizations, Federal elected 

officials, State or local government 

agencies, farming or agricultural 

entities, a religious organization, and a 

foreign government. While the great 

majority of comment submissions 

(1,844) were supportive of the rule, 

some commenters (7) expressed general 

opposition to the rule, and many 

commenters (87) offered mixed 

feedback, such as by providing both 

support for and opposition to various 

provisions of the proposed rule 

throughout their comment, or by 

generally providing support or 

opposition but with suggested revisions. 

B. General Feedback on the Proposed 

Rule 

1. General Support for the Rule 

a. Positive Impacts on Nonimmigrants/ 

Workers/Noncitizens,Their 

Communities, and Support Systems 

Comment: Approximately 1,850 

submissions, including a large form 

letter campaign, discussed the proposed 

rule’s positive impacts on H–2 

beneficiaries, their communities, and 

support systems. 


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13See, e.g., DOJ, U.S. Attorney’s Office, Southern 

District of Georgia, ‘‘Three men sentenced to federal 

prison on charges related to human trafficking: Each 

admitted to role in forced farm labor in Operation 

Blooming Onion’’ (Mar. 31, 2022) (involving forced 

labor, keeping workers in substandard conditions, 

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

www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking. 

A few individual commenters 

endorsed USCIS’ efforts to advance 

protections and flexibilities for H–2 

workers on the basis that such measures 

would be responsive to the needs of 

nonimmigrants and their support 

systems. Numerous commenters, 

including individual commenters, 

unions, joint submissions, advocacy 

groups, and a group of Federal elected 

officials, stated that the proposed rule 

would address long-standing issues of 

abuse, exploitation, and trafficking 

among H–2 workers by allowing 

workers to leave an abusive employer in 

search of outside opportunities, 

enhancing enforcement against 

retaliation, and protecting visa status for 

those seeking lawful permanent 

residence. Several individual 

commenters added that the proposed 

rule’s efforts to provide flexibility and 

protections for H–2 workers would 

enhance workers’ well-being and rights, 

as well as reporting practices. Similarly, 

a few individual commenters stated that 

the changes to nonimmigrant worker 

protections would represent a positive 

step towards equality and addressing 

health equity disparities by ensuring 

proper compensation, appropriate 

physical conditions, legal protections, 

and equal rights and opportunities 

relative to U.S. citizens. 

Several individual commenters, 

including an advocacy group, and a 

couple of joint submissions provided 

examples of abusive and exploitative 

behavior—such as what was seen in 

‘‘Operation Blooming Onion,’’ 13

employer retaliation against workers for 

protesting hazardous conditions, and 

other anecdotes from H–2 workers that 

they said showed the need for increased 

protections, including those proposed in 

the NPRM. A couple of individual 

commenters wrote that with the 

increase in extreme heat resulting from 

climate change, H–2 workers need 

further protection. 

Numerous individual commenters 

and a form letter campaign stated that 

DHS has a responsibility to protect 

workers’ rights, as H–2 workers help to 

provide food for the U.S. public, serve 

as the ‘‘backbone’’ of the U.S. 

agricultural industry, help U.S. society 

function, and as a result, strengthen U.S. 

national security. The form letter 

campaign added that the proposed rule 

would ‘‘not only protect the rights and 

dignity of farm workers but also 

contribute to the welfare and security of 

[the] nation’s agricultural workforce.’’ 

Several individual commenters and a 

trade association commented that 

implementing measures to protect H–2 

workers while ensuring their fair 

treatment would align with U.S. and 

agriculture industry values. An 

individual commenter added that farm 

workers are vital members of 

communities they work and live in, and 

that strengthened protections would 

benefit local, regional, and national 

communities. 

A couple of individual commenters 

and a couple of joint submissions 

including one from a union and 

numerous advocacy organizations stated 

that domestic farm workers’ labor 

conditions are undermined by the 

exploitation of H–2 workers, 

highlighting the necessity of the 

proposed rule. An individual 

commenter stated that the proposed rule 

demonstrates DHS’s commitment to 

listening to those working in the 

agriculture industry, including unions 

and organizations that represent migrant 

and non-English speaking agriculture 

workers. A joint submission from a 

union and numerous advocacy 

organizations contained comments from 

H–2 workers voicing support for the 

proposed rule changes on the basis that 

it would improve their job security and 

working conditions, and allow them to 

better provide for their families. 

Response: DHS appreciates public 

commenters’ general support for this 

rulemaking and for the Department’s 

ongoing efforts to advance protections 

and flexibilities for H–2 workers. As 

discussed earlier, DHS is cognizant of 

the importance of temporary 

nonimmigrant workers for agricultural 

and nonagricultural employers and of 

the positive impacts these workers 

contribute to local and regional 

economies in the United States. DHS 

agrees with the general support of the 

majority of commenters that the changes 

adopted in this rule will help to reduce 

the H–2A and H–2B programs’ 

vulnerabilities and better ensure the 

rights and dignity of H–2 workers. 

b. Positive Impacts on Employers/ 

Petitioners/Farmers, Employment 

Service Providers, Workforce, Industry, 

and Economy 

Comment: Approximately 10 

submissions discussed the proposed 

rule’s positive impacts on petitioners, 

employment service providers, the U.S. 

workforce, U.S. industries related to the 

H–2 program, and the U.S. economy. 

An individual commenter expressed 

support for the proposed rule’s efforts to 

streamline the petition process for 

employers, reasoning that these 

measures would reduce administrative 

and financial burdens for employers 

while increasing program efficiency and 

accessibility. 

Several commenters provided 

feedback on the potential positive 

impacts the proposed rule would have 

on the U.S. agricultural workforce and 

labor conditions for U.S. workers. Some 

individual commenters stated that H–2 

workers are essential for the well-being 

of the U.S. economy and agriculture 

industry as they alleviate domestic 

workforce shortages, and stated that as 

a result, the protections put forth in the 

proposed rule are needed. Other 

individual commenters also voiced 

support for the proposed rule on the 

basis that their farming operations 

would benefit from their employees 

being able to stay for temporary H–2A 

employment. 

Response: DHS appreciates these 

commenters’ support and their 

recognition of the positive impacts the 

proposed rule would have to the 

agricultural industry and the efforts to 

improve the Department’s 

administration of the H–2 programs. In 

addition to the rule’s focus on providing 

workers with better labor protections 

and increased flexibility, streamlining 

the process for requesting temporary 

nonimmigrant workers through 

reducing administrative and financial 

burdens is a positive change for both 

employers and their employees. 

c. Positive Impacts on the Government, 

Program Operability, and Integrity 

Comment: Approximately 10 unique 

submissions, including a form letter 

campaign, discussed the proposed rule’s 

impacts on the government, program 

operability, and integrity. 

Several commenters, including 

multiple advocacy groups, a joint 

submission from a union, a form letter 

campaign, and a group of Federal 

elected officials, endorsed the proposed 

rule’s measures to improve program 

oversight and enforcement, reasoning 

that these provisions would deter 

misconduct by employers and recruiters 

while ensuring the integrity and quality 

of H–2 programs. Other commenters, 

including an advocacy group, a union, 

the form letter campaign, and joint 

submissions, also expressed support for 

the proposed rule on the grounds that it 

would create needed accountability and 

transparency in the H–2 programs. A 

business association provided 

additional feedback that the proposed 

changes would streamline requirements 


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between H–2A and H–2B programs, 

helping USCIS make the those program 

more effective and efficient overall. 

Multiple commenters, including a 

joint submission, advocacy groups, a 

union, the form letter campaign, and a 

group of Federal elected officials, stated 

that the proposed rule complemented 

DOL H–2 program initiatives in making 

needed program integrity improvements 

and enhancing DOL and DHS combined 

capabilities to protect workers from 

exploitation. 

Response: The Department 

appreciates the commenters’ support for 

the changes finalized in this rule and 

agrees that the new provisions herein 

will have a positive impact on the effort 

to increase programmatic efficiency, 

integrity, and accountability. As 

demonstrated by the changes first 

proposed in the NPRM, and by those 

adopted as final in this rule, DHS is 

committed to efforts that will better 

protect workers from exploitation and 

deter misconduct by employers and 

recruiters. 

2. General Overview of Comments 

Opposing the Rule 

a. Lack of Need for the Rule 

Comment: An individual commenter 

expressed opposition to the rule on the 

basis that there is no need for the 

proposed changes. In addition to citing 

‘‘obstructive’’ costs that will ‘‘fall on 

general taxpayer[s],’’ the commenter 

reasoned that DOL already provides a 

system of protection for temporary 

workers. 

Response: DHS declines to revise the 

proposed rule in response to this 

comment. The commenter does not 

identify any specific costs to general 

taxpayers or offer data to support the 

claims of such costs being 

‘‘obstructive.’’ The commenter does not 

contest any of the Government 

Accountability Office (GAO) studies or 

media reports of abuse of H–2 workers 

occurring under current regulations that 

this rule is designed to curtail. Further, 

while DOL provides protection for 

temporary workers consistent with its 

authority and available resources, the 

changes in this rule are intended to 

complement DOL regulations to provide 

a more comprehensive framework for 

worker protections. 

b. Negative Impacts on Employers/ 

Petitioners/Farmers, Employment 

Service Providers, Workforce, Industry, 

and Economy 

Comment: Approximately 10 

submissions discussed the proposed 

rule’s potential negative impacts on 

petitioners, employment service 

providers, the U.S. workforce, U.S. 

industries relevant to the H–2 programs, 

and the U.S. economy. 

An individual commenter stated their 

concern that the proposed rule could 

impact the availability and diversity of 

H–2 workers by deterring employers 

from participating or causing them to 

pass costs to workers. In support of this 

position, the commenter cited examples 

of proposals that are not included in 

either the proposed rule or this final 

rule, such as increasing filing fees, 

limiting the number of H–2B visas 

available each fiscal year, and excluding 

certain occupations from the H–2B 

program. In a separate comment, a 

research organization acknowledged the 

new flexibilities the NPRM provided for 

workers but stated that it does not make 

use of all the legal authorities available 

and does not include any effort to 

streamline the process for employers. 

The commenter expressed concern that 

the increased costs would cause 

employers to leave the program and 

would lead to more undocumented 

immigration and unauthorized 

employment. 

Some commenters expressed concern 

that the proposed rule would unfairly 

target employers who are largely 

compliant with labor laws and 

regulations, with multiple associations 

and an individual commenter stating 

that the Department’s approach signals 

a belief that most employers are acting 

in violation of labor laws and that the 

proposed rule would debar good faith 

employers for minor infractions. In 

addition, one of the trade associations 

stated that 80 to 90 percent of H–2 

workers return to previous employers 

and many refer friends and family as 

indication that a majority of petitioners 

are compliant with labor laws and treat 

workers fairly. 

In addition, other commenters 

expressed concern over the general costs 

that the proposed rule would have on 

employers. A trade association cited 

statistics on increases in domestic 

worker wages that have necessitated 

employers’ reliance on the H–2 

program, and stated that without a 

dependable workforce and a predictable 

and stable wage rate, farmers are making 

difficult decisions about the crops they 

grow and may be forced out of business. 

An individual commenter expressed a 

general, vague concern that the 

proposed rule ‘‘would have a negative 

impact on my farm and the local, 

healthy food we produce,’’ without 

further explaining the nature of the 

claimed negative impacts. Another 

individual commenter expressed 

concern that with the ‘‘lengthy’’ list of 

regulations both DHS and DOL have 

released in recent years, the new 

proposed rule would complicate 

farmers’ ability to hire the workers they 

need in an already complex system. The 

commenter concluded that broadening 

DHS’s authority to come onto farmers’ 

property with ‘‘unfettered access’’ to 

employees for interviews without a 

farmer or agent present ‘‘worr[ies] 

American farmers,’’ and urged USCIS to 

‘‘find solutions rather than create more 

problems.’’ Another individual 

commenter repeated these concerns and 

added that the ‘‘stringent’’ nature of the 

disciplinary process would exceed State 

requirements for employers discharging 

U.S. workers, exacerbating disparities in 

employment law. Referencing the 

Department’s statement on the purpose 

of the proposed regulation, a State 

agency voiced opposition to the 

proposed changes to the H–2 programs, 

reasoning that such changes would 

confuse entities in the agricultural 

industry and increase the likelihood 

that they will violate labor laws in the 

future. 

Response: While certain clarifying 

revisions that DHS has made in this 

final rule may address some of the 

commenters’ concerns as discussed 

below, DHS is not making changes to 

the proposal in direct response to these 

comments. While a commenter 

identifies higher fees for filing petitions 

and certifications, this rule (both as 

proposed and finalized) does not 

include any higher filing fees. The 

concern from this commenter that 

employers would pass any costs on to 

workers is not persuasive as employers 

are already prohibited from passing 

costs to workers and this rule imposes 

new consequences on employers who 

pass those prohibited costs to workers. 

With respect to limiting which 

occupations qualify for H–2B visas, this 

rule did not remove any occupations 

from H–2B eligibility. While DHS 

appreciates a commenter’s interest in 

streamlining the process, the 

commenter’s broad characterization of 

the H–2 process as being complicated 

and time-consuming does not address 

the specific provisions contained in this 

regulation. Among other things, the 

commenter offers no support in 

speculating that extra costs imposed by 

this rulemaking will inevitably cause 

employers to leave the program and 

result in more immigrants working 

without documentation. DHS 

considered potential costs of this rule 

and consequences to employers, such as 

impacts of site visits and time estimates 

for these administrative visits, lost 

productivity due to whistleblower 

revelations, and completing filings for 


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14See Loper Bright Enters. v. Raimondo, 144 S. 

Ct. 2244, 2263 (2024) (‘‘In a case involving an 

agency, of course, the statute’s meaning may well 

be that the agency is authorized to exercise a degree 

of discretion. Congress has often enacted such 

statutes. For example, some statutes ‘expressly 

delegate’ to an agency the authority to give meaning 

to a particular statutory term. Others empower an 

agency to prescribe rules to fill up the details of a 

statutory scheme, or to regulate subject to the limits 

imposed by a term or phrase that leaves agencies 

with flexibility, such as ‘appropriate’ or 

‘reasonable.’ ’’) (cleaned up). 

porting H–2 workers, and determined 

that the benefits of the proposed 

provisions, as outlined in various parts 

of this rule, outweighed any costs. 

DHS also maintains that the rule does 

not unfairly target compliant employers 

with loyal employees who return 

annually and refer their friends and 

family or, as the commenter 

characterizes it, ‘‘debar’’ good faith 

employers for minor infractions. As 

discussed below, and in the NPRM, this 

final rule is not punitive in nature, 

rather, it is adjudicative in nature, and, 

as is extensively explained throughout 

this preamble, intended to enhance the 

integrity of the H–2 program for the 

benefit of good faith employers and 

their workers alike, and to protect H–2 

workers from exploitation and other 

abuses. 

DHS nonetheless is revising the 

proposed due diligence language 

regarding third parties’ collection of 

prohibited fees to minimize negative 

impacts on responsible employers who 

make ongoing, good faith, reasonable 

efforts to prevent prohibited fees. 

Further, as explained below, mandatory 

denial is reserved for final 

determinations involving very specific 

egregious conduct, while discretionary 

denial occurs only if USCIS has 

determined, taking into account the 

totality of the circumstances and the 

factors outlined in the proposed 

regulations, that the petitioner or 

successor has not established its 

intention or ability to comply with H– 

2 program requirements. Moreover, DHS 

is adding new 8 CFR 214.2(h)(10)(iv)(F) 

to assure petitioners with past violations 

who have established their intention 

and ability to comply with H–2A or H– 

2B program requirements in the course 

of USCIS’ adjudication of a previously 

filed H–2 petition that USCIS will not 

seek to deny a subsequently filed 

petition under the discretionary denial 

provisions of this final rule based on the 

same violation(s), unless USCIS 

becomes aware of a new material fact or 

finds that its previous determination 

was based on a material error of law. 

Regarding concerns about increased 

wages, DHS reiterates that this 

rulemaking does not address worker 

wages, which is an issue that broadly 

falls within the jurisdiction of DOL. 

DHS acknowledges that employers 

will need time to familiarize themselves 

with the new regulations, which is why 

the final rule clarifies that DHS will 

apply certain provisions in a manner 

that balances the strong interest in 

enhancing H–2 program integrity and 

protection of H–2 workers with, as 

discussed below, the interest in 

providing petitioners with notice of new 

future effects applicable to certain 

conduct. DHS has determined that the 

benefits of the rule, including increased 

worker protections and flexibility as 

well as program integrity, outweigh time 

costs to employers. Finally, DHS notes 

that this rule does not create any new 

labor laws, which are under the 

jurisdiction of DOL or other labor 

agencies. 

3. Other General Feedback Regarding 

the Rule 

a. General Feedback Without Stating 

Support or Opposition to the Proposed 

Rule 

Comment: An individual commenter 

provided remarks on labor abuses in the 

H–2A visa program without stating a 

position on the proposed rule. The 

commenter expressed the need to 

address concerns around abuse and 

power imbalances through 

congressional action and comprehensive 

immigration reform. 

Response: DHS appreciates the 

commenter’s concerns with the 

vulnerabilities of H–2 workers and 

would implement any legislative 

changes Congress might make. DHS, 

however, maintains that it has the 

authority to improve the program under 

current laws as expressed in the 

proposed rule and this final rule. 

C. Legal Authority and Background 

1. DHS/USCIS Legal Authority 

a. Congressional Intent and Statutory 

Authority 

Comment: Some commenters 

contended that DHS exceeded its 

authority to make some of the proposed 

changes. A joint submission from former 

DHS senior officials stated that, under 

the auspices of efficiency, equity, and 

ease of the administrative process, the 

proposed rule contradicts congressional 

authority and direction, makes semantic 

and substantive changes to undermine 

immigration enforcement, and removes 

one of our strongest defenses against the 

‘‘illegal job magnate [sic].’’ However, 

other commenters, a group of Federal 

elected officials, stated that, in creating 

the H–2 programs, Congress struck a 

‘‘delicate balance’’ between ensuring 

that industries have available workers 

and that employers in those industries 

maintain a standard level of protections, 

rights, and working conditions for those 

workers. The commenters said this 

rulemaking effectuates congressional 

intent for the H–2 programs by 

protecting vulnerable workers and 

holding employers accountable. A 

union stated that DHS has the necessary 

statutory authority to implement the 

proposed rule. Specifically, the 

commenter quoted section 103(a) of the 

INA and section 402 of the HSA as 

granting DHS broad authority to 

implement the regulations contemplated 

in the NPRM. Citing case law, the 

commenter said courts have 

consistently characterized section 103(a) 

of the INA as a broad delegation of 

authority to the Secretary of Homeland 

Security. The commenter further quoted 

section 214(c)(14) of the INA as granting 

the Secretary specific authority to 

impose penalties on employers for ‘‘a 

substantial failure to meet any of the 

conditions of the petition,’’ INA sec. 

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

1184(c)(14)(A)(i), as well as the 

authority to deny or approve petitions 

for foreign temporary workers, INA sec. 

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

1184(c)(14)(A)(ii). A form letter 

campaign stated that the rule would 

create flexibility inherent in DHS’s 

immigration authority. The commenter 

said the proposed changes complement 

the improvements created by the DOL 

H–2 rule by utilizing the distinct 

authority of DHS to address abuses 

against farm workers. 

Response: DHS agrees with 

commenters who indicated that DHS 

has broad statutory authority to 

implement the changes proposed in the 

NPRM through this final rule.14 DHS set 

out the legal authority for the proposed 

changes in the NPRM in the Legal 

Authority section of the preamble at 88 

FR 65040, 65045 (Sept. 20, 2023), and 

has specifically addressed the legal 

authority for the proposed changes in 

the sections pertaining to those changes. 

Section 214(a)(1) of the INA, 8 U.S.C. 

1184(a)(1), provides DHS with the 

authority to prescribe conditions for the 

admission of nonimmigrants, and 

section 214(c)(1) of the INA, 8 U.S.C. 

1184(c)(1), establishes the 

nonimmigrant petition process as a 

prerequisite for obtaining H–2A or H–2B 

status (among others). Further, section 

274A(a)(1), 8 U.S.C. 1324a(a)(1), 

prohibits employment of noncitizens 

who are not authorized for employment. 

Section 214(c)(14)(A) of the INA, 8 

U.S.C. 1184(c)(14)(A), authorizes the 

Secretary of Homeland Security to 

impose administrative remedies and to 


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deny H–2B petitions for a period of at 

least 1 but not more than 5 years based 

on the substantial failure to meet any of 

the conditions of the H–2B petition or 

willful misrepresentation of a material 

fact in the H–2B petition. Section 

214(c)(14)(B) of the INA, in turn, 

authorizes the Secretary to delegate to 

the Secretary of Labor the authority 

Congress provided to DHS under section 

214(c)(14)(A)(i) to determine violations 

and impose administrative remedies, 

including civil monetary penalties. In 

addition to these specific statutory 

authorities, sec. 103(a) of the INA, 8 

U.S.C. 1103, provides the Secretary 

general authority to administer and 

enforce the immigration laws and to 

issue regulations necessary to carry out 

that authority. Further, sec. 402 the 

HSA, 6 U.S.C. 202, charges the Secretary 

with broad authority to establish and 

administer rules governing the granting 

of visas or other forms of permission to 

enter the United States and establishing 

national immigration enforcement 

policies and priorities. 

In this final rule, DHS similarly 

addresses the sources of its legal 

authority in the Legal Authority section. 

DHS is also addressing questions and 

comments regarding its authority to 

make specific changes in the respective 

sections of this rule. For example, DHS 

has specifically addressed comments 

challenging its authority to revise 8 CFR 

214.2(h)(16)(ii) to preclude denials of a 

nonimmigrant visa petition solely on 

the basis of the filing of a permanent 

labor certification or immigrant visa 

petition for that beneficiary in Section 

IV.E.4, Effect on an H–2 Petition of 

Approval of a Permanent Labor 

Certification, Immigrant Visa Petition, 

or the Filing of an Application for 

Adjustment of Status or an Immigrant 

Visa, in the subsection titled Opposition 

on the Basis of Legal Authority of this 

final rule. In addition, in Section IV. D. 

3.a. Legal Authority for Compliance 

Reviews and Inspections, DHS also at 

length addresses comments challenging 

the USCIS Fraud Detection and National 

Security Directorate (FDNS) authority to 

conduct compliance reviews and 

inspections. 

DHS disagrees with the commenters 

asserting that DHS lacks authority to 

implement the changes proposed in the 

NPRM, including the mandatory and 

discretionary grounds for denial. 

Contrary to the commenters’ assertion, 

and as noted in the NPRM, the 

mandatory and discretionary denial 

provisions best ensure the integrity of 

the H–2 programs and the protection of 

H–2 workers from exploitation and 

other abuses based on and consistent 

with the statutory authorities discussed 

above. DHS also disagrees that its 

proposed changes undermine 

immigration enforcement and remove 

defenses against unauthorized 

immigration and employment. To the 

contrary, the changes proposed in the 

NPRM and finalized in this rule strike 

a balance between improving the H–2 

programs for workers and their U.S. 

employers while also furthering 

program integrity. First, this final rule 

does not alter DHS’s authority to deny 

petitions, as is provided in sections 

103(a), 214(a)(1), 214(c)(1), and 

214(c)(14)(A)(ii) of the INA. Also, a 

number of the changes made through 

this rulemaking facilitate lawful 

participation in the H–2 programs. For 

example, and as discussed in more 

detail elsewhere in this rule, H–2 

portability, harmonizing grace periods 

and periods of admission, removing the 

filing of a permanent labor certification/ 

immigrant visa petition as a sole 

impediment to temporary petition 

approval, all in different ways help 

workers to find new H–2 employment 

and/or to timely depart the United 

States while maintaining their status. 

These protections in turn encourage 

workers, who may seek to enter the 

United States, to go through the proper 

channels of the temporary H–2 program 

and work for employers who need 

temporary H–2 workers. Similarly, H–2 

workers who may face an unexpected 

cessation of employment or are exposed 

to adverse work environment that merits 

a revocation of the petition would not 

be faced with potentially finding other 

work without work authorization and/or 

accruing unlawful presence that could 

result in future bars to entry, which in 

turn might create the possibility that 

workers who are unable to participate in 

the program may opt to enter the United 

States via unauthorized means. Finally, 

contrary to the assertion by some 

commenters that this final rule 

‘‘undermines’’ immigration 

enforcement, this final rule does not in 

any way limit the ability of DOL, 

pursuant to the authority DHS has 

delegated to DOL under section 

214(c)(14)(B) of the INA, to impose 

appropriate civil monetary penalties 

and other administrative remedies, or 

any other remedy authorized by law. 

This final rule also does not limit the 

ability of U.S. Immigration and Customs 

Enforcement (ICE) to engage in worksite 

enforcement or enforce employment 

authorization rules. 

Comment: A couple of trade 

associations said some proposed 

enforcement changes appear to conflict 

with current law or lack legal authority 

altogether. These commenters said DHS 

has proposed to implement investigative 

and enforcement authority that conflicts 

with DOL’s investigative and 

enforcement authority in the H–2A and 

H–2B programs, and fails to 

acknowledge the existing legal 

investigative and enforcement structure. 

A couple of commenters, including one 

of the trade associations and an 

individual commenter stated that the 

Secretary of Homeland Security has 

delegated all of DHS’s H–2B 

enforcement authority to DOL. Citing 

case law, the individual commenter 

stated that since this redelegation has 

been unchanged, the investigative and 

enforcement power belongs exclusively 

to DOL Wage and Hour Division (WHD), 

as DHS has ‘‘incapacitated itself’’ from 

exercising any such authority. In 

addition, citing NPRM references to 

‘‘general’’ authority, the commenter said 

Congress subsequently spoke very 

specifically—even comprehensively—to 

the enforcement powers at issue in the 

NPRM. The commenter said ‘‘those 

very-general provisions’’ simply do not 

address the H–2B program or the fact 

that the Department has redelegated all 

of its authority. 

Response: DHS disagrees that the 

changes conflict with the law or lack 

legal authority or that DHS’s 

investigative and enforcement authority 

conflicts with DOL’s or that DHS has 

delegated all of its enforcement 

authority to DOL. 

With respect to both H–2A and H–2B 

nonimmigrant classifications, DHS has 

authority to make these changes under 

INA secs. 214(a)(1) and 214(c)(1), 8 

U.S.C. 1184(a)(1) and 8 U.S.C. 1184(c)(1) 

and, with respect to the H–2B 

classification, INA sec. 214(c)(14)(A), 8 

U.S.C. 1184(c)(14)(A). In addition to 

those specific statutory authorities, the 

Secretary has broad general authority 

under INA sec. 103(a), 8 U.S.C. 1103(a) 

to, among other things, administer the 

immigration system, issue regulations 

and delegate certain duties to any 

employee of former INS, including 

USCIS, as established by HSA sec. 451, 

6 U.S.C. 271, and implemented through 

Delegation 0150.1 (Jun. 5, 2003). In 

addition, USCIS has the additional 

authority to interrogate aliens and issue 

subpoenas, administer oaths, take and 

consider evidence, and fingerprint and 

photograph aliens under INA section 

287(a), (b), and (f), 8 U.S.C. 1357(a), (b), 

and (f), and INA section 235(d), 8 U.S.C. 

1225(d). INA sec. 287. Through this 

final rule DHS is exercising the 

delegated authority conferred upon it by 

Congress to ensure that participants of 

the H–2 programs comply with 

applicable laws. In particular, as it 

relates to ensuring compliance with the 


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15See sec. 5.6 of the IAA. 

16See, e.g., Safeco Ins. Co. of Am. v. Burr, 551 

U.S. 47, 57 (2007) (‘‘We have said before that 

‘willfully’ is a ‘‘word of many meanings whose 

construction is often dependent on the context in 

which it appears; and where willfulness is a 

statutory condition of civil liability, we have 

generally taken it to cover not only knowing 

violations of a standard, but reckless ones as well.’’) 

(quotation marks and citations omitted); 

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 

132–33, (1988) (‘‘willful,’’ as used in a limitation 

provision for actions under the Fair Labor 

Standards Act, covers claims of reckless violation); 

Trans World Airlines, Inc. v. Thurston, 469 U.S. 

111, 125–26 (1985) (same, as to a liquidated 

damages provision of the Age Discrimination in 

Employment Act of 1967); United States v. Ill. Cent. 

R. Co., 303 U.S. 239, 242–43, (1938) (‘‘willfully,’’ as 

used in a civil penalty provision, includes ’’ 

‘conduct marked by careless disregard whether or 

not one has the right so to act’’) (quotation marks 

and citation omitted); Bedrosian v. United States, 

912 F.3d 144, 152 (3d Cir. 2018) (‘‘[G]eneral 

consensus among courts is that, in the civil context, 

the term [‘‘willfulness’’] often denotes that which is 

intentional, or knowing, or voluntary, as 

distinguished from accidental, and that it is 

employed to characterize conduct marked by 

careless disregard whether or not one has the right 

so to act . . . In particular, where willfulness is an 

element of civil liability, we have generally taken 

it to cover not only knowing violations of a 

standard, but reckless ones as well.’’) (quotation 

marks and citations omitted); Matter of Healy and 

Goodchild, 17 l & N Dec. 22, 28 (BIA 1979) 

(‘‘knowledge of the falsity of a representation’’ is 

sufficient). 

H–2B program, under INA sec. 

214(c)(14)(B), Congress explicitly 

permitted DHS to delegate to DOL 

authority under INA sec. 

214(c)(14)(A)(i) to impose certain 

administrative remedies and any other 

remedy authorized by law. See INA sec. 

214(c)(14)(B). In 2009, DHS delegated 

this section 214(c)(14)(A)(i) authority to 

DOL See 88 FR 65040, 65046 n.5 (Sept. 

20, 2023). 

Significantly, the 2009 H–2B 

delegation to DOL cited in the NPRM is 

limited to section 214(c)(14)(A)(i) of the 

INA (as specifically authorized by 

section 214(c)(14)(B) of the INA), which 

focuses on administrative remedies, 

including civil monetary penalties. 

Notwithstanding the above-described 

delegation, DHS did not also delegate its 

authority to deny petitions for certain 

periods of time under INA section 

214(c)(14)(A)(ii) pursuant to 

214(c)(14)(B). A plain reading of the 

statute makes clear that DHS’s 

delegation authority under section 

214(c)(14)(B) does not extend to section 

214(c)(14)(A)(ii). Furthermore, section 

10.0 of the DHS–DOL Interagency 

Agreement implementing the delegation 

states that ‘‘[n]othing in this IAA is 

intended to conflict with current law or 

regulation. If a term of this IAA is 

inconsistent with such authority, then 

that term shall be invalid, but the 

remaining terms and conditions of this 

IAA shall remain in full force and 

effect.’’ Thus, as described further 

below, DHS maintains its authority to 

deny petitions filed by petitioners who 

failed to follow applicable laws. 

DHS recognizes that the delegation 

mentions DHS’s authority to deny 

petitions under section 214(c)(14)(A)(ii) 

of the INA, but it does so solely in the 

context of enabling DHS to rely, in 

DHS’s discretion, on certain DOL 

findings of fact—after notice and an 

opportunity for a hearing—made by 

DOL in the context of DOL exercising 

authorities it was delegated under 

section 214(c)(14)(A)(i). Specifically, the 

delegation states that if DOL has issued 

a debarment order, DHS ‘‘may’’ (but 

need not) rely on the underlying DOL 

findings and ‘‘take appropriate action 

with respect to the petition, including 

exercising [DHS] authorities under 

214(c)(14)(A)(ii) of the INA, 8 U.S.C 

1184(c)(14)(A)(ii) and other provisions 

of the immigration laws.’’ Nowhere in 

the delegation, however, is it stated that 

DHS lacks the authority to make its own 

findings of fact, provide notice and an 

opportunity for a hearing, or deny 

petitions in connection with its exercise 

of section 214(c)(14)(A)(ii) authority. 

Under the statute and the implementing 

Interagency Agreement, DHS may deny 

H–2B petitions for a given period in two 

potential ways: (a) by relying on DOL 

findings, or (b) after conducting its own 

hearing and by relying on its own 

findings.15 DHS’s section 

214(c)(14)(A)(i) delegation does not in 

any way limit DHS’s authority under 

section 214(c)(14)(A)(ii), but findings by 

DOL provide an additional way for DHS 

to obtain information helpful or 

necessary to exercise its 214(c)(14)(A)(ii) 

authority, should facts be uncovered in 

the course of DOL’s exercise of section 

214(c)(14)(A)(i) delegated authority. The 

use of the word ‘‘may’’ highlights the 

nonbinding nature of how DHS uses any 

findings by DOL that DOL makes in the 

course of exercising any enforcement 

authority that DHS delegated to DOL 

with respect to section 214(c)(14)(A)(i). 

Under section 214(c)(1) of the INA, 

DHS—not DOL—is the sole U.S. 

governmental agency authorized to 

determine whether an H–2 (or other H, 

L, O, or P) petition may be approved. 

DHS, in its discretion, may avail itself 

of or rely on fact determinations made 

by DOL in exercising its delegated 

authority under section 214(c)(14)(A)(i). 

DHS, however, did not delegate its own 

authority to make factual 

determinations (following notice and an 

opportunity for a hearing) for purposes 

of section 214(c)(14)(A)(ii), nor did DHS 

delegate its authority under section 

214(c)(14)(A)(ii) of the INA to deny H– 

2B petitions (or other petitions filed 

under INA secs. 204 or 214(c)(1)) from 

petitioners determined by DHS—based 

on its findings of fact, whether in 

choosing to rely on DOL’s fact findings 

or DHS’s own or both—have violated 

applicable laws for a 1- to 5-year period. 

The new denial provisions in this 

rule, as applied to H–2B petitions, are 

consistent with INA section 

214(c)(14)(A). Specifically, INA section 

214(c)(14)(A) provides that DHS may 

deny H–2B petitions for a period of at 

least 1 year, but not more than 5 years, 

based on the substantial failure to meet 

any of the conditions of the petition or 

a willful misrepresentation of a material 

fact in the petition. Under INA section 

214(c)(14)(D), the term ‘‘substantial 

failure’’ means a willful failure to 

comply with requirements of INA 

section 214 that constitutes a significant 

deviation from the terms and conditions 

of a petition. As discussed in greater 

detail below, each of the violations 

triggering new denial periods in this 

final rule, as applied to H–2B petitions, 

stems from a willful failure to comply 

with program requirements. Such a 

willful failure to comply would 

constitute a significant deviation from 

the terms and conditions of the petition 

or a willful misrepresentation of a 

material fact. Consistent with caselaw, 

DHS interprets the term ‘‘willfully’’ in 

INA 214(c)(14)(A) to mean ‘‘knowingly’’ 

or ‘‘recklessly,’’ as distinguished from 

accidentally, inadvertently, or in an 

honest belief that the facts are 

otherwise.16

Each mandatory denial ground in new 

8 CFR 214.2(h)(10)(iv)(A), as applied to 

H–2B petitions, requires a finding of 

willfulness that comports with the 

applicable case law on willfulness. 

Specifically, with respect to 8 CFR 

214.2(h)(10)(iv)(A)(1), debarment by 

DOL from the H–2B program requires 

that DOL has found either that the 

employer willfully misrepresented a 

material fact or that the employer 

willfully failed to comply with program 

requirements and the failure constituted 

a significant deviation from such 

requirements. See 20 CFR 655.73(a); 29 

CFR 503.19(a). DOL regulations defining 

willful violations for purposes of INA 

sec. 214(c)(14), state, ‘‘A willful 

misrepresentation of a material fact or a 

willful failure to meet the required 

terms and conditions occurs when the 

employer . . . knows a statement is 

false or that the conduct is in violation 

or shows a reckless disregard for the 

truthfulness of its representations or for 

whether its conduct satisfies the 


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17See Temporary Non-Agricultural Employment 

of H–2B Aliens in the United States, 80 FR 24042, 

24086–87, 24129, 24139 (Apr. 29, 2015). 18For the purposes of civil liability (as opposed 

to criminal liability), the term ‘‘willful’’ includes 

both knowing violations and reckless violations. 

See, e.g., United States v. Hughes, 113 F.4th 1158, 

1161–62 (9th Cir. 2024). See also, Safeco Ins. Co. 

of Am., 551 U.S. at 56; McLaughlin, 486 U.S. at 

132–33; Trans World Airlines, 469 U.S. at 125–26; 

Ill. Cent. R. Co., 303 U.S. at 242–43. 

19 In this regard, DHS notes that its regulations 

and petition instructions have long prohibited 

petitioners and recruiters from collecting prohibited 

fees and therefore violations of such prohibitions 

necessarily constitute a significant deviation from 

longstanding publicly known terms and conditions 

of a petition. 

20 DHS has noted that there are steps a petitioner 

can take to ensure they will be able to successfully 

provide reimbursement in the event that a 

prohibited fee violation occurs. Specifically, in the 

NPRM, DHS suggested that petitioners, as a matter 

of best practice, obtain in writing the beneficiary’s 

full contact information (including any contact 

information abroad), early on during the 

recruitment process, and to maintain and update 

such information as needed, as well as obtain full 

designee information, early on during the 

recruitment process, and to maintain and update 

such information as needed to ensure the 

petitioner’s ability to comply with the 

reimbursement requirement. 88 FR 65040, 65056 

(Sept. 20, 2023). 

required conditions.’’17 20 CFR 

655.73(d); 29 CFR 503.19(b). 

A finding of willful material 

misrepresentation of a material fact or a 

finding of fraud by USCIS, as relevant 

in 8 CFR 214.2(h)(10)(iv)(A)(2), likewise 

requires a finding of willfulness, in 

accordance with established case law. In 

addition, under 8 CFR 

214.2(h)(10)(iv)(A)(3) a finding of 

violation under INA section 274(a) also 

requires the element of willfulness. In 

this regard, each subsection of INA 

section 274(a) includes an element of 

‘‘knowing’’ and/or ‘‘reckless disregard’’ 

indicating that a finding under INA 

section 274(a) would meet the 

requirements of the term willfully 

referenced in INA 214(c)(14) and as 

defined in applicable civil case law.18

Finally, we note that, as a part of its 

application for a TLC, an employer must 

attest that they will comply with 

applicable Federal, State and local 

employment-related laws and 

regulations, and on the H–2 petition 

itself, they must also attest that they 

agree to the conditions of H–2 

employment, which limits participation 

in the H–2 program to those petitioners 

who have not engaged in the types of 

criminal activities covered by INA 

section 274(a). Such a limitation is 

intended to ensure the integrity of the 

H–2 program, insofar as employers who 

have been found guilty of engaging in 

activities related to the bringing in and 

harboring of certain aliens have a 

demonstrated record of knowing or 

reckless disregard for adherence to the 

immigration law. Given the seriousness 

of the violations described in section 

274(a), there is no assurance that they 

will take seriously their obligation to 

abide by the terms and conditions of the 

H–2 program, or that they have the 

intention and ability to do so absent the 

passage of a sufficient time period for 

them to demonstrate that they in fact 

will abide by the terms and conditions 

of the H–2 program. For this reason, 

DHS has determined that precluding 

approval of H–2 petitions for employers 

convicted of a violation of section 274(a) 

for the period of time specified in this 

rule is necessary not only to ensure 

compliance with the H–2 program but to 

serve as a disincentive to employers 

from engaging in the types of criminal 

activities specified in section 274(a) 

should they wish to avoid the 

mandatory denial periods set forth in 

this rule. For these reasons, a violation 

of INA section 274(a) therefore 

constitutes a willful violation of section 

214 that constitutes a significant 

deviation from the terms and conditions 

of a petition that calls into question the 

petitioner’s intent and ability to comply 

with the requirements of the H–2 

program. 

In addition, the 1-year denial period 

for H–2B petitions set forth in new 8 

CFR 214.2(h)(6)(i)(C) stems from a 

willful failure to comply with program 

requirements that constitutes a 

significant deviation from the terms and 

conditions of the petition. Specifically, 

new 8 CFR 214.2(h)(6)(i)(C) will only 

apply after USCIS issues a decision 

denying or revoking on notice an H–2 

petition for violation of the prohibited 

fee provision at paragraph (h)(6)(i)(B) or 

(h)(5)(xi)(A), or if a petitioner withdraws 

a petition following USCIS issuance of 

a request for evidence or notice of intent 

to deny or revoke the petition for 

prohibited fees under one of those 

provisions. The cited provisions, as 

finalized in this rule, enable a petitioner 

to avoid denial or revocation—and thus 

avoid the 1-year denial period—by 

demonstrating that it made ongoing, 

good faith, reasonable efforts throughout 

the process to prevent and learn of the 

prohibited fee collection or agreement, 

that it took immediate remedial action 

upon learning of the fee, that it has 

made all necessary reimbursements, 

and, for cases where the petitioner itself 

collected the fee, that its failure to 

prevent the fee resulted from 

extraordinary circumstances beyond its 

control. As discussed in the NPRM and 

in this final rule, the prohibitions 

related to fees charged to workers are a 

longstanding and important H–2 

program requirement, and petitioners 

have to attest in the H–2 petition that, 

among other things, they have taken 

reasonable steps to ensure that 

prohibited fees are not being charged. 

As such, it is a petitioner’s 

responsibility and obligation to make 

ongoing, good faith, reasonable efforts 

toward the prevention of such fees being 

charged by its employees and by any 

third parties within the recruitment 

chain, to take immediate remedial 

action if a violation occurs, and to 

reimburse the affected parties. 

Accordingly, as the same steps that are 

required to avoid denial or revocation 

are in fact petitioner obligations for 

compliance with program requirements 

and/or the terms and conditions of the 

H–2 petition, DHS considers the failure 

to take steps described above in order to 

prevent the payment of prohibited fees, 

and/or provide evidence that such steps 

were taken, to constitute a substantial 

failure, that is, a willful failure to 

comply with INA section 214 

requirements that constitutes a 

significant deviation from the terms and 

conditions of the H–2B petition.19

Similarly, the additional 3-year period 

described in new 8 CFR 214.2(h)(6)(i)(D) 

only applies in instances where the 

petitioner has failed to provide the 

evidence necessary to avoid denial or 

revocation under paragraph (h)(6)(i)(B) 

or (h)(5)(xi)(A). Further, during this 3- 

year period, USCIS may approve the 

petition notwithstanding such a denial 

or revocation upon a showing that each 

affected beneficiary has been 

reimbursed or that the beneficiary’s 

designee has been reimbursed if the 

beneficiary cannot be located or is 

deceased. DHS considers a petitioner’s 

failure to reimburse all relevant parties 

despite knowledge of the 

reimbursement requirement, or failure 

to provide evidence of such 

reimbursement, to constitute a willful 

failure to comply with program 

requirements that constitutes a 

significant deviation from the terms and 

conditions of the petition.20

As a matter of policy and condition of 

participation in H–2 programs, DHS is 

imposing denials based on a 

predecessor’s substantial failure to 

comply with program requirements or a 

willful misrepresentation of material 

facts, including a predecessor’s denial 

under new 8 CFR 214.2(h)(6)(i)(C) or (D) 

and (h)(10)(iv), on any successors in 

interest. While the acceptance of certain 

liabilities may not be agreed upon by 

the successor within the documents 

underlying the acquisition, merger, or 

other transfer resulting in a successor in 

interest relationship, under this final 

rule, DHS has decided to extend the 


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21See generally Daniel Costa, EPI, ‘‘Second-class 

workers: Assessing H–2 visa programs’ impact on 

workers’’ (July 20, 2022) (testimony before the 

Subcommittee on Workforce Protections in the 

United States House Committee on Education and 

Labor), https://www.epi.org/publication/secondclass-workers-assessing-h2-visa-programs-impacton-workers/. 

22The White House, ‘‘Strengthening Protections 

for H–2B Temporary Workers: Report of the H–2B 

Worker Protection Taskforce’’ (Oct. 2023), https:// 

www.whitehouse.gov/wp-content/uploads/2023/10/ 

Final-H-2B-Worker-Protection-TaskforceReport.pdf. 

periods of denial based on a 

predecessor’s willful failure to comply 

with program requirements to 

successors in interest regardless of 

whether any such successor in interest 

has agreed to succeed to all of the 

liabilities of the predecessor entity. 

Accordingly, as proposed in the NPRM 

and after this rule becomes effective, a 

successor in interest will be subject to 

any applicable denial period stemming 

from the violations of this rule. DHS has 

made this determination to prevent 

predecessors that have willfully violated 

program requirements or mispresented 

material facts from avoiding any 

consequences by simply reorganizing 

into a successor entity. This regulation 

puts prospective successors in interest 

on notice that they would assume 

liability for the predecessor’s willful 

violation(s). To permit successors in 

interest to avoid successor liability 

would defeat the purpose/objective of 

this regulation and would create a 

loophole to avoid the consequences of a 

willful failure to abide by the terms and 

conditions of the H–2 programs. This 

policy furthers the statutory purpose of 

ensuring integrity in the H–2 programs. 

Comment: An attorney commenter 

stated that the NPRM is premised on the 

belief that there are no material 

differences between the H–2A and H–2B 

programs, but they have been developed 

independently since 1986 and each is 

subject to its own statutory provisions. 

The commenter wrote that failing to 

differentiate between the programs fails 

to follow congressional policy and 

rewrites statute. The commenter also 

said another major premise of the NPRM 

is the apparent conclusion that H–2B 

workers deserve or are entitled to 

extensive regulatory protection, but it is 

well-established that Congress created 

all H visas to promote the national 

interests and alleviate U.S. labor 

shortages for temporary positions by 

providing nonimmigrant labor. The 

commenter said there is no ‘‘credible 

statutory language, structure, or 

legislative history suggesting that H–2B 

workers are a protected class’’ but 

instead they are ‘‘merely a conduit to 

safeguard the true protected class’’ by 

reducing the incentive to bypass U.S. 

workers and avoid wage depression. 

The commenter stated that the preamble 

includes ‘‘virtually no discussion’’ of 

the national interest, employer interests, 

or the interests of even U.S. workers, 

while DHS is effectively erecting a 

completely new and groundless 

regulatory structure. 

Response: DHS disagrees with the 

commenter’s assertion that the NPRM is 

premised on the beliefs that there are no 

material differences between the H–2A 

and H–2B programs and that failing to 

differentiate between them is contrary to 

congressional intent. While DHS 

generally agrees with the commenter 

that the H–2 programs were created to 

alleviate U.S. labor shortages, and thus 

promote the national interest, those 

objectives are consistent with providing 

protections from abuses common to 

both H–2A and H–2B workers. Further, 

the commenter stated that the NPRM 

failed to address the interests of U.S. 

workers; however, it is well established 

that providing protections for H–2 

workers also benefits U.S. workers.21

For example, the 2023 report of the H– 

2B Worker Protection Taskforce stated 

that H–2B workers work alongside U.S. 

workers in some of our country’s most 

critical occupations, but that structural 

disincentives to report or leave abusive 

work conditions not only harm H–2B 

workers but also undermine the wages 

and working conditions of U.S. workers 

who work with them.22 With respect to 

the commenter’s contention that the 

rulemaking fails to address the national 

interest and employer interests, DHS 

also disagrees. The NPRM specifically 

discussed the importance of the H–2 

programs to U.S. employers, including 

the expansion in their use in recent 

years in a section titled Importance of 

the H–2 Programs and the Need for 

Reforms. 88 FR 65040, 65049 (Sept. 20, 

2023). In this section DHS detailed the 

administration’s policies to increase 

interest and expand access to these 

programs for employers, as well as the 

need to balance the expanded use of the 

H–2 programs with greater protections 

for workers. Id. The NPRM also 

specifically addressed the proposals that 

would most benefit U.S. employers, 

such as portability, as well as both the 

elimination of the eligible countries lists 

and the revision of the calculation of the 

maximum period of stay for H–2 

workers. 

DHS also explained that with respect 

to the H–2B program specifically, the 

proposed regulations which are also 

being finalized in this rule are intended 

to ensure that only those employers who 

comply with the requirements of the H– 

2B program will be able to compete for 

the limited number of available capsubject visas, by precluding those 

employers who fail to demonstrate an 

intent to do so from participating in the 

H–2B program. 88 FR 65040, 65051– 

65052 (Sept. 20, 2023). 

2. H–2 Program Background 

a. Worker Vulnerability 

Comment: A few commenters 

discussed the vulnerability of H–2 

workers to labor abuses and expressed 

their support for additional labor 

protections to be put into place. For 

example, a religious organization stated 

that foreign workers are uniquely 

vulnerable given that they are temporary 

workers, rely on their employers for 

basic needs, often have a language 

barrier, and many other factors. The 

commenter expressed their support for 

the Department’s effort to address 

ongoing issues within the H–2 

programs. A union and a trade 

association also expressed their support 

for additional worker protections for H– 

2 workers, reasoning that H–2 programs 

are a public benefit and that employers 

who use them need to be held to the 

highest possible standards. Similarly, a 

joint submission expressed their 

support for the proposed regulatory 

changes which they stated ‘‘would make 

some badly overdue improvements for 

these most vulnerable workers.’’ 

Response: DHS agrees with, and 

appreciates, the commenters’ feedback 

concerning the vulnerability of H–2 

workers and the need for programmatic 

reforms, as well as their overall support 

for the rule’s efforts to enhance H–2 

worker protections. 

b. Violations of Labor Laws 

Comment: Several commenters 

discussed labor violation issues within 

the H–2 programs and how employers 

can abuse their H–2 workers due to 

excessive leeway and weak oversight. 

Some labor unions stated that the 

program gives too much leeway to 

employers and that USCIS does not 

effectively enforce existing labor rules. 

The commenters said that this allows 

employers to bypass hiring procedures 

even though there are domestic workers 

available for these jobs. A research 

organization discussed how both H–2 

programs have been plagued with 

controversy regarding undocumented 

immigration and human trafficking. The 

commenter cited reports from DOL 

showing that 70 percent of the audits for 

temporary labor certifications (TLCs) led 

to enforcement actions against the 

employer ranging from a warning to 

program debarment. The commenter 

further stated that Department of State 


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23As further explained in the NPRM, while 

Congress has capped the number of H–2B visas 

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

regularly far-exceeded the statutory cap as a result 

of congressionally-provided limited authority to 

increase the cap over the past several years. 88 FR 

65040, 65049 (Sept. 20, 2023). 

(DOS) reports showed that these 

programs enabled human trafficking and 

that between 2018 and 2020 there were 

3,694 potentially identified victims of 

labor trafficking within the H–2A 

program. Lastly, the commenter noted 

that of over 200,000 investigations DOL 

had done in the seven major H–2B 

industries, 80 percent found labor 

violations. A trade association noted 

that DOL figures showed that only a 

small percentage of farms, about 5 

percent, accounted for 71 percent of all 

violations over a 15-year period. 

A union and a religious organization 

stated that they have witnessed abuses 

against migrant workers such as 

charging fees for basic services, 

inadequate housing, long work hours, 

and limited training for the operation of 

heavy machinery. The commenters 

further discussed how in addition to 

these abuses, farm workers are often 

subject to restrictions on mobility, such 

as being prohibited from leaving their 

residences, insufficient health care, and 

isolation from the community. Lastly, a 

religious organization stated that 

workers have reported practices where 

an employer works its employees for 1 

or 2 months with no days off, then 

replaces them with a different group, 

and repeats the process. The commenter 

stated that these practices might even be 

considered human trafficking under the 

Trafficking Victims Protection Act of 

2000. A joint submission from a union 

and numerous advocacy organizations 

noted that 72 percent of labor trafficking 

victims between 2018 and 2020 reported 

holding an H–2A or another temporary 

visa. 

A union further discussed how 

recruitment fees can be predatory and 

place a worker into an indentured 

servitude relationship with their 

employer, and further stated that the H– 

2 programs are one of the sources of 

modern forced labor. The commenter 

cited a study that it said showed about 

half of all H–2A workers from Mexico 

surveyed between 2006 and 2011 took 

out loans to pay for these fees. A 

separate joint submission from a union 

and numerous advocacy organizations 

brought up reports that over half of H– 

2A workers paid recruitment fees, with 

some upwards of $4,500. The 

commenter also brought up concerns 

related to issues within the construction 

industry, and cited studies on how 

foreign workers are more vulnerable to 

injuries in this dangerous workplace 

environment. 

Commenters also addressed violations 

related to wage theft and its prevalence 

among H–2 employers. For example, a 

union cited studies that it said showed 

how H–2B employers often pay H–2B 

employees below what is required by 

State and Federal law and that this 

practice has led to almost 2 billion 

dollars in stolen wages. The commenter 

noted that another study showed that 

within the construction sector, foreign 

workers earn about 24 percent less than 

domestic workers while in the overall 

economy, this figure is about 11 percent. 

A joint submission from a union and 

numerous advocacy organizations cited 

other studies that they said showed 73 

percent of the back wages and civil 

money penalties owed by farm 

employers were due to H–2A violations, 

and when investigated, agricultural 

employers are often found to be 

committing wage or hour theft from 

employees. A different union noted that 

this abuse leads workers to be deprived 

of job opportunities and subjected to 

lower wages. 

Response: DHS thanks these 

commenters, many of whom have onthe-ground experience speaking to or 

working with participants in the H–2 

programs, for bringing attention to the 

violations of various labor laws that 

many H–2 workers experience and the 

harms they cause them. Several of the 

provisions finalized in this rule, such as 

the strengthened prohibited fee 

provisions and the new mandatory and 

discretionary grounds for denial, aim to 

mitigate against some of these harms 

and vulnerabilities. 

c. Economic and Industry Reliance on 

H–2 Workers 

Comment: A few commenters, 

including a religious organization, 

discussed the current role of H–2 

programs in the economy and how it is 

being used to fulfill labor demands that 

the domestic workforce is unable to 

meet. A few commenters discussed the 

use of the H–2 programs in the 

agricultural sector and how the industry 

has become more reliant on H–2A 

workers. A trade association stated that 

in part due to increased industrial job 

opportunities in Mexico, Texas farmers 

have begun to rely more heavily on H– 

2A workers to fill labor gaps. A business 

association noted that due to a shrinking 

domestic workforce, employers have 

had to rely more on H–2A workers in 

recent years and that the number of H– 

2A workers that are hired can range 

between a few dozen or thousands per 

entity. A separate business association 

discussed how the number of H–2A 

agricultural workers in states like 

Washington, Oregon, and Idaho has 

increased by significant margins in the 

past few years. The commenter stated 

that the number of H–2A workers in 

Washington has increased from 18,800 

in 2017 to 38,664 in 2023, while in 

Oregon the number of H–2A workers 

increased by a third between 2018 and 

2021. The commenter also noted that 

about 90 percent of these workers return 

to the same place of employment in the 

following years. 

A trade association noted that over 

the last decade, an aging domestic 

workforce and changing economic 

conditions in Mexico have led the 

agricultural industry in border states 

such as Texas to rely on H–2A workers 

to meet labor demands that are difficult 

to fulfill through domestic workers and 

Mexican day laborers. A professional 

association stated that there was an 

acute need for the H–2 and other similar 

programs to fill labor gaps in the U.S. 

economy, such as the construction 

industry where the ratio of openings to 

employment has climbed to 4.4 percent 

from 2.3 percent in 2015 and there were 

over 300,000 openings at the time of 

commenting. 

Response: DHS is aware of the 

considerable increase in recent years in 

the utilization of both the H–2A and H– 

2B programs by U.S. employers and 

appreciates these commenters offering 

information on this growth. As noted in 

the NPRM, both the H–2A and H–2B 

programs have experienced significant 

growth over the last decade. H–2A visa 

issuances have increased by over 365 

percent over the last decade, and H–2B 

visa issuances have nearly doubled over 

the last decade.23 88 FR 65040, 65049 

(Sept. 20, 2023). Whether due to U.S. 

workers seeking employment 

opportunities in sectors other than 

agriculture, or due to an aging domestic 

workforce, or for other reasons, the 

strong interest from U.S. employers in 

seeking temporary workers through the 

H–2 programs is apparent, as these 

commenters note. The changes to the H– 

2 programs finalized in this rule will 

benefit these employers by further 

streamlining and improving the overall 

integrity of the programs as these 

programs grow. 

d. H–2B Program Size 

Comment: A couple of commenters 

generally discussed the growing size of 

the H–2 programs and, in particular, 

issues with the H–2B program 

exceeding the statutory 66,000 cap in 

recent years. A union expressed concern 

with how, through annual riders 

included in recent appropriations laws 

and DHS regulations including 


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24This increase in the cap is in accordance with 

Section 105 of Division G, Title I of the Further 

Consolidated Appropriations Act, 2024, Public Law 

118–47, as extended by sections 101(6) and 106 of 

Division A of the Continuing Appropriations and 

Extensions Act, 2025, Public Law 118–83, which 

gave the Secretary of Homeland Security the 

authority to make available additional H–2B visas 

for FY 2025. 

returning worker exemptions, the 

government has been able to effectively 

increase the cap well above the 66,000 

originally set when the H–2B program 

was established. The commenter also 

expressed concern that the increase in 

size and lax enforcement of labor laws 

has led to an undercutting of domestic 

labor. 

A research organization raised 

concerns over how the NPRM does not 

discuss the impact of portability on the 

H–2B annual cap, the number of 

extensions of stay with the same 

employer for the H–2B program, nor the 

true size of the H–2B program in terms 

of the total number of H–2B workers 

employed in a given fiscal year. The 

commenter noted that publicly available 

data at the time of comment do not 

convey the total number of positions 

filled by H–2B workers, which they 

stated was ‘‘critical to know since H–2B 

workers who change employers or 

extend with the same employer will 

have filled two positions under one slot 

under the annual cap.’’ The commenter 

said that the number of beneficiaries 

approved for the H–2B program was 

important to know because the number 

of H–2B beneficiaries has grown far 

beyond the annual cap set by statute. 

The same commenter noted that USCIS 

calculates the total number of H–2B 

workers by adding the number of visas 

approved and the number of new H–2B 

workers that do not need visas, but that 

it leaves out H–2B workers that were 

approved to continue their status with 

the same employer or were approved to 

change employers. The commenter said 

that a similar issue exists with more 

recent data regarding the total number 

of H–2B workers because they do not 

differentiate between a new worker and 

one that is extending their current status 

or changing employers. Lastly, the 

commenter concluded that over the past 

few years, there have been significantly 

more H–2B workers than what is 

allowed by the statutory and 

supplemental caps. The commenter 

estimated that there would be a similar 

proportion of H–2B workers compared 

to the statutory and supplementary cap 

in 2023. 

Response: As alluded to by a 

commenter, the INA sets the annual 

number of noncitizens who may be 

issued H–2B visas or otherwise 

provided H–2B status at 66,000, to be 

distributed semi-annually beginning in 

October and April. See INA sec. 

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

Under this semi-annual cap, up to 

33,000 noncitizens may be issued H–2B 

visas or provided H–2B nonimmigrant 

status in the first half of a fiscal year, 

and the remaining annual allocation, 

including any unused nonimmigrant H– 

2B visas from the first half of a fiscal 

year, will be available for employers 

seeking to hire H–2B workers during the 

second half of the fiscal year. See INA 

sec. 214(g)(10), 8 U.S.C. 1184(g)(10). 

There are some exceptions to the cap, 

for example, as workers in the United 

States in H–2B status who extend their 

stay, change employers, or change the 

terms and conditions of employment are 

not subject to the cap. See 8 CFR 

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

who have previously been counted 

against the cap in the same fiscal year 

that the proposed employment begins 

will not be subject to the cap if the 

employer names them on the petition 

and indicates that they have already 

been counted. See id. 

Once the H–2B cap is reached, USCIS 

may only accept petitions for H–2B 

workers who are exempt or not subject 

to the H–2B cap. No provisions adopted 

in this final rule allow DHS to exceed 

the statutory limitation on the number 

of H–2B visas issued per fiscal year. 

Similarly, no provisions adopted in this 

final rule alter the current exemptions to 

the statutory cap for workers in the 

United States in H–2B status who 

extend their stay, change employers, or 

change the terms and conditions of 

employment. 

In recent fiscal years, Congress has 

authorized the Secretary of Homeland 

Security to temporarily increase the 

statutory cap. Before authorizing the 

additional visa numbers, the Secretary, 

in consultation with the Secretary of 

Labor, considers the needs of businesses 

and other factors, including the impact 

on U.S. workers and the integrity of the 

H–2B program. Most recently, on 

December 2, 2024, DHS and DOL jointly 

published a temporary final rule (TFR) 

increasing the numerical limit for FY 

2025.24 Thisincrease is based on timelimited statutory authority that does not 

affect the H–2B program in future fiscal 

years. 

DHS appreciates the commenter’s 

analysis regarding the portability 

provision but does not agree with the 

conclusion that DHS fails to adequately 

assess the impact of the type of 

portability proposed on the growth and 

overall size of the H–2B program. Much 

of the comment’s substance focuses on 

aspects of the H–2 program that, as 

described above, would not be affected 

by this rulemaking and therefore should 

not be considered as an impact of the 

rule. For instance, this rulemaking does 

not establish the ability to extend stay 

nor does it speak to which workers are 

cap exempt or subject to the respective 

caps. DHS believes that the NPRM’s 

discussion of the marginal impact of 

portability on the affected population of 

porting workers is an accurate and 

sufficient articulation of the impacts of 

this rule. See 88 FR 65040, 65074, 

65079–80 (Sept. 20, 2023). 

Additionally, DHS appreciates the 

commenters’ analysis of available H–2 

data and agrees that the combination of 

data sources and methods described in 

the comment leads to overcounting of 

the total universe of H–2B workers in 

the country in a given fiscal year. More 

specifically, the commenter noted that 

the H–2B Data Hub’s ‘‘Continuing 

Approvals’’ field likely overcounts total 

H–2B workers because of a lack of data 

on workers who switched employers or 

changed job conditions while at the 

same employer. In order to address 

concerns raised by the commenter, 

USCIS is providing relevant data in 

Table 2 and Table 3 below: 

BILLING CODE 9111–97–P 


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25See INA secs. 101(a)(15)(H)(ii)(a)–(b), 8 U.S.C. 

1101(a)(15)(H)(ii)(a)–(b), 218(a)(1), 8 U.S.C. 

1188(a)(1); 8 CFR 214.2(h)(5)(ii), (h)(6)(i). 

26See INA sec. 218(a)(1)(B), 8 U.S.C. 1188(a)(1)(B) 

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

1101(a)(15)(H)(ii)(b) (H–2B); 8 CFR 214.2(h)(5)(ii), 

(h)(6)(i). 

27See INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1); 8 

CFR 214.2(h)(5)(i)(A), (h)(5)(ii), (h)(6)(iii)(A), 

(h)(6)(v). 

BILLING CODE 9111–97–C 

Regarding the comment that the 

increase in H–2 program size and ‘‘lax 

enforcement’’ of labor laws has led to an 

undercutting of domestic labor, DHS 

disagrees and emphasizes that 

enforcement of labor laws involving 

domestic labor generally falls under the 

jurisdiction of DOL. DHS notes that, to 

avoid the undercutting of domestic 

workers as mentioned by the 

commenter, it is a requirement under 

both H–2 programs that the Secretary of 

Labor must certify that there are not 

sufficient able, willing, qualified, and 

available U.S. workers who can perform 

such services or labor.25 Additionally, 

H–2 employment may not adversely 

affect the wages and working conditions 

of workers in the United States.26 An H– 

2A or H–2B petition must be 

accompanied by an approved TLC from 

DOL, issued pursuant to regulations 

established at 20 CFR part 655, or from 

the Guam Department of Labor (GDOL) 

for H–2B workers who will be employed 

on Guam. The TLC serves as DHS’s 

consultation with DOL or GDOL with 

respect to whether a qualified U.S. 

worker is available to fill the petitioning 

H–2A or H–2B employer’s job 

opportunity and whether a foreign 

worker’s employment in the job 

opportunity will adversely affect the 

wages and working conditions of 

similarly employed workers in the 

United States.27

D. Program Integrity and Worker 

Protections 

1. Payment of Fees, Penalties, or Other 

Compensation by H–2 Beneficiaries 

a. Use of Phrase ‘‘Related to’’ 

Comment: Several commenters, 

including a trade association, a union, a 

joint submission, some advocacy 

groups, and a religious organization, 

expressed support for conforming 

USCIS regulations to DOL’s regulatory 

language, such as the prohibition of fees 

‘‘related to’’ employment, or clarifying 

the term ‘‘prohibited fee’’ to include any 

fee, penalty, or compensation. The 

religious organization expressed support 

for the language change to prohibit fees 

‘‘related to’’ H–2 employment in order 

to better protect workers and urged DHS 

to adopt the regulation as proposed. 

Response: DHS appreciates the 

commenters’ support for conforming 

USCIS regulations to DOL’s regulatory 

language. These conforming changes are 

expected to increase clarity regarding 

prohibited fees and better protect 

workers. As discussed below, DHS is 

making some changes to the proposed 

regulation in light of other comments 

that suggested specific changes. 

Comment: A union and a State agency 

generally supported the language 

change to prohibit fees ‘‘related to’’ H– 

2 employment but suggested that USCIS 

include a list describing prohibited fees 


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28 88 FR 65040, 65052 (Sept. 20, 2023) (citing 

DOL, WHD, ‘‘Fact Sheet #78D: Deductions and 

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

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

29See 20 CFR 655.20(o) (stating that fees ‘‘related 

to’’ H–2B employment ‘‘include the employer’s 

attorney or agent fees, application and H–2B 

Petition fees, recruitment costs, or any fees 

attributed to obtaining the approved Application for 

Temporary Employment Certification’’); 29 CFR 

503.16(o) (containing a similar list for fees ‘‘related 

to’’ H–2B employment); 20 CFR 655.135(j) (stating 

that fees ‘‘related to’’ H–2A employment include 

‘‘payment of the employer’s attorney fees, 

application fees, or recruitment costs’’). 

30See 20 CFR 655.135(j) (H–2A); 20 CFR 

655.20(o) (H–2B). For readability purposes, this rule 

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

and 29 CFR as ‘‘DOL regulations’’ notwithstanding 

DHS’s joint issuance of some rules affecting these 

provisions. 

in the regulatory text, similar to the list 

in the preamble. 

Response: As the commenters noted, 

the preamble of the NPRM provided 

examples of fees that are ‘‘related to’’ H– 

2 employment including, but not 

limited to, the employer’s agent or 

attorney fees, visa application and 

petition fees, visa application and 

petition preparation fees, and 

recruitment costs.28 However, DHS 

declines the suggestions to include this 

or another listing of specific prohibited 

fees in the regulatory text. As noted in 

the NPRM, DHS is replacing the term 

‘‘as a condition of’’ with ‘‘related to’’ to 

substantially conform with DOL 

prohibited fee regulations. DHS is also 

finalizing the clarification that ‘‘[t]he 

passing of a cost to the beneficiary that, 

by statute or applicable regulations is 

the responsibility of the petitioner, 

constitutes the collection of a prohibited 

fee.’’ New 8 CFR 214.2(h)(5)(xi)(A), 

(h)(6)(i)(B). As DOL regulations already 

provide a non-exhaustive list of fees that 

are ‘‘related to’’ employment and thus 

are the responsibility of the employer,29

it is unnecessary to repeat that nonexhaustive list in DHS regulations. 

Comment: An attorney expressed 

concern with the phrase ‘‘related to,’’ 

stating it was ‘‘unrestricted’’ and allows 

the Department to ‘‘sweep up’’ any and 

all violations, including violations that 

are simply inadvertent or technical by 

‘‘even the most innocent employer.’’ 

Response: DHS disagrees with the 

commenter’s characterization that the 

phrase ‘‘related to’’ is ‘‘unrestricted’’ 

and allows the Department to ‘‘sweep 

up’’ any violations that are simply 

inadvertent or technical. Instead, that 

phrase seeks to balance an interest in 

protecting workers from prohibited costshifting by employers while recognizing 

that not all payments or reimbursements 

by workers are forbidden. Moreover, 

this change in terminology provides 

consistency across agencies by 

conforming to the long-standing use of 

the phrase in DOL regulations.30

The term ‘‘related to’’ is meant to be 

read broadly to ensure that employers 

bear the cost of bringing in noncitizen 

workers under the H–2 programs and 

prevent employers from passing those 

costs to H–2 workers, with the resulting 

consequences of indebtedness, 

intimidation, and exploitation of 

nonimmigrant workers that can occur. 

This is consistent with the intent 

expressed by DOL in promulgating its 

own prohibited fee regulations, to 

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

of their decision to import foreign 

workers [as] a necessary step toward 

preventing the exploitation of foreign 

workers, with its concomitant adverse 

effect on U.S. workers.’’ 75 FR 6884, 

6925 (Feb. 12, 2010); 73 FR 77110, 

77158 (Dec. 18, 2008). However, the 

phrase ‘‘related to’’ is not 

‘‘unrestricted,’’ as the commenter 

claimed. Consistent with DOL 

regulations, DHS recognizes that an H– 

2 employer is not responsible for costs 

that are primarily for the benefit of the 

H–2 worker and will finalize regulatory 

text making this clear. See new 8 CFR 

214.2(h)(5)(xi)(A), (h)(6)(i)(B) (‘‘This 

provision does not prohibit petitioners 

(including their employees), employers 

or any joint employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services from 

receiving reimbursement from the 

beneficiary for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’). 

DHS therefore disagrees with the 

commenter’s concerns about the phrase 

‘‘related to’’ being ‘‘unrestricted.’’ 

b. Clarification of Acceptable 

Reimbursement From the Beneficiary 

for Costs That Are the Responsibility 

and Primarily for the Benefit of the 

Worker 

Comment: A professional association 

expressed support for the clarification 

that some costs to workers are 

acceptable if they are for the benefit of 

the worker and are the worker’s 

responsibility. An advocacy group also 

supported this new regulatory language, 

noting that it improves clarity and 

affirms that an employer is responsible 

for all costs related to an H–2 worker’s 

employment, other than those costs 

primarily for the benefit of the worker. 

Response: DHS appreciates the 

commenters’ support for the rule’s 

clarification of certain fees that may be 

reimbursed by H–2 workers. As noted 

above, new 8 CFR 214.2(h)(5)(xi)(A) and 

8 CFR 214.2(h)(6)(i)(B), as modified, 

will clarify that the prohibited fees 

provisions do not prohibit petitioners 

(including their employees), employers 

or any joint employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services from 

receiving reimbursement from the 

beneficiary for costs that are the 

responsibility and primarily for the 

benefit of the worker. DHS is slightly 

modifying this provision from what was 

proposed by adding ‘‘from the 

beneficiary.’’ As noted in the proposed 

rule, it is not the Department’s intention 

to pass to petitioners, employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services, the costs 

of services or items that are truly 

personal and voluntary in nature for the 

worker. 

Comment: Many commenters, 

including trade associations, a research 

organization, and a joint submission, 

stated that DHS should provide 

additional guidance on what costs, in 

addition to government-required 

passport fees, may be considered ‘‘the 

responsibility and primarily for the 

benefit of the worker’’ such that they are 

acceptable for reimbursement by the 

worker. A professional association 

noted that ‘‘[p]assport fees are expressly 

excluded in the definition of prohibited 

fees’’ but that ‘‘there may be other fees 

that could benefit both employers and 

the workers not clearly addressed in the 

proposed rule.’’ The commenter noted 

that ‘‘[g]reater specificity would be 

helpful in the scope of the definition of 

prohibited fees, given that subsequent 

reimbursement would no longer remedy 

the error.’’ 

Response: As explained in the NPRM 

and codified in this final rule, fees that 

are ‘‘related to’’ H–2 employment are 

those that are the responsibility of and 

primarily for the benefit of the employer 

and may not be collected at any time 

from a beneficiary of an H–2A or H–2B 

petition. See new 8 CFR 

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

214.2(h)(6)(i)(B); 88 FR 65040, 65052 

(Sept. 20, 2023) (stating that fees that are 

‘‘related to’’ H–2 employment include, 

but are not limited to, the employer’s 

agent or attorney fees, visa application 

and petition fees, visa application and 

petition preparation fees, and 

recruitment costs; however, such fees 

would not include those that are ‘‘the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’). 

Thus, an employer may not seek 

reimbursement from a worker for fees 

that are related to H–2 employment. 

However, an employer may seek 

reimbursement from a worker for fees 


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31See WHD, ‘‘Fact Sheet #78F: Inbound and 

Outbound Transportation Expenses, and Visa and 

Other Related Fees under the H–2B Program,’’ 

https://www.dol.gov/agencies/whd/fact-sheets/78fh2b-fees; DOL, Field Assistance Bulletin NO. 2009– 

2 (Aug. 21, 2009). 

32See, e.g., 29 CFR 531.3(d)(1) (‘‘The cost of 

furnishing ‘facilities’ found by the Administrator to 

be primarily for the benefit or convenience of the 

employer will not be recognized as reasonable and 

may not therefore be included in computing 

wages.’’); 80 FR 24042, 24063 (Apr. 29, 2015) 

(‘‘DOL’s longstanding position is that deductions or 

costs incurred for facilities that are primarily for the 

benefit or convenience of the employer will not be 

recognized as reasonable and therefore may not be 

charged to the worker.’’); see also DOL, ‘‘Travel and 

Visa Expenses of H–2B Workers Under the FLSA’’ 

(Aug. 21, 2009) (stating that in determining which 

pre-employment expenses incurred by the 

employee must be reimbursed back to the 

employee, ‘‘the question is whether these expenses 

for H–2B nonimmigrant workers are ‘an incident of 

and necessary to the employment, and therefore are 

primarily for the benefit or convenience of the 

employer’’), https://www.dol.gov/sites/dolgov/files/ 

WHD/legacy/files/FieldAssistanceBulletin2009_

2.pdf. 

that are ‘‘the responsibility and 

primarily for the benefit of the worker.’’ 

As finalized at new 8 CFR 

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

214.2(h)(6)(i)(B), fees that are ‘‘the 

responsibility and primarily for the 

benefit of the worker’’ include 

‘‘government-required passport fees.’’ 31

This intentionally mirrors DOL’s 

language that its prohibited fee 

provisions do not ‘‘prohibit employers 

or their agents from receiving 

reimbursement for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees.’’ 20 

CFR 655.20(o), 655.135(j). Since DOL’s 

regulatory language does not contain 

examples beyond government-required 

passport fees, DHS also will not provide 

other examples in new 8 CFR 

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

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

However, to be responsive to 

commenters’ requests for additional 

guidance on what costs, in addition to 

government-required passport fees, may 

be considered ‘‘the responsibility and 

primarily for the benefit of the worker,’’ 

DHS hereby clarifies that such fees may 

also include H–4 visa fees for dependent 

family members and filing fees for 

Forms I–539, Application to Extend/ 

Change Nonimmigrant Status, 

requesting extension of the same status 

for any H–4 dependents. There may be 

other instances in which a fee is 

considered primarily for the benefit of 

the worker, although, such instances 

will be limited in light of the fact that 

employers are responsible for all costs 

‘‘related to’’ H–2 employment. 

c. Clarification of Acceptable 

Reimbursement to the Beneficiary for 

Certain Costs That Are ‘‘Related to’’ H– 

2 Employment 

Comment: A trade association urged 

DHS to allow employers to reimburse 

workers for meals and other costs 

associated with their travel to the 

United States, stating that this practice 

benefits workers. A joint submission 

expressed concern that leaving the 

proposed regulation vague about what 

other fees are acceptable for 

reimbursement could result in 

inconsistent application of the 

regulation. A professional association 

suggested that ‘‘‘visa application’ should 

be removed from this section [of 

prohibited fees] because [visa 

application fees, that is the DS–160 fee] 

is recognized elsewhere justifiably as a 

reimbursable cost.’’ 

Response: DHS recognizes that it is 

permissible, in certain limited 

circumstances, for a worker to initially 

pay a fee related to H–2 employment 

and then to be reimbursed by the 

employer for that expense. In such a 

case, the fee is still the responsibility of 

the employer and may not be passed on 

to the worker, but reimbursement has 

been deemed to be an allowable 

mechanism by which the employer can 

fulfill its responsibility to pay the fee. 

For example, 20 CFR 655.20(j)(2) states 

with respect to H–2B workers that ‘‘[t]he 

employer must pay or reimburse the 

worker in the first workweek for all visa, 

visa processing, border crossing, and 

other related fees (including those 

mandated by the government) incurred 

by the H–2B worker . . . .’’ Thus, all 

visa, visa processing, border crossing, 

and other related fees are the 

responsibility of the employer, but DOL 

allows for the employer to satisfy its 

obligation to pay these fees by 

reimbursing the worker within the first 

workweek. 

DHS does not intend to prohibit 

reimbursement of fees where such 

reimbursement is specifically allowed 

by statute or regulations governing the 

H–2 programs. Therefore, DHS is 

modifying the regulatory text in this 

final rule at 8 CFR 214.2(h)(5)(xi)(A) and 

8 CFR 214.2(h)(6)(i)(B) to add that ‘‘This 

provision does not prohibit employers 

from allowing workers to initially incur 

fees or expenses that the employers are 

required to subsequently reimburse, 

where such arrangement is specifically 

permitted by, and performed in 

compliance with, statute or regulations 

governing the [H–2A/H–2B] program.’’ 

In addition, nothing in the regulation 

prevents an employer from seeking 

reimbursement from the worker after 

initially paying costs that are the 

worker’s responsibility and are 

primarily for the benefit of the worker 

(such as passport costs). In determining 

the employer’s responsibility to cover 

expenses related to H–2 employment, 

the question is not whether H–2 workers 

derive a benefit from payment of such 

fees, but whether, under applicable 

regulations and guidance, the payment 

is made primarily for the benefit of the 

employer.32

d. Prohibiting Breach of Contract Fees 

and Penalties 

Comment: Several commenters, 

including multiple trade associations, a 

union, and a joint submission, generally 

supported the inclusion of a breach of 

contract or penalty as a prohibited fee 

but requested DHS to clarify what 

constitutes a prohibited breach of 

contract fee or penalty. For example, 

multiple trade associations and a joint 

submission requested that DHS clarify 

what would constitute a breach of 

contract fee or penalty in circumstances 

where workers abandon or are 

terminated for cause from their work. 

The commenters requested that DHS 

clarify that the employer would not be 

deemed to have charged a breach of 

contract fee for failing to offer 

guaranteed work hours or provide 

return transportation in those cases. The 

joint submission asked whether the new 

regulation would preclude an employer 

from incorporating into the H–2A or H– 

2B contract a ‘‘no complete, no rehire’’ 

clause stating that workers will not be 

rehired for future contracts if they resign 

without cause prior to the agreed-upon 

end date. 

Response: DHS will not consider the 

petitioner’s failure to offer guaranteed 

work hours, provide return 

transportation, and pay subsistence 

costs as a breach of contract fee or 

penalty, where DOL or DHS regulations 

relieve a petitioner of its responsibility 

to offer guaranteed work hours, provide 

return transportation, and pay 

subsistence costs for a beneficiary who 

has voluntarily left employment or was 

terminated for cause. See, e.g., 20 CFR 

655.20(y) (abandonment/termination of 

employment for H–2B workers); 20 CFR 

655.122(n) (abandonment of 

employment or termination for cause for 

H–2A workers). Similarly, with respect 

to the commenters’ question about a ‘‘no 

complete, no rehire’’ clause for a 

beneficiary who voluntarily left 

employment or was terminated for 

cause, DHS will not consider this clause 

a prohibited ‘‘fee or penalty for breach 

of contract’’ under new 8 CFR 

214.2(h)(5)(xi)(A) or (6)(i)(B) so long as 

the consequence to the worker is limited 

to not being rehired by the petitioner 


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and does not include a monetary or 

financial penalty or fee for such 

termination or voluntary departure. 

However, DHS cautions that while such 

a clause does not fall under the 

‘‘prohibited fee’’ provisions, it may 

implicate other statutory or regulatory 

provisions such as DOL’s prohibition on 

discrimination or retaliation under the 

H–2A program at 29 CFR 501.4. 

Petitioners and employers should take 

these other provisions into account 

when adopting such a clause or taking 

actions pursuant to such a clause. 

Comment: A State agency stated it is 

‘‘understandable to not charge excessive 

fees for the worker not completing the 

contract,’’ but expressed concern that by 

prohibiting the charging of breach of 

contract fees, an employer could pay 

upfront several hundreds or thousands 

of dollars for a worker, just for the 

worker to leave the job after a short time 

without any consequences to the 

worker. 

Response: DHS acknowledges that an 

employer may be required to invest 

significant resources in petitioning for 

H–2 workers. However, certain costs 

associated with participation in the H– 

2 program are the responsibility of the 

employer. These costs remain the 

responsibility of the employer even if 

the worker departs prior to the end of 

the petition period and the employer 

may not seek to recover these costs 

through a ‘‘breach of contract’’ fee or 

otherwise. 

Comment: A few commenters, 

including advocacy groups and a 

professional association, expressed 

support for the proposed changes 

prohibiting breach of contract fees and 

penalties. An advocacy group 

recommended that USCIS strengthen 

this language even further by 

prohibiting non-monetary penalties or 

penalties imposed on a worker’s 

relations or anyone acting on behalf of 

the worker. The advocacy group also 

proposed specific language adjustments 

for section 214.2(h)(5)(xi)(A) with 

corresponding changes for section 

212.4(h)(6)(i)(B), to specify that 

‘‘Requiring a beneficiary or any person 

related to the beneficiary or acting on 

the beneficiary’s behalf to sign a 

negotiable instrument or grant a security 

interest in any collateral constitutes the 

collection of a prohibited fee.’’ 

Response: In response to the comment 

from the advocacy group, DHS is adding 

text to clarify that a prohibited fee may 

not be collected from a beneficiary ‘‘or 

any person acting on the beneficiary’s 

behalf’’ at new 8 CFR 214.2(h)(5)(xi)(A) 

and (6)(i)(B). This language is meant to 

clarify that an employer may not 

circumvent these provisions by 

collecting an otherwise prohibited fee 

from a third party (such as a family 

member) acting on the beneficiary’s 

behalf. 

DHS declines to add the remaining 

suggested text to the final regulation 

regarding ‘‘a negotiable instrument or 

grant a security interest in any 

collateral.’’ While DHS agrees that 

prohibited fees may be collected in a 

variety of ways, including by requiring 

a beneficiary or someone acting on their 

behalf to grant a security interest in any 

collateral, the changes to 8 CFR 

214.2(h)(5)(xi)(A) and (6)(i)(B) to 

prohibit any ‘‘other fee, penalty, or 

compensation (either direct or indirect), 

related to the H–2[A/B] employment’’ 

are sufficiently broad to cover this and 

similar types of scenarios. Additionally, 

while DHS agrees that requiring a 

beneficiary or someone acting on their 

behalf to sign a negotiable instrument 

(such as a promissory note) to pay a 

prohibited fee would not be permissible, 

the phrases ‘‘agreement to collect’’ and 

‘‘agreed to pay’’ at 8 CFR 

214.2(h)(5)(xi)(A)(1) and (6)(i)(B)(1), and 

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

(6)(i)(B)(2), respectively, are sufficiently 

broad to cover this scenario and similar 

types of scenarios. There may be other 

fact patterns that could constitute the 

collection of or an agreement to collect 

a prohibited fee, and as such, codifying 

the technical terms ‘‘negotiable 

instrument,’’ ‘‘security interest,’’ and 

‘‘collateral’’ is unnecessary. 

e. Strengthening the Prohibited Fee 

Provisions 

Comment: Citing reports and statistics 

showing the pervasiveness of prohibited 

fees, an advocacy group welcomed the 

Department’s efforts to strengthen 

enforcement against such fees. Another 

advocacy group, citing a statement from 

an H–2A worker, similarly expressed 

strong support for DHS’s efforts to 

provide more effective enforcement on 

recruitment fees and other unlawful 

fees. A union generally endorsed the 

Department’s efforts to increase 

accountability for employers who use 

foreign recruiters and other third-party 

agents through the proposed fee 

provisions. 

An advocacy group similarly 

expressed support for the proposal to 

strengthen the existing prohibition on 

and consequences for charging certain 

fees to H–2A workers. The commenter 

concurred with the Department’s 

assessment that the consequences for 

employers charging prohibited fees 

could, in conjunction with the 

whistleblower protections, reduce 

disincentives for workers to report 

prohibited fees. 

Citing various statistics and reports, a 

joint submission expressed broad 

support for DHS’s proposals with 

respect to prohibited recruiter fees. The 

commenters agreed with the 

Department’s rationale that targeting 

employers who charge prohibited fees 

would also help to target human and 

labor trafficking. The commenters 

concluded that the pervasiveness of 

trafficking in the H–2A program and the 

egregiousness of the associated crimes 

justify DHS’s proposals and require the 

rule’s swift implementation. 

A union expressed strong support for 

DHS’s proposal to eliminate the current 

regulatory exemptions that allow 

employers to avoid liability for the 

charging of prohibited fees. The union 

reasoned that the current regulations 

provide too many exemptions and 

eliminating them would make it more 

difficult for employers to avoid the 

consequences of their actions, as well as 

the actions of their agents. 

An advocacy group expressed overall 

support for the proposed language to 

strengthen the applicability of the 

prohibited fees provisions while citing 

provisions that would narrow the 

circumstances in which petitioners 

could avoid revocation or denial. The 

group acknowledged that the ‘‘very high 

standard’’ established in the regulations 

would require petitioners to take an 

active role in ensuring that their 

employees do not charge prohibited 

fees, and that a ‘‘mere lack of 

awareness’’ would not allow petitioners 

to avoid consequences. Citing examples, 

the commenter reasoned that many H– 

2 employers rely on employees to 

recruit new H–2 workers, without taking 

any steps to ensure that these employees 

are not charging fees to their recruits. 

The commenter additionally reasoned 

that H–2 petitioners are already 

obligated to ensure their employees 

comply with various legal obligations, 

so compliance with the H–2 regulations 

on prohibited fees should not be an 

exception. While similarly describing 

the standards under this section of the 

rule, another advocacy group 

emphasized the need for employers to 

discourage their agents and employees 

from charging prohibited fees, rather 

than allowing them to claim ignorance 

of fees to avoid penalties. The group 

concluded that the proposed affirmative 

obligations for employers would 

improve and maintain the integrity of 

the H–2 program. 

Response: DHS appreciates the broad 

support offered by these commenters for 

the changes made in relation to 

strengthening the H–2 prohibited fees 

provisions. Despite existing regulatory 

provisions against charging certain fees 


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33See, e.g., GAO, GAO–10–1053, ‘‘Closed Civil 

and Criminal Cases Illustrate Instances of H–2B 

Workers Being Targets of Fraud and Abuse’’ (2010) 

(describing various instances when employer 

charge excessive fees), https://www.gao.gov/assets/ 

gao-10-1053.pdf; GAO, GAO–15–154, ‘‘Increased 

Protections Needed for Foreign Workers’’ (2015) 

(specifying instances of abuses during the 

recruitment process, including the charging of 

prohibited fees), https://www.gao.gov/assets/gao15-154.pdf. 

to H–2 employees, incidents of workers 

reporting prohibited fees were levied on 

them at some point during the 

recruitment and hiring process remain 

pervasive, as the commenters note. The 

changes proposed in the NPRM to 

enhance the integrity of the H–2 

programs and provide additional worker 

protections are adopted in this final rule 

with some clarifying revisions; any 

amendments to those proposals based 

on public comment are discussed in 

detail under the appropriate section. 

Comment: Multiple commenters 

expressed concern with DHS’s proposal 

to eliminate exceptions to prohibited 

fee-related denials or revocations that 

are based solely on a petitioner’s 

reimbursement, pre-payment 

cancellation of a prohibited fee 

agreement, or notification to DHS, as 

summarized below. 

A joint submission wrote that, under 

current regulations, employers must 

take remedial action as a condition of 

approval, which provides employers 

with a reasonable opportunity to resolve 

and remedy violations that occur 

without their knowledge or 

involvement. The commenters said that 

the proposal to remove such 

opportunities is ‘‘unbalanced’’ and 

penalizes employers disproportionately. 

Similarly, a business association wrote 

that the proposal is concerning to 

businesses and would cause 

unnecessary disruptions for wellmeaning employers that rely on the H– 

2 program to meet their workforce 

needs. A research organization wrote 

that the proposal to remove the 

exception to denial when an employer 

reimburses the fee before filing the 

petition is ‘‘unjustifiable,’’ as it would 

create an automatic denial in every 

situation where a prohibited fee is 

identified anywhere in the chain of 

recruitment. 

A few trade associations wrote that 

they supported strong enforcement 

against the unlawful collection of or 

threats to collect prohibited fees. 

However, they expressed concern that 

the proposal to eliminate these 

exceptions would prevent employers 

from accessing the program through 

correctional mechanisms (that is, 

through reimbursement or correctional 

action with DHS) whereby they can 

rectify situations in which the unlawful 

collection of fees occurred outside of 

their knowledge, or where it was 

‘‘impossible’’ to prevent unlawful fee 

collection. A couple of these 

associations additionally wrote that 

DHS’s proposal to eliminate the 

exceptions ‘‘takes a sledgehammer to an 

issue that requires a scalpel.’’ 

Another trade association similarly 

expressed support for enforcement 

against prohibited fee collection, but 

said that the proposal to eliminate the 

exemptions would prevent growers from 

accessing a program on which they 

depend due to reasons ‘‘far outside of 

their control,’’ including actors 

deliberately and deceptively acting 

contrary to the employer’s direction not 

to collect prohibited fees. A few trade 

associations additionally reasoned that 

the collection or threatened collection of 

prohibited fees often occurs in home 

countries, and U.S. employers have 

limited control in such situations, so it 

would be inappropriate to impose 

serious penalties any time a prohibited 

fee is discovered. Another trade 

association added that the Department’s 

‘‘shortsighted’’ proposal would 

disregard the totality of the implications 

in such situations and would negatively 

impact both employers and employees, 

rather than holding the parties 

conducting the unlawful collection of 

fees accountable. 

A business association wrote that the 

Department did not consider other 

alternatives to removing the current 

exception, such as retaining the 

exception to avoid petition revocation 

or denial only if workers are fully 

reimbursed and where the petitioner 

had no knowledge of the unlawful fee, 

and only denying or revoking a petition 

for egregious cases where employers 

knowingly charged or threatened a 

prohibited fee. A joint submission 

suggested that the Department consider 

making an ‘‘exception contingent on the 

employer attesting, under penalty of 

perjury, that it had no actual or 

constructive knowledge of the fee 

scheme.’’ The commenter further 

suggested that the Department make this 

exemption inapplicable if there is 

evidence demonstrating that the 

petitioner had direct involvement or 

actual knowledge of the scheme or 

benefitted from it financially. 

Response: DHS declines to make any 

revisions based on these comments to 

its proposed strengthening of the H–2 

prohibited fees provisions. The 

proposed changes in the NPRM, and 

now finalized in this rule, are meant to 

address, in part, two major 

vulnerabilities with respect to current 

regulatory provisions requiring 

reimbursement of beneficiaries as a 

condition of approval. First, DHS adopts 

these strengthened provisions in 

recognition of the potential harm to 

beneficiaries and in some cases their 

families who may have to borrow or 

otherwise incur debt to pay prohibited 

fees. Indebted noncitizen workers are 

more vulnerable to exploitation and 

coercive actions of unscrupulous 

employers or agents working on the 

employer’s behalf. So, despite later 

reimbursement of the fees charged to 

these workers, significant damage may 

have already occurred. Second, in 

finalizing these new provisions, DHS 

recognizes that under the current, longstanding regulatory framework, reports 

of prohibited fees paid by beneficiaries 

remain prevalent.33 Current provisions 

allow petitioners to avoid any liability 

for these types of fees being charged in 

cases where they have reimbursed the 

worker, or if the worker is unavailable, 

they claim reasonable efforts have been 

made to locate the worker. 

Though reimbursing workers charged 

prohibited fees is vital, and provisions 

adopted in this final rule require fully 

reimbursing such workers or their 

designees, DHS’s intent here is to 

maximize incentives for petitioners to 

take affirmative measures to prevent 

workers from being charged or 

threatened with these fees in the first 

instance. The commenters’ suggestions 

that DHS should maintain the current 

exceptions to prohibited fee-related 

denials or revocations that are based 

solely on a petitioner’s reimbursement, 

pre-payment cancellation of a 

prohibited fee agreement, or notification 

to DHS, do not adequately recognize the 

harm already done to affected 

beneficiaries by having to come up with 

the funds to pay those fees upfront. 

Similarly, the commenters’ suggestions 

to make an exception for petitioners 

who have no knowledge of or direct 

involvement in the prohibited fees do 

not adequately recognize the harm 

already done to affected beneficiaries, 

and furthermore, may even incentivize 

petitioners to remain ignorant about 

prohibited fee practices affecting their 

workers. These suggestions also do not 

adequately address the inadequacies of 

the current regulatory provisions which 

focus solely on reimbursement as the 

appropriate remedy rather than 

providing incentives for a petitioner to 

prevent these violations from occurring 

in the first place. 

f. Similar Employment Services 

Comment: Multiple trade associations 

expressed concern about a lack of clarity 

around ‘‘similar employment services.’’ 


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34As will be discussed below, DHS is making 

corresponding revisions to new 8 CFR 

214.2(h)(5)(xi)(A)(1) and 8 CFR 214.2(h)(6)(i)(B)(1) 

to clarify the standards under which a petitioner 

will be held accountable for its own prohibited feerelated violations or those of its employees. As 

finalized, new 8 CFR 214.2(h)(5)(xi)(A)(1) and 8 

CFR 214.2(h)(6)(i)(B)(1) will require the petitioner 

to demonstrate that it ‘‘made ongoing, good faith, 

reasonable efforts to prevent and learn of the 

prohibited fee collection or agreement by its 

employees throughout the recruitment, hiring, and 

employment process.’’ This language replaces the 

Some of these associations regarded the 

lack of a definition for ‘‘similar 

employment services’’ as concerning 

given the Department’s push for 

employers to recruit from Northern 

Central American countries through 

their Ministries of Labor. A few of the 

associations asked whether ministries of 

labor would count as ‘‘similar 

employment services.’’ Providing 

examples from recent cases of illegal 

activity within a Northern Central 

American ministry of labor and the 

Georgia State Workforce Agency, the 

commenters added that the vague 

provision surrounding ‘‘similar 

employment services’’ is concerning for 

employers. 

Response: DHS thanks these 

commenters for their submissions 

regarding clarification for the phrase 

‘‘similar employment services.’’ Noting 

that this phrase has long been included 

in DHS H–2A and H–2B regulations, it 

is reasonable to amend these provisions 

to offer clarification for what may 

constitute ‘‘similar employment 

services’’ in the context of the 

strengthened prohibitions on charging 

H–2 workers certain fees. Based on 

feedback from commenters, DHS is 

amending its regulatory provisions at 

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

214.2(h)(6)(i)(B) to now read, ‘‘The term 

‘similar employment service’ refers to 

any person or entity that recruits or 

solicits prospective beneficiaries of the 

[H–2] petition.’’ In accordance with this 

clarification, this includes recruitment 

or employment services offered by 

private, nongovernmental individuals 

and entities, quasi-governmental entities 

(such as private entities working jointly 

with ministries of labor), and 

governmental entities (such as 

ministries of labor). 

g. Due Diligence Standard 

Comment: An advocacy group 

welcomed DHS’s clarification around 

the petitioners’ responsibility to 

conduct ‘‘due diligence’’ to ensure that 

recruiters and other agents in their labor 

supply chain are not charging 

prohibited fees. Another advocacy 

group wrote that workers were generally 

optimistic that the due diligence 

provisions would cause employers to be 

more cautious in the recruitment 

process, particularly with regard to fees 

charged by third-party recruiters and 

their own employees. 

A joint submission generally 

acknowledged that under the proposed 

rule, H–2 employers would be 

responsible for conducting due 

diligence to ensure that their recruiters 

and other employees do not charge 

workers unlawful recruitment or other 

fees. The commenters said that the 

proposed provisions would strengthen 

the enforcement of prohibitions on 

charging unlawful fees, which severely 

harm workers. 

Response: DHS appreciates the 

support from these commenters. H–2 

employers are responsible for ensuring 

that individuals and entities that recruit, 

or that otherwise act on behalf of the 

employer and/or the recruiter, comply 

with all H–2 program requirements, 

including the prohibition on collection 

of fees related to H–2 employment. 

Based on feedback requesting 

clarification as to what constitutes due 

diligence that DHS received on its 

proposed rule, DHS is revising the 

provisions introduced in the NPRM as 

discussed in detail below. 

Comment: Numerous trade and 

business associations and a professional 

association expressed concern with the 

requirement that employers demonstrate 

to USCIS that they engaged in ‘‘due 

diligence’’ to prevent the collection of 

prohibited fees on the basis that the 

provision lacks a clear explanation for 

satisfying the requirement and is overly 

broad as to what ‘‘due diligence’’ would 

entail. A trade association urged the 

Department to address this concern in 

the final rule. 

A joint submission wrote that the 

provisions do not offer a definition of 

‘‘due diligence’’ or provide examples of 

what this requirement would look like, 

except to say that a written contract ‘‘by 

itself’’ is insufficient. The commenters 

said that the Department’s attempt to 

mitigate uncertainty through this 

statement is inadequate to protect 

against the provision’s overreach. The 

commenters wrote that, as the rule does 

not adequately apprise the regulated 

community as to its obligations, the rule 

is impermissibly vague and violates due 

process. 

A couple of trade associations 

similarly remarked that the proposed 

rule is impermissibly vague and fails to 

define what specific objective steps 

must be taken to fulfill the ‘‘due 

diligence’’ requirement. The 

associations said that the proposed 

rule’s failure to discuss the applicable 

standard of proof and failure to establish 

an objective standard deprive the public 

of the opportunity to comment on the 

proposal. 

A trade association reasoned that the 

‘‘broad and vague’’ wording around due 

diligence would leave employers with a 

lack of understanding of agency 

expectations and would create 

challenges for employers to avoid 

penalties despite their ‘‘good faith 

efforts’’ to adhere to due diligence 

obligations. The association additionally 

wrote that vague due diligence 

requirements without parameters would 

prevent the application of a consistent 

standard and raise the risk of 

penalization for employers depending 

on how the agency interprets the 

requirement in each situation. 

Another association wrote that the 

proposed due diligence standard is 

unreasonably broad and unattainable 

such that employers would ‘‘never be 

able to reasonably meet its conditions.’’ 

The association further remarked that 

while the Department explains that a 

lack of knowledge of an incident or even 

explicit contract terms prohibiting such 

fees are not sufficient to meet the ‘‘due 

diligence’’ standard, it does not explain 

what measures it would deem sufficient. 

A research organization stated that, 

under the proposed rule, ‘‘a mere lack 

of awareness’’ is no excuse for 

employers, yet the rule does not offer 

advice to employers on what constitutes 

‘‘due diligence’’ to avoid mistakes or the 

collection of prohibited fees. 

Response: DHS appreciates the 

attention paid by commenters on its 

proposed provisions on prohibited fees 

and reiterates its commitment that 

employers conduct due diligence to 

ensure all parties acting on the 

employers’ behalf comply with all H–2 

program requirements. In light of 

commenters’ calls for additional clarity 

regarding the due diligence standard, 

however, the Department is revising 

proposed 214.2(h)(5)(xi)(A)(2) and 

214.2(h)(6)(i)(B)(2) to offer greater 

clarification and simplification. 

Specifically, DHS is foregoing the 

proposed ‘‘did not know and could not, 

through due diligence, have learned’’ 

language and instead requiring the 

petitioner to demonstrate ‘‘ongoing, 

good faith, reasonable efforts to prevent 

and learn of the prohibited fee 

collection or agreement by such third 

parties throughout the recruitment, 

hiring, and employment process.’’ This 

revision is intended to clarify what ‘‘due 

diligence’’ means and better aligns the 

regulatory language at new 8 CFR 

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

214.2(h)(6)(i)(B)(2) with new 8 CFR 

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

214.2(h)(6)(i)(B)(1).34 This revision also 


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‘‘significant efforts’’ language in proposed 8 CFR 

214.2(h)(5)(xi)(A)(1), 8 CFR 214.2(h)(6)(i)(B)(1), and 

also the proposed ‘‘due diligence’’ language in 

proposed 8 CFR 214.2(h)(5)(xi)(A)(2), 8 CFR 

214.2(h)(6)(i)(B)(2). These changes clarify that the 

proposed ‘‘significant efforts’’ and ‘‘due diligence’’ 

standards were not meant to be materially different 

from each other. 

35One dictionary definition of ‘‘due diligence’’ is 

‘‘action that is considered reasonable for people to 

be expected to take in order to keep themselves or 

others and their property safe.’’ Cambridge 

Dictionary, ‘‘Due Diligence,’’ https://

dictionary.cambridge.org/us/dictionary/english/ 

due-diligence; see also Merriam Webster Dictionary 

(defining ‘‘due diligence’’ as ‘‘the care that a 

reasonable person exercises to avoid harm to other 

persons or their property’’), https://www.merriamwebster.com/dictionary/due%20diligence; Black’s 

Law Dictionary (12th ed. 2024) (‘‘The diligence 

reasonably expected from, and ordinarily exercised 

by, a person who seeks to satisfy a legal 

requirement or to discharge an obligation.’’). 

more clearly explains the petitioner’s 

obligation to not only prevent 

prohibited fee collection or agreement, 

but also an ongoing obligation to 

prevent and learn of such fees, given 

that such fees could be collected or 

agreed upon at various points in time 

during the recruitment, hiring, or 

employment process. Although DHS is 

replacing ‘‘due diligence’’ with 

‘‘ongoing, good faith, reasonable efforts’’ 

in light of comments requesting clarity 

on the ‘‘due diligence’’ standard, DHS 

emphasizes that is not a substantive 

change as ‘‘due diligence’’ and 

‘‘ongoing, good faith, reasonable efforts’’ 

in this context require the same diligent 

level of effort by the petitioner.35

Further, new 8 CFR 

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

214.2(h)(6)(i)(B)(2) require the petitioner 

to take immediate remedial action as 

soon as it becomes aware of the 

payment of or agreement to pay the 

prohibited fee. While this requirement 

was initially proposed for 8 CFR 

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

214.2(h)(6)(i)(B)(1), it was not initially 

proposed for 8 CFR 214.2(h)(5)(xi)(A)(2) 

and 8 CFR 214.2(h)(6)(i)(B)(2), and is 

now included in the final regulatory text 

to better ensure parity between 8 CFR 

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

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

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

214.2(h)(6)(i)(B)(2). These changes also 

are responsive to comments about the 

importance of ensuring that the 

petitioner take immediate remedial 

action to resolve and remedy violations, 

which can include immediate 

termination of the relationship with the 

recruiter or agent (in addition to full 

reimbursement to the beneficiary or the 

designee). DHS agrees with these 

comments and, as reflected by these 

changes, emphasizes that a petitioner 

should take immediate remedial action 

as soon as it becomes aware of the 

payment of or agreement to pay the 

prohibited fee, regardless of whether the 

prohibited fee payment or agreement to 

pay the prohibited fee was made to the 

petitioner, or to its agent, attorney, 

employer, facilitator, recruiter, or 

similar employment service, or joint 

employer as applicable. 

To summarize, under new 8 CFR 

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

214.2(h)(6)(i)(B)(2), if it is determined 

that the beneficiary paid or agreed to 

pay a prohibited fee related to the H–2 

employment to any agent, attorney, 

employer, facilitator, recruiter, or 

similar employment service, or any joint 

employer as applicable, whether before 

or after the filing of the H–2 petition, the 

petition will be denied or revoked on 

notice unless the following factors are 

demonstrated through clear and 

convincing evidence: 

(1) The petitioner made ongoing, good 

faith, reasonable efforts to prevent and 

learn of the prohibited fee collection or 

agreement by its employees throughout 

the recruitment, hiring, and 

employment process; 

(2) The petitioner took immediate 

remedial action as soon as it became 

aware of the payment of or agreement to 

pay the prohibited fee; and 

(3) The petitioner fully reimbursed all 

affected beneficiaries or, only if such 

beneficiaries cannot be located or are 

deceased, it fully reimbursed the 

beneficiaries’ designees. 

Overall, these changes clarify what 

specific steps a petitioner must take to 

avoid liability for prohibited fee 

collection or agreement by a third party. 

These changes should help alleviate the 

commenters’ concerns about the 

proposed provisions being overly broad, 

vague, unattainable, or having 

undefined standards. To provide further 

clarity, DHS discusses additional nonexclusive examples of how a petitioner 

may demonstrate that it made ongoing, 

good faith, reasonable efforts in another 

comment response below. DHS assures 

petitioners that the intent of the 

‘‘ongoing, good faith, reasonable efforts’’ 

requirement is to ensure the integrity of 

the H–2 programs and to provide worker 

protections by better ensuring 

petitioners exercise ongoing reasonable 

efforts, based on the totality of the 

circumstances, to prevent the payment 

or collection of prohibited fees. 

Comment: A trade association said 

that placing the burden on employers to 

root out prohibited fee collection among 

various actors, is ‘‘unfairly strict and 

impractical.’’ The group wrote that, 

under the proposed rule, employers 

could be held responsible for 

monitoring actions hundreds or 

thousands of miles away. A few 

individual commenters remarked that 

‘‘forcing’’ employers to show due 

diligence would be ‘‘onerous’’ and 

suggested that this work be carried out 

by enforcement on recruiters. An 

individual commenter stated that the 

provisions to deny or revoke H–2 

petitions based on undefined standards 

are ‘‘heavy-handed and arbitrary.’’ The 

commenter wrote that employers would 

have to go to ‘‘extreme lengths’’ to show 

due diligence that they worked to 

prevent prohibited recruitment fees 

under the proposed provisions. A 

professional association similarly 

regarded the proposed rule’s standards 

as ‘‘extremely high’’ and ‘‘relentless’’ 

with respect to employer requirements, 

penalties, and limited opportunities for 

relief. 

A trade association wrote that placing 

the burden on petitioners to ‘‘police’’ 

the payment of prohibited fees would be 

unreasonable and unfair. The 

association remarked that it would not 

be feasible for petitioners to conduct 

every step of recruitment themselves 

and thus, they must rely on foreign 

recruiters. The association, along with 

another trade association, said that, as 

proposed, DHS unfairly places the 

burden on petitioners to prevent the 

collection of prohibited fees and issues 

unjust consequences if they fail. 

Other commenters claim that, by 

removing the knowledge requirement 

from the violation and abolishing the 

current safe harbor provision, the 

Department is proposing a ‘‘strict 

liability system’’ in which the mere 

allegation of the payment or solicitation 

of fees results in the petitioner being 

deemed guilty and then the petitioner 

must prove by an extraordinarily high 

burden that he is innocent. A trade 

association wrote that placing ‘‘strict 

liability’’ on U.S. employers for actions 

taken by a foreign recruiter is not an 

appropriate solution. Another 

association said that the broadly defined 

due diligence requirement would 

amount to ‘‘strict liability.’’ 

A joint submission wrote that 

employers would be limited in their 

ability to prevent wrongdoing by third 

parties, and they cannot guarantee 

compliance with the rules at all times 

by all persons. While acknowledging 

that the risk to employers may increase 

with the scale of the agent or facilitators 

they hire, the commenters warned that 

the proposed rule may have the 

opposite of its intended effect and 

instead incentivize employers to hire 

smaller, less reputable, less ethical 

agents or facilitators as they may be 

perceived to be easier to monitor, which 

would result in less compliance and 

more worker exploitation. 


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A professional association expressed 

opposition to the prohibited fee 

provision that would impose liability on 

employers for the actions of third 

parties. The association stated that 

employers would have to take 

affirmative steps to demonstrate that the 

third party was not engaging in 

prohibited conduct, or else be liable for 

the associated penalties. The association 

warned that such punitive measures 

would disincentivize employers to 

participate in the H–2 program to avoid 

the risk of liability for actions outside of 

their control. 

While articulating the need for 

petitioners to take steps to monitor their 

supply chains, a professional 

association voiced concern that 

employers cannot reasonably know 

everything that is happening. The 

association said that petitioners should 

not be held liable for the actions of third 

parties if they took immediate remedial 

action upon learning about a potential 

violation. 

Another trade association expressed 

concern that employers acting in good 

faith and engaging recruitment services 

from vetted entities would not be able 

to preclude the possibility of prohibited 

fees by any one employee of a thirdparty entity and, under the proposed 

provisions, would effectively be barred 

from the program no matter what 

preventative measures they took. The 

association urged the Department to be 

more judicious in considering what 

standards are fair to place on the 

regulated community. The association 

concluded that the Department should 

consider ‘‘reasonable’’ alternative 

measures, though offering no specific 

proposals, to reduce instances of 

prohibited fee payments while allowing 

employers to protect workers, rather 

than subjecting them to ‘‘strict liability’’ 

for unknown actions of third parties. 

A couple of trade associations 

expressed concern that employers 

would be held liable for actions by 

individuals who are not in contractual 

privity with them. The associations also 

stated that the Department’s proposal 

fails to account for varying 

circumstances and different actors in 

the context of the collection of 

prohibited fees. For example, the 

associations indicated that under the 

proposed rule, employers would be 

liable for actions beyond their control, 

such as the collection of improper fees 

by foreign government officials. In 

considering these issues, the 

associations regarded DHS’s proposal to 

punish employers for actions by third 

parties beyond their control, including 

those with whom they have no 

contractual relationship, as 

‘‘imprudent’’ and ‘‘unreasonable.’’ 

Response: DHS disagrees with 

commenters’ statements that the 

Department is being unfair, impractical, 

unreasonable, or imprudent in ensuring 

the burden is on petitioners to properly 

monitor and assume responsibility for 

the actions of third parties engaging in 

recruitment activities on its behalf. DHS 

acknowledges the comments that 

petitioners cannot always conduct each 

step of the recruitment process 

themselves and therefore often rely on 

foreign recruiters, agents, or other third 

parties to do so. Nevertheless, it is 

reasonable to place the burden on the 

petitioner to ensure that prohibited fees 

are not collected by such third parties. 

The petitioner, in hiring recruiters or 

other third parties, is in a position to 

condition the hiring of such parties 

upon the latter monitoring the activities 

of those further down the recruitment 

and hiring chain, even if the latter are 

located outside of the United States. In 

this regard, it is in the mutual interest 

of petitioners and recruiters to ensure 

against denials of petitions based on 

payment of prohibited fees. 

Furthermore, DHS reminds these 

commenters of the long-standing 

regulatory provisions against prohibited 

fees being charged to H–2 workers by 

foreign recruiters. It is therefore 

reasonable to expect that petitioners 

who currently work with foreign 

recruiters already have at least some 

practices in place in which to effectively 

monitor the activities of those recruiters 

and ensure compliance with H–2 

regulations. In other words, the 

requirement to oversee or monitor the 

charging of prohibited fees is not new 

with the NPRM or with this final rule. 

This final rule does adopt measures to 

better ensure petitioners are liable for 

the actions of the third parties they 

engage for recruitment services. It is 

possible, however, for petitioners to 

avoid liability and possible 

consequences of a finding of prohibited 

fees charged by third parties if they 

demonstrate through clear and 

convincing evidence that they made 

ongoing, good faith, reasonable efforts to 

prevent and learn of the prohibited fee 

collection or agreement by such third 

parties throughout the recruitment, 

hiring, and employment process; they 

took immediate remedial action as soon 

as it became aware of the payment of the 

prohibited fee or agreement; and that all 

affected beneficiaries or, in certain 

circumstances, their designees have 

been fully reimbursed. See new 8 CFR 

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

214.2(h)(6)(i)(B)(2). Therefore, DHS 

disagrees with some commenters’ 

characterizations of these provisions as 

creating a new ‘‘strict liability’’ standard 

that would effectively deny a petitioner 

‘‘no matter what preventative measures 

they took.’’ To the contrary, the new 

provisions incentivize petitioners to 

exercise ongoing, good faith, reasonable 

efforts, based on the totality of the 

circumstances, to prevent the payment 

of prohibited fees in the first place. 

Finally, regarding the concerns that 

these provisions may incentivize 

employers to hire smaller, less 

reputable, less ethical agents which 

would result in less compliance and 

more worker exploitation, or may even 

disincentivize employers from 

participating in the H–2 program, such 

an assertion is speculative. For the 

reasons stated above, DHS assumes that 

good faith employers and agents have 

and, under this rule, will continue to 

have a strong incentive to ensure 

compliance with the terms and 

conditions of the H–2 program. 

Comment: Several commenters who 

opposed the proposed ‘‘due diligence’’ 

provisions expressed specific concerns 

about the negative impact these 

provisions would have on H–2 workers. 

For instance, a research organization 

articulated its concern that the proposed 

rule would not be a rights-enhancing 

provision for the impacted population. 

The organization further remarked that 

the rule would be unfair to workers who 

would lose their ability to work in the 

United States for an employer who 

wants to rectify the infraction. The 

commenter urged DHS to consider what 

would happen to workers who are 

unjustly denied a visa under the 

proposed rule and concluded that 

restricting the H–2 visa would lead to 

unauthorized immigration. 

Another commenter, along with a 

joint submission, further remarked that 

the nature of the proposal is such that 

it would discourage workers from 

reporting fee violations for fear of losing 

employment or jeopardizing their 

relationships with the employer. 

Other commenters said that the rule, 

as proposed, would harm domestic and 

H–2A farm workers by reducing 

employment opportunities and 

diverting employer resources away from 

workers by making employers spend 

more resources to prove that prohibited 

fee collections or agreements did not 

occur. 

Response: DHS appreciates the 

commenters’ concerns about the 

potential negative effects of the 

proposed changes on H–2 workers. DHS 

anticipates that other provisions in this 

rule, such as the new whistleblower 

protections, grace periods, and 

permanent portability provisions, will 


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provide significant relief to affected 

workers by increasing their ability to 

seek new employment and potentially 

lessening the impact of reporting fee 

violations or otherwise jeopardizing 

their relationships with an employer. 

With respect to the comment that the 

prohibited fee provisions of this rule 

would lead to unauthorized 

immigration, DHS disagrees with this 

assertion, which is speculative and 

assumes that participants in the H–2 

program will be inclined to violate 

immigration laws rather than comply 

with the terms and conditions of the H– 

2 program. Regarding the comment 

asserting that the provisions would 

reduce employment opportunities and 

divert employer resources away from 

workers by making employers spend 

more resources to prove that prohibited 

fee collections or agreements did not 

occur, the commenter did not provide 

support for this assertion. While DHS 

anticipates this rule may result in some 

increased costs for employers in 

instances where there is evidence that 

prohibited fees may have been paid or 

agreed to, the commenter provides no 

basis for its claims that the costs in 

these limited instances will cause 

additional harm to workers, and the rule 

does not otherwise create any new 

reporting or evidentiary requirements 

for employers related to prohibited fees. 

Any employer costs incurred to prevent 

prohibited fees are not new costs 

imposed by this rule as the regulations 

this rule replaces already prohibits the 

collection of such fees and as such, 

petitioners were reasonably expected 

under the previous rule to have taken 

appropriate steps to ensure against the 

collection of such fees. 

Comment: In light of concerns with 

respect to the proposed ‘‘due diligence’’ 

standard, a business association 

requested that the Department provide a 

definition of ‘‘due diligence’’ and asked 

DHS to clarify what documentation 

would suffice to demonstrate a 

petitioner’s efforts to meet this standard. 

The association requested that the 

Department consider allowances for 

situations in which a petitioner is not 

aware of an improper action by an 

agent, despite conducting due diligence 

and including expectations within the 

contract, and asked what courses of 

action are available for petitioners when 

a third party is not responsive. 

A trade association urged the 

Department to define ‘‘measurable, 

reasonable ‘affirmative steps’’’ 

employers could take to prevent the 

collection of prohibited fees while 

recognizing the good practices that 

employers already use. The association 

also recommended that the Department 

consider which mitigating factors would 

be appropriate to avoid debarment. A 

joint submission similarly requested 

that DHS articulate specific guidance 

around due diligence, such as 

specifying whether it is sufficient to 

require agents and facilitators to ask 

workers during intake whether they 

have paid or been solicited to pay fees, 

or have workers sign a written 

attestation that they have not paid fees. 

A trade association suggested that 

DHS clarify that an employer’s 

documented, good faith vetting of third 

parties would allow them to avoid 

liability for conduct outside of their 

knowledge. The association provided 

examples of this due diligence, such as 

written inquiries with responses from 

the third party, requests to review 

employment documents, and payment 

ledgers between visa applicants. 

While discussing the due diligence 

provisions, a member farm organization 

stated the need to establish reasonable 

expectations as to what an employer can 

do from the United States when 

recruiters may be ‘‘hundreds and even 

thousands of miles away.’’ The group 

requested that DHS reconsider what it 

considered to be overly strict provisions 

and work with agricultural employers to 

find a ‘‘healthy middle ground’’ that 

benefits all parties. 

Some advocacy groups responded to 

DHS’s request for comment regarding 

the types of due diligence activities that 

employers should be required to 

undertake. The advocacy groups 

suggested that employers: 

• Create mechanisms to communicate 

with workers directly during the 

recruitment process and promptly 

investigate any reports of prohibited 

fees; 

• Seek out ways to be available to 

workers during the recruitment process 

and create procedures for addressing 

abuses promptly (for example, through 

a designated Compliance Officer who 

reports to the employer and investigates 

and addresses unlawful fee collection); 

• Take immediate remedial action in 

the event a petitioner discovers that a 

recruiter or agent has charged or entered 

into an agreement to charge a prohibited 

fee (including, at a minimum, full 

reimbursement and immediate 

termination of the relationship with the 

recruiter or agent); 

• Implement rigorous vetting and 

monitoring procedures, such as through: 

(1) obtaining the agent’s financial 

records, documentation of compliance 

with applicable laws, and records 

related to their prior recruitment of H– 

2 workers; (2) identifying agents or 

intermediaries upon which recruiters 

rely, and creating processes to identify 

agents or intermediaries not voluntarily 

disclosed; (3) conducting periodic 

audits of recruiters’ practices and 

finances and communicating policies 

against recruitment fees; and 

• Ensure that all agreements with 

recruiters provide for a realistic fee 

structure that will not incentivize 

recruiters to pass costs to workers to 

remain profitable. 

The other advocacy group endorsed 

the above commenters’ 

recommendations in their submission 

and wrote that the first recommendation 

would be especially critical for the 

proposed rule to benefit workers. 

A professional association expressed 

concerns with the examples of relevant 

documentation provided in the NPRM, 

including ‘‘evidence of communications 

showing the petitioner inquired about 

the third party’s past practices and 

payment structure to ensure that it 

obtains its revenue from sources other 

than the workers and/or any 

documentation that was provided to the 

petitioner by the third party about its 

payment structure and revenue 

sources.’’ In this regard, the association 

said it should not be mandated for 

disclosure to DHS ‘‘for a [f]ishing 

expedition’’ and that DHS must show 

cause on an individual basis prior to 

soliciting this type of ‘‘proprietary’’ 

information. 

Response: DHS acknowledges the 

concerns raised by these commenters 

regarding the potential need for 

additional clarity as to the steps 

employers should implement to exercise 

appropriate due diligence. As clarified 

elsewhere, DHS is responding to 

feedback on its NPRM by revising and 

clarifying the proposed due diligence 

provisions. Specifically, DHS is 

removing the term ‘‘due diligence’’ from 

the regulatory text to instead state that 

petitioners must have made ongoing, 

good faith, reasonable efforts throughout 

the recruiting and employment period 

to prevent and learn of the collection of 

a prohibited fee. DHS emphasizes again 

that this revision is not intended to be 

a less stringent standard than the 

proposed due diligence requirement, 

but instead the change is offered as a 

more descriptive process than the 

provision included in the NPRM. 

DHS is particularly appreciative of 

those commenters who provided 

specific examples in response to the 

NPRM’s request for public input in the 

NPRM. Indeed, the Department 

anticipated some interest and feedback 

on this provision, and in the NPRM 

explicitly requested public input 

regarding specific types of evidence that 

may be relevant and available to meet 

the proposed changes. 88 FR 65040, 


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36When filing the Form I–129 petition, an 

association of agricultural employers certifies to the 

accuracy of the information in the petition, 

including the representations it makes on behalf of 

its joint employers, and agrees to the conditions of 

H–2A employment. Each joint employer also signs 

the petition, assuming responsibility for the 

representations in the petition and agreeing to the 

conditions of H–2A eligibility. 

65055 (Sept. 20, 2023). Based on these 

comments, DHS is providing the 

following examples of non-exclusive 

factors that may demonstrate whether a 

petitioner has made ongoing, good faith, 

reasonable efforts to prevent such fees. 

These factors may include, but are not 

limited to (1) whether the petitioner was 

providing compensation to the third 

party entity such that the third party 

would have no incentive to pass on 

costs to workers; (2) whether the 

petitioner had procedures to contact and 

monitor the performance of relevant 

parties in the recruitment chain, 

whether located in the United States or 

abroad; and (3) whether the petitioner 

has a mechanism to communicate 

directly with workers during and after 

the recruitment process and properly 

investigate any reports of prohibited 

fees. As noted above, the determination 

under new 214.2(h)(5)(xi)(A)(2) and 

214.2(h)(6)(i)(B)(2) will be made on a 

case-by-case basis, taking into 

consideration all of the facts presented. 

To show that a petitioner was 

providing compensation to the third 

party entity such that it would have no 

incentive to pass on costs to workers, 

the NPRM provided examples of 

documentation that could be submitted 

including ‘‘communications showing 

the petitioner inquired about the third 

party’s past practices and payment 

structure to ensure that it obtains its 

revenue from sources other than the 

workers and/or any documentation that 

was provided to the petitioner by the 

third party about its payment structure 

and revenue sources.’’ 88 FR 65040, 

65054–55 (Sept. 20, 2023). Contrary to 

a commenter’s claim that ‘‘[t]his type of 

information is proprietary and should 

not be mandated to be disclosed to DHS 

for a [f]ishing expedition,’’ these are 

merely examples of the types of 

evidence a petitioner may submit to 

demonstrate due diligence (which DHS 

now calls ‘‘ongoing, good faith, 

reasonable efforts’’). New 

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

214.2(h)(6)(i)(B)(2) do not mandate the 

submission of any specific document 

nor the disclosure of any specific 

financial or proprietary information. 

Further, the petitioner may redact or 

sanitize a document in a manner that 

the document is still sufficiently 

detailed and comprehensive yet does 

not reveal sensitive financial or 

proprietary information. These 

clarifications should alleviate the 

petitioner’s concerns about providing 

proprietary or sensitive financial 

information to DHS. DHS therefore 

disagrees with the commenter’s 

suggestion that in providing these 

examples in its NPRM as to evidence 

that may meet the proposed due 

diligence requirement that the 

Department would solicit proprietary 

information to engage in a ‘‘[f]ishing 

expedition.’’ 

To show what procedures a petitioner 

has in place to properly vet and monitor 

the recruiters, agents, or other third 

parties that it utilizes to recruit H–2 

workers, commenters provided various 

examples such as: written inquiries with 

responses from the third party, requests 

to review relevant employment 

documents, evidence that agents/ 

facilitators asked workers during intake 

whether they have paid or been 

solicited to pay fees; evidence that the 

petitioner asked recruiters to identify 

agents or intermediaries upon which the 

recruiters rely and created processes to 

identify agents or intermediaries not 

voluntarily disclosed; and evidence that 

the petitioner conducted periodic audits 

of recruiters’ practices and finances and 

communicate policies against 

recruitment fees. DHS agrees with these 

examples, and notes that they are nonexhaustive examples of the types of 

documentation a petitioner may submit 

under this factor; no one document will 

be dispositive, and all of the 

circumstances will be considered as a 

whole. DHS reminds petitioners that, 

under new 214.2(h)(5)(xi)(A)(2) and 

214.2(h)(6)(i)(B)(2), a written contract 

between the petitioner and the thirdparty agent, attorney, facilitator, 

recruiter, similar employment service, 

or member employer stating that such 

fees were prohibited will not, by itself, 

be sufficient to demonstrate reasonable 

efforts. While the language of such a 

contract may be considered, additional 

documentation must be provided. 

To show whether the petitioner has a 

mechanism to communicate directly 

with workers during and after the 

recruitment process and promptly 

investigate any reports of prohibited 

fees, commenters suggested that a 

petitioner could submit evidence that it 

has a designated Compliance Officer 

who reports to the employer and 

investigates and addresses unlawful fee 

collection. A commenter further 

suggested that a petitioner could submit 

evidence that they require their 

recruiters to provide the Compliance 

Officer’s contact information to workers 

as part of the initial job offer, as well as 

information about their rights in the 

recruitment process and assurances 

against retaliation for reporting any 

concerns. Again, these are just 

illustrative examples of the types of 

documentation a petitioner may submit 

under this factor; no one document will 

be dispositive, and all of the 

circumstances will be considered as a 

whole. 

Comment: An advocacy group and a 

union supported the proposed 

specification that the prohibited fee 

provisions would also apply to joint 

employers in the H–2A context and any 

employers in addition to the petitioner 

in the H–2B context. 

Response: DHS appreciates these 

commenters’ support and adopts the 

proposed specifications that prohibited 

fee provisions apply to joint employers 

in the H–2A context, and any employer 

if different from the petitioner in the H– 

2A and H–2B context, in this final rule. 

Comment: A few trade associations 

indicated that they cannot support the 

proposed regulations regarding joint 

employers and due diligence as 

proposed. These commenters said that 

while they support employers 

performing due diligence, an innocent 

member of an association of U.S. 

agricultural producers should not have 

their enterprise jeopardized by a ‘‘bad 

actor’’ within the association. 

Response: As noted by the 

commenters, the provision at new 8 CFR 

214.2(h)(5)(xi)(A) prohibits fees 

collected by any joint employer 

including a member employer if the 

petitioner is an association of U.S. 

agricultural employers. Further, under 

new 8 CFR 214.2(h)(5)(xi)(A)(2), a 

USCIS determination that a beneficiary 

has paid or agreed to pay such a fee to 

a member employer will result in a 

denial or revocation unless the 

petitioner (in this case the association 

U.S. agricultural employers) can 

establish that it qualifies for the limited 

exception in that provision, which 

among other things, requires evidence 

that it engaged in ongoing, good faith, 

reasonable efforts to prevent and learn 

of its member employers’ collection of 

prohibited fees. It is reasonable to 

expect that any petitioner filing on 

behalf of both itself and joint employers, 

including an association of U.S. 

agricultural employers acting as 

petitioner, will take steps to ensure that 

the representations it makes on other 

entities’ behalf are accurate, and that 

such entities in fact comply with 

program requirements.36

DHS recognizes that, under the new 

rule, a member employer who complies 

with H–2 program requirements with 


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37 DOL, Employment and Training 

Administration, ‘‘Foreign Labor Recruiter List,’’ 

https://www.dol.gov/agencies/eta/foreign-labor/ 

recruiter-list. 

38 In a response to public comments on the 2008 

H–2A final rule, DHS explained that it has plenary 

authority to determine conditions for the admission 

of all nonimmigrants, including H–2A workers. 73 

FR 76891,76899 (Dec. 18, 2008) (‘‘Under section 

214(a) of the INA, 8 U.S.C. 1184(a), DHS has 

plenary authority to determine the conditions of 

admission of all nonimmigrants to the United 

States, including H–2A workers. It is within the 

authority of DHS to bar the payment by prospective 

workers of recruitment-related fees as a condition 

of an alien worker’s admission to this country in H– 

Continued 

respect to its own workers could 

nonetheless be impacted by the 

prohibited fee violation of a different 

employer listed on the same petition. 

Specifically, such a prohibited fee 

violation may ultimately lead to denial 

or revocation of the entire petition if the 

petitioner is unable to demonstrate 

eligibility for the narrow exception. It is 

worth noting, however, that the 1- to 4- 

year denial period following a denial or 

revocation for prohibited fees would 

apply to the petitioner—that is, the U.S. 

association of agricultural producers— 

and not to each member employer listed 

as a joint employer on the petition. 

Regardless, DHS notes that member 

employers have the option to file 

individual petitions, and it is DHS’s 

expectation that employers will exercise 

care in determining with which, if any, 

entities they will file jointly. 

Comment: Several commenters cited 

examples of prohibited fees being 

charged by government officials of 

countries where the United States 

government has helped to promote 

recruitment of H–2 workers. The 

commenters provided these examples to 

ask for more clarity regarding the due 

diligence standard. 

Response: DHS acknowledges the 

concerns regarding instances of 

prohibited fees by some ministry of 

labor officials in foreign governments 

which the United States government 

partnered with to promote the H–2 

programs. DHS clarifies that it may 

consider whether the petitioner used 

one of these recruitment systems as a 

relevant factor in determining whether 

the petitioner engaged in ongoing, good 

faith, reasonable efforts. However, the 

fact that a petitioner used a recruitment 

system developed in partnership with 

the U.S. government will not by itself 

excuse an employer’s failure to engage 

in the requisite reasonable and ongoing 

efforts to ensure against the payment of 

such prohibited fees. In all cases, DHS 

will make its determination with respect 

to the question of prohibited fees based 

on all of the facts presented. 

Comment: Regarding the due 

diligence standard, a joint commenter 

asked whether it would matter if ‘‘the 

agent or facilitator has been certified by 

a third-party such as the Equitable Food 

Initiative, the U.N. Global Compact, or 

other organizations.’’ 

Response: DHS declines to address 

third party certifications, as the 

commenter did not provide any 

additional information about the 

referenced certification programs nor 

demonstrate these programs’ relevance 

to how a petitioner might demonstrate 

due diligence, now phrased as 

‘‘ongoing, good faith, reasonable 

efforts,’’ under new 214.2(h)(5)(xi)(A)(2) 

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

Comment: A professional association 

recommended that, instead of placing 

the burden on employers to perform due 

diligence, DHS should provide safe 

harbor for employers who use recruiters 

included in DOL’s H–2B Foreign Labor 

Recruiter List. 

Response: DHS declines to adopt the 

suggestion to provide safe harbor for 

employers who use recruiters included 

in DOL’s H–2B Foreign Labor Recruiter 

List. As stated on DOL’s Foreign Labor 

Recruiter List web page, by providing 

the information on this list, DOL ‘‘will 

be able to verify whether a recruiter is 

recruiting for legitimate H–2B job 

opportunities in the United States.’’ 37

However, the web page expressly states 

that DOL ‘‘does not endorse any foreign 

labor agent or recruiter included in the 

Foreign Labor Recruiter List, nor does 

inclusion on this list signify that the 

recruiter is in compliance with the H– 

2B program.’’ DHS disagrees, therefore, 

that use of recruiters from the list is a 

sufficient factor to provide a safe harbor 

for petitioners, in part because DOL 

does not endorse any foreign labor agent 

or recruiter included in the list and 

inclusion on the list does not signify 

that the recruiter is in compliance with 

the H–2B program, and because DHS 

does not verify this recruiter list or vet 

any of the individual recruiters listed 

therein. 

Comment: An advocacy group 

suggested that the Federal Government 

provide more information about and 

control over the H–2 hiring process 

overall and work to develop a 

multilingual, accessible platform 

providing access to vetted employers 

and verified job offers. While quoting a 

member of the affected population, the 

commenter reasoned that such an 

application would eliminate the need 

for recruiters, thereby eliminating 

prohibited recruitment fees. 

Response: DHS is not implementing 

this suggestion in this final rule. While 

appreciative of the goal of eliminating 

prohibited recruitment fees, it is not the 

intent of this final rule to eliminate the 

use of recruiters. Nor does DHS intend 

to be involved in matching or otherwise 

facilitating recruitment between an H–2 

worker and a prospective H–2 employer. 

However, nothing in this rule prevents 

the private, nonprofit, or voluntary 

sector from creating such a platform. 

h. Legal Authority and Burden of Proof 

Relating to the Requirements on 

Prohibited Fees 

Comment: Some trade associations 

said that DHS’s proposal to make 

employers ‘‘strictly liable’’ for any 

payment of, or any allegation of 

payment of, an improper fee by a worker 

lacks statutory authority. The 

commenters went on to say that the 

proposal fails to establish any clear or 

objective standard, thus denying a 

petitioner notice of what conduct is 

required to satisfy the law and depriving 

the public of an opportunity to 

comment on the complete proposal. 

Response: DHS disagrees that it lacks 

the authority to promulgate its 

regulations governing the H–2 programs, 

including the provisions related to 

prohibited fees. The Legal Authority 

sections of both the NPRM and this final 

rule clearly address the DHS Secretary’s 

authority to administer and ensure 

compliance with the immigration laws 

and to issue regulations necessary to 

carry out that responsibility. Specific to 

the H–2 programs, the HSA transferred 

to DHS the authority to by regulation set 

the condition for the admission of H–2 

nonimmigrants and to adjudicate 

petitions for H–2 nonimmigrant status 

including establishing the form and 

content of such petitions. See INA 

214(a)(1) and (c)(1), 8 U.S.C. 1184(a)(1), 

(c)(1), and INA 103(a)(1), (a)(3), 

1103(a)(1), (a)(3),; and, with respect to 

the H–2B classification, INA 

214(c)(14)(A), 1184(c)(14)(A); see also 6 

U.S.C. 202(3), 271, 557. The HSA also 

established the Bureau of Citizenship 

and Immigration Services, now USCIS, 

and transferred to USCIS the authority 

over petitions adjudicated by service 

centers (including H–2 nonimmigrant 

petitions), 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). Reading the 

expansive delegated authority over 

immigration and H–2 programs, 

including its administration, to include 

the authority to strengthen the 

prohibited fee provisions (that have 

been a part of the H–2 regulatory 

scheme since 2008),38 and thus prevent 


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2A classification.’’). Similarly, in response to public 

comments on the 2008 H–2B final rule DHS stated 

that the ‘‘this provision is necessary to ensure that 

the actual wages specified on the temporary labor 

certification will, in fact, be paid to the H–2B 

worker, thereby ensuring the validity of the labor 

market test and compliance with section 

101(a)(15)(H)(ii)(B) of the INA, 8 U.S.C. 

1101(a)(15)(H)(ii)(B). The choice whether to use 

recruiters or facilitators and the terms and costs for 

such services is left entirely to the employer.’’ 73 

FR 78104, 78113 (Dec. 19, 2008). 

39See Loper Bright Enters. v. Raimondo, 144 S. 

Ct. 2244, 2263 (2024) (‘‘In a case involving an 

agency, of course, the statute’s meaning may well 

be that the agency is authorized to exercise a degree 

of discretion. Congress has often enacted such 

statutes. For example, some statutes expressly 

delegate’’ to an agency the authority to give 

meaning to a particular statutory term. Others 

empower an agency to prescribe rules to fill up the 

details of a statutory scheme, or to regulate subject 

to the limits imposed by a term or phrase that 

leaves agencies with flexibility, such as 

‘appropriate’ or ‘reasonable.’’’ (cleaned up)). 

40See 8 CFR 103.2(b)(1) (‘‘An applicant or 

petitioner must establish that he or she is eligible 

for the requested benefit at the time of filing the 

benefit request and must continue to be eligible 

through adjudication.’’); see also USCIS, Policy 

Manual Chapter 4, ‘‘Burden and Standards of 

Proof’’ (‘‘The burden of proof to establish eligibility 

for an immigration benefit always falls solely on the 

benefit requestor. The burden never shifts to 

USCIS.’’), https://www.uscis.gov/policy-manual/ 

volume-1-part-e-chapter-4#:∼:text=The%20burden

%20of%20proof%20to%20establish%20eligibility

%20for,or%20she%20has%20made%20a%20

prima%20facie%20case. 

41See generally 8 CFR 103.2(b)(8), 103.3. 

42 DHS notes an inaccuracy in some of the 

comments that confuse an important distinction in 

how the new prohibited fees provisions treat 

instances of prohibited fees charged by petitioners 

or its employees and such fees charged by third 

parties. The ‘‘extraordinary circumstances’’ 

determination is applicable only to instances of 

prohibited fees charged by the petitioner itself or by 

its employees, not in situations where such fees are 

charged by third party entities. Prohibited fees 

charged by third party entities are covered by new 

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

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

the exploitation of H–2 workers, is the 

best reading of that authority, as it is 

consistent with the plain language of the 

statutes and will enhance the integrity 

of the H–2 programs and thus further 

this important statutory purpose.39

DHS also disagrees with other 

assertions from the commenters. Firstly, 

the commenters fail to recognize that 

the provisions finalized in this rule do 

not impose strict liability on petitioners 

but provide limited ways for petitioners 

to avoid liability for prohibited fees. The 

ways in which petitioners may avoid 

potential denial or revocation of a 

petition differ depending on whether 

the beneficiary was charged by the 

petitioner itself or one of its employees, 

or whether the beneficiary paid or 

agreed to pay a third party recruiting on 

behalf of the petitioner. See new 8 CFR 

214.2(h)(5)(xi)(A), 214.2(h)(6)(i)(B). See 

also the detailed description of these 

provisions in the comment response 

below. As noted above, this final rule in 

general, and these provisions in 

particular, are being promulgated in 

order to ensure the integrity of the H– 

2 programs and worker protections. 

Furthermore, DHS disagrees that it has 

deprived the public of the opportunity 

to comment on the complete proposal, 

and notes that the NPRM expressly 

sought comments on all of DHS’s 

proposals, and explicitly requested 

public input on different aspects of 

several of its proposals, including 

specifically on the types of evidence 

that may be relevant to meet the 

proposed due diligence requirement and 

the clear and convincing standard that 

the petitioner did not know or could not 

have known of a third-party charging 

beneficiaries prohibited fees. DHS is 

making revisions to several of its 

proposals based on the comments it 

received on the NPRM, as discussed in 

these comment responses and in Section 

III which shows that petitioners 

understood DHS’s proposals pertaining 

to the prohibited fee provisions and 

were able to provide salient and helpful 

feedback. 

Comment: Several commenters, 

including a professional association and 

a few individual commenters, expressed 

concerns that employers would be 

‘‘forced’’ to prove their innocence under 

the proposed regulations, which would 

be incongruent with the U.S. justice 

system. A few commenters additionally 

expressed concern that the proposed 

rule would be based on the idea that all 

H–2 employers should be presumed 

guilty, or that it would defy the concept 

of ‘‘innocent until proven guilty.’’ A 

couple of trade associations, echoing 

these remarks, added that the ‘‘illegal’’ 

regulatory scheme surrounding the 

prohibited fees provisions would deny 

petitioners of basic due process. The 

professional association urged the 

Department to discard—or, at minimum, 

revise—the worker protection 

provisions to allow DHS to enforce 

regulations against prohibited fees 

without forcing employers to prove their 

innocence. 

Response: DHS disagrees that the 

proposed prohibited fees provisions, 

finalized in this rule with minor 

revisions, are counter to the concept of 

‘‘innocent until proven guilty’’ or 

otherwise deny petitioners of basic due 

process. These provisions do not 

purport to assign ‘‘guilt’’ or 

‘‘innocence,’’ but instead address those 

situations where, as a factual matter, 

workers have paid or agreed to pay 

prohibited fees. Nothing proposed in the 

NPRM and finalized in this rule departs 

from DHS’s current regulatory 

framework whereby USCIS may approve 

a benefit request only if the petitioner 

establishes eligibility for the requested 

benefit.40 If the evidence fails to 

establish eligibility, the benefit request 

will be denied on that basis, generally 

preceded by an RFE or a notice of the 

agency’s intent to deny, with the 

opportunity for the benefit requester to 

provide additional evidence in response 

to the request or notice and an 

opportunity to appeal any such 

denial.41 H–2 petitioners continue to be 

afforded this process under the 

provisions of this final rule. 

i. Extraordinary Circumstances 

Comment: Several comments 

requested clarity concerning what 

constitutes ‘‘extraordinary 

circumstances,’’ noting that this term is 

not defined in the proposed regulation 

nor does DHS explain how it plans to 

evaluate the facts in making its decision. 

Several trade associations commented 

that the Department did not explain 

what ‘‘extraordinary circumstances’’ 

would allow an employer to avoid 

liability for prohibited fees charged ‘‘by 

a third-party.’’ Additionally, a 

professional association wrote that the 

framework proposed by DHS to enforce 

the prohibition of fees requires greater 

detail to the required showing of 

circumstances that were ‘‘rare and 

unforeseeable.’’ A joint submission, 

providing detailed remarks on DHS’s 

proposal and offering suggestions, 

recommended that the Department 

soften the ‘‘extraordinary 

circumstances’’ and ‘‘rare and 

unforeseeable’’ requirements to more 

lenient standards (for example, ‘‘took 

reasonable steps’’). 

Response: In light of these comments, 

DHS is revising the regulatory text at 

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

CFR 214.2(h)(6)(i)(B)(1) to clarify the 

‘‘extraordinary circumstances’’ 

framework. As described above, as well 

as in Section III, DHS is finalizing the 

proposed provisions at new 8 CFR 

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

214.2(h)(6)(i)(B)(1) to state, in pertinent 

part, that if USCIS determines that a 

petitioner or any of its employees,42

whether before or after the filing of the 

H–2 petition, has collected or entered 

into an agreement to collect a prohibited 

fee related to the H–2 employment, 

USCIS will deny or revoke the petition 

on notice unless the petitioner 

demonstrates through clear and 

convincing evidence that, among other 

things, ‘‘the petitioner made ongoing, 

good faith, reasonable efforts to prevent 

and learn of the prohibited fee 


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43For example, the concept of ‘‘extraordinary 

circumstances’’ beyond the petitioner or applicant’s 

control is found in regulatory provisions relating to 

certain extension of stay or change of status 

requests, see current 8 CFR 214.1(c)(4) and 

248.1(b)(1), and in a precedent decision of the 

Board of Immigration Appeals and respective 

guidance implementing provisions of the Child 

Status Protection Act, Pub. L. 107–208 (2002). See 

INA secs. 203(h); see also Matter of O. Vasquez, 26 

I&N Dec. 817, 821 (BIA 2012), USCIS Policy 

Memorandum, ‘‘Guidance on Evaluating Claims of 

‘Extraordinary Circumstances’ for Late Filings 

When the Applicant Must Have Sought to Acquire 

Lawful Permanent Residence Within One Year of 

Visa Availability Pursuant to the Child Status 

Protection Act’’ (June 6, 2014); cf. 8 CFR 208.4(a)(5) 

(defining ‘‘extraordinary circumstances’’ for 

purposes of the one-year filing deadline for asylum 

applications). DHS recognizes those examples are 

not related to H–2 prohibited fees, but the point 

remains that the phrase ‘‘extraordinary 

circumstances’’ is generally well understood. 

44Cambridge Dictionary, https://

dictionary.cambridge.org/us/dictionary/english/ 

extraordinary; see also Merriam Webster Dictionary 

(defining ‘‘extraordinary’’ as ‘‘going beyond what is 

usual, regular, or customary’’), https://

www.merriam-webster.com/dictionary/ 

extraordinary; Black’s Law Dictionary (12th ed. 

2024) (‘‘Beyond what is usual, customary, regular, 

or common.’’). 

collection or agreement by its 

employees throughout the recruitment, 

hiring, and employment process’’ and 

that ‘‘extraordinary circumstances 

beyond the petitioner’s control resulted 

in its failure to prevent collection or 

entry into agreement for collection of 

prohibited fees.’’ Specifically, DHS is 

eliminating the part of the proposed 

regulatory text referring to ‘‘rare and 

unforeseeable’’ circumstances. This 

phrase may have caused unnecessary 

confusion, as DHS had always meant 

the phrase ‘‘rare and unforeseeable’’ to 

specifically explain the meaning of 

‘‘extraordinary circumstances,’’ not to 

create another standard separate and 

apart from ‘‘extraordinary 

circumstances.’’ 

Further, DHS is eliminating the part 

of the proposed regulatory text stating, 

‘‘To qualify for this exception, a 

petitioner must first establish. . ..’’ That 

proposed language was intended to refer 

back to how to demonstrate 

‘‘extraordinary circumstances,’’ not to 

create another exception. 

These changes are intended to clarify 

that there is only one exception for a 

petitioner to avoid liability for 

prohibited fees by itself or its 

employees. DHS is also deleting ‘‘and 

that it has fully reimbursed all affected 

beneficiaries or the beneficiaries’ 

designees’’ because this is duplicative of 

the sentence, ‘‘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,’’ which is 

being retained. 

To summarize, under new 8 CFR 

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

214.2(h)(6)(i)(B)(1), if it is determined 

that a petitioner or any of its employees, 

whether before or after the filing of the 

H–2 petition, has collected or entered 

into an agreement to collect a prohibited 

fee related to the H–2 employment, the 

petition will be denied or revoked on 

notice unless the following factors are 

demonstrated through clear and 

convincing evidence: 

(1) The petitioner made ongoing, good 

faith, reasonable efforts to prevent and 

learn of the prohibited fee collection or 

agreement by its employees through the 

recruitment, hiring, and employment 

process; 

(2) Extraordinary circumstances 

beyond the petitioner’s control resulted 

in its failure to prevent collection or 

entry into agreement for collection of 

prohibited fees; 

(3) The petitioner took immediate 

remedial action as soon as it became 

aware of the payment of or agreement to 

pay the prohibited fee; and 

(4) The petitioner fully reimbursed all 

affected beneficiaries or, only if such 

beneficiaries cannot be located or are 

deceased, it fully reimbursed the 

affected beneficiaries’ designees. 

With respect to comments specifically 

requesting clarification of the phrase 

‘‘extraordinary circumstances,’’ this 

phrase is currently used in other areas 

of immigration administration and 

therefore is not ambiguous or ill-defined 

as commenters have asserted.43 Based 

on the plain meaning of 

‘‘extraordinary,’’ extraordinary 

circumstances are ‘‘very unusual, 

special, unexpected, or strange’’ 44 (in 

other words, rare and unforeseeable). To 

provide an example for illustrative 

purposes only, the unexpected death, 

serious illness, or incapacity of the 

petitioning entity’s supervisor or other 

key employee with responsibility for 

recruiting beneficiaries and ensuring 

against the payment of prohibited fees 

may qualify as ‘‘extraordinary 

circumstances’’ beyond the petitioner’s 

control, although a minor illness or 

short-term incapacity likely would not 

qualify. In evaluating whether the 

circumstances in a particular case were 

‘‘extraordinary’’ and ‘‘beyond the 

petitioner’s control,’’ USCIS will take 

into account all relevant information 

and evidence, including but not limited 

to who within the organization collected 

or entered into an agreement to collect 

prohibited fees, and the relationship of 

the asserted circumstances to the 

actions of such individual(s). It is worth 

emphasizing that demonstrating the 

existence of extraordinary 

circumstances beyond the petitioner’s 

control is only part of the exception 

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

8 CFR 214.2(h)(6)(i)(B). Not only does a 

petitioner need to demonstrate 

extraordinary circumstances beyond the 

petitioner’s control, but the petitioner 

must also establish that these 

circumstances ‘‘resulted in the 

petitioner’s failure to prevent collection 

or entry into agreement for collection of 

prohibited fees,’’ as required under new 

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

214.2(h)(6)(i)(B). Circumstances that had 

no connection to the petitioner’s failure 

to prevent collection or entry into 

agreement for collection of prohibited 

fees, such as a serious illness that 

occurred after the prohibited fee had 

already been collected, would not be 

sufficient to meet the regulatory 

standard. 

Additionally, the petitioner needs to 

demonstrate that it meets the remaining 

factors of the exception at new 8 CFR 

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

214.2(h)(6)(i)(B), specifically: that the 

petitioner had made ongoing, good faith, 

reasonable efforts to prevent and learn 

of such prohibited fee collection or 

agreement throughout the recruitment, 

hiring, and employment process; the 

petitioner took immediate remedial 

action as soon as it became aware of the 

payment of or agreement to pay the 

prohibited fee; and that the petitioner 

fully reimbursed all affected 

beneficiaries or, in certain 

circumstances, the beneficiaries’ 

designees. Overall, this exception is 

intentionally narrowly drawn as it is 

critical in furthering the primary intent 

of this final rule, which is to better 

ensure the integrity of the H–2 programs 

and to provide protections to H–2 

workers. 

j. Significant Efforts 

Comment: Several commenters, 

including numerous trade and business 

associations and a professional 

association, requested clarity 

concerning what constitutes ‘‘significant 

efforts to prevent prohibited fees prior 

to the collection or agreement to collect 

such fees.’’ 

Response: As discussed above, DHS is 

finalizing the proposed provisions at 

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

CFR 214.2(h)(6)(i)(B)(1) to offer greater 

clarification and simplification. 

Specifically, new 8 CFR 

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

214.2(h)(6)(i)(B)(1) eliminates the phrase 

‘‘significant efforts’’ and instead 

provides that the petitioner must 

demonstrate that it ‘‘made ongoing, 

good faith, reasonable efforts to prevent 

and learn of the prohibited fee 

collection or agreement by its 


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45As discussed earlier, the requirement to 

demonstrate that the petitioner ‘‘made ongoing, 

good faith, reasonable efforts to prevent and learn 

of the prohibited fee collection or agreement by its 

employees throughout the recruitment, hiring, and 

employment process’’ replaces the proposed ‘‘due 

diligence’’ language in proposed 8 CFR 

214.2(h)(5)(xi)(A)(2), 8 CFR 214.2(h)(6)(i)(B)(2). 

Although DHS is replacing ‘‘due diligence’’ with 

‘‘ongoing, good faith, reasonable efforts’’ in light of 

comments requesting clarity on the ‘‘due diligence’’ 

standard, DHS emphasizes that is not a substantive 

change as ‘‘due diligence’’ and ‘‘ongoing, good faith, 

reasonable efforts’’ in this context requires the same 

level of diligent effort by the petitioner. 

46Black’s Law Dictionary (11th ed. 2019), 

‘‘Evidence.’’ 

47 8 CFR 214.2(h)(13)(v). 

employees throughout the recruitment, 

hiring, and employment process.’’ 

Although DHS is replacing ‘‘significant 

efforts’’ with ‘‘ongoing, good faith, 

reasonable efforts’’ in light of comments 

requesting clarity, DHS emphasizes that 

is not a substantive change as 

‘‘significant efforts’’ and ‘‘ongoing, good 

faith, reasonable efforts’’ in this context 

requires the same level of effort by the 

petitioner. This change clarifies what 

DHS initially meant by ‘‘significant,’’ 

and more effectively explains the 

petitioner’s obligation to not only 

prevent prohibited fees prior to the 

collection of or agreement to collect 

such fees, but also undergo an ongoing 

obligation to prevent and learn about 

such fees given that such fees could be 

collected or agreed upon at various 

points in time during the recruitment, 

hiring, or employment process. 

This change better aligns the 

provisions at new 8 CFR 

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

214.2(h)(6)(i)(B)(1) with the provisions 

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

8 CFR 214.2(h)(6)(i)(B)(2). As finalized, 

all of these provisions require 

petitioners to demonstrate their 

ongoing, good faith, reasonable efforts to 

prevent and learn of the prohibited fee 

collection or agreement throughout the 

recruitment, hiring, and employment 

process, regardless of whether the 

prohibited fee collection or agreement 

was made by the petitioner (including 

its employees) or by third parties.45

These changes clarify that the proposed 

‘‘significant efforts’’ and ‘‘due 

diligence’’ standards were not meant to 

be materially different from each other. 

Similar to the examples of nonexclusive factors that DHS offered for 

‘‘ongoing, good faith, reasonable efforts’’ 

at new 214.2(h)(5)(xi)(A)(2) and 

214.2(h)(6)(i)(B)(2), DHS is offering the 

following examples of factors that may 

demonstrate ‘‘ongoing, good faith, 

reasonable efforts’’ at new 

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

214.2(h)(6)(i)(B)(1). These factors 

include: (1) whether the petitioner had 

procedures to contact and monitor the 

performance of relevant parties in the 

recruitment chain, whether located in 

the United States or abroad; and (2) 

whether the petitioner has a mechanism 

to communicate directly with workers 

during and after the recruitment process 

and properly investigate any reports of 

prohibited fees. As noted above, the 

determination under new 

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

214.2(h)(6)(i)(B)(1) will be made on a 

case-by-case basis, taking into 

consideration all of the facts presented. 

k. Clear and Convincing Evidence

Standard

Comment: A professional association 

said that it opposed the imposition of a 

‘‘clear and convincing’’ standard 

concerning an employer’s burden of 

proof to demonstrate that a failure to 

prevent an inadvertent payment 

resulted from extraordinary 

circumstances beyond the employer’s 

control. The association reasoned that 

the standard would be unduly 

burdensome. An attorney additionally 

expressed concern that the Department 

proposed to adopt the ‘‘littleunderstood’’ ‘‘clear and convincing’’ 

standard without justification and with 

‘‘virtually no guidance’’ to meet this 

standard. While stating that there is no 

way that a U.S.-based employer would 

know what another agent or recruiter is 

doing, the attorney concluded that the 

proposed rule would amount to ‘‘a trap 

for the most conscientious.’’ 

A joint submission, providing 

detailed comments, remarked that the 

proposed evidentiary standards would 

be too high of a threshold for petitioners 

to satisfy ‘‘even under the best of 

circumstances.’’ The commenters said 

that it is not clear from the proposed 

rule what evidence a petitioner may 

provide to demonstrate its lack of 

knowledge and said that it would be 

unreasonable to require evidence under 

the clear and convincing standard to 

prove a negative. The commenters wrote 

that it would be unlikely that any 

petitioner could satisfy the proposed 

standard, leading to inequitable 

outcomes for employers. Therefore, the 

commenters recommended that the 

Department reduce the standard of proof 

to a ‘‘preponderance of the evidence 

standard.’’ 

Additionally, while providing 

alternative regulatory text, the joint 

commenters suggested that the 

Department, at minimum, consider 

scaling back the rigidity of the proposed 

rule and propose that USCIS maintain 

discretion to evaluate a petitioner’s 

unique circumstances. Such an 

approach, the commenters reasoned, 

would allow the petitioner to provide 

evidence in their defense and 

demonstrate possible mitigating 

circumstances. The commenters further 

reasoned that this approach would align 

with due process obligations and avoid 

unduly penalizing employers. 

With respect to the vetting of third 

parties, a trade association suggested 

that DHS establish a ‘‘reasonable’’ clear 

and convincing standard so that the 

impermissible actions of H–2B 

facilitators cannot constitute grounds for 

punishment of an employer except 

under extraordinary circumstances. 

Response: DHS declines to change the 

‘‘clear and convincing’’ evidentiary 

standard at new 8 CFR 214.2(h)(5)(xi)(A) 

or 8 CFR 214.2(h)(6)(i)(B). DHS does not 

agree that the standard is ‘‘little 

understood.’’ Rather, it is a longstanding 

term in the law that is generally 

understood to mean ‘‘[e]vidence 

indicating that the thing to be proved is 

highly probable or reasonably 

certain.’’ 46 Further, the ‘‘clear and 

convincing’’ standard is currently used 

in other areas of immigration 

administration, including in the H–2B 

regulations with respect to an exception 

to the limitation on the period of 

admission,47 so some employers likely 

already have experience in the 

application of this standard in H–2B 

petitions. 

Nor does DHS agree that the ‘‘clear 

and convincing’’ standard is unduly 

burdensome for employers. The 

heightened standard appropriately 

balances the importance of 

strengthening protections for H–2 

workers and preventing prohibited fees, 

with employers’ ability to provide the 

necessary evidence to meet an exception 

to the requirement, in the event that 

USCIS determines that H–2 workers 

have paid or agreed to pay prohibited 

fees. As stated in the NPRM, DHS 

recognizes that despite current 

regulations on prohibited fees, 

significant numbers of H–2 workers 

have reported paying prohibited fees, 

and that stronger protections are needed 

for the nonimmigrant workers who 

participate in the H–2 programs. 88 FR 

65040, 65050 (Sept. 20, 2023). The 

current regulations on prohibited fees, 

which petitioners can currently satisfy 

under the preponderance of the 

evidence standard, have not adequately 

deterred against prohibited fees. By 

ensuring that petitioners are taking 

proactive measures to prevent the 

collection of prohibited fees, the 

heightened evidentiary standard will 

help ensure that petitioners will avoid 

liability for prohibited fees only where 

they have taken necessary steps to avoid 


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48The H–2 NPRM referenced a GAO report’s 

statement 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, and noted that ‘‘[t]he 

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.’’ Modernizing H– 

2 Program Requirements, Oversight, and Worker 

Protections, 88 FR 65040, 65062 (Sept. 20, 2023) 

(citing GAO, GAO–15–154, ‘‘Increased Protections 

Needed for Foreign Workers,’’ p. 37 (2015), https:// 

www.gao.gov/assets/gao-14-154.pdf). 

the collection of prohibited fees and 

have reimbursed workers who have paid 

prohibited fees. 

Where petitioners have taken 

proactive measures to prevent the 

collection of prohibited fees, it is 

reasonable to expect that these measures 

could be documented sufficiently to 

satisfy the ‘‘clear and convincing’’ 

evidentiary standard. For example, 

under new 8 CFR 214.2(h)(5)(xi)(A)(1)- 

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

petitioner may avoid denial of its 

petition by showing, among other 

things, ‘‘that it had made ongoing, good 

faith, reasonable efforts to prevent and 

learn of the prohibited fee collection or 

agreement.’’ In addition to the examples 

discussed above of relevant evidence 

suggested by commenters, it is 

reasonable to expect a petitioner to be 

able to provide evidence such as 

documentation relating to compensation 

paid to a recruiter, documentation of the 

procedures implemented by the 

petitioner to monitor the performance of 

relevant parties in the recruitment chain 

and to communicate directly with 

workers during and after the 

recruitment process and properly 

investigate any reports of prohibited 

fees. 

l. Requirement to Comply With 

Prohibited Fee Provisions as a 

Condition of Approval 

Comment: A joint submission 

objected to the proposal for petitioners 

to comply with the prohibited fee 

provisions as a condition of their 

approval, reasoning that the proposal 

would be ‘‘unduly punitive.’’ The 

commenters expressed concern that the 

proposed provision would result in 

‘‘automatic denial of a petition’’ even 

where there was no harm to workers. 

Response: The phrase ‘‘condition of 

approval’’ does not mean that USCIS 

would automatically deny a petition. 

The regulations at new 8 CFR 

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

214.2(h)(6)(i)(B) clearly state that the 

petition ‘‘will be denied or revoked on 

notice’’ unless the petitioner 

demonstrates eligibility for the limited 

exception allowed under those 

regulations. As with current practice, 

USCIS will generally afford a petitioner 

an opportunity to demonstrate that its 

petition should not be denied or 

revoked in accordance with 8 CFR 

103.2(b). Thus, DHS disagrees with the 

commenter that the new regulations 

would not afford employers an 

‘‘opportunity to resolve and remedy 

violations.’’ DHS also disagrees with the 

commenter’s characterization that the 

new regulations would be ‘‘unduly 

punitive.’’ 

m. Consequences of a Denial or 

Revocation Based on Prohibited Fees 

Comment: A union wrote that 

employers and recruiters who charge 

prohibited fees must be ‘‘barred’’ from 

the program. 

A couple of commenters endorsed the 

Department’s proposed timelines for 

‘‘debarment.’’ An advocacy group wrote 

that the timelines for the denial periods, 

as proposed, are appropriate, given the 

harm that prohibited fees cause workers 

and the need for improved deterrence. 

In addition, a joint submission urged 

DHS not to reduce the proposed 

timeframes for the denial periods. 

A group of Federal elected officials 

wrote that, under current regulations, 

employers and recruiters are 

incentivized to break the law with 

respect to charging prohibited fees. The 

elected officials said that the proposed 

rules would put an end to these 

practices by heightening the 

consequences for charging prohibited 

fees, including debarment for up to 4 

years after a violation has been found. 

An advocacy group similarly stated that 

the proposed denial periods related to 

prohibited fees would reduce violations 

by employers and reduce harm to 

workers. The commenter added that the 

consequences and remediation 

measures should apply to petitioners 

whether they were directly involved in 

the charging of prohibited fees, or it 

occurred through a third party if the 

petitioner was to benefit from the 

worker’s presence. 

Response: DHS appreciates these 

commenters’ support for the provisions 

strengthening the consequences of a 

denial or revocation based on prohibited 

fees being charged to H–2 employees. 

The provisions finalized in the rule 

reflect the seriousness of prohibited fee 

violations and the significant harm 

caused to workers who are charged such 

fees. 

Comment: An advocacy group said 

that while it supported the imposition 

of consequences on employers for 

charging prohibited fees, DHS should 

find ways to incentivize and encourage 

workers to report prohibited fees, 

reasoning that H–2 workers who lose 

their jobs as a result of these 

consequences ‘‘bear the brunt of their 

employer’s violation.’’ 

Response: DHS appreciates the 

commenter’s concern and acknowledges 

that the provisions of this rule do not 

eliminate the risk that H–2 workers who 

report prohibited fees may need to seek 

new employment if the petition filed on 

their behalf is ultimately denied or 

revoked. This rulemaking does, 

however, include several provisions that 

are meant to increase worker flexibility 

in ways that mitigate such disincentive 

to reporting prohibited fees and other 

abuses. Specifically, the whistleblower 

protection and extended grace periods 

for revocation and cessation of 

employment, in conjunction with the 

changes to portability, should facilitate 

the ability of a worker facing abuse to 

seek and transfer to a new employer.48

Finally, the prohibited fee provisions 

in this rulemaking include strong 

reimbursement incentives, with 

petitioners facing up to a 4-year period 

of denial unless all affected 

beneficiaries have been reimbursed. The 

increased likelihood that reporting a 

prohibited fee will lead to a full 

reimbursement for affected workers may 

also serve to encourage whistleblowers 

to come forward. 

Comment: Multiple commenters 

wrote that the proposed consequences 

for petitioners are severe, significant, 

overly punitive, strict, or not 

commensurate with the alleged 

violation, particularly in cases where 

the petitioner has reimbursed the 

worker in full, or the behavior is 

unintentional, unknown, and out of the 

petitioner’s control. An individual 

commenter stated that the proposal 

would create ‘‘extreme penalties for 

potentially minor violations.’’ 

Many commenters remarked on the 

negative impacts of this proposal on 

employers and others who rely on them. 

For example, a State Government 

agency said that DHS’s proposed 1- to 

4-year debarment would hinder the 

hiring of workers. Furthermore, several 

commenters including trade 

associations and a joint submission 

expressed concern that a year without 

access to the H–2 program could result 

in irreparable harm to U.S. employers 

and put them out of business, which 

would impact the nation’s food supply 

and national security. 

Multiple commenters, including a few 

professional associations and several 

individual commenters, additionally 

expressed concern that the proposed 

consequences would penalize 

employers for ‘‘doing the right thing.’’ 


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The commenters said that employers 

who take corrective action or report 

prohibited recruitment fees would be 

penalized by possible denial or 

revocation, or debarment from the 

program, with limited exceptions. 

While describing a detailed scenario, 

a joint submission said that under the 

Department’s proposed framework, a 

single fee violation occurring at any 

level could cause significant harm to an 

enterprise if an employer cannot meet 

the ‘‘impossibly high’’ standards of 

evidence. Precluding an entire corporate 

structure from utilizing the H–2 

program for 1 year, the commenters 

said, would amount to an ‘‘extreme 

punishment’’ resulting in ‘‘catastrophic 

financial losses’’ and downstream 

economic consequences for the 

employer and the totality of its 

workforce. Thus, the commenters 

continued, the Department’s proposal 

may cause workers more harm, contrary 

to the proposed rule’s objective, due to 

the disruption in employment and lack 

of earning potential. Further, the 

commenters stated that a ‘‘prohibited 

fee death sentence’’ could translate into 

missed career opportunities for skilled 

U.S. workers who benefit from 

employers’ abilities to fill their entrylevel labor needs through the H–2 

programs. 

The joint commenters additionally 

emphasized that employers are not in a 

position to solve endemic corruption, 

and most do not have the financial 

resources to investigate recruitment 

activities outside of the United States. In 

expressing their view that no amount of 

due diligence is a perfect safeguard 

against bad actors, the commenters said 

that employers would inevitably come 

across a fee violation or potential 

violation at some point in their H–2 

program history. The commenters 

further remarked that bad actors 

unaffiliated with employers have 

engaged in fraudulent activities under 

their clients’ names, which would make 

it difficult for an employer to prove that 

they were not involved in such activity 

and could lead to ‘‘wrongful 

convictions.’’ Thus, the commenters 

concluded that the Departments’ ‘‘rigid’’ 

proposal would be ‘‘completely 

untenable’’ and represent a ‘‘massive 

overreach.’’ 

Response: DHS acknowledges the 

significance of the potential 

consequences of a petition denial or 

revocation based on a USCIS finding 

that an associated H–2 beneficiary paid 

or agreed to pay prohibited fees. The 

Department disagrees, however, that the 

consequences are ‘‘overly punitive’’ and 

not commensurate with a violation of 

the prohibited fees provisions. Instead, 

the consequences as finalized in this 

rule recognize the seriousness of these 

types of offenses and the severity of 

situations in which beneficiaries go into 

debt before obtaining an employment 

opportunity and the urgent need to 

ensure that beneficiaries not be subject 

to exploitation or other forms of 

coercion as a result of incurring such 

debt. 

DHS also acknowledges the potential 

financial losses some employers may 

experience if they are precluded from 

utilizing H–2 workers under the 

finalized 1-year and additional 3-year 

periods. These more robust 

consequences are not intended to force 

petitioners to remedy all ‘‘endemic 

corruption’’ prevalent in noncitizen 

worker recruitment and are intended to 

incentivize petitioners to take 

appropriate responsibility for their own 

employees, or any third party entities it 

engages, as well as those further 

downstream, in the recruitment process 

and in obtaining workers under the H– 

2 programs. 

Finally, DHS disagrees with the 

comments that this rule ‘‘penalize[s] 

employers for ‘doing the right thing.’’’ 

Instead, in recognizing some petitioners 

may still encounter bad actors, DHS is 

putting in place mechanisms such that 

petitioners may avoid liability under 

certain circumstances, by taking 

proactive steps to prevent the collection 

of such fees and taking immediate 

remedial action, as described in 

multiple areas in this preamble. 

Comment: Numerous commenters, 

including a joint submission and several 

associations, encouraged DHS to reevaluate the proposed enforcement 

measures or its handling of 

circumstances involving prohibited fee 

violations. Specifically, instead of 

focusing on denials and revocations, the 

commenters urged the Department to 

propose clear, reasonable alternatives 

for public comment that constitute a 

comprehensive strategy to protect 

workers while balancing employers’ 

challenges to preventing the unlawful 

collection of fees with their need to 

access the program. Similarly, another 

trade association encouraged the 

Department to consider measures that 

would allow employers to protect 

workers, rather than subjecting them to 

‘‘strict liability’’ for unknown actions of 

third parties. 

Several commenters offered specific 

alternatives to the proposed regulations 

around denials and revocations for the 

collection of prohibited fees, detailed 

below. 

Numerous commenters suggested 

reduced or graduated penalties for fee 

violations. For example, a joint 

submission wrote that the denial of one 

petition and the inability to secure 

workers pursuant to that petition would 

constitute an appropriate punishment 

for a fee violation. The joint commenters 

recommended that the Department 

consider making the 1-year ‘‘bar’’ 

applicable only to willful violations, 

repeat occurrences, or cases where the 

employer did not take affirmative steps 

to comply with the regulations. The 

commenters suggested that this 

punishment not extend to first-time 

violators or instances where the 

employer undertook reasonable efforts 

to comply or promptly rectified the 

issue. 

A few trade associations and a 

professional association encouraged the 

Department to ‘‘gradient’’ penalties 

commensurate with the circumstances 

of the violation and reserve denials or 

revocations for repeat, ‘‘intentional’’ or 

‘‘egregious’’ violations. The business 

association added that denial or 

revocation must only occur after the 

petitioner has the opportunity to rebut 

adverse information. Instead of a ‘‘onesize-fits-all’’ approach that removes 

agency discretion to evaluate cases 

based on their merits, a business 

association similarly suggested a 

graduated scale of penalties, owed by 

the petitioner to the Department and 

based on the company’s track record. 

The association said that such penalties 

would be reasonable if the petitioner 

‘‘directly committed’’ or was a 

‘‘knowing accomplice’’ to the 

questionable activity. The association 

remarked that a harsher penalty of a 

denial or revocation would be fitting in 

situations where the imposition of fees 

could be deemed a pattern, but the 

Department’s ‘‘one-size-fits-all’’ 

approach that removes the discretion to 

evaluate cases based on their merits is 

unnecessarily punitive and should be 

abandoned. 

A professional association 

recommended that the Department 

impose fines for first-time violations 

when it determines that the H–2 

beneficiary has paid or agreed to pay a 

prohibited fee. 

A trade association suggested, instead 

of a denial or revocation, that DHS 

require a mutual attestation for an 

employee’s file, whereby both the 

petitioner and the worker sign an 

agreement that prohibited fees were not 

charged. If the worker discloses that fees 

were charged, then the petitioner would 

be required to follow the current 

reimbursement requirements. 

A research organization said that the 

proposed denial periods for charging 

prohibited fees are ‘‘far in excess of the 

infraction in many cases,’’ as the 


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prohibited fee could constitute ‘‘a very 

small percentage of total remuneration 

for the worker.’’ The commenter 

suggested that, in cases where the 

prohibited fees are less than 5 percent 

of the total value of the contract, DHS 

should not impose a ‘‘bar’’ and instead 

should afford an opportunity for the 

employer to make the worker whole. 

Response: DHS declines to make the 

changes as articulated by the 

commenters and disagrees that the 

provisions finalized in this rule are 

excessive or lead to a ‘‘one-size-fits-all’’ 

approach. With respect to the 

commenter’s assertion that the 1-year 

denial period should only apply to 

‘‘willful’’ violations, for the reasons 

discussed in an earlier response, DHS 

considers a denial or revocation for 

prohibited fees to constitute a 

substantial failure to meet conditions of 

the petition, that is, a willful failure to 

comply with program requirements that 

constitutes a significant deviation from 

the terms and conditions of the petition. 

Furthermore, it is inaccurate to state 

that USCIS decisions will not be based 

on the merits of any specific case. In 

making a determination as to whether a 

violation of the prohibited fees 

provisions has occurred, USCIS 

evaluates each case based on the totality 

of the submitted evidence to determine 

whether: the petitioner made ongoing, 

good faith, reasonable efforts to prevent 

and learn of the prohibited fee 

collection or agreement throughout the 

recruitment, hiring, and employment 

process; the petitioner took immediate 

remedial action as soon as it became 

aware of the payment of or agreement to 

pay the prohibited fee; all affected 

beneficiaries, or designees only if such 

beneficiaries cannot be located or are 

deceased, have been fully reimbursed; 

and, if applicable, that extraordinary 

circumstances beyond the petitioner’s 

control resulted in its failure to prevent 

collection or entry into agreement for 

collection of prohibited fees. Where 

DHS intends to either deny or revoke a 

petition, the petitioner will be notified 

and afforded the opportunity to respond 

to the agency’s intent to deny or revoke 

the petition, as provided under 8 CFR 

103.2(b)(8). 

In declining to adopt the commenters’ 

specific suggestions for amending the 

consequences for prohibited fee 

violations, such as reserving denial or 

revocation of petitions based on 

‘‘egregious’’ infractions, only denying 

petitions filed by repeat offenders, or 

fining first-time offenders instead of 

denying their petition, DHS finalizes the 

proposals from the NPRM in the belief 

that the provisions will be more 

effective when the potential 

consequences of such violations are 

clear and unambiguous. Basing the 

severity of the consequences on a 

gradient basis, or denying or revoking 

only certain petitions even after 

determining that a prohibited fee was 

collected, would unacceptably 

introduce ambiguity and uncertainty 

and risk inconsistent adjudications, 

thereby potentially weakening the 

deterrent effect intended by these 

provisions. Further, where a petitioner 

can demonstrate that it was truly acting 

in good faith to prevent and/or remedy 

a prohibited fee violation, the new 

regulations will provide those 

petitioners with a mechanism to avoid 

denial or revocation of their petition. 

DHS further declines to adopt the 

suggestion to require a mutual 

attestation whereby both parties sign an 

agreement that no prohibited fees were 

paid or agreed to by workers. As noted 

in the NPRM, 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. 88 FR 65040, 65054 (Sept. 

20, 2023). See 20 CFR 655.9(a), 20 CFR 

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

Accordingly, USCIS’ acceptance of such 

a contract alone would mean that nearly 

all petitioners could avoid liability by 

simply requiring their prospective or 

current worker to sign such an 

agreement. 

Finally, the suggestion to allow the 

petitioner to simply reimburse a 

beneficiary when the prohibited fees are 

less than 5 percent of the total value of 

the contract, without facing any other 

consequence, fails to recognize the harm 

already done to a beneficiary who has 

incurred debt to pay such fees and fails 

to deter this harm from occurring in the 

first place, as intended by this 

provision. 

Comment: A couple of commenters 

suggested more aggressive penalties for 

violations of the prohibited fee 

provisions. A union urged DHS to take 

more aggressive action and increase 

denial periods in light of the 

pervasiveness of prohibited fee 

collection. The commenter 

recommended increasing the penalties 

beyond what is proposed in the 

rulemaking and provided detailed 

modifications to the proposed 

regulatory language. Specifically, the 

union recommended increasing the 

denial period under section 

214.2(h)(6)(i)(C) from 1 year to 3 years 

and increasing the denial period under 

section 214.2(h)(6)(i)(D)(1) to 2 years, for 

a total potential 5-year bar. Citing 8 

U.S.C. 1184(c)(14)(A)(ii), the union said 

that DHS can deny petitions based on a 

failure to meet program requirements for 

a period of up to 5 years and, as such, 

DHS would not be fully exercising its 

authority to deny petitions for charging 

prohibited fees unless it increases the 

proposed denial periods. 

A research organization 

recommended that DHS increase what 

the commenter refers to as the 

‘‘debarment’’ periods to a 5-year 

minimum for a first offense and 

permanent debarment for all other 

offenses, reasoning that a 1-year 

debarment following an H–2 denial or 

revocation based on prohibited fees is 

insufficient to deter employers from 

engaging in such conduct. The 

organization, citing DHS’s justification 

in the proposed rule, reasoned that 

recruitment fees put workers at risk of 

debt bondage, human trafficking, and 

other abuses. The commenter further 

remarked that payment of such fees by 

workers strengthens incentives for 

employers to prefer a foreign workforce 

over U.S. workers, which would violate 

the law and congressional intent behind 

the H–2 programs (INA sec. 

101(a)(15)(h)(ii)). Conversely, the 

commenter reasoned that raising the 

penalty for collecting such fees would 

protect workers and better reflect the 

seriousness of these violations. 

Response: DHS appreciates these 

comments but declines to adopt the 

suggested revisions. As finalized in this 

rulemaking, the consequences of a 

denial or revocation for prohibited fees 

within the time period prescribed in 

this final rule strikes an appropriate 

balance in creating a reasonable and 

strong deterrent against employers or 

entities working on their behalf charging 

prohibited fees to H–2 workers, while 

also recognizing that employers or 

entities may make lasting changes to 

practice, policies, and personnel over 

time to remedy deficiencies. The rule 

also adopts robust measures to 

incentivize the full reimbursement of 

such fees to H–2 beneficiaries or their 

designees in those instances where such 

improper fees have already been paid. 

Comment: A union wrote that the 

Department must ban recruitment fees 

in ways that do not penalize workers 

and encouraged agencies to work 

together to reverse the policy of denying 

visas to workers who admit to being 

charged such prohibited fees. In 

addition to other measures, the union 

suggested that USCIS grant 

humanitarian parole and work 

authorization to workers for at least a 

year following the identification of a 

prohibited fee violation. The union 

additionally suggested that the 

Department take steps to ensure that 


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employers do not continue to use 

foreign labor recruiters who have 

charged prohibited fees, such as by 

issuing a notice to employers who may 

have used that recruiter. 

Response: DHS appreciates the 

commenter’s feedback but is not making 

any changes based on this comment. 

Regarding beneficiary reluctance to 

admit to being charged prohibited fees, 

this rule adopts several provisions that 

are meant to remove some of the 

disincentives to reporting such 

violations. Specifically, the permanent 

adoption of portability provisions, as 

well as new whistleblower protections 

and extended grace periods in cases of 

revocation and cessation of 

employment, provide workers with 

flexibility to find new H–2 employment 

and certain protections from potential 

employer retaliation for reporting 

program violations. Additionally, the 

strengthened prohibited fee provisions 

in this rulemaking should increase the 

likelihood that reporting a prohibited 

fee will lead to a full reimbursement for 

affected workers and may also serve to 

encourage those workers to report these 

violations. DHS acknowledges that these 

provisions would mainly benefit 

workers already in the United States, 

however, the suggestion to reverse the 

existing policy of denying visas to 

workers who admit to being charged 

illegal fees would require Department of 

State action and is outside the scope of 

this rulemaking. 

Further, DHS declines to adopt the 

suggestion to create a new process of 

issuing notices to employers who may 

have used foreign recruiters identified 

as having charged prohibited fees, as 

such a notification process would prove 

overly difficult for DHS to implement, 

accurately matching foreign recruiters 

accused of wrongdoing to specific 

employers outside of the normal 

petition adjudication process. However, 

DHS notes that, if during the 

adjudication of a petition USCIS 

received information that an employer 

may have used a foreign labor recruiter 

found to have charged illegal fees, 

USCIS could issue a notice to the 

employer and request additional 

evidence on that basis. In addition, DHS 

is adopting in this rulemaking robust 

provisions that require petitioners to 

conduct ongoing, good faith, reasonable 

efforts to ensure against the collection of 

prohibited fees throughout the 

recruitment, hiring, and employment 

process. These provisions should 

address the commenter’s concern that 

petitioners will use recruiters who have 

been identified as having charged 

prohibited fees. 

With respect to the grant of 

humanitarian parole with work 

authorization to workers subject to the 

payment of prohibited fees, DHS notes 

that parole based on urgent 

humanitarian reasons may be granted 

based on certain factors such as, but not 

limited to, whether the circumstances 

are pressing, and the degree of suffering 

that may result if parole is not 

authorized. A grant of parole is a 

discretionary authorization by USCIS to 

be given on a case-by-case basis and is 

not addressed in or limited by this 

rulemaking, which only focuses on the 

H–2 programs. 

n. Reimbursement of Prohibited Fees to 

Workers 

Comment: A few trade associations, a 

union, and a professional association 

expressed general support for the 

reimbursement of unlawfully collected 

fees. 

Response: DHS agrees that it is 

important to require reimbursement of 

prohibited fees. Bearing in mind the 

serious nature of prohibited fee 

violations and the significant harm to 

beneficiaries who are charged such fees, 

it is appropriate in such circumstances 

to provide strong incentives to ensure 

that beneficiaries or their designees are 

fully reimbursed. In addition to 

requiring reimbursement, this final rule 

aims to provide strong incentives to 

prevent the payment or agreement to 

pay prohibited fees in the first place, 

given the concerns regarding 

beneficiaries incurring a debt burden in 

order to obtain H–2 employment. 

Comment: A union suggested that 

petitioners who are unable to reimburse 

the beneficiary or their designee within 

the proposed 4-year period should 

thereafter be required to contribute the 

entirety of the fee to a fund for victims 

of H–2 violations as a condition for 

regaining access to the program. 

Response: DHS declines to require 

petitioners to contribute to a fund for 

victims when a beneficiary or designee 

cannot be reimbursed as this suggestion 

would require DHS to create a new 

process and regulatory scheme that 

would separately be subject to notice 

and comment rulemaking, particularly 

since DHS would need to define the 

universe of ‘‘victims of H–2 violations,’’ 

determine eligibility for receiving 

payments from the fund, including the 

amounts that would be distributed and 

how those would be set, create a process 

to request or initiate reimbursement, as 

well as create an appeal/dispute 

resolution process. In addition, DHS 

may need additional statutory 

authorities to both expend resources to 

establish this process, as well as to 

collect and hold unlawfully collected 

fees, and distribute funds to victims of 

H–2 violations. The commenter’s 

proposal would also be operationally 

difficult and costly to administer 

because DHS may need to locate victims 

abroad. 

Comment: While expressing overall 

support for the proposed prohibited fee 

provisions, an advocacy group 

encouraged the Department to expand 

the reimbursement requirements to 

include full compensation for all 

monetary damages associated with the 

unlawful collection of fees. The 

commenter reasoned that prohibited 

fees cause H–2 workers to incur debt 

with high interest rates and ensuring 

that reimbursement must cover all 

damages would achieve the goal of 

making workers whole. The commenter 

suggested the following regulatory text, 

to be added to 8 CFR 

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

212.4(h)(6)(i)(B)(1): ‘‘To fully reimburse 

a beneficiary who was charged a 

prohibited fee, the petitioner must 

reimburse the beneficiary for the 

prohibited fee in full plus any actual 

damages the beneficiary incurred as a 

result of the prohibited fee, such as 

interest.’’ 

Response: DHS appreciates this 

comment but declines to make any 

changes with respect to the requirement 

to fully reimburse all beneficiaries or 

their designees for any collected 

prohibited fees. DHS acknowledges that 

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. Thus, DHS is 

finalizing the regulatory provisions at 8 

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

214.2(h)(6)(i) in order to incentivize 

petitioners to prevent the collection of 

prohibited fees and to require 

reimbursement of beneficiaries (or, in 

limited circumstances, a designee) in 

the event that such fees are collected. 

However, DHS declines to extend the 

reimbursement requirement to damages 

or interest beyond the prohibited fees 

themselves as it would be too difficult 

for USCIS to determine the amount of 

such damages or interest, as well as the 

connection of any possible collateral 

harm to the worker resulting from 

payment of the prohibited fees. Nothing 

in this final rule, however, is intended 

to prevent a worker from seeking 

damages for such harms in a private 

cause of action against an offending 

employer or other person or entity. 


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49See USCIS, Form I–129, ‘‘Petition for a 

Nonimmigrant Worker,’’ https://www.uscis.gov/i129 (last updated June 3, 2024). 

Comment: In light of concerns related 

to the strengthened prohibited fees 

provisions and the proposed 

consequences, a few trade associations 

encouraged DHS to work with 

petitioners to identify and establish 

proper safeguards and protocols to 

prevent the extortion of workers and 

establish methods for swift 

reimbursement. One of the associations 

wrote that employers should be assessed 

based on their policies to prevent 

prohibited fees from being charged or 

threatened, and whether they respond 

properly upon discovery of a problem 

by reimbursing the worker and 

appropriately dealing with the offending 

party (for example, the employee or 

recruiter). One of the associations 

further suggested, as an alternative to 

denial or revocation, that DHS require 

reimbursement in situations where the 

petitioner did not have knowledge of 

the prohibited fee. 

Response: The provisions at 8 CFR 

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

214.2(h)(6)(i)(B), as finalized, 

appropriately balance concerns about 

proper safeguards to prevent the 

collection of prohibited fees and 

recognize the limitations of petitioners. 

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

214.2(h)(6)(i)(B) provide narrow 

exceptions under which petitioners may 

avoid liability for prohibited fees. These 

narrow exceptions recognize the reality 

that petitioners may not always be able 

to prevent prohibited fees, while also 

recognizing the importance of the 

petitioner taking proactive measures to 

prevent the collection of fees in the first 

place as well as full reimbursement to 

the beneficiary or, in limited 

circumstances, a designee regardless of 

whether one of these exceptions 

applied. 

Specifically, where USCIS determines 

that a petitioner or any of its employees 

collected a prohibited fee, USCIS will 

deny or revoke an H–2 petition 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 

had made ongoing, good faith, 

reasonable efforts to prevent and learn 

of prohibited 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. The petitioner must also 

demonstrate 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. New 8 CFR 

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

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

Where USCIS determines that a 

prohibited fee has been collected by a 

third party, USCIS will deny or revoke 

the H–2 petition on notice unless the 

petitioner demonstrates to USCIS 

through clear and convincing evidence 

that it made ongoing, good faith, 

reasonable efforts to prevent and learn 

of such payment or agreement 

throughout the recruitment, hiring, and 

employment process. Further, a 

petitioner must establish that it took 

immediate remedial action as soon as it 

became aware of the payment of the 

prohibited fee or agreement. The 

petitioner must also demonstrate that all 

affected beneficiaries or, only if such 

beneficiaries cannot be located or are 

deceased, their designees have been 

fully reimbursed. Thus, the petitioner 

will have the opportunity to avoid 

denial or revocation of a petition by 

demonstrating its policies and efforts to 

prevent the collection of prohibited fees 

in the first place, as well as what 

remedial actions it took including full 

reimbursement of affected beneficiaries 

or their designees, as described in these 

provisions. New 8 CFR 

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

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

Comment: A professional association 

suggested that, in circumstances when 

there is no evidence that the employer 

knew or should have known about a 

recruiter’s violation of the prohibitions 

against the collection and payment of 

fees, the recruiter should reimburse the 

workers, rather than the employer. The 

association added that H–2 employers 

should not be responsible for 

reimbursing payments collected by 

attorneys who also fail to advise the 

employers or who otherwise act without 

the employer’s knowledge in the 

collection of legal or other fees. 

Response: Unlike the provisions 

regarding prohibited fees charged by the 

petitioner or its own employees at 8 

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

214.2(h)(6)(i)(B)(1), which specifically 

require evidence that the petitioner 

itself has fully reimbursed all affected 

beneficiaries or their designees in order 

to avoid denial or revocation, the 

provisions at 8 CFR 214.2(h)(5)(xi)(A)(2) 

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

evidence ‘‘that all affected beneficiaries 

or their designees have been fully 

reimbursed’’ without specifying the 

reimbursing party. This wording 

accounts for the possibility that in some 

cases the offending recruiter or third 

party may provide the reimbursement. 

Ultimately, however, it is the 

petitioner’s responsibility as the H–2 

program user to ensure that the 

reimbursement takes place. 

As the party seeking the benefit of 

using the H–2 program to employ 

temporary workers, it is the petitioner— 

not any third party it may engage to 

assist in the process—who is required to 

certify their agreement to abide by the 

conditions of the H–2A or H–2B 

program.49 It is therefore both 

appropriate and reasonable to require 

the petitioner to ensure its H–2 workers 

are reimbursed in the event that the 

workers are charged a prohibited fee by 

a third party that the petitioner engaged. 

Comment: A professional association 

expressed concern regarding the 

proposal to require reimbursement as a 

condition of approval of H–2B petitions 

following the denial or revocation of a 

petition for prohibited fees. Specifically, 

the commenter was concerned with the 

requirement that ‘‘all’’ workers be fully 

reimbursed and asked what the outcome 

would be for employers who ‘‘have 

trouble contacting’’ former employees 

from 2 or 3 years prior and whether the 

employer would be ‘‘debarred for life.’’ 

The association discouraged DHS 

against using absolute terms in the 

regulatory language that could unjustly 

penalize employers. 

Response: DHS declines to make any 

changes to these provisions based on 

this comment which appears to have 

misunderstood the provision and its 

consequences. Even when USCIS 

determines that the petitioner collected 

or entered into an agreement to collect 

a prohibited fee under new 8 CFR 

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

214.2(h)(6)(i)(B)(1), the petitioner would 

not have its petitions denied ‘‘for life.’’ 

Where a petitioner is found to have 

collected or entered an agreement to 

collect prohibited fees, USCIS will deny 

or revoke the petition unless the 

petitioner can demonstrate that it meets 

the exception at new 8 CFR 

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

214.2(h)(6)(i)(B)(1). Where a beneficiary 

has paid or agreed to pay a prohibited 

fee to a third party, USCIS will deny or 

revoke the petition unless the petitioner 

can demonstrate it meets the exception 

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

8 CFR 214.2(h)(6)(i)(B)(2). USCIS will 

deny any H–2 petition filed by the same 

petitioner or a successor in interest 

within 1 year after the decision denying 

or revoking on notice an H–2 petition on 

the basis of paragraph (h)(5)(xi)(A) or 

(h)(6)(i)(B). See 8 CFR 214.2(h)(5)(xi)(B) 

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


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Subsequently, USCIS will deny any 

H–2 petition filed by the same petitioner 

or successor in interest for an additional 

3-year maximum period, unless the 

petitioner or successor in interest 

demonstrates to USCIS that each 

beneficiary or designee has been fully 

reimbursed. If the petitioner or 

successor in interest demonstrates to 

USCIS that each beneficiary or designee 

has been fully reimbursed, they can 

avoid a subsequent denial of their 

petition during this 3-year period. The 

commenter is correct that, during the 

additional 3-year period described in 8 

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

214.2(h)(6)(i)(D), a petitioner will need 

to demonstrate reimbursement as a 

condition of approval of an H–2 

petition. However, DHS notes that the 

additional 3-year period described in 8 

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

214.2(h)(6)(i)(D) is a maximum of 3 

additional years, and thus would not 

result in an employer having its 

petitions denied ‘‘for life.’’ Further, 

there is nothing requiring a petitioner to 

wait to reimburse beneficiaries or 

designees until the additional 3-year 

period described in 8 CFR 

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

214.2(h)(6)(i)(D) has passed. Indeed, 

under this final rule, the petitioner 

should make every effort to reimburse 

beneficiaries or designees as soon as the 

prohibited fee is discovered. By 

promptly reimbursing the beneficiary or 

designee, a good faith petitioner may 

avoid denial or revocation of the 

petition (provided all the other 

conditions of the exception are met), 

and even in the event of denial or 

revocation, avoid a subsequent denial 

during the time period described in 8 

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

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

The commenter is also correct that a 

failure to reimburse due to ‘‘trouble 

contacting’’ beneficiaries or their 

designees will not satisfy the 

requirements of 8 CFR 214.2(h)(5)(xi)(C) 

and 8 CFR 214.2(h)(6)(i)(D). However, 

DHS is firmly of the view that it is both 

appropriate and reasonable to require 

the petitioner to ensure its H–2 workers 

are reimbursed, given the harm already 

done to workers who incurred debt to 

pay the prohibited fees. As noted in the 

NPRM, petitioners are 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. 

o. Beneficiary Designees 

Comment: An advocacy group 

encouraged the Department to finalize 

the language defining ‘‘designee’’ as 

currently proposed at 8 CFR 

214.2(h)(5)(xi)(A)(1), 212.4(h)(6)(i)(B)(1). 

The group reasoned that while many 

workers will choose to identify 

designees, some may prefer nongovernmental organizations or other 

entities due to concerns about 

retaliation against family members. 

Response: DHS is finalizing the 

definition of ‘‘designee’’ as originally 

proposed at 8 CFR 214.2(h)(5)(xi)(A)(1) 

and 212.4(h)(6)(i)(B)(1), although it is 

incorporating the definition at new 8 

CFR 214.2(h)(5)(xi)(A)(3) and 

212.4(h)(6)(i)(B)(3) to clarify that it 

applies to all prohibited fee provisions 

at paragraph (h)(5)(xi) and (6)(i) of this 

section. As noted by the commenter, the 

definition enables beneficiaries to 

provide an individual or entity as their 

designee, which accommodates those 

who may choose to use a nongovernmental organization as their 

designee. 

Comment: A few trade associations 

endorsed the proposal that employees 

would identify beneficiary designees 

during the initial application and 

recruitment processes for the purposes 

of reimbursement but expressed concern 

with the application of the beneficiary 

designee provision in practice. For 

example, the associations stated that it 

is most likely that a petitioner would be 

required to reimburse a beneficiary or 

designee following the end of a petition 

period and that it is unclear from the 

proposed rule the length of time or 

efforts the employer would need to 

undergo to ‘‘maintain and update’’ the 

designees following a petition’s validity 

period. The associations additionally 

remarked that the proposed rule lacks a 

description of ‘‘exhaustion of efforts’’ to 

locate the worker or designee. The 

commenters encouraged the Department 

to establish a clear procedure to satisfy 

this criterion and steps to reimburse the 

worker or beneficiary designee. 

Alternatively, a couple of these 

commenters suggested that DHS instead 

require petitioners to take ‘‘reasonable 

steps’’ to reimburse the worker or 

designated beneficiary, with one 

association suggesting that DHS define 

‘‘reasonable steps.’’ The commenters 

concluded that the ‘‘Department must 

establish a clear procedure to provide 

notice to petitioners of what reasonable 

steps must be taken to attempt to 

reimburse the worker or beneficiary 

designee.’’ 

Response: DHS declines to make 

changes based on these comments. 

Although commenters expressed 

concern that a petitioner would most 

likely be required to reimburse a 

beneficiary or designee following the 

end of a petition period, that would 

generally not be true in the case of a 

petition denial. While a revocation 

could take place after the petition 

period, this generally would not occur 

long after the petition period, thus it 

would not be unreasonable to expect a 

petitioner to retain records that would 

allow them to reimburse a beneficiary or 

designee as necessary. DHS expects 

each petitioner to determine its own 

best practices on how to comply with 

this provision. DHS also declines to 

codify an exception to the 

reimbursement requirement for 

‘‘exhaustion of efforts’’ or ‘‘reasonable 

steps’’ to attempt to reimburse the 

worker or beneficiary, as it is not clear 

how such an exception would be 

materially different than the regulations 

that were in effect prior to the effective 

date of this final rule which allowed 

petitioners to satisfy the requirement 

that it reimburse the beneficiary based 

on reasonable efforts to locate the 

beneficiary, including contacting the 

beneficiary’s known addresses. See 

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

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

Comment: A couple of trade 

associations expressed concern that the 

proposed beneficiary designee 

provisions could negatively impact 

enterprises in cases where a beneficiary 

has passed away before appointing a 

designee, in which case the employer 

would be unable to comply with the 

requirement. 

Response: As noted in the preamble to 

the NPRM, upon finalization of this 

provision, DHS expects petitioners to 

inform the beneficiary early in the 

recruitment process of the beneficiary’s 

ability to independently name a 

designee, to obtain full designee 

information, and to maintain and 

update such information as needed to 

ensure that the petitioner has in fact 

complied with the reimbursement 

requirement. 88 FR 65040, 65056 (Sept. 

20, 2023). Taking these measures as a 

matter of best practice will help 

alleviate the risk of the scenario 

envisioned by the commenters. 

p. Successors in Interest 

Comment: A union articulated its 

strong endorsement of the proposal to 

apply the consequences for the 

collection of prohibited fees to 

successors in interest, reasoning that 

this approach, in combination with 

other related prohibited fee provisions, 


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50See, e.g., 20 CFR 655.5, 655.103(b); 29 CFR 

503.4. 

would be an important first step to root 

out abusive farm labor contractors. The 

union mentioned its own experiences 

with H–2A farm labor contractors found 

to have committed extensive violations 

of the H–2A regulations as a result of 

court actions or investigations by 

Federal agencies, but who continue to 

operate, usually with an associate or 

family member becoming the formal 

employer. 

Response: As recognized by the 

commenter, applying the consequences 

for prohibited fees to a petitioner’s 

successor in interest is intended to 

address the issue of petitioning entities 

avoiding liability by changing hands, 

reincorporating, or holding itself out as 

a new entity. 

Comment: A trade association 

expressed concern that, as proposed, the 

provisions precluding a petitioner or 

successor in interest from participation 

in the H–2 programs on the basis of 

prohibited fees would extend to 

‘‘legitimate’’ successors in interest, who 

the commenter said are ‘‘completely 

uninvolved with the underlying 

violation.’’ Providing examples, the 

association wrote that this consequence 

is ‘‘excessive,’’ ‘‘too broad,’’ and ‘‘fails 

to provide any additional protection to 

workers.’’ The association further 

reasoned that the proposed provision 

requires no discretion on DHS’s part 

and that the Department’s enforcement 

authority ‘‘is more than capable’’ of 

undertaking an investigation to 

determine whether a successor in 

interest is a ‘‘reinvented version’’ of its 

predecessor. Finally, the association 

wrote that it is unclear whether other 

petitions of a successor in interest who 

already employed H–2 workers would 

be implicated and expressed concern 

with the harmful consequences of such 

an approach. The association concluded 

that the Department should reject the 

successor in interest provisions 

altogether. 

A professional association wrote that 

the ‘‘overly broad’’ definition of a 

successor in interest, which assigns 

liabilities to new entities that have not 

succeeded to all the rights and liabilities 

of the predecessor entity, could 

negatively impact other visa categories. 

The association expressed concern that, 

should the proposed definition be 

promulgated and subsequently applied 

to other visa categories without 

petitioners’ knowledge or opportunity to 

provide input, the definition could 

violate the Administrative Procedure 

Act (APA). Furthermore, the association 

wrote that imputing liability upon 

purchasing a business defies an 

employers’ free will to engage in 

business transactions, and it unfairly 

assigns liability to employers that did 

not participate in the predecessors’ 

business conduct. The commenter 

concluded that the successor-in-interest 

relationship should apply only when 

the employer that is carrying on the 

business of a previous employer has 

agreed to succeed to all of the rights and 

liabilities of the predecessor entity via a 

written contract. The professional 

association additionally expressed 

concern about what it calls the 

overbroad definition of a successor 

under proposed 8 CFR 

214.2(h)(6)(i)(D)(2) for the purposes of 

applying the 1-year bar on subsequent 

approvals. The association appreciated 

USCIS’ consideration of multiple 

enumerated factors to determine a 

successor in interest but suggested 

additional language ‘‘regarding notice 

and knowledge a successor had or could 

have had regarding a prior 

determination resulting in a 1-year 

ban.’’ 

An attorney wrote that the expansive 

definition of a successor in interest 

‘‘virtually guarantees’’ that an affected 

employer would be unable to sell their 

business, ‘‘even in an arms-length 

transaction.’’ 

Response: DHS declines to make any 

changes as a result of these comments. 

As noted above, applying the 

consequences for prohibited fees to a 

petitioner’s successor in interest is 

intended to address the issue of 

petitioning entities avoiding liability by 

changing hands, reincorporating, or 

holding itself out as a new entity. In 

such cases, the successor in interest may 

be considered a continuation of the 

petitioner and applying the 

consequences to the successor in 

interest would be appropriate. Thus, 

new 8 CFR 214.2(h)(5)(xi)(C)(2) clarifies 

that an entity will only be considered a 

successor in interest where it is 

‘‘controlling and carrying on the 

business of a previous employer.’’ 

Successor liability is a longstanding 

concept and has been applicable to H– 

2 employers since 2008, when DOL 

codified it in H–2A and H–2B 

regulations.50 DHS notes that the 

definition of successor in interest and 

factors listed in new 8 CFR 

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

214.2(h)(6)(i)(D)(2) are substantially 

similar to the definition and factors that 

have been in the DOL H–2 regulations. 

Therefore, the regulation is sufficiently 

clear and is generally familiar to the 

regulated public. 

DHS disagrees with the suggestion 

that the successor in interest provision 

should apply ‘‘only when the employer 

that is carrying on the business of a 

previous employer has agreed to 

succeed to all of the rights and liabilities 

of the predecessor entity via a written 

contract.’’ Adopting such a high 

standard would essentially create an 

easy loophole for a successor entity to 

avoid liability and could defeat the goal 

of preventing petitioners from easily 

avoiding liability simply by entering 

into a formal contract with the 

predecessor entity disclaiming certain 

liabilities. Further, regarding the 

suggestion to include ‘‘notice and 

knowledge a successor had or could 

have had regarding a prior 

determination’’ in the factors, DHS does 

not believe this is necessary. This would 

be too high of a standard and create an 

easy loophole for a successor entity to 

avoid liability by choosing to remain 

ignorant of the previous employer’s 

actions. Again, the provision is intended 

to address situations where a petitioner 

has sought to avoid liability by simply 

changing hands, reincorporating, or 

holding itself out as a new entity. It is 

reasonable to assume that, as part of a 

legitimate arms-length transaction, a 

successor entity would, as a matter of 

course, familiarize itself with applicable 

law, including this rule that might affect 

its rights and obligations. It is further 

reasonable to assume that a successor in 

interest would make inquiries into any 

outstanding liabilities of the predecessor 

entity, and that the predecessor entity 

would make appropriate disclosures. 

Requiring DHS to consider all 

circumstances as a whole will prevent 

the unfair assignment of liability on an 

unrelated entity. In this regard, while an 

entity can be a successor whether or not 

it possesses knowledge of a prior 

determination, the presence of some of 

the factors listed at new 8 CFR 

214.2(h)(5)(xi)(C)(2) and (6)(i)(D)(2) 

indicate that the successor entity had or 

could have had notice and knowledge of 

a prior determination, such as if there 

was similarity of supervisory personnel, 

or the former management or owner 

retains a direct or indirect interest in the 

new enterprise, or familial or close 

personal relationships between 

predecessor and successor owners of the 

entity. 

DHS disagrees with the comment that 

the successor in interest provision 

‘‘requires no exercise of discretion from 

the Department.’’ The regulation 

explicitly states that ‘‘all of the 

circumstances will be considered as a 

whole.’’ This ‘‘totality of the 

circumstances’’ approach necessarily 

involves some level of discretion in 

which DHS must assess the weight to 


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give facts as applied to the regulatory 

factors in order to determine whether an 

employer is a successor in interest. 

Finally, with respect to the concern 

that the definition of a successor in 

interest at new 8 CFR 

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

214.2(h)(6)(i)(D)(2) could ‘‘negatively 

impact other visa categories’’ and 

potentially violate the APA, DHS 

reiterates that this definition is limited 

to the H–2 programs. 

2. Mandatory and Discretionary Denials 

for Past Violations 

a. General 

Comment: A couple of advocacy 

groups and a research organization 

expressed support for the proposed 

provisions, reasoning it would increase 

accountability, curb employer violations 

and abuse, reduce harm faced by 

workers, and level the playing field for 

employers who obey the law. Similarly, 

a union expressed support for the 

proposed provisions, in particular the 

mandatory denials for administrative 

determinations, criminal convictions, or 

civil judgments. A group of Federal 

elected officials wrote that in addition 

to the consequences based on prohibited 

fees, barring employers for other 

violations for several years would put 

an end to illegal employer and recruiter 

practices, as it would no longer be 

cheaper for them to break the law than 

to comply with it. 

Response: DHS agrees that the 

proposed provisions, and the provisions 

as finalized in this rule, are important 

steps to increasing employer 

accountability, curbing employer 

violations and abuse, reducing harm 

faced by workers, and leveling the 

playing field for employers who obey 

the law. DHS also generally agrees that 

these provisions will help put an end to 

illegal and abusive employer and 

recruiter practices, although DHS 

cannot verify the commenter’s assertion 

that it will no longer be cheaper for H– 

2 employers and recruiters to break the 

law than to comply with program 

requirements as the commenter did not 

provide corroborating details or data 

about the costs for compliance versus 

non-compliance. 

Comment: A religious organization 

expressed support for the proposed 

provisions, reasoning that they would 

be important to improve program 

integrity, protect H–2 workers, and deter 

potential petitioners who have 

previously committed labor law 

violations or H–2 program abuse. The 

commenter suggested that DHS consider 

taking additional steps to strengthen 

these provisions by referencing U and T 

visa grants when considering whether 

an employer should be barred, adding 

that these visa applications may lead to 

investigations but not prosecutions for 

fraud, but that they should be 

considered against an employer’s 

participation in the H–2 program. 

Response: DHS agrees that the 

provisions are an important step to 

encourage employers to comply with all 

applicable H–2 requirements, improve 

program integrity, and deter employers 

from engaging in labor law violations 

and abuse of the H–2 program. 

However, DHS declines to expand the 

mandatory and discretionary denial 

provisions to include consideration of 

grants of U and T nonimmigrant status 

visas that were based on investigations 

into H–2 employers. Information 

relating to noncitizens who are applying 

for or have been granted U or T 

nonimmigrant status visas is subject to 

strict confidentiality protections that 

would generally preclude DHS from 

disclosing such information to an H–2 

petitioner. See 8 U.S.C. 1367(a)(2). 

Further, an investigation into fraud, 

standing alone, would not trigger the 

new mandatory and discretionary denial 

provisions because an investigation by 

itself would not constitute a ‘‘final’’ 

determination as required under new 8 

CFR 214.2(h)(10)(iv). 

Comment: Several commenters, 

including a professional association, 

stated that the provisions that would 

allow for the denial of H–2 petitions for 

employers that have been found to have 

committed labor law violations or other 

violations of H–2 program regulations 

were ‘‘overly broad and vague.’’ Some of 

these commenters stated that the 

provision was vague and did not 

provide the public with the ability to 

evaluate and comment on what would 

result in a denial or the standards 

against which an employer’s conduct 

would be measured. A few individual 

commenters stated that the proposed 

rule would grant DHS the authority to 

deny and revoke H–2 petitions based on 

‘‘arbitrary, undefined standards’’ such 

as perceived labor violations or an 

employer’s lack of cooperation with an 

agency. The commenters asked whether 

an incorrect pay stub would be grounds 

for denial or revocation of a petition 

under the proposed rule. As a result, 

these commenters urged the department 

to reconsider its implementation of the 

proposed section. 

Similarly, a couple of trade 

associations provided an example of an 

inspector entering the employer’s 

worker housing and seeing that workers 

had removed a battery from a smoke 

detector to stop it from going off during 

meal preparation. The commenters 

questioned whether this violation 

would be subject to a mandatory or 

discretionary denial. Additionally, 

while discussing the recently issued 

DOL ‘‘Adverse Effect Wage Rate’’ 

regulation, the commenters expressed 

concern that violations under that 

regulation would subject the petitioner 

to mandatory or discretionary denials. 

Response: DHS disagrees that the 

provision is overly broad or vague. 

Rather, the mandatory grounds for 

denial in new 8 CFR 214.2(h)(10)(iv)(A) 

are specific and focused on violations 

that show a petitioner’s past inability to 

abide by the requirements of the H–2 

programs and, that due to their severity, 

are alone sufficient to conclude that the 

petitioner lacks the requisite intent and 

ability to comply with the requirements 

of the H–2 programs in the future. 

Likewise, the discretionary grounds for 

denial discussed in new 8 CFR 

214.2(h)(10)(iv)(B) enumerate specific 

violations pertaining to the petitioner’s 

compliance with immigration and 

employment laws. Because these still 

very serious violations could potentially 

be less egregious in nature or less 

directly related to the H–2 programs 

than the mandatory grounds, DHS 

recognizes that this would require 

additional analysis before determining 

whether application of one of the 

discretionary grounds is warranted. 

In addition to delineating the 

applicable violations that could give rise 

to a discretionary denial, the proposed 

rule also provided detailed information 

on how USCIS will examine the 

applicable violations to determine 

whether a denial should apply. As 

described in the proposed rule, specific 

considerations include: the recency and 

number of violations; 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; overall history or pattern of 

prior violations; the severity or 

monetary amount of any penalties 

imposed; whether the final 

determination, decision, or conviction 

included a finding of willfulness; 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; timely 

compliance with all penalties and 

remedies ordered under the final 

determination(s), decision(s), or 

conviction(s); and other corrective 

actions taken by the petitioner or its 

successor in interest to cure its 

violation(s) or prevent future violations. 

See 88 FR 65040, 65106 (Sept. 20, 2023). 

With respect to the specific examples 

raised by commenters, DHS notes that 

the mandatory grounds for denial only 


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51USCIS, ‘‘H–2A Temporary Agricultural 

Workers’’ (stating ‘‘USCIS provides expedited 

processing of Form I–129 for H–2A petitions’’), 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-2a-temporary-agriculturalworkers (last updated Sept. 11, 2024). 

52Form I–907, ‘‘Request for Premium Processing 

Service,’’ https://www.uscis.gov/i-907 (last updated 

June 3, 2024). 

53 DOL, OFLC, ‘‘Foreign Labor Recruiter List,’’ 

https://www.dol.gov/agencies/eta/foreign-labor/ 

recruiter-list. This DOL-published list is specific to 

the H–2B program. 

apply in three limited circumstances: (1) 

when there is a final debarment 

determination by DOL or GDOL; (2) 

where there is a final USCIS denial or 

revocation decision issued during the 

pendency of the petition or within 3 

years prior to filing the petition that 

included a finding of fraud or willful 

misrepresentation of a material fact with 

respect to a prior H–2A or H–2B 

petition; and (3) when there is a final 

determination of violation(s) under 

section 274(a) of the Act during the 

pendency of the petition or within 3 

years prior to filing the petition. With 

respect to discretionary denials, DHS 

declines to state in absolute terms 

whether the violations in those 

examples would or would not trigger a 

discretionary denial. Providing specific 

examples is not advisable because 

USCIS will evaluate each violation 

together with all the other relevant 

factors on a case-by-case basis. By 

including a very broad scope for the 

types of violation determinations that 

may lead to a discretionary denial under 

8 CFR 214.2(h)(10)(iv)(B) generally and 

the catch-all provision under 8 CFR 

214.2(h)(10)(iv)(B)(3) specifically, DHS 

recognizes that the violations 

underlying these determinations can 

vary widely in nature and severity. 

Comment: Several commenters 

expressed concerns about the impact of 

petition adjudication delays as a result 

of these provisions, noting that these 

provisions will result in an increase in 

RFEs, denials, and appeals which could 

take several weeks to resolve. For 

example, a couple of trade associations 

expressed concern that the proposed 

section did not consider the timesensitive nature of H–2 petitions, stating 

that refusing to process an employer’s 

petition serves as an ‘‘effective 

debarment from the program for at least 

a year.’’ The commenters added that 

because the current appeal process is 

‘‘slow,’’ a denial or a refusal to process 

a petition prevents an employer from 

obtaining an approved petition 

regardless of whether an appeal is 

successful. Another commenter noted 

that the time needed to resolve these 

requests for evidence is ‘‘time that 

petitioners do not have in seeking their 

critical workforce for jobs related to 

perishable commodities.’’ Some 

commenters urged DHS to guarantee 

‘‘expeditious timelines’’ of these 

adjudications. Another commenter 

urged DHS to consider ‘‘the opportunity 

for an expedited appeal process.’’ 

Response: DHS understands that H–2 

petitions are time sensitive and strives 

to adjudicate each H–2 petition in a 

timely manner. However, DHS will not 

‘‘guarantee expeditious timelines during 

periods of alleged consequences’’ nor 

create a new ‘‘expedited appeal 

process’’ as suggested by some 

commenters. DHS already provides 

expedited processing of Form I–129 for 

H–2A petitioners without requiring an 

additional fee.51 This final rule does not 

change this practice. If an H–2B 

petitioner seeks expedited processing of 

their H–2B petition, they may file Form 

I–907, Request for Premium Processing 

Service, with fee, with USCIS.52

With respect to comments about DHS 

‘‘refusing to process an employer’s 

petition,’’ the commenters appear 

mistaken as to what was proposed. DHS 

is not refusing to process an employer’s 

petition but rather finding that prior 

violations can be so significant as to 

indicate the petitioner’s inability and 

lack of intent to comply with the 

requirements of the H–2 programs, such 

that denial of the petition is warranted 

under either the mandatory or 

discretionary provisions. DHS will not 

neglect to process the petition but will 

rather take adjudicative action 

consistent with the new regulations. 

Regarding the appeal process, DHS 

understands that the seasonal nature of 

some H–2 petitions could be impacted 

by appeals processing timelines. 

However, that is not unique to or caused 

by these provisions. This is something 

faced by any petitioner who fails to 

demonstrate eligibility for the benefit 

sought such that their petition is denied 

or revoked by USCIS. 

Comment: While voicing concerns 

that the proposed rule does not address 

abuse by recruiters and preparers, an 

individual commenter stated that the 

regulations should specify clearly how 

recruiters and preparers can be 

‘‘debarred,’’ reasoning that it is often 

recruiters or preparers, not employers, 

who collect prohibited fees. The 

commenter also encouraged USCIS to 

specify that a failure to list a recruiter 

when one has been used can be 

considered a ‘‘material 

misrepresentation’’ for purposes of the 

mandatory and discretionary grounds 

for denial. Additionally, the commenter 

suggested that the prior use of 

prohibited recruiters or preparers could 

serve as a discretionary basis for 

precluding approval of an employer’s 

petition. 

Response: DHS appreciates the 

opportunity to clarify that new 8 CFR 

214.2(h)(10)(iv) does not create a 

‘‘debarment’’ process for recruiters, nor 

does it create any type of official registry 

or list of recruiters who may participate 

in the H–2 programs. Recruiters do not 

register or directly file for benefits with 

DHS. DHS currently has no existing 

framework to exclude or identify a 

recruiter as ‘‘prohibited’’ from the H–2 

program in a registry or similar list, and 

creating such a framework is outside the 

scope of this rule. While DOL’s Office 

of Foreign Labor Certification (OFLC) 

currently publishes an H–2B ‘‘Foreign 

Labor Recruiter List,’’ which includes 

the name and location of persons or 

entities identified on the TLC as an 

agent or recruiter, DOL clearly states 

that it ‘‘does not endorse any foreign 

labor agent or recruiter included in the 

Foreign Labor Recruiter List, nor does 

inclusion on this list signify that the 

recruiter is in compliance with the H– 

2B program.’’53 Without a mechanism 

for a petitioner to identify a specific 

recruiter as ‘‘prohibited,’’ DHS currently 

lacks the means to implement the 

commenter’s suggestion to codify the 

prior use of a ‘‘prohibited’’ recruiter as 

part of new 8 CFR 214.2(h)(10)(iv). 

Notwithstanding the above, if a 

petitioner fails to disclose on the H–2 

petition that it has used a recruiter to 

locate and/or recruit the intended 

beneficiaries, USCIS may consider this 

to be a material misrepresentation or 

omission, depending on the 

circumstances. With this final rule, the 

Form I–129 is being revised to ask H– 

2 petitioners whether they used or plan 

to use an agent, facilitator, recruiter, or 

similar employment service to locate 

and/or recruit the H–2A/H–2B workers 

that they intend to hire by filing the 

petition. The Form I–129 is also being 

revised to ask H–2 petitioners to provide 

the name(s) and address(es) of all such 

persons and entities regardless of 

whether the petitioner has a direct or 

indirect contractual relationship with 

them, and regardless of whether such 

person or entity is located inside or 

outside the United States or is a 

governmental or quasi-governmental 

entity. If the petitioner used a recruiter 

prior to submitting the Form I–129, but 

did not disclose that information on the 

petition, or gave false information about 

the recruiter they used on the Form I– 

129, USCIS may deny or revoke the 

petition on the basis that the statements 

on the petition misrepresented or 


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54 DOL, ‘‘Program Debarments,’’ https://

www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/

Debarment_List.pdf. 55EOIR, ‘‘List of Currently Disciplined 

Practitioners,’’ https://www.justice.gov/eoir/list-ofcurrently-disciplined-practitioners (last updated 

June 13, 2024). 56As noted above, however, it remains the 

responsibility of the employer to continually 

exercise ongoing efforts to ensure against payment 

of prohibited fees, and an employer’s engaging a 

recruiter or similar service that has previously 

collected such fees could be a factor that DHS 

would consider in determining whether the 

employer is subject to the discretionary denial 

provisions. 

57See also Michael Asimow, Admin. Conference 

of the U.S., ‘‘Federal Administrative Adjudication 

Outside the Administrative Procedure Act’’ (2019) 

(discussing informal adjudication), https://

www.acus.gov/sites/default/files/documents/

Federal%20Administrative%20Adj%20Outside

%20the%20APA%20-%20Final.pdf. 

58The 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). 

59See INS Gen. Counsel, GenCo Op. No. 91–23, 

Determination of Date of Final Decision in Denied 

Cases, 1991 WL 1185134 (Feb. 21, 1991). 

60See Dominion Energy Brayton Point, LLC v. 

Johnson, 443 F.3d 12, 17 (1st Cir. 2006) (finding 

that the prior court’s decision that there is a 

presumption in the APA for an evidentiary hearing 

was created because of an absence of congressional 

intent and that basing a statutory interpretation on 

a negative finding is ‘‘antithetic to a conclusion that 

Congress’s intent was clear and unambiguous’’); 

Accrediting Council for Indep. Colleges & Schs. v. 

DeVos, 303 F. Supp. 3d 77, 110 n.11 (D.D.C. 2018) 

(concluding that the phrase ‘‘after notice and 

opportunity for a hearing’’ in a statute does not 

trigger APA requirement for formal adjudication). 

omitted a material fact under existing 8 

CFR 214.2(h)(10)(ii) or (11)(iii)(A)(2), 

respectively. In turn, this may trigger a 

discretionary denial under new 8 CFR 

214.2(h)(10)(iv)(B)(2) or new 8 CFR 

214.2(h)(10)(iv)(A)(2). As new 8 CFR 

214.2(h)(10)(iv) already gives USCIS the 

ability to consider the failure to disclose 

a used recruiter on an H–2 petition, 

DHS declines to specifically codify 

language about a prior recruiter in new 

8 CFR 214.2(h)(10)(iv). 

With respect to the comments about 

debarred agents and preparers, DOL 

currently publishes a list of agents and 

attorneys who are debarred from the H– 

2A and H–2B labor certification 

programs.54 Also, the Department of 

Justice’s (DOJ) Executive Office for 

Immigration Review (EOIR) maintains a 

List of Currently Disciplined 

Practitioners who are not authorized to 

practice before DHS, the Board, and the 

Immigration Courts.55 If USCIS 

discovers that an H–2 petition was filed 

by or associated with a debarred agent 

or attorney, depending on the 

circumstances, USCIS may consider this 

information in determining the 

credibility of the overall petition. 

However, DHS also recognizes that each 

petition must be adjudicated on its own 

merits, and in the absence of other 

factors indicating that the petition is not 

approvable, an agent or attorney’s 

debarment may not have an impact on 

the eligibility of the petition, as the 

agent or attorney’s debarment may have 

nothing to do with the petitioner or the 

underlying reason for the prior 

debarment may no longer be at issue. 

Therefore, DHS declines the 

commenter’s suggestion to codify the 

prior use of a debarred preparer as a 

factor for discretionary denial in new 8 

CFR 214.2(h)(10)(iv).56

Comment: An individual commenter 

expressed concern that this section 

would result in the ‘‘debarment’’ of 

employers without a hearing. The 

commenter added that case law requires 

hearings for ‘‘debarment.’’ The 

commenter stated that Congress requires 

a hearing, willfulness, and 

substantiality, all of which DOL has 

recognized but this NPRM specifically 

denies. 

Response: DHS disagrees with the 

commenter’s assertion that the 

provisions in this rule result in 

‘‘debarment’’ of employers without a 

hearing. USCIS provides petitioners 

with an opportunity to challenge the 

denial of their petitions pursuant to 8 

CFR part 103, including the ability to 

bring their case before USCIS’ 

Administrative Appeals Office (AAO) 

and request oral argument to present 

their case. Specifically, USCIS will be 

using its existing adjudications and 

appeals processes to satisfy this ‘‘notice 

and opportunity for a hearing’’ 

requirement. See 8 CFR 103.2, 103.3; 88 

FR 65040, 65057 (Sept. 20, 2023).57

Each denial determination in new 8 CFR 

214.2(h)(10)(iv) would take place within 

a nonimmigrant petition adjudication, 

and as a result would provide ‘‘notice 

and opportunity for a hearing’’ within 

that informal framework. See 8 CFR 

103.2, 103.3. To issue a USCIS denial 

under new 8 CFR 214.2(h)(10)(iv), an 

Immigration Services Officer (ISO) 

would generally issue a NOID or RFE to 

the petitioner, providing up to 12 weeks 

to file a response. 8 CFR 103.2(b)(8). 

Upon considering the petitioner’s 

response and any rebuttal evidence, the 

ISO could deny the petition in a written 

decision that would explain the specific 

grounds for the denial. 8 CFR 

103.3(a)(1)(i). With respect to mandatory 

grounds for denial in new 8 CFR 

214.2.(h)(10)(iv)(A), the notice would 

inform the petitioner of their right to 

appeal, and indicate that the denial is 

based upon a mandatory ground for 

denial and that the petitioner’s pending 

and subsequently filed petitions would 

also be subject to denial based on the 

same ground, during the applicable 

period. New 8 CFR 

214.2.(h)(10)(iv)(E)(1). With respect to 

the discretionary grounds for denial, the 

notice would inform the petitioner that 

the discretionary ground may also apply 

in the adjudication of any pending or 

future-filed petitions during the 

applicable time period. New 8 CFR 

214.2.(h)(10)(iv)(E)(2). If the petitioner 

refiles during the discretionary denial 

period, they will have the opportunity 

to establish that they have the ability 

and intent to comply, notwithstanding a 

prior denial. As with a denial notice 

issued under new 8 CFR 

214.2.(h)(10)(iv)(E)(1), a denial notice 

issued under new 8 CFR 

214.2.(h)(10)(iv)(E)(2) would also inform 

the petitioner of the right to appeal the 

denial, which may include a request for 

oral argument, pursuant to 8 CFR 

103.3.58 Upon issuance of the decision, 

the petitioner would have 30 days (plus 

applicable mailing time) to appeal the 

denial of the petition to the 

Administrative Appeals Office (AAO). 8 

CFR 103.3(a)(2)(i) and 8 CFR 103.8(b). In 

support of an appeal, the petitioner may 

submit a brief, additional evidence, and 

a request for oral argument before the 

AAO. See generally 8 CFR 103.3.59

Thus, this final rule provides sufficient 

procedural safeguards to ensure a fair 

and reliable proceeding to ensure that a 

petitioner has notice and opportunity 

for a hearing. 

DHS notes, in response to the 

comment regarding the statute’s use of 

the term ‘‘notice and opportunity for 

hearing,’’ that INA section 

214(c)(14)(A)(ii) does not require, in the 

event of a denied H–2B petition and/or 

appeal of a denied H–2B petition, a 

formal hearing under 5 U.S.C. 554 or 

556. Rather, DHS’s existing 

adjudications and appeals processes, 

described above, satisfy the ‘‘notice and 

opportunity for a hearing’’ requirement. 

In this regard, DHS notes that the plain 

language of INA section 214(c)(14) does 

not require an ‘‘on the record’’ hearing 

or otherwise indicate that Congress 

expected an adversarial, trial-type 

hearing referenced in 5 U.S.C. 554(a) 

and 556. Statutes calling for a 

‘‘hearing,’’ a ‘‘public hearing,’’ or an 

‘‘appeal,’’ without using the words ‘‘on 

the record,’’ are implicit delegations to 

the agency to determine the meaning of 

those terms, and DHS has determined 

that ‘‘notice and an opportunity for a 

hearing’’ does not require a hearing on 

the record.60

Finally, with regard to the 

commenter’s statement regarding 

willfulness and substantiality, as 

explained in an earlier comment 


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response, each of the violations 

triggering new denial periods in this 

final rule, as applied to H–2B petitions, 

stems from a willful failure to comply 

with program requirements or a willful 

misrepresentation of material fact. 

Accordingly, the provisions are 

consistent with INA section 214(c)(14), 

as well as INA sections 103(a), 214(a)(1), 

and 214(c)(1). 

b. Discretionary and Mandatory Denials 

Related to Other Agencies’ 

Determinations 

Comment: Several commenters 

expressed concerns with DHS’s legal 

authority to deny an H–2 petition based 

on the findings of another agency. For 

example, a couple of trade associations 

stated that the proposal to deny a 

petition based upon the finding of 

another agency was ‘‘misguided’’ and 

lacked statutory authority. Some 

commenters suggested that the 

Department rework the proposed rule to 

ensure it is not interpreting and 

enforcing DOL regulations, adding that 

it would potentially be ‘‘arbitrary and 

capricious’’ of DHS to do so. A trade 

association expressed concern that 

USCIS officers are not experts in labor 

law or regulations and that the analysis 

required under this section would 

require these officers to make individual 

judgments about the underlying 

decision and merit of a claim, resulting 

in an interpretation that would be 

arbitrary and capricious. A different 

trade association suggested that DHS 

ensure that its employees are not 

overreaching and attempting to 

‘‘supplant the regulatory authority’’ of 

other government authorities. A 

professional association similarly 

expressed concern that ‘‘DHS is also 

playing enforcer of other agency laws 

and rules when, in fact, those other 

agencies should be enforcing their own 

standards.’’ 

Some commenters said that if another 

Department, such as DOL, investigates 

an employer, determines a violation 

occurred, and imposes a penalty, DHS 

lacks the legal authority to impose an 

additional penalty on the employer in 

the form of what it describes as the 

discretionary or mandatory bar to 

approval. A couple of trade associations 

stated that the proposal to deny 

petitions of petitioners on the basis that 

they paid civil money penalties to 

another agency for a violation lacked a 

statutory basis, as the Department 

cannot penalize an employer for a 

violation that has already been resolved. 

The commenters added that employers 

typically pay fines for alleged minor 

violations because it is cheaper than 

challenging the violations, but that the 

proposal would cause employers to 

potentially face debarment as a result of 

this practice. 

A trade association wrote that in 

situations where other agencies have 

determined that debarment is not 

necessary, the Department should factor 

in those agencies’ decisions when 

deciding whether to deny a petition. 

Similarly, another trade association 

stated that when other agencies have 

decided a violation does not warrant 

debarment, DHS ‘‘has no basis to refuse 

to approve a petition and thereby 

effectively impose a debarment 

penalty.’’ 

A research organization expressed 

opposition to the section, saying it was 

unreasonable of DHS to second-guess a 

DOL determination that debarment was 

not necessary for a violation. The 

research organization said DOL’s labor 

certification stage, rather than the 

petition stage, was the correct place to 

enforce program requirements because it 

is earlier in the process and DOL is 

more accustomed to violation 

evaluations. The organization also urged 

DHS to extend the deference it has made 

to its own past determinations to the 

determinations of other agencies, 

including DOL. The commenter stated 

that this provision is ‘‘unnecessary or 

duplicative of DOL regulations or 

proposed regulations.’’ 

Several trade associations and a 

couple of advocacy groups expressed 

concern with the Department’s proposal 

to deny petitions from employers who 

have been subject to an administrative 

action by DOL’s WHD or other Federal, 

State, or local agency that did not 

require debarment. The commenters 

reasoned that if an agency’s 

investigation determined that 

debarment was not necessary, then the 

Department should not deny an 

employer’s petition, as it would 

effectively debar them from H–2 

programs. Similarly, a trade association 

stated that DHS should honor the 

outcome of an investigation and 

administrative action by WHD. The 

commenter added that the provision 

allowing for an additional investigation 

following WHD’s initial actions would 

create unnecessary expenses for 

employers. 

Response: DHS disagrees with 

commenters’ claims that it lacks 

statutory authority to consider findings 

of violations made by other agencies 

when determining whether to deny an 

H–2 petition. DHS also disagrees with 

the comments about it supplanting other 

agencies’ authority, seeking to enforce 

or interpret other agencies’ laws, and 

purporting to be an expert in other 

agencies’ laws. As discussed in the 

proposed rule, as well as elsewhere in 

this final rule, DHS has broad authority 

to deny petitions requesting H–2 

workers pursuant to its general 

authority under INA secs. 103(a)(1) and 

(3), and 214(a)(1) and (c)(1), as well as 

its specific authority under INA sec. 

214(c)(14)(A)(ii). See 88 FR 65040, 

65056 (Sept. 20, 2023). Neither the 

general nor the specific authority 

Congress delegated to DHS to 

administer immigration laws and 

approve or deny status to an H–2 worker 

upon petition by the importing 

employer, including authority to 

establish the information required on 

the petition, preclude DHS, or limit its 

authority, from denying H–2 petitions 

based on the final determinations of 

serious violations made by DOL or other 

agencies. As discussed in response to 

public comments in part IV.C.1, where 

the facts warrant, DHS has the authority 

to deny H–2 petitions in the manner 

provided in this rule. Implicit in these 

delegations is the obligation that DHS 

ensure the integrity of H–2 programs. 

In carrying out its authority and 

responsibility to promulgate regulations 

under the above-referenced statutory 

provisions, DHS has determined that 

there are instances where the violations 

are so severe or egregious, and so related 

to the question whether the petitioner 

has the ability and intent to comply 

with the H–2 program requirements so 

as to preclude approval of a petition for 

a specific period. Accordingly, reading 

DHS’ statutory authorities as including 

the authority to promulgate regulatory 

provisions mandating the denial of H– 

2 petitions based on final 

determinations of egregious violations 

made by DOL, other agencies, as well as 

U.S. courts in the case of criminal 

convictions, is the best reading of DHS’s 

broad statutory authority and 

responsibility to administer and ensure 

the integrity of the H–2 program. 

Similarly, the statute is best understood 

as authorizing DHS to consider final 

determinations of lesser violations on a 

discretionary basis, along with all 

aggravating or mitigating factors, 

relating to whether a petitioner has the 

intent and ability to comply with the H– 

2 program requirements. These 

comments seem to be based on a 

misunderstanding of the nature and 

purpose of DHS’s consideration of other 

agencies’ findings. In considering 

violations found by other agencies, DHS 

is not re-adjudicating the merits of those 

findings. Rather, DHS’s analysis is 

limited to whether those violations, 

along with all relevant factors, indicate 

to DHS that the petitioner is unwilling 

or unable to comply with the 


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requirements of the H–2A or H–2B 

program, which is squarely within the 

scope of DHS’s authority. 

DHS is not proposing to ‘‘secondguess’’ the determination of the other 

agencies. Rather, DHS is deferring to 

their expertise to determine if a 

violation under their authority has 

occurred. If another agency or a court 

has determined that one or more of the 

violations listed in new 8 CFR 

214.2(h)(10)(iv)(B) has occurred, USCIS 

will then consider that finding of 

violation in relation to USCIS’ authority 

in the H–2 program to determine 

whether, in USCIS’ discretion, the 

violation is significant enough and so 

related to the H–2 program that it 

undermines the petitioner’s claim of 

intent and ability to comply with H–2 

program requirements. USCIS may also 

consider the violation in assessing the 

overall credibility of the petitioner’s 

statements in the petition. Although 

another agency such as DOL may 

investigate a violation and determine 

that that specific violation does not 

warrant debarment, USCIS may still 

consider the violation in the larger 

context of the petitioner’s recent 

actions. Further, USCIS’ focus is not just 

on how the violation relates to the 

petitioner’s claim of intent and ability to 

comply with H–2 program requirements 

but also encompasses other information 

that could not be or was not considered 

in the other agency’s proceedings, such 

as prior misrepresentations in the H–2 

petition context or lack of corrective 

action. As is made clear by the 

regulatory text at new 8 CFR 

214.2(h)(10)(iv)(C), USCIS will look at 

the totality of the petitioner’s 

circumstances, not just the facts 

concerning a violation in isolation. 

While USCIS officers will evaluate 

whether the petitioner, more likely than 

not, will comply with H–2 

requirements, USCIS officers will not 

revisit the merits of the underlying final 

administrative or judicial determination 

against the petitioner. 

Similarly, USCIS would not revisit or 

re-adjudicate a final determination by 

another agency or a court that one or 

more violations listed under new 8 CFR 

214.2(h)(10)(iv)(A)(1) or (3) had 

occurred. Rather, USCIS would 

determine whether the final 

determination was made against the 

petitioner or its successor in interest, 

and whether it was made during the 

relevant period. As explained in the 

NPRM, ‘‘[t]he violation findings set 

forth in proposed 8 CFR 

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

egregious and directly connected to the 

H–2 programs that they warrant 

mandatory denial.’’ 88 FR 65040, 65057 

(Sept. 20, 2023). 

Comment: Some commenters 

expressed procedural concerns with 

giving USCIS the ability to issue a 

discretionary denial based on the 

findings of another agency. A 

commenter said the section fails to 

provide a method for adequate due 

process, including for petitioners to 

offer evidence about the claim. Another 

trade association expressed concern that 

by barring petitioners or successors in 

interests from the program as a result of 

a violation adjudicated by other 

agencies, the proposal would ignore due 

process mechanisms set in place to 

protect regulated entities. 

A professional association said that 

giving USCIS ‘‘discretion to deny an 

employer from filing an H–2 petition 

based on the findings of another agency 

makes it almost impossible for 

employers to defend themselves’’ and is 

violative of employers’ due process 

rights. The commenter further stated 

that the ability of USCIS to issue a 

discretionary denial when USCIS had 

not been party to the proceedings 

finding violations is arbitrary and 

unfair. Moreover, the commenter said 

that the proposed rule does not include 

a provision allowing employers to make 

corrections for future petitions after a 

denial or debarment, thus denying the 

employer its right to ‘‘establish its 

intention or ability to comply’’ with 

program requirements under proposed 8 

CFR 214.2(h)(10)(iv)(B). The commenter 

concluded that USCIS should not be 

able to issue a discretionary denial 

under 8 CFR 214.2(h)(10)(iv)(C), but if 

DHS insists on maintaining the language 

in the final rule, USCIS should consider 

‘‘all relevant factors’’ when making 

determinations and have a thorough 

review process. 

Response: DHS disagrees with these 

comments. Again, it appears that the 

commenters misunderstand the nature 

and purpose of USCIS’ consideration of 

other agencies’ findings. Within the 

context of the H–2 petition adjudication, 

there is no need for USCIS to provide 

the petitioner with an opportunity to 

offer evidence to dispute or ‘‘defend 

themselves’’ against the merits of the 

underlying violation because USCIS 

will not re-adjudicate the underlying 

violation. It is reasonable to assume 

that, if the petitioner had wanted to 

dispute or defend themselves against 

the merits of the underlying violation, 

they would have done so during the 

proceedings leading to the final 

determination of the violation and 

would not raise these matters for the 

first time during the H–2 petition 

process. It is also reasonable to assume 

that the other agency afforded the 

petitioner adequate due process during 

the proceedings leading to the final 

determination of the violation and that 

the petitioner would have raised any 

such matters during those prior 

proceedings before the relevant 

administrative or judicial entity issued 

its final determination. 

USCIS will comply with all 

procedural safeguards outlined in 8 CFR 

103.2(b), including generally providing 

the petitioner an opportunity to respond 

to derogatory information pursuant to 8 

CFR 103.2(b)(16)(i). Thus, before 

denying a petition under the new 

mandatory or discretionary ground at 

new 8 CFR 214.2(h)(10)(iv), USCIS 

generally will first issue a request for 

evidence or NOID the petition and 

provide an opportunity for the 

petitioner to respond. Further, upon a 

determination that one of the mandatory 

or discretionary grounds at new 8 CFR 

214.2(h)(10)(iv) warranted a denial of 

the petition, USCIS will issue a denial 

notice informing the petitioner of the 

right to appeal the denial to USCIS’ 

AAO, including the ability to request an 

oral argument. See new 8 CFR 

214.2(h)(10)(iv)(E)(1)–(2). The 

commenters did not explain what part 

of these procedures they believe will 

violate their due process rights. 

Also, the commenters did not explain 

what they meant by ‘‘including a 

provision allowing employers to make 

corrections for future petitions after a 

denial or debarment’’ for purposes of 

the new discretionary bar. If a petitioner 

took corrective actions subsequent to a 

denial under new 8 CFR 

214.2(h)(10)(iv)(B), that petitioner may 

file a new H–2 petition requesting 

USCIS to consider those corrective 

actions as positive factors that 

demonstrate its intent and ability to 

comply with H–2 program 

requirements. Under new 8 CFR 

214.2(h)(10)(iv)(B)(7)–(8), USCIS 

specifically factors in whether the 

petitioner has made ‘‘timely compliance 

with all penalties and remedies ordered 

under the final determination(s), 

decision(s), or conviction(s)’’ and ‘‘other 

corrective actions taken by the 

petitioner or its successor in interest to 

cure its violation(s) or prevent future 

violations.’’ DHS reaffirms that, under 

new 8 CFR 214.2(h)(10)(iv)(B), USCIS 

will consider all relevant factors and 

have a thorough review process when 

making determinations. Further, new 8 

CFR 214.2(h)(10)(iv)(E)(2) specifies that, 

with respect to denials under the 

discretionary ground, the denial notice 

will indicate that the discretionary 

ground of denial ‘‘may also apply in the 

adjudication of any other pending or 


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61As explained in the NPRM, a ‘‘final’’ USCIS 

decision means that there is no pending 

administrative appeal or the time for filing a timely 

administrative appeal has elapsed. 88 FR 65040, 

65058 (Sept. 20, 2023). 

62As proposed and finalized, 8 CFR 

214.2(h)(10)(iii)(B)(1) and (3) already contains the 

word ‘‘final.’’ 

63For instance, H–2 petitions filed prior to the 

effective date of this rule, or with a debarment 

period beginning prior to the effective date, may 

still be denied under 8 CFR 214.1(k). In addition, 

USCIS may deny an H–2 petition under 214.1(k) 

when the petitioner has been debarred by DOL from 

a non-H–2 program, whereas new 8 CFR 

214.2(h)(10)(iii)(A)(1) does not extend to the denial 

of an H–2 petition in such a case. 

future H–2 petition filed by the 

petitioner or a successor in interest 

during the applicable time period.’’ New 

8 CFR 214.2(h)(10)(iv)(E)(2) does not, 

however, state that the discretionary 

ground of denial ‘‘will’’ apply to any 

other pending or future H–2 petitions 

filed by the petitioner or a successor in 

interest during the applicable time 

period. 

Comment: Some commenters 

expressed concern that the proposal 

does not include details of how 

violations adjudicated by other agencies 

would be communicated to or verified 

by the Department. 

Response: Revisions to the Form I– 

129 associated with this final rule 

require the petitioner to answer 

questions regarding serious labor law 

violations or other violations. If the 

petitioner answers ‘‘yes’’ to these 

questions, they must submit a complete 

copy of the final administrative or 

judicial determination with the Form I– 

129. Once USCIS reviews a copy of the 

final administrative or judicial 

determination, USCIS will rely on those 

findings and will not re-adjudicate such 

final determination. 

Note that in some instances, such as 

a DOL debarment or an INA sec. 274(a) 

violation, DOL or other Federal agencies 

will provide documentation of the 

violation directly to USCIS. In other 

instances, USCIS may come across 

information from another source (for 

example, open sources like a press 

release or a newspaper article, a tip 

submitted to the ICE online tip form, or 

an administrative site visit information) 

suggesting the petitioner was found to 

have committed a relevant violation. In 

those cases, USCIS may request 

evidence of the final administrative or 

judicial determination (for example, a 

certified court disposition) from the 

petitioner if it has not already been 

submitted with the Form I–129. In all 

cases, however, it remains the 

petitioner’s burden to truthfully answer 

all the questions on Form I–129 and 

submit all required evidence. By signing 

the Form I–129, the petitioner (and any 

employer and joint employer, as 

applicable) certifies, under penalty of 

perjury, that it has reviewed the petition 

and that all the information contained 

on the petition, and in the supporting 

documents, is complete, true, and 

correct. 

Comment: Some commenters 

expressed concern that imposing the 

mandatory or discretionary bar based 

upon a debarment action that is not 

final and the employer did not have an 

opportunity to appeal is a denial of due 

process. Without providing specific 

examples, the commenter claimed to be 

aware of ‘‘several recent cases’’ where 

DOL initiated a process of debarment, 

and where USCIS refused to approve an 

employer’s petition despite the DOL 

adjudication not being finalized. 

Response: The proposed rule 

preamble and regulatory text make clear 

that the mandatory grounds for denial at 

8 CFR 214.2(h)(10)(iv)(A) are applied 

only to determinations or findings that 

are final. Specifically, each violation 

listed in 8 CFR 214.2(h)(10)(iv)(A), as 

proposed and finalized, includes the 

word ‘‘final’’ when discussing the 

nature of the findings that will trigger 

the mandatory ground for denial.61

Additionally, DHS’s intent was to 

propose that all of the discretionary 

triggering events would also be final 

determinations. However, based on the 

comments received, the regulatory text 

could be made clearer in this regard. As 

such, DHS is adding the word ‘‘final’’ to 

new 8 CFR 214.2(h)(10)(iv)(B)(2) so that 

it is clear that all violations listed under 

8 CFR 214.2(h)(10)(iv)(B) refer to a final 

determination.62 Regarding the 

commenter’s unsubstantiated claim of 

the impact of pending debarment under 

the current regulations, DHS cannot 

respond because the commenter did not 

provide any specific information about 

this claim. However, as noted above, the 

mandatory and discretionary denial 

provisions under the new regulations 

are triggered only by a final 

determination from DOL to debar a 

petitioner. 

Comment: A few trade associations 

requested clarification of the interplay 

between new 8 CFR 214.2(h)(10)(iv) and 

8 CFR 214.1(k). Specifically, these 

commenters requested DHS to clarify 

whether 8 CFR 214.1(k) would apply, or 

if new 8 CFR 214.2(h)(10)(iv) would 

result in a ‘‘one-time denial or 

revocation.’’ 

Response: As stated in the NPRM, 

DHS is retaining the provision at 8 CFR 

214.1(k) and believes the addition of 

new 8 CFR 214.2(h)(10)(iv) will 

complement that provision. DHS is 

unclear about the commenters’ reference 

to a ‘‘one-time denial or revocation’’ 

under new 8 CFR 214.2(h)(10)(iv) 

because the new provision addressing 

H–2 petition denial during debarment, 

specifically 8 CFR 214.2(h)(10)(iv)(A)(1), 

does not indicate a ‘‘one-time denial or 

revocation,’’ but rather is a prohibition 

on petition approval during the 

debarment period. In so far as the 

commenters are concerned about the 

possible overlap between 8 CFR 214.1(k) 

and new 8 CFR 214.2(h)(10)(iv)(A)(1), 

the new provision at 8 CFR 

214.2(h)(10)(iv)(A)(1) provides clarity 

on how USCIS will exercise its ability 

to deny H–2 petitions filed by 

petitioners that are debarred from the 

H–2 programs. Specifically, while 8 CFR 

214.1(k) provides that USCIS ‘‘may’’ 

deny petitions for workers in the H 

(except for H–1B1), L, O and P–1 

nonimmigrant classifications during the 

period of debarment (for a period of 1 

to 5 years) upon DOL debarment under 

20 CFR 655, new 8 CFR 

214.2(h)(10)(iv)(A)(1) clarifies that 

USCIS ‘‘will’’ deny H–2 petitions filed 

or pending during the period of 

debarment under 20 CFR part 655, 

subpart A or B, or 29 CFR part 501 or 

503 as specified by DOL, or during a 

period of debarment specified by the 

Governor of Guam. New 8 CFR 

214.2(h)(10)(iv)(A)(1) will only apply to 

H–2 petitions filed on or after the 

effective date of this rule, with a 

debarment period beginning on or after 

the effective date of this rule. If new 8 

CFR 214.2(h)(10)(iv)(A)(1) does not 

apply, USCIS may still apply 8 CFR 

214.1(k) to deny H–2 petitions filed by 

petitioners subject to DOL debarment.63

c. Comments Specific to Mandatory 

Denials Under 8 CFR 214.2(h)(10)(iv)(A) 

Comment: A professional association 

said that involving WHD determinations 

in DHS decisions would be an overstep 

of the boundaries between agencies, and 

suggested DHS only deny employers 

based on what it discovers in its own 

investigations. 

Response: DHS declines the 

suggestion to limit the scope of the new 

mandatory grounds for denial to only 

violations that DHS discovers in its own 

investigations. Such a suggestion would 

be unnecessarily restrictive compared to 

what DHS can already do. For example, 

under current 8 CFR 214.1(k), USCIS 

may already deny H–2 petitions for a 

period of at least 1-year but not more 

than 5 years upon a finding of 

debarment by DOL. Moreover, it is 

contrary to the statutory and regulatory 

scheme, which specifically 

contemplates DOL’s role in assisting 


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64See, e.g., INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1) 

(the question of importing an H–2 worker ‘‘shall be 

determined by [DHS], after consultation with 

appropriate agencies of the Government,’’ and that 

for H–2A nonimmigrants, the term ‘‘‘appropriate 

agencies of Government’ means the Department of 

Labor and includes the Department of 

Agriculture’’); 8 CFR 214.2(h)(5)(ii) (‘‘The 

temporary agricultural labor certification process 

determines whether employment is as an 

agricultural worker, whether it is open to U.S. 

workers, if qualified U.S. workers are available, the 

adverse impact of employment of a qualified alien, 

and whether employment conditions, including 

housing, meet applicable requirements’’); 8 CFR 

214.2(h)(6)(iii)(A) (‘‘Prior to filing a petition with 

the director to classify an alien as an H–2B worker, 

the petitioner shall apply for a temporary labor 

certification with the Secretary of Labor [or the 

Governor of Guam]’’). 

65Note that DHS did make edits to these 

provisions to clarify their application based on 

public comments discussed elsewhere in this final 

rule. 

DHS in determining the approvability of 

H–2 petitions.64

d. Comments Specific to Discretionary 

Denials Under 8 CFR 214.2(h)(10)(iv)(B) 

Comment: Several commenters 

opposed proposed 8 CFR 

214.2(h)(10)(iv)(B) on the basis that the 

consequences of this provision may not 

be commensurate with violations that 

are ‘‘minor,’’ ‘‘minimal,’’ ‘‘technical,’’ 

‘‘trivial,’’ ‘‘innocent,’’ or otherwise 

insignificant in nature. For example, a 

trade association stated that the 

provision was overbroad, increases the 

impact of determinations by other 

agencies, and creates a situation where 

employers could lose access to the H– 

2 program based on ‘‘minor employment 

law violations that have no impact on 

the health or safety of workers.’’ Other 

commenters expressed that H–2 

employers should not be effectively 

debarred for minor violations and were 

concerned with the perceived lack of 

guardrails in the proposed rule to 

ensure that citations for ‘‘minor’’ 

infractions would not result in DHS 

denying or revoking a petition under its 

discretionary authority. 

A joint submission expressed concern 

that, despite the proposed rule’s 

assertion that DHS would not exercise 

its authority for ‘‘de minimis’’ 

violations, its discretionary authority 

would be ‘‘open ended’’ and extend to 

any legal or regulatory violation, 

regardless of its severity. Discussing the 

proposed rule’s ‘‘intention or ability to 

comply’’ analysis that it said the 

Department provided as a ‘‘balancing 

test,’’ the commenter said this test does 

not apply to the ‘‘threshold provision’’ 

that determines whether its 

discretionary denial is applicable. The 

commenter provided various examples 

of violations of ‘‘minimal significance,’’ 

including violations that an employer 

would not seek to appeal given the cost 

would exceed the violation penalty 

itself, but that DHS could use to show 

a large ‘‘number of violations’’ or a 

‘‘pattern of violations’’ and invoke the 

section. The commenter stated that as a 

result, the Department’s discretionary 

denial authority is ‘‘unfair, excessive, 

and overly punitive.’’ 

Similarly, a union expressed concern 

that the application of USCIS’ 

discretionary authority might be 

overbroad and extend to minor 

violations that might have occurred as a 

result of administrative errors. The 

commenter stated that employers might 

face discretionary denials for violations 

that ‘‘do not call into question the 

ability or intention’’ of petitioners to 

comply with H–2 program 

requirements. An attorney stated that 

the phrase ‘‘calling compliance into 

question’’ must be removed for 

vagueness, as any violation, no matter 

how trivial, could penalize a petitioner 

under this provision for ‘‘the most 

innocent act.’’ A trade association 

strongly opposed proposed 8 CFR 

214.2(h)(10)(iv)(B) in its entirety but 

said that, if maintained in the final rule, 

DHS should clarify and provide 

examples of violations that would 

trigger a denial or revocation of a 

petition under the proposed 

discretionary authority. 

A joint submission urged the 

Department to ‘‘soften’’ the proposed 

rule’s language regarding violations that 

would trigger a discretionary denial. 

The commenter suggested the rule 

include qualifications to limit actions to 

‘‘severe or egregious violations 

involving worker health and safety,’’ 

referencing similarities to other Federal 

regulations. The commenter concluded 

that this would provide additional 

layers of due process protections and 

prevent employers from being penalized 

for minor violations while still 

protecting workers. Other commenters 

suggested DHS limit the nature of the 

violations exclusively to violations of 

USCIS H–2 regulations. 

Response: DHS appreciates the 

commenters’ concerns but declines to 

make changes to the discretionary 

grounds for denial at new 8 CFR 

214.2(h)(10)(iv)(B) based on these 

comments.65 DHS maintains that the 

factors enumerated in 8 CFR 

214.2(h)(10)(iv)(C) make it clear that no 

single factor, standing alone, will be 

considered sufficient to warrant denial 

because the analysis includes 

consideration of all relevant factors, 

including the number of violations, 

egregiousness of the violation(s), overall 

history or pattern of prior violations, 

and the severity of the penalties 

imposed, among others. As stated in the 

NPRM, a single factor, standing alone, 

will not be outcome determinative, but 

may be weighted differently depending 

on the circumstances of each case; such 

that one factor could be given 

significant weight in reviewing the 

totality of the facts presented, even if 

other listed factors were absent. 88 FR 

65040, 65060 (Sept. 20, 2023). 

For example, as illustrated in the 

NPRM, USCIS would likely not consider 

a single de minimis Occupational Safety 

and Health Administration (OSHA) 

violation or a single Department of 

Transportation (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. 88 FR 65040, 65059–60 

(Sept. 20, 2023). 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 

injury to) H–2 workers, then USCIS 

would likely consider those violations 

relevant to the petitioner’s intention 

and/or ability to comply with H–2A or 

H–2B program requirements under 

proposed 8 CFR 214.2(h)(10)(iv)(B)(3). 

These examples illustrate that new 8 

CFR 214.2(h)(10)(iv)(B) reflects a 

totality-of-the-circumstances 

consideration in which USCIS will 

consider all relevant factors. 

Some commenters provided specific 

examples of violations which they 

characterized as ‘‘minor,’’ ‘‘minimal,’’ or 

otherwise of an insignificant nature, 

implying that these violations should 

never trigger a discretionary denial 

under new 8 CFR 214.2(h)(10)(iv)(B). 

These examples included violations 

because a petitioner failed to list the 

company’s Federal Employer 

Identification Number on the worker’s 

pay statement, failure to properly 

calculate the hours offered in the 

earnings records, or ‘‘fail[ure] to pay a 

nickel’s worth of backpay.’’ However, 

DHS does not agree that the violations 

in these examples should always be 

considered ‘‘minor,’’ ‘‘minimal,’’ or 

otherwise of an insignificant nature 

such that they should never be relevant 

to the petitioner’s intention and/or 

ability to comply with H–2 program 

requirements. For instance, a 

petitioner’s failure to properly calculate 

the hours offered in the earnings records 

may not be relevant to the petitioner’s 


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66 20 CFR 655.20(z), 20 CFR 655.135(e). 

intention and/or ability to comply with 

H–2 program requirements if it is an 

isolated incident and the petitioner 

immediately took corrective action to 

correct the mistake. However, it may be 

relevant if the failure to properly 

calculate the hours resulted in 

significant financial loss to that worker 

and the petitioner refused to take 

corrective action. Similarly, a single, 

isolated violation of a petitioner failing 

to pay ‘‘five cents’’ worth of backpay to 

a worker would likely not be relevant to 

the petitioner’s intention and/or ability 

to comply with H–2 program 

requirements, but it may be relevant if 

this violation is part of a pattern of the 

petitioner intentionally failing to pay 

backpay and failing to take any 

corrective action despite being ordered 

to do so. These examples demonstrate 

how the relevance of each violation will 

depend on the circumstances of each 

case, making it inadvisable to draw a 

hard line on which violations would 

always or never trigger a discretionary 

analysis under new 8 CFR 

214.2(h)(10)(iv)(B). 

For the same reason, DHS declines to 

provide absolute examples of what 

would or would not trigger the 

discretionary analysis pursuant to a 

commenter’s suggestions. Providing 

specific examples of violations is not 

advisable because USCIS will evaluate 

each violation together with all the 

other relevant factors on a case-by-case 

basis. By including a very broad scope 

for the types of violation determinations 

that may lead to analysis under the 

discretionary denial provision at 8 CFR 

214.2(h)(10)(iv)(B) generally and the 

catch-all provision at 8 CFR 

214.2(h)(10)(iv)(B)(3) specifically, DHS 

recognizes that the violations 

underlying these determinations can 

vary widely in nature and severity. 

DHS declines to adopt a commenter’s 

suggestions to limit the reach of this 

provision to only ‘‘severe or egregious 

violations involving worker health and 

safety.’’ As proposed, new 8 CFR 

214.2(h)(10)(iv)(C)(2) specifically lists 

‘‘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’’ as 

one of the relevant factors USCIS will 

consider. 

Finally, DHS declines to limit new 8 

CFR 214.2(h)(10)(iv)(B) exclusively to 

violations of USCIS H–2 regulations. As 

stated in the NPRM, this provision is 

consistent with existing DOL 

regulations requiring H–2 petitioners to 

comply with all applicable Federal, 

State, and local laws and regulations, 

including health and safety laws 66 and 

recognizes that numerous Federal, State, 

and local agencies have authority in 

areas affecting H–2 employers and 

workers. 

Comment: A few commenters 

suggested that USCIS should revise the 

discretionary denial provisions so that 

there is a system of graduated penalties. 

For example, a commenter suggested 

that USCIS should ‘‘truncate’’ the scope 

of violations that trigger additional 

reviews. Other commenters suggested 

that DHS evaluate alternative 

consequences that better align with the 

nature of the violation, including a ‘‘tier 

system of escalating consequences and 

fines’’ and a ‘‘remediation system.’’ 

Response: The commenters did not 

provide specific suggestions on how a 

system of truncated violations, a tier 

system of escalating consequences and 

fines, or a remediation system, could 

work. If the commenters were 

suggesting that DHS modify proposed 8 

CFR 214.2(h)(10)(iv)(B) so that the 

length of time a petition is denied 

would vary based on the severity of the 

violation(s) similar to the approach in 

current 8 CFR 214.1(k), DHS declines 

such an approach. New 8 CFR 

214.2(h)(10)(iv)(B) gives USCIS the 

ability to consider the nature of the 

prior violation(s)—within the context of 

the petitioner’s other actions and all 

other relevant factors—to determine 

whether the petitioner has the intent or 

ability to comply with H–2 program 

requirements and the petitioner’s 

overall credibility. Since USCIS will 

consider all relevant factors to 

determine the petitioner’s intent and 

ability to comply, it does not make 

sense to truncate the application of new 

8 CFR 214.2(h)(10)(iv)(B) based on the 

severity of the violation. Further, the 

finalized approach provides more 

clarity because it specifies exactly how 

long the petitioner’s petitions could 

potentially be denied (‘‘during the 

pendency of the petition or within 3 

years prior to filing the petition’’) if 

USCIS determines that the petitioner 

has not established its intent or ability 

to comply with H–2 program 

requirements, as opposed to leaving the 

petitioner unsure of how long they 

could potentially be denied under new 

8 CFR 214.2(h)(10)(iv)(B). 

Comment: A few trade associations 

expressed concern with the language of 

8 CFR 214.2(h)(10)(iv)(B), reasoning it 

would result in petitioners ‘‘being 

penalized for the same violation twice 

(equating to double jeopardy)—or more, 

if the petition denial is repeated in 

multiple years.’’ 

Response: In light of these comments, 

DHS is making the following regulatory 

changes to clarify that, under the 

following facts, USCIS will not deny 

certain petitions for the same 

underlying violation(s), recognizing that 

such a denial would be unduly 

burdensome to the petitioner. 

Specifically, new 8 CFR 

214.2(h)(10)(iv)(F) states that, if USCIS 

has previously determined that a 

petitioner (or the preceding entity, if the 

petitioner is a successor in interest) has 

established its intention and ability to 

comply with H–2A or H–2B program 

requirements in the course of 

adjudicating a petition involving 

violation determinations under 

paragraph (h)(10)(iv)(B), USCIS will not 

seek to deny a subsequently filed 

petition under paragraph (h)(10)(iv)(B) 

of this section based on the same 

violation(s), unless USCIS becomes 

aware of a new material fact (for 

example, a previously undiscovered 

violation(s) or new violations that 

occurred during the applicable time 

period), or if USCIS finds that its 

previous determination was based on a 

material error of law. In cases where 

USCIS becomes aware of a new material 

fact or determines its previous 

determination was based on a material 

error of law, petitioners will generally 

have the opportunity to challenge an 

intended denial. 

e. Final Determinations Against 

Individuals Under 8 CFR 

214.2(h)(10)(iv)(D) 

Comment: A union expressed support 

for proposed 8 CFR 214.2(h)(10)(iv)(D) 

which specifies when USCIS may treat 

a criminal conviction or final 

administrative or judicial determination 

against an individual as a conviction or 

final administrative or judicial 

determination against the petitioner or 

successor in interest, reasoning it would 

strengthen accountability for employers 

who try to shield themselves from 

penalties by ‘‘hiding behind’’ recruiters 

and other agents who violate the law. 

The commenter added that because H– 

2 workers’ status is tied to their 

employment with a particular employer, 

they are economically dependent on 

their employers and ‘‘view situations 

from that vulnerable perspective.’’ The 

commenter stated that as a result, the 

provision to consider the perspective of 

an employee under proposed 8 CFR 

214.2(h)(10)(iv)(D)(2) ‘‘appropriately 

takes that reality into consideration’’ 

when assessing whether an employee is 

acting on behalf of its petitioning entity. 

Response: DHS appreciates the 

comment that accurately reflects the 

provision’s goals of strengthening 


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accountability for employers and 

acknowledging an H–2 beneficiary’s 

vulnerability to exploitation from their 

employer or persons allegedly acting on 

the employer’s behalf. 

Comment: A couple of trade 

associations stated that DHS should 

‘‘carefully weigh whether the Due 

Process considerations’’ of accused 

petitioners are ‘‘adequately protected’’ 

by proposed 8 CFR 214.2(h)(10)(iv)(D). 

A joint submission expressed concern 

that the proposed rule did not 

adequately consider ‘‘the balance of the 

interests’’ in both attributing the 

misconduct of individuals to the 

petitioner and increasing the penalties 

for misconduct. The commenter 

concluded that the provision is an 

overreach and suggested that DHS 

provide ‘‘additional procedural 

protections’’ for petitioners and provide 

them with a ‘‘greater degree of leniency 

to the extent that they have taken steps 

to remedy the violation(s) and prevent 

them from occurring in the future.’’ 

Response: DHS disagrees with the 

commenters. It is not reasonable to 

allow a petitioner to avoid liability for 

the actions of an individual who is 

acting on behalf of that petitioner, as a 

petitioner could then knowingly engage 

in unlawful activity simply by 

instructing another individual to 

perform the unlawful activity on their 

behalf. Further, it is reasonable to 

expect that an employer will monitor 

the activities of its employees whom the 

employer has empowered to act on its 

behalf. 

It is not entirely clear what the 

commenters meant by their vague 

references to ‘‘additional procedural 

protections’’ or ‘‘Due Process 

considerations.’’ Regardless, DHS 

reiterates that USCIS will comply with 

all procedural safeguards outlined in 8 

CFR 103.2(b), including generally 

providing the petitioner an opportunity 

to respond to derogatory information 

pursuant to 8 CFR 103.2(b)(16)(i). Thus, 

before denying a petition under the new 

mandatory or discretionary ground at 

new 8 CFR 214.2(h)(10)(iv), USCIS 

generally will first issue a request for 

evidence or NOID the petition and 

provide an opportunity for the 

petitioner to respond. For example, in 

response to the request for evidence or 

NOID, the petitioner will have the 

opportunity to demonstrate that the 

underlying conviction was against an 

individual who was not acting on behalf 

of the petitioner, or if the conviction 

was against an employee of the 

petitioning entity, that a reasonable 

person in the H–2A or H–2B worker’s 

position would not believe the 

individual was acting on behalf of the 

petitioning entity. 

Comment: Referencing proposed 8 

CFR 214.2(h)(10)(iv)(D)(2), a 

professional association expressed 

support for actions that attempt to 

ensure accountability among employers 

but stated that a ‘‘reasonable person’’ 

standard should not be applied with 

respect to an individual who an H–2 

worker believes is acting on behalf of 

the petitioning entity. The commenter 

instead suggested that USCIS ‘‘rely on 

whether an oral or written agreement 

was entered into.’’ Another commenter, 

a joint submission, urged DHS to ‘‘afford 

petitioners a greater degree of leniency 

to the extent that they have taken steps 

to remedy the violation(s) and prevent 

them from occurring in the future’’ and 

asserted that the ‘‘reasonable person 

standard’’ safeguard is inadequate for 

reasons such as the high rate of fraud 

and impersonation of employers via the 

internet and social media. 

Response: The provision at 8 CFR 

214.2(h)(10)(iv)(D) allows a criminal 

conviction or final administrative or 

judicial determination against an 

individual to be considered a conviction 

or final determination against the 

petitioner in some circumstances. First, 

under 8 CFR 214.2(h)(10)(iv)(D)(1) this 

can occur when an individual (such as 

the petitioner’s owner, employee or, a 

contractor) was in fact acting on the 

petitioner’s behalf when engaging in 

conduct that resulted in the conviction 

or final administrative determination. In 

addition, under the provision referenced 

by the commenters, 8 CFR 

214.2(h)(10)(iv)(D)(2), a conviction or 

final determination against an 

individual can be considered a 

conviction or final determination 

against the petitioner for the purposes of 

discretionary denial when the 

individual was the petitioner’s 

employee and a reasonable person in 

the H–2 worker’s position would believe 

the individual was acting on the 

petitioner’s behalf. 

It is not entirely clear what is meant 

by the commenter’s suggestion that, 

instead of a reasonable person standard, 

liability under 8 CFR 

214.2(h)(10)(iv)(D)(2) should depend on 

‘‘whether an oral or written agreement 

was entered into.’’ To the extent that the 

commenter is suggesting USCIS should 

rely on whether there is an oral or 

written employment agreement between 

the petitioner and the individual, DHS 

notes that the provision only applies to 

the petitioner’s employees, who 

generally would have entered into an 

oral or written employment agreement 

with the petitioner. 

If, on the other hand, the commenter 

is suggesting that the existence of a 

written or oral contract prohibiting the 

violation-related conduct alone should 

in all cases be sufficient for the 

petitioner to avoid liability for its 

employee’s actions, DHS disagrees and 

believes it is appropriate to consider the 

relevant facts and circumstances on a 

case-by-case basis. As noted in the 

preamble to the NPRM, because liability 

for this population will be limited to the 

discretionary denial provision, 

petitioners will have an opportunity to 

provide information regarding the 

circumstances of the employee’s 

actions, and USCIS will consider all 

relevant factors in determining whether 

the petitioner had established its 

intention and ability to comply with H– 

2 program requirements. 88 FR 65040, 

65061 (Sept. 20, 2023). 

With regard to the suggestions in the 

joint submission comment, DHS agrees 

that steps taken by the petitioner to 

remedy the violations and prevent them 

from occurring in the future are 

important and relevant considerations, 

and notes that such steps will be 

considered in determining whether a 

denial is warranted. See 8 CFR 

214.2(h)(10)(iv)(C)(8). DHS disagrees, 

however, with the suggestion that the 

‘‘reasonable person standard’’ in 8 CFR 

214.2(h)(10)(iv)(D)(2) is inadequate to 

safeguard against fraud and 

impersonation of employers via the 

internet and social media. Even if an H– 

2 worker reasonably believed that the 

individual engaging in fraud or 

impersonation was acting on behalf of 

the employer, the petitioner could not 

be held accountable under 8 CFR 

214.2(h)(10)(iv)(D)(2) unless the 

individual was its employee in which 

case, as discussed above, all relevant 

circumstances will be considered. 

Comment: A professional association 

suggested treating a conviction or 

determination of an individual as a 

conviction or determination against a 

petitioner only in ‘‘the most egregious 

circumstances.’’ The commenter 

questioned the Department’s rationale 

that employers would be knowledgeable 

of the actions of all individuals in its 

recruitment chain, calling it 

‘‘aspirational but also not realistic.’’ 

Similarly, a few trade associations 

stated that in many cases petitioners 

may not have knowledge of another 

party’s behavior, particularly in the case 

of contractors. The commenters also 

urged the Department to clarify whether 

criminal convictions or final 

administrative or judicial 

determinations must be related to labor 

violations, H–2-related job duties, or 

corresponding employees. Finally, these 


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67 Georgetown Univ. Hosp. v. Bowen, 488 U.S. 

204, 208 (1988). 

68Bowen, 488 U.S. at 219 (Scalia, J. concurring). 

69See Nat’l Mining Ass’n v. U.S. Dep’t of the 

Interior, 177 F.3d 1, 8 (D.C. Cir. 1999) (National 

Mining I) (quoting Ass’n of Accredited Cosmetology 

Sch. v. Alexander, 979 F.2d 859, 864 (D.C. Cir. 

1992)). 

70See Arkema Inc. v. EPA, 618 F.3d (D.C. Cir. 

2010) (vacating an EPA rule in part on 

impermissible retroactivity grounds because the 

rule attached new legal consequences to events 

completed before its enactment) (quoting Nat’l 

Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 860 

(D.C. Cir. 2002)); see also Mobile Relay Assocs. v. 

FCC, 457 F.3d 1, 11 (D.C. Cir. 2006) (explaining 

‘‘[r]etroactive rules ‘alter[ ] the past legal 

consequences of past actions’ ’’ (quoting Bowen, 488 

U.S. at 219 (Scalia, J., concurring)). 

71 Mobile Relay Assocs. v. FCC, 457 F.3d 1, 11 

(D.C. Cir. 2006); see Bowen, 488 U.S. at 220 (Scalia, 

J., concurring); see also Alexander, 979 F.2d at 864 

(‘‘Member schools have no ‘vested rights’ to future 

eligibility to participate in the GSL program. 

Although we do not doubt AACS’s submission that 

the schools expected to be eligible in the future, 

such an expectation did not constitute vested 

interest.’’). 

72Bowen, 488 U.S. at 220 (Scalia, J., concurring) 

(‘‘A rule that has unreasonable secondary 

retroactivity—for example, altering future 

regulation in a manner that makes worthless 

substantial past investment incurred in reliance 

upon the prior rule—may for that reason be 

‘arbitrary’ or ‘capricious,’ see 5 U.S.C. 706, and thus 

invalid. In reference to such situations, there are to 

be found in many cases statements to the effect that 

where a rule has retroactive effects, it may 

nonetheless be sustained in spite of such 

retroactivity if it is reasonable.’’). 

73Bowen, 488 U.S. at 220 (Scalia, J., concurring). 

commenters suggested the Department 

develop alternative approaches to denial 

and revocation that include corrective 

action but indicated that, if the 

provision is retained, they support the 

use of reasonable person analysis, an 

opportunity to provide evidence prior to 

determination, and opportunity to 

appeal to a neutral body in order to 

prevent unfounded denials. 

Response: As noted above, 8 CFR 

214.2(h)(10)(iv)(D)(1) allows convictions 

and final determinations against some 

non-employees (for example contractors 

and others) to be treated as convictions 

and final determinations against the 

petitioner, but only to the extent that the 

individual is acting on the petitioner’s 

behalf. DHS believes it is both realistic 

and appropriate to expect petitioners to 

have knowledge of, and a degree of 

control over, third party individuals’ 

actions taken on their behalf. 

DHS appreciates the commenters’ 

request for clarity regarding whether the 

convictions and final determinations 

covered by 8 CFR 214.2(h)(10)(iv)(D) 

must relate to labor violations, H–2 

employment, and H–2 workers. First, 

DHS notes that the provision only 

applies to certain final determinations 

and convictions that are relevant to 

petitioner’s compliance with H–2 

program requirements as enumerated in 

8 CFR 214.2(h)(10)(iv)(A) and (B). DHS 

also emphasizes that, because 8 CFR 

214.2(h)(10)(iv)(D)(1) only applies to an 

individual who is ‘‘acting on behalf of 

the petitioning entity,’’ it would not 

apply to a conviction or final 

determination for actions the individual 

took on behalf of a different employer, 

or for conduct that is otherwise 

unrelated to the individual’s work on 

behalf of the petitioner. Finally, as 

discussed above, the provision at 8 CFR 

214.2(h)(10)(iv)(D)(2) applies only to an 

employee of the petitioner who a 

reasonable person in the H–2 worker’s 

position would believe is acting on the 

petitioner’s behalf, and in such cases, 

petitioners will have an opportunity to 

provide information regarding the 

circumstances of the employee’s action. 

USCIS will consider all relevant 

factors—including corrective and 

preventative measures the petitioner has 

taken—in determining whether the 

petitioner has established its intention 

and ability to comply with H–2 program 

requirements. As with all denials under 

8 CFR 214.2(h)(10)(iv), such decisions 

will be appealable to the USCIS 

Administrative Appeals Office. 

f. 3-Year Timeframe (‘‘Lookback 

Period’’) 

Comment: Several commenters 

discussed the 3-year timeframe for 

mandatory and discretionary denials 

based on certain violations. An 

advocacy group said a 3-year look back 

period would be sufficient to ensure 

approval of H–2 petitions would not be 

detrimental to the rights of workers or 

the integrity of the program. An 

advocacy group and a joint submission 

urged DHS to not reduce the proposed 

3-year timeframe. 

Response: DHS appreciates these 

comments and agrees that a 3-year 

lookback is appropriate for the relevant 

provisions of 8 CFR 214.2(h)(10)(iv)(A) 

and (B). 

Comment: While expressing 

opposition to the denial of petitions for 

certain violations, a couple of trade 

associations said that if the section was 

maintained, the Department could not 

impose penalties until 3 years after the 

provision became effective and 

employers received notice. Another 

commenter stated that denying 

employers retroactively for conduct that 

occurred prior to the rule’s 

implementation was unconstitutional 

due to the retroactivity doctrine. 

Response: DHS did not propose to 

deny petitions in a way that is 

impermissibly retroactive or without 

adequate notice. In general, DHS applies 

its regulations prospectively. DHS is 

aware that the U.S. Supreme Court has 

held that ‘‘statutory grants of 

rulemaking authority will not be 

understood to encompass the power to 

promulgate retroactive rules unless that 

power is conveyed by express terms.’’ 67

It is also aware that retroactive rules 

alter the past legal consequences of past 

actions.68 DHS also recognizes that a 

rule operates retroactively if it takes 

away or impairs vested rights.69 In 

addition, DHS recognizes that if a new 

rule is ‘‘substantively inconsistent’’ with 

a prior agency practice and attaches new 

legal consequences to events completed 

before its enactment, it operates 

retroactively.70 However, an agency rule 

that alters the future effect, not the past 

legal consequences of an action, or that 

upsets expectations based on prior law 

(which may be characterized as 

secondary retroactivity), is not 

necessarily impermissibly retroactive.71

Here, DHS proposed to, in certain 

circumstances, alter the future effect of 

past actions by adding program integrity 

measures to address certain violations 

that occurred in the past. As such, the 

proposed rule might have raised 

questions regarding secondary 

retroactivity.72 Rules that have a 

secondary retroactive effect can be valid 

if they are reasonable.73 As discussed in 

more detail below, the provisions 

included in this final rule are reasonable 

because they ensure that petitioners 

have adequate notice of consequences of 

certain conduct while giving DHS the 

ability to hold program users 

accountable. Namely, while DHS is 

uniformly applying the new rules to 

agency actions that take place on or after 

the effective date of the final rule, the 

additional consequences imposed by 

this rule will in some cases attach to 

prohibited conduct that occurred before 

the effective date of this final rule. DHS 

believes that this approach is reasonable 

because the conduct covered by these 

provisions is already prohibited, and as 

such, petitioners could have no 

reasonable expectations that such 

egregious conduct could not 

subsequently be taken into account in 

petition adjudications. 

While DHS did not specifically 

address in the NPRM how the 

provisions relating to the denial or 

revocation of petitions for prohibited 

fees, as well as the mandatory and 

discretionary denials of H–2A and H–2B 

program violators would apply, DHS is 

clarifying in this final rule that it will 

apply certain provisions in a manner 

that balances the strong interest in 

enhancing H–2 program integrity and 

protection of H–2 workers with the 

interests of petitioners to have adequate 

notice of new future effects applicable 


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74The failure to reimburse workers for fees 

collected prior to the effective date of this final rule 

may be considered, among the totality of facts 

presented, with respect to whether to deny such 

petitions on a discretionary basis under new 8 CFR 

214.2(h)(10)(iii) regardless of whether the petition 

is filed before, on, or after the effective date of this 

rule. 

to certain conduct. Consistent with this 

discussion, DHS has added language to 

the applicable regulatory provisions to 

clarify how they will apply, as 

discussed in more detail below. 

(1) Denial and Revocation of H–2 

Petitions for the Collection of Prohibited 

Fees 

DHS is clarifying that USCIS will 

deny or revoke H–2 petitions filed on or 

after the effective date of this final rule 

based on the revised prohibited fees 

provisions in 8 CFR 214.2(h)(5)(xi)(A) 

and (h)(6)(i)(B). Petitions filed before the 

effective date of the final rule will be 

denied or revoked based on the 

prohibited fee provisions in effect before 

this final rule. 

(2) The 1- and 3-year Periods of Denial 

for the Collection of Prohibited Fees and 

Failure To Reimburse 

DHS, under this final rule, will deny 

additional H–2A and H–2B petitions for 

a period of 1 year based on denials or 

revocations that resulted from a 

violation of prohibited fee provisions 

contained in this final rule. Under 

regulations in place before the effective 

date of this final rule, employers in both 

H–2A and H–2B programs were 

prohibited from charging workers 

certain prohibited fees and are required 

to reimburse workers when such fees 

have been charged. If an H–2A or H–2B 

petition is denied or revoked for 

violating the provisions in place before 

the effective date of this final rule, 

petitioners filing petitions in the same 

program within 1 year of the denial or 

revocation must demonstrate to the 

satisfaction of USCIS that the workers 

were reimbursed or that the employer 

made reasonable efforts to locate the 

workers but has failed to do so. 8 CFR 

214.2(h)(5)(xi)(C) and (h)(6)(i)(C). If this 

obligation is not met, the subsequent 

petition is denied. The obligation 

attaches to all subsequent petitions filed 

during the 1-year period. Under the 

NPRM and this final rule, a denial that 

occurs during the 1-year period 

following a USCIS denial or revocation 

based on a prohibited fee violation 

applies across H–2A and H–2B 

programs and does not allow the 

petitioner to avoid a denial during the 

relevant 1-year period simply by the 

petitioner reimbursing the affected 

workers or making reasonable efforts to 

do so. 

While petitioners do not necessarily 

have a right to approval of their 

petitions, DHS understands that 

petitioners may not be in a position to 

remedy or provide reasons for their past 

actions in a manner that complies with 

the new regulations (for example, 

establish by clear and convincing 

evidence that the petitioner engaged in 

good faith, ongoing efforts to prevent the 

collection of such fees) such that they 

can overcome this ground for denial or 

revocation and thereby avoid the 1-year 

denial period following such a decision. 

As such, without the clarification 

included in this final rule, the NPRM 

might have been construed as having 

proposed the imposition of new future 

consequences on petitioners for past 

actions that have already concluded. 

Therefore, DHS is clarifying that it will 

apply the expanded 1-year denial 

provisions based on initial denial or 

revocation decisions involving 

prohibited fees that are issued on 

petitions filed only on or after the 

effective date of this rule. In other 

words, DHS will apply this provision 

prospectively from the effective date of 

this final rule, not retroactively. 

With respect to the 3-year mandatory 

denial period, the obligation to 

reimburse is not new and is a 

requirement under regulations that have 

been in place since 2008. The period of 

denial, however, will be longer under 

this final rule, will eliminate the option 

to merely demonstrate reasonable efforts 

to locate a beneficiary, and will 

explicitly impose obligations on 

successors in interest with respect to 

ensuring the integrity of the H–2 

program and H–2 worker protections. 

Therefore, similar to the 1-year denial 

provision, DHS will apply the 3-year 

additional denial period to petitioners, 

including successors in interest, based 

on initial denial or revocation decisions 

issued on petitions filed on or after the 

effective date of this final rule. For 

petitions denied or revoked under 

previous regulations, the 1-year denial 

period in place before the effective date 

of this final rule will apply.74

(3) Mandatory Denial of Petitions Filed 

by H–2 Petitioners 

As noted above, DHS recognizes that 

denying petitions under the three 

mandatory denial provisions may result 

in unforeseen new effects attaching to 

past conduct. Specifically, for denials 

based on DOL or GDOL debarment, 

unlike the existing provision in 8 CFR 

214.1(k), the new mandatory denial 

provision requires rather than permits 

USCIS to deny petitions on this basis 

but operates similarly to 8 CFR 214.1(k) 

in that it is triggered by a DOL 

debarment even if such debarment takes 

place while the petition is already 

pending with USCIS and supported by 

a valid TLC. Under existing regulations 

and this final rule, if the debarment of 

a petitioner prevented the petitioner 

from obtaining a TLC, USCIS would not 

be able to approve such petition. 

Similarly, DHS recognizes that issuing 

a mandatory denial of the H–2A or H– 

2B petition based on prior USCIS 

decisions finding fraud or 

misrepresentation, may attach new 

effects to already prohibited conduct. 

Under the NPRM and without further 

clarification, these new effects could 

have attached without providing the 

petitioner the ability to overcome this 

ground based on new facts or evidence 

that may have occurred since the initial 

decision. The same is true of denials 

based on violations of section 274(a) of 

the Act. 

For these reasons, DHS is clarifying 

how the mandatory denial provisions 

will apply: 

(1) For mandatory denials involving 

DOL or GDOL debarment, DHS will 

apply these provisions only to petitions 

filed on or after the effective date of this 

final rule and when the final 

administrative debarment decision is 

made on or after the effective date of 

this final rule. For petitions filed before 

the effective date of the rule involving 

DOL or GDOL debarment, USCIS may 

continue to deny under the existing 

provision at 8 CFR 214.1(k). 

(2) For mandatory 3-year denials 

based on the USCIS denial or revocation 

of an H–2A or H–2B petition for fraud 

or material misrepresentation, these 

provisions will apply only to initial 

denial or revocation decisions issued on 

petitions filed on or after the effective 

date of this rule. 

(3) For mandatory denials involving 

violations of section 274(a), USCIS will 

deny H–2A or H–2B petitions filed on 

or after the effective date of the final 

rule and based on final determinations 

of violations of section 274(a) of the Act 

that are made on or after the effective 

date of this final rule. With respect to 

determinations of section 274(a) 

violations made before the effective date 

of this final rule, DHS will apply the 2- 

year denial provision in current 8 CFR 

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

This approach operates prospectively, 

and provides petitioners with sufficient 

notice of the additional consequences of 

these egregious violations. 


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(4) Discretionary Denial of Petitions 

Filed by H–2 Petitioners Based on 

Violation Determinations That Occurred 

During the Pendency of the Petition or 

the Previous 3 Years 

These new provisions provide for the 

consideration of certain violations and 

other relevant factors in adjudicating H– 

2 petitions. These provisions do not 

mandate denial. DHS is clarifying that 

these provisions will apply to H–2A or 

H–2B petitions that are filed on or after 

the effective date of this rule based on 

determinations of past violations that 

occurred during the pendency of the 

petition or the previous 3 years, 

regardless of whether they occurred 

before, on, or after the effective date of 

this final rule. This rule provides H–2 

program violators with sufficient notice 

and opportunity to demonstrate their 

intention and ability to comply with 

program requirements and obligations. 

DHS acknowledges the commenters’ 

concern that some employers may have 

agreed to pay a civil monetary penalty 

for alleged minor violations because 

they were unaware at the time of their 

agreement that this could be a violation 

potentially leading to a petition denial. 

However, because the new discretionary 

provisions do not mandate denial, these 

petitioners would have the opportunity 

to explain why they agreed to pay fines 

which USCIS would then take into 

consideration, along with all relevant 

factors including the egregiousness of 

the violation(s) and the severity or 

monetary amount of the fines paid, in 

determining whether the petitioner has 

the intent and ability to comply with H– 

2 program requirements and obligations. 

In exercising its discretion, DHS will 

consider all of the facts presented and 

in doing so, will accord appropriate 

weight to an employer’s previous 

violations and actions based on the 

nature and severity of such violations 

and actions. 

Comment: A professional association 

expressed concern with the ‘‘3-year 

lookback period’’ with respect to the 

proposal for mandatory denials based 

on certain violations and suggested that 

DHS should only look at the current 

year instead of a 3-year lookback period. 

Response: DHS will not make any 

changes based on this comment. 

Initially, DHS notes that the ‘‘3-year 

lookback’’ period does not apply to all 

of the grounds for mandatory denial. In 

the NPRM, DHS proposed new 8 CFR 

214.2(h)(10)(iv)(A), under which USCIS 

would deny an H–2 petition filed by a 

petitioner, or successor in interest to a 

petitioner, that has been the subject of 

one or more of the three actions 

enumerated in the provision. One such 

action, under 8 CFR 

214.2(h)(10)(iv)(A)(1) as proposed, is a 

final administrative determination by 

DOL or GDOL debarring a petitioner. 

However, this mandatory ground for 

denial applies only during the period of 

debarment. DHS did not propose a 3- 

year lookback period for this provision. 

Under 8 CFR 214.2(h)(10)(iv)(A)(2) as 

proposed, a petition will be denied 

where a petitioner has been subject to 

‘‘[a] final USCIS denial or revocation 

decision issued during the pendency of 

the petition or within 3 years prior to 

filing the petition that included a 

finding of fraud or willful 

misrepresentation of a material fact with 

respect to a prior H–2A or H–2B 

petition.’’ The 3-year period in this 

provision is appropriate for the reasons 

explained in the NPRM: that is, that a 

3-year timeframe 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, and is generally 

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. 88 FR 

65040, 65058 (Sept. 20, 2023). The 

commenter recommends that USCIS 

‘‘look at the current year instead of a 3- 

year lookback period,’’ but provides no 

further explanation as to why limiting 

review to the ‘‘current year’’ would be 

appropriate or whether the ‘‘current 

year’’ meant the current calendar year or 

fiscal year. Regardless, DHS declines to 

adopt this approach. Limiting review to 

the current year could render this 

provision largely ineffective, as such a 

short timeframe may not enable USCIS 

to consider the eligibility implications 

of a past H–2 program violation during 

adjudication of a subsequent petition, as 

intended. Thus, limiting this review 

could have little deterrent effect on a 

petitioner whose petition for a given 

year was already denied. 

There is also a 3-year lookback under 

8 CFR 214.2(h)(10)(iv)(A)(3) which, as 

proposed, applies with respect to ‘‘[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.’’ Again, 

the commenter did not explain why 

limiting review to the current year 

would be appropriate. DHS is similarly 

concerned that limiting the review 

period to ‘‘the current year’’ with 

respect to this provision could render it 

largely ineffective and have little 

deterrent effect. Further, limiting 8 CFR 

214.2(h)(10)(iv)(A)(3) to only 1 year 

would actually be more lenient than 

current 8 CFR 214.2(h)(5)(iii), which 

states that a petitioner cannot establish 

requisite intent for 2 years after a 

violation of section 274(a) of the Act. 

DHS maintains that a 3-year period is 

more appropriate as this period captures 

an employer’s reasonably recent activity 

and will generally be sufficient to 

ensure that approval of an H–2 petition 

will not be detrimental to the rights of 

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

2 program. Therefore, DHS will not 

make any changes as a result of this 

comment. 

Comment: A couple of advocacy 

groups, a research organization, and a 

union stated that while first-time 

offenders should be subject to a 3-year 

timeframe under proposed 

214.2(h)(10)(iv)(A), repeat offenders 

should be permanently banned from the 

H–2 programs. 

Response: DHS does not believe that 

a permanent ‘‘ban’’ would be 

reasonable, even for repeat offenders, as 

it would fail to account for changes in 

practice, policies and personnel by an 

employer which may become less 

relevant as the underlying violation 

becomes more remote in time. As 

discussed in the NPRM and noted 

above, DHS believes that a 3-year 

timeframe is appropriate as it 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. 

Therefore, DHS declines to adopt the 

suggestion. 

Comment: A union supported a 

mandatory denial of petitions based on 

a final debarment determination by DOL 

for violations of H–2 regulations and 

contractual obligations. The union 

suggested that DHS modify proposed 8 

CFR 214.2(h)(10)(iv)(A)(1) to impose a 

mandatory denial based on a final 

determination of debarment that was 

issued by DOL within 5 years of filing 

a new H–2 petition, rather than only if 

a petitioner files with DHS ‘‘during the 

debarment period, or if the debarment 

occurs during the pendency of the 

petition.’’ The commenter concluded 

that these revisions would help ensure 

‘‘bad actors’’ stay out of the H–2 

program. Similarly, while discussing the 

grounds for denial or revocation under 

proposed 8 CFR 214.2(h)(10)(iv)(A)(2) 

and (3), the union also suggested that 

rather than the proposed 3-year 

timeframe, the Department require a 5- 

year look-back period for all actions, 

convictions, and determinations 

included under the proposed section. 

The commenter reasoned that this 

change would further encourage 

compliance by employers and agents 

and promote consistency with INA’s 


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statutory 5-year limit on DHS’s ability to 

deny petitions. Another union that 

supported the mandatory and 

discretionary denial provisions 

similarly urged that the look back 

period for violations be extended from 

3 to 5 years. 

Response: DHS declines to modify 8 

CFR 214.2(h)(10)(iv)(A)(1) in this final 

rule to impose a mandatory denial based 

on a final determination of debarment 

that was issued by DOL within 5 years 

of filing a new H–2 petition. In the final 

rule, as in the proposed rule, denial by 

USCIS will be mandatory only ‘‘if the 

petition is filed during the debarment 

period, or if the debarment occurs 

during the pendency of the petition.’’ 

Limiting mandatory denials to the 

period of debarment is appropriate 

because it will be consistent with the 

debarment period imposed by DOL. 

Beyond the mandatory denials during 

the period of debarment, USCIS may 

still consider the debarment under the 

circumstances described in 8 CFR 

214.2(h)(10)(iv)(B) and (C) if it finds that 

the debarment calls into question a 

petitioner’s or successor’s intention 

and/or ability to comply with H–2 

program requirements. 

DHS also declines to impose a 5-year 

lookback period under new 8 CFR 

214.2(h)(10)(iv)(A)(2) and (3). As 

discussed in the NPRM and noted 

above, DHS believes that a 3-year 

timeframe is appropriate as it captures 

an employer’s reasonably recent 

activity, which is a highly relevant 

consideration with respect to their 

current intention and ability to comply 

with program requirements, while also 

recognizing that employers may make 

changes to practice, policies, and 

personnel over time to remedy 

deficiencies. 

Comment: A couple of advocacy 

groups and a research organization 

generally supported proposed 8 CFR 

214.2(h)(10)(iv)(B) and suggested that 

DHS should not limit this provision to 

a 3-year look-back timeframe. The 

commenters reasoned that a ‘‘severe 

labor violation 5 years ago’’ could 

indicate an ongoing ‘‘inability or 

unwillingness’’ to comply with H–2 

program requirements, while a 

‘‘relatively minor one’’ might not. The 

commenters also stated that the 3-year 

timeframe should be removed, as 

recency is already a factor that USCIS 

would be instructed to consider. 

Response: DHS declines to adopt this 

suggestion. While, as noted by the 

commenters, ‘‘recency’’ is a relevant 

factor listed in 8 CFR 

214.2(h)(10)(iv)(C), DHS recognizes that 

employers have an interest in knowing 

that, at some point, a long-ago violation, 

standing alone, will no longer be a basis 

for calling into question their ability and 

intent to comply with H–2 program 

requirements. Establishing a set 

timeframe is appropriate because it 

recognizes the employer’s interest in 

certainty and accounts for changes in 

practice, policies and personnel by an 

employer which may become more 

relevant as the underlying violation 

becomes more remote in time. 

g. Other Comments Related to the 

Mandatory and Discretionary Denial 

Provision 

Comment: A couple of advocacy 

groups and a union expressed support 

for the mandatory and discretionary 

denial provisions that will apply to 

petitioners and successors in interest. 

The advocacy group referenced a 

comment from its members that it said 

showed employers commonly 

sidestepped legal consequences by 

reorganizing under new corporate 

entities and continuing abusive 

employment practices. The commenter 

stated that by extending the mandatory 

and discretionary denial provisions to 

successors in interest, the Department 

would address these situations. 

Response: DHS appreciates these 

comments and agrees that the 

provisions at 8 CFR 214.2(h)(10)(iv) 

should also apply to successors in 

interest. 

Comment: A trade association 

expressed support for DHS’s statement 

in the proposed rule preamble that 

USCIS would distinguish between a 

single or minor violation of OSHA 

requirements versus a pattern of serious 

non-compliance. The commenter also 

expressed support for the relevant 

factors USCIS stated it would consider 

in 8 CFR 214.2(h)(10)(iv)(C). However, 

the commenter suggested that DHS 

‘‘reinforce this position by providing 

detailed guidance following issuance of 

a final rule,’’ reasoning it would benefit 

petitioners and DHS staff. 

Response: As explained above, the 

provision at 8 CFR 

214.2(h)(10)(iv)(B)(3), as finalized in 

this rule, covers ‘‘any applicable 

employment-related laws or 

regulations.’’ This provision allows 

USCIS to consider discretionary denial 

for a wide variety of administrative or 

judicial determinations that are relevant 

to a petitioner’s intention or ability to 

comply with H–2 program 

requirements. DHS believes that this 

provision is sufficiently clear. However, 

USCIS may consider providing 

additional policy guidance related to 

this provision, similar to the guidance 

provided in the NPRM and in this final 

rule, on the uscis.gov website or in the 

USCIS Policy Manual. Similarly, DHS 

believes that the provision at 8 CFR 

214.2(h)(10)(iv)(C) is clear in that it 

explains that USCIS will consider ‘‘all 

relevant factors’’ in determining 

whether a violation calls into question 

a petitioner’s or successor in interest’s 

intention and/or ability to comply with 

H–2 program requirements. The 

provision goes on to provide a nonexhaustive list of eight factors that may 

be considered in making the 

determination. Again, although this 

provision provides sufficient clarity and 

guidance to the regulated public and to 

USCIS adjudicators, USCIS may 

consider providing additional guidance 

on the uscis.gov website or in the USCIS 

Policy Manual. 

Comment: Several commenters 

generally supported proposed 8 CFR 

214.2(h)(10)(iv)(B) and provided 

suggestions on how to strengthen this 

provision. For example, an advocacy 

group expressed support for proposed 8 

CFR 214.2(h)(10)(iv)(B), reasoning it 

would help curb abusive employers’ 

exploitation of the program and level 

the playing field for ‘‘scrupulous’’ 

employers. However, the commenter 

suggested the Department strengthen 8 

CFR 214.2(h)(10)(iv)(B)(3) to include 

housing-related violations, reasoning 

that H–2 workers are typically subject to 

‘‘noncompliant, unsanitary, and unsafe’’ 

housing. Similarly, an advocacy group 

said that under 8 CFR 

214.2(h)(10)(iv)(B), failure to provide 

safety training to H–2 workers should be 

grounds for denial, adding that the first 

1 to 2 weeks of employment should be 

devoted to training that aligns with 

United States’ labor laws for domestic 

workers. A research organization 

suggested 8 CFR 214.2(h)(10)(iv)(B)(3) 

be expanded to include ‘‘a number of 

other violations.’’ 

Response: DHS declines to make 

changes to 8 CFR 214.2(h)(10)(iv)(B)(3) 

based on these comments. DHS believes 

the wording of the provision at 8 CFR 

214.2(h)(10)(iv)(B)(3), as finalized in 

this rule, is appropriately broad to allow 

USCIS to consider discretionary denial 

for a wide variety of administrative or 

judicial determinations, including those 

relating to housing, which are relevant 

to a petitioner’s intention or ability to 

comply with H–2 program 

requirements. As the provision covers 

‘‘any applicable employment-related 

laws or regulations,’’ it is unnecessary to 

specifically list each category of 

violation covered. 

For instance, with respect to the 

housing-related violations noted by one 

commenter, because H–2A employers 

are required to provide employee 

housing, the laws and regulations 


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75The ICE Tip Form is available online at https:// 

www.ice.gov/webform/ice-tip-form (last visited July 

29, 2024). Anonymous tips may alternately be 

reported to ICE via the toll-free ICE Tip Line, (866) 

347–2423. 

governing the provision of such housing 

would constitute ‘‘applicable 

employment-related laws and 

regulations,’’ and a final determination 

that an H–2A employer had violated 

such laws or regulations in its provision 

of housing to workers could potentially 

call into question the petitioner’s 

intention or ability to comply with 

program requirements. In addition, 

while another commenter’s suggestion 

to institute specific training 

requirements for workers is outside of 

the scope of this rulemaking, to the 

extent that current or future laws or 

regulations prescribe specific training 

requirements applicable to H–2 workers, 

they would likewise be considered 

‘‘applicable employment-related laws or 

regulations’’ for the purposes of this 

provision. 

Comment: A research organization 

and a union suggested that USCIS create 

‘‘a list of key labor, employment, wage 

and hour, civil rights, disability, antitrafficking, and anti-discrimination 

laws’’ that if an employer violated, 

would establish evidence that they are 

unlikely to follow employment and 

immigration laws and thus, be 

prohibited from having a petition 

approved for an H–2 worker. The 

research organization added that DHS 

should make denial of petitions based 

on violations of these laws mandatory if 

the violations had occurred in the 

preceding 5 years. The commenters also 

suggested that a list of violations work 

best in tandem with a ‘‘front-end 

screening process’’ from DOL. As 

described by the commenters, this 

‘‘front-end screening process’’ would 

require employers to first register with 

DOL for eligibility to use the program. 

DOL would then screen the employers’ 

records on compliance with labor and 

employment laws up front at the TLC 

stage. However, the commenters 

concluded that, even absent a new 

screening process at the DOL level, DHS 

should, at a minimum, build on 8 CFR 

214.2(h)(10)(iv)(B) by creating a list of 

key violations, which could make 

significant progress in keeping 

lawbreaking employers out of the H–2 

programs. 

Response: DHS declines to create a 

specific list of additional legal 

violations or to make a violation on this 

list a specific ground for mandatory 

denial if the violation occurred within 

the preceding 5 years. By including a 

very broad scope for the types of 

violation determinations that may lead 

to discretionary denial provision at 

214.2(h)(10)(iv)(B) generally and the 

catch-all provision at 

214.2(h)(10)(iv)(B)(3) specifically, DHS 

recognizes that the violations 

underlying these determinations can 

vary widely in nature and severity, and 

believes it is appropriate to maintain a 

discretionary analysis that will allow 

consideration on a case-by-case basis. 

Comment: A union urged DHS to 

create a mechanism for public entities, 

such as labor unions and advocacy 

groups, to report employers that have 

committed violations or might be 

attempting administrative changes to 

avoid successor in interest 

consequences, considering the breadth 

and scope of H–2 employers and 

recruiters. 

Response: DHS declines to create a 

separate mechanism for public entities 

to report suspected immigration benefit 

fraud and abuse, which would include 

employer violations and employers 

undertaking administrative changes 

solely to avoid successor in interest 

consequences. Instead, DHS encourages 

public entities to report such 

information through the existing ICE 

Tip Form or other tip forms, as 

appropriate.75

Comment: While expressing support 

for the mandatory and discretionary 

denials for certain violations section, an 

advocacy group urged the Department to 

create mechanisms for former 

employees of barred petitioners to 

connect with alternative H–2 employers, 

such as a recruitment database. The 

commenter reasoned that certain H–2 

‘‘sending communities’’ have limited 

numbers of recruiters and employers, 

which causes workers to decide 

between an abusive H–2 job or no job 

at all. The commenter added that the 

exclusion of an abusive employer from 

the program might result in a loss of 

economic opportunities for workers 

who chose the job out of necessity. 

Response: DHS appreciates the 

commenters’ concerns and suggestions 

but will not be adopting the suggestions 

as part of this final rule. While DHS 

appreciates the commenters’ concerns 

about the need to provide workers with 

alternative non-abusive employers, DHS 

does not match or otherwise facilitate 

recruitment between an H–2 worker and 

a prospective H–2 employer. Creating a 

recruitment database or other 

mechanism for matching workers with 

H–2 employers is outside the scope of 

this rule. However, DHS may continue 

to consider these suggestions outside of 

the regulatory process. 

3. Compliance Reviews and Inspections 

Comment: Some commenters, 

including a research organization and a 

few unions, expressed support for 

USCIS’ investigative authority to ensure 

employers’ compliance with the 

proposed rule. A couple of unions urged 

USCIS to use the proposed rule to 

ensure confidentiality in USCIS 

interviews and explicitly mandate that 

USCIS interviews with H–2 employees 

take place without the employer or their 

representative present. A union 

proposed modified language for the 

discussion of site visits at 8 CFR 

214.2(h) to specify that ‘‘[i]nterviews 

with H–2B workers must be taken in 

confidence,’’ similar to DOL’s DavisBacon regulations on prevailing wage 

labor standards investigations. See 29 

CFR 5.6(a)(3). This commenter 

concluded that, if an H–2 worker knows 

that an interview is taken in confidence 

and that its contents will not be 

reported back to the employer, the H– 

2 worker will be empowered to speak 

more freely about potential violations. 

Response: The regulatory text in this 

rulemaking states that petitioners and 

employers must agree to allow USCIS to 

‘‘interview [ ] 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.’’ New 8 CFR 

214.2(h)(5)(vi)(A), (h)(6)(i)(F). As such, 

the regulatory text already states that 

employee interviews may be conducted 

without the employer or employer’s 

representative present. DHS declines to 

add regulatory text mandating that 

employee interviews take place without 

the employer or their representative 

present because of the operational and 

logistical issues it could present. 

Additionally, some employees may have 

a genuine wish to have an employer’s 

representative present and USCIS may 

grant that request. 

DHS declines the suggested revision 

to the regulatory text to state that 

interviews of H–2 workers ‘‘must be 

taken in confidence.’’ DHS recognizes 

that workers providing information to 

USCIS officers during interviews can 

place the worker in a precarious 

position, and that assurances of 

confidentiality may encourage a worker 

to speak more freely. DHS anticipates 

that the expansion of the whistleblower 

protections in this rule will help 

counteract the potential negative 

consequences that workers may face 

when cooperating with USCIS officers 

in interviews. To the extent practicable, 

USCIS seeks to protect the privacy of 


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76 Dept. of Homeland Security, ‘‘Guidelines for 

Enforcement Actions in or Near Protected Areas’’ 

(Oct. 27, 2021), https://www.dhs.gov/sites/default/ 

files/publications/21_1027_opa_guidelinesenforcement-actions-in-near-protected-areas.pdf. 

workers when using information they 

have provided to support any 

adjudicative decision. However, USCIS 

must also adhere to 8 CFR 

103.2(b)(16)(i) which states that for any 

decision based on derogatory 

information unknown to the petitioner, 

the petitioner will be advised of that fact 

and offered an opportunity to rebut the 

information. DHS also recognizes that 

sometimes workers may genuinely 

prefer to speak with their employer 

present. In that situation, USCIS may 

comply with the worker’s preference 

and decline to remove the worker from 

the site to conduct the interview in 

confidence. 

Comment: A couple of commenters, 

including a religious organization and a 

trade association, expressed support for 

USCIS’ clarification of the scope and 

potential consequences for employers 

who fail to fully cooperate with USCIS 

with respect to on-site inspections. 

These commenters emphasized the 

importance of employers understanding 

what is required of them for on-site 

inspections and the consequences for 

noncompliance so that they avoid 

unnecessary penalties. A research 

organization recommended DHS repeal 

its October 27, 2021 policy 

memorandum, Guidelines for 

Enforcement Actions in or Near 

Protected Areas,76 so that USCIS can 

broadly exercise the enforcement 

actions (including site inspections) 

proposed in the proposed rule, rather 

than being limited to certain areas or 

persons. 

Response: DHS agrees with 

commenters that by providing clear 

requirements and expectations for 

inspections, verification, and 

compliance reviews, and adding 

transparency to the potential 

consequences of non-compliance, 

petitioners will have the information 

necessary to remain in compliance with 

the requirements of the H–2 program. 

Regarding the mentioned policy 

memorandum, USCIS does not 

anticipate that the requirements of that 

memorandum would interfere with the 

activities of USCIS officers conducting 

on-site inspections in a way that would 

limit their ability to interview pertinent 

individuals. Importantly, USCIS 

inspections, verifications, and 

compliance reviews are not enforcement 

actions, but rather are information 

gathering actions to ensure that entities 

remain in compliance with the terms 

and conditions of the H–2 petition that 

was filed with USCIS. As noted in the 

proposed rule, the petitioner will be 

informed of and given the chance to 

respond to any information gathered 

from the site visit. 

Comment: A professional association 

expressed support for the proposed 

rule’s strengthening of USCIS activities 

such as audits and investigations, but 

opposed the provision that would allow 

government access to H–2A housing, 

calling this intrusive and burdensome. 

The professional association further 

stated that USCIS investigations should 

only include material and information 

collection related to H–2A program 

compliance. 

Response: DHS appreciates the 

commenter’s concern but will retain the 

language requiring H–2A petitioners 

and employers to allow access to sites 

where workers are or will be housed. 

This requirement is important to ensure 

USCIS has access to the workers 

themselves during the course of 

compliance review activities. As stated 

in the preamble of the NPRM, USCIS 

does not and will not conduct 

inspections regarding the standard of 

housing provided, however such 

inspections may, if in accordance with 

relevant law, be conducted by other 

Federal, State, or local agencies. 88 FR 

65040, 65061 (Sept. 20, 2023). 

Comment: Several individual 

commenters expressed concern about 

what standards USCIS would use to 

define noncooperation during on-site 

visits. Similarly, some commenters, 

including a business association, a 

professional association, and a couple of 

trade associations, expressed concern 

with the term ‘‘fully cooperate’’ used in 

the proposed rule at 88 FR 65040, 65061 

(Sept. 20, 2023), writing that USCIS is 

unclear in explaining how it will decide 

what cooperation during site visits looks 

like. 

Response: As discussed in the 

proposed rule, DHS’s goal is to provide 

transparency to the compliance review 

process so that entities and individuals 

subject to those processes understand 

that USCIS’ inability to verify pertinent 

facts, including where such inability is 

due to entities’ or individuals’ failure to 

fully cooperate, may result in denial or 

revocation of the petition. Id. With this 

rule, DHS is codifying its existing 

authority and clarifying the scope of 

inspections and the consequences of a 

refusal or failure to fully cooperate with 

these inspections in response to these 

comments. See new 8 CFR 

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

214.2(h)(6)(i)(F)(2). In response to the 

commenters’ request for clarification as 

to what cooperation during site visits is 

expected, DHS notes preliminarily that 

the determination whether a person or 

entity is ‘‘fully cooperating’’ with a DHS 

inspection will depend on the facts of 

each case. In general, to ‘‘fully 

cooperate’’ in this context, entities 

would be expected to comply with the 

scope of the reviews and be responsive 

to investigators, including by: granting 

access to the premises, making a 

representative of the petitioner or 

employer available for questions, 

submitting or allowing review of 

pertinent records, providing access to 

workers and allowing interviews with 

such employees to take place in the 

absence of the employer or employer’s 

representative and at a location 

mutually agreed to by the employee and 

USCIS officers, which may or may not 

be on the employer’s property. Full 

cooperation also generally includes 

providing access to the sites where labor 

is performed and to worker housing, if 

applicable. 

As described in the proposed rule, a 

petitioner or employer failing or 

refusing to fully cooperate ‘‘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 HR 

records pertaining to the 

beneficiary(ies). Failure or refusal to 

fully cooperate could also include 

situations where a petitioner or 

employer agreed to speak but did not 

provide the information requested 

within the time period specified, or did 

not respond to a written request for 

information within the time period 

specified.’’ 88 FR 65040, 65061 (Sept. 

20, 2023). Importantly, no denial or 

revocation for USCIS’ inability to verify 

pertinent facts based on non-compliance 

would occur without the petitioner first 

being given notice of USCIS finding 

non-compliance and having a chance to 

rebut and present information on its 

own behalf in compliance with 8 CFR 

103.2(b)(16). 

Comment: Some commenters 

expressed opposition to the application 

of investigative authority to any 

documents or areas that another H–2 

regulatory body already inspects and 

encouraged USCIS to coordinate with 

other agencies to avoid wasting 

Department or employer resources on 

duplicative reviews. Likewise, a joint 

submission and a professional 

association suggested USCIS may be 

overstepping its subject matter expertise 

and regulatory bounds when it comes to 

employment matters, noting specifically 


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77See INA sec. 291, 8 U.S.C. 1361; see also 

USCIS, Policy Manual, Chapter 4—Burden and 

Standards of Proof (‘‘The burden of proof to 

establish eligibility for an immigration benefit 

always falls solely on the benefit requestor. The 

burden of proof never shifts to USCIS.’’), https://

www.uscis.gov/policy-manual/volume-1-part-echapter-4. 

78See, e.g., INA secs. 235(d)(3), 287(a)(1), (b); 8 

U.S.C. 1225(d)(3), 1357(a)(1), (b). 

79As noted in the preamble of the USCIS fee rule, 

DHS interprets 8 U.S.C. 1356(v)(2)(B) as providing 

supplemental funding to cover activities related to 

fraud prevention and detection and not prescribing 

that only those funds may be used for that purpose, 

and FDNS is funded from both the IEFA and the 

Fraud Prevention and Detection Account. 89 FR 

6194, 6247 (Jan. 31, 2024). 

80See Conference Report to accompany H.R. 4567 

[Report 108–774], ‘‘Making Appropriations for the 

Department of Homeland Security for the Fiscal 

Year Ending September 30, 2005,’’ p. 74 (Oct. 9, 

2004), https://www.gpo.gov/fdsys/pkg/CRPT108hrpt774/pdf/CRPT-108hrpt774.pdf. 

81Pursuant to 8 CFR 2.1, all authorities and 

functions of the Department of Homeland Security 

to administer and enforce the immigration laws are 

vested in the Secretary of Homeland Security. The 

Secretary of Homeland Security may, in the 

Secretary’s discretion, delegate any such authority 

or function to any official, officer, or employee of 

the Department of Homeland Security, including 

delegation through successive redelegation, or to 

any employee of the United States to the extent 

authorized by law. Also, because INA sec. 103(a)(4) 

refers to ‘‘Service’’, i.e. Legacy INS, see also 8 CFR 

1.2 which defines Service as ‘‘U.S. Citizenship and 

Immigration Services, U.S. Customs and Border 

Protection, and/or U.S. Immigration and Customs 

Enforcement, as appropriate in the context in which 

the term appears.’’ 

82 Delegation to the Bureau of Citizenship and 

Immigration Services, Department of Homeland 

Continued 

that DOL and State workforce agencies 

already exercise the same investigative 

authority that DHS seeks to codify. 

Similarly, while commenting on DHS’s 

proposed codification of its authority for 

on-site inspections, a few commenters, 

including a professional association and 

trade associations, remarked that USCIS 

should ensure it is not overreaching or 

superseding the regulatory authority of 

other government entities. 

Response: USCIS officers conduct 

verification and compliance reviews, 

including on-site verifications, to ensure 

compliance with the terms and 

conditions of the H–2 petition filed with 

USCIS. The focus of these reviews is on 

information that is needed by USCIS 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. 

USCIS officers routinely coordinate 

with others in the Department and with 

other agencies to reduce duplicative 

investigations when possible. However, 

the occurrence of a review by another 

agency does not absolve the employer of 

its responsibility to fully cooperate with 

USCIS verification and compliance 

reviews, including on-site inspections. 

It remains the petitioner’s burden to 

demonstrate eligibility for the benefit 

sought.77

DHS recognizes that other agencies 

may exercise investigative authority 

pertaining to their respective mandates. 

However, DHS continues to exercise its 

own authority pursuant to INA sec. 

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,78 under which USCIS conducts 

inspections, evaluations, verifications, 

and compliance reviews, to ensure that 

a petitioner and beneficiary are eligible 

for the benefit sought and that all laws 

have been complied with before and 

after approval of such benefits. 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 codifying its 

currently exercised authority, DHS will 

continue to review matters pertinent to 

H–2A and H–2B petition approval. 

Although some issues, such as the 

duties of the offered job, may be 

applicable to both DHS authority and 

the authority of another agency, that 

overlap does not signify DHS 

‘‘overstepping’’ its authority in 

reviewing information pertaining to that 

issue. To the extent that multiple 

agencies are involved in the 

administration of the H–2A and H–2B 

program, DHS and other agencies may 

each maintain independent authority to 

ensure that entities and individuals are 

abiding by the terms and conditions of 

the H–2A and H–2B programs. 

a. Legal Authority for Compliance 

Reviews and Inspections 

Comment: A research organization 

stated that the proposed on-site 

inspections by USCIS FDNS are illegal, 

asserting that there is no authority to 

authorize USCIS to conduct on-site 

inspections. The commenter stated that 

the HSA refers to USCIS’ duties as 

solely immigration-related 

‘‘[a]djudications,’’ and Congress has 

never enacted any statute that overturns 

the prohibition on USCIS engaging in 

law enforcement, investigations, and 

intelligence gathering. The commenter 

went on to state that the HSA expressly 

prohibits any reorganization of agency 

functions by the Executive, and the 

NPRM provides no citation for FDNS’s 

authority to conduct investigations and 

inspections. Further, the commenter 

said INA sec. 286(m) provides that 

Immigration Examinations Fee Account 

(IEFA) funds are earmarked ‘‘for 

expenses in providing immigration 

adjudication and naturalization 

services,’’ and if USCIS insists on 

moving forward with FDNS inspections, 

it should clearly state that those 

inspections will not be paid for by IEFA 

funds. The commenter concluded that 

DHS should follow the HSA, transfer all 

investigations to ICE—which has 

express legal authority and capacity to 

carry out investigative and intelligencegathering activities, and cease the 

unlawful diversion of IEFA funds to 

FDNS. 

Response: DHS disagrees with the 

commenter that it lacks legal authority 

to conduct on-site inspections through 

USCIS FDNS. DHS also disagrees that 

DHS should transfer all investigations to 

ICE. Finally, DHS disagrees with the 

assertion that it is unlawfully diverting 

IEFA funds to FDNS. Specifically, this 

rulemaking codifies existing authorities 

exercised by USCIS FDNS in the Code 

of Federal Regulations, and does not 

include any changes to the funding 

structure or sources of FDNS.79

In 2004, USCIS established the FDNS 

in response to a congressional 

recommendation to establish an 

organization ‘‘responsible for 

developing, implementing, directing, 

and overseeing the joint USCIS–ICE 

anti-fraud initiative and conducting law 

enforcement/background checks on 

every applicant, beneficiary, and 

petitioner prior to granting immigration 

benefits.’’ 80 FDNS also oversees a 

strategy to promote a balanced operation 

that distinguishes USCIS’ administrative 

and adjudicatory authority, 

responsibility, and jurisdiction from 

ICE’s criminal investigative authority. 

The site visits and inspections 

conducted by FDNS are authorized 

through multiple legal authorities. The 

Secretary of Homeland Security is 

authorized to administer and enforce 

the immigration laws. INA sec. 

103(a)(1), 8 U.S.C. 1103(a)(1). The 

Secretary may confer this authority to 

any DHS employee, to the extent 

permitted by law. INA sec. 103(a)(4), 8 

U.S.C. 1103(a)(4); HSA sec. 102(b)(1), 6 

U.S.C. 112(b)(1); 8 CFR 2.1.81 Moreover, 

under 6 U.S.C. 112(a)(3), all functions of 

officers, employees, and organizational 

units of [DHS] are vested in the 

Secretary. The Secretary of Homeland 

Security delegated to USCIS the 

authority to administer the immigration 

laws, including the authority to 

investigate civil and criminal violations 

involving applications or 

determinations for benefits.82 Following 


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103260 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

Security Delegation Number 0150.1, Issue Date: 06/ 

05/2003. The Bureau of Citizenship and 

Immigration Services was the initial name for 

USCIS following the dissolution of the Immigration 

and Naturalization Service. 

83See Delegation 0150.1(II)(H) (June 5, 2003). 

84See Delegation 0150.1(II)(I) (June 5, 2003). 

85See Delegation 0150.1(II)(S) (June 5, 2003). 

86 In Section (II)(I) of DHS Delegation Number 

0150.1, Delegation to the Bureau of Citizenship and 

Immigration Services, and in section 2(I) of DHS 

Delegation Number 7030.2, Delegation of Authority 

to the Assistant Secretary for the Bureau of 

Immigration and Customs Enforcement, USCIS and 

ICE received concurrent authority to investigate 

fraud involving immigration benefits available 

under the INA. In their respective delegations, 

USCIS and ICE were further directed by the 

Secretary of Homeland Security to coordinate the 

concurrent responsibilities provided under these 

Delegations. A memorandum of agreement was 

undertaken to advance the coordination between 

USCIS and ICE, as authorized by these Delegations. 

The Secretary of Homeland Security has properly 

delegated authority to immigration officers, 

including immigration officers who work for FDNS. 

87Memorandum of Agreement between USCIS 

and ICE on the Investigation of Immigration Benefit 

Fraud, September 25, 2008; see also Memorandum 

of Agreement between USCIS and ICE Regarding 

the Referral of Immigration Benefit Fraud and 

Public Safety Cases (Dec. 15, 2020). 

88 Matter of P. Singh, 27 I&N Dec. 598, 609 (BIA 

2019) (‘‘Detailed reports from on-site visits and field 

investigations are especially important pieces of 

evidence that may reveal the presence of fraud.’’). 

89See ‘‘Improving Protections for Workers in 

Temporary Agricultural Employment in the United 

States,’’ 88 FR 63750 (Sept. 15, 2023). DOL 

subsequently published a corresponding final rule 

on April 29, 2024. 89 FR 33898. 

the dissolution of the Immigration and 

Naturalization Service (INS) and the 

creation of DHS on March 1, 2003, 

authority to ‘‘administer the 

immigration laws’’ was delegated to 

USCIS.83

USCIS was delegated the ‘‘authority to 

investigate alleged civil and criminal 

violations of the immigration laws, 

including but not limited to alleged 

fraud with respect to applications or 

determinations within the USCIS, and 

make recommendations for 

prosecutions, or other appropriate 

action when deemed advisable.’’ 84

USCIS also has the ‘‘authority to 

interrogate aliens and issue subpoenas, 

administer oaths, take and consider 

evidence, and fingerprint and 

photograph aliens under sections 287(a), 

(b), and (f) of the INA, 8 U.S.C. 1357(a), 

(b), and (f), and under 235(d) of the INA, 

8 U.S.C. 1225(d).’’ 85

USCIS and ICE were granted 

concurrent authority to investigate 

immigration benefit fraud.86 Through 

written agreement, ICE agreed to take 

the lead on criminal and other 

enforcement investigations. USCIS 

agreed to focus on detecting and 

combating fraud associated with 

adjudicating applications and 

petitions.87 The Homeland Security Act 

of 2002, Public Law 107–296, 116 Stat. 

2135, granted the Secretary of 

Homeland Security the authority to 

administer and enforce provisions of the 

INA, as amended, INA sec. 101, 8 U.S.C. 

1101 et seq. The Secretary, in Homeland 

Security Delegation No. 0150.1, 

delegated certain authorities to USCIS. 

FDNS’s activities fall squarely within 

this delegation. 

Further, regulations support the FDNS 

activities that are described in this rule. 

For example, 8 CFR 1.2, defines 

‘‘immigration officer’’ to include a broad 

range of DHS employees including 

immigration agents, immigration 

inspector, immigration officer, 

immigration services officer, 

investigator, and investigative assistant. 

As duly appointed immigration officers, 

FDNS immigration officers may 

question noncitizens based on the 

authority delegated by the Secretary of 

Homeland Security. Furthermore, INA 

sec. 287(a)(1), 8 U.S.C. 1357(a)(1), 

provides any officer or employee of the 

Service with the authority to (pursuant 

to DHS regulations) without warrant 

‘‘interrogate any alien or person 

believed to be an alien as to his right to 

be or remain in the United States.’’ See 

also 8 CFR 287.5. The regulation at 8 

CFR 287.8(b) specifically sets out 

standards for interrogation and 

detention not amounting to arrest, 

wherein immigration officers can 

question individuals so long as they do 

not restrain the person they are 

questioning. The Board of Immigration 

Appeals has recognized that the reports 

produced by FDNS based on site visits 

and field investigations are ‘‘especially 

important pieces of evidence.’’ 88 These 

investigations and reports help ensure 

that adjudicative decisions are made 

with confidence by providing 

information that would otherwise be 

unavailable to USCIS. 

With respect to the assertions that 

DHS is unlawfully diverting funds to 

FDNS, DHS also disagrees with such 

assertions. USCIS’ funding authority for 

FDNS is discussed in detail in the Fee 

Final Rule where DHS addressed similar 

comments. 89 FR 6194, 6246–6248 (Jan. 

31, 2024); 89 FR 20101 (Apr. 1, 2024). 

4. Whistleblower Protection 

a. Support for Whistleblower 

Protections 

Comment: Many commenters 

expressed support for incorporating 

whistleblower protections in the 

proposed rule, with some commenters, 

including some unions, stating that 

workers would feel safer in reporting 

abuses or violations without fear of 

retaliation. A joint submission stated 

their support for expanding the 

activities covered under whistleblower 

protections. 

A couple of advocacy groups 

expressed strong support for the 

provision, particularly the inclusion of 

seeking legal services as a protected 

activity and for considering loss of H– 

2 status due to an employer’s retaliatory 

action an ‘‘extraordinary circumstance,’’ 

and urged DHS to finalize it as soon as 

possible. An advocacy group also 

expressed support for expanding the 

definition of protected activities, even if 

it would result in the language for H– 

2 differing from the H–1B whistleblower 

provision. An individual commenter 

expressed support for the 

implementation of H–2 whistleblower 

protection in alignment with protections 

for H–1B workers. The commenter 

reasoned that such protections would 

not only give nonimmigrants the ability 

to voice concerns about wrongdoing, 

malpractice, or fraud, but they would 

also hold industries accountable, 

creating a better environment for H–2 

workers. Similarly, a union expressed 

that allowing H–2 workers the flexibility 

to call out employers’ program 

violations makes all workers safer. 

Response: DHS appreciates the 

comments about the need for 

whistleblower protections for H–2 

workers. DHS anticipates that these 

revisions will help H–2 workers feel 

safer in reporting violations, improving 

worker conditions for all employees at 

the location. 

Comment: Discussing a series of court 

cases that emphasized ‘‘the crucial 

nature of provisions protecting workers 

against employer reprisals for filing 

claims and opposing employer 

violations’’ and expansively interpreted 

the types of conduct protected against 

retaliation, a joint submission expressed 

support for the proposed whistleblower 

provisions and DHS’s overall efforts to 

enhance worker protections as part of 

the broader changes alongside the DOL’s 

proposed changes to the H–2A 

program.89 The commenters stated that 

‘‘the total of such systemic change is 

especially essential’’ to protecting 

vulnerable H–2 workers, many of whom 

‘‘are vulnerable to threats of violence or 

other forms of retaliation against their 

family members in their home country, 

as well as to recruiter threats to blacklist 

them from any future H–2 

employment.’’ 

Response: DHS agrees with the 

commenters that H–2 workers are 

vulnerable to retaliation and expects 

that this rule, along with existing DOL 


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90See, e.g., 20 CFR 655.135 (H–2A); 29 CFR 501.4 

(H–2A); 20 CFR 655.20(n) (H–2B); 29 CFR 503.16(n) 

(H–2B). 

91Stericycle, Inc., 372 NLRB 113, 114 (NLRB Aug. 

2, 2023). 

92The English language version of this pamphlet 

is available at DOS, ‘‘Know Your Rights; National 

Human Trafficking Hotline,’’https://travel.state.gov/ 

content/dam/visas/LegalRightsandProtections/ 

Wilberforce/Wilberforce-ENG-100116.pdf. 

regulations,90 will encourage H–2 

workers to report violations with less 

fear of retaliation. 

Comment: While expressing support 

for whistleblower protections in the 

proposed rule, several commenters, 

including trade associations and a 

professional association, urged USCIS to 

better define terms such as ‘‘retaliatory 

action’’ and ‘‘nondocumentary 

documentation.’’ A couple of the trade 

association commenters added that 

employers require these definitions to 

implement training accordingly. A 

union recommended DHS include 

‘‘charging of illegal recruitment fees’’ as 

an example of a labor dispute for which 

claims would be protected under the 

whistleblower protections, as well as 

ensuring that collective bargaining and 

other union activities warrant 

whistleblower protection. 

Response: DHS appreciates the 

general support but declines to adopt 

the specific suggestions. The comments 

requesting that DHS define certain terms 

did not offer suggestions as to what 

those definitions should be. As 

explained in the proposed rule, to 

ensure flexibility, and to track the 

current approach for H–1B petitions at 

8 CFR 214.2(h)(20), DHS did not 

propose to define ‘‘retaliatory action.’’ 

Nevertheless, DHS offered a nonexclusive list of examples, to include 

harassment, intimidation, threats, 

restraint, coercion, blacklisting, 

intimidating employees to return back 

wages found due (‘‘kickbacks’’), or 

discrimination, which could dissuade 

an employee from raising a concern 

about a possible violation or engaging in 

other protected activity. In determining 

what constitutes ‘‘retaliatory action,’’ 

DHS will consider all relevant facts 

presented, including those 

vulnerabilities particular to H–2 

workers. DHS also notes that it did not 

use the phrase ‘‘nondocumentary 

documentation.’’ Instead, DHS proposed 

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.’’ In order to 

allow flexibility in the types of 

documentation that may be submitted, 

DHS did not propose specifying any 

particular form that a ‘‘claim’’ or the 

‘‘credible documentary evidence’’ must 

take. DHS recognizes that credible 

evidence can take many forms, some of 

which it might not be able to foresee, 

and anticipates that the flexible credible 

documentary evidence standard, 

without further restrictions, will balance 

the need for evidence with the special 

challenges vulnerable H–2 workers may 

face in collecting evidence. 

Comment: A union suggested that the 

reasonableness of a claim of program 

violations should be considered from 

the H–2 worker’s perspective, similar to 

the decision in Stericycle, Inc., in which 

the National Labor Relations Board 

explained that, in analyzing whether a 

work rule has a ‘‘reasonable tendency to 

chill employees from exercising their 

. . . rights,’’ it will ‘‘interpret the rule 

from the perspective of an employee 

who is subject to the rule and 

economically dependent on the 

employer . . . .’’ 91 The commenter 

recommended DHS use similar language 

to revise 8 CFR 214.2(h)(10)(iv)(D)(2). 

Response: DHS appreciates this 

suggestion. While DHS is not bound by 

NLRB’s decision in Stericycle, Inc. 

decision, DHS recognizes the 

importance of setting a standard that 

considers the perspective of an 

employee who is subject to an 

employer’s work rule and economically 

dependent on the employer. As 

discussed throughout the proposed rule 

and this final rule, H–2 workers are a 

vulnerable population at risk for 

retaliation against themselves and their 

family. Accordingly, new 8 CFR 

214.2(h)(20) states that ‘‘USCIS will 

determine the reasonableness of any 

claim from the perspective of a 

reasonable person in the H–2A or H–2B 

worker’s position.’’ This will be similar 

to the language proposed and finalized 

for 8 CFR 214.2(h)(10)(iv)(D)(2), as 

recommended by the commenter. 

Comment: A union expressing 

support for these protections urged DHS 

to ensure H–2 workers receive 

training—in a language they 

understand—on their rights just prior to 

their departure for the United States. A 

religious organization expressing 

support for the proposed whistleblower 

protections recommended that DHS 

provide the protections in 8 CFR 

214.2(h)(2) to workers in a language 

they understand. 

A union stated that DHS should work 

alongside other Federal agencies to 

improve access to and expedite requests 

for status protections during a 

whistleblower claim. A joint submission 

similarly remarked that other agencies 

with a similar purview, such as DOL, do 

not have enough time to investigate 

claims or ensure temporary immigration 

relief for claimants. Accordingly, the 

commenter, along with an advocacy 

group, urged for the proposed policy to 

be adopted immediately on an interim 

basis until it is finalized. 

An advocacy group cited multiple 

sources demonstrating the 

pervasiveness of blacklisting—a form of 

employer retaliatory action that can 

make it difficult for H–2 workers to find 

new positions—in the H–2 program, 

creating added fear that prevents H–2 

workers from coming forward as 

whistleblowers. The group urged DHS 

to take further steps to specifically 

counter blacklisting, including (but not 

limited to) providing work authorization 

and parole to any worker who brings a 

credible report of blacklisting to a labor 

agency. 

Response: DHS appreciates these 

comments and anticipates that this final 

rule will adequately address their 

concerns insofar as the issues are within 

DHS jurisdiction. DHS agrees that 

workers should understand their rights. 

Currently, DOS provides H–2 visa 

recipients with a Know Your Rights 

informational pamphlet, sometimes 

known as a Wilberforce pamphlet.92

The pamphlet explains that retaliation 

against workers reporting abuse is 

unlawful and provides information on 

programs available to victims of 

retaliation. The pamphlet is currently 

available in more than 50 languages, 

with new translations being added on a 

continual basis. 

DHS also appreciates the interest in 

interagency efforts to reduce retaliation. 

DHS notes that DOL recently broadened 

20 CFR 655.135(h) to explicitly protect 

certain activities workers must be able 

to engage in without fear of 

intimidation, threats, and other forms of 

retaliation. 89 FR 33898, 33998–99 (Apr. 

29, 2024). DHS anticipates that 

interagency cooperation is possible 

without additional revisions to this rule. 

While DHS agrees with the commenter 

that protections from retaliation are 

urgently needed, DHS is finalizing this 

rule rather than implementing this one 

aspect of the proposal on an interim 

basis. 

DHS recognizes the harms caused by 

blacklisting and appreciates the 

commenters’ concerns about this issue. 

DHS explicitly stated in the preamble to 

the proposed rule that retaliatory 

actions include blacklisting and 

anticipates that the final rule, as drafted, 

will help address such actions by an 

employer. DHS will not, in this rule, 


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93USCIS, ‘‘DHS Support of the Enforcement of 

Labor and Employment Laws,’’ https://

www.uscis.gov/working-in-the-united-states/ 

information-for-employers-and-employees/dhssupport-of-the-enforcement-of-labor-andemployment-laws (last updated Apr. 11, 2024). 

implement further steps, such as 

providing work authorization and 

parole to any worker who brings a 

credible report of blacklisting to a labor 

agency. DHS did not propose to provide 

parole or work authorization in these 

circumstances, and the suggestions 

exceed the scope of this rulemaking. 

However, DHS notes that as a matter of 

prosecutorial discretion, it may defer 

removal action against individual 

noncitizens on a case-by-case basis, and 

that a noncitizen granted such deferred 

action may, per 8 CFR 274a.12(c)(33), 

apply for and obtain employment 

authorization for the period of deferred 

action if they establish ‘‘an economic 

necessity for employment.’’ 93 This 

process may, under appropriate 

circumstances, be applicable to workers 

who bring credible reports of 

blacklisting to a labor agency. 

Comment: A religious organization 

supported the proposed whistleblower 

provision but recommended that DHS 

simplify, outline, and provide to 

workers an explanation of this process 

‘‘so that the workers are able to submit 

complaints to DHS regarding 

retaliation.’’ The commenter also urged 

DHS to include in the whistleblower 

process the opportunity for 

certifications (I–918 Supplement B) or 

declarations (I–914 Supplement B) for U 

or T visa status. 

Response: DHS appreciates the 

opportunity to clarify what might be a 

misunderstanding concerning the nature 

of the whistleblower provision at new 8 

CFR 214.2(h)(20)(ii). This provision, as 

proposed and as finalized, does not 

create a new process in which an H–2 

worker can submit a complaint 

regarding retaliation directly to DHS. 

Instead, this new provision allows a 

petitioner filing an H–2 petition 

requesting an extension of stay or 

change of status on behalf of a 

beneficiary to demonstrate that the 

beneficiary’s loss or failure to maintain 

H–2A or H–2B status was due to a 

retaliatory action from their employer. If 

DHS determines such documentary 

evidence to be credible, DHS may 

consider any loss or failure to maintain 

H–2 status by the beneficiary related to 

such retaliatory action as an 

‘‘extraordinary circumstance’’ for 

purposes of 8 CFR 214.1(c)(4) and 8 CFR 

248.1(b), and DHS may grant a 

discretionary extension of H–2 stay or a 

change of status to another 

nonimmigrant classification, as 

applicable. This provision does not 

affect the existing processes or 

requirements for an H–2 beneficiary to 

apply for certifications for U or T 

nonimmigrant status. 

b. Opposition to Whistleblower 

Protections 

Comment: Multiple commenters, 

including a joint submission, a 

professional association, and a State 

Government, expressed concern that the 

whistleblower protections as written 

give H–2 workers too much power and 

may incentivize workers to make bad 

faith claims about employer violations. 

Two commenters expressed concern 

that the standard was too broad, with 

one recommending limiting 

whistleblower protections to ‘‘serious 

violations involving health and safety,’’ 

while another felt a formal report 

should be required evidence. Similarly, 

a State Government remarked that with 

the proposed whistleblower protections, 

DHS would eliminate employers’ 

protections. 

A business association expressing 

opposition to the proposed 

whistleblower standards stated that H– 

2 workers are not as vulnerable as the 

proposed standards assume and DHS 

does not offer any specific evidence that 

these lowered standards would alleviate 

any vulnerability. A professional 

association questioned DHS’s authority 

to decide protected activities for 

whistleblowers. 

A couple of commenters, including a 

joint submission and an association of 

State Governments, urged DHS to clarify 

how the whistleblower provision would 

be enforced or how claims would be 

investigated. The association of State 

Governments expressed concern that the 

change in protections may be costly to 

employers and that employers may not 

receive due process protections. 

Response: DHS appreciates the 

commenters’ concerns about the 

broadness of the standard and the 

potential for bad faith claims of 

violations but declines to make changes 

in response to these comments. First, 

the ‘‘credible documentary evidence’’ 

standard should decrease any potential 

for frivolous or bad faith claims. 

Second, DHS does not anticipate that 

the new whistleblower protections 

would significantly incentivize 

beneficiaries to make false claims of 

retaliation. New 8 CFR 214.2(h)(20)(ii) 

does not create a new process for H–2 

beneficiaries to directly notify DHS of a 

violation of potential violation of their 

rights. Instead, new 8 CFR 

214.2(h)(20)(ii) will only apply when a 

petitioner files an H–2 petition 

requesting an extension of stay or 

change of status on behalf of an H–2 

beneficiary. An employer seeking to 

extend the stay of their own employee 

is unlikely to admit their own 

wrongdoing. Assuming a different 

employer was willing to advance a bad 

faith claim, DHS anticipates that the 

‘‘credible documentary evidence’’ 

standard should decrease that risk. 

Third, DHS emphasizes that these 

provisions are not intended to penalize 

employers. Instead, they are designed to 

better enable an employee who has a 

reasonable claim of retaliation to extend 

their stay or change status. A grant of 

the request for an extension of stay or 

change status for an H–2 worker under 

new 8 CFR 214.2(h)(20)(ii) based on a 

claim of retaliation by a specific 

employer will not, for example, trigger 

a discretionary or mandatory ground for 

denial of a petition filed by that 

employer. Only in cases where the 

claim leads to a separate proceeding that 

confirms an employer violation, with 

adequate notice and an opportunity to 

respond, would the employer face any 

adverse consequences. Because 

adjudications of the extension of stay or 

change of status requests are not 

punitive to a prior employer, DHS 

declines to elaborate further on how 

these extensions of stay or change of 

status requests will be adjudicated and 

does not believe that this provision 

raises due process concerns for 

employers. For the same reason, given 

that the adjudication of these requests 

does not, by itself, penalize an 

employer, DHS concludes there is no 

need to limit the types of whistleblower 

claims that can support an extension of 

stay or change of status request to 

formal reports or serious violations 

involving health and safety. 

E. Worker Flexibilities 

1. Grace Periods/Admission Periods 

a. General Support for Revisions to 

Grace Periods 

Comment: Some commenters, 

including an advocacy group, a business 

association, and a joint submission, 

generally supported the proposed 

changes to grace periods. A professional 

association supported the proposed 

worker flexibilities granting grace 

periods to H–2 workers, especially H– 

2B workers. An advocacy group said the 

proposals to grant workers greater 

flexibility in the form of grace periods 

and extended periods of admission are 

important steps towards realizing 

mobility between H–2 employers and 

alleviating the harms caused by the H– 

2 program’s structure. A business 

organization stated that its members 

welcomed the proposed grace periods as 


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the increased flexibility in these grace 

periods will help them meet their 

workforce needs. The commenter noted 

that the grace periods will help workers 

settle, which alleviates stress for both 

the employer and employee, and will 

help companies seeking to hire 

additional workers. Some commenters 

generally supported the proposed preand post-validity grace periods (further 

discussed below) without providing 

specific rationale. 

Response: DHS appreciates these 

commenters’ feedback on the benefits of 

the new grace periods, which will 

improve worker mobility and 

protections as well as benefit employers. 

DHS will finalize the grace periods 

without change from the NPRM. 

b. Harmonization of H–2 Grace Periods 

Comment: Multiple commenters, 

mostly trade associations and a business 

association, appreciated the 

harmonization of pre- and post-validity 

grace periods between the H–2A and H– 

2B programs, with commenters saying it 

would provide workers and employers 

with needed flexibilities to minimize 

challenges associated with transferring 

workers to a new contract. A joint 

submission said the proposed pre- and 

post-validity periods would be a 

desirable change that improves worker 

mobility and reduces the burden on 

both workers and employers. 

A couple of trade associations said 

that aligning these periods among both 

programs would help reduce potential 

confusion in understanding the 

Department’s ‘‘already overly 

complicated’’ regulatory structure 

governing the H–2A and H–2B 

programs. A joint submission similarly 

said the harmonization makes the two 

programs more efficient and provides 

uniformity in standards for affected 

employers and employees. An advocacy 

group said the alignment would 

improve certainty and predictability for 

H–2 workers and is a step towards 

improving H–2B workers’ ability to seek 

legal support if needed. An advocacy 

group wrote that ensuring that pre- and 

post-employment admissions periods 

align for H–2A and H–2B workers 

would make it easier for advocates to 

inform workers about their rights and 

would improve certainty and 

predictability for workers. Some 

commenters, including several business 

associations, said the harmonization 

also allows sufficient time for 

successive petitions to be filed and 

timely processed by USCIS prior to the 

next contract start date. 

Response: DHS appreciates the 

commenters’ feedback on the benefits of 

harmonizing the length of the pre- and 

post-validity grace periods for H–2A 

and H–2B workers and will finalize 

these grace periods without change. 

Comment: Without elaborating, a 

religious organization invited DHS to 

consider expanding the grace period for 

H–2 beneficiaries to be consistent with 

the grace period afforded to H–1B 

workers, stating that many of the 

proposed changes incorporate other H– 

1B protections to the H–2 programs. 

Response: The length of the new grace 

periods for H–2 workers finalized in this 

rule will be the same as, and in some 

cases longer than, the grace periods 

afforded to H–1B workers. Specifically, 

H–2A, H–2B, and H–1B workers will 

have a pre-validity grace period of up to 

10 days. New 8 CFR 214.2(h)(5)(viii)(B); 

8 CFR 214.2(h)(6)(vii); 8 CFR 214.1(l). 

H–2A and H–2B workers will have a 

post-validity grace period of up to 30 

days, while H–1B workers have a postvalidity grace period of up to 10 days. 

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

214.2(h)(6)(vii); 8 CFR 214.1(l). H–2A, 

H–2B, and H–1B workers will have a 

grace period for cessation of 

employment of up to 60 days. 8 CFR 

214.2(h)(13)(i)(C); 8 CFR 214.1(l). H–2A 

and H–2B workers will have a grace 

period of up to 60 days upon the 

revocation of the employer’s petition, 

but H–1B workers have no such grace 

period. New 8 CFR 214.2(h)(11). These 

different grace periods take into 

consideration the special vulnerabilities 

of H–2 workers. 

c. Post-Validity Grace Period of Up to 30 

Days Following Expiration of the 

Petition 

Comment: Some commenters 

specifically supported the proposed 

expansion of the grace period from 10 

to 30 days following the expiration of 

the petition for H–2B workers, with 

most stating that it would likely 

alleviate some of the pressure employers 

feel due to the statutory cap when 

timing the filing of subsequent petitions 

against the expiration of a previous 

contract. The commenters added that 

the expansion would provide H–2B 

workers the time and flexibility to find 

continued subsequent employment 

without risk. A business association, 

examining the grace period in 

combination with the enhanced 

portability provisions, wrote that 

employers are confident that the ability 

of H–2 workers to find subsequent 

employment would inure direct benefits 

to their companies. The commenter said 

this would help H–2B employers avert 

cap-related issues, as these individuals 

have already been subject to the cap and 

would not be subject to the cap if they 

transfer from one company to another in 

the same fiscal year. 

A professional association similarly 

stated that, with the unpredictability of 

DOL processing times and the 

unavailability of additional visa 

numbers, this proposed grace period 

gives workers the opportunity and the 

time needed to find alternative H–2 

employment from within the United 

States without having to potentially 

leave the United States and, if 

applicable, then subject themselves to 

the annual H–2B cap. The commenter 

also said that employers benefit, as this 

grace period will make it easier for them 

to transfer workers to their employ 

within the United States because the 

workers will remain in status for up to 

30 days after the expiration of their 

program end date. 

An advocacy group stated that, 

without this post-contract admission 

period, it would be ‘‘near impossible’’ 

for H–2 workers to take advantage of the 

proposed rule’s portability provisions, 

as workers seeking to use these 

flexibilities may need time to look for 

another job, or the start date of the new 

job may not align precisely with the end 

date of their existing job. The 

commenter went on to state that a 30- 

day post-contract grace period would 

give workers returning to their countries 

of origin after the end of their H–2 

contract period time to prepare for their 

departure. In addition, the commenter 

said the 30-day period would allow H– 

2 workers to address any violations of 

their rights by seeking legal assistance 

after they have finished employment, 

during regular business hours, and 

within the United States. A joint 

submission in support of the proposal 

stated that, where a worker seeks 

additional H–2 employment or where a 

worker seeks to pursue complaints 

relating to their employment, the 

current 10-day period of authorized 

presence is ‘‘grossly inadequate.’’ 

Response: As noted in the NPRM and 

by commenters, the extension of the 

post-validity grace period will benefit 

both H–2 workers and employers by 

facilitating the use of the new 

portability provision. It will also give 

workers more time to prepare for 

departure or applying for an extension 

of stay based on a subsequent offer of 

employment. As also noted by 

commenters, the extension of this grace 

period may also provide workers more 

time to address any violations of their 

rights and pursue complaints relating to 

their employment. 

Comment: A research organization 

stated that this 30-day grace period 

should be lengthened to at least 60 days 

to ensure that workers do not find 


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themselves out of status when they 

cannot find an additional employer 

within such a short period. 

Response: DHS declines to extend the 

length of the new post-validity grace 

period from up to 30 days to at least 60 

days. Workers who complete their 

contracted employment should know in 

advance when their status ended and 

should have sufficient time to prepare 

for departure or make other 

arrangements within the 30-day grace 

period finalized in this rule, compared 

to H–2 workers who unexpectedly find 

themselves out of employment and 

would be eligible, under this final rule, 

for a longer grace period of up to 60 

days. 

Comment: A trade association stated 

that, with the change of work 

authorization starting at the filing of the 

extension with USCIS, ‘‘extending the 

grace period to 60 days after the 

authorized work period is not 

necessary.’’ The commenter said this 

extension may cause issues with 

workers who do not have access to 

housing or give ‘‘bad player’’ employers 

the opportunity to continue 

employment without the proper work 

authorization. The commenter said 

changing the policy that work can start 

when USCIS receives the petition would 

already increase the worker’s ability to 

find employment by several additional 

days and should give employees 

appropriate time to find new 

employment. 

Response: Assuming this commenter 

is referring to the post-validity grace 

period at new 8 CFR 214.2(h)(5)(viii)(B) 

and 8 CFR 214.2(h)(6)(vii)(A) providing 

for a grace period of up to 30 days 

(rather than 60 days) following the 

expiration of the H–2B petition, DHS 

declines to eliminate or shorten this 

grace period as proposed. As 

acknowledged by other commenters, the 

extension of the post-validity grace 

period to 30 days for all H–2 workers 

provides valuable benefits not only for 

H–2 workers, but also for H–2 

employers by likely alleviating some of 

the pressure employers feel due to the 

statutory cap when timing the filing of 

subsequent petitions against the 

expiration of a previous contract. 

d. Support for 60-Day Grace Period 

Following Cessation of Employment 

Comment: Multiple commenters 

including a group of Federal elected 

officials, a union, and a professional 

association supported the proposal to 

provide a new 60-day grace period 

following cessation of H–2 employment 

if the worker was terminated, has 

resigned, or otherwise ceased 

employment prior to the end date of 

their authorized validity period. Some 

of these commenters said this grace 

period is essential to allowing H–2 

workers sufficient time to respond to the 

unexpected loss of employment by 

seeking new H–2 employment, 

exploring their legal options, or 

organizing their departure from the 

United States. A joint submission said 

that this new provision would improve 

worker mobility and reduce the 

administrative burden on workers and 

employers. A professional association 

stated that in situations usually outside 

of the worker’s control, the H–2 worker 

should be allowed to seek new 

employment. A union in support of this 

provision stated that, without time to 

search for and secure new employment, 

visa portability would not be practically 

accessible for H–2 workers. The 

aforementioned union and professional 

association, said the proposal is 

consistent with the benefits offered by 

other nonimmigrant classifications. 

Multiple commenters, including a 

couple of unions, a joint submission, 

and an advocacy group, supported the 

proposed grace period because it would 

enhance worker autonomy, flexibility, 

and mobility to leave unfair, unsafe, or 

abusive employment conditions and 

apply for alternative employment 

without the risk of losing their visa. A 

group of Federal elected officials stated 

that guest workers have a well-founded 

fear of retaliation from employers that 

often prevents them from speaking out 

and advocating for better working 

conditions, and it is extremely 

challenging for workers to change 

employers, even when employers break 

the law. Likewise, an advocacy group 

said this grace period is especially 

critical when workers are terminated 

from employment in retaliation for 

exercising their rights and will lessen 

the power of bad-faith employers to 

leverage the immigration system as a 

tool of retaliation. The commenter 

stated that the proposed rule 

complements existing anti-retaliation 

provisions in DOL regulations governing 

the H–2 programs, and in Federal and 

State law. The commenter also 

welcomed DHS’s application of this 

flexibility to any termination rather than 

attempting to limit it to retaliatory 

firings, as determining whether a 

termination constitutes retaliation often 

requires a fact-intensive and timeconsuming legal inquiry. The 

commenter went on to say that workers 

need the 60-day post-employment grace 

period to assess any potential violations 

of their rights and take legal action if 

necessary. 

A couple of trade associations 

supported the specification that workers 

would not accrue any period of 

unlawful presence solely based on 

cessation of employment. These 

commenters also agreed with the 

proposal that workers would not have to 

notify DHS or USCIS to take advantage 

of the new grace period. The 

commenters added that DHS should not 

consider employer notification to be 

conclusive evidence regarding a 

worker’s status or trigger the start date 

of the 60-day grace period, and that 

when an extension is filed the petitioner 

should provide information or evidence 

regarding the cessation of employment 

to demonstrate status maintenance. 

Response: DHS appreciates the 

commenters’ support for this grace 

period, which is intended to improve 

worker flexibility, mobility, and 

protections. DHS confirms that this 

grace period will apply regardless of the 

reason for the H–2 worker’s termination 

(subject to the worker’s maximum 

period of stay). DHS further confirms 

that an employer’s notification under 8 

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

214.2(h)(6)(i)(F) will not be considered 

conclusive evidence regarding a 

worker’s status. 

e. Concerns With the 60-Day Grace 

Period Following Cessation of 

Employment 

Comment: Multiple commenters, 

including several trade associations, 

expressed concern over the 60-day 

cessation of work grace period as 

proposed, stating that it could be abused 

if H–2 workers, in whom employers 

have invested considerable time and 

expense resources, immediately quit to 

spend 60 days, without risk, 

consequence, or penalty, to look for 

another H–2 job. Some of these 

commenters cited data indicating that 

most H–2 employers do not take 

advantage of their workforce, nor are 

they removed from the program, 

asserting that, while the 60-day grace 

period might be warranted if the 

Department revokes a bad-actor H–2 

employer’s petition, it is not necessary 

or justified for the majority of H–2 

employers. A trade association wrote 

that the uncertainty associated with this 

proposal would have a detrimental 

impact on labor-intensive American 

agriculture. Another trade association 

stated that their industry’s peak harvest 

generally lasts 60 to 90 days and that a 

worker unexpectedly leaving in the last 

60 days of the contract would be 

devastating. Another commenter urged 

DHS ‘‘to be aware of perverse 

incentives’’ created by this new grace 

period and to consider how it ‘‘would 

affect worker behavior, and the 

economic cost of such impact on 


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employers should they experience 

turnover.’’ 

Response: DHS will finalize the grace 

period for a cessation of employment at 

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

Without this new grace period, an 

already financially vulnerable H–2 

worker facing an abusive employment 

situation or hazardous working 

conditions must choose between 

remaining in a bad employment 

situation or facing the harsh 

consequences of losing wages, benefits, 

and legal status from their H–2 

employment. As other commenters have 

noted, some H–2 employers leverage a 

potential loss of status to coerce workers 

into continued employment, creating a 

power imbalance that allows forced 

labor and trafficking to occur in the H– 

2 programs. Thus, this grace period of 

up to 60 days is an important step 

towards addressing the systemic power 

imbalance between H–2 workers and 

their employers by giving H–2 workers 

a more realistic option of leaving a bad 

employer. 

DHS acknowledges that an H–2 

employer, like any employer in a free 

labor market, risks losing valuable time, 

resources, and/or manpower when a 

worker leaves employment. However, 

the new grace period is not expected to 

provide a significant ‘‘perverse 

incentive’’ for H–2 workers to cease 

employment without good cause. DHS 

does not agree with the commenters that 

an H–2 worker who ceases employment 

does so without risk, consequence, or 

penalty. Whenever a H–2 worker ceases 

employment, they face several risks and 

consequences including the loss of 

wages and benefits that come from that 

employment, such as housing for H–2A 

workers and certain H–2B workers. And 

as other commenters have noted, the 

ability of H–2 workers to cease 

employment, especially when faced 

with a harmful work environment, will 

help improve equality of wages and 

working conditions with U.S. workers. 

It is important to emphasize that the 

new grace period will not authorize a 

beneficiary to lawfully work in the 

United States, but only ensure that 

USCIS will not consider a beneficiary to 

have failed to maintain nonimmigrant 

status or to have accrued unlawful 

status ‘‘solely on the basis of a cessation 

of the employment.’’ New 8 CFR 

214.2(h)(13)(i)(C). As stated in the 

NPRM, the limitation that the grace 

period will apply ‘‘solely on the basis of 

a cessation of employment’’ should 

mitigate the risk that some workers 

would try to use this grace period to 

engage in unauthorized employment or 

other unlawful behavior. 88 FR 65040, 

65065 (Sept. 20, 2023). This aspect of 

the grace period serves as an important 

disincentive for H–2 workers to abuse 

this provision. Considering the risks an 

H–2 worker incurs when leaving their 

employer, such as losing wages and 

other benefits, DHS disagrees that this 

grace period provides a ‘‘perverse 

incentive’’ for an H–2 worker to start 

and immediately quit employment 

unless there was good reason to do so. 

While DHS cannot completely eliminate 

all risk that an H–2 worker who might 

not be deserving would still benefit 

from the new grace period, for the 

reasons stated above, DHS maintains 

that such a situation would likely be 

rare and that the importance of 

protecting H–2 workers overall 

substantially outweighs the risk. Id. 

f. Requested Changes to Proposed 60- 

Day Grace Period Following Cessation 

of Employment 

Comment: Several commenters 

suggested that the proposed grace 

period following cessation of 

employment should only apply in 

certain circumstances, stating that 

workers can voluntarily quit for a 

number of reasons unrelated to an 

abusive or hazardous employment 

situation. For instance, a joint 

submission concluded that it would be 

appropriate to exclude beneficiaries 

terminated for cause from taking 

advantage of the 60-day grace period in 

order to protect subsequent employers 

from potentially dangerous or 

problematic behavior (for example, if 

workers were terminated for committing 

violent acts, sexual harassment, or other 

infractions that may pose a risk to the 

health, safety, and well-being of others). 

The commenter understood the basis for 

‘‘casting a wide net’’ but said it is 

improbable that workers in an abusive 

or unsafe situation would nonetheless 

remain employed and also engage in 

behavior that would lead to their forcause termination. The commenter said 

this is particularly the case in light of 

both DOL’s parallel rulemaking that 

would narrow the scope of permissible 

circumstances in which workers may be 

terminated for cause and DHS’s ‘‘very 

lenient’’ grace period proposal. A trade 

association said DHS should consider 

adding language defining a process by 

which employers and workers can 

document workplace claims and the 

efforts made to resolve the concern. This 

commenter stated that this provision is 

needed to provide a pathway for those 

working for H–2 employers that have 

taken advantage of their workforce, but 

added that a clearly defined process to 

utilize this type of grace period is 

needed to avoid unnecessary abuse of 

the provision. A few trade associations 

stated that there should be an 

affirmative duty of the H–2 worker to 

attempt to resolve workplace claims or 

concerns with the employer prior to 

quitting since the employer has 

committed time and expense in 

exchange for the worker’s ability to 

enter and work in the United States, and 

that there should be less concern about 

reprisal if an H–2 worker ceases 

employment because they would have a 

60-day grace period to seek other H–2 

employment if they are unable to 

resolve the dispute with their 

sponsoring employer. Other trade 

associations expressed concern that 

providing a 60-day grace period after an 

employer has incurred the expense of 

bringing a worker to the United States 

could lead to workers arriving and 

quitting to spend 60 days searching for 

a higher paying H–2 job elsewhere, 

stating that there should be associated 

consequences for the worker who 

violates their contract instead of a 

‘‘reward’’ by allowing the worker to stay 

in the United States to pursue another 

contract. 

A business association urged DHS to 

consider options to ensure that workers 

do not take advantage of this grace 

period in a manner that harms 

employers and suggested an option of 

foreclosing an H–2 worker’s ability to 

avail themselves of the 60-day grace 

period within the first month of their 

entry into the U.S to help diminish the 

potential for mischief involving the 60- 

day grace period. Another commenter 

asked whether DHS should impose ‘‘a 

presumption of intent to defraud an 

employer if the H–2 worker arrives and 

leaves within a short period of time 

without trying to resolve any workplace 

dispute.’’ 

Response: As proposed, the new grace 

period for cessation of employment will 

apply regardless of the reason for 

cessation. DHS declines to create a new 

discretionary process by which USCIS 

would determine whether to grant or 

deny a request for a grace period on a 

case-by-case basis, such as granting a 

grace period only when an H–2 worker 

can document that they made good faith 

efforts to resolve a workplace claim or 

that a workplace is hazardous, or 

denying a grace period when a 

beneficiary was terminated for cause 

(for example, if the beneficiary was 

terminated for committing a violent act, 

sexual harassment, or other infractions 

that may pose a risk to the health, 

safety, and well-being of others). The 

main reason why DHS did not 

propose—and now declines to adopt— 

a discretionary grace period similar to 

the one under 8 CFR 214.1(l)(2) is to 

provide more certainty to affected H–2 


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workers. As stated in the NPRM, 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. 88 FR 65040, 65064 (Sept. 20, 2023). 

Namely, ‘‘termination for cause’’ is both 

a law and fact-specific inquiry and 

workers may not have sufficient 

understanding of the concept to know 

with certainty where USCIS may land 

on such an inquiry in a subsequent 

adjudication, and therefore adding this 

limitation on the use of the grace period 

would likely create a chilling effect that 

would undermine the policy objective 

of this provision. 

It would also be impracticable for 

USCIS to set up a separate process 

outside petition adjudication for 

approving grace periods on a case-bycase basis. USCIS would need to create 

a form for requesting grace periods, as 

well as a legal framework for 

determining whether a worker was 

terminated for cause and allow for the 

submission of evidence and rebuttal 

evidence. DHS believes that, even if 

DHS were inclined to adopt the 

commenter’s suggestion, the regulated 

public should have an opportunity to 

comment on any such framework and 

process, including on the feasibility of 

workers complying with such a process. 

More importantly, even if feasible, such 

an adjudication could take a 

considerable amount of time, potentially 

undermining the utility of the grace 

period for a terminated worker who 

most likely would not know the 

outcome of the adjudication until the 

end or close to the end of the grace 

period, which as explained above would 

likely lead to a chilling effect of workers 

even attempting to use the 60-day grace 

period. Regarding the commenter’s 

concern about the grace period possibly 

benefiting workers who were terminated 

for committing violent acts, sexual 

harassment, or other infractions that 

may pose a risk to the health, safety, and 

well-being of others, DHS believes that 

state and local judicial systems provide 

avenues to address such and similar 

serious criminal and civil infractions, 

and that limiting the use of the finite 60- 

day grace periods is therefore not 

necessary for that purpose. In addition, 

criminal charges may separately affect a 

worker’s ability to remain in the United 

States. 

DHS declines to adopt the suggested 

alternative of foreclosing an H–2 

worker’s ability to avail themselves of 

the grace period of up to 60 days within 

the first month of their entry. Similarly, 

DHS declines to impose ‘‘a presumption 

of intent to defraud an employer’’ if the 

H–2 worker arrives and leaves within a 

short period of time without trying to 

resolve any workplace dispute. As 

previously explained, the limitation that 

the grace period would apply ‘‘solely on 

the basis of a cessation of employment’’ 

and the fact that the H–2 worker would 

be unable to work during this grace 

period absent any pending H–2 petition 

filed on their behalf should mitigate the 

risk that some workers would try to use 

this grace period for unlawful purposes. 

Again, while DHS cannot completely 

eliminate all risk that an H–2 worker 

who might not be deserving would still 

benefit from the new grace period, DHS 

maintains that such a situation would 

likely be rare and that the importance of 

protecting H–2 workers overall 

substantially outweighs the risk. 88 FR 

65040, 65065 (Sept. 20, 2023). 

Comment: Several commenters urged 

DHS to revise the length of the proposed 

grace period at 8 CFR 214.2(h)(13)(i)(C) 

to 30 days. A commenter stated that 

while 60 days is consistent with other 

nonimmigrant classifications, the H–2 

programs are unique which warrants 

some differences, noting that H–2 

programs impose substantial costs on 

employers compared to other 

nonimmigrant classifications. The 

commenter said a 30-day grace period 

for cessation of employment would 

reduce the likelihood of worker 

departure for ‘‘arbitrary or transient’’ 

reasons while accommodating workers 

who are in an unsafe or abusive 

employment relationship. The 

commenter also said a 30-day grace 

period for cessation would be congruent 

to the 30 days afforded to workers at the 

expiration of the petition validity, 

noting that it makes little sense for 

workers who successfully complete a 

period of employment to only have a 30- 

day grace period while affording 

workers terminated for cause an extra 

month. Lastly, the commenter said the 

unique low and unskilled nature of 

many H–2 occupations better lends 

itself to a shorter grace period as 

employers in labor-intensive industries 

are more likely than ‘‘white collar’’ 

employers to fill job positions quickly, 

whereas a 60-day grace period may be 

more appropriate for highly skilled visa 

classifications (for example, E–1, E–2, 

E–3, H–1B, L–1, O–1, and TN) that 

typically command higher pay and 

benefits, are subject to less frequent 

turnover, and are not associated with 

extensive employer cost obligations. 

A couple of business associations 

similarly stated that the creation of a 

new separate 60-day grace period adds 

unnecessary complexity and confusion 

regarding a beneficiary’s legal status and 

work authorization. The commenters 

recommended a standard 30-day grace 

period applicable in all situations for 

ensuring uniformity and simplicity in 

understanding and complying with the 

requirements. 

Response: DHS declines to shorten 

the length of the proposed grace period 

at 8 CFR 214.2(h)(13)(i)(C) to 30 days. 

Thirty days likely would not allow 

sufficient time for a worker to respond 

to sudden or unexpected changes 

related to their employment, such as by 

searching for possible new employment 

or, if necessary, planning their 

departure from the United States. A 

longer period of up to 60 days would 

better allow affected H–2 workers to 

seek and secure new H–2 employment, 

assess any potential violations of their 

rights and explore legal actions, if 

necessary, and/or organize their 

departure from the United States. While 

DHS agrees that the H–2 program is 

unique in the sense that these programs 

impose some cost obligations (such as 

certain housing and subsistence costs) 

that not all employers in other 

nonimmigrant programs are responsible 

for, DHS does not agree that these 

differences warrant a shortening of the 

grace period to 30 days. Instead, because 

H–2 workers are a particularly 

vulnerable population, a 30-day grace 

period likely would not be sufficient for 

affected workers to respond to sudden 

or unexpected changes related to their 

employment. As other commenters have 

noted, H–2 guest workers are uniquely 

vulnerable given that they are temporary 

workers, rely on their employers for 

basic needs, often have a language 

barrier, and may live in isolated 

environments where their access to 

information and resources is limited, 

among other factors. 

DHS acknowledges that this means an 

H–2 worker who successfully completes 

a period of employment will only have 

a 30-day grace period, while H–2 

workers who cease employment before 

the end of their validity period will 

have a longer grace period by up to 

another month. However, this is 

reasonable as workers who cease 

employment before the end of their 

validity period may have such cessation 

of employment occur unexpectedly and 

thus would need more time to plan their 

next steps. Workers who successfully 

complete their period of employment 

would know the end date of their 

employment in advance and would 

have had more time to plan for their 

next steps. 


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94See, e.g., ‘‘Modernizing H–2 Program 

Requirements, Oversight, and Worker Protections,’’ 

88 FR 65040, 65065–65066 (Sept. 20, 2023) (‘‘It has 

long been the policy of DHS that grace periods do 

not authorize employment.’’); ‘‘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.’’). 

g. 60-Day Grace Period Following 

Revocation of Approved H–2 Petition 

Comment: Multiple commenters, 

including several trade associations, a 

joint submission, and a professional 

association, specifically supported the 

proposal to provide a new 60-day grace 

period following the revocation of an 

approved H–2 petition, with most citing 

a similar rationale as above relating to 

cessation of employment. Several of 

these commenters said that this grace 

period would provide protection and 

stability in circumstances beyond the 

petitioner’s or worker’s control. An 

advocacy group said H–2 workers do 

not control the petition or their 

employers’ conduct and cannot prevent 

laws or violations that might lead to a 

revocation. For example, the commenter 

stated that both current and proposed 

rules call for petition revocation in the 

event of a determination that an H–2 

petitioner or its agent has charged a 

recruitment fee or other prohibited fee. 

While supporting these consequences, 

the commenter said that H–2 workers 

who lose their jobs because of this 

would bear the brunt of their employer’s 

violation. The commenter concluded 

that the proposed grace period would 

lessen the undue harm that a revoked 

H–2 petition causes workers. 

A professional association agreed 

with proposed provision 8 CFR 

214.2(h)(11)(iv) allowing H–2 

beneficiaries to remain in lawful status 

for 60 days or the end of their H–2B 

petition, whichever is shorter. 

Response: DHS agrees that this new 

grace period will lessen some of the 

harm to an H–2 worker who loses their 

job and H–2 status caused by a revoked 

H–2 petition. 

h. Work Authorization During the 60- 

Day Grace Periods 

Comment: Multiple commenters 

urged DHS to provide work 

authorization during the 60-day grace 

period, stating that not doing so would 

limit workers’ ability to take advantage 

of the grace period and the flexibility 

this measure seeks to create. 

Specifically, several advocacy groups 

recommended that DHS automatically 

issue interim work authorization to H– 

2 workers. These commenters noted the 

financial situations of most H–2 

workers, such as often living paycheck 

to paycheck, frequently arriving at their 

United States worksites already deeply 

indebted, and not having the savings to 

support the time needed to identify, 

apply to, and travel to new H–2 job 

opportunities. One of these commenters 

detailed a suggested process through 

which H–2 workers who experience an 

early cessation of employment for any 

reason during an H–2 contract period, 

and who seek interim employment 

authorization, could directly notify DHS 

of this cessation of employment and 

receive a receipt at an address they 

would specify in their notice. Then, 

DHS could issue guidance (as it 

currently does for H–2A employers who 

are eligible to take advantage of the 

limited portability provisions) to 

potential employers of H–2 workers 

during the grace period stating that the 

employee’s unexpired Form I–94 

indicating their H–2 status, combined 

with the receipt of notification of early 

cessation of employment, would 

constitute sufficient proof the worker’s 

employment authorization. DHS would 

then instruct employers to make any 

notation necessary on the I–9 to convey 

the limited 60-day period. The 

commenter said this process would be 

consistent with INA sec. 214(c)(1), as 

well as with DHS’s broad authority to 

define the time periods and conditions 

of any nonimmigrant’s admission to the 

United States under section 214(a)(1) of 

the INA. Another advocacy group 

supported this commenter’s proposal. A 

couple of advocacy groups also stated 

that to the extent DHS has continued 

doubts about the appropriateness of 

providing interim employment 

authorization to all H–2 workers who 

experience an unexpected cessation of 

employment before the end of the 

contract period, DHS should at a 

minimum provide interim work 

authorization to workers who lose their 

employment due to the revocation of 

their employer’s petition by no fault of 

the worker, as well as workers who are 

involved in an ongoing labor dispute 

with the H–2 employer that is the 

subject of an investigation by DOL or 

another relevant agency. 

Response: As proposed and now 

finalized, none of the grace periods 

would independently authorize the 

beneficiary to work. As stated in the 

NPRM at 65065–65066, to the extent 

that such work authorization is 

permissible, there are also operational 

challenges and costs associated with 

providing work authorization 

documentation to H–2 workers who 

have ceased employment. While 

commenters provided suggestions that 

could have alleviated some operational 

challenges, other operational challenges 

would have remained. For example, 

setting up a process for beneficiaries to 

directly notify DHS of a cessation of 

employment and receive a receipt at an 

address would still require the agency to 

set up a new notification process for 

beneficiaries and mail out a physical 

receipt notice, all of which takes time 

and resources which the agency would 

not recover without imposing a new fee. 

DHS acknowledges that not providing 

work authorization upon cessation of 

employment makes it difficult for 

affected H–2 workers to support 

themselves, thus potentially limiting 

their ability, as a practical matter, to 

leave their current employment. DHS 

notes, however, that the new portability 

provisions may offer help to affected H– 

2 workers who wish to begin 

employment sooner if they find a new 

petitioning employer. In addition, as 

previously noted, other forms of relief 

such as deferred action may be possible 

depending on the circumstances. 

Providing employment authorization 

to only some, but not all, H–2 workers 

also would not be feasible. As discussed 

above, it would not be operationally 

feasible for USCIS to ‘‘adjudicate’’ a 

grace period within the context of the 

H–2 petition process. Similarly, it is not 

operationally feasible for USCIS, using 

current processes, to determine who 

would be eligible for interim 

employment authorization within the 

limited timeframe of such a grace 

period; there is no current mechanism 

in which DHS could provide interim 

work authorization, or issue such proof 

of employment authorization, for only 

some H–2 workers, such as those whose 

employment was terminated ‘‘by no 

fault of their own.’’ In addition, as noted 

in the NPRM, DHS determined that the 

creation of 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. 88 

FR 65040, 65066 (Sept. 20, 2023). 

Finally, while DHS acknowledges the 

commenters’ legitimate concern, the 

Department notes that not allowing for 

interim work authorization during the 

grace period is consistent with 

longstanding policy.94

i. Requests To Extend the 60-Day Grace 

Periods 

Comment: A couple of advocacy 

groups said DHS should allow at least 


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95USCIS, ‘‘DHS Support of the Enforcement of 

Labor and Employment Laws,’’ https://

www.uscis.gov/working-in-the-united-states/ 

information-for-employers-and-employees/dhssupport-of-the-enforcement-of-labor-andemployment-laws (last updated Apr. 11, 2024). 

a 90-day grace period for all H–2 

workers who experience an unexpected 

end to their employment, with injured 

workers granted extensions beyond the 

initial 90-day period. An advocacy 

group expounded that H–2 workers 

need a longer grace period because of 

the acuteness and prevalence of abusive 

labor practices in the H–2 programs; 

their isolated living and working 

conditions; and their typically lower 

levels of income, education, and web 

access. In addition, the commenter said 

DHS should also provide for situations 

in which workers may need to remain 

in the United States for a longer period 

due to work-related injury or illness. 

The commenter stated that H–2 workers 

often are unable to take advantage of 

their workers’ compensation benefits 

because they are forced to return to their 

home countries after a workplace injury 

or illness by retaliatory employers. The 

commenter noted that 60 days is 

insufficient for most workers to receive 

necessary treatment through workers’ 

compensation because medical 

treatment and associated interactions 

can be time-consuming. Further, injured 

workers are unlikely to find new H–2 

employment during a 60-day grace 

period, and therefore will be faced with 

the unfortunate choice between 

overstaying or returning home to forfeit 

medical care and benefits. The 

commenter suggested that DHS clarify 

that grace periods and the post-contract 

admission period may be extended for 

workers who need to remain in the 

United States to receive medical 

treatment related to an injury or illness 

covered by a workers’ compensation 

claim. Relatedly, the commenter said 

DHS should also provide for a 

straightforward parole process for 

injured workers who have already 

departed the United States but need to 

return to seek medical care. 

A couple of commenters, including an 

advocacy group and a research 

organization, recommended a 120-day 

grace period following loss of 

employment. One of these commenters 

provided similar rationale as above, 

stating that a 60-day grace period would 

often be too short for workers to seek 

care or find new employment, 

particularly given the geographic, social, 

and cultural isolation of H–2A workers. 

A research organization stated that, 

while it had previously urged that DHS 

should at least grant H–2 workers the 

same in-petition 60-day grace period as 

is granted to H–1B workers, given the 

‘‘bureaucratic realities of the H–2 

programs,’’ 60 days is insufficiently 

short. The commenter cited data 

indicating that the median U.S. worker 

took almost exactly 60 days to find a 

new job, but those workers could accept 

any job, not just seasonal jobs from 

employers willing to undergo the H–2 

process. Additionally, the commenter 

said the H–1B petition DOL process 

takes only a week, while H–2 DOL 

processes take much longer. Citing data, 

the commenter stated that, assuming 

that an H–2B worker finds a new 

employer that is not already 

participating in the H–2B process, it 

will take over 100 days to complete the 

steps to join the program. Even in the 

case of the H–2A process, which takes 

about a month, the commenter said this 

month should be added to the median 

of 60 days it takes to find a new job to 

begin with. 

Response: DHS declines to extend the 

grace period beyond 60 days. While 

commenters expressed legitimate 

concerns about why 60 days may not be 

sufficient (including TLC delays), DHS 

must balance these concerns with other 

concerns about potential abuse of the 

grace period if it were extended beyond 

60 days. Also, the longer the grace 

period, the more concerns DHS would 

have with beneficiaries engaging in 

unlawful employment during the grace 

period. 

DHS also declines to provide a longer 

grace period for only certain 

beneficiaries such as those who 

experienced an ‘‘unexpected’’ end to 

their employment or suffered a workrelated injury or illness. As noted above, 

it would not be operationally feasible 

for USCIS to ‘‘adjudicate’’ a grace period 

within the context of the H–2 petition 

process using the current processes and 

mechanisms, or in a context separate 

from the H–2 petition process. Absent 

an adjudication, USCIS would not be 

able to provide a longer grace period 

only to certain H–2 beneficiaries. DHS 

again highlights that H–2 workers 

involved in labor disputes may request 

DHS to exercise prosecutorial 

discretion,95 which may offer some 

relief for certain workers who were 

terminated for an unlawful reason or 

suffered a work-related injury or illness. 

Other avenues of relief, such as 

requesting a change of status to visitor 

status (B–2), may also be available to H– 

2 workers who need to receive medical 

treatment related to a workplace injury 

or illness. 

j. Grace Period at the End of 3-Year 

Period of Stay 

Comment: Multiple trade associations 

expressed concern that H–2 workers 

who continue three successive contracts 

(that is, workers whose final contract 

within their 3-year authorization ends at 

the very end of that authorization 

period) would be left with no time to 

prepare to leave the country after their 

third contract expires. These 

commenters stated that DHS should 

consider providing an additional 

minimum grace period, such as 5 days, 

in those situations to ensure workers do 

not inadvertently overstay due to 

waiting for the employer-scheduled 

transportation or for delayed or 

canceled flights. The commenters said 

adding a minimum grace period would 

benefit H–2 workers and allow them to 

return to the United States without any 

unauthorized stay. 

A research organization similarly 

stated that DHS should provide a grace 

period of at least 10 days at the end of 

the 3-year period of stay to avoid 

inadvertent periods where people lose 

status to give people time to line up 

their transportation home. The 

commenter said this would match the 

NPRM’s proposed 10-day grace period 

to enter the country. 

Response: By regulation, an H–2 

worker’s maximum period of stay is 

limited to 3 years. See 8 CFR 

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

214.2(h)(13)(iv)-(v). DHS did not 

propose to change the maximum period 

of stay for H–2 workers and will not 

provide an additional grace period 

beyond that 3-year limit in this final 

rule. Further, as new 8 CFR 

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

214.2(h)(6)(vii) already provides a postvalidity grace period of up to 30 days, 

it is unclear why the suggested 

additional 10-day grace period is 

necessary. It is the petitioner’s burden to 

be aware of when their H–2 workers’ 

status will end and arrange their return 

transportation accordingly. 

k. Employer Obligations During Grace 

Periods 

Comment: Several trade associations 

that were generally supportive of the 

proposed grace periods requested that 

DHS consider and provide clarity 

surrounding the obligations of parties 

during the grace periods, specifically 

whether an H–2 employer is required to 

provide housing and meals during those 

periods of time. These commenters 

opposed requiring a petitioner to 

provide housing and meals for a worker 

who is no longer employed, regardless 

of the circumstances of the end of 


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96See generally, 20 CFR 655.20(j)(ii), 20 CFR 

655.122(h)(2). 

97When a Form I–129 petition with a request for 

extension is approved, the Form I–797 approval 

notice includes a Form I–94. The approval notice 

instructs the petitioner that the lower portion of the 

notice, including the Form I–94, should be 

provided to the beneficiary(ies). 

employment. The commenters also 

noted the impact of and asked DHS to 

clarify the situation when the worker 

quits mid-contract, and an employer 

may need to seek an emergency labor 

certification to hire new workers and 

have housing available for them. The 

commenters said DHS should evaluate 

and plan for how a worker who ceases 

to be employed has access to resources 

such as housing and food without 

placing those obligations on an 

employer following the abandonment, 

termination, revocation, or expiration of 

a petition period. 

A research organization stated that 

DHS should clarify that all employer 

obligations toward the worker end when 

the worker exercises their rights to use 

the in-petition grace period, and DHS or 

the worker or both should be required 

to notify the employer that they have 

exercised the right to use the grace 

period. The commenter said employers 

should not be forced to provide housing, 

pay, food, and other benefits when a 

worker is no longer employed for them. 

Response: H–2 employers must abide 

by applicable DOL regulations 

concerning their obligations to provide 

housing, pay, food, and other benefits 

when a worker’s employment has 

terminated as described in DOL 

regulations.96 DHS is not imposing any 

new obligations on an H–2 employer by 

virtue of providing these new grace 

periods or extending existing ones. 

Comment: Several advocacy groups 

suggested that, in addition to granting 

H–2 workers work authorization during 

the grace period, DHS should also 

‘‘clarify that otherwise eligible workers 

can qualify for unemployment benefits 

during the grace period.’’ 

Response: DHS declines to provide 

the requested clarification, as DHS does 

not adjudicate or otherwise regulate 

eligibility for unemployment benefits 

for H–2 nonimmigrants. 

l. Restriction on Multiple Grace Periods 

During a Single Period of Admission 

Comment: A few commenters 

including advocacy groups said that 

DHS should remove the restriction on 

multiple grace periods during a single 

period of admission, which would leave 

at-risk workers with no grace period in 

which they could leave a second 

abusive job. Specifically, the 

commenters said DHS should clarify H– 

2 workers’ access to a 60-day (or 120- 

day) grace period in case of a second 

unforeseen cessation of employment. 

Commenters said workers need access 

to multiple grace periods during a single 

period of admission if they have 

multiple employers due to the 

widespread nature of violations in H–2 

industries, which DHS itself 

acknowledges. The commenters said 

workers who have previously changed 

employers would experience the same 

risks of labor abuse that are endemic to 

the H–2 program as workers who have 

not changed employers, and they should 

be able to access the same grace period. 

Response: DHS believes the 

commenters’ concerns may be based on 

a misunderstanding of the phrase ‘‘once 

during each authorized period of 

admission,’’ as used in the NPRM and 

retained in this final rule at new 8 CFR 

214.2(h)(13)(i)(C). DHS appreciates the 

opportunity to clarify this point. 

As noted in the NPRM, the phrase 

‘‘authorized period of admission’’ refers 

to the time period noted on a worker’s 

I–94, which will normally have an end 

date 30 days after the end of the 

corresponding petition’s validity period 

to account for the 30-day grace period 

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

214.2(h)(6)(vii). In the scenario 

described by the commenters, in which 

a worker is the beneficiary granted an 

extension of stay based on a petition by 

a new employer, the worker will have 

been granted a new ‘‘authorized period 

of admission’’ (and therefore, a new I– 

94) based on the approval of the new 

employer’s petition.97 Notably, 8 CFR 

214.2(h)(13)(i)(C) allows a 60-day grace 

period for a cessation of employment 

‘‘once during each authorized period of 

admission’’ (emphasis added). 

Accordingly, notwithstanding a 

worker’s prior use of the 60-day grace 

period for cessation of employment in 

connection with a prior petition, such a 

worker would not be considered 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 a cessation of the 

new employment for 60 days or until 

the end of the new authorization period, 

whichever is shorter. 

2. Transportation Costs for Revoked H– 

2 Petitions 

Comment: A few commenters 

expressed support for the proposed 

provision requiring H–2A employers to 

pay for the beneficiary’s reasonable 

costs of return transportation in the 

event of petition revocation. A 

professional association elaborated that 

this provision is consistent with other 

nonimmigrant visa categories, including 

H–1B, O, and P, and that it ensures the 

worker has the means to return to their 

home country upon separation from 

employment. Another professional 

association remarked that this 

requirement would create uniformity 

between H–2A and H–2B and is fair and 

efficient. Conversely, a professional 

association and a trade association 

stated that the proposed provision is 

redundant with other existing 

regulations that are already in place. 

A trade association and a few other 

commenters commented that they have 

no concerns regarding the proposed 

provision. A joint submission remarked 

that they have no objections to the 

proposed provision since the 

Department is making a conforming 

change and is not changing the 

underlying substantive requirements. 

The joint submission further 

commented that the proposed provision 

does not alter existing program 

obligations under applicable DOL 

regulations. 

Response: DHS appreciates the 

support and confirmation that these 

revisions do not represent a change in 

an employer’s obligation and conform 

with other nonimmigrant classifications. 

DHS is not making any additional 

revisions based on these comments. 

3. Portability and Extension of Stay 

Petitions 

a. Positive Impacts on Employers, 

Workers, Program Operability, and the 

Economy 

Comment: A professional association 

stated that the proposed portability 

provisions were ‘‘sound’’ from both 

employers’ and H–2B workers’ 

perspectives. While expressing support 

for the proposal to allow workers to 

begin employment upon the filing of a 

nonfrivolous petition, a trade 

association stated that the proposal 

would provide employers with the 

ability to employ workers in a timely 

manner, and provide beneficiaries with 

expanded job opportunities. A joint 

submission and a trade association also 

expressed support for the portability 

provisions, reasoning that permitting 

workers to begin employment in the 

same classification upon receipt of the 

non-frivolous petition would help avoid 

gaps in employment and potential 

hardships to workers, and allow 

workers to capitalize on their presence 

in the United States to earn income 

rather than waiting for a petition to be 

finalized. The commenters also stated 

that the provisions would benefit 

employers because employers seeking to 


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employ transferred workers would have 

access to workers, and have already 

demonstrated that they have a 

temporary need for labor or services. 

Similarly, a trade association expressed 

support for the portability provisions, 

reasoning that current timelines 

frustrate both workers seeking 

employment and employers who need 

workers, but that the proposed 

provisions would allow workers to 

immediately help employers that are in 

need of assistance. A professional 

association expressed support for 

making permanent the portability 

provisions that were in place during the 

COVID–19 pandemic, reasoning it 

would allow employers to fully staff 

their workforce when the petition was 

valid rather than having the workers 

remain idle until petitions were 

approved. 

A joint submission added that the 

provisions would positively impact the 

U.S. economy since workers pay taxes 

and purchase goods and services, which 

would be lost if workers faced 

employment gaps. An advocacy group 

expressed support for the portability 

provisions, reasoning it would give 

workers the flexibility they desire while 

benefiting U.S. regions with varied 

agriculture profiles. 

A couple of advocacy groups 

expressed support for the proposed 

portability provisions on the grounds 

that they would curtail the coercive 

power employers have over H–2 

workers. Discussing abuse faced by H– 

2 workers, the commenters said that 

some H–2 employers leverage a loss of 

status to coerce workers into continued 

employment, creating a power 

imbalance that allows forced labor and 

trafficking to proliferate in the H–2 

programs. The commenter stated that 

permanent portability would help 

address trafficking, violations, and other 

abuses in the H–2 program. Similarly, a 

union and an advocacy group 

expressing support for the proposal 

stated that visa status is at the center of 

the power imbalance between 

employers and workers that enables 

exploitation within the H–2 program, 

and the portability provisions would 

help restore a balanced relationship 

between workers and employers. A 

group of Federal elected officials stated 

that workers’ dependency on their 

employers to live and work in the 

United States creates a ‘‘well-founded 

fear of retaliation’’ that prevents workers 

from speaking out against abuse and 

advocating for better working 

conditions. The commenter stated that 

under DHS’s current rules, it is 

‘‘extremely’’ challenging for workers to 

change employers, even when the 

employers break the law, which the 

proposed rule would ameliorate. A joint 

submission also stated that existing 

procedures fail to allow H–2 workers to 

pursue alternative employment free 

from employer control and retaliation. 

A research organization expressed 

support for the portability provisions, 

reasoning that the ability to change 

employers was a basic freedom, that it 

was important for human and labor 

rights, and that it would empower 

workers. A couple of advocacy groups 

and a joint submission also expressed 

support for the proposal, reasoning that 

workers who face abusive conditions or 

are unjustly fired would have a greater 

chance of finding alternative 

employment. A religious organization 

stated the proposed provisions would 

provide stronger protections for workers 

to switch employers. A union expressed 

support for the portability provisions’ 

goal to empower and prevent hardships 

to workers. 

A trade association expressed support 

for the portability provisions, reasoning 

it would establish a consistent policy 

between H–2A and H–2B program 

regulations and help remove confusion 

in the complexity of the regulations 

governing the H–2 programs. A trade 

association expressed support for the 

portability provisions, reasoning it 

would establish a consistent policy 

between H–2A and H–2B program 

regulations and help remove confusion 

in the complexity of the regulations 

governing the H–2 programs. 

Response: DHS agrees with the 

commenters about the intended benefits 

of portability, including empowering H– 

2 workers and providing H–2 employers 

with the ability to employ workers in a 

timely manner. 

b. Negative Impacts on Employers and 

Program Operability 

Comment: A few trade associations 

expressed support for the flexibility that 

the changes to the proposed extension 

of stay petition and E-Verify 

requirements created, but said that the 

language of the proposal was too broad 

when coupled with the other sections in 

the rule, such as the section on grace 

periods. The commenters expressed 

concern that workers would be 

encouraged to violate the terms of their 

contracts with employers. The 

commenters also discussed the 

‘‘significant’’ financial investments 

employers make prior to hiring H–2 

workers. A trade association added that 

in exchange for these investments, 

employers require a level of certainty 

that workers are to remain employed 

with them for the life of their contract. 

This commenter and another trade 

association said that the proposed rule 

could cause economic harm to 

employers by allowing workers to 

abandon their employers and leave 

them in situations where they do not 

have enough workers to perform their 

harvest. A few trade associations 

recommended that in instances where a 

worker voluntarily abandons their job 

for reasons not related to a hazardous 

work environment, there should be 

consequences for workers who violate 

their contracts. A trade association 

recommended that DHS require that 

workers attempt to resolve workplace 

claims and concerns with employers 

before quitting a contract, and that it 

only provide workers the ability to port 

to a new contract when either the 

contract had been revoked, the 

employer is found to have violated the 

contract, the worker provides evidence 

of a hazardous workplace, or the worker 

completes their previous contract. A 

couple of trade associations also 

suggested that the Department could 

consider a requirement that a worker 

report to the Department that they are 

voluntarily abandoning employment as 

a mechanism to ensure the worker also 

meets their contractual obligations. The 

trade associations added that such a 

notification would serve as a 

consequence for a worker who violates 

their contract, and assist in tracking 

grace period timelines and lawful 

presence. 

Similarly, a trade association added 

that while employees may voluntarily 

abandon employment for a variety of 

reasons, allowing workers to leave their 

primary employer for economic or 

social reasons would be detrimental to 

the program. The commenter urged the 

Department to develop ‘‘more rigid’’ 

language surrounding the conditions 

under which an employee may exercise 

the portability provisions in cases of 

voluntary abandonment. The 

commenter also suggested the 

Department develop a ‘‘review and 

qualifications system using a series of 

escalation and opportunities for 

corrective actions’’ to be enacted prior 

to permitting an employee to voluntarily 

abandon their primary employer. The 

commenter added that this system 

should be open to public comment prior 

to the Department moving forward with 

the portability provisions. 

An attorney expressed opposition to 

the portability provisions, reasoning 

that the provisions would set up a 

bidding war to employ workers, where 

the initial employer is subject to 

‘‘poaching’’ attempts by other employers 

who are able to pay higher wages and 

did not incur travel costs for the 

employee. 


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98USCIS, ‘‘Cap Count for H–2B Nonimmigrants,’’ 

https://www.uscis.gov/working-in-the-united-states/ 

temporary-workers/h-2b-non-agricultural-workers/ 

cap-count-for-h-2b-nonimmigrants (last updated 

Mar. 8, 2024). 

Response: DHS will not make changes 

to the portability provision. While DHS 

appreciates the commenters’ concerns 

regarding the negative impacts on an 

employer when an H–2 employee ports 

to another employer, DHS does not 

agree that these concerns justify 

requiring an H–2 worker to stay with 

that employer for the life of their 

contract or imposing other limitations 

on an H–2 worker’s ability to change 

employers. Nor does DHS agree that 

these concerns justify requiring workers 

to report to DHS when they leave 

employment as a mechanism to ensure 

that workers meet contractual 

obligations. As other commenters have 

noted, worker mobility is important to 

improving the ability of workers to leave 

an abusive employer without fearing 

retaliation. Worker portability helps to 

correct the power imbalance that has led 

to abusive employment practices within 

the H–2 programs as a result of a 

petitioning employer’s control over the 

employee’s legal status. 

Implementing a ‘‘review and 

qualifications system using a series of 

escalation and opportunities for 

corrective actions’’ or another similar 

process prior to permitting an employee 

to port, as suggested by commenters, 

would be counter to the central aims of 

the portability policy. Such a 

mechanism would potentially require a 

lengthy, fact-intensive adjudication that 

would delay an H–2 worker from 

leaving an abusive or hazardous 

employment situation, undermining the 

benefit of the portability provision in 

the first place. 

DHS declines to exclude from 

portability H–2 workers who voluntarily 

left their petitioning employer for 

economic or social reasons, as suggested 

by another commenter. Portability 

provides benefits even for workers not 

in an abusive employment situation. As 

other commenters have noted, the 

ability for H–2 workers to change 

workers for economic reasons may 

incentivize employers to offer better 

wages and working conditions in order 

to retain their H–2 workers, which in 

turn would raise labor standards for 

these workers as well as U.S. workers. 

Portability also benefits employers that 

have already demonstrated that they 

have a temporary need for workers to 

hire H–2 workers more quickly and 

avoid gaps in employment. 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. 88 FR 

65040, 65068 (Sept. 20, 2023). Although 

portability could create instability or 

increase costs for some employers that 

lose or risk losing H–2 workers porting 

to another employer, this is not unlike 

the situation that any employer in the 

labor market may face or situations 

when an employer files an H–2 petition 

for another employer’s workers in the 

same classification, but just has to wait 

until the petition is approved before 

such workers can start working. Further, 

some of these costs may be offset by the 

benefits and savings to employers of 

being able to have replacement workers 

start work more quickly to avoid loss of 

income due to lack of workers, and 

potentially averting some cap-related 

issues in the H–2B program. 

c. Mixed Comments on Portability 

Provision 

Comment: While suggesting an ‘‘atwill’’ visa that allows employees to 

move between employers without 

contractual commitments, an 

association of State Governments stated 

that the portability provisions in the 

proposed rule aim to create a similar 

dynamic. As such, the commenter 

expressed support for the portability 

provisions. The commenter reasoned 

that if the portability allowance 

permitted employees to immediately 

begin new employment, the changes to 

portability would allow employers to 

fill labor gaps, which is the purpose of 

an employer petitioning to receive H–2 

employees in the first place. The 

commenter stated that this would 

impact the overall success of the 

program. However, they also noted that 

it could create instability and 

uncertainty for some employers, and 

expressed concern that the ability for 

employees to leave in the middle of a 

harvest could result in losses for 

employers. The commenter requested 

clarity on the ‘‘immediate’’ effectiveness 

of portability without consideration for 

the approval of the petition, except in 

cases of ‘‘blatant misuse or the program 

or abuse of an agricultural employee by 

the petitioner.’’ 

Response: Under new 8 CFR 

214.2(h)(2)(i)(I), an eligible H–2 

nonimmigrant on whose behalf a 

nonfrivolous H–2A or H–2B petition is 

filed requesting the same classification 

that the nonimmigrant noncitizen 

currently holds is authorized to start 

new employment upon the proper filing 

of the petition, or as of the requested 

start date, whichever is later. The 

eligible H–2 nonimmigrant does not 

need to wait until the approval of the 

portability petition to start working, and 

the H–2 nonimmigrant is authorized to 

work pursuant to the portability petition 

until the adjudication or withdrawal of 

such petition. During the pendency of 

the petition, the H–2 nonimmigrant 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 portability 

petition, even if such petition is 

subsequently denied or withdrawn. 

A portability petition must be 

properly filed and non-frivolous. While 

these standards are intended to prevent 

a petitioner that is misusing the program 

or abusing their workers from taking 

advantage of portability provisions, DHS 

recognizes that these determinations 

will not be made until USCIS has 

adjudicated the petition, meaning that 

an H–2 worker may have worked under 

the portability petition even if it is 

ultimately denied as frivolous. 

However, other provisions being 

finalized in this rule, such as the 

strengthened site visit provisions and 

the new mandatory or discretionary 

denial provisions, are intended to 

address the concern of ‘‘blatant misuse 

or the program or abuse of an 

agricultural employee by the petitioner’’ 

including the types of potential abuses 

noted by the commenters. 

d. Portability and the H–2B Cap 

Comment: A professional association 

said that the portability provisions 

would provide employers with 

‘‘significant cap relief,’’ reasoning that 

an H–2B worker could ‘‘seek 

employment, remain longer, and not 

count towards’’ toward the H–2B 

statutory cap. The commenter added 

this was a ‘‘win-win’’ for employers and 

employees. Similarly, a couple of trade 

associations and advocacy groups stated 

that the portability provisions appeared 

to be helpful in providing cap relief to 

a ‘‘vastly oversubscribed’’ H–2B 

program, but expressed concern that an 

employer could be left without a 

workforce if an employee moves to 

another employer that is ‘‘capped out.’’ 

Response: Under current practice, 

which DHS will not change in this final 

rule, workers in the United States in H– 

2B status who extend their stay, change 

employers, or change the terms and 

conditions of employment generally 

will not be subject to the cap.98

Similarly, H–2B workers who have 

previously been counted against the cap 

in the same fiscal year that the proposed 

employment begins generally will not 

be subject to the cap if the employer 

names them on the petition and 


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99 Id. 

100USCIS, ‘‘Cap Count for H–2B 

Nonimmigrants,’’ https://www.uscis.gov/workingin-the-united-states/temporary-workers/h-2b-nonagricultural-workers/cap-count-for-h-2bnonimmigrants (last updated Mar. 8, 2024). 

101See, e.g., 8 CFR 214.2 version as of January 1, 

2002, https://www.govinfo.gov/content/pkg/CFR2002-title8-vol1/xml/CFR-2002-title8-vol1-sec214- 

2.xml. 

102See, e.g., USCIS, ‘‘H–2B Usage and 

Recommendations, Fiscal Year 2016 Report to 

Congress’’ (July 22, 2016), https://www.dhs.gov/ 

sites/default/files/publications/ 

U.S.%20Citizenship%20and%20

Immigration%20Services%20-%20H-2B%20

Usage%20and%20Recommendations.pdf; USCIS, 

‘‘Characteristics of H–2B Nonagricultural 

Temporary Workers: Fiscal Year 2022 Report to 

Congress Annual Submission’’ (Feb. 14, 2023), 

https://www.uscis.gov/sites/default/files/document/

data/USCIS_H2B_FY22_Characteristics_Report.pdf 

(‘‘Generally, a worker whose stay in H–2B status is 

extended will not be counted against the H–2B 

cap.’’); USCIS, ‘‘USCIS Report to Congress’’ (Mar. 

20, 2006) https://www.uscis.gov/sites/default/files/

document/data/h-2b-fy2005-petitions-report.pdf 

(‘‘[A]liens who are currently in H–2B status and 

who seek to extend their stay or seek concurrent 

employment are not counted against the cap.’’). See 

also CRS Report R44306, ‘‘The H–2B Visa and the 

Statutory Cap’’ (July 13, 2022) (providing a history 

of the H–2B annual numerical limitations, 

including a history of special H–2B cap-related 

legislation throughout the years). 

indicates that they have already been 

counted.99 It is therefore not clear what 

the commenter’s concern is regarding an 

employer that ‘‘could be left without a 

workforce if an employee moves to 

another employer that is ‘capped out’’’ 

because in that scenario, a petition filed 

by a porting employer seeking an 

extension of stay for a worker already in 

the United States in H–2B status 

generally would not be subject to the 

cap. 

Comment: An advocacy group and a 

couple of unions stated that the 

Department must ensure H–2B petitions 

filed on behalf of transferring employees 

are subject to the statutory cap, 

reasoning that portability must not be 

implemented in a way that allows 

employers to work around the statutory 

H–2B cap. The commenters added that 

if the cap on petitions was already 

reached in a given fiscal year, the 

Department could count the positions 

against the cap in the following fiscal 

year. A union said that DHS could also 

deny petitioners if the cap had already 

been reached. Alternatively, another 

union suggested employers be 

instructed to only offer H–2B positions 

to transferring workers when there are 

still available positions under the 

current year’s cap. The union further 

stated that regulatory flexibilities have 

been used to bypass the statutory cap in 

the past without increased 

accountability. Citing the INA’s annual 

cap, the commenter added that if the 

provisions effectively created capexempt H–2B positions, it would result 

in a violation of congressional intent. 

Similarly, while expressing support 

for the portability provisions, a research 

organization stated that they must not 

be implemented in a way that enables 

employers to circumvent the H–2B 

program cap. The commenter expressed 

concern that the NPRM did not consider 

the impact of the portability provisions 

on the growth and size of the program 

and that it did not put in place 

safeguards to ensure employers do not 

circumvent the H–2B cap. The 

commenter said that because the 

proposed portability provisions would 

allow employers to evade the statutory 

cap limit, the ‘‘true size’’ of the H–2B 

program would increase to three times 

the size of the total cap, which would 

be inconsistent with congressional 

intent. The commenter stated that as a 

result, the Department must subject 

workers who are continuing 

employment, either by transferring 

employers or extending their 

employment with the same employer, to 

the H–2B annual cap. The commenter 

concluded that the simplest way to 

implement this requirement is to count 

an approved continuing petition against 

the annual cap for the following fiscal 

year. The advocacy group and a union 

added that keeping the program closer 

to the size that Congress originally 

intended would incentivize employers 

to improve pay and working 

opportunities, so employees do not 

leave for better opportunities. 

Response: This rulemaking does not 

make any changes to DHS’s longstanding method of counting the H–2B 

cap, and DHS will not make changes to 

its cap counting methodology. DHS will 

continue its longstanding practice of not 

counting against the statutory cap any 

petition seeking to extend the stay of an 

H–2B worker in the United States in H– 

2B status who has already been counted 

against the cap, which includes 

portability petitions. This longstanding 

practice is codified at 8 CFR 

214.2(h)(8)(ii)(A) (‘‘Requests for petition 

extension or extension of an alien’s stay 

shall not be counted for the purpose of 

the numerical limit’’) and is also 

articulated on USCIS’ ‘‘Cap Count for 

H–2B Nonimmigrants’’ website.100

DHS does not agree with the 

commenters that its cap counting 

methodology is inconsistent with 

congressional intent. Pursuant to INA 

sec. 214(g)(1), ‘‘[T]he total number of 

aliens who may be issued visas or 

otherwise provided nonimmigrant 

status during any fiscal year . . . under 

section 101(a)(15)(H)(ii)(b) of this Act 

may not exceed 66,000.’’ An individual 

would be considered to have been 

‘‘otherwise provided’’ H–2B 

nonimmigrant status upon admission 

into the United States without a visa or 

through change of status to H–2B while 

already in the United States. On the 

other hand, H–2B workers in the United 

States seeking an extension of H–2B 

stay, whether or not with the same 

employer, will not be counted against 

the cap because they have already been 

‘‘otherwise provided’’ such H–2B status, 

either at the time of their admission to 

this country or in conjunction with their 

current H–2B grant of status. Further, 

since the beneficiaries of a porting 

petition requesting an extension of their 

H–2B stay are already in H–2B status, 

they are not changing their status from 

another nonimmigrant classification. 

Thus, H–2B workers seeking an 

extension of H–2B stay are not counted 

against the cap consistent with INA sec. 

214(g)(1). 

These longstanding H–2B cap 

procedures have been codified at 8 CFR 

214.2(h)(8)(ii) for over two decades.101

This methodology has also been 

consistently and clearly documented in 

numerous reports that USCIS has 

submitted to Congress.102 The 

commenters did not acknowledge 

USCIS’ longstanding cap counting 

methodology as codified in 8 CFR 

214.2(h)(8)(ii) and, other than citing to 

INA sec. 214(g)(1)(B), did not cite to 

anything else to support their assertions 

that USCIS’ cap counting methodology 

with respect to portability petitions and 

other petitions for extensions of status is 

inconsistent with congressional intent. 

Comment: Several commenters 

generally supported the permanent 

portability provision but expressed 

concerns that an employer that paid 

transportation and filing fees could be 

left paying those significant costs and 

still be unable to find a replacement 

workforce. These commenters asked 

whether subsequent employers could be 

made to reimburse the costs paid by 

their previous employers. 

Response: DHS will not adopt the 

suggestion to require a subsequent 

porting employer to reimburse the 

preceding employer its transportation 

and petition filing costs. Such a 

requirement could discourage the use of 

portability, or even discourage 

situations that are allowed by longstanding regulations, such as an H–2 

nonimmigrant starting work for another 

employer once USCIS approves a 

petition that has been filed on their 

behalf. And while an H–2 employer that 

paid transportation and filing fees risks 

losing those costs if the worker leaves, 

this is not unlike the situation that any 


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employer in the labor market may face 

when a worker leaves and the employer 

loses costs already paid to hire that 

worker (for example, recruitment and 

training costs, relocation expenses, 

hiring bonuses). 

e. Portability Within Same Classification 

Comment: A joint submission, an 

advocacy group, and a trade association 

expressed support for the Department’s 

proposal to extend portability to 

workers performing different jobs 

within the same classification, rather 

than limiting employment to the initial 

conditions of their authorization. 

Similarly, a professional association and 

a trade association expressed support 

that portability would be permanent and 

applied to new work in the same 

classification with the same or different 

employer, reasoning it would not limit 

workers’ employment to the initial 

authorization, allowing the worker to 

have successive petitions and perform 

other jobs. A trade association and 

advocacy group reasoned that requiring 

beneficiaries to only work in the ‘‘exact 

same job’’ that they were initially 

approved for would be restrictive and 

undermine the provisions’ goals. 

Response: DHS appreciates these 

commenters’ support for allowing H–2 

workers to port to different jobs within 

the same classification. 

Comment: An advocacy group 

suggested that the Department allow H– 

2 workers to switch between H–2A and 

H–2B program categories. The 

commenter noted that although 

transferring from H–2A status to H–2B 

status would cause administrative 

hurdles as the status change would 

require adherence to the H–2B cap, the 

commenter reasoned it would 

significantly improve H–2A worker 

mobility by allowing them to accept 

seasonal non-agriculture positions. 

Response: While portability is 

intended to improve worker mobility, 

DHS will not adopt the suggestion to 

allow portability for H–2 workers to 

‘‘switch between H–2A and H–2B 

program categories’’ and start working 

merely upon the filing of a portability 

petition. As proposed, new 8 CFR 

214.2(h)(2)(i)(I) specifies that 

portability, or the ability to work while 

a petition remains pending, will only 

apply to new employment (with the 

same or different employer) in ‘‘the 

same classification that the 

nonimmigrant alien currently holds.’’ 

There is an important distinction 

between a change of status and an 

extension of stay. A worker in H–2A 

nonimmigrant status seeking to change 

to an H–2B employer (for example) 

would need to change their status, not 

merely extend their stay. Unlike 

extensions of stay that fall under DHS 

regulations at 8 CFR 214.1, changes of 

status are governed by INA sec. 248, 8 

U.S.C. 1258, which, unlike 8 CFR 214.1, 

specifically authorizes a nonimmigrant 

to change to any other nonimmigrant 

classification only if they are 

‘‘continuing to maintain that status.’’ It 

is not clear how a nonimmigrant worker 

seeking to change to another 

nonimmigrant classification will 

continue to maintain their current status 

as required by INA sec. 248 while their 

change of status petition is pending if 

they have ported to new employment 

based on the new petition requesting a 

different status. Further, porting 

between H–2A and H–2B nonimmigrant 

classifications may raise issues related 

to administration of the H–2B cap if an 

H–2A worker starts working while the 

petition seeking to change to H–2B 

nonimmigrant status, which is subject to 

numerical limitations under INA sec. 

214(g)(1)(B) and (10), is accepted by 

USCIS and remains pending. 

f. Employment Authorization While an 

Application for a Temporary Labor 

Certification Is Pending 

Comment: Discussing the 

Department’s proposal to consider 

beneficiaries who are employed in the 

United States while their petition is 

pending to be in a period of authorized 

stay, a joint submission stated that the 

proposal was necessary to maximize the 

portability provision and for it to be 

implemented and function properly. 

Similarly, a research organization 

expressed support for the NPRM’s 

proposal to permit an H–2 worker to be 

employed while their petition is 

pending, reasoning that it would make 

it faster to change employers and 

complement the grace period proposal. 

However, the research organization 

suggested that USCIS should further 

authorize employment while a labor 

certification application is pending with 

the DOL. The commenter stated that 

given the high percentage of H–2 TLC 

approvals, it was ‘‘sensible’’ to allow 

workers to be employed pending the 

outcome of their ‘‘initial application,’’ 

adding that it would decrease unlawful 

employment and make the portability 

provisions more ‘‘workable.’’ The 

commenter further suggested that the 

Department exempt workers already in 

the United States from the labor 

certification process. The commenter 

reasoned that because they are already 

in the United States, they do not have 

to be ‘‘imported’’ and thus should not be 

subject to the H–2 labor certification 

statute, and that because they are 

transferring between employers, they do 

not increase the total amount of labor 

market competition. 

Response: DHS will not implement 

the suggestion to authorize employment 

while a labor certification application is 

pending with the DOL. Allowing 

portability to occur upon the filing of an 

application with a TLC would present 

integrity and operational issues due to 

the TLC being adjudicated by another 

agency. The mere filing of a TLC 

application does not guarantee that the 

labor market test with respect to the 

particular job in question has been 

satisfied nor does it ensure that the TLC 

application is non-frivolous and that 

DOL will approve it. In addition, 

allowing portability to occur upon the 

mere filing of an application with a TLC 

could incentivize frivolous TLC 

applications. DHS would not be able to 

determine if the TLC was frivolous, nor 

would DHS be able to codify a standard 

for whether a TLC filing is frivolous (or 

another similar requirement) through 

this rule, as such a regulation would 

necessarily have to be done by DOL and 

would be beyond the scope of this rule 

and DHS’s expertise. 

Allowing portability to occur upon 

the filing of an application with a TLC 

would also present integrity issues due 

to the potential for abuse or fraud 

inherent in allowing employment 

authorization without proper 

documentation. Because the TLC does 

not specifically name a worker, 

employers would face difficulties in 

satisfying the employment verification 

requirements of section 274A of the Act. 

Also, the mere filing of a TLC does not 

guarantee that the employer will 

actually file an H–2 petition based on 

that TLC. Without a signed and filed 

petition naming the porting worker 

accompanied by evidence of the 

certified TLC, DHS would be unable to 

identify the porting worker and verify 

their eligibility. Further, without a 

petition, DHS and DOL would not have 

evidence of the petitioner’s agreement to 

employ the porting worker consistent 

with the requirements of the applicable 

H–2 program, including the employer’s 

agreement to comply with all the 

obligations and assurances that serve to 

protect the porting worker (and U.S. 

workers). Thus, allowing portability to 

occur upon the filing of an application 

with a TLC could also undermine this 

rule’s goal of improving worker 

protections. 

g. Removal of E-Verify Requirement 

From H–2A Portability 

Comment: Several commenters, 

including trade associations, advocacy 

groups, and a professional association, 

expressed support for removing the EVerDate Sep<11>2014 19:14 Dec 17, 2024 Jkt 265001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 E:\FR\FM\18DER3.SGM 18DER3

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103USCIS, ‘‘Frequently Asked Questions on the 

USCIS Fee Rule,’’ https://www.uscis.gov/forms/ 

filing-fees/frequently-asked-questions-on-the-uscisfee-rule (last visited Apr. 11, 2024). These amounts 

represent the Form I–129 filing fees and do not 

include the additional asylum fee, if applicable. 

104 Id. These amounts represent the Form I–129 

filing fees and do not include the additional asylum 

fee, if applicable. 

Verify requirement from H–2A 

portability. A couple of advocacy groups 

reasoned that the E-Verify requirement 

had limited the number of H–2A jobs 

that qualified for the flexibility offered 

through permanent portability, with a 

few trade associations stating that its 

removal would open up the use of 

transfer petitions within the H–2A 

program. A joint submission stated that 

removing the E-Verify requirement from 

H–2A portability would provide many 

benefits, including improving worker 

flexibility and mobility, helping workers 

avoid gaps in employment and potential 

hardship and putting their U.S. 

presence to productive use rather than 

forcing them to sit on the sidelines 

unable to earn an income while the 

petition is pending. The submission also 

stated that this would benefit employers 

that have already demonstrated that 

they have a temporary labor need for 

such workers’ labor or services (that is, 

by virtue of having an approved labor 

certification from DOL), and would 

benefit the U.S. economy overall, as 

such workers are earning, purchasing 

goods and services from local 

businesses, and paying taxes. 

Response: DHS appreciates the 

commenters’ support for the benefits of 

expanding H–2A portability beyond EVerify participating employers. 

Comment: A couple of commenters 

expressed support for removing the EVerify requirement but expressed 

concern that the increased fee schedule 

in another DHS rulemaking, ‘‘USCIS Fee 

Schedule and Changes to Certain Other 

Immigration Benefit Request 

Requirements,’’ will ‘‘chill’’ the use of 

the proposal by increasing the cost of 

filing a named petition. The 

commenters expressed opposition to the 

fee increase, stating that it will hamper 

their ability to take advantage of incountry transfers. Similarly, a trade 

association expressed opposition to the 

fee increase, reasoning that the 

increased fee will negate the benefits of 

removing the E-Verify requirement. 

Response: On January 31, 2024, DHS 

published a final rule, U.S. Citizenship 

and Immigration Services Fee Schedule 

and Changes to Certain Other 

Immigration Benefit Request 

Requirements, 88 FR 6194, with an 

effective date of April 1, 2024. The final 

fee rule raised the Form I–129 filing fee 

for H–2A named beneficiaries from $460 

to $1090 (or $545 for small employers 

and nonprofits), and the Form I–129 

filing fee for H–2B named beneficiaries 

from $460 to $1080 (or $540 for small 

employers and nonprofits).103 It also 

raised the Form I–129 filing fee for H– 

2A unnamed beneficiaries from $460 to 

$530 (or $460 for small employers and 

nonprofits), and from $460 to $580 for 

H–2B unnamed beneficiaries (or $460 

for small employers and nonprofits).104

To the extent that the commenter is 

suggesting changes to the USCIS Fee 

Rule, those comments are outside the 

scope of this rulemaking. In addition, 

while H–2A and H–2B filers for named 

beneficiaries (excluding small 

employers and nonprofits) will pay 

significantly higher petition filing fees 

compared to H–2A and H–2B filers for 

unnamed beneficiaries, DHS is not 

persuaded that the increased filing fees 

will significantly negate the benefits of 

portability for employers. Employers 

will still benefit from portability in the 

form of the ability to employ workers 

earlier since portability petitions are for 

workers who are already in the United 

States in H–2 status and will not need 

to wait for petition approval and visa 

issuance. By obtaining H–2 workers 

faster, these employers may avoid 

financial hardships due to lack of 

workers to perform time-sensitive labor. 

Further, the porting employer will 

benefit by not paying for inbound 

transportation for the H–2 worker, since 

those costs will have already been paid 

by the preceding employer. The 

commenters did not account for these 

benefits, nor did they provide data to 

support the assertion that the increased 

filing fees will negate these benefits. 

Comment: A research organization 

expressed opposition to DHS’s proposal 

to remove the requirement that H–2A 

workers can only port to an employer 

who participates in good standing in EVerify. The commenter said that the 

Department’s initial goal to incentivize 

E-Verify’s use and reduce unauthorized 

workers in the agricultural sector was 

still important. The commenter instead 

suggested DHS extend the requirement 

to all employers who petition for 

workers in the H–2 program, reasoning 

that E-Verify participation has 

‘‘negligible costs and significant benefits 

to employers.’’ The commenter added 

that E-Verify reduces the risk employers 

would hire unauthorized workers and 

provides them with a rebuttable 

presumption to section 274A of the INA 

if they do. The commenter also said that 

E-Verify participation reduces the 

likelihood that employers engage in 

misconduct, because employers who 

misuse E-Verify are subject to 

‘‘significant’’ criminal and civil liability. 

Similarly, a joint submission from 

former DHS senior officials expressed 

opposition to the removal of the EVerify requirement, reasoning that the 

NPRM was missing a justification for its 

removal. Referencing statistics 

associated with the ‘‘speed and 

accuracy’’ of the E-Verify program, the 

commenters stated that E-Verify is a 

‘‘signature enforcement program’’ that 

deters undocumented immigration and 

serves as a ‘‘key indicator’’ that an 

employer is fairly dealing with its 

employees. The commenters said that 

the NPRM does not justify the proposal 

to remove the requirement and that it 

does not seek alternatives because the 

use of E-Verify is contrary to the goals 

of the Administration and is viewed as 

a barrier to legal immigration. While 

stating that there has been an increase 

in the number of noncitizens arriving at 

the U.S. border, the commenters 

expressed concern that ‘‘a tool with a 

proven track record of effectiveness’’ 

was being eliminated. The commenters 

added that the removal of the 

requirements ‘‘illustrates’’ the 

Administration’s ‘‘contentment with 

illegal employment’’ in the United 

States, and concluded that the provision 

was arbitrary and capricious and that it 

should be struck from the final rule. 

Response: DHS disagrees with the 

commenters. Permanently making 

portability available to all H–2 

employers is expected to increase 

worker mobility and employer 

flexibility; it is not related to alleged 

‘‘contentment with illegal employment’’ 

nor to the utility of E-Verify as a general 

enforcement tool. As stated in the 

NPRM, DHS remains committed to 

promoting the use of E-Verify to ensure 

a legal workforce. 88 FR 65040, 65067 

(Sept. 20, 2023). However, DHS no 

longer believes it is appropriate to 

restrict the benefit of portability to H– 

2A workers seeking employment with EVerify employers, particularly given the 

need to increase these workers’ mobility 

and the various measures enhancing 

program integrity that are established in 

this rulemaking. For instance, other 

provisions being finalized in this rule 

will improve program integrity and 

deter harmful or illegal conduct by 

petitioners. These provisions include 

the strengthened site visit authority 

provisions at new 8 CFR 

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

214.2(h)(6)(i)(F) and the mandatory and 

discretionary denial provisions at new 8 

CFR 214.2(h)(10). These new provisions 

are targeted to address a petitioner’s 

misbehavior within the H–2 programs, 

which a petitioner’s E-Verify status may 


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or may not reveal. As also noted in the 

NPRM, this provision is not anticipated 

to reduce E-Verify enrollment. This is 

because other incentives or even legal 

requirements exist for E-Verify 

participation outside of the H–2 

programs. 

Regarding the suggestion to expand 

the E-Verify requirement to all 

employers who petition for workers in 

the H–2 program (regardless of whether 

such employers are requesting the 

benefit of portability), such an 

expansion of the E-Verify program 

within the H–2 programs was not 

proposed in the NPRM and is beyond 

the scope of this rule. It would also be 

inconsistent with this rulemaking’s goal 

of improving worker mobility, 

particularly as H–2B employers have 

never before been required to participate 

in E-Verify program in order to benefit 

from portability. 

For all of the above reasons, DHS 

declines to make any changes to the 

proposed portability flexibility for the 

H–2A and H–2B programs that is 

permanently implemented in this final 

rule. 

h. Additional Suggestions Related to 

Portability Provisions 

Comment: A few advocacy groups and 

a union generally supported the 

portability provisions but noted that, 

while the portability and grace period 

provisions represent an improvement 

over the current status quo, they will 

not fully achieve their goals unless H– 

2 workers have better ways of obtaining 

accurate or real-time information about 

other available H–2 employment 

opportunities. These commenters 

suggested that the Department 

implement additional measures to 

ensure that H–2 workers are aware of 

existing employment opportunities. For 

example, the commenters suggested 

DHS: 

• Work with DOL to improve the 

SeasonalJobs.dol.gov platform so that 

this website would provide accurate, 

real-time information about available 

job opportunities; 

• Facilitate communication between 

workers and employers during the 

recruitment process, the pendency of 

the petition, and when porting between 

jobs, either through the enhancement of 

Seasonal Jobs or another platform, 

which would be an important step 

towards a just recruitment model 

through which workers would be able to 

connect directly with vetted, legitimate 

employers through a multilingual and 

accessible government database of 

verified job offers; 

• Work with State workforce 

agencies’ job services to H–2 workers 

seeking alternative employment; 

• Consider the idea of allowing 

additional flexibility to match workers 

with other employers that are in need of 

staffing support; 

• Create a process for H–2A workers 

in the United States to notify USCIS that 

they are seeking employment. These 

workers could be added to a database 

accessible by prospective H–2A 

employers for the duration of the 

worker’s visa validity and grace period 

(although the list should not include 

any personal identifying information 

that may be used to retaliate or 

discriminate against workers, such as 

name, age, or gender). Such a process 

could also allow workers to rebut 

fraudulent abscondment or termination 

reports filed by their employers; 

• Require employers who have not 

made job offers to domestic or 

prospective H–2 workers outside of the 

country to offer employment to an H–2 

worker or prospective H–2 worker 

seeking new employment that qualifies 

for the position. 

Response: DHS will not implement 

these suggestions in this final rule. 

While DHS appreciates the commenters’ 

concerns about the need to provide 

workers with information about 

available job opportunities in order to 

improve the utility of the new 

portability provision, it is beyond DHS’s 

purview to match or otherwise facilitate 

recruitment between an H–2 worker and 

a prospective H–2 employer. Working 

with DOL to enhance its 

SeasonalJobs.dol.gov platform or 

working with State workforce agencies 

is outside the scope of this DHS rule. 

However, DHS may continue to 

consider some of these suggestions and 

other ways to enhance worker mobility 

outside of the regulatory process. 

Comment: Some commenters 

expressed concerns that true job 

portability would not be fully realized 

without a mechanism for H–2 workers 

to obtain information about a portability 

petition filed on their behalf. These 

commenters stated that, currently, an 

H–2 beneficiary’s knowledge of their 

status depends entirely upon their 

employer’s representations, and that 

existing procedures leave an H–2 

worker vulnerable to unscrupulous 

employers and labor contractors who 

withhold or misrepresent petition status 

information. The commenters further 

stated that current procedures increase 

the worker’s risk of labor exploitation, 

abuse, trafficking, blacklisting, or other 

forms of employer retaliation. These 

commenters made various 

recommendations on how DHS could 

improve the benefits of portability by 

improving an H–2 worker’s access to 

status information. These commenters 

recommended DHS: 

• Directly notify H–2 workers of their 

continued lawful status and 

employment authorization status where 

an H–2 employer represents that it has 

filed an I–129 petition identifying them 

as a beneficiary; 

• Provide I–129 petition and other 

immigration information to H–2 

beneficiaries; 

• Establish mechanisms for H–2 

workers to independently confirm they 

are the beneficiaries of petitions and 

receive information about their 

immigration process; 

• Communicate immigration status 

information through WhatsApp; 

• Work with DOL to improve 

seasonal.jobs to provide H–2 workers 

with full and accurate information about 

the terms and conditions of offered H– 

2 employment and any agents 

authorized to recruit on behalf of the 

employer. 

Response: DHS appreciates these 

comments. In the NPRM, DHS stated 

that it was 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 as well as other 

suggestions regarding ways to ensure 

adequate notification to beneficiaries of 

actions taken with respect to petitions 

filed on their behalf. DHS is not making 

any regulatory changes as a result of the 

request for preliminary input in this 

final rule but will seriously consider the 

input provided by these commenters as 

it continues to research and consider the 

feasibility, benefits, and costs of various 

options separate and apart from this 

final rule. 

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 

a. General Support 

Comment: A couple of trade 

associations expressed support for 

USCIS’ elimination of the ‘‘dual intent’’ 

provision. Similarly, several trade 

associations and an advocacy group 

expressed support for the proposal to 

allow H–2 workers to have a ‘‘dual 

intent’’ of being both a noncitizen and 

an immigrant for purposes of obtaining 

a Green Card. A trade association 

expressed support for a ‘‘clearly defined 

path’’ for H–2 workers with a ‘‘dual 

intent’’ of obtaining a Green Card. 

Similarly, a business association 

expressed support for the provisions, 


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reasoning it would ‘‘form the beginning 

of a ‘dual intent’ regime.’’ 

Numerous commenters, including 

advocacy groups, professional 

associations, and a research 

organization, expressed support for the 

proposed rule’s clarification that H–2 

workers may take steps to become 

lawful permanent residents while 

maintaining lawful immigration status. 

A farming entity regarded proposed 8 

CFR 214.2(h)(16)(ii) as ‘‘a significant 

and much-needed improvement to the 

current regulations governing H–2A 

workers’’ that recognizes the dynamic 

nature of immigration intents, aligns 

with broader policy goals, and promotes 

both flexibility and fairness in the H–2A 

program. 

Other commenters expressed support 

for the proposed changes to H–2 

workers’ ability to seek lawful 

permanent resident status on the basis 

that it would be beneficial for employers 

and H–2 workers. A trade association 

said that the proposed change would 

benefit workers who have followed H– 

2 program requirements and employers 

who want to offer promotions to those 

workers. A farming entity wrote that the 

proposed changes would provide a 

mechanism for improved stability in 

struggling rural communities and farms, 

which face challenges in securing fulltime employees and working within the 

immigration system. Similarly, a trade 

association said that due to domestic 

labor shortages, employers’ options for 

permanent agricultural employees are 

limited. The commenter stated that the 

proposed rule’s clarification would 

allow employers to promote workers 

into permanent positions and expand 

opportunities for worker mobility. 

Similarly, a union said the changes 

would increase worker mobility and 

thus decrease the vulnerabilities faced 

by H–2 workers. A professional 

association stated that the proposed 

changes would allow for more worker 

flexibility and would help them obtain 

permanent residence. The commenter 

stated that while DHS would scrutinize 

the conversion of the employer’s job 

position from a seasonal need to a 

permanent need, this conversion would 

assist employers and workers with 

ongoing labor needs and stability. 

Another trade association said the 

proposed change would allow 

employers to sponsor employees who 

have an interest in moving to the United 

States year-round roles in their 

business. 

A group of Federal elected officials 

said that the proposed rule would 

empower H–2 workers to seek 

permanent residence without fear that 

they would lose their H–2 program 

status while they do so. Similarly, a 

couple of trade associations expressed 

support that H–2 beneficiaries who seek 

lawful permanent resident status 

through a petition related to the 

permanent labor certification program 

would not jeopardize their eligibility in 

the H–2 program in the interim. While 

expressing support for amending 8 CFR 

214.2(h)(16)(ii) to incorporate elements 

of ‘‘dual intent,’’ a professional 

association said that the proposal 

reflected the reality that agricultural and 

nonagricultural employment could be 

temporary and permanent and that the 

employer’s need should not be 

‘‘imputed’’ on a worker’s intention 

regarding employment or future 

permanent status. The commenter stated 

that because existing regulations allow 

approval of a permanent labor 

certification or filing an H–2 petition to 

be used as a reason to deny a worker’s 

extension of stay, the process deters 

employers and employees from taking 

steps toward permanent residence due 

to fear that future H–2 status could be 

denied based on the worker’s intent. 

The commenter added that the proposal 

does not undermine the integrity of the 

H–2 program because the requirement 

that employers demonstrate a temporary 

or seasonal need remains covered by 8 

CFR 214.2(h)(5)(iv) and 8 CFR 

214.2(h)(6)(ii), respectively. 

A few commenters, including a 

farming entity, an attorney, and an 

individual commenter, expressed 

support for the proposed provision 

based on the necessary contributions of 

H–2 workers to U.S. businesses and the 

economy. For example, the individual 

commenter and the attorney said that 

under current regulations, workers who 

support U.S. businesses and the U.S. 

economy are dissuaded from pursuing 

lawful permanent residence due to the 

risk of losing eligibility for H–2 status 

once the permanent labor certification is 

certified. A couple of commenters 

added that the potential loss of 

nonimmigrant status leaves workers 

with the ‘‘impossible’’ choice between 

pursuing the long-term goal of U.S. 

lawful permanent residence and 

sustaining the immediate need for 

seasonal income. Such concerns, the 

commenters concluded, drive potential 

full-time employees to Canada, harming 

U.S. businesses that rely on H–2 

workers. An attorney and farming entity 

additionally reasoned that both 

nonimmigrants and businesses rely on 

the maintenance of seasonal positions, 

adding that workers fully intend to 

abide by the temporary nature of their 

placement while they wait ‘‘in line’’ to 

pursue permanent residence through the 

employment-based (EB)-3 category and 

other worker categories. The farming 

entity wrote that the proposed 

provisions would enhance the ability of 

workers to contribute to the United 

States while respecting the integrity of 

the immigration system and would 

address the ‘‘overly restrictive’’ nature 

of regulations that penalize workers for 

pursuing a more stable future in the 

United States. Echoing the above 

remarks, an individual commenter also 

expressed support for Section IV.B.4. of 

the proposed rule (‘‘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’’) and urged DHS to 

maintain the proposed language in the 

final rule. 

Response: DHS thanks these 

commenters and will finalize 8 CFR 

214.2(h)(16)(ii) as proposed. As DHS 

explains further below, the proposal and 

the finalized regulation do not change 

the requirements that the H–2 

petitioner’s need be temporary or 

seasonal in nature, that an H–2 

beneficiary has a foreign residence that 

he/she has no intention of abandoning, 

or that the H–2 worker be in this 

country temporarily to perform labor or 

services. Rather, 8 CFR 214.2(h)(16)(ii) 

clarifies that taking certain steps in 

seeking lawful permanent residence, by 

itself, will not violate H–2 status. 

b. Opposition on the Basis of Legal 

Authority 

Comment: A couple of commenters, 

including a joint submission from 

former DHS senior officials and a 

research organization, opposed the 

proposed changes to clarify that an H– 

2 worker may take steps toward 

becoming a lawful permanent resident 

while still maintaining lawful 

nonimmigrant status. These commenters 

asserted that the proposal will transform 

the H–2A and H–2B programs into 

‘‘dual intent’’ visa programs and 

claimed that the proposed change is 

ultra vires, as it is unlawful for agencies 

to act in violation of their own 

regulations or enabling statutory 

authority. The research organization 

said that both the H–2A and H–2B visa 

programs are ‘‘single intent’’ visa 

programs that do not allow beneficiaries 

to intend to take steps to adjust their 

status to that of a lawful permanent 

resident. The commenter asserted that, 

under the statute, H–2A and H–2B 

applicants must demonstrate that they 

are not coming to the United States to 

reside permanently, as immigrants, but 

will return home at the end of their 

authorized period of stay. The 


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105Subsequent to receiving this comment, the 

Supreme Court in Loper Bright Enterprises v. 

Raimondo, 144 S. Ct. 2244 (2024), overruled 

Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, 467 U.S. 837 (1984). In its decision in 

Loper Bright, the Court recognized that in certain 

cases Congress has given agencies authority to 

exercise discretion, including by defining certain 

terms or promulgating rules to fill in details of a 

statutory scheme. 

106See Loper Bright Enters. v. Raimondo, 144 S. 

Ct. 2244, 2263 (2024) (‘‘In a case involving an 

agency, of course, the statute’s meaning may well 

be that the agency is authorized to exercise a degree 

of discretion. Congress has often enacted such 

statutes. For example, some statutes ‘expressly 

delegate’ to an agency the authority to give meaning 

to a particular statutory term. Others empower an 

agency to prescribe rules to fill up the details of a 

statutory scheme, or to regulate subject to the limits 

imposed by a term or phrase that leaves agencies 

with flexibility, such as ‘appropriate’ or 

‘reasonable.’ ’’) (cleaned up). 

107As discussed in the Legal Authority section of 

this final rule’s preamble as well as in the proposed 

rule, under INA sec. 103(a) and (a)(3), 8 U.S.C. 

1103(a) and (a)(3), the Secretary has explicit 

authority to administer and enforce the immigration 

and naturalization laws and establish regulations 

necessary to carry out that authority. Furthermore, 

under INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1), the 

Secretary has explicit authority to promulgate 

regulations prescribing the conditions for the 

admission of nonimmigrants, including explicitly 

‘‘to insure that at the expiration of such time or 

upon failure to maintain the status under which he 

was admitted, or to maintain any status 

subsequently acquired . . . , such alien will depart 

from the United States.’’ In addition, INA sec. 

214(c), 8 U.S.C. 1184(c), provides the Secretary with 

explicit authority to prescribe the form and content 

of a nonimmigrant visa petition, and to determine 

the eligibility for the H–2 nonimmigrant 

classifications. 

108See Matter of Hosseinpour, 15 I&N Dec. 191 

(BIA 1975) (noting that ‘‘a desire to remain in this 

country permanently in accordance with the law, 

should the opportunity to do so present itself, is not 

necessarily inconsistent with lawful nonimmigrant 

status [citing cases]’’ and holding that ‘‘the filing of 

an application for adjustment of status is not 

necessarily inconsistent with the maintenance of 

lawful nonimmigrant status.’’). 

commenter stated that proposed 8 CFR 

214.2(h)(16)(i) is inconsistent with 

statute and must be withdrawn, 

asserting that if a noncitizen enters the 

United States on a ‘‘single intent’’ visa 

but nevertheless intends to apply for a 

Green Card during the workers’ time in 

the United States, this indicates that the 

noncitizen misrepresented their 

intention at the time they entered the 

United States. The commenter 

concluded that it is both ultra vires and 

inappropriate for the Executive Branch 

to actively encourage H–2A and H–2B 

workers to take steps towards 

adjustment of status in violation of the 

INA. Stating similar rationale, the joint 

submission from former DHS senior 

officials said the Department seeks to 

undermine unambiguous statutory 

language that the H–2 programs provide 

for temporary admission. The 

commenter said, pursuant to clear 

statutory construction, admission of an 

H–2 beneficiary cannot be granted when 

the beneficiary has an intent to abandon 

a foreign residence. The commenter 

indicated the proposed provision 

conflicts with the proposed regulation 

and violates the first prong of 

Chevron.105 As further evidence of the 

asserted ultra vires nature of the 

proposal, the commenter said Congress 

specifically provided for dual intent of 

certain nonimmigrants but did not 

include H–2 classification. The 

commenter concluded that this 

proposed rule seeks to create a pathway 

for admission as a dual-intended H–2 

beneficiary that is contrary to the law, 

asserting that DHS must withdraw these 

provisions from the proposed rule. 

Response: New 8 CFR 214.2(h)(16)(ii) 

is consistent with the plain language of 

section 101(a)(15)(H)(ii)(a) of the INA. 

This provision does not exempt an H– 

2 worker from the statutory requirement 

that the worker have a residence in a 

foreign country which he or she has no 

intention of abandoning, nor from the 

requirement that the worker be coming 

temporarily to the United States to 

perform H–2 services or labor. This 

statutory provision includes the phrase 

‘‘having a residence in a foreign country 

which he has no intention of 

abandoning.’’ Implicit in that phrase is 

discretion to determine, as a factual 

matter, whether the noncitizen meets 

the definition for classification as an H– 

2A or H–2B nonimmigrant based, in 

part, on the noncitizen’s intent, since 

the statute does not address how such 

intent is to be ascertained; for example, 

by setting out facts or factors the 

Government is to consider.106 Given 

that other sections of the INA delegate 

authority to the Secretary of Homeland 

Security to administer immigration 

laws, promulgate regulations regarding 

the same, and specifically authorize the 

Secretary to prescribe regulations for the 

admission of nonimmigrants,107 DHS is 

well within its authority to establish 

which factors it will consider to 

ascertain the noncitizen’s intent, 

including whether any of those factors 

will de facto preclude the noncitizen 

from being classified as an H–2A or H– 

2B nonimmigrant. Therefore, final 8 

CFR 214.2(h)(16)(ii) effectuates the 

authority Congress delegated to the 

Secretary to fill in details necessary to 

carry out the statutory scheme. As 

finalized, 8 CFR 214.2(h)(16)(ii) simply 

clarifies that certain H–2 worker’s 

actions seeking lawful permanent 

resident status will not, standing alone, 

be the basis for denying an H–2 benefit. 

This provision is, in fact, consistent 

with established binding precedent.108

DHS is not persuaded that taking steps 

described in new 8 CFR 214.2(h)(16)(ii) 

to secure lawful permanent resident 

status necessarily demonstrates that the 

H–2 worker misrepresented their intent 

when entering the United States or that 

the H–2 worker does not intend to abide 

by the rules applicable to H–2A or H– 

2B temporary status. An unexpected 

opportunity can arise after admission. 

The fact that DHS is amending 8 CFR 

214.2(h)(16)(ii) to revise the language 

put into place by its 1990 regulations 

regarding the significance of the 

approval of a permanent labor 

certification and the filing of an 

immigrant petition or adjustment of 

status application with respect to the 

noncitizen’s H–2 status does not call 

into question DHS’s statutory authority 

to do so. As stated in the proposed rule, 

the current regulation conflates the 

beneficiary’s nonimmigrant intent with 

the nature of the employer’s need. 88 FR 

65040, 65068 (Sept. 20, 2023). Further, 

while the agency in previous 

rulemaking 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, DHS 

continues to maintain, as it did in the 

NRPM, that such a prohibition is overly 

broad and that it is important to 

increase H–2 workers’ mobility to the 

extent legally possible, particularly 

given the vulnerability of H–2 workers 

to potential intimidation and threats 

made on the basis of their nonimmigrant 

status. 55 FR 2606, 2619 (Jan. 26, 1990). 

Significantly, the provision does not 

create a ‘‘dual-intent’’ classification or 

otherwise encourage H–2 workers to 

seek lawful permanent resident status. It 

also does not create a new, direct 

pathway to lawful permanent residence 

deriving from H–2 status or otherwise 

contradict any statutory provisions 

applicable to the H–2A or H–2B 

classifications. Rather, it allows an H–2 

worker to avail themselves of existing 

lawful pathways by clarifying that 

approval of a permanent labor 

certification, the filing of an immigrant 

petition for a noncitizen (family 

sponsored or employment-based), or an 

application by a noncitizen 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. DHS is also slightly revising 

the provision, as proposed in the NPRM, 

to explicitly include those seeking 

benefits as an immediate relative or 

under the diversity visa program, as it 

was not DHS’s intention to exclude 


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those benefits. See new 8 CFR 

214.2(h)(16)(ii). DHS will consider these 

actions, together with all other facts 

presented, in determining whether the 

H–2 nonimmigrant is maintaining their 

H–2 status and whether the noncitizen 

has a residence in a foreign country 

which he or she has no intention of 

abandoning. For these reasons, DHS is 

finalizing this provision with slight 

revisions relating to immediate family 

and diversity visa programs described 

above. 

c. Limited Impact of Proposed Provision 

Comment: Some of the commenters 

who are in support of allowing H–2 

workers to pursue lawful permanent 

residence specifically commented on 

DHS’s data, stating that such data show 

that ‘‘the regulation will have a minimal 

impact due to the low number of 

workers who apply for permanent 

resident status’’ and that ‘‘the proposed 

rule would not expand the underlying 

eligibility of H–2 workers for lawful 

permanent resident status.’’ 

A research organization stated that 

few H–2 workers ever obtain lawful 

permanent resident status through the 

EB pathway. The commenter stated that 

Congress must address this issue, as 

there are insufficient pathways for 

workers in low-wage jobs and without 

advanced degrees to obtain lawful 

permanent resident status or become 

naturalized. Referencing statistics 

associated with employment-based 

lawful permanent residence, the 

commenter said that only 1 percent of 

total approved certifications by 

employers for employment-based lawful 

permanent residence were for H–2 

workers. The commenter attributed this 

to DHS’s interpretation of nonimmigrant 

intent, which the commenter stated has 

deterred employers who would 

otherwise apply to permanently hire H– 

2 workers. 

Response: Congress has defined 

various employment-based immigrant 

classifications. This rule is not the place 

to address the applicability of those 

categories to H–2 workers. As noted in 

the proposed rule, this provision does 

not expand the underlying eligibility of 

H–2 workers for lawful permanent 

resident status and is consistent with 

longstanding precedent. See Matter of 

Hosseinpour, 15 I&N Dec. 191, 192 (BIA 

1975). 

d. Temporary Need Requirement 

Comment: A trade association 

expressed support for the proposed 

rule’s clarification that an employer may 

petition for permanent status on behalf 

of an H–2 employee while still being 

able to demonstrate a temporary need. 

Similarly, a joint submission expressing 

support for this proposed change stated 

that it would have no substantive 

impact on the current temporary need 

requirements of the H–2 programs and 

that it would improve the flexibility and 

mobility of individual beneficiaries. The 

commenter said that the current 

framework conflates the beneficiary’s 

intent and the temporary or permanent 

nature of the employer’s need. The 

commenter concluded that it was in the 

best interest of the United States and its 

businesses for the Department to not 

preclude H–2 status for beneficiaries 

that are at some point in the lawful 

permanent residence process and urged 

the Department to incorporate the 

provision in the final rule. 

Response: DHS appreciates these 

comments and agrees that a more 

nuanced approach to actions in pursuit 

of lawful permanent residence is 

important for both H–2 workers and 

employers. As noted in the proposed 

rule, the requirements that an H–2A or 

H–2B petitioner must establish 

temporary need remain covered by the 

provisions at 8 CFR 214.2(h)(5)(iv) and 

8 CFR 214.2(h)(6)(ii), respectively. 

Removing the language of the prior 

regulation that mandates stringent 

consequences for an H–2 worker who 

takes certain action to obtain lawful 

permanent resident status creates 

flexibility for employers to promote H– 

2 workers. 

e. Sponsoring of Lawful Permanent 

Resident Status by H–2 Employers 

Comment: Several commenters, 

including several trade associations and 

a few advocacy groups, suggested the 

Department clarify whether employers 

can sponsor H–2 workers for permanent 

positions within their business even if 

they are the same or similar role that the 

employer is petitioning for. Some of the 

commenters reasoned that this was 

important because some positions are 

structured the same but while some 

employees are needed year-round, 

others are only needed for certain 

seasonal periods, as they have a reduced 

need for staff in the off-season. Several 

trade associations and an advocacy 

group added that this would allow 

employers to sponsor H–2 workers more 

frequently. An advocacy group added 

that this would provide clarity for 

workers and employers. Similarly, a 

business association stated that the 

proposed changes would provide 

welcome relief and certainty to H–2 

workers and employers if immigrant 

visa petitions did not preclude workers 

from obtaining or maintaining H–2 

status. However, the commenter also 

requested that the Department clarify 

that the employer that files a permanent 

immigrant visa petition for an H–2 

worker could also be that worker’s 

employer on their H–2 visa. 

Another trade association suggested 

that an additional clarification needed 

to be proposed for public comment that 

would allow employers to sponsor H–2 

workers for permanent positions within 

their operation regardless of whether the 

position corresponds to the employment 

outlined in the H–2 petition. 

Response: DHS appreciates the desire 

for greater clarity but is not proposing 

or making any change to how it views 

an employer’s temporary need. As noted 

in the proposed rule, the requirements 

that an H–2A or H–2B petitioner must 

establish temporary and/or seasonal 

need, as applicable, remain covered by 

the provisions at 8 CFR 214.2(h)(5)(iv) 

and 8 CFR 214.2(h)(6)(ii), respectively. 

f. Other Feedback and Suggestions on 

the Impact of Seeking Lawful Permanent 

Resident Status 

Comment: A union and a research 

organization expressed support for the 

proposed change, reasoning that it 

would increase the ability of H–2 

workers to adjust their status to become 

lawful permanent residents. However, 

the commenters urged the Department 

to clarify that the change would apply 

to workers seeking permanent residence 

through both employment-based and 

family-based petitions. 

Response: DHS appreciates the 

opportunity to clarify that the provision 

at 8 CFR 214.2(h)(16)(ii) does indeed 

apply to workers seeking permanent 

residence through both employmentbased and family-based, as well as 

diversity visa, petitions. The provision 

at 8 CFR 214.2(h)(16)(ii), as revised in 

this final rule, clarifies that the fact that 

an individual has taken certain 

specified steps toward becoming a 

permanent resident will not by itself be 

a basis for denying an H–2 petition, a 

request to extend an H–2 petition, or an 

application for admission in, change of 

status to, or extension of stay in H–2 

status, but will instead be considered 

together with all other facts presented in 

determining whether the individual is 

maintaining H–2 status and has a 

residence in a foreign country which he 

or she has no intention of abandoning. 

DHS is making minor revisions to the 

final rule to include all immigrant 

petitions, instead of just preference 

petitions, to avoid inadvertently 

omitting immediate relative petitions 

under INA sec. 204(a)(i)(I)(i) or diversity 

visa petitions filed with DOS. See new 

8 CFR 214.2(h)(16)(ii). Among the steps 

covered in the revised provision is ‘‘the 

filing of an immigrant petition’’ on the 


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109Currently, the FAM states, in pertinent part: 

‘‘Unlike H–1B nonimmigrants, H–1B1, H–2, and H– 

3 nonimmigrants are subject to INA sec. 214(b) and 

are not accorded dual intent under INA sec. 214(h). 

Under INA 101(a)(15)(H)(ii)–(iii), an applicant is 

not classifiable as an H–2A, H–2B, or H–3 

nonimmigrant unless the applicant has a residence 

abroad and no intention to abandon that residence. 

Continued 

individual’s behalf. The phrase 

‘‘immigrant petition’’ in this context 

refers to any immigrant petition filed 

under INA secs. 204(a), 8 U.S.C. 1154(a), 

and 201(b)(2)(A)(i), 8 U.S.C. 

1151(b)(2)(A)(i) (‘‘Immediate 

Relatives’’), 203(a), 8 U.S.C. 1153(a) 

(‘‘Preference allocation for familysponsored immigrants’’), or INA sec. 

203(b), 8 U.S.C. 1153(b) (‘‘Preference 

allocation for employment-based 

immigrants’’), as well as INA sec. 203(c), 

8 U.S.C. 1153(c) (‘‘Diversity 

immigrants’’), and thus includes both 

family-based and employment-based 

petitions as well as the diversity visa 

program. Similarly, the provision covers 

the filing of an application to seek 

‘‘lawful permanent residence or an 

immigrant visa’’ without specifying 

limitations as to the basis for the 

permanent residence application or the 

immigrant visa application. 

Comment: While expressing support 

for the proposed change, a research 

organization stated in the interest of 

fairness to applicants in other programs, 

the change should not be limited to the 

H–2 program and should be codified 

generally. Similarly, an advocacy group 

suggested there be no barriers to legal 

migration and changes of status for H– 

2 workers. 

In response to proposed 8 CFR 

214.2(h)(16)(ii), a research organization 

requested that DHS provide an 

explanation as to why it decided to 

‘‘partially address the barriers to 

citizenship by H–2A visa participation’’ 

rather than incentivizing citizenship. As 

an alternative to the proposed approach 

outlined in the NPRM, the organization 

suggested an approach to establish a 

clear pathway to citizenship, while 

incentivizing workers to return to their 

country of origin. Specifically, citing 

research, the organization suggested that 

new immigrants could work during an 

initial period under a provisional visa, 

during which they earn the benefit of 

permanent residence through ‘‘a 

continuous and productive working 

career’’ and through payment of taxes. 

The suggested approach would 

additionally entail a measure whereby 

workers would post a bond to an escrow 

account through their wages, and the 

bond would be forfeited if the worker 

becomes a resident. 

Response: While DHS appreciates the 

comment, any new visa program or 

pathway to citizenship would require 

legislation. The suggestion about 

applying the language in new 8 CFR 

214.2(h)(16) beyond the H–2 program is 

beyond the scope of this rule. The 

commenter’s suggestion ‘‘that there be 

no barriers to legal migration and 

change of status for H–2 workers’’ is 

unclear. However, DHS notes that it 

proposed numerous changes to improve 

the efficiency of the H–2 programs and 

to reduce barriers to use of those 

programs. For example, DHS proposed 

to remove the eligible countries lists and 

to simplify the regulatory provisions 

regarding the effect of a departure from 

the United States. These provisions are 

part of this final rule and are discussed 

below. 

Comment: While expressing support 

for an immigration process that permits 

H–2 workers in good standing to apply 

for permanent residence or citizenship, 

an association of State Governments 

questioned whether this change would 

cause additional administrative burdens 

for employers and employees, and for 

the requirements for lawful permanent 

resident status. The commenter 

requested the Department clarify the 

details of this immigration process in 

the final rulemaking. 

Response: DHS does not expect the 

provision at 8 CFR 214.2(h)(16)(ii) to 

result in any additional administrative 

burden for H–2 employers or 

employees. The provision at 8 CFR 

214.2(h)(16)(ii) is not creating a new 

program for lawful permanent residence 

or citizenship and does not create any 

new obligation for H–2 employers or 

employees; it merely clarifies that, 

standing alone, the fact that an 

individual has taken certain steps to 

pursue permanent residence will not be 

considered a violation of H–2 status or 

show an intent to abandon a foreign 

residence. It is important to note that, 

for those employers who choose to file 

an immigrant petition on behalf of a 

current or former H–2 nonimmigrant— 

or those H–2 workers who choose to 

pursue permanent residence through 

another avenue (whether employmentbased or family-sponsored, or on the 

basis of diversity)—the provision at 8 

CFR 214.2(h)(16)(ii) does not change the 

existing immigration process or 

eligibility requirements. The provision 

also does not revise existing eligibility 

requirements or procedures for 

adjustment to lawful permanent 

resident status. 

Comment: A business association 

referenced the consular review process 

that H–2 workers face when they leave 

the United States and return on another 

H–2 visa. The commenter stated that the 

‘‘dual intent’’ regulations would help 

the individuals if they were reviewed by 

DHS, but that the regulations would not 

hold sway over consular officials under 

the State Department. The commenter 

suggested DHS work with the State 

Department to ‘‘harmonize their 

respective regulations and guidance 

documents’’ to avoid conflictual 

applications of the two agencies’ 

policies. 

A professional association and a trade 

association expressed support for the 

Department’s clarification but stated 

DHS’s reasoning for the clarification, 

that an H–2 worker taking steps to 

become a permanent resident would not 

show an intent to abandon their foreign 

residence, appeared to be 

counterintuitive. 

Response: DHS disagrees that the 

provision is counterintuitive. An H–2 

worker may seek to eventually adjust 

status to that of a lawful permanent 

resident while maintaining a current 

intent to leave the United States at the 

end of their authorized period of stay 

and continuing to have a foreign 

residence that they have no current 

intention of abandoning. As the rule 

provides, the approval of a permanent 

labor certification, filing of a preference 

or other immigrant visa 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. See new 8 CFR 

214.2(h)(16)(ii). Standing alone, such 

filing will not, however, be sufficient 

basis to conclude that the H–2 

nonimmigrant has failed to maintain his 

or her H–2 status or has the intent to 

abandon the person’s residence in a 

foreign country. As noted above, the 

provision is consistent with 

longstanding precedent, Matter of 

Hosseinpour, 15 I&N Dec. 191, 192 (BIA 

1975) (‘‘[C]ourts have held that a desire 

to remain in this country permanently 

in accordance with the law, should the 

opportunity to do so present itself, is 

not necessarily inconsistent with lawful 

nonimmigrant status.’’). 

DHS agrees that coordination with 

DOS is important, and notes that the 

Foreign Affairs Manual (FAM) is not 

inconsistent with new 8 CFR 

214.2(h)(16)(ii). The FAM, which 

constitutes guidance to DOS employees, 

is not binding on DHS and does not 

indicate that certain actions seeking 

lawful permanent resident status, 

standing alone, warrant denial of the 

visa.109


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Thus, the fact that an H–2 or H–3 nonimmigrant has 

sought or plans to seek permanent residence may 

be considered evidence of the applicant’s intention 

to abandon foreign residence.’’ DOS, Foreign Affairs 

Manual 9 FAM 402.10–10(A) (emphasis added), 

https://fam.state.gov/FAM/09FAM/ 

09FAM040210.html#M402_10_10_A. 

5. Removal of ‘‘Abscondment,’’ 

‘‘Abscond,’’ and Its Other Variations, 

and Notification to DHS 

a. Removal of ‘‘Abscondment,’’ 

‘‘Abscond,’’ and Its Other Variations 

Comment: A few commenters 

expressed support for DHS’s proposed 

technical change. Several commenters, 

including a few trade associations, an 

advocacy group, a joint submission, and 

a professional association, expressed 

that they have no concerns or objections 

to DHS’s proposal to remove the words 

‘‘abscondment,’’ ‘‘abscond,’’ and its 

other variations from the H–2 

regulations and 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.’’ A trade 

association stated that it was ‘‘agnostic’’ 

as to whether the Department should 

remove the terms ‘‘abscondment’’ and 

‘‘abscond’’ from the regulations. A joint 

submission stated that it has no 

objections to the Department’s proposal 

to the extent that it does not 

substantively change any existing 

program obligations. The joint 

submission commented that it considers 

this a reasonable change to the 

regulatory text and supports the 

Department’s rulemaking on this front. 

The joint submission concurred with 

the Department that workers deserve to 

be treated fairly. They further 

commented that in their experience, 

though rare, workers do leave 

employment for legitimate reasons, and 

in isolation, the act of separating 

employment should not adversely affect 

that worker’s ability to secure 

subsequent employment if done through 

lawful processes. Similarly, a 

professional association stated that 

workers leave their employment for 

various reasons, the majority of which 

are entirely legitimate, including to 

undergo medical procedures, injury, 

pregnancy, emergencies back home, or 

to assume more advantageous 

employment elsewhere. The commenter 

remarked that it is critical to ensure that 

DHS uses appropriate and fair language 

when describing those workers who 

leave their employment for valid 

reasons since the negative connotation 

surrounding these words can negatively 

impact the workers’ ability to obtain 

future U.S. immigration benefits. 

A professional association noted that 

some people have a negative 

connotation of the words ‘‘abscond’’ and 

‘‘abscondment’’ and recognized that 

workers may have valid reasons for 

leaving their contracts. Two advocacy 

groups welcomed the Department’s 

removal of the words ‘‘abscondment,’’ 

‘‘abscond,’’ and its other variations from 

the H–2 regulations as these words 

convey wrongdoing by the worker, 

without regard for the reality of their 

working and living conditions. The 

advocacy groups stated that there are 

many reasons why an H–2 worker may 

not report for work, including illness, 

injury, unsafe working conditions, and 

transportation issues. The commenters 

remarked that replacing these words is 

a positive step in the recognition of the 

imbalance of power between workers 

and employers since it is not 

uncommon for employers to use the 

threat of reporting abscondment to 

prevent workers from asserting their 

rights. 

Response: DHS appreciates the 

support expressed by these commenters 

for removing terms ‘‘abscondment,’’ 

‘‘abscond,’’ and its other variations from 

the H–2 regulations. These terms have 

negative connotations which suggest 

wrongdoing on the part of H–2 workers 

who may have a wholly valid reason to 

leave their employment prior to the end 

of a work contract. As explained in the 

supporting comments, in many 

instances, workers leave employment 

early for wholly valid reasons, such as 

safety concerns, medical issues, or 

emergencies that require their presence 

in their home countries. In finalizing the 

proposals to remove these terms, DHS 

reaffirms its recognition of the many 

legitimate reasons why workers may 

leave employment early. 

b. Notification Requirements 

Comment: A couple of advocacy 

groups urged the Department to 

reevaluate its decision to maintain the 

notification requirements in 8 CFR 

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

214.2(h)(6)(i)(F). The advocacy groups 

stated that these requirements often 

function as another avenue of 

exploitation for abusive employers, who 

can rely on the threat of reporting a 

worker as having ‘‘absconded’’ to 

retaliate against workers seeking to 

leave. The commenters added that the 

coercive effect of the threat is 

intensified by the current policy that 

bars some absconded workers from the 

H–2A program for 5 years, and USCIS 

does not have the resources to verify the 

accuracy of these reports. The 

commenters asked that the Department 

amend this notification system or 

include avenues for worker notification 

and opportunities for workers to 

respond. The commenters concluded 

that including workers in the process 

will minimize the chances that H–2 

employment-related reports will be used 

to retaliate against workers who have 

exercised their rights or to coerce them 

into remaining in an abusive or 

exploitative working environment. 

Response: DHS appreciates the 

commenters’ concerns regarding the 

potential for the H–2 notification 

requirements to be used by employers in 

a coercive or retaliatory manner. As 

demonstrated by the worker protection 

provisions finalized in this rule, the 

Department is strongly committed to 

addressing all forms of abuse in the H– 

2 programs, including coercive actions 

and threats of retaliation committed by 

employers. The Department has chosen 

not to substantially change or eliminate 

the notification requirements in 8 CFR 

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

214.2(h)(6)(i)(F), because these 

information collections continue to have 

value for both DHS and DOL. The 

Department reiterates, however, that it 

does not consider the information 

provided in an employer notification, 

alone, to be conclusive evidence 

indicating the worker is immediately 

out of status. As noted in the proposed 

rule, in subsequent petitions on the 

workers’ behalf, information or evidence 

may be requested regarding a worker’s 

date of cessation to demonstrate 

maintenance of status. This is one 

reason, in addition to operational 

limitations, DHS is not adopting the 

suggestion that affected workers be 

made aware of and provided an 

opportunity to respond to notifications 

submitted by their employers. 

Comment: A trade association 

expressed its concerns about what it 

described as the burdens, ‘‘ineffective 

safeguards,’’ and unequal regulatory 

requirements placed on employers who 

avail themselves of the H–2 program, 

such as notification requirements when 

a beneficiary does not report for work. 

The commenter stated that employers 

must continue to satisfy notification 

requirements when a beneficiary does 

not report for work, which is yet another 

requirement for which employers must 

comply. While the notifications may 

permit an employer to file for a 

replacement worker, this is a marginal 

benefit, reasoned the commenter, noting 

that a harvesting season may be nearly 

over before a replacement worker can 

arrive. On the other hand, the 

commenter continued, failure to provide 

such notification could result in 

sanctions on the petitioner, including 

that DOL may find the employer liable 


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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 103281 

110Alex Nowrasteh, CATO Institute, ‘‘Haitian 

Guest Workers Overstayed their Visas Because the 

Government Cancelled the Program for Them’’ (Jan. 

18, 2018), https://www.cato.org/blog/haitian-guestworkers-overstayed-their-visas-becausegovernment-cancelled-program-them. 

111 DHS removed Haiti from the eligible countries 

list on January 18, 2018. See 83 FR 2646. It added 

Haiti back to the list on November 10, 2021, while 

noting that some factors, including nonimmigrant 

visa overstay and removal rates that precipitated 

Haiti’s removal from the H–2 programs in 2018 

remain a concern. See ‘‘Identification of Foreign 

Countries Whose Nationals Are Eligible To 

Participate in the H–2A and H–2B Nonimmigrant 

Worker Programs,’’ 86 FR 62559, 62562 (Nov. 10, 

2021). Thus, as this example shows, the eligible 

countries list has not proven to be an especially 

effective tool in preventing nonimmigrant overstays 

and punishing recalcitrant countries. 

to pay wages for up to three-quarters of 

the hours offered to a worker who 

abandoned the job. The commenter also 

suggests that ‘‘[H–2] regulating agencies 

show they are more concerned that 

employer submits an email than 

whether a beneficiary maintains their 

status.’’ The commenter added that ‘‘the 

Department must do better to ensure 

beneficiaries maintain status—either by 

completing job contracts or porting to 

another eligible job opportunity.’’ 

Response: The commenter does not 

offer a clear supportive position on 

retention of petitioner notification 

requirements other than to suggest that 

it is important that employers notify 

DHS when workers have ‘‘abandoned’’ 

their jobs. The commenter also does not 

clearly oppose retention of these 

notification requirements or offer 

suggestions for revising the related 

regulatory provisions. Instead, the 

commenter appears to suggest that the 

current notification requirements are 

not ‘‘equitable,’’ as the burdens of 

complying with them fall heavily on 

petitioners yet these notification 

requirements only provide ‘‘marginal 

benefits’’ to petitioners. While DHS 

understands that the burdens of 

compliance fall on the petitioner, DHS 

believes these information collections 

continue to have value. For example, 

information that an H–2 worker is no 

longer working for a petitioner could be 

useful for public safety reasons and to 

maintain the integrity of the H–2 

programs (or any other nonimmigrant 

visa programs) as well. 

With regard to the commenter’s 

suggestion that ‘‘[H–2] regulating 

agencies show they are more concerned 

that employer submits an email than 

whether a beneficiary maintains their 

status,’’ DHS strongly disagrees with 

these unfounded assertions. The 

Department also declines to make any 

changes with respect to the comment’s 

statement that DHS must do even more 

to ensure beneficiaries maintain their 

status either by completing job contracts 

or porting to another eligible job 

opportunity. DHS is finalizing robust 

worker flexibility provisions in this 

rule, including expanded grace periods 

and access to portability, to help ensure 

H–2 beneficiaries can maintain status if 

situations arise where they need to find 

new employment. 

F. Program Efficiencies and Reducing 

Barriers to Legal Migration 

1. Eligible Countries Lists 

a. Support for Eliminating Eligible 

Countries Lists 

Comment: Multiple commenters 

expressed general support for the 

Department’s removal of the H–2 

eligible countries lists. While expressing 

their support, a professional association 

and a business association stated that 

the Department’s rationale for the 

removal—improving efficiency and 

removing burdens for the Department 

and employers—seems appropriate. 

Another professional association 

remarked that removing the lists 

provides another efficiency to the H–2 

program. A joint submission concurred 

with the Department that the existing 

national interest waiver framework is 

burdensome, a waste of resources, and 

difficult to administer, while adding 

that it unfairly punishes foreign 

nationals for circumstances involving 

their home country’s government that 

are out of their control. The commenter 

agreed with the Department’s 

assessment that the costs of the eligible 

countries lists outweigh its benefits to 

U.S. geopolitical interests. A 

professional association applauded the 

proposed removal of the eligible 

countries lists, stating that it would 

reduce burdens on DHS, USCIS, and H– 

2 employers, while also enhancing the 

accessibility of the H–2 programs. A 

research organization welcomed the 

change to remove the eligible countries 

lists, stating that the INA provides no 

authority to impose a presumptive bar 

to entire nationalities from participating 

in these programs. The commenter 

stated that banning certain countries can 

cause overstay rates from those 

countries to increase, citing Haiti as an 

example. An individual commenter 

expressed general support for the 

regulations’ stance on reducing barriers 

to legal migration, and stated that the 

authorization of a select few countries/ 

foreigners to work in the United States 

temporarily creates domestic labor 

shortages and diminishes opportunities 

for both foreign workers and U.S. 

industries. 

An advocacy group remarked that the 

proposed provision would free up 

resources to be used on other pressing 

projects across DHS and the DOS, as 

well as reduce the burden on petitioners 

that seek to hire H–2 workers from 

ineligible countries. The commenter 

further stated that the provision would 

increase access to workers who are 

potentially available to businesses that 

utilize the H–2 programs. 

Response: DHS appreciates the 

support from these commenters and 

agrees that eliminating the eligible 

countries lists reduces administrative 

burdens and avoids consequences for 

potentially blameless workers as a result 

of the actions of the countries they come 

from. DHS also appreciates the 

commenter’s referral to a blog post 

discussing the increase in the Haitian 

overstay rate when at the time Haitian 

H–2A workers likely suspected that 

Haiti would be removed from the 

lists.110 The author of the blog post 

infers that one reason H–2A overstays 

rates are typically so low is that 

noncitizen workers can usually count 

on returning to H–2 work each year if 

they abide by the program’s 

requirements, therefore limiting the 

incentive to overstay their visa. The 

author believes that the perceived threat 

of a country’s nationals becoming 

ineligible for employment under the H– 

2 programs may lead to some 

individuals choosing to overstay rather 

than risk being unable to return to H– 

2 employment the following year, as he 

claims likely happened in the case of 

Haitian workers in 2016. While the 

assumptions in that blog post are 

speculative, it is, if true, an argument 

supporting the removal of the eligible 

countries lists.111 DHS is retaining the 

removal of the eligible countries lists in 

this final rule. 

Comment: While expressing support 

for the proposed rule and specifically its 

provisions related to reducing 

paperwork burden by allowing 

employers to request workers from 

multiple countries within the same 

petition, a professional association 

suggested that DHS explore additional 

streamlining measures for returning 

applicants who have favorable reviews 

from previous employers. 

Response: DHS appreciates the 

general support. However, as the 

commenter did not provide specific 

suggestions for additional streamlining 

measures for certain returning 

applicants, DHS is not making any 

changes as a result of this comment. 

b. Opposition to Elimination of Eligible 

Countries Lists 

Comment: A couple of commenters, 

including a joint submission from 

former DHS senior officials and a 

research organization, expressed 


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103282 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

112 Jill H. Wilson, Congressional Research Service, 

‘‘Immigration: ‘Recalcitrant’ Countries and Use of 

Visa Sanctions to Encourage Cooperation with 

Alien Removals,’’ (July 10, 2020), https://

crsreports.congress.gov/product/pdf/IF/IF11025. 

113Section 243(d) of the INA, 8 U.S.C. 1253(d), 

provides for the Department of State’s 

discontinuation of the granting of immigrant visas 

and/or nonimmigrant visas to citizens, subjects, 

nationals, and residents of a specified country upon 

DHS notification that such country denies or 

unreasonably delays in accepting repatriation 

requests. 

114For example, the report discusses sanctions 

applied to tourist and business visas for certain 

government officials while vaguely referencing 

sanctions on a ‘‘broader set of visa categories and 

applicants.’’ 

115See 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. 

opposition to the proposed provision. 

The joint submission from former DHS 

senior officials stated that the eligible 

countries lists are important tools in 

preventing nonimmigrant overstays. The 

commenter remarked that the concerns 

regarding time spent on adjudication of 

waiver requests and the compilation of 

data prior to the lists being generated do 

not form a basis to ‘‘jettison’’ the entire 

lists. The commenter stated that the data 

in the entry-exit report pinpoint which 

countries’ citizens are more routine 

abusers of nonimmigrant visas, 

information that should be used when 

evaluating which nationalities should 

be eligible recipients of the visas. While 

expressing the perceived importance of 

the lists to national security, public 

safety, and immigration enforcement, 

the commenter further remarked that 

removing one of the greatest punitive 

measures against a recalcitrant country 

would breed further non-cooperation. 

Additionally, the joint submission notes 

that it would not support the possible 

alternative to allow less frequent 

publication of the lists by providing that 

they remain in effect for up to 3 years 

instead of automatically expiring after 1 

year, as it would be insufficient to 

combat the overstay rates and would 

still ‘‘allow free passes for recalcitrant 

countries’’ in years when no list is 

published. The commenter concluded 

that there was no attempt to find 

alternatives that would keep the lists in 

place, such as exempting returning 

workers from the lists in subsequent 

years. 

A research organization strongly 

recommended that DHS maintain and 

strengthen the regulatory requirement 

that the Secretary designate countries 

whose nationals are eligible to 

participate in the H–2 programs. The 

commenter stated that it serves the 

interests of foreign workers and the U.S. 

government to bar participation from 

countries who fail to cooperate with 

U.S. laws and policies or abuse the visa 

programs. The commenter reasoned that 

limiting H–2 eligibility to nationals of 

countries who meet specific standards 

enables DHS to reduce risks of fraud 

and abuse in the H–2 programs and 

illegal immigration to the United States, 

all of which harm the integrity of the 

immigration system and labor 

conditions in the United States 

generally. The commenter cited the 

removal of the Philippines and the 

Dominican Republic from the list of 

eligible countries in 2019 as an example 

of the potential harms that continued 

inclusion could pose to the H–2 

programs. The research organization 

disagreed with DHS that program 

reforms made under this proposed 

rulemaking will be sufficient to guard 

against harms such as illegal 

immigration and human trafficking. The 

commenter requested that DHS 

publicize the information it considered 

regarding agency resource allocation for 

making program eligibility 

determinations. 

The research organization 

recommended the following additional 

requirements for country eligibility: 

• DHS should determine that a 

country’s inclusion in the visa programs 

would not negatively affect U.S. law 

enforcement and security interests; 

• Participating countries should make 

similar forms of temporary work visas 

available to U.S. citizens; and 

• Participating countries should enter 

into agreements with the United Staes to 

share information regarding whether 

citizens or nationals of the country 

represent a threat to the security or 

welfare of the United States or its 

citizens. 

Response: DHS shares the 

commenters’ concerns about recalcitrant 

countries but does not anticipate that 

retaining the eligible countries lists 

would significantly reduce overstays or 

encourage countries to cooperate with 

the United States on immigration 

matters. DHS reviewed the 

Congressional Research Service 

report 112 shared by one commenter. 

That report addresses INA sec. 243(d) 

visa sanctions in general,113 rather than 

focusing on the eligible countries list 

within the context of the H–2 

programs.114 Most significantly, the 

report concludes that there are several 

alternatives to visa sanctions, and that 

both DHS and DOS ‘‘reported success in 

achieving cooperation without resorting 

to visa sanctions, resulting in countries 

being removed from the recalcitrant or 

[at risk of non-compliance (ARON)] 

lists.’’ 

DHS notes that other provisions in the 

rule address labor trafficking, including 

worker portability, whistleblower 

protections, and mandatory and 

discretionary denials for employers with 

certain violations. In addition, DOL 

recently finalized a rule that increases 

oversight of the program, including 

protections for advocacy and labor 

organizing, worker protections, and 

enhancing transparency from 

employers. 89 FR 33898 (Apr. 29, 2024). 

DHS appreciates the suggested 

alternative to exempt returning 

employees from the lists in subsequent 

year to address the DHS’s concerns with 

the lists; however, DHS disagrees that 

this suggestion would address all of 

those concerns. As noted in the 

proposed rule, eliminating the lists frees 

up DHS resources which currently are 

devoted to developing and publishing 

the lists in the Federal Register, and 

collaborating between several DHS 

components and agencies as well as 

DOS. DHS would also still incur the 

burden of adjudicating waiver requests, 

as are currently allowed, for nationals of 

countries not on the lists who are not 

returning workers. Similarly, employers 

would still incur the extra burdens of 

preparing a petition that requests a 

national from a country not on the lists 

who is not a returning worker.115 While 

exempting returning workers could 

reduce some of the burdens, those that 

remain are not outweighed by the 

benefits of retaining the lists when, as 

discussed above, alternative visa 

sanctions and diplomatic efforts have 

been shown to be effective in 

encouraging cooperation with U.S. 

immigration laws by other countries. 

As DHS declines to retain the eligible 

countries lists for the reasons discussed 

above, it also declines to add the new 

factors the commenter suggested for 

when DHS is deciding on which 

countries to include on the lists. 

Regarding the request that DHS 

publicize the information it considered 

regarding agency’s resource allocation 

for making program eligibility 

determinations, the NPRM already 

described the burdens associated with 

adjudicating waiver requests as well as 

the significant collaboration needed 

between several DHS components and 

agencies and DOS to come to these 

yearly eligibility determinations. 88 FR 

65040, 65069–70, 65089–90 (Sept. 20, 

2023). For example, the NPRM stated 

that it takes ‘‘months of work to gather 

recommendations and information from 


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offices across ICE, U.S. Customs and 

Border Protection (CBP), and USCIS, 

compile statistics and cooperate closely 

with DOS.’’ 88 FR 65040, 65089. DHS is 

unable to provide more specific data 

beyond the information already 

provided in the NPRM, as it is not 

possible to quantify all the time and 

resources involved in these types of 

robust agency collaborations and the 

unique foreign policy considerations 

required for each analysis. 

c. Mixed Feedback on Elimination of 

Eligible Countries Lists 

Comment: A foreign government 

expressed mixed views on the removal 

of the eligible countries lists. The 

commenter expressed that the rationale 

for removing the list has merit, 

considering that the limited data 

available indicated that during FY 2022, 

the majority of countries currently on 

the lists did not participate in the H–2 

programs. However, the commenter 

remarked that the elimination of the list 

may lead to workers from countries with 

high populations and rates of 

unemployment flooding the H–2 

programs, which would serve as a 

disadvantage to smaller states that are 

already in the program. The commenter 

recommended the implementation of a 

mechanism to protect the participation 

of smaller countries, such as a quota 

system that provides for a minimum 

level of participation by countries 

meeting specific criteria. 

Response: DHS appreciates the 

commenter’s support for removing the 

eligible countries lists and concerns 

with the impact of doing so on smaller 

countries. DHS does not anticipate that 

elimination of the lists will result in the 

adverse impacts mentioned, however, as 

elimination of the country lists is 

country-neutral, and it is speculative 

that smaller countries would be 

adversely affected by the elimination of 

the lists. 

2. Eliminating the ‘‘Interrupted Stay’’ 

Calculation, Reducing the Period of 

Absence for Resetting the 3-Year Stay 

Clock 

a. General Support for the Provisions 

Comment: Commenters expressed 

support for the proposed changes for a 

variety of reasons. Several commenters, 

including a business association, a 

professional association, and a joint 

submission expressed support for DHS 

simplifying the interrupted stay 

calculation and shortening the period of 

absence that will reset H–2 workers’ 3- 

year limit of stay. A professional 

association said that shortening the 

period of absence to 60 days is a 

welcome change because H–2 workers 

satisfy a significant economic need for 

the United States, and therefore it is 

important to remove unnecessary 

hurdles to their contributions. A few 

commenters, including professional, 

business, and trade associations, 

expressed support for simplifying the 

interrupted stay calculation due to the 

current calculations being confusing for 

employers and workers. While 

expressing their support, a few trade 

organizations noted that this change 

would simplify the process of 

determining an H–2 worker’s remaining 

length of stay. Additionally, a business 

association said that simplifying the 

interrupted stay calculation and 

shortening the period of absence that 

would reset the 3-year limit of stay 

should work well when H–2 workers 

leave the United States via an airport. A 

joint submission wrote that the 

proposed changes would improve 

certainty and predictability for H–2 

workers and are a ‘‘step towards 

improving H–2B workers’ ability to seek 

legal support if needed.’’ 

While describing DHS’s proposed 

changes to the interrupted stay 

provisions and the 3-year clock, a joint 

submission concurred with DHS’s 

justification for this change, writing that 

the existing standards are confusing, 

burdensome, and difficult to implement. 

The commenters provided an example 

of how named petitions to extend a 

beneficiary’s stay require significant 

documentation, which the commenters 

said creates administrative work and 

lengthens the adjudication timeline. 

This joint submission also noted that 

reducing the time to reset the 3-year 

limit of stay to 60 days would not only 

accomplish the Department’s policy 

objectives and reduce the burden on 

workers and employers but also foster 

interagency harmony, as this would 

bring DHS’s standards in line with the 

DOL’s ‘‘10-month rule’’ for evaluating 

temporary need. The commenters 

further stated that many H–2A 

employers utilize the full 10-month 

period of need, which can result in 

cases where workers reach their 3-year 

limit and are ineligible for an extension 

of stay in H–2A status. The commenters 

wrote that the proposed change would 

make it easier for employers with longer 

periods of need to extend their H–2A 

workers’ stay as necessary. Similarly, a 

trade association wrote that for workers 

who return to their home countries 

every year, this change would align 

DHS’s requirements with the maximum 

possible season of 10 months and clarify 

the dates for when workers can return 

to the United States. A professional 

association also expressed support for 

the proposed change to the interrupted 

stay calculation, as it would create 

uniformity between the two H–2 

programs and increase efficiency and 

opportunity for workers. 

Response: DHS appreciates the 

commenters’ support for these changes. 

DHS agrees that these changes will 

simplify the process for determining an 

individual’s remaining available time in 

H–2 status and will reduce confusion 

for employers. DHS also anticipates that 

the change will simplify USCIS 

adjudications, resulting in fewer 

requests for evidence and greater 

efficiency in adjudicating H–2 petitions. 

b. Opposition to the Provisions 

Comment: An advocacy group 

expressed opposition to the proposed 

changes. The commenters reasoned that 

if a worker left the United States, 

reducing the time to reset the 3-year 

limit of stay to 60 days would neither 

pause the period of stay clock nor 

extend the time a worker could work in 

H–2 status upon returning. The 

advocacy group wrote that this could 

harm workers and prevent them from 

seeing their families and taking care of 

them, when necessary, thereby 

potentially harming the workers’ health. 

While a professional association 

noted that current regulations regarding 

the 3-year limit and interrupted stay 

calculation are complicated for 

employers and workers to understand, 

the commenter stated that eliminating 

the interrupted stay calculation was not 

the correct solution. Instead, the 

commenter suggested allowing 

employees to maintain the ability to 

return to the United States if they had 

‘‘spent less time in H–2 status given 

potential ‘interrupted status.’ ’’ 

Response: DHS does not agree that 

this provision will harm workers. Under 

current regulations, a period of absence 

from the United States will interrupt the 

stay of H–2 workers only 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. 

• If the accumulated stay is greater 

than 18 months, an absence is 

interruptive if it lasts for at least 2 

months. 

Under the final rule, USCIS no longer 

recognizes certain absences as an 

‘‘interrupted stay’’ for purposes of 

pausing the calculation of the 3-year 

limit of stay. Specifically, H–2 workers 

who have an accumulated stay of less 

than 18 months and have an absence 

from the United States of 45 to 59 days 

will no longer have their period of stay 


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116As noted in the NPRM, DHS did not provide 

specific policy reasons for setting the period of 

absence at ‘‘3 months’’ in prior regulations, noting 

only that it was reducing that period from 6 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.’’ Modernizing H–2 

Program Requirements, Oversight, and Worker 

Protections, 88 FR 65040, 65072 (Sept. 20, 2023); 

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) 

(adopting the proposed reduction in waiting time 

without change). 

117See, e.g., INA sec. 291, 8 U.S.C. 1361; 8 CFR 

103.2(b)(1), 214.1(a)(3). 

‘‘interrupted.’’ DHS recognizes that this 

subset of H–2 workers may not benefit 

from these changes, but as it relates to 

the H–2 program as a whole, the change 

to simplify the calculations and shorten 

the time to ‘‘reset’’ the clock will benefit 

H–2 workers and employers and help 

improve program efficiency overall. 

Further, this subset population of H–2 

workers may still benefit from the 

reduced period for resetting their H–2 

clock if they extend their stay outside of 

the United States for at least 60 days. 

Rather than ‘‘interrupting’’ the stay, an 

absence for the designated period of at 

least 60 days would in all cases ‘‘reset’’ 

the H–2 clock (instead of, per current 

regulations, just ‘‘pausing’’ the H–2 

clock), and thus, allowing for an 

additional 3 years in the United States 

in H–2 status upon the worker’s 

readmission. Moreover, this change 

does not in any way prevent an H–2 

worker from making short trips outside 

the United States and returning to the 

United States in H–2 status. Therefore, 

the basis of the commenters’ concerns 

about ‘‘harm to the family and health of 

the worker’’ and ‘‘leaving in the ability 

for employees to return to the United 

States’’ is unclear. 

To the extent that these commenters 

are suggesting that any period of 

absence should interrupt the H–2 period 

of stay, similar to the current 

‘‘recapture’’ provision for H–1B 

beneficiaries codified at 8 CFR 

214.2(h)(13)(iii)(C), DHS explained in 

the NPRM that it considered and 

rejected this alternative. As explained in 

the NPRM, DHS determined that 

implementing a provision similar to the 

H–1B ‘‘recapture’’ provision’’ would be 

only a minimally less confusing 

calculation for petitioners and H–2 

workers, as well as for USCIS 

adjudicators. 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. Therefore, DHS declines to 

adopt the commenters’ suggestions and 

is finalizing the provision without 

change. 

c. Other Feedback and 

Recommendations Regarding the 

Interrupted Stay Provisions 

Comment: While expressing support 

for simplifying the interrupted stay 

calculation, a union suggested the 

period of absence to reset H–2 workers’ 

3-year limit of stay remain at 90 days. 

The commenter reasoned that H–2 

programs are temporary, and therefore a 

90-day period of absence aligns better 

with the purpose of the program. The 

commenter added that program reform 

must advance both U.S. and migrant 

workers’ interests, and that creating 

rules employers could misuse as yearround labor solutions would not be an 

acceptable outcome. 

Response: DHS maintains that a 60- 

day period of absence is sufficient to 

ensure that an H–2 worker’s stay is 

temporary in nature, while at the same 

time affording employers and workers 

the flexibility to fill an employer’s 

temporary needs. Further, the 

commenter did not specifically explain 

why a 90-day period of absence would 

better align with the purpose of the 

program as opposed to 60 days.116 DHS 

therefore declines to make any changes 

based on this comment. DHS maintains 

that a 60-day period of absence is 

sufficient to ensure that an H–2 worker’s 

stay is temporary in nature, while at the 

same time affording employers and 

workers the flexibility to fill employers’ 

temporary needs. 

Comment: In the context of expressing 

support for the interrupted stay 

provisions, several business associations 

suggested that the Department 

implement a method for tracking land 

border crossings, which are not 

currently tracked, reasoning that this 

could prevent issues when H–2 workers 

who cross the border with Mexico 

return to the United States. A few 

business associations recommended 

incorporating this tracking method into 

the CBP One application so that workers 

could log their exit when leaving the 

United States for Mexico. Another 

business association expressed concern 

with the Department’s ability to enforce 

the current and proposed requirements, 

reasoning that the Department does not 

currently have a way to track land 

border crossings and thus, a way of 

tracking the H–2A workers that cross 

the land border with Mexico. Like other 

commenters, the business association 

suggested including a function in the 

CBP One application to allow H–2A 

workers to log their location when 

returning to Mexico. 

A business association provided a 

recommendation regarding the use of 

the CBP One application to track land 

border crossings. The commenter 

suggested that the Department build out 

the application’s capabilities so that H– 

2 workers are responsible for recording 

their exit from the United States. 

Alternatively, the commenter suggested 

a two-step process where an employer 

first records the end of an H–2 worker’s 

employment, and the employee then 

logs their official exit on the CBP One 

application when they leave the 

country. 

Response: DHS notes that the burden 

of proof to establish eligibility for an 

immigration benefit is on the petitioner 

or applicant.117 In the NPRM and final 

rule, DHS has provided a nonexhaustive list of evidence that may be 

provided to document relevant absences 

from the United States, including arrival 

and departure records, copies of tax 

returns, and records of employment 

abroad. While DHS appreciates the 

commenters’ suggestions, DHS did not 

propose a method for tracking land 

border crossings or any changes or 

additions to the CBP One application in 

the NPRM. Because DHS did not 

propose any changes with respect to 

tracking land border crossings or the 

CBP One application, these comments 

are outside the scope of this rulemaking. 

Therefore, DHS declines to adopt these 

suggestions as part of this final rule. The 

Department continues to make 

improvements to the accuracy and 

reliability of the entry/exit system, and 

may consider these suggestions as it 

does so. 

G. Severability 

Comment: A professional association 

and a business association expressed 

support for the Department’s proposal 

for the regulations to be severable. 

Another professional association 

remarked that it has no objection to 

including severability in the rule 

proposal. 


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Response: DHS appreciates these 

comments and is finalizing the 

severability provision with minor 

clarifying edits. DHS intends for the 

provisions of this rule 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 will remain in 

effect as to any other person or 

circumstance. While, as discussed in the 

NPRM and in this preamble, the various 

provisions of this rule, taken together, 

will 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. In the 

severability clause contained in this 

final rule, DHS has identified the 

second level paragraphs (for example, 

(h)(6)) in which the severable amended 

provisions contained in this final rule 

can be found. These references along 

with the date of the final rule are 

intended to better identify the severable 

provisions and differentiate them from 

the existing provisions in 8 CFR 214.2 

that are not being impacted by this final 

rule. 

H. Input on Future Actions/Proposals 

for Beneficiary Notification 

Comment: Multiple commenters 

suggested that the Department 

implement an electronic notification 

system of beneficiary and employer 

statuses, while also recommending that 

the Department implement an electronic 

filing process. A business association 

suggested using a system like DOL’s 

Foreign Labor Application Gateway 

(FLAG) system, which would reduce 

cost and time burdens for employers 

and DHS. A trade association remarked 

that electronic filing is a necessary 

efficiency, and it would be a 

‘‘disservice’’ to employers and 

beneficiaries to not implement 

electronic filing for H-2A petitions. A 

couple of trade associations, an 

advocacy group, and a business 

association recommended that the 

Department implement an electronic 

notification system through the 

technology the Department currently 

possesses, while also proposing to make 

the entire filing process electronic to 

reduce cost and time burdens to 

employers and the Department. The 

commenters added that it is 

inconceivable that employers must still 

file their petitions on paper, given they 

will be transcribed and entered into the 

Department’s electronic system. A trade 

association stated that the paper 

petitions currently used are costly, time 

consuming, and inefficient, especially 

given that the Department already stores 

a large amount of information 

electronically. 

A couple of commenters, including a 

professional association and a business 

association remarked that moving 

USCIS systems into the digital age as 

quickly as possible would be welcomed 

by H–2A workers, employers, and the 

Department itself. 

A professional association stated that 

using email with digitized notices and 

enhancing website capabilities with 

real-time information would be the most 

effective, efficient, and affordable 

method of communication between 

beneficiaries, petitioners, and DHS. 

Another professional association 

recommended that the Department add 

an email section to Attachment-1 of 

Form I–129, which would allow USCIS 

to email the beneficiary that someone 

applied to amend their status. The 

commenter stated that at times, this may 

result in more work for employers, 

agents, and associations, but it would be 

an efficiency that would benefit the 

worker. 

A joint submission concurred with 

DHS’s reasoning on providing 

notifications directly to beneficiaries, 

but cautioned the Department not to 

implement a process that requires 

significant information collection or 

disclosure on the part of the employer. 

The commenter added that it would 

advocate against any process that makes 

the contact information of beneficiaries, 

such as email address, a mandatory field 

on petition forms. The commenter 

concluded that failure to provide 

beneficiary contact information should 

not serve as a basis for petition rejection 

or denial. 

Another joint submission concurred 

with DHS that more notice and 

transparency is beneficial, and limiting 

notifications to the petitioning employer 

may restrict the beneficiary’s options to 

transfer to subsequent employment or 

extend or change their status. The 

commenter expressed opposition to any 

changes to the Form I–129 that would 

dramatically increase the transaction 

cost associated with a named petition, 

such as the inclusion of multiple new 

fields or additional pages. The 

commenter recommended adding an 

optional email address field to 

Attachment-1 and using this 

information to copy the beneficiary on 

any notifications. The commenter 

concluded that a copy of notifications 

could be mailed to beneficiaries if an 

email address is not available since the 

Attachment-1 already requires U.S. and 

foreign addresses. 

Response: DHS appreciates these 

comments. In the NPRM, DHS stated 

that it was 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 as well as other 

suggestions regarding ways to ensure 

adequate notification to beneficiaries of 

actions taken with respect to petitions 

filed on their behalf. As indicated in the 

NPRM, the feedback was being sought to 

inform a potential future action, and 

DHS did not propose a particular 

approach in the NPRM. Therefore, DHS 

is not making any regulatory changes as 

a result of the request for preliminary 

input in this final rule but will take into 

serious consideration the input 

provided by these commenters as it 

continues to research and consider the 

feasibility, benefits, and costs of various 

options separate and apart from this 

final rule. 

I. Other Comments Related to the Rule 

or H–2 Programs/Requirements 

1. Alternatives and Other General 

Comments on the Proposed Rule 

Comment: Some commenters 

provided broad recommendations to 

improve H–2 worker conditions while 

supporting USCIS for its efforts to 

protect H–2 workers’ rights. For 

example, an advocacy group stated that 

in the longer term, additional changes 

would be needed to shift the balance of 

power in the employer-worker 

relationship in favor of workers’ rights. 

A couple of individual commenters 

provided additional suggestions, 

requesting that the proposed rule 

establish safe and clean housing for 

workers and their families, a minimum 

wage for workers, access to healthy 

food, medical care, English language 

learning opportunities, and education 

for both adult workers and their 

children. An individual commenter 

stated, without elaboration, that H–2 

workers should be well compensated for 

their labor, must have adequate rest 

periods and opportunities to organize 

for fair wages, and should have their 

living conditions and safety monitored. 

Response: DHS appreciates the broad 

support for efforts to protect H–2 

workers’ rights. However, while DHS 

appreciates these holistic analyses of the 

H–2 programs, DHS declines to make 

any changes in response to these 

comments as they do not address 

specific elements outlined in this 

rulemaking or suggest specific changes. 

Further, issues involving housing 

standards, access to housing, H–2 

wages, access to healthy foods, and rest 

periods, generally are better addressed 

by local, State, and Federal labor 

agencies such as DOL and are outside 


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118Prosecution definition, Black’s Law Dictionary 

(11th ed., 2019). 

119USCIS, ‘‘About Us: USCIS Plain Language,’’ 

https://www.uscis.gov/about-us/uscis-plainlanguage (last viewed May 6, 2024). 

120 29 FR 11956, 11958 (Aug. 21, 1964). As 

promulgated in that rulemaking, 8 CFR 214.2(h)(3), 

the scope of this rule. Similarly, other 

concerns with the need for medical care, 

English language learning opportunities, 

and education for both adult workers 

and their children, are outside the scope 

of this rule. 

Comment: An individual commenter 

requested that any employers who abuse 

H–2 workers face swift prosecution. 

Response: DHS is committed to 

protecting all workers from exploitation 

and abuse. However, though it is not 

entirely clear what the commenter was 

referring to, DHS notes that the term 

‘‘prosecution’’ generally relates to 

criminal proceedings.118 As this 

rulemaking does not directly involve 

criminal proceedings, the comment is 

beyond the scope of this rulemaking. 

Comment: A research organization 

requested that USCIS prioritize the 

selection of H–2B petitions in industries 

with the greatest need for workers in 

order to curtail fraud and abuse in the 

program. 

Response: DHS appreciates the 

comment but is not making any changes 

in response to this comment because the 

comment is beyond the scope of this 

rulemaking. In any event, it is also 

unclear how an industry-based H–2B 

prioritization scheme would curtail 

fraud and abuse in the program. 

2. Implementation 

Comment: An advocacy group 

recommended developing a ‘‘multipronged communications strategy to 

ensure that workers are aware of the 

changes related to worker flexibility and 

program integrity once implemented’’ 

including clearly communicating all 

implemented changes related to aligning 

admissions periods and grace periods to 

H–2 workers, ensuring workers are 

aware they may stay in the United 

States for 60 days following unexpected 

termination of H–2 employment and for 

30 days following the validity period of 

their H–2 contract. The commenter also 

requested that DHS partner with worker 

leaders, organizers, and trusted 

community organizations to 

communicate the changes in the 

proposed rule as well as workers’ rights 

in the United States more broadly. 

Response: DHS has worked diligently 

to develop a communications strategy in 

preparation for this final rule. After the 

publication of this final rule, DHS will 

announce various stakeholder events it 

intends to hold, which will be open to 

the public, to raise awareness of the 

final rule. 

Comment: An individual commenter 

encouraged USCIS to improve the 

clarity and readability of the regulatory 

text through the use of plain language, 

active voice, bullet points, lists, 

examples, and illustrations. The 

commenter suggested, for example, that 

USCIS replace terms such as 

‘‘petitioner,’’ ‘‘beneficiary,’’ ‘‘certifying 

officer,’’ or ‘‘administrative law judge’’ 

with simpler terms, such as ‘‘employer,’’ 

‘‘worker,’’ ‘‘DHS official,’’ or ‘‘judge.’’ 

The commenter concluded that these 

adjustments would enhance the ability 

of employers and workers to understand 

and comply with program regulations. 

Response: DHS/USCIS is dedicated to 

improving its communications with the 

public. We support the Plain Writing 

Act of 2010 and have an internal plain 

language program.119 We strive to use 

plain language where it is possible to do 

so; however, often times it is necessary 

to use precise terms such as ‘‘petitioner’’ 

and ‘‘beneficiary’’ because these are the 

words that appear in related and 

corresponding regulatory text and have 

established meaning, and using 

alternate words would introduce 

ambiguity or confusion. 

3. Employer/Petitioner Requirements, 

Processes, and Fees 

Comment: A professional association 

expressed support for the provision in 

the proposed rule that would allow for 

the substitution of H–2A beneficiaries 

after admission and urged the 

Department to extend it to H–2B 

beneficiaries. The commenter said that 

not extending the provision to H–2B 

employers would place them on a 

different footing than H–2A employers 

and hinders H–2B employers who were 

looking for foreign labor assistance 

because they could not find domestic 

labor. 

Response: The provision at 8 CFR 

214.2(h)(5)(ix) that allows substitution 

of H–2A beneficiaries after admission is 

an existing provision to which DHS did 

not propose substantive changes. 

Rather, DHS proposed minor revisions 

to the provision to remove and replace 

the negatively charged terms ‘‘abscond’’ 

and ‘‘absconded’’ with more neutral 

terms. 88 FR 65040, 65068 (Sept. 20, 

2023). Therefore, the commenter’s 

suggestion is out of scope of this 

rulemaking. 

4. Validity Period and 3-Year Maximum 

Period of Stay 

Comment: A research organization 

suggested that the Department extend 

the 3-year maximum stay provision to 6 

years, stating that easing the maximum 

stay provision would increase the 

availability of H–2 workers, reduce 

agency and employer burdens, and 

improve the bargaining power of 

workers. The commenter elaborated that 

the current limit imposes ‘‘unnecessary 

burdens’’ on agencies by requiring them 

to vet a new group of workers to replace 

those subject to the 3-year limit, which 

would expose the country to ‘‘avoidable 

security risks.’’ The commenter further 

elaborated that the current 3-year limit 

imposes burdens on employers, as 

employers are harmed by turnover 

caused by workers leaving the country 

during their jobs and are potentially 

blocked from rehiring returning workers 

whom they have already trained on 

their operations. The commenter also 

noted that workers nearing the end of 

their stay would not be able to change 

employers, thus giving their employers 

‘‘excessive leverage in setting wages and 

working conditions.’’ The commenter 

added that the current maximum limit 

on stay exacerbates the shortage of H– 

2B workers because H–2B hires who are 

already in the United States are exempt 

from the H–2B cap, and that extending 

the maximum stay provision to 6 years 

would lead to a lower portion of the H– 

2 workforce receiving extensions. The 

commenter also added that the NPRM’s 

grace periods proposal may radically 

increase the percentage of workers who 

reach their 3-year limit. Finally, the 

commenter stated that the NPRM’s 

proposal to limit H–2 workers to a 

maximum of 3 years with H–2 status 

unless they have departed the United 

States for an uninterrupted period of 60 

days has no basis in law. Referencing 

the regulatory history associated with 

the 3-year limit, and the statutory 

history of the 6-year limit applicable to 

the H–1B classification maximum 

period of admission, the commenter 

concluded that there is ‘‘statutory 

ground’’ for extending the provision to 

6 years. Specifically, the commenter 

indicated that Congress had defined 

‘‘coming temporarily’’ in the H–1B 

context as up to 6 years. 

Response: DHS declines to extend the 

3-year maximum period of stay 

provision to 6 years. First, the NPRM 

did not propose to substantively change 

the 3-year maximum period of stay, but 

rather, proposed to eliminate the 

‘‘interrupted stay’’ calculation and 

reduce the period of absence to restart 

the 3-year maximum period of stay 

clock. Second, it is not necessary to 

change this longstanding regulatory 

standard which, as the commenter 

stated has existed since 1964,120 was 


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the header for which read, ‘‘Admission and 

extension,’’ stated ‘‘An alien defined in section 

101(a) (15)(H)(ii) of the Act shall not be granted an 

extension which would result in an unbroken stay 

in the United States of more than 3 years.’’ It is 

notable that while this regulation generally applied 

to all H classifications, the 3-year limit was 

specifically applied only to H–2s. 

121 ‘‘Nonimmigrant Classes,’’ 52 FR 20554, 20555 

(June 1, 1987) (interim final rule codifying the 3- 

year limit noting that ‘‘[t]here has traditionally been 

a three year limit on an H–2 alien’s uninterrupted 

stay’’). 

again referenced in the 1987 final rule, 

and is intended to ensure that a person’s 

stay in H–2 status is in fact temporary, 

as required under section 

101(a)(15)(H)(ii)(a) of the INA.121 DHS 

further disagrees with the commenter 

that because Congress defined what 

‘‘coming temporarily’’ means for 

purposes of the H–1B program, this 

provision should be applied in the H– 

2 context or provide support for similar 

treatment of H–2s. There is no 

requirement that the maximum period 

of stay for the H–2 classification be the 

same as that for the H–1B classification. 

The new provisions being finalized in 

this rule, including the provisions to 

reduce the period of absence required to 

reset the worker’s maximum period of 

stay and provide portability flexibility 

permanently, will alleviate many of the 

commenter’s concerns about rehiring 

returning workers, pressures on 

employers due to the H–2B cap, and 

improving the bargaining power of 

workers. DHS does not agree with the 

commenter’s concerns about agency 

burdens. The maximum validity period 

on an H–2 petition remains unchanged; 

each H–2 petition may only be approved 

for a validity period not to exceed 1 year 

(except for an H–2B petition approved 

for a one-time occurrence under 8 CFR 

214.2(h)(6)(ii)(B)(1)). An employer 

seeking to employ an H–2 worker 

beyond the end of the petition validity 

period would still have to file another 

H–2 petition requesting an extension of 

stay for that worker. USCIS would still 

need to adjudicate each extension 

petition, at which time USCIS would 

screen the beneficiary for continued 

eligibility, and thus keeping the 3-year 

limit would not lead to ‘‘avoidable 

security risks’’ as suggested by the 

commenter. 

J. Statutory and Regulatory 

Requirements 

1. Administrative Procedure Act (APA) 

Comment: Numerous commenters, 

including multiple trade associations, a 

joint submission from numerous 

industry associations, State Government 

agencies, and Federal elected officials, 

expressed general disappointment with 

the lack of extension or requested a 30- 

or 60-day extension to the comment 

period for the proposed rule. Many 

commenters reasoned that they and 

their members or constituents are 

limited in their ability to review and 

provide meaningful feedback on the 

proposed changes, as the comment 

period aligns with peak harvesting 

season or peak seasonal business needs. 

Additionally, multiple commenters 

reasoned that the comment period 

overlaps with multiple recent 

administrative actions—including 

public comment opportunities with the 

DOL and the USDA, and other 

agencies—that impact the same 

stakeholders and that require input 

during or around the same period. The 

commenters concluded that an 

extension would be necessary for the 

regulated community to analyze the full 

impact of the proposed changes, submit 

comments based on a comprehensive 

review of the rule, and meaningfully 

participate in the rulemaking process. A 

trade association expressed concern that 

because the proposed regulation does 

not acknowledge the existing legal 

investigative and enforcement structure 

for H–2 employment conditions, that 

the public cannot properly evaluate or 

comment on the proposal. 

Response: As DHS noted in a 

November 3, 2023, letter that it posted 

to the rule’s electronic docket (USCIS– 

2023–0012) for public viewing, DHS 

takes seriously the requirements under 

the Administrative Procedure Act to 

provide an opportunity for members of 

the public to participate in the 

rulemaking process by submitting data, 

views, or arguments on the proposed 

agency action. In that letter, DHS stated 

that it decided not to extend the 

comment period beyond 60 days, that is, 

past November 20, 2023, the last day of 

the comment period, noting that a 60- 

day comment period is generally 

considered sufficient for the public to 

provide input in response to proposed 

rulemaking actions. DHS has provided 

60 days for public comment for other 

comprehensive rulemakings like this 

one in the past, and that duration has 

routinely been sufficient as evidenced 

by the volume and substance of public 

comments received. The letter 

emphasized that DHS believes the 60- 

day comment period for the 2023 H–2 

NPRM provides sufficient time and a 

reasonable opportunity for the public to 

comment. DHS noted too that USCIS 

had engaged stakeholder groups over 

the past several years and incorporated 

comments and suggestions from these 

engagements into the 2023 H–2 NPRM. 

As stated above, some commenters 

raised specific concerns with the 

comment period because it aligned with 

peak harvesting season or certain peak 

seasonal business needs, and because it 

overlapped with public comment 

opportunities for administrative actions 

by other agencies that could impact the 

same stakeholders. While the noted 

circumstances may have rendered the 

60-day comment period a busier time 

for certain stakeholders, DHS believes it 

was sufficient to afford the public a 

meaningful opportunity to participate in 

the rulemaking process. Indeed, neither 

of these circumstances appears to have 

limited the public’s ability to 

meaningfully engage in the notice and 

comment period. DHS notes that nearly 

two thousand commenters—including 

many stakeholders impacted by the 

harvest season and other agencies’ 

administrative actions—submitted 

substantive comments during the 60-day 

comment period. 

Comment: Several commenters, 

including an advocacy group, a 

professional association, and a business 

association, expressed appreciation for 

the opportunity to meaningfully 

comment on the proposed rulemaking. 

A joint submission from a union and 

numerous advocacy organizations urged 

USCIS to expedite finalization of the 

rule immediately following the standard 

60-day comment period. 

Response: DHS appreciates these 

commenters’ support and the significant 

response and feedback it received on the 

published H–2 NPRM. Given the 

importance of the issues addressed 

herein, DHS has worked diligently to 

timely finalize the rule after carefully 

reviewing public comments and making 

appropriate changes based on public 

feedback. 

Comment: A few commenters, 

including an advocacy group, a trade 

association, and a business association, 

urged USCIS to engage stakeholders 

more generously, such as through 

providing more details for comment, 

publishing another notice to the Federal 

Register with more detail, or other 

direct communication with 

stakeholders. One of these commenters 

indicated that the NPRM lacked 

sufficient explanation of the prohibited 

fees and denial provisions needed to 

properly apprise stakeholders of what is 

to be expected of them under this 

proposed rule. A State Government 

agency recommended USCIS offer 

forums for recruiters or hirers of foreign 

workers to express concerns earlier in 

the rulemaking process. 

Response: DHS appreciates the 

suggestions from these commenters but 

disagrees that the NPRM lacked 

specificity necessary to apprise 

stakeholders of how the various 

proposal would operate or what would 


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122 88 FR 65040, 65098, subsection f, (Sept. 20, 

2023). (‘‘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.’’). 

123As examples of the reports of prohibited fees, 

the commenter citedUlloa v. Fancy Farms, Inc., 762 

Fed. Appx. 859 (2019 U.S. App.), Palma Ulloa v. 

Fancy Farms, Inc., 274 F. Supp. 3d 1287 (2017 U.S. 

Dist.), and ICE, ‘‘3 Indicted In Immigration Fraud 

Scheme That Exploited Immigrant Farm Workers 

By Charging Prohibited Fees For Visas, Living 

Expenses’’ (May 17, 2018), https://www.ice.gov/ 

news/releases/3-indicted-immigration-fraudscheme-exploited-immigrant-farm-workerscharging. As support for the statistics suggesting an 

average prohibited fee payment of $590, the 

commenter cited to Centro de los Derechos del 

Migrante, ‘‘Recruitment Revealed’’ (2018), https://

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

Recruitment_Revealed.pdf. 

be required of the public to comply. 

Nonetheless, as discussed in the section 

addressing, for example, prohibited fees, 

DHS has further refined these 

provisions to address requests for 

further clarification received from 

commenters, and has made other 

responsive edits to the regulation in 

response to public comments. The 

number and quality of public comments 

received on the NPRM further 

demonstrate that most commenters both 

understood the proposals and were able 

to provide salient feedback on those 

proposals. Therefore, DHS believes that 

the opportunity for notice and comment 

has been sufficient. In addition, 

following publication of the final rule, 

DHS will consider ways to effectively 

engage the regulated community on its 

new H–2 provisions and provide further 

guidance, if needed, to assist program 

participants with compliance. 

Comment: A joint submission from 

former DHS senior officials stated that 

the proposed rulemaking violates the 

APA as it is ‘‘both arbitrary and 

capricious’’ and because USCIS must 

consider alternative options. 

Response: DHS disagrees that the 

proposed changes in the NPRM, which 

are finalized in this rule, are arbitrary, 

capricious, and fail to consider 

alternatives. The NPRM and this final 

rule provide a reasonable basis for each 

of the changes proposed and made. To 

the extent possible and available, DHS 

has cited studies and data in support of 

the proposed changes and has used 

available data to assess the impact of the 

proposals, and where applicable, 

regulatory alternatives. In addition, 

where possible, DHS generated and 

considered specific alternative 

approaches to the changes made and 

explained why it was not proposing 

such alternatives. For example, DHS 

explained that rather than eliminating 

the eligible country list as proposed, it 

considered keeping the list in place 

until it is replaced by a new list and 

extending the timeframe for review from 

every 1 year to every 2 years. It then 

explained the shortcomings of this 

alternative as reasons for not proposing 

it. 88 FR 65040, 65070 (Sept. 20, 2023). 

In addition, 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. Ultimately, DHS chose not 

to 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. 88 FR 65040, 

65072. In addition, in the Initial 

Regulatory Flexibility Analysis in the 

NPRM, DHS discussed alternatives to 

the proposed regulation.122

Finally, in this final rule, DHS has 

considered and addressed alternatives 

proposed by commenters. For example, 

in this final rule DHS explains why it 

is not adopting the alternatives 

commenters proposed to the elimination 

of the exception to the prohibition on 

charging workers fees. As explained 

more fully in the responses to comments 

relating to prohibited fees, the 

prohibited fee provisions in this final 

rule are intended to complement DOL 

rules. DHS also explained how 

inconsistency between DHS’s and DOL’s 

H–2 rules may cause confusion and 

could discourage law-abiding employers 

from using the H–2 program to address 

labor shortages. As discussed elsewhere 

in this preamble, this final rule further 

clarifies the employer obligations 

related to prohibited fees to ensure that 

employers understand what is expected 

of them and are not discouraged from 

using the H–2 program to fill their 

legitimate temporary need for workers. 

2. Regulatory Impact Analysis (RIA) 

(E.O. 12866 and E.O. 13563) 

a. Impacts on Nonimmigrants/Workers 

or Their Representatives 

Comment: An advocacy group 

responded to the request for comment 

on ‘‘the prevalence, population, and 

cost of prohibited fees and their impacts 

on H–2 workers.’’ The advocacy group 

stated that despite regulations 

prohibiting the requesting or receiving 

of payments or recruitment fees from 

workers in exchange for activity related 

to H–2A employment, workers are still 

vulnerable to fraud. The commenter 

provided an example of H–2A workers 

being asked to pay recruitment fees of 

between $3,000 and $4,000 per person 

as a condition for their employment. 

The commenter also referenced other 

federal court cases and reports of 

recruiters or employers charging 

prohibited fees, and referred to statistics 

suggesting the average payment issued 

by workers is $590 per person.123 The 

advocacy group added that predatory 

actions such as charging workers 

prohibited fees can contribute to human 

trafficking, because H–2A workers often 

arrive to the United States in debt from 

unreimbursed costs and fees, putting 

them at greater risk of trafficking. 

Response: DHS appreciates the 

commenters’ input regarding the 

average amount of prohibited fees H–2 

workers are being asked to pay. While 

DHS cannot independently verify the 

provided statistics, the input is 

nevertheless valuable as generally 

demonstrating the prevalence of the 

practice of charging prohibited fees 

despite current regulations that prohibit 

them. This final rule attempts to 

mitigate, to the extent possible, the 

harm to H–2 workers resulting from the 

imposition or threat of prohibited fees 

by those engaged in the practices 

described by the commenters. 

b. Impacts on Employers/Petitioners or 

Their Representatives 

Comment: An attorney remarked that 

while 88 FR 65040, 65045, n. 1 (Sept. 

20, 2023) states that ‘‘USCIS does not 

expect any additional costs to H–2B 

employers as, generally, they do not 

have to provide housing for workers,’’ 

amusement industry employers have 

had to bear additional costs related to 

housing provision since 2016. The 

commenter then stated that USCIS has 

not conducted a cost-benefit analysis on 

this matter. 

Response: DHS acknowledges that, 

while there is no statutory requirement 

for H–2B employers to provide housing, 

there are regulatory prohibitions against 

deductions from wages for the cost of 

housing by an H–2B employer when it 

is provided primarily for the benefit or 

convenience of the employer, such as in 

the context of an employer with a need 

for a mobile workforce. See 20 CFR 

655.20(b), (c); 29 CFR 531.3(d)(1); 80 FR 

24042, 24063 (Apr. 29, 2015). This 

rule’s regulatory impact analysis of costs 

and benefits is being revised to 

acknowledge that certain H–2B 

employers in this limited scenario may 

face additional costs such as for 

housing, but because DHS does not have 

data on the population of H–2B 

employers that this provision would 

affect at this granular of a level, 

monetized impacts cannot be estimated. 


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Comment: An association of State 

Governments expressed concern that the 

proposed rule could cause 

administrative delays to the H–2B 

program and higher costs for 

agricultural employers. In particular, the 

association suggested that a shortage of 

labor exacerbated by the proposed rule 

could cause producers to turn to 

producing less labor-intensive 

agricultural products or turn the costs of 

restructuring their businesses onto 

consumers. 

Response: It is speculative that this 

rule will exacerbate labor shortages and 

cause higher costs for agricultural 

employers and consumers. It is also 

speculative that this rule will cause 

administrative delays to the H–2B 

program. Insofar as the rule codifies 

new requirements for petitioners and 

new protections for workers, it does so 

in furtherance of program integrity. 

c. Impacts on Small Entities (Regulatory 

Flexibility Act, Initial Regulatory 

Flexibility Analysis (IRFA)) 

Comment: An association of State 

Governments expressed concern that the 

proposed rule would adversely impact 

small agricultural employers who may 

lack resources needed to understand the 

regulatory requirements of the H–2 

program. The commenter urged USCIS 

to specifically contact small entities to 

describe the proposed changes. A trade 

association remarked that small 

employers who rely on agents for 

recruiting workers and unintentionally 

violate the proposed stricter standards 

for prohibited fees could be 

disproportionately harmed, and some 

small growers could be put out of 

business. 

Response: DHS appreciates the 

comment but declines to contact all 

possibly affected small businesses. DHS 

emphasizes that all regulatory 

requirements and procedures will be 

explained and analyzed through 

multiple channels (the promulgation of 

this rule as evidenced by publication 

after consideration of comments 

received during the notice and comment 

period, relevant form instructions, and 

established communication materials 

such as the ‘‘Small Entity Compliance 

Guide’’). Additionally, DHS believes 

that marginal burdens being placed on 

small entities in order to ensure that 

they comply with program requirements 

and worker protections is justified by 

the benefits of increased program 

integrity (as discussed above in the 

preamble). 

d. Impacts on the Economy, U.S. 

Citizens/Taxpayers/Consumers 

Comment: A research organization 

expressed concern that USCIS does not 

provide an impact assessment of the 

proposed permanent and expanded 

portability in the NPRM, stating that 

this prevents the public from 

comprehending the impact of the 

proposed rule on the U.S. labor market. 

Response: The comment that the 

NPRM did not provide an impact 

assessment of the proposed permanent 

and expanded portability is inaccurate. 

In the NPRM, DHS provided a detailed 

explanation of the expected impact of 

the portability provision. 88 FR 65040, 

65044, 65084–65089 (Sept. 20, 2023). 

Additionally, in this final rule DHS is 

has provided additional data showing 

the number of approved H–2B petitions 

and beneficiaries extending stay with 

and without a change in employer 

pursuant to the commenter’s request 

(see Table 2 and Table 3, respectively). 

Comment: A joint submission of 

former DHS senior officials stated that 

the economic analysis in the NPRM 

does not consider administrative costs 

of the proposed rule on U.S. workers, 

namely that the average wage for H–2B 

workers is lower than the national mean 

wage in several job categories. The joint 

submission remarked that this could 

make H–2B employees more favorable 

to employers than U.S. citizens. 

Response: DHS appreciates the 

comment but disagrees with the 

commenters’ conclusions regarding H– 

2B wages and making H–2B workers 

more favorable to employers than U.S. 

citizens. A certified TLC issued by the 

DOL is a necessary condition for the 

approval of a Form I–129 petition for H– 

2B workers. The TLC certifies that the 

employer has already attested and 

demonstrated that a qualified U.S. 

worker was not available to fill the 

petitioning H–2B employer’s job 

opportunity and that the H–2B worker’s 

employment in said job will not 

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). 

K. Out of Scope 

DHS received numerous comments 

that were unrelated to the proposed 

revisions in the NPRM. Many of these 

comments would require Congressional 

action or additional regulatory action by 

DHS that was not proposed in the 

NPRM. Other comments suggested 

revisions within the purview of DOL or 

other Federal, State, or local agencies. 

Although DHS has summarized the 

comments it received below (and in 

some cases, noted them above), DHS is 

not providing substantive responses to 

those comments as they are beyond the 

scope of this rulemaking. Comments 

from the public outside the scope of this 

rulemaking concerned the following 

issues: 

• Comments specifically regarding 

DOL’s rulemaking for H–2A workers, or 

comments specifically directed to DOL 

asking them to undertake certain 

actions; 

• Suggestions related to H–2 wages, 

such as increasing H–2 wages or that 

farm workers should receive 8 hours of 

pay for a 4-hour workday; 

• Comments to improve or expand 

the functionality of DOL’s website, 

SeasonalJobs.dol.gov, or another similar 

resource to facilitate H–2 workers 

seeking new jobs; 

• Comments asking DHS to engage in 

interagency efforts with DOJ, the Equal 

Employment Opportunity Commission, 

and the Department of Housing and 

Urban Development, in addressing 

discriminatory recruitment, labor 

trafficking, retaliation, and substandard 

housing; 

• Comments to improve DOS’s visa 

process; 

• A suggestion that DOL allow 

certifications of H–2A and H–2B 

recurring jobs for up to 3 years, which 

would allow DHS to approve these 

workers’ status for up to 3 years; 

• A suggestion that DHS reduce the 

number of petitions an employer needs 

to make for a given season, including 

increasing the number of beneficiaries 

allowed per petition from 25 workers to 

at least 35 workers; 

• Comments advocating for domestic 

solutions to the aging services staffing 

crisis, including a guest worker program 

for eldercare healthcare providers; 

• Comments about increasing filing 

fees for H–2 petitions; 

• Suggesting that ‘‘employers without 

violations in the previous 5 years 

should be able to receive a 3-year labor 

certification rather than a single-year 

certification;’’ 

• A request that DHS consider 

permitting for-profit, non-attorney 

agents who are not eligible to file a 

Form G–28, Notice of Entry of 

Appearance, to communicate with 

USCIS on behalf of employers if 

authorized to do so, and allow partial 

accreditation for this purpose; 

• Comments about the annual 

statutory cap for H–2B visas; 

• Comments about the exclusion of 

certain occupations from the H–2B 

program; 


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• General concerns with 

unauthorized immigration and its 

negative impacts on the United States; 

• A request to close the U.S. southern 

border and force individuals who 

entered without authorization to work; 

• A request to adjust fees based on 

the size or type of the employer, allocate 

visas based on employer and worker 

needs, and expand the list of eligible 

occupations based on market demand or 

worker availability; 

• Requests to create a pathway to 

citizenship; 

• Requests to create a clear path to 

‘‘legal permanent residency’’ in the 

United States for H–2 workers; 

• Suggestion to create a renewable 

seasonal visa; 

• Comments about deferred action or 

parole; 

• Comments about an ICE policy 

memorandum relating to enforcement 

actions in or near protected areas; 

• Requests to authorize work 

employment for spouses of H–2 

workers; 

• Suggestions to make year-round 

work easier, including allocating a 

certain number of year-round temporary 

visas and increasing the 2-week 

maximum period for emergent 

circumstances for H–2A workers; 

• Suggestions to create a way for H– 

2 workers to self-petition for their visas 

and connect directly with certified 

employers through a multilingual, 

government-hosted database of available 

jobs. 

V. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Orders 12866 (Regulatory 

Planning and Review), as amended by 

Executive Order 14094 (Modernizing 

Regulatory Review), and 13563 

(Improving Regulation and Regulatory 

Review) direct agencies to assess the 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize 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. 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’’ under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094, 

however it is not significant under 

section 3(f)(1) because its annual effects 

on the economy do not exceed $200 

million in any year of the analysis. 

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 

final 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 

final 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 

Final Rule 

This final rule will 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 

will 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 final rule will be 

approximately $16,905,113 to 

$22,607,100 (undiscounted). DHS 

estimates the annualized costs of this 

final rule will range from $1,825,104 to 

$2,438,679 at a 3-percent discount rate 

and $2,014,389 to $2,686,606 at a 7- 

percent discount rate. In addition, DHS 

expects the rule will result in transfers 

from consumers to a limited number of 

H–2A and H–2B workers who may 

choose to supply additional labor 

(consumers pay for the goods made 

available by the marginal labor 

provided). The total annualized transfer 

amounts are estimated to be $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 final rule’s portability provision 

constitute a transfer of $884,180 from 

petitioners of porting workers to USCIS 

(3- and 7-percent annualized 

equivalent). 

Certain petitioners may also incur 

other costs that are difficult to quantify. 

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 for charging prohibited 

fees, and/or may 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. In general, petitioners that are 

found to be noncompliant with the 

provisions of the rule or other existing 

authorities (for example, H–2 program 

violators subject to mandatory and 

discretionary grounds for denial) 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 final rule will be 

diverse, though most are difficult to 

quantify. The final 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 E-Verify standing, 

allowing for greater consistency across 

portability regulations and other 

nonimmigrant worker categories. 

Beneficiaries will also benefit from the 


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extended grace periods, the permanent 

ability to port, the clarification that 

employers who employ porting workers 

must continue to abide by all H–2 

requirements regarding worker benefits 

and protections, and the elimination of 

the interrupted stay provisions and 

instead reducing the period of absence 

out of the country to reset the 3-year 

maximum period of stay. The Federal 

Government will 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 4 

provides a more detailed summary of 

the final provisions and their impacts. 

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124See ‘‘U.S. Citizenship and Immigration 

Services Fee Schedule and Changes to Certain 

Other Immigration Benefit Request Requirements; 

Final Rule,’’ 89 FR 6194 (31 Jan. 2024). 

125See ‘‘Exercise of Time-Limited Authority to 

Increase the Numerical Limitation for FY 2024 for 

the H–2B Temporary Nonagricultural Worker 

Program and Portability Flexibility for H–2B 

Workers Seeking To Change Employers; Temporary 

Final Rule,’’ 88 FR 80394 (17 Nov. 2023). 

126See 20 CFR 655.1(a); see also INA sec. 

214(c)(1), 8 U.S.C. 1184(c)(1); 8 CFR 

214.2(h)(5)(i)(A) and (ii), (h)(6)(iii)(A), and (h)(6)(v). 127See 8 CFR 214.2(h)(6)(ii). 

BILLING CODE 91111–97–C 

Furthermore, a limited number of 

changes have been made to the final 

rule relative to the NPRM. First, the 

final rule has been updated to reflect the 

publication of the USCIS Fee Rule.124

Second, the final rule has been updated 

to reflect the publication of the most 

recent H–2B Supplemental Cap 

Temporary Final Rule.125 Both updates 

affected the final rule’s costs and 

transfers due to changes to the 

analytical baseline depicting the world 

absent the impacts of this rule rather 

than policy changes from the NPRM. 

Additionally, some small 

methodological changes were made to 

the calculation for the number of 

marginal Form I–129 filings due to the 

rule’s portability provision. 

3. Summary of Comments Related to the 

Regulatory Impact Analysis and 

Associated Responses 

DHS requested comments from the 

public on several topics discussed in the 

NPRM. Several of those comments 

discussed issues related to the 

regulatory impact analysis and the 

economic impacts of the rule. These 

comments, and their responses, are 

discussed at length in the preamble but, 

in the interest of transparency, are also 

discussed here. 

a. Impacts on the Economy, U.S. 

Citizens/Taxpayers/Consumers 

Comment: A research organization 

expressed concern that USCIS does not 

provide an impact assessment of the 

proposed permanent and expanded 

portability in the NPRM and that, in 

failing to do so, USCIS prevents the 

public from comprehending the impact 

of the proposed rule on the U.S. labor 

market. 

Response: The comment that the 

NPRM did not provide an impact 

assessment of the proposed permanent 

and expanded portability is inaccurate. 

In the NPRM, DHS provided a detailed 

explanation of the expected impact of 

the portability provision. 88 FR 65044, 

65084–65089 (Sept. 20, 2023). 

Additionally, in this final rule DHS has 

provided additional historical data 

showing the number of approved H–2B 

petitions and beneficiaries extending 

stay with and without a change in 

employer (see Table 2 and Table 3, 

respectively) pursuant to the 

commenter’s request. 

Comment: A joint submission of 

former DHS senior officials stated that 

the economic analysis in the NPRM 

does not consider administrative costs 

of the proposed rule on U.S. workers, 

namely that the average wage for H–2B 

workers is lower than the national mean 

wage in several job categories. The joint 

submission remarked that this could 

make H–2B employees more favorable 

to employers than U.S. citizens and 

therefore could have negative impacts 

on the domestic labor force. 

Response: DHS appreciates the 

comment but disagrees with the 

commenter’s conclusions regarding H– 

2B wages and making H–2B workers 

more attractive relative to the domestic 

labor force. A certified TLC is a 

necessary condition for the approval for 

a Form I–129 for H–2B workers and, as 

such, any prospective H–2B employer 

has legally attested that they have 

already attempted to hire domestic labor 

and that any H–2B beneficiaries will not 

adversely impact wages and working 

conditions of similar workers already in 

the United States.126

Comment: A research organization 

expressed concern that the NPRM does 

not discuss important aspects of the H– 

2B program, including extensions of 

stay, and therefore does not properly 

address the ‘‘true’’ size of the program. 

The commenter discussed concerns 

regarding publicly available data and 

that the program has grown beyond its 

statutorily mandated parameters. 

Response: DHS appreciates the 

comment but notes that much of the 

comment’s substance focuses on aspects 

of the H–2 program that would not be 

affected by the rule and therefore should 

not be considered as an impact of the 

rule. DHS provided an in-depth analysis 

regarding the annual impacts of the final 

rule’s portability provision. 

Furthermore, DHS also provided 

additional data in this final rule to 

address the commenter’s concerns 

regarding extensions of stay (see Table 

2 and Table 3). In summary, the 

Department did not receive comments 

related to the RIA or the rule’s economic 

impacts that necessitated changing the 

population calculation methodology or 

analytical content of the RIA present in 

the NPRM. 

4. 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 final 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 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 nature, which may be a onetime occurrence, a seasonal need, a 

peakload need, or an intermittent 

need.127 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 Form I– 

129, Petition for a Nonimmigrant 

Worker, with DHS. The temporary 

nature of the services or labor described 

on the approved TLC is subject to DHS 


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128Revised effective January 18, 2009 (73 FR 

78104). 

129See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C. 

1184(g)(1)(B), (g)(10). 

130 In addition to the statutorily available 66,000 

H–2B visas per fiscal year, DHS and DOL have also 

generally provided supplemental visas when 

granted that authority by Congress. See, e.g., 88 FR 

80394. 

131A 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). 

132See ‘‘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). 

133 DHS notes that the number of filed H–2A 

petitions has grown by a compound average growth 

rate of approximately 12.76 percent between 

FY2013 and FY2022. DHS acknowledges that 

potential costs may be underestimated in this 

analysis if historical growth rates continue. 

review during adjudication of Form I– 

129.128

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.129 130 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.131

5. Population 

The final rule will impact petitioners 

(employers) that file Form I–129 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 rule also will 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 described in this final 

rule, does not include transferring from 

one H-visa classification to another such 

as, for example, transferring from a H– 

2A nonimmigrant status to an H–2B 

nonimmigrant status, 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 provision will 

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.132 Portability allows 

H–2A and H–2B workers to continue to 

earn wages and gaining employers to 

continue obtaining necessary workers. 

Table 5 and Table 6 present the total 

populations this final rule would 

impact. For provisions impacting a 

subset of these populations, the analysis 

provides separate population totals, 

when possible, for more specific 

analysis. 

As shown in Table 5, 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 2022.133 The number of 

beneficiaries also increased over this 

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 compared to 

petitions received and approved. On 

average, 13,722 H–2A petitions were 

received for an average 240,853 

beneficiaries and 13,504 H–2A petitions 


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134This number includes workers who are 

exempt from the H–2B cap and those who were 

approved under any applicable temporary 

supplemental cap. This number reflects the number 

of H–2B workers who are in petitions that have 

been approved by DHS (including ones that have 

not yet been issued an H–2B visa or otherwise 

acquired H–2B status). 

135Although 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 86 FR 28202 

(May 25, 2021). 

136On November 17, 2023, DHS made available 

to employers an additional 64,716 H–2B temporary 

nonagricultural worker visas for fiscal year 2024. 

See 88 FR 80394. 

137See 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; Public Law 118–15, 

Continuing Appropriations Act, 2024 and Other 

Extensions Act, Division A, sections 101(6) and 106 

(extending into 2024 DHS funding and other 

authorities, including the authority to issue 

supplemental H–2B visas that was provided under 

title III of Division O of Pub. L. 117–328, through 

November 17, 2023). 

138See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C. 

1184(g)(1)(B), (g)(10). 

were approved for an annual average of 

234,865 beneficiaries. 

Table 6 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 2022.135 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.136 Whereas the exact statutory 

limits (including any supplemental 

limits) on H–2B visas are unknown for 

FY 2025 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.137 The supplements 

allocate additional visas for 

nonimmigrants who may be granted H– 

2B nonimmigrant status in each half of 

a fiscal year.138

6. Cost-Benefit Analysis 

The provisions of this final 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, the final rule will: (1) provide 

clearer requirements for USCIS 

compliance reviews and inspections; (2) 


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139For 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/frauddetection-and-national-security/administrative-sitevisit-and-verification-program. 

140The expected time burden to comply with 

audits conducted by DHS and OFLC is 12 hours. 

The number in hours for audits was provided by 

USCIS, Service Center Operations. See 87 FR 76816 

(Dec. 15, 2022). 

141The 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. 

142Site 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. 

143 Data from USCIS FDNS, Reports and Analysis 

Branch. 

144See 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. 

145WHD prohibits retaliation and publishes fact 

sheets and other resources online. See, e.g., WHD, 

‘‘Retaliation,’’ https://www.dol.gov/agencies/whd/ 

retaliation (last visited Jun. 17, 2024); WHD, ‘‘Fact 

Sheet #77D: Retaliation Prohibited under the H–2A 

Temporary Visa Program’’ (Apr. 2012), https://

www.dol.gov/agencies/whd/fact-sheets/77d-h2aprohibiting-retaliation; WHD, ‘‘Fact Sheet #78H: 

Retaliation Prohibited under the H–2B Temporary 

Visa Program,’’ https://www.dol.gov/agencies/whd/ 

fact-sheets/78h-h2b-retaliation-prohibited (last 

visited Jun. 17, 2024). 

provide H–2A and H–2B workers with 

‘‘whistleblower protections;’’ (3) include 

provisions relating to prohibited fees; 

and (4) institute certain mandatory and 

discretionary grounds for denial of an 

H–2A or H–2B petition. We address 

each of these provisions in turn below. 

(1) USCIS Compliance Reviews and 

Inspections 

The final rule includes provisions that 

codify USCIS’ authority to conduct 

compliance reviews and inspections 

within the H–2A and H–2B programs, 

clarify the scope of such reviews and 

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 FDNS 

conducts is mandatory, if an inspection 

is conducted, this provision will make 

the successful completion of an 

inspection required for a petition’s 

approval.139 Inspections can include 

site visits, telephone interviews, or 

correspondence (both electronic and 

mail).140 This regulatory change will 

apply to both pre- and post-adjudication 

petitions, which will codify USCIS’ 

ability to either deny or revoke petitions 

accordingly. This final rule will provide 

USCIS with a greater ability to obtain 

compliance from petitioners and 

employers. Outside of this final 

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 later fiscal years. 

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 pilot program in FY 2018 and 

FY 2019 in which USCIS conducted site 

visits and inspections at 364 (randomly 

selected) H–2B employment sites.141 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).142 On 

average, each site visit took 1.7 hours.143

Of the limited number of site visits 

USCIS has conducted thus far, noncooperation exists in at least some cases. 

Cooperation is crucial to USCIS’ ability 

to verify information about employers 

and workers, and the overall conditions 

of employment. 

This final rule will 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 to the petitioner having to expend 

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. However, DHS expects the 

benefit of participation in the H–2 

program would outweigh these costs. 

Additionally, employers who do not 

cooperate would face denial or 

revocation of their petition(s), which 

could result in costs to those businesses. 

DHS does not expect this provision to 

result in additional costs to the Federal 

Government because it will not require 

additional resources or time to perform 

compliance reviews and inspections 

and, at the same time, USCIS is not 

seeking 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 will have regulations to clearly 

refer to its existing authority to deny or 

revoke a petition if unable to verify 

information related to the petition. 

Additionally, existing USCIS program 

integrity activities will be made more 

effective by additional cooperation from 

employers. More effective program 

integrity activities may benefit domestic 

workers, compliant petitioners, and H– 

2 workers. 

(2) Whistleblower Protections 

This final rule provides H–2A and H– 

2B workers with ‘‘whistleblower 

protections’’ comparable to the 

protections currently offered to H–1B 

workers.144 For example, if an H–1B 

worker: (1) is a beneficiary of a petition 

seeking to extend their H–1B status or 

change their nonimmigrant status; (2) 

indicates that they faced retaliatory 

action from their employer because they 

reported a labor condition application 

violation; and (3) lost or failed to 

maintain their H–1B status related to 

such violation, 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 loss 

or failure to maintain H–1B status on a 

case-by-case basis. 

DHS does not currently have specific 

data related 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 populations.145 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 


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146 Information from email discussions. See DOS 

Emails Re_Prohibited fees (H–2) (Sept. 19, 2022). 

147 Id. 

148Workers have a disincentive to report 

prohibited fees since regulations stipulate that a 

visa should be denied to those admitting to paying 

these fees. 

149 Information from email discussions. See DOS 

Emails Re_Prohibited fees (H–2) (Sept. 19, 2022). 

150 Id. 

151 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. 

152See Centro de los Derechos del Migrante, 

‘‘Recruitment Revealed: Fundamental Flaws in the 

H–2 Temporary Worker Program and 

Recommendations for Change,’’ https://

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

Recruitment_Revealed.pdf (last accessed Mar. 31, 

2023). 

153FY 2022 Total H–2A beneficiaries 

415,229×0.58=240,833 (rounded); FY 2022 Total H– 

2B beneficiaries 185,700×0.58=107,706 (rounded). 

154We take an average of the range provided by 

the consular office in Mexico: ($800+$1000)/ 

2=$900. 

155Calculations: Half of FY 2022 H–2A 

beneficiaries 240,833×$900 fee = $216.7 million 

(rounded); Half of FY 2022 H–2B beneficiaries 

107,706×$900 fee=$96.9 million (rounded). 

156Please note that impacts from this provision 

are based on debarment data from DOL. DHS cannot 

accurately estimate the impact of other mandatory 

and discretionary denials due to a lack of data, as 

explained in this section. 

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. 

(3) Prohibited Fees 

The final rule includes provisions 

relating to prohibited fees that 

strengthen the existing prohibitions on, 

and consequences for, charging certain 

fees to H–2A and H–2B workers, 

including new grounds for denial for 

some H–2 petitions. The economic 

impacts of these 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’ 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.146 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.147 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.148

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.149 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.150 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.151

Data on the prevalence of prohibited 

fees are 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.152 Since data on the 

prevalence of prohibited fees are 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.153 If we 

assume 58 percent of beneficiaries pay 

an average fee of $900,154 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 

2022.155 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 final rule 

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 regulatory change will 

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 that are to be 

implemented with 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 final 

rule, there will be additional 

unquantifiable and non-monetizable 

reductions in indenture and harms from 

other more serious abuses such as those 

discussed in section III, Background. 

Furthermore, the more effective and 

consistent application of provisions 

regarding prohibited fees will benefit 

domestic workers, compliant 

petitioners, and H–2 beneficiaries by 

reducing the ability of noncompliant 

firms to abuse the H–2 programs. 

(4) Mandatory and Discretionary 

Grounds for Denial 

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 will institute certain mandatory 

and discretionary grounds for denial of 

an H–2A or H–2B petition. The impacts 

of these provisions 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, DHS has 

data on current DOL debarments.156

DHS 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 


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157For example, DHS possesses limited data from 

DOL on H–2B violators with violation findings in 

FY 2020 through FY 2023 as a result of the H–2B 

TFRs from FY 2022 through FY 2024. DOL Wage 

and Hour Division publishes enforcement data on 

several worker programs at https://

enforcedata.dol.gov/homePage.php. This data alone 

cannot reliably predict how many of these 

employers might be subject to a discretionary denial 

under this rule, because DHS will apply multiple 

factors to consider whether to approve or deny a 

petition, as noted above. Furthermore, these data 

cannot be relied upon here to determine the 

possible population of violators because the 

parameters of the violations are more limited than 

the violations that could be covered under the new 

discretionary provision. 

158H–2A workers must be provided housing. See 

WHD, ‘‘H–2A: Temporary Agricultural Employment 

of Foreign Workers,’’ https://www.dol.gov/agencies/ 

whd/agriculture/h2a (last visited Jun. 17, 2024). 

debarment and petitioner information to 

assist in adjudications. For the period of 

debarment, a petition covered by the 

debarment cannot 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 final 

rule will be borne by such petitioners or 

their successor in interest through 

denials that preclude participation in 

the H–2 program during the debarment 

period which can range between 1 to 5 

years. More petitioners may face 

financial losses as a result of these new 

grounds for denial because they may 

lose access to labor for extended 

periods. While DHS expects program 

participants to comply with program 

requirements, however, those who do 

not could experience significant impacts 

due to this final rule such as 

experiencing too few workers, loss of 

revenue, and possibly going out of 

business. 

DHS also notes that the final rule 

encompasses more than debarments as 

grounds for mandatory or discretionary 

denials, including but not limited to 

USCIS findings of fraud or willful 

misrepresentation, violation(s) under 

section 274(a) of the Act, the revocation 

of an approved TLC, and final 

revocations by USCIS on the basis of a 

variety of prohibited behaviors. 

However, DHS does not have data on 

the total population of employers that 

these mandatory and discretionary 

denial provisions would affect at this 

granular of a level, or what the impact 

of potential economic losses could be 

given the heterogeneity of H–2 

employers and the specific fact-patterns 

in each instance where new mandatory 

or discretionary grounds for denial 

could apply.157 Monetized impacts 

therefore cannot be estimated. Although 

monetized impacts cannot be estimated, 

DHS expects these provisions to provide 

various benefits. For instance, DHS 

expects that the final rule will hold 

certain petitioners more accountable for 

violations, including certain findings of 

labor law and other violations, and will 

result in fewer instances of worker 

exploitation and safer working 

environments for beneficiaries. As is the 

case with other program integrity 

provisions of the final rule, DHS 

believes that these provisions benefit H– 

2 workers directly and benefit domestic 

workers and compliant petitioners 

indirectly by reducing the ability of 

noncompliant firms to abuse the H–2 

programs. 

The Federal Government may 

experience costs associated with 

implementing these provisions. 

Specifically, USCIS adjudicators may 

require additional time associated with 

reviewing petitioner information 

relating to debarment by DOL (in the 

case of H–2A and H–2B debarments) 

and GDOL (in the case of H–2B 

debarments), and other determinations 

of past violations more closely (as they 

will 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 expansion of 

grounds for denial based on debarment 

as well as the need to improve the way 

debarments are tracked in current 

USCIS systems would require additional 

inter-agency coordination and 

information sharing. 

b. Worker Flexibilities 

This final rule provides 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 will provide increased flexibility 

for H–2 workers by extending grace 

periods. Workers will not experience an 

increase in work time due to these 

extended grace periods because these 

grace periods do not authorize 

employment. More specifically, this rule 

will 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 updated initial grace 

period will also apply to their 

dependents in the H–4 visa 

classification. DHS 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 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.158 However, since H–2A 

employers pay for and normally arrange 

transportation to the worksite, DHS 

assumes employers will 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 will also 

extend the 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. DHS 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. Furthermore, DHS 

notes that while there is no statutory 

requirement for H–2B employers to 

provide housing, there are regulatory 

prohibitions against deductions from 

wages for the cost of housing by an H– 

2B employer when it is provided 

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). DHS 

acknowledges that H–2B employers who 

are subject to this provision may face 

additional costs if they opt to keep 


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workers in the United States for a longer 

period due to the extended post-validity 

grace period. DHS does not have data on 

the population of employers that this 

provision would affect at this granular 

of a level, however, so monetized 

impacts cannot be estimated. Therefore, 

the population that may be affected by 

this provision is unknown due to a lack 

of available data. Lack of data 

notwithstanding, DHS does not expect 

any significant additional costs to 

accrue to employers as this final rule 

will extend only the H–2B grace period 

and, except for the limited scenario 

described above, H–2B employers 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 

will 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 provision 

will 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 will also 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. DHS 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 will 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. 

(2) Transportation Costs for Revoked H– 

2 Petitions 

This final rule adds language 

clarifying that upon revocation of an H– 

2A or H–2B petition, the petitioning 

employer will be liable for the H–2 

beneficiary’s reasonable costs of return 

transportation to their last place of 

foreign residence abroad. Under 20 CFR 

655.20(j)(1)(ii) and 20 CFR 

655.122(h)(2), as well as prior 8 CFR 

214.2(h)(6)(i)(C) and existing 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 final change will not 

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 

This final rule clarifies 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 7. Historical 

receipts data for Form I–485 

(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. 

DHS 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 certain steps toward lawful 

permanent residence with the ability to 

do so without concern over becoming 

ineligible for H–2 status. This final rule 

will not expand the underlying 

eligibility of H–2 workers for lawful 

permanent resident status. 

(4) Portability 

This final rule permanently provides 

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 

will provide stability and job flexibility 

to the beneficiaries of approved H–2 

visa petitions. This portability provision 

facilitates 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, the final rule clarifies 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. 


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159While unrelated to this final rule, we note that 

on April 20, 2020, a TFR was 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 TFR was effective 

from April 20, 2020, through August 18, 2020. See 

85 FR 21739. 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 85 FR 51304. 

160See DHS, ‘‘About E-Verify,’’ https://www.everify.gov/about-e-verify (last updated Apr. 10, 

2018). 

161Employers 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. 

162See DHS, ‘‘About E-Verify, Questions and 

Answers,’’ https://www.e-verify.gov/about-e-verify/ 

questions-and-answers?tid=All&page=0 (last 

updated Sept. 15, 2022). 

163See DHS, ‘‘Enrolling in E-Verify, The 

Enrollment Process,’’ https://www.e-verify.gov/ 

employers/enrolling-in-e-verify/the-enrollmentprocess (last updated Aug. 9, 2022). 

164An 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. 

165See 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. 

166The 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/PRAView

Document?ref_nbr=202103-1615-015, under 

Question 12 (last accessed Apr. 4, 2023). 

167 Id. 

168See BLS, Occupational Employment and 

Wages, May 2022, Human Resources Specialists 

(13–1071), https://www.bls.gov/oes/2022/may/ 

oes131071.htm. 

169The 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 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. 

Previously, portability was available 

on a permanent basis to H–2A workers, 

but it was limited to E-Verify 

employers.159 E-Verify is a DHS webbased 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.160 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 final rule, employers 

petitioning for a porting H–2A worker 

will no longer need to be enrolled in EVerify, but will 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 requirement could 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 E-Verify may have 

every year. DHS assumes that most 

employers that are currently 

participating in E-Verify will not realize 

cost savings of these expenses since 

they previously incurred enrollment 

costs and will continue to participate in 

webinars and incorporate any new EVerify features and system changes 

regardless of this final rule.161

Additionally, DHS expects that only 

those employers who enroll for the 

explicit purpose of petitioning on behalf 

of a porting employee will 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 final rule. 

For employers currently enrolled in EVerify that choose to hire an H–2A 

worker, the final rule will 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 (MOU).162 Therefore, 

with or without the final rule, an 

employer already enrolled in E-Verify 

that chooses to hire a porting H–2A 

worker will 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,163 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.164 If an 

employer violates the terms of this 

agreement, it can be grounds for 

immediate termination from E-Verify.165

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.166 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.167 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 will 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 $35.13.168

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 

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.169


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170Calculation: $35.13 average hourly wage rate 

for HR specialists × 1.45 benefits-to-wage multiplier 

= $50.94 (rounded). 

171Calculation: 2.26 hours for the enrollment 

process × $50.94 total compensation wage rate for 

an HR specialist = $115.12. 

172The 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/PRAView

Document?ref_nbr=202103-1615-015 under 

Question 12 (last accessed Apr. 4, 2023). 

173Calculation: 0.121 hours to submit a query × 

$50.94 total compensation wage rate for an HR 

specialist = $6.57 (rounded). 

Therefore, DHS calculates an average 

hourly compensation rate of $50.94 for 

HR specialists.170 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 $115.12.171 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 will 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).172 Therefore, DHS 

estimates the opportunity cost of time 

savings would be approximately $6.57 

per case.173 These employers will 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 8 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 8 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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174See DOL, Form ETA–9142A, ‘‘H–2A 

Application for Temporary Employment 

Certification,’’ 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. 

175Calculations: 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). 

176Calculation: $115.12 enrollment + $50.94 

annual training + $6.57 query submission = 

$172.63. 

177 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 new employee. 178 Id. 179On 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 85 FR 28843 (May 14, 2020). 

180This 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 2022, USCIS approved 522 requests 

for change of status to H–2B, and Customs and 

Border Protection (CBP) processed 1,217 crossings 

of visa-exempt H–2B workers. See USCIS, 

‘‘Characteristics of H–2B Nonagricultural 

Temporary Workers FY2022 Report to Congress’’ 

(Apr. 17, 2022), https://www.uscis.gov/sites/default/ 

files/document/data/USCIS_H2B_FY22_

Characteristics_Report.pdf. 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 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. 

DHS expects that existing H–2A 

petitioners will continue to participate 

in E-Verify and thus will not realize a 

cost savings due to this final rule. 

Employers that do not yet port H–2A 

workers, but do obtain TLCs from DOL, 

will experience a cost-savings relevant 

to avoiding enrollment and 

participation in E-Verify. However, they 

will 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 will 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.174 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.175 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 $172.63,176 regardless of the 

filer, a new H–2A porting employer 

needing to obtain TLCs will not 

experience a cost-savings in the first 

year following this rule.177

By removing the requirement for a 

petitioner to participate in E-Verify to 

benefit from portability, this provision 

may result in increased demand for H– 

2A petitioners to petition to port eligible 

H–2A workers. DHS expects H–2A 

petitioners that already hire porting H– 

2A beneficiaries to continue to use EVerify in the future. However, DHS is 

unable to estimate the number of future 

employers that will 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 will continue to use EVerify. Any new petitioners for porting 

H–2A workers will still be required to 

obtain TLCs through DOL, these H–2A 

employers will be subject to the site 

visit requirements and comply with the 

terms and conditions of H–2 

employment set forth in this final rule 

and under other related regulations, and 

the porting worker will 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 2025 H–2B Supplemental Cap 

TFR and was available under previous 

supplemental caps dating back to FY 

2021. 89 FR 95626 (Dec. 2, 2024). 

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.178 Since 

it is difficult to isolate the impacts of 

inclusion of temporary portability 

provisions in the FY 2021 through FY 

2025 H–2B Supplemental Cap TFRs 

from the extensions of stay due to 

changes of employer that are expected 

in the absence of this provision, we 

reproduce the FY 2025 H–2B 

Supplemental Cap TFR’s analysis 

here.179 Additionally, DHS is unclear 

how many additional H–2B visas 

Congress will allocate in future fiscal 

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 2025 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.180 DHS 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 9). 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. 


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181USCIS, Office of Performance and Quality— 

SAS PME C3 Consolidated, as of Sep. 09, 2023, TRK 

12921. 

182 Id. 

183 Id. 

184Calculation, Step 1: 1,113 Form I–129 

petitions for extension of stay due to change of 

employer FY 2021 + 1,795 Form I–129 petitions for 

extension of stay due to change of employer in FY 

2022 + 2,113 Form I–129 petitions for extension of 

stay due to change of employer in FY 2023 = 5,021 

Form I–129 petitions filed extension of stay due to 

change of employer in portability provision years. 

Calculation, Step 2: 7,206 Form I–129 petitions 

filed for new employment in FY 2021 + 9,231 Form 

I–129 petitions filed for new employment in FY 

2022 + 9,579 Form I–129 petitions filed for new 

employment in FY 2022 = 26,016 Form I–129 

petitions filed for new employment in portability 

provision years. 

Calculation, Step 3: 5,021 extensions of stay due 

to change of employment petitions ÷ 26,016 new 

employment petitions = 19.3 percent rate of 

extension of stay due to change of employment to 

new employment. 

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 7,206 petitions 

filed for new employment.181 In FY 

2022, there were 1,795 petitions filed 

using Form I–129 for extension of stay 

due to change of employer compared to 

9,231 petitions filed for new 

employment.182 In FY 2023, there were 

2,113 petitions filed using Form I–129 

for extension of stay due to change of 

employer compared to 9,579 petitions 

filed for new employment.183 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 19.3 percent.184 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 

19.3 percent should be expected in 

periods with portability. 

In order to estimate the number of 

marginal Forms I–129 filed as a result of 

the final rule’s portability provision, 

DHS must first estimate the number of 

beneficiaries per petition. As discussed 

above, DHS has provided supplemental 

H–2B visa allocations each year since 

FY 2021. These supplemental 

allocations are based on time-limited 

authority granted by Congress, however, 

and should not be included in any 

prospective analysis as their existence is 

not certain. As such, the proper 

reference population for calculating the 

marginal impact of the portability 

provision is the annual statutory cap of 

66,000 H–2B visas. Table 10 contains 

the total petitions, total beneficiaries, 

and beneficiaries per petition for H–2B 

Forms I–129 filed under the statutory 

cap for fiscal year 2019 through fiscal 

year 2023. 


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185This number includes beneficiaries who are 

exempt from the H–2B cap and reflects the number 

of H–2B workers who are in petitions that have 

been approved by DHS (including ones that have 

not yet been issued an H–2B visa or otherwise 

acquired H–2B status). 

186Calculation: 3,627 Form I–129 H–2B petitions 

filed for new employment × 10.5 percent = 381 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, no portability provision. 

187Calculation: 3,627 Form I–129 H–2B petitions 

filed for new employment × 19.3 percent = 700 

estimated number of Form I–129 H–2B petitions 

filed for extension of stay due to change of 

employer, with a portability provision. 

188Calculation: 700 estimated number of Form I– 

129 H–2B petitions filed for extension of stay due 

to change of employer, with a portability 

provision—381 estimated number of Form I–129 H– 

2B petitions filed for extension of stay due to 

change of employer, no portability provision = 319 

Form I–129 H–2B petition increase as a result of 

portability provision. 

189Calculation, Lawyers: 319 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 = 146 (rounded) 

estimated Form I–129 filed by a lawyer. 

Calculation, HR specialist: 319 additional Form I– 

129 due to portability provision—146 estimated 

Form I–129 filed by a lawyer = 173 estimated Form 

I–129 filed by an HR specialist. 

190Calculation: 316 Form I–129 H–2B petitions × 

93.57 percent premium processing filing rate = 298 

(rounded) Forms I–907. 191Calculation, Lawyers: 298 Forms I–907 × 45.84 

percent filed by an attorney or accredited 

representative = 137 Forms I–907 filed by a lawyer. 

Calculation, HR specialists: 298 Forms I–907— 

137 Forms I–907 filed by lawyer = 161 Forms I–907 

filed by an HR specialist. 

192Calculation, HR Specialist: $50.94 hourly 

opportunity cost of time × 4.787-hour time burden 

for form I–129 = $243.85 estimated cost to file a 

Form I–129 H–2B petition. 

Calculation, In-house lawyer: $114.17 hourly 

opportunity cost of time × 5.617-hour time burden 

for form I–129 and Form G–28 = $641.29 estimated 

cost to file a Form I–129 H–2B petition. 

Calculation, outsourced lawyer: $196.85 hourly 

opportunity cost of time × 5.617-hour time burden 

for form I–129 and Form G–28 = $1,105.71 

(rounded) estimated cost to file a Form I–129 H–2B 

petition. 

193Calculation, HR specialist: $243.85 estimated 

cost to file a Form I–129 H–2B petition × 173 

petitions = $42186 (rounded). 

194Calculation, In-house Lawyer: $641.29 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 × 146 petitions = 

$93,628 (rounded). 

Calculation, Outsourced Lawyer: $1,105.71 

estimated cost to file a Form I–129 H–2B petition 

and accompanying Form G–28 × 146 petitions = 

$161,434 (rounded). 

Using 3,627 as our estimate for the 

number of petitions filed using Form I– 

129 for H–2B new employment in FY 

2024, we estimate that 381 petitions for 

extension of stay due to change of 

employer will be filed in absence of this 

rulemaking’s portability provision.186

With the rule’s portability provision in 

effect, we estimate that 700 petitions 

will be filed using Form I–129 for 

extension of stay due to change of 

employer.187 As a result of this 

provision, we estimate 319 additional 

petitions using Forms I–129 will be 

filed.188 DHS acknowledges that any 

future legislation that provides a 

supplemental allocation of H–2B visas 

will necessarily increase the number of 

Forms I–129 filed as a result of the final 

rule’s portability provision. As such, the 

estimates presented here should be 

interpreted as a reasonable lower bound 

for the impact of the final rule’s 

portability provision. 

As shown in Table 17, an average 

45.84 percent of Form I–129 petitions 

will be filed by an in-house or 

outsourced lawyer. Therefore, we expect 

that a lawyer will file 146 of these 

petitions and an HR specialist will file 

the remaining 173.189 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 298 requests 

using Form I–907 will be filed.190 We 

expect lawyers to file 137 requests using 

Forms I–907 and HR specialists to file 

the remaining 161 requests.191

Petitioners seeking to hire H–2B 

nonimmigrants who are currently 

present in the United States in lawful 

H–2B status will need to file Form I–129 

and pay the associated fees. 

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 146 

petitions will be filed by a lawyer and 

the remaining 173 petitions will be filed 

by an HR specialist. The opportunity 

cost of time to file a Form I–129 H–2B 

petition will be approximately $243.85 

for an HR specialist; and the 

opportunity cost of time to file a Form 

I–129 H–2B petition with accompanying 

Form G–28 will be approximately 

$641.29 for an in-house lawyer and 

$1,105.71 for an outsourced lawyer.192

Therefore, we estimate the cost of the 

additional petitions filed using Form I– 

129 from the portability provision for 

HR specialists will be approximately 

$42,186.193 The estimated cost of the 

additional petitions filed using Form I– 

129 accompanied by Forms G–28 from 

the portability provision for lawyers 

will be about $93,628 if filed by inhouse lawyers and $161,434 if filed by 

outsourced lawyers.194

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 298 


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195Calculation: 319 estimated additional Form I– 

129 H–2B petitions × 93.57 percent accompanied by 

Form I–907 = 298 (rounded) additional Form I–907. 

196Calculation, Lawyers: 298 additional Form I– 

907 × 45.84 percent = 136 (rounded) Form I–907 

filed by a lawyer. Calculation, HR specialists: 298 

Form I–907—136 Form I–907 filed by a lawyer = 

160 Form I–907 filed by an HR specialist. 

197Calculation, HR Specialist: $50.94 hourly 

opportunity cost of time × 0.37-hour time burden 

to file Form I–907 = $18.85 cost to file Form I–907. 

Calculation, In-house lawyer: $114.17 hourly 

opportunity cost of time × 0.37-hour time burden 

to file Form I–907 = $42.24 cost to file Form I–907. 

Calculation, outsourced lawyer: $196.85 hourly 

opportunity cost of time × 0.37-hour time burden 

to file Form I–907 = $114.17 cost to file Form I– 

907. 198Calculation, HR specialist: $18.85 to file a 

Form I–907 × 161 forms = $3,035 (rounded). 199Calculation, In-house lawyer: $42.24 to file a 

Form I–907 × 137 forms=$5,787 (rounded). 

Calculation for an outsourced lawyer: $72.72 to 

file a Form I–907 × 137 forms = $9,978 (rounded). 200Calculation for HR specialists and in-house 

lawyers: $42,186 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 = 

$144.636. 

Calculation for HR specialists and outsourced 

lawyers: $42,186 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 = $216,633. 

201See USCIS, Form G–1055, ‘‘USCIS Fee 

Schedule,’’ https://www.uscis.gov/sites/default/ 

files/document/forms/g-1055.pdf (last accessed Apr. 

18, 2024). 

202 Id. 

requests for premium processing using 

Form I–907 will be filed.195 We expect 

136 of those requests will be filed by a 

lawyer and the remaining 160 will be 

filed by an HR specialist.196 The 

estimated opportunity cost of time to 

file Form I–907 will be about $18.85 for 

an HR specialist; and the estimated 

opportunity cost of time for an in-house 

lawyer to file Form I–907 will be 

approximately $42.24 and for an 

outsourced lawyer it will be about 

$72.83.197 The estimated annual cost of 

filing additional requests for premium 

processing using Form I–907 if HR 

specialists file will be approximately 

$3,035.198 The estimated annual cost of 

filing additional requests for premium 

processing using Form I–907 will be 

about $5,787 if filed by in-house 

lawyers, and approximately $9,978 if 

filed by outsourced lawyers.199

The estimated annual cost of this 

provision ranges from $144,636 to 

$216,633 depending on what share of 

the forms are filed by in-house or 

outsourced lawyers.200

The transfer payments from filing 

petitions using Form I–129 for an H–2B 

beneficiary include the filing costs to 

submit the form. USCIS’ current fee rule 

was published on January 31, 2024, and 

became effective on April 1, 2024. 89 FR 

6194, 6246–6248; 89 FR 20101 (Apr. 1, 

2024). Table 11 shows the current fee 

schedule for Form I–129 requesting H– 

2A workers. 

Furthermore, certain petitioners must 

pay the $600 Asylum Program Fee. 

Small employers with 25 or fewer 

employees pay a reduced Asylum 

Program Fee of $300 while nonprofits 

are exempt from the Asylum Program 

Fee. Therefore, total filing fees for H–2A 

petitioners range from $1,690 to $460 

depending on the characteristics of the 

petitioner.201

Similarly, Table 12 shows the base 

filing fees for petitioners requesting H– 

2B workers. 

As was the case to H–2A petitioners, 

certain H–2B petitioners also must pay 

the $600 Asylum Program Fee. Small 

employers with 25 or fewer employees 

pay a reduced Asylum Program Fee of 

$300 while nonprofits are exempt from 

the Asylum Program Fee. Additionally, 

petitioners requesting H–2B workers 

must submit a $150 Fraud Prevention 

and Detection Fee. Therefore, total filing 

fees for H–2B petitioners range from 

$1,830 to $610 depending on the 

characteristics of the petitioner.202

For the purposes of this analysis, 

USCIS assumes that all marginal Forms 

I–129 filed due to the final rule’s 

portability provision request named 


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203Per Form I–129 instructions, beneficiaries 

must be named if they are currently in the United 

States. Therefore, a Form I–129 petition filed as a 

result of the final rule’s portability provision would 

necessarily be for named beneficiaries. See USCIS, 

Form I–129, ‘‘Instructions for Petition for 

Nonimmigrant Worker Department of Homeland 

Security,’’ OMB Control Number 1615–0009, 

(expires Feb. 28, 2027), https://www.uscis.gov/sites/ 

default/files/document/forms/i-129instr.pdf. 

204See 89 FR 6194, 6246–6248, Table 25 (Jan. 31, 

2024); 89 FR 20101 (Apr. 1, 2024). 

205Calculation, ‘‘Large’’ Petitioners: 319 marginal 

Form I–129 filings × 0.3 rate of ‘‘large’’ petitioners 

= 96 ‘‘large’’ petitioners (rounded). 

‘‘Small’’ Petitioners: 319 marginal Form I–129 

filings × 0.55 rate of ‘‘small’’ petitioners = 175 

‘‘small’’ petitioners (rounded). 

Non-profit petitioners: 319 marginal Form I–129 

filings × 0.15 rate of non-profit petitioners = 48 nonprofit petitioners (rounded). 

206Fees for ‘‘large’’ petitioner: $1,080 base filing 

fee + $600 Asylum Program Fee + $150 Fraud 

Prevention and Detection Fee = $1,830. 

Fees for ‘‘Small’’ Petitioner: $540 base filing fee 

+ $300 Asylum Program Fee + $150 Fraud 

Prevention and Detection Fee = $990. 

Fees for Non-profit Petitioner: $540 base filing fee 

+ $150 Fraud Prevention and Detection Fee = $690. 

For more information regarding the fee schedule 

for Forms I–129, please see https://www.uscis.gov/ 

sites/default/files/document/forms/g-1055.pdf 

(accessed Apr. 29, 2024) 

207Calculation: (96 ‘‘large’’ petitioners × $1,830 

total fees) + (175 ‘‘small’’ petitioners × $990 total 

fees) + (48 nonprofit petitioners × $690 total fees) 

= $382,050. 

208See USCIS, Form I–907, ‘‘Instructions for 

Request for Premium Processing Service,’’ OMB 

Control Number 1615–0048, https://www.uscis.gov/ 

sites/default/files/document/forms/i-907instr.pdf 

(last accessed Apr. 15, 2024). 

209Calculation: 319 petitions × 93.57 Form I–907 

rate = 298 Forms I–907 (rounded). 

210Calculation: $1,685 per petition × 298 Forms 

I–907 = $502,130. 

211Calculation: $382,050 + $502,130 = $884,180. 

212 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. 

213See USCIS, Form I–129, ‘‘Instructions for 

Petition for Nonimmigrant Worker Department of 

Homeland Security,’’ OMB Control Number 1615– 

0009 (expires Feb. 28, 2027), https://www.uscis.gov/ 

sites/default/files/document/forms/i-129instr.pdf. 

214Country of citizenship data are available for 

about 20 percent of the H–2A category but not for 

the H–2B category. For consistency and because 

there are slightly more data available, we use 

country of birth data in this analysis. 

215The publication of the eligible countries lists 

for H–2A and H–2B visa programs referred to here 

was published on November 10, 2022. 87 FR 67930. 

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. 

beneficiaries and that the petitioners are 

representative of the greater Form I–129 

filing population.203 More specifically, 

we assume that of the 319 marginal 

Form I–129 petitions that were filed as 

a result of the final rule’s portability 

provision, 30 percent have 26 or more 

employees, 55 percent have 25 or fewer 

employees, and that 15 percent have 

non-profit status.204 This equates to 96 

‘‘large’’ petitioners, 175 ‘‘small’’ 

petitioners, and 48 non-profit 

petitioners.205 These petitioners will 

pay total fees of $1,830, $990, and $690, 

respectively.206 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. The annual value of 

transfers from petitioners to the 

Government for filing Form I–129 due to 

the final rule’s portability provision will 

be approximately $382,050.207

Additionally, employers may use 

Form I–907 to request premium 

processing of Form I–129 petitions for 

H–2B visas. The filing fee for Form I– 

907 to request premium processing for 

H–2B petitions is $1,685.208 Based on 

historical trends, DHS expects that 

93.57 percent of petitioners will file a 

Form I–907 with Form I–129. Applying 

that rate to the expected number of 

filings of Form I–129 petitions will 

result in 298 requests for premium 

processing using Form I–907 filed due 

to the rule.209 We estimate that the 

annual transfers from petitioners to the 

Federal Government related to filing 

Form I–907 due to the rule will be 

approximately $502,130.210 The 

undiscounted annual transfers from 

petitioners to the Federal Government 

due to the rule are $884,180.211 212

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 allows 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. 

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. The 

final rule includes the following: (1) 

removing the eligible countries lists; 

and (2) eliminating the calculation of 

interrupted stays and reducing the 

period of absence that will reset an 

individual’s 3-year maximum period of 

stay. 

(1) Eligible Countries Lists 

DHS will 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.213

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.214

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’s country of 

birth. Data are primarily limited because 

of the high percentage of H–2 petitions 

filed requesting unnamed beneficiaries. 

Additionally, these data are 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 

data did not identify any H–2A 

beneficiaries with a country of birth 

from 55 of 85 eligible countries.215

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 


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216See 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. 

217See USCIS, Form G–1055, ‘‘Fee Schedule,’’ 

https://www.uscis.gov/sites/default/files/document/ 

forms/g-1055.pdf, (last accessed Apr. 18, 2024). 

218See USCIS, Form I–129, ‘‘Instructions for 

Petition for Nonimmigrant Worker Department of 

Homeland Security,’’ OMB Control Number 1615– 

0009 (expires Feb. 28, 2027), https://www.uscis.gov/ 

sites/default/files/document/forms/i-129instr.pdf. 

219USCIS 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. 

220See DOL, ‘‘H–2A Temporary Labor 

Certification for Agriculture Workers,’’ https://

flag.dol.gov/programs/H-2A (last visited May 31, 

2023) (‘‘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); DOL, ‘‘H–2B, Temporary 

Labor Certification for Non-Agriculture Workers,’’ 

https://flag.dol.gov/programs/H-2B (last visited 

May 31, 2023) (‘‘The employer’s job opportunities 

must be . . . [t]emporary (9 months or less, except 

one-time occurrences)’’). 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, Pub. 

L. 117–328, Division H, Title I, Sec. 111. 

workers from countries not listed on the 

respective eligible countries lists be 

filed separately. DHS 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 

provision will result in saved fees.216 As 

discussed above, total filing fees for H– 

2A petitioners range from $460 to 

$1,690 depending on the characteristics 

of the petitioner while total filing fees 

for H–2B petitioners range from $610 to 

$1,830 depending on the characteristics 

of the petitioner.217 Therefore, 

employers currently filing separate 

petitions could save $460 to $1,640 per 

H–2A petition and $610 to $1,830 per 

H–2B petition.218

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 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, timeconsuming, and limited in its response 

to ever-changing global dynamics. For 

example, DOS already performs regular 

national interest assessments and would 

not approve H–2 work visas that it 

deems problematic regardless of the 

country’s standing on the eligible 

countries lists. 

Benefits of this 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 also 

will reduce the burden on petitioners 

that seek to hire H–2 workers from 

countries not designated as eligible 

since they will no longer need to meet 

additional criteria showing that it is in 

the U.S. interest to employ such 

workers. This provision also will 

increase access to workers potentially 

available to businesses that use the H– 

2 programs. 

(2) Eliminating the ‘‘Interrupted Stay’’ 

Calculation and Reducing the Period of 

Absence To Reset an Individual’s 3-Year 

Period of Stay 

DHS is eliminating 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.219

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 final rule, the 

total period of stay of 3 years remains 

unchanged, but the period of absence 

that resets an individual’s 3-year period 

of stay will be reduced. For ease of 

understanding, the term ‘‘clock’’ is used 

in this section to describe the 3-year 

maximum period of stay for an H–2 

worker and the term ‘‘absence’’ 

generally is used in place of 

‘‘interruption.’’ As critical context, the 

estimated population impacted by this 

change is constrained because the DOLcertified 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 Labor 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 will be no direct 

impacts nor costs to an employer from 

the simplifications to the existing 

definition of absence for the purpose of 

resetting the 3-year clock.220

Additionally, under this 

simplification, DHS will 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 will 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 and whose clock 

currently pauses when leaving 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 

rule, the 3-year clock will no longer 

pause when an individual leaves the 

United States for the period of time 

specified in rows 2 and 3 of Table 13; 

rather, the 3-year clock will reset 

following an uninterrupted absence of 

60 days, irrespective of the individual’s 

period of accumulated stay in the 

United States. 


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221See 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. 

222See WHD, ‘‘Wages and the Fair Labor 

Standards Act,’’ https://www.dol.gov/agencies/whd/ 

flsa (last visited Dec. 15, 2022). 

223See 29 U.S.C. 206; See also WHD, ‘‘Minimum 

Wage,’’ https://www.dol.gov/general/topic/wages/ 

minimumwage (the minimum wage in effect as of 

Dec. 15, 2022). 

224See Occupational Employment and Wage 

Estimates United States, May 2022. BLS, 

‘‘Occupational Employment and Wage Statistics 

program, All Occupations,’’ https://www.bls.gov/ 

oes/2022/may/oes_nat.htm#00-0000 (last visited 

July 28, 2023). 

225The 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. 

226Calculations (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. 

DHS 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 TLC three or more times to 

maximize earnings over the 3-year 

(1,095 days) limit. DHS does not have 

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 present 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. 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.221 Additionally, 

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.222

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 $7.25.223 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 wage. Therefore, DHS 

believes that a more accurate and timely 

estimate of wages is available via data 

from the DOL, 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.224 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.225

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.226

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 


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227The 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. DHS notes that the agricultural 

wages contained in the OEWS survey represent a 

subset all agricultural workers. 

228Calculation of the weighted mean hourly wage 

for agricultural workers: $17.04 per hour × 1.45 

benefits-to-wage multiplier = $24.71 (rounded). 

229The 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. 

230The calculation of the weighted mean hourly 

wage for applicants: $29.76 per hour × 1.45 

benefits-to-wage multiplier = $43.15 (rounded) per 

hour. 231USCIS 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. 232Calculations: 10thpercentile 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. 

233Calculations: 10th 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–2B average wage for all occupations (upper 

bound): $246.47 × 30 days = $7,394 (rounded). 

234See Quentin Fottrell, MarketWatch, ‘‘More 

than 44 percent of Americans pay no federal 

income tax,’’ (Aug. 28, 2019), https://

www.marketwatch.com/story/81-million-americanswont-pay-any-federal-income-taxes-this-year-hereswhy-2018-04-16. 

235The 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. 

236See IRS, ‘‘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). 

237Calculation: (6.2 percent Social Security + 

1.45 percent Medicare) × 2 employee and employer 

losses = 15.3 percent total estimated tax transfer 

payment to government. 

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 $17.04.227 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.228 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.229 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.230

Since DHS calculates absences from 

the United States based 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 days of the 

calendar week, or 71.4 percent, is 

allotted to work-time, and that a 

workday is typically 8 hours.231 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.232

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 14).233

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,234 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).235 While H–2A wages are 

exempt from these taxes, H–2B wages 

are not.236 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.237 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 


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238On July 25, 2022, USCIS extended its COVID– 

19-related flexibilities for responding to RFEs 

through October 23, 2022. This provided recipients 

an additional 60 calendar days after the due date 

on an RFE to provide a response. Ultimately, while 

this flexibility may have been helpful to petitioners 

it also added 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. 

239The public reporting burden for this form is 

2.487 hours for Form I–129 and an additional 2.07 

hours for H Classification Supplement. See USCIS, 

Form I–129, ‘‘Instructions for Petition for 

Nonimmigrant Worker Department of Homeland 

Security,’’ OMB Control Number 1615–0009 

(expires Feb. 28, 2027), https://www.uscis.gov/sites/ 

default/files/document/forms/i-129instr.pdf. 

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 

14, tax transfers could range from $0 for 

H–2A workers to as much as $1,131 for 

H–2B workers over a 30-day period. 

One benefit of this provision is that it 

will 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 15, 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. 

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 will at least render 

some RFEs unnecessary.238 This will 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, DHS 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 

impact to the employer nor to wages 

earned by the worker. Multiplying the 

H–2A population of 169 in Table 15 by 

$4,234 in additional wages for 30 days 

in Table 14 bounds potential additional 

annual earnings at $715,546. 

Additionally, the H–2B population of 

298 in Table 15 multiplied by $7,394 in 

Table 14 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 

approximately $2,918,958 in additional 

earnings and about $337,122 in tax 

transfers ($168,561 from workers + 

$168,561 from employers). 

d. Other Impacts of the Final Rule 

(1) Form I–129 Updates 

The costs for filing Form I–129 

include the opportunity costs of time to 

complete and file the form. The 

estimated time needed to complete and 

file Form I–129 is 2.487 hours.239 There 

is also an estimated time burden of 2.07 

hours for petitioners to complete the H 

classification supplement for Form I– 

129. The total time burden of 4.557 

hours for Form I–129 also includes the 

time for reviewing instructions, to file 

and retain documents, and submit the 

request. In this final rule, only the 

estimated burden to complete the H 

classification supplement will change. 

This rule will increase the public 

reporting burden for the H Classification 

Supplement by 0.23 hours, for a total of 

2.3 hours. The increased time burden 

will result in a total time burden of 

4.787 hours for Form I–129 H–2 


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240For the purposes of this analysis, DHS 

assumes an HR 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 HR departments or occupations and, 

therefore, recognizes equivalent occupations may 

prepare these petitions. 241For 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. 

242See BLS, Occupational Employment and 

Wages, May 2022, Human Resources Specialists 

(13–1071), https://www.bls.gov/oes/2022/may/ 

oes131071.htm. 

243See BLS, Occupational Employment and 

Wages, May 2022, Lawyers (23–1011), https://

www.bls.gov/oes/2022/may/oes231011.htm. 

244Calculation for the total wage of an in-house 

lawyer: $78.74 × 1.45 = $114.17 (rounded). 

245Calculation: Average hourly wage rate of 

lawyers × Benefits-to-wage multiplier for 

outsourced lawyer = $78.74 × 2.5 = $196.85 

(rounded). 

246The 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 ICE, 

‘‘Small Entity Impact Analysis (Final): 

Supplemental Proposed Rule ‘Safe-Harbor 

Procedures for Employers Who Receive a No-Match 

Letter,’ ’’ p. G–4 (Sept. 1, 2015), https://

www.regulations.gov/document/ICEB-2006-0004- 

0922. 

247USCIS, ‘‘Filing Your Form G–28’’ (Aug. 10, 

2020), https://www.uscis.gov/forms/filing-yourform-g-28. 

248See 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. 

249HR specialist calculation: $50.94 × (0.23 

hours) = $11.72. 

In-house lawyer calculation: $114.17 × (0.23 

hours) = $26.26. 

Outsourced lawyer calculation: $196.85 × (0.23 

hours) = 45.28 (rounded). 

250Calculation: 24,370 H–2A + 12,392 H–2B = 

36,762 H–2 petitioners in FY 2022 as estimated as 

the population who would be most likely be 

affected by this rule. 

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 HR specialists file Form I–129 or 

if only lawyers file Form I–129.240

Further, DHS presents cost estimates for 

lawyers filing on behalf of petitioners 

based on whether all Form I–129 

petitions are filed by in-house lawyers 

or by outsourced lawyers.241 DHS 

presents an estimated range of costs 

assuming that only HR specialists, inhouse 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.242 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.243 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.244 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.245 246 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.247 DHS estimates the time 

burden to complete and submit Form G– 

28 for a lawyer is 50 minutes (0.83 

hours, rounded).248

Since only the time burden for the H 

Classification Supplement will change, 

this analysis only considers the 

additional opportunity cost of time for 

0.23 hours as a direct cost of this rule. 

Therefore, the estimated additional 

opportunity cost of time for an HR 

specialist to complete and file Form I– 

129 for an H–2 petition is $11.72, for an 

in-house lawyer to complete and file is 

$26.26, and for an outsourced lawyer to 

complete and file is $45.28.249

DHS expects this rule to impose costs 

on the population of employers that 

currently petition for H–2 workers, an 

estimated 36,762 petitioners.250 We 

expect filing the relevant forms will be 

performed by an HR specialist, in-house 

lawyer, or outsourced lawyer, with the 

assumption that this will 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 16 and Table 17 

show the recent G–28 filing trends for 

each separate H–2 population. 


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251Calculation: Step 1. 12,607 H–2A petitions 

with G–28 + 18,605 H–2B petitions with G–28 = 

31,212 H–2 petitions with G–28; Step 2. 77,890 total 

H–2A petitions + 40,583 total H–2B petitions = 

118,473 total H–2 petitions; Step 3. 31,212 H–2 

petitions with G–28 ÷ 118,473 total H–2 petitions 

= 0.2635 (rounded). 252Calculation for lawyers: 36,762 H–2 

petitioners × 26.35 percent represents by a lawyer 

= 9,687 (rounded) represented by a lawyer. 

Calculation for HR specialists: 36,762 H–2 

petitioners¥9,687 represented by a lawyer = 27,075 

represented by a HR specialist. 

253Calculation: $11.72 additional burden × 

27,075 HR specialists = $317,319. 

254Calculations: $26.26 additional burden × 9,687 

in-house lawyers = $254,381; $45.28 additional 

burden × 9,687 outsourced lawyers = $438,627 

(rounded). 

255Calculation: HR specialists $317,319 + inhouse lawyers $254,381 = $571,700; HR specialists 

$317,319 + outsourced lawyers $438,627 = 

$755,946. 

256Calculation: 24,370 H–2A + 12,392 H–2B = 

36,762 H–2 petitioners in FY 2022 as estimated as 

the population who would be most likely to read 

this rule. 

Using the data from Table 16 and 

Table 17, DHS calculates that the 

weighted average rate of G–28 filing 

across the entire H–2 population is 

26.35 percent.251

Therefore, we estimate that 9,687 

lawyers will incur additional filing 

costs, and 27,075 HR specialists will 

incur additional filing costs.252

The estimated total opportunity cost 

of time for 27,075 HR specialists to file 

petitions under this final rule is 

approximately $317,319.253 The 

estimated annual opportunity cost of 

time for 9,687 lawyers to file petitions 

under this rule is approximately 

$254,381 if all are in-house lawyers and 

$438,627 if all are outsourced 

lawyers.254 Therefore, the estimated 

annual opportunity costs of time for 

petitioners or their representatives to 

file H–2 petitions under this rule will 

range from $571,700 to $755,946.255

(2) Technical Definitional Updates 

As a technical update in this rule, 

DHS is removing the phrase ‘‘abscond’’ 

and the definition ‘‘abscondment’’ for 

clarification purposes. DHS expects 

these changes will have only marginal 

impacts. 

(3) Familiarization Costs 

DHS expects this rule will 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 36,762 petitioners.256 We 

expect familiarization with the rule will 

be performed by a HR specialist, inhouse lawyer, or outsourced lawyer, 


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257Calculation for lawyers: 36,762 H–2 

petitioners × 44.43 percent represents by a lawyer 

= 9,687 (rounded) represented by a lawyer. 

Calculation for HR specialists: 36,762 H–2 

petitioners¥9,687 represented by a lawyer = 27,075 

represented by a HR specialist. 

258Marc Brysbaert, ‘‘How many words do we read 

per minute? A review and meta-analysis of reading 

rate,’’ (Apr. 12, 2019) 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. 

259Please note that the actual word count of the 

final rule may differ from the estimated length 

presented here. 

260Calculation: 56,000 words ÷ 238 words per 

minute = 235 (rounded) minutes. 235 minutes ÷ 60 

minutes per hour = 3.92 (rounded) hours. 

261Calculation: Total respective hourly 

compensation HR $50.94 × 3.92 hours = $199.68, 

In-house Lawyer $114.17 × 3.92 = $447.55, or 

Outsourced Lawyer $196.85 × 3.92 hours = $771.65. 

262Calculation, lower bound: $5,406,336 

familiarization costs, HR Representative + 

$4,335,417 familiarization costs, in-house lawyer = 

$9,741,753. 

Calculation, upper bound: $5,406,336 

familiarization costs, HR Representative + 

$7,474,974 familiarization costs, outsourced lawyer 

= $12,881,310. 

263Calculation, lower bound: $571,700 annual 

costs from marginal OCT to file Forms I–129 + 

$144,636 in costs due to the portability provision 

= $716,336 annual costs in years 1 through 10. 

Calculation, upper bound: $755,946 annual costs 

from marginal OCT to file Forms I–129 + $216,633 

in costs due to the portability provision = $972,579 

annual costs in years 1 through 10. 

264Calculation, lower bound: familiarization costs 

of $9,741,753 (year 1) + $716,336 annual costs due 

to the rule (year 1–10) = $16,905,113 over 10-year 

period of analysis. 

Calculation, upper bound: familiarization costs of 

$12,881,310 (year 1) + $972,579 annual costs due 

to the rule (year 1–10) = $22,607,100 over 10-year 

period of analysis. 

with the assumption that this will be 

done at the same rate as petitioners who 

file a Form G–28. An estimated 26.34 

percent will be performed by lawyers 

and the remaining 73.66 percent by an 

HR specialist. Therefore, we estimate 

that 27,075 HR specialists and 9,687 

lawyers will incur familiarization 

costs.257

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.258 This rule has 

approximately 56,000 words.259 Using a 

reading speed of 238 words per minute, 

DHS estimates it will take 

approximately 3.92 hours to read and 

become familiar with this rule.260 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 $771.65, respectively.261

The estimated total opportunity cost of 

time for 27,075 HR specialists to 

familiarize themselves with this rule is 

approximately $5,406,336. Additionally, 

the estimated total opportunity cost of 

time for 9,687 lawyers to familiarize 

themselves with this rule is 

approximately $4,335,417 if all are inhouse lawyers or $7,474,974 if all are 

outsourced lawyers. Thus, the estimated 

total opportunity costs of time for 

petitioners or their representatives to 

familiarize themselves with this rule 

ranges from $9,741,753 to $12,881,310, 

which we assume will be incurred in 

the first year of the period of analysis.262

e. Total Costs of the Rule 

In the previous sections, we presented 

the estimates of the impacts of the final 

rule. The quantifiable costs of this rule 

that will 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 

$716,336 to $972,579 depending on the 

filer.263 Over the 10-year period of 

analysis, DHS estimates the total costs 

of the final rule will be approximately 

$16,905,113 to $22,607,100 

(undiscounted).264 DHS estimates the 

annualized costs of this final rule will 

range from $1,825,104 to $2,438,679 at 

a 3-percent discount rate, with a 

midpoint of $2,131,891, and $2,012,604 

to $2,686,606 at a 7-percent discount 

rate, with a midpoint of $2,349,605. The 

midpoints of these ranges are presented 

as the primary estimates. 

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 is approximately 

$2,918,958 in additional earnings at the 

3-percent and 7-percent discount rate 

and related tax transfers are 

approximately $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 final 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 rule on small entities in 

the analysis that follows. 

Small entities primarily impacted by 

this final rule are those that will 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 final 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 in this rule. 


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265More thorough comment summaries and 

responses are contained in the rule’s preamble. 

266The 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. 

267The 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%20of%20Size%20Standards_

Effective%20Aug%2019%2C%202019.pdf. 

268USCIS Office of Policy and Strategy, C3, ELIS 

(Oct. 19, 2022). 

269Calculation: 368 + (368 × 10 percent) = 405. 

270Calculation: 13,244 entities × 96 percent = 

12,714 small entities (rounded). 

Final Regulatory Flexibility Analysis 

(FRFA) 

1. A Statement of the Need for, and 

Objectives 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. Through this rule, DHS seeks 

to strengthen worker protections and the 

integrity of the H–2 programs, provide 

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

workers, and improve program 

efficiency. 

2. A Statement of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Statement of 

the Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

DHS requested comments on the IRFA 

as part of the NPRM and received 

several specific to the IRFA. A brief 

summary of those comments and 

USCIS’ response are below.265

Comment: Various stakeholders 

expressed concern that affected small 

entities may lack resources needed to 

understand the rule’s changes and may 

unintentionally violate certain 

provisions, harming such entities in a 

disproportionate manner. 

Response: DHS acknowledged the 

comments but declines to implement 

any changes to the rule as a result of this 

comment. DHS emphasizes that all 

regulatory requirements and procedures 

will be explained and analyzed through 

multiple channels (the promulgation of 

this rule as evidenced by publication 

after consideration of comments 

received during the notice and comment 

period, relevant form instructions, and 

established communication materials 

such as the ‘‘Small Entity Compliance 

Guide’’). Additionally, DHS believes 

that marginal burdens being placed on 

small entities in order to ensure that 

they comply with program requirements 

and worker protections is justified by 

the benefits of increased program 

integrity discussed in the preamble. 

3. The Response of the Agency to Any 

Comments Filed by the Chief Counsel 

for Advocacy of the Small Business 

Administration in Response to the 

Proposed Rule 

The Chief Counsel for Advocacy of 

the Small Business Administration did 

not provide any comments on the IRFA. 

4. A Description and an Estimate of the 

Number of Small Entities to Which the 

Rule Will Apply or an Explanation of 

Why No Such Estimate Is Available 

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 final 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.266 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.267 Some entities were 

classified as ‘‘small’’ based on their 

annual revenue and some by number of 

employees. 

Using FY 2018 to FY 2022 data on H– 

2A petitions, DHS collected internal 

data for each filing organization.268 Each 

entity may make multiple filings. For 

instance, there were 90,658 H–2A 

petitions filed over the 5-fiscal-year 

period of analysis, but only 13,244 

unique entities that filed H–2A 

petitions. DHS developed 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 to increase the 

likelihood that our matches would meet 

or exceed the minimum required 

sample.269 Of the 411 entities sampled, 

387 instances resulted in entities 

defined as small (see Table 18). 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 FY 2018 through FY 

2022, DHS estimates that 96 percent or 

12,714 entities are considered small 

based on SBA size standards.270

BILLING CODE 9111–97–P 


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As previously stated, DHS classified 

each entity by its NAICS code to 

determine the size of each entity. Table 

19 shows a list of the top 10 NAICS 

industries that submit H–2A petitions. 


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271USCIS Office of Policy and Strategy, C3, ELIS 

(Oct. 19, 2022). 

272Calculation: 368 + (368 × 10 percent) = 405. 273Calculation: 8,506 entities × 95 percent = 

8,081 small entities (rounded). 

DHS used the same methodology 

developed for H–2A petitions for 

analyzing H–2B petitions. Using FY 

2018 to FY 2022 data on H–2B petitions, 

DHS collected internal data for each 

filing organization.271 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 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.272 Of the 

405 entities sampled, 384 instances 

resulted in entities defined as small (see 

Table 20). 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 8,081 entities are considered 

small based on SBA size standards.273


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As previously stated, DHS classified 

each entity by its NAICS code to 

determine the size of each business. 

Table 21 shows a list of the top 10 

NAICS industries that submit H–2B 

petitions. 


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274Calculation: 13,722 petitions received 

annually × 96 percent = 13,173 submitted by small 

entities (rounded). 

275Calculation: 6,867 annually selected petitions 

× 95 percent = 6,524 submitted by small entities 

(rounded). 

BILLING CODE 9111–97–C 

As stated above, petitioning 

employers may incur costs they would 

not have otherwise incurred if they are 

selected to participate in compliance 

reviews or inspections that are 

necessary for the approval of a petition, 

but fail or refuse to comply with such 

reviews or inspections. Because the 

random sample is drawn from the H–2 

petitioner population at-large, it is not 

practical to estimate small entities’ 

representation within this 

noncooperative subpopulation. Thus, 

the FRFA 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 changes to the 

interrupted stay calculation. DHS 

cannot determine how beneficiaries’ 

behavior would change as a result of 

this simplification to the calculation. 

Similarly, DHS does not expect 

flexibilities that allow beneficiaries to 

arrive in-country earlier would impose 

any compliance costs upon industries 

that choose to petition for or employ H– 

2 workers. 

Table 5 shows that an average 13,722 

H–2A petitions are received annually. 

Table 18 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, 13,500 274 petitions 

are submitted by small entities. 

Table 6 shows that USCIS receives an 

average of 6,867 H–2B petitions 

annually. Table 20 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 6,867 H– 

2B petitions received, 6,524 petitions 

are submitted by small entities.275

5. A Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule, 

Including an Estimate of the Classes of 

Small Entities That Will Be Subject to 

the Requirement and the Types of 

Professional Skills Necessary for 

Preparation of the Report or Record 

This final rule does not impose any 

new or additional direct ‘‘reporting’’ or 

‘‘recordkeeping’’ requirements on filers 

of H–2 petitions. The final 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 

provision 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 final 

rule, a petitioner that was selected for a 

site visit and would not have cooperated 

under the baseline would face (up to) a 

1.7-hour marginal time burden (on 

average) in order to comply with the 

provisions of the rule. Also, the 

provisions of this final rule regarding 

prohibited fees and labor law violations 

(see 8 CFR 214.2(h)(5)(xi)(A) through 

(C), 8 CFR 214.2(h)(6)(i)(B) through (D) 

regarding prohibited fees, and 8 CFR 

214.2(h)(10)(iv) regarding labor law 

violations and other violations) will 

subject petitioners, including small 

entities, to petition denials should they 

engage in activities that are prohibited 

by the final rule. 

Denial or revocation of petitions for 

noncooperation with existing site visit 

and verification requirements is 


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276Calculations: HR specialist calculation: $50.94 

× (0.23 hours) = $11.72 (rounded). 

In-house lawyer calculation: $114.17 × (0.23 

hours) = $26.26 (rounded). 

Outsourced lawyer calculation: $196.85 × (0.23) 

= $45.28 (rounded). 

277See BLS, ‘‘Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. city average, all 

items, by month,’’ https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202403.pdf (last 

visited Apr. 29, 2024). 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 

Continued 

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 final 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 final 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 0.23 hours. As previously stated 

in Section d(1) of the regulatory impact 

analysis, this final rule will add $11.72 

in costs if an HR specialist files, $26.26 

in costs if an in-house lawyer files, and 

$45.28 in costs if an outsourced lawyer 

files.276 USCIS acknowledges that the 

rule could impose other indirect costs 

on small entities including, but not 

limited to, the time required to comply 

with site visits and any actions required 

to remain compliant with the rule’s 

strengthened worker provisions. These 

indirect impacts are not explicitly 

included within the RFA because of 

uncertainty related to how many small 

entities would be affected and the 

degree to which affected entities would 

be impacted. The Regulatory Impact 

Analysis included above contains more 

in-depth analysis of those possible 

impacts and how they may impact small 

entities. Those entities not in 

compliance with the program would 

experience direct impacts as a result of 

this rule; DHS does not know how many 

entities are noncompliant. 

In all instances, DHS acknowledges 

that several aspects of the rule impose 

costs on affected entities. DHS has 

determined, however, that these costs 

are outweighed by the benefits of 

increased program integrity and 

compliance. DHS has considered 

opportunities to achieve the rule’s 

stated objectives while minimizing costs 

to small entities. 

6. A Description of the Steps the Agency 

Has Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes, Including a 

Statement of the Factual, Policy, and 

Legal Reasons for Selecting the 

Alternative Adopted in the Final Rule 

and Why Each of the Other Significant 

Alternatives to the Rule Considered by 

the Agency Was Rejected 

DHS considered alternatives to 

elements of the final 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, DHS acknowledges that, 

as discussed above, the vast majority 

(approximately 96 percent of H–2A 

petitioners and 95 percent 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. 

DHS 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’ 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. 

DHS 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 

more effective if, at some additional 

compliance costs to would-be 

noncooperative small entities, USCIS 

was able to reach a finding. For this 

reason, DHS 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 final 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. 2 

U.S.C. 1532(a). 

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).277


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of inflation-adjusted value: $100 million in 1995 

dollars × 1.92 = $192 million in 2022 dollars. 

278See Pub. L. 91–190, 42 U.S.C. 4321 through 

4347. 

279See DHS, Directive 023–01, Rev 01, 

‘‘Implementation of the National Environmental 

Policy Act,’’ (Oct. 31, 2014), and DHS Instruction 

Manual 023–01–001–01, Revision 01, 

‘‘Implementation of the National Environmental 

Policy Act (NEPA)’’ (Nov. 6, 2014), https://

www.dhs.gov/publication/directive-023-01-rev-01- 

and-instruction-manual-023-01-001-01-rev-01-andcatex. 280See Instruction Manual, section V.B.2 (a–c). 

The term ‘‘Federal mandate’’ means a 

Federal intergovernmental mandate or a 

Federal private sector mandate. See 2 

U.S.C. 1502(1), 658(6). 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). 2 U.S.C. 658(5). 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). 2 U.S.C. 658(7). 

This final 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. 2 U.S.C. 1502(1), 

658(6). 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. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this final does not meet the definitional 

criteria outlined in 5 U.S.C. 804(2), for 

purposes of Congressional review of 

agency rulemaking pursuant to the 

Congressional Review Act, Pub. L. 104– 

121, title II, sec. 251 (Mar. 29, 1996), 110 

Stat. 868 (codified at 5 U.S.C. 801–808). 

This rule will not result in an annual 

effect on the economy of $100 million 

or more. 

DHS will send this final rule to 

Congress and to the Comptroller General 

as required by 5 U.S.C. 801(a)(1). 

E. Executive Order 13132 (Federalism) 

This final 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. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

final rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988 (Civil Justice 

Reform) 

This final rule was drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform. This final 

rule was written to provide a clear legal 

standard for affected conduct and was 

carefully reviewed to eliminate drafting 

errors and ambiguities, so as to 

minimize litigation and undue burden 

on the Federal court system. DHS has 

determined that this final rule meets the 

applicable standards provided in 

section 3 of E.O. 12988. 

G. Executive Order 13175 

This final rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does 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. 

H. National Environmental Policy Act 

(NEPA) 

DHS and its components analyze 

proposed actions to determine whether 

the National Environmental Policy 

Act 278 (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) 279 establish the procedures 

DHS and its components use to comply 

with NEPA and the Council on 

Environmental Quality (CEQ) 

regulations for implementing NEPA. See 

40 CFR parts 1500 through 1508. 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 or Environmental Impact 

Statement. See 40 CFR 1501.4(a). 

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 

create the potential for a significant 

environmental effect.280

This final rule amends administrative 

and procedural requirements to 

modernize and improve H–2 programs. 

The final rule will improve program 

integrity while increasing flexibility, 

efficiency, and improving access to the 

H–2 programs. Specifically, DHS is 

clarifying which fees are prohibited to 

be collected under H–2 regulations, 

strengthening the prohibition on 

collecting or agreeing to collect such 

fees from H–2 workers, extending 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 

United States after their employment 

ends to prepare for departure or seek 

new employment. The final rule also 

includes a new, longer grace period for 

H–2 workers whose employment 

terminated early. DHS is also making 

portability permanent in the H–2 

programs, and allowing H–2 workers to 

take certain steps toward becoming 

permanent residents of the United 

States while still maintaining lawful 

nonimmigrant status. DHS is also 

codifying additional efficiencies in the 

H–2 programs by eliminating the H–2 

eligible countries lists and the H–2 

‘‘interrupted stay’’ provisions, and by 

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 environmental effect from 

current H–2 program rules, that will 

result from the final rule changes. DHS 

therefore finds that this final rule clearly 

fits within categorical exclusion A3 

established in the Department’s 

implementing procedures in Instruction 

Manual, Appendix A. 

The amendments contained in this 

final rule are stand-alone rule changes 

for USCIS H–2 programs and are not a 

part of any larger action. In accordance 

with its implementing procedures, DHS 

finds no extraordinary circumstances 


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281 In the NPRM, DHS estimated that the total 

estimated number of respondents for the 

information collection I–129 was 294,751 and the 

estimated hour burden per response was 2.34 hours. 

associated with this final rule 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. 

I. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Pub. L. 104–13, all agencies 

must submit to OMB, for review and 

approval, any reporting requirements 

inherent in a rule, unless they are 

exempt. 

In compliance with the PRA, DHS 

requested comments to the information 

collection associated with this 

rulemaking in the NPRM published in 

the Federal Register on September 20, 

2023. DHS would have addressed any 

comments received on information 

collection activities in Section IV. of 

this final rule. After the publication of 

the NPRM, DHS published the Fee 

Schedule Final Rule (‘‘Fee Rule’’) on 

January 31, 2024, and that rule went 

into effect on April 1, 2024. 89 FR 6194. 

Subsequently, DHS updated the 

information collection and the baseline 

estimated total number of respondents 

and the amount of time estimated for an 

average respondent to respond, to reflect 

the changes to the information 

collection approved in connection with 

the Fee Rule. As a result, the estimated 

total public burden in hours and cost 

associated with the information 

collection has changed since the 

publication of the NPRM.281

Overview of information collection: 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Petition for a Nonimmigrant Worker. 

(3) Agency form number, if any, and 

the applicable component of the 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 forprofit. 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 572,606 and the 

estimated hour burden per response is 

2.487 hours; the estimated total number 

of respondents for the information 

collection E–1/E–2 Classification 

Supplement to Form I–129 is 12,050 

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 12,945 

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 471,983 

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 398,936 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 40,358 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 28,434 

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 I129 is 54 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 6,782 and the estimated hour 

burden per response is 2.34 hours. 

(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 3,023,717 hours. This is a 

108,556 increase from the current 

estimate of 2,915,161 burden hours 

annually. The overall change in burden 

estimates reflects the 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 3-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 

$294,892,090. 

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. 

Accordingly, DHS is amending 

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); 


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■ 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 and republishing 

paragraph (h)(5)(vi); 

■ 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 and republishing 

paragraph (h)(6)(i); 

■ m. Revising paragraph (h)(6)(vii); 

■ n. Adding paragraph (h)(10)(iv); 

■ 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 

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. Up to 25 

named beneficiaries 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, and in the 

same location. If more than 25 named 

beneficiaries are being petitioned for, an 

additional petition is required. 

(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 


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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) Petitioner consent and 

notification requirements—(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 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–2A petition for H– 

2A workers performing services at the 

location or locations that are a subject 

of inspection or compliance review. 

(B) Agreements. The petitioner agrees 

to the following requirements: 

(1) To notify DHS, within 2 workdays, 

and beginning on a date and in a 

manner specified in a notice published 

in the Federal Register if: 

(i) An H–2A worker does not report 

for 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; 

(ii) The agricultural labor or services 

for which H–2A workers were hired is 

completed more than 30 days earlier 

than the employment end date stated on 

the H–2A petition; or 

(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. 

(2) To 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. To retain evidence of a 

different employment start date if it is 

changed from that on the petition by the 

employer and make it available for 

inspection by DHS officers for the 1-year 

period beginning on the newlyestablished employment start date. 

(3) To pay $10 in liquidated damages 

for each instance where the employer 

cannot demonstrate that it has complied 

with the notification requirements, 

unless, in the case of an untimely 

notification, the employer demonstrates 

with such notification that good cause 

existed for the untimely notification, 

and DHS, in its discretion, waives the 

liquidated damages amount. 

(C) Process. If DHS has determined 

that the petitioner has violated the 

notification requirements in paragraph 

(h)(5)(vi)(B)(1) of this section and has 

not received the required notification, 

the petitioner will be given written 

notice and 30 days to reply before being 

given written notice of the assessment of 

liquidated damages. 

(D) Failure to pay liquidated damages. 

If liquidated damages are not paid 

within 10 days of assessment, an H–2A 

petition may not be processed for that 

petitioner or any joint employer shown 

on the petition until such damages are 

paid. 

(vii) Validity. An approved H–2A 

petition is valid through the expiration 

of the relating certification for the 

purpose of allowing a beneficiary to 

seek issuance of an H–2A nonimmigrant 

visa, admission or an extension of stay 

for the purpose of engaging in the 

specific certified employment. 

(viii) * * * 

(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 for 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. 

* * * * * 


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(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 of 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 or any 

person acting on the beneficiary’s behalf 

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 term 

‘‘similar employment service’’ refers to 

any person or entity that recruits or 

solicits prospective beneficiaries of the 

H–2A petition. 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 their employees), 

employers or any joint employers, 

agents, attorneys, facilitators, recruiters, 

or similar employment services from 

receiving reimbursement from the 

beneficiary for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. This 

provision does not prohibit employers 

from allowing workers to initially incur 

fees or expenses that the employers are 

required to subsequently reimburse, 

where such arrangement is specifically 

permitted by, and performed in 

compliance with statute or regulations 

governing the H–2A program. 

(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, USCIS will deny or revoke 

the H–2A petition filed on or after 

January 17, 2025 on notice unless the 

petitioner demonstrates through clear 

and convincing evidence that: the 

petitioner made ongoing, good faith, 

reasonable efforts to prevent and learn 

of the prohibited fee collection or 

agreement by its employees throughout 

the recruitment, hiring, and 

employment process; extraordinary 

circumstances beyond the petitioner’s 

control resulted in its failure to prevent 

collection or entry into agreement for 

collection of prohibited fees; the 

petitioner took immediate remedial 

action as soon as it became aware of the 

payment of or agreement to pay the 

prohibited fee; and the petitioner fully 

reimbursed all affected beneficiaries or, 

only if such beneficiaries cannot be 

located or are deceased, it fully 

reimbursed the beneficiaries’ designees. 

(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, USCIS will deny or revoke 

the H–2A petition filed on or after 

January 17, 2025 on notice unless the 

petitioner demonstrates to USCIS 

through clear and convincing evidence 

that: the petitioner made ongoing, good 

faith, reasonable efforts to prevent and 

learn of the prohibited fee collection or 

agreement by such parties throughout 

the recruitment, hiring, and 

employment process; the petitioner took 

immediate remedial action as soon as it 

became aware of the payment of or 

agreement to pay the prohibited fee; and 

that all affected beneficiaries, or their 

designees only if such beneficiaries 

cannot be located or are deceased, 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. 

(3) For purposes of paragraph 

(h)(5)(xi) of this section, 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, 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. 

(B) One-year denial period 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–2B 

or H–2A petition on the basis of 

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

respectively, of this section, provided 

that the denied or revoked petition was 

filed on or after January 17, 2025. In 

addition, USCIS will deny any H–2A 

petition filed by the same petitioner or 

successor in interest within 1 year after 

withdrawal of an H–2A or H–2B 

petition filed on or after January 17, 

2025, 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 of 

approval of future H–2A petitions—(1) 

Additional 3-year denial period 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 only if such beneficiary cannot 

be located or is deceased, of the denied 

or revoked petition from whom a 

prohibited fee was collected. USCIS will 

deny H–2A petitions under this 

provision based on the denial or 

revocation decision(s) issued pursuant 

to paragraph (h)(5)(xi)(A) or (h)(6)(i)(B) 

of this section on a prior petition filed 

on or after January 17, 2025. 

(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; 


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(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) Petition—(A) H–2B nonagricultural 

temporary worker. An H–2B 

nonagricultural temporary worker is an 

alien who is coming temporarily to the 

United States to perform temporary 

services or labor without displacing 

qualified United States workers 

available to perform such services or 

labor and whose employment is not 

adversely affecting the wages and 

working conditions of United States 

workers. 

(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 or any person acting 

on the beneficiary’s behalf by a 

petitioner, a petitioner’s employee, 

agent, attorney, facilitator, recruiter, or 

similar employment service, or any 

employer (if different from the 

petitioner). The term ‘‘similar 

employment service’’ refers to any 

person or entity that recruits or solicits 

prospective beneficiaries of the H–2B 

petition. 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 their 

employees), employers, agents, 

attorneys, facilitators, recruiters, or 

similar employment services from 

receiving reimbursement from the 

beneficiary for costs that are the 

responsibility and primarily for the 

benefit of the worker, such as 

government-required passport fees. This 

provision does not prohibit employers 

from allowing workers to initially incur 

fees or expenses that the employers are 

required to subsequently reimburse, 

where such arrangement is specifically 

permitted by, and performed in 

compliance with, statute or regulations 

governing the H–2B program. 

(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, 

USCIS will deny or revoke the H–2B 

petition filed on or after January 17, 

2025 on notice unless the petitioner 

demonstrates through clear and 

convincing evidence that: the petitioner 

made ongoing, good faith, reasonable 

efforts to prevent and learn of the 

prohibited fee collection or agreement 

throughout the recruitment, hiring, and 

employment process; extraordinary 

circumstances beyond the petitioner’s 

control resulted in its failure to prevent 

collection or entry into agreement for 

collection of prohibited fees; the 

petitioner took immediate remedial 

action as soon as it became aware of the 

payment of or agreement to pay the 

prohibited fee; and the petitioner fully 

reimbursed all affected beneficiaries or, 

only if such beneficiaries cannot be 

located or are deceased, it fully 

reimbursed their designees. 

(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, USCIS will deny or 

revoke the H–2B petition filed on or 

after January 17, 2025 on notice unless 

the petitioner demonstrates to USCIS 

through clear and convincing evidence 

that: the petitioner made ongoing, good 

faith, reasonable efforts to prevent and 

learn of the prohibited fee(s) collection 

or agreement by such parties throughout 

the recruitment, hiring, and 

employment process; the petitioner took 

immediate remedial action as soon as it 

became aware of the payment of the 

prohibited fee or agreement; and all 

affected beneficiaries, or their designees 

only if such beneficiaries cannot be 

located or are deceased, 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. 

(3) For purposes of paragraph (h)(6)(i) 

of this section, 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. 

(C) One-year denial period 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, provided 

that the denied or revoked petition was 

filed on or after January 17, 2025. 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 filed on or after January 17, 

2025, 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 of 

approval of future H–2B petitions—(1) 

Additional 3-year denial period 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 only if such beneficiary cannot 

be located or is deceased, of the denied 

or revoked petition from whom a 

prohibited fee was collected. USCIS will 

deny H–2B petitions under this 

provision based on the denial or 

revocation decision(s) issued pursuant 

to paragraph (h)(6)(i)(B) or (h)(5)(xi)(A) 

of this section on a prior petition filed 

on or after January 17, 2025. 

(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 

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; 


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(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. 

(E) [Reserved] 

(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) * * * 

(iv) 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 

filed on or after January 17, 2025 and 

during the debarment period, or if the 

debarment occurs during the pendency 

of the petition filed on or after January 

17, 2025, and the final administrative 

determination debarring the petitioner 

is made on or after January 17, 2025; or 

(2) A final USCIS denial or revocation 

decision issued during the pendency of 

the petition or within 3 years prior to 

filing the petition that includes a 

finding of fraud or willful 

misrepresentation of a material fact with 

respect to a previously filed H–2A or H– 

2B petition. This provision will only 

apply if the final denial or revocation 

decision was issued on a petition filed 

on or after January 17, 2025; or 


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(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 if the final determination of 

violation(s) under section 274(a) of the 

Act is made on or after January 17, 2025 

and the petition is filed on or after 

January 17, 2025. 

(B) Except as provided in paragraph 

(h)(10)(iv)(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 on or after 

January 17, 2025, 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, regardless of whether the 

action(s) or underlying violation(s) 

occurred before, on, or after January 17, 

2025. USCIS may deny such a petition 

if it determines that the petitioner or 

successor has not established its 

intention and/or ability to comply with 

H–2A or H–2B program requirements. 

The violation(s) underlying the 

following actions that may call into 

question a petitioner’s or successor’s 

intention and/or ability to comply 

include: 

(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 final 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)(iv)(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)(iv)(B) of this section calls into 

question the intention and/or ability 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)(iv) 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)(iv)(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)(iv)(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)(iv)(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. 

(F) If USCIS has determined in the 

course of a prior adjudication that a 

petitioner (or the preceding entity, if the 

petitioner is a successor in interest) has 

established its intention and ability to 

comply with H–2A or H–2B program 

requirements notwithstanding relevant 

violation determination(s) under 

paragraph (h)(10)(iv)(B) of this section, 

USCIS will not seek to deny a 

subsequent petition under paragraph 

(h)(10)(iv)(B) based on the same 

previous violation determination(s) 

unless USCIS becomes aware of a new 

material fact or finds that its previous 

determination was based on a material 

error of law. 

(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. 


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(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. 

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 an immediate 

relative or preference petition for or by 

an alien or a diversity visa petition with 

the Department of State, 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 an 

immediate relative petition, preference 

petition, or diversity visa 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 8 CFR 

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 8 CFR 

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

will determine the reasonableness of 

any claim from the perspective of a 

reasonable person in the H–2A or H–2B 

worker’s position. 

* * * * * 

(30) Severability. The Department 

intends that should any of the revisions 

effective on January 17, 2025, to 

provisions in paragraphs (h)(2), (5), (6), 

(10), (11), (13), (16) and (20) of this 

section or to the provision in 8 CFR 

274a.12(b)(21) 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, unless any such provision is held 

to be wholly invalid and unenforceable, 

in which event the provision(s) should 

be severed from the remainder of the 

provisions and the holding should not 

affect the other provisions or the 

application of those other provisions to 

persons not similarly situated or to 

dissimilar circumstances. 

* * * * * 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 3. The authority citation for part 274a 

is revised 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) * * * 

(21) A nonimmigrant alien within the 

class of aliens described in 8 CFR 

214.2(h)(1)(ii)(C) or 8 CFR 


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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. 2024–29353 Filed 12–17–24; 8:45 am] 

BILLING CODE 9111–97–P 


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