NPRM Publication

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

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 214 and 274a
[CIS No. 2740–23; DHS Docket No. USCIS–
2023–0012]
RIN 1615–AC76

Modernizing H–2 Program
Requirements, Oversight, and Worker
Protections
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:

The Department of Homeland
Security (DHS) proposes to amend its
regulations affecting temporary
agricultural (H–2A) and temporary
nonagricultural (H–2B) nonimmigrant
workers (H–2 programs) and their
employers. This notice of proposed
rulemaking is intended to better ensure
the integrity of the H–2 programs and
enhance protections for workers.
DATES: Written comments must be
submitted on or before November 20,
2023. The electronic Federal Docket
Management System will accept
comments prior to midnight eastern
time at the end of that day.
ADDRESSES: You may submit comments
on the entirety of this proposed
rulemaking package, identified by DHS
Docket No. USCIS–2023–0012 through
the Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
website instructions for submitting
comments.
Comments submitted in a manner
other than the one listed above,
including emails or letters sent to DHS
or USCIS officials, will not be
considered comments on the proposed
rule and may not receive a response
from DHS. Please note that DHS and
USCIS cannot accept any comments that
are hand-delivered or couriered. In
addition, USCIS cannot accept
comments contained on any form of
digital media storage devices, such as
CDs/DVDs and USB drives. USCIS is
also not accepting mailed comments at
this time. If you cannot submit your
comment by using http://
www.regulations.gov, please contact
Samantha Deshommes, Chief,
Regulatory Coordination Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, by
telephone at (240) 721–3000 for
alternate instructions.
FOR FURTHER INFORMATION CONTACT:
Charles L. Nimick, Chief, Business and
Foreign Workers Division, Office of
Policy and Strategy, U.S. Citizenship

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SUMMARY:

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and Immigration Services, Department
of Homeland Security, 5900 Capital
Gateway Drive, MD, Camp Springs,
20746; telephone (240) 721–3000. (This
is not a toll-free number.) Individuals
with hearing or speech impairments
may access the telephone numbers
above via TTY by calling the toll-free
Federal Information Relay Service at 1–
877–889–5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Major Provisions of the
Regulatory Action
C. Summary of Costs and Benefits
III. Background
A. Legal Authority
B. Description of the H–2 Nonimmigrant
Classifications
C. H–2 2008 Final Rules
D. Importance of the H–2 Programs and the
Need for Reforms
IV. Discussion of Proposed Rule
A. Program Integrity and Worker
Protections
B. Worker Flexibilities
C. Improving H–2 Program Efficiencies and
Reducing Barriers to Legal Migration
D. Severability
E. Request for Preliminary Public Input
Related to Future Actions/Proposals
V. Statutory and Regulatory Requirements
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism)
E. Executive Order 12988 (Civil Justice
Reform)
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
G. National Environmental Policy Act
H. Paperwork Reduction Act

Table of Abbreviations
BLS—Bureau of Labor Statistics
CBP—U.S. Customs and Border Protection
CFR—Code of Federal Regulations
CPI–U—Consumer Price Index for All Urban
Consumers
DHS—Department of Homeland Security
DOJ—Department of Justice
DOL—Department of Labor
DOS—Department of State
DOT—Department of Transportation
ETA—Employment and Training
Administration
FDNS—Fraud Detection and National
Security Directorate
FY—Fiscal year
GAO—Government Accountability Office
GDOL—Guam Department of Labor
H–2A—Temporary Agricultural Workers
Nonimmigrant Classification
H–2B—Temporary Nonagricultural Workers
Nonimmigrant Classification
ICE—U.S. Immigration and Customs
Enforcement

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INA—Immigration and Nationality Act
INS—Immigration and Naturalization Service
LCA—Labor condition application
MOU—Memorandum of understanding
NAICS—North American Industry
Classification System
NEPA—National Environmental Policy Act
NOID—Notice of intent to deny
NPRM—Notice of proposed rulemaking
OFLC—Office of Foreign Labor Certification
OIRA—Office of Information and Regulatory
Affairs
OMB—Office of Management and Budget
OSHA—Occupational Safety and Health
Administration
PRA—Paperwork Reduction Act
RFA—Regulatory Flexibility Act of 1980
RFE—Request for evidence
SBA—Small Business Administration
SSA—Social Security Administration
TFR—Temporary final rule
TLC—Temporary labor certification
UMRA—Unfunded Mandates Reform Act of
1995
USCIS—U.S. Citizenship and Immigration
Services
USAID—U.S. Agency for International
Development
WHD—Wage and Hour Division

I. Public Participation
DHS invites all interested parties to
participate in this rulemaking by
submitting written data, views,
comments, and arguments on all aspects
of this proposed rule. DHS also invites
comments that relate to the economic,
environmental, or federalism effects that
might result from this proposed rule.
Comments must be submitted in
English, or an English translation must
be provided. Comments that will
provide the most assistance to USCIS in
implementing these changes will
reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
support such recommended change.
Comments submitted in a manner other
than the one listed above, including
emails or letters sent to DHS or USCIS
officials, will not be considered
comments on the proposed rule and
may not receive a response from DHS.
Instructions: If you submit a
comment, you must include the agency
name (U.S. Citizenship and Immigration
Services) and the DHS Docket No.
USCIS–2023–0012 for this rulemaking.
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal eRulemaking
Portal at http://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to consider
limiting the amount of personal
information that you provide in any
voluntary public comment submission

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you make to DHS. DHS may withhold
information provided in comments from
public viewing that it determines may
impact the privacy of an individual or
is offensive. For additional information,
please read the Privacy and Security
Notice available at http://
www.regulations.gov.
Docket: For access to the docket and
to read background documents or
comments received, go to http://
www.regulations.gov, referencing DHS
Docket No. USCIS–2023–0012. You may
also sign up for email alerts on the
online docket to be notified when
comments are posted, or a final rule is
published.
II. Executive Summary

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A. Purpose of the Regulatory Action
The purpose of this rulemaking is to
modernize and improve the DHS
regulations relating to the H–2A
temporary agricultural worker program
and the H–2B temporary nonagricultural
worker program (H–2 programs).
Through this proposed rule, DHS seeks
to strengthen worker protections and the
integrity of the H–2 programs, provide
greater flexibility for H–2A and H–2B
workers, and improve program
efficiency.
B. Summary of Major Provisions of the
Regulatory Action
DHS proposes to include the
following major changes:
• Program Integrity and Worker
Protections
To improve the integrity of the H–2
programs, DHS is proposing significant
revisions to the provisions relating to
prohibited fees to strengthen the
existing prohibition on, and
consequences for, charging certain fees
to H–2A and H–2B workers, including
new bars to approval for some H–2
petitions. Further, as a significant new
program integrity measure and a
deterrent to petitioners that have been
found to have committed labor law
violations or abused the H–2 programs,
DHS is proposing to institute certain
mandatory and discretionary bars to
approval of an H–2A or H–2B petition.
In addition, to protect workers who
report their employers for program
violations, DHS is proposing to provide
H–2A and H–2B workers with
‘‘whistleblower protection’’ comparable
to the protection that is currently
offered to H–1B workers. Additionally,
DHS proposes to clarify requirements
for petitioners and employers to consent
to, and fully comply with, USCIS
compliance reviews and inspections.
DHS also proposes to clarify USCIS’s
authority to deny or revoke a petition if

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USCIS is unable to verify information
related to the petition, including but not
limited to where such inability is due to
lack of cooperation from a petitioner or
an employer during a site visit or other
compliance review.
• Worker Flexibilities
DHS is also proposing changes meant
to provide greater flexibility to H–2A
and H–2B workers. These changes
include adjustments to the existing
admission periods before and after the
validity dates of an approved petition
(grace periods) so that H–2 workers
would receive up to 10 days prior to the
petition’s validity period and up to 30
days following the expiration of the
petition, as well as an extension of the
existing 30-day grace period following
revocation of an approved petition
during which an H–2 worker may seek
new qualifying employment or prepare
for departure from the United States
without violating their nonimmigrant
status or accruing unlawful presence for
up to 60 days. In addition, to account
for other situations in which a worker
may unexpectedly need to stop working
or wish to seek new employment, DHS
is proposing to provide a new grace
period for up to 60 days during which
an H–2 worker can cease working for
their petitioner while maintaining H–2
status. Further, in a change meant to
work in conjunction with the new grace
period provisions, DHS proposes to
permanently provide portability—the
ability to begin new employment upon
the proper filing of an extension of stay
petition rather than only upon its
approval—to H–2A and H–2B workers.
Additionally, in the case of petition
revocations, DHS proposes to clarify
that H–2A employers have the same
responsibility that H–2B employers
currently have for reasonable costs of
return transportation for the beneficiary.
DHS also proposes to clarify that H–2
workers will not be considered to have
failed to maintain their H–2 status
solely on the basis of taking certain
steps toward becoming lawful
permanent residents of the United
States. Finally, DHS proposes to remove
the phrase ‘‘abscondment,’’ ‘‘abscond,’’
and its other variations to emphasize
that the mere fact of leaving
employment, standing alone, does not
constitute a basis for assuming
wrongdoing by the worker.
• Improving H–2 Program Efficiencies
and Reducing Barriers to Legal
Migration
DHS proposes two changes to
improve the efficiency of the H–2
programs and to reduce barriers to use
of those two programs. First, DHS
proposes to remove the requirement that

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USCIS may generally only approve
petitions for H–2 nonimmigrant status
for nationals of countries that the
Secretary of Homeland Security, with
the concurrence of the Secretary of
State, has designated as eligible to
participate in the H–2 programs.
Second, DHS proposes to simplify the
regulatory provisions regarding the
effect of a departure from the United
States on the 3-year maximum period of
stay by providing a uniform standard for
resetting the 3-year clock following such
a departure.
C. Summary of Costs and Benefits
This proposed rule would directly
impose costs on petitioners in the form
of increased opportunity costs of time to
complete and file H–2 petitions and
time spent to familiarize themselves
with the rule. Other difficult to quantify
costs may also be experienced by certain
petitioners if selected for a compliance
review, petitioners that face stricter
consequences regarding prohibited fees,
or for those that opt to transport and
house H–2A beneficiaries earlier than
they would have otherwise based on the
proposed extension of the preemployment grace period from 7 to 10
days. The Federal Government may also
face some increased opportunity costs of
time for adjudicators to review
information regarding debarment and
other past violation determinations
more closely, issue requests for
evidence (RFE) or notices of intent to
deny (NOID), and additional costs for
related computer system updates.
The benefits of this proposed rule
would be diverse, though most are
difficult to quantify. The proposed rule
would extend portability to H–2
workers lawfully present in the United
States regardless of a porting petitioner’s
E-Verify standing, affording these
workers agency of choice at an earlier
moment in time, which is consistent
with other portability regulations and
more similar to other workers in the
labor force. Employers and beneficiaries
would also benefit from the extended
grace periods and eliminating the
interrupted stay provisions and instead
reducing the period of absence out of
the country to reset their 3-year
maximum period of stay. The Federal
Government would also realize benefits,
mainly through bolstering existing
program integrity activities, possible
increased compliance with program
requirements, and providing a greater
ability for USCIS to deny or revoke
petitions for issues related to program
compliance.
Table 1 provides a more detailed
summary of the proposed provisions
and their impacts. The impact of the

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costs and benefits described herein are
quantified (and monetized) wherever

possible given all available information.
Where there are insufficient data to

quantify a given impact, we provide a
qualitative description of the impact.

TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS
Provision

Purpose of
proposed provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(5)(vi)(A) and 8 CFR 214.2(h)(6)(i)(F) .....

DHS is proposing to add
stronger language requiring petitioners or employers to both consent to
and fully comply with any
USCIS audit, investigation, or other program integrity activity and clarify
USCIS’s authority to
deny/revoke a petition if
unable to verify information related to the petition, including due to lack
of cooperation from the
petitioner or employer
during a site visit or other
compliance review.
DHS is proposing to provide H–2A and H–2B
workers with ‘‘whistleblower protection’’ comparable to the protection
currently offered to H–1B
workers.

Cost:
• Cooperation during a site visit or compliance review
may result in opportunity costs of time for petitioners
to provide information to USCIS during these compliance reviews and inspections. On average, USCIS
site visits last 1.7 hours, which is a reasonable estimate for the marginal time that a petitioner may need
to spend in order to comply with a site visit.
• Employers that do not cooperate would face denial
or revocation of their petition(s), which could result in
costs to those businesses.
Benefit:
• USCIS would have clearer authority to deny or revoke a petition if unable to verify information related
to the petition. The effectiveness of existing USCIS
program integrity activities would be improved
through increased cooperation from employers.
Cost:
• Employers may face increased RFEs, denials, or
other actions on their H–2 petitions, or other program
integrity mechanisms available under this rule or existing authorities, as a result of H–2 workers’ cooperation in program integrity activity due to whistleblower protections. Such actions may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers.
Benefit:
• Such protections may afford workers the ability to expose issues that harm workers or are not in line with
the intent of the H–2 programs while also offering
protection to such workers (therefore potentially improving overall working conditions), but the extent to
which this would occur is unknown.
Cost:
• Enhanced consequences for petitioners who charge
prohibited fees could lead to increased financial
losses and extended ineligibility from participating in
H–2 programs.
Benefit:
• Possibly increase compliance with provisions regarding prohibited fees and thus reduce the occurrence
and burden of prohibited fees on H–2 beneficiaries.

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

8 CFR 214.2(h)(5)(xi)(A), 8 CFR 214.2(h)(5)(xi)(C), 8
CFR 214.2(h)(6)(i)(B), 8 CFR 214.2(h)(6)(i)(C), and 8
CFR 214.2(h)(6)(i)(D).

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

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DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen
the existing prohibition
on, and consequences
for, charging certain fees
to H–2A and H–2B workers, including new bars
on approval for some H–
2 petitions.
DHS is proposing to institute certain mandatory
and discretionary bars to
approval of an H–2A or
H–2B petition.

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Costs:
• USCIS adjudicators may require additional time associated with reviewing information regarding debarment and other past violation determinations more
closely, issuing RFEs or NOIDs, and conducting the
discretionary analysis for relevant petitions.
• The expansion of violation determinations that could
be considered during adjudication, as well as the way
debarments and other violation determinations would
be tracked, would require some computer system updates resulting in costs to USCIS.
Benefit:
• Possibly increase compliance with H–2 program requirements, thereby increasing protection of H–2
workers.

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TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(2)(ii) and (iii), 8 CFR 214.2(h)(5)(i)(F),
and 8 CFR 214.2(h)(6)(i)(E).

Eliminate the lists of countries eligible to participate
in the H–2 programs.

8 CFR 214.2(h)(5)(viii)(B) and 8 CFR 214.2(h)(6)(vii)(A)
8 CFR 214.2(h)(11)(iv) and 8 CFR 214.2(h)(13)(i)(C) .....

Change grace periods such
that they will be the same
for both H–2A and H–2B
Programs.
Create a 60-day grace period following any H–2A
or H–2B revocation or
cessation of employment
during which the worker
will not be considered to
have failed to maintain
nonimmigrant status and
will not accrue any unlawful presence solely on
the basis of the revocation or cessation.
Clarifies responsibility of H–
2A employers for reasonable costs of return transportation for beneficiaries
following a petition revocation.

Costs:
• None expected.
Benefit:
• Employers and the Federal Government will benefit
from the simplification of Form I–129 adjudications by
eliminating the ‘‘national interest’’ portion of the adjudication that USCIS is currently required to conduct
for beneficiaries from countries that are not on the
lists.
• Remove petitioner burden to provide evidence for
beneficiaries from countries not on the lists.
• Petitioners may have increased access to workers
potentially available to the H–2 programs.
• Free up agency resources devoted to developing and
publishing the eligible country lists in the Federal
Register every year.
Costs: 1
• H–2A employers may face additional costs such as
for housing, but employers likely would weigh those
costs against the benefit of providing employees with
additional time to prepare for the start of work.
Benefit:
• Provides employees (and their employers) with extra
time to prepare for the start of work. Provides clarity
for adjudicators and makes timeframes consistent for
beneficiaries and petitioners.
• Provides workers additional time to seek other employment or depart from the United States if their employer faces a revocation or if they cease employment.

Provision

8 CFR 214.2(h)(11)(iv) .....................................................

8 CFR 214.2(h)(16)(i) .......................................................

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8 CFR 214.2(h)(5)(viii)(C), 8 CFR 214.2(h)(6)(vii), and 8
CFR 214.2(h)(13)(i)(B).

Clarifies that H–2 workers
may take steps toward
becoming a lawful permanent resident of the
United States while still
maintaining lawful nonimmigrant status.
Eliminates the ‘‘interrupted
stay’’ calculation and instead reduces the period
of absence to reset an individual’s 3-year period of
stay.

Costs:
• None expected since H–2A petitioning employers are
already generally liable for the return transportation
costs of H–2A workers.
Benefit:
• Beneficiaries would benefit in the event that clarified
employer responsibility decreased the incidence of
workers having to pay their own return travel costs in
the event of a petition revocation.
Costs:
• None expected.
Benefit:
• DHS expects this could enable some H–2 workers
who have otherwise been dissuaded to pursue lawful
permanent residence with the ability to do so without
concern over becoming ineligible for H–2 status.
Costs:
• Workers in active H–2 status who would consider
making trips abroad for periods of less than 60 days
but more than 45 days, may be disincentivized to
make such trip.
Benefit:
• Simplifies and reduces the burden to calculate beneficiary absences for petitioners, beneficiaries, and adjudicators.
• May reduce the number of RFEs related to 3-year
periods of stay.
Transfers:
• As a result of a small number of H–2 workers at the
3-year maximum stay responding to the proposed
shorter absence requirement by working 30 additional days, DHS estimates upper bound annual
transfer payment of $2,918,958 in additional earnings
from consumers to H–2 workers and $337,122 in tax
transfers from these workers and their employers to
tax programs (Medicare and Social Security).

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TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(2)(i)(D), 8 CFR 214.2(h)(2)(i)(I), and 8
CFR 274a.12(b)(21).

Make portability permanent
for H–2B workers and remove the requirement
that H–2A workers can
only port to an E-Verify
employer.

8 CFR 214.2(h)(2)(i)(I)(3) .................................................

DHS proposes to clarify
that a beneficiary of an
H–2 portability petition is
considered to have been
in a period of authorized
stay during the pendency
of the petition and that
the petitioner must still
abide by all H–2 program
requirements.

Costs:
• The total estimated annual opportunity cost of time to
file Form I–129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form I–129 and Form G–
28 will range from approximately $90,554 if filed by
in-house lawyers to approximately $156,132 if filed
by outsourced lawyers.
• The total estimated annual costs associated with filing Form I–907 if it is filed with Form I–129 is $4,728
if filed by human resource specialists. The total estimated annual costs associated with filing Form I–907
would range from approximately $9,006 if filed by an
in-house lawyer to approximately $15,527 if filed by
an outsourced lawyer.
• The total estimated annual costs associated with the
portability provision ranges from $133,684 to
$198,851, depending on the filer.
• DHS may incur some additional adjudication costs as
more petitioners will likely file Form I–129. However,
these additional costs to USCIS are expected to be
covered by the fees paid for filing the form.
Benefit:
• Enabling H–2 workers present in the United States to
port to a new petitioning employer affords these
workers agency of choice at an earlier moment in
time consistent with other portability regulations and
more similar to other workers in the labor force.
• Replacing the E-Verify requirement for employers
wishing to hire porting H–2A workers with strengthened site visit authority and other provisions that
maintain program integrity would aid porting beneficiaries in finding petitioners without first needing to
confirm if that employer is in good standing in EVerify. Although this change impacts an unknown
portion of new petitions for porting H–2A beneficiaries, no reductions in E-Verify enrollment are anticipated.
• An H–2 worker with an employer that is not complying with H–2 program requirements would have
additional flexibility in porting to another employer’s
certified position.
Transfers:
• Annual undiscounted transfers of $636,760 from filing
fees for Form I–129 combined with Form I–907 from
petitioners to USCIS.
Benefits:
• Provides H–2 workers with requisite protections and
benefits as codified in the rule in the event that a
porting provision is withdrawn or denied.
Costs:
• None expected.

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Provision

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65045

TABLE 1—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

Provision

Expected impact of the
proposed provision

Cumulative Impacts of Proposed Regulatory Changes
DHS proposes to make changes to the Form I–129, to effectuate the proposed regulatory changes.

Costs:
• The time burden to complete and file Form I–129, H
Classification Supplement, would increase by 0.3
hours as a result of the proposed changes. The estimated opportunity cost of time for each petition by
type of filer would be $15.28 for an HR specialist,
$34.25 for an in-house lawyer, and $59.06 for an
outsourced lawyer. The estimated total annual opportunity costs of time for petitioners or their representatives to file H–2 petitions under this proposed rule
ranges from $745,330 to $985,540.

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

Costs:
• Petitioners or their representatives would need to
read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715 to
$12,877,651, incurred during the first year of the
analysis.

Source: USCIS analysis.

III. Background

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A. Legal Authority
The Immigration and Nationality Act
(INA or the Act) section
101(a)(15)(H)(ii)(a) and (b), 8 U.S.C.
1101(a)(15)(H)(ii)(a) and (b), establishes
the H–2A and H–2B nonimmigrant visa
classifications for noncitizens 2 who are
coming to the United States temporarily
to perform agricultural labor or services
or to perform nonagricultural services or
labor, respectively.
The Secretary’s authority for this
proposed rule can be found in various
provisions of the immigration laws. INA
sec. 103(a), as amended, 8 U.S.C.
1103(a), provides the Secretary general
authority to administer and enforce the
immigration laws and to issue
regulations necessary to carry out that
authority. Section 402 of the Homeland
Security Act of 2002 (HSA), Public Law
107–296, 116 Stat. 2135, 6 U.S.C. 202,
charges the Secretary with
‘‘[e]stablishing and administering rules
. . . governing the granting of visas or
other forms of permission . . . to enter
the United States’’ and ‘‘[e]stablishing
1 USCIS does not expect any additional costs to
H–2B employers as, generally, they do not have to
provide housing for workers. Employers are
required to provide housing at no cost to H–2A
workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4).
There is no similar statutory requirement for
employers to provide housing to H–2B workers,
although there is a regulatory requirement for an H–
2B employer to provide housing when it is
primarily for the benefit or convenience of the
employer. See 20 CFR 655.20(b), (c); 29 CFR
531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015).
2 For 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).

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national immigration enforcement
policies and priorities.’’ See also HSA
sec. 428, 6 U.S.C. 236. The HSA also
provides that a primary mission of DHS
is to ‘‘ensure that the overall economic
security of the United States is not
diminished by efforts, activities, and
programs aimed at securing the
homeland.’’ HSA sec. 101(b)(1)(F), 6
U.S.C. 111(b)(1)(F).
With respect to nonimmigrants in
particular, the INA provides that ‘‘[t]he
admission to the United States of any
alien as a nonimmigrant shall be for
such time and under such conditions as
the [Secretary] may by regulations
prescribe.’’ 3 INA sec. 214(a)(1), 8 U.S.C.
1184(a)(1). See INA secs. 274A(a)(1) and
(h)(3), 8 U.S.C. 1324a(a)(1) and (h)(3)
(prohibiting employment of noncitizens
who are not authorized for
employment). And the HSA transferred
to USCIS the authority to adjudicate
petitions for H–2 nonimmigrant status,
establish policies for performing that
function, and set national immigration
services policies and priorities. See HSA
secs. 451(a)(3), (b); 6 U.S.C. 271(a)(3),
(b). In addition, under INA sec. 214(b),
8 U.S.C. 1184(b), every noncitizen, with
the exception of noncitizens seeking L,
V, or H–1B nonimmigrant status, is
presumed to be an immigrant unless the
noncitizen establishes the noncitizen’s
3 Although several provisions of the INA
discussed in this NPRM refer exclusively to the
‘‘Attorney General,’’ such provisions are now to be
read as referring to the Secretary of Homeland
Security by operation of the HSA. See 6 U.S.C.
202(3), 251, 271(b), 542 note, 557; 8 U.S.C.
1103(a)(1), (g), 1551 note; Nielsen v. Preap, 139 S.
Ct. 954, 959 n.2 (2019).

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entitlement to a nonimmigrant status.4
INA sec. 214(c)(1), 8 U.S.C. 1184(c)(1),
establishes the nonimmigrant petition
process as a prerequisite for obtaining
(H), (L), (O), or (P)(i) nonimmigrant
status (except for those in the H–1B1
classification). This statutory provision
provides the Secretary of Homeland
Security with exclusive authority to
approve or deny H–2 nonimmigrant visa
petitions after consultation with the
appropriate agencies of the Government.
It also authorizes the Secretary to
prescribe the form and identify
information necessary for the petition.
With respect to the H–2A classification,
this section defines the term
‘‘appropriate agencies of [the]
Government’’ to include the
Departments of Labor and Agriculture,
and cross-references INA sec. 218, 8
U.S.C. 1188, with respect to the H–2A
classification.
INA sec. 214(c)(5)(A), 8 U.S.C.
1184(c)(5)(A), requires the employer to
provide or pay for the reasonable cost of
return transportation if an H–2B worker
was dismissed early from employment,
i.e., before the end of the authorized
period of admission.
4 This section also precludes officers or
employees of any foreign governments or of any
international organizations entitled to enjoy
privileges, exemptions, and immunities under the
International Organizations Immunities Act [22
U.S.C. 288 et seq.], or noncitizens who are
attendants, servants, employees, or member of the
immediate family of such noncitizens from
applying for or receiving nonimmigrant visas or
entering the United States as immigrants unless
they execute a written waiver in the same form and
substance as is prescribed by section 1257(b) of this
title. This portion of the provision, however, is not
relevant to this NPRM.

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INA sec. 214(c)(14), 8 U.S.C.
1184(c)(14), provides the Secretary of
Homeland Security with the authority to
impose administrative remedies
(including civil monetary penalties),
and deny petitions for a period of at
least 1 but not more than 5 years, if,
after notice and an opportunity for a
hearing, the Secretary finds that an
employer substantially failed to meet
any of the conditions of the H–2B
petition or engaged in willful
misrepresentation of a material fact in
the H–2B petition. See INA sec.
214(c)(14)(A)(i) and (ii), 8 U.S.C.
1184(c)(14)(A)(i) and (ii). It also
authorizes the Secretary to delegate to
the Secretary of Labor the authority to
determine violations and impose
administrative remedies, including civil
monetary penalties. See INA sec.
214(c)(14)(B), 8 U.S.C. 1184(c)(14)(B).5
The Secretary of Homeland Security
may designate officers or employees to
take and consider evidence concerning
any matter that is material or relevant to
the enforcement of the INA. See INA
secs. 235(d)(3), 287(a)(1), (b); 8 U.S.C.
1225(d)(3), 1357(a)(1), (b).

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B. Description of the H–2 Nonimmigrant
Classifications
1. H–2A Temporary Agricultural
Workers
The INA establishes the H–2A
nonimmigrant classification for
temporary agricultural workers,
described as a noncitizen ‘‘having a
residence in a foreign country which he
[sic] has no intention of abandoning
who is coming temporarily to the
United States to perform agricultural
labor or services.’’ INA sec.
101(a)(15)(H)(ii)(a), 8 U.S.C.
1101(a)(15)(H)(ii)(a). As noted in the
statute, not only must the noncitizen be
coming ‘‘temporarily’’ to the United
States, but the agricultural labor or
services that the noncitizen is
performing must also be ‘‘of a temporary
or seasonal nature.’’ INA sec.
101(a)(15)(H)(ii)(a).
Current DHS regulations further
define an employer’s temporary need as
employment that is of a temporary
nature where the employer’s need to fill
the position with a temporary worker
will, except in extraordinary
circumstances, last no longer than 1
year. See 8 CFR 214.2(h)(5)(iv)(A). An
employer’s seasonal need is defined as
employment that is tied to a certain time
5 In 2009, the Secretary delegated to the Secretary
of Labor certain authorities under INA sec.
214(c)(14)(A)(i). See ‘‘Delegation of Authority to the
Department of Labor under Section 214(c)(14)(A) of
the Immigration and Nationality Act’’ (Jan. 16,
2009).

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of year by an event or pattern, such as
a short annual growing cycle or a
specific aspect of a longer cycle and
requires labor levels above those
necessary for ongoing operations. Id.
There is no annual limit or ‘‘cap’’ on the
number of noncitizens who may be
issued H–2A visas or otherwise
provided H–2A status (such as through
a change from another nonimmigrant
status, see INA sec. 248, 8 U.S.C. 1258).
2. H–2B Temporary Nonagricultural
Workers
Similarly, the INA establishes the H–
2B nonimmigrant classification for
temporary nonagricultural workers,
described as a noncitizen ‘‘having a
residence in a foreign country which he
has no intention of abandoning who is
coming temporarily to the United States
to perform other temporary
[nonagricultural] service or labor if
unemployed persons capable of
performing such service or labor cannot
be found in this country.’’ INA sec.
101(a)(15)(H)(ii)(b), 8 U.S.C.
1101(a)(15)(H)(ii)(b). Current DHS
regulations define an employer’s
temporary need as employment that is
of a temporary nature where the
employer’s need to fill the position with
a temporary worker generally will last
no longer than 1 year, unless the
employer’s need is a one-time event, in
which case the need could last up to 3
years. See 8 CFR 214.2(h)(1)(ii)(D),
(h)(6)(ii), and (h)(6)(vi)(D).
Unlike the H–2A classification, there
is a statutory annual limit or ‘‘cap’’ on
the number of noncitizens who may be
issued H–2B visas or otherwise
provided H–2B status. Specifically, the
INA sets the annual number of
noncitizens who may be issued H–2B
visas or otherwise provided H–2B status
at 66,000, to be distributed semiannually beginning in October and
April. See INA sec. 214(g)(1)(B) and
(g)(10), 8 U.S.C. 1184(g)(1)(B) and
(g)(10). With certain exceptions,6 up to
6 Generally,

workers in the United States in H–2B
status who extend their stay, change employers, or
change the terms and conditions of employment
will not be subject to the cap. See 8 CFR
214.2(h)(8)(ii). Similarly, H–2B workers who have
previously been counted against the cap in the same
fiscal year that the proposed employment begins
will not be subject to the cap if the employer names
them on the petition and indicates that they have
already been counted. See 8 CFR 214.2(h)(8)(ii). The
spouse and children of H–2B workers, classified as
H–4 nonimmigrants, also do not count against the
cap.
Additionally, petitions for the following types of
workers are exempt from the H–2B cap: Fish roe
processors, fish roe technicians, or supervisors of
fish roe processing; and workers performing labor
or services in the Commonwealth of Northern
Mariana Islands or Guam until Dec. 31, 2029. See
Section 14006 of Public Law 108–287, 118 Stat.
951, 1014 (Aug. 5, 2004), and Section 3 of the

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33,000 noncitizens may be issued H–2B
visas or provided H–2B nonimmigrant
status in the first half of a fiscal year,
and the remaining annual allocation,
including any unused nonimmigrant H–
2B visas from the first half of a fiscal
year, will be available for employers
seeking to hire H–2B workers during the
second half of the fiscal year.7 If
insufficient petitions are approved to
use all available H–2B numbers in a
given fiscal year, the unused numbers
cannot be carried over for petition
approvals for employment start dates
beginning on or after the start of the
next fiscal year.
3. Temporary Labor Certification (TLC)
Process
H–2 workers may not displace
qualified, available U.S. workers who
are capable of performing such services
or labor. See INA secs.
101(a)(15)(H)(ii)(a)–(b), 8 U.S.C. 1101
(a)(15)(H)(ii)(a)–(b), and 218(a)(1), 8
U.S.C. 1188(a)(1); 8 CFR 214.2(h)(5)(ii) 8
and (h)(6)(i). In addition, H–2
employment may not adversely affect
the wages and working conditions of
workers in the United States. See INA
sec. 218(a)(1)(B), 8 U.S.C. 1188(a)(1)(B)
(H–2A); INA sec. 101(a)(15)(H)(ii)(b), 8
U.S.C. 1101(a)(15)(H)(ii)(b) (H–2B); 8
CFR 214.2(h)(5)(ii) and (h)(6)(i). DHS
regulations provide that an H–2A or H–
2B petition for temporary employment
in the United States must be
accompanied by an approved TLC from
DOL, issued pursuant to regulations
established at 20 CFR part 655, or from
the Guam Department of Labor (GDOL)
for H–2B workers who will be employed
on Guam. See, e.g., 8 CFR
214.2(h)(5)(i)(A), (h)(6)(iii)(A), (C)–(E),
(h)(6)(iv)(A), (v)(A). See generally INA
secs. 103(a)(6), 214(c)(1), 8 U.S.C.
1103(a)(6), 1184(c)(1). The TLC serves as
DHS’s consultation with DOL or GDOL
with respect to whether a qualified U.S.
worker is available to fill the petitioning
Northern Mariana Islands U.S. Workforce Act of
2018, Pub. L. 115–218, 132 Stat. 1547, 1547 (July
24, 2018).). Once the H–2B cap is reached, USCIS
may only accept petitions for H–2B workers who
are exempt or not subject to the H–2B cap.
7 The Federal Government’s fiscal year runs from
October 1 of the prior calendar year through
September 30 of the year being described. For
example, fiscal year 2023 runs from October 1,
2022, through September 30, 2023.
8 INA sec. 218 governs the temporary agricultural
labor certifications issued by the Department of
Labor (DOL). That section is implemented through
regulations at 20 CFR part 655, subpart B and 29
CFR part 501. By issuing a temporary agricultural
labor certification referenced in 8 CFR
214.2(h)(5)(ii), DOL binds the employer to comply
with a variety of program obligations, including the
prohibition against the layoff of U.S. workers, and
several provisions related to the recruitment and
hiring of U.S. workers. See 20 CFR 655.135(g); see
also 20 CFR 655.135(a), (b), (c), (d), and (h).

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H–2A or H–2B employer’s job
opportunity and whether a foreign
worker’s employment in the job
opportunity will adversely affect the
wages and working conditions of
similarly employed workers in the
United States. See INA sec. 214(c)(1), 8
U.S.C. 1184(c)(1); 8 CFR 214.2(h)(5)(ii),
(h)(6)(iii)(A), and (h)(6)(v).
4. Current H–2 Petition Procedures
Employers must petition DHS for
classification of prospective temporary
workers as H–2A or H–2B
nonimmigrants. See INA sec. 214(c)(1),
8 U.S.C. 1184(c)(1). After receiving an
approved TLC, the employer listed on
the TLC or the employer’s U.S. agent
(‘‘H–2 petitioner’’) must file the H–2
petition with the appropriate USCIS
office. See 8 CFR 214.2(h)(2)(i),
(h)(5)(i)(A), (h)(6)(iii)(E), and (h)(6)(vi).
The H–2 petitioner must be a U.S.
employer, a U.S. agent meeting the
requirements of 8 CFR 214.2(h)(2)(i)(F),
or a foreign employer filing through a
U.S. agent. See 8 CFR 214.2(h)(2)(i)(A),
(5)(i)(A) and (h)(6)(iii)(B). The H–2
petitioner may request one or more
named or unnamed H–2 workers, but
the total number of workers may not
exceed the number of positions listed on
the TLC. See 8 CFR 214.2(h)(2)(ii) and
(iii), (h)(5)(i)(B), and (h)(6)(viii). H–2
petitioners must identify by name the
H–2 worker if the worker is in the
United States or, under current DHS
regulations, if the H–2 worker is a
national of a country that is not
designated as an H–2 participating
country. See 8 CFR 214.2(h)(2)(iii).
Generally, USCIS must approve this
petition before the beneficiary can be
considered eligible for an H–2A or H–
2B visa or for H–2A or H–2B
nonimmigrant status.
Once the petition is approved, under
the INA and current DHS regulations,
H–2 workers are limited to employment
with the employer listed on the H–2
petition. See INA sec. 214(c)(1), 8 U.S.C.
1184(c)(1); 8 CFR 214.2(h)(1)(i); 8 CFR
274a.12(b)(9). An H–2 petitioner
generally may submit a new H–2
petition, with a new, approved TLC, to
USCIS to request an extension of H–2
nonimmigrant status for the validity of
the TLC or for a period of up to 1 year.
See 8 CFR 214.2(h)(15)(ii)(C). The H–2
petitioner must name the worker on the
new H–2 petition because the H–2
worker is in the United States and
requesting an extension of stay. For H–
2A petitioners only, in the event of an
emergent circumstance, the petitioner
may request an extension to continue
employment with the same employer
not to exceed 2 weeks without first
having to obtain an additional approved

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TLC from DOL if certain criteria are met,
by submitting the new H–2A petition.
See 8 CFR 214.2(h)(5)(x).
5. Admission and Limitations of Stay
Upon USCIS approval of the H–2
petition and the H–2 worker’s
admission to the United States or grant
of status under the respective H–2
classification, the employer or U.S.
agent may begin to employ the H–2
worker(s). USCIS has authority to
approve the worker’s H–2A or H–2B
classification for up to the period
authorized on the approved TLC. See 8
CFR 214.2(h)(9)(iii)(B). H–2 workers
who are outside of the United States
may apply for a visa with the
Department of State (DOS) at a U.S.
Embassy or Consulate abroad, if
required, and seek admission to the
United States as an H–2 nonimmigrant
with U.S. Customs and Border
Protection (CBP) at a U.S. port of entry.
The spouse and children of an H–2
nonimmigrant, if they are accompanying
or following to join an H–2
nonimmigrant, may be admitted into the
United States, if they are otherwise
admissible, as H–4 dependents for the
same period of admission (including
any extension periods) as the principal
spouse or parent. See 8 CFR
214.2(h)(9)(iv). Thus, H–4 dependents of
H–2 workers are subject to the same
limitations on stay, including
permission to remain in the country
during the pendency of the new
employer’s petition, as the H–2
beneficiary, but generally may not
engage in employment. See 8 CFR
214.2(h)(9)(iv).
In general, a noncitizen’s H–2 status
is limited by the validity dates on the
approved H–2 petition, typically for a
period of up to 1 year. See 8 CFR
214.2(h)(5)(viii)(C), 8 CFR
214.2(h)(6)(iv)(B), 8 CFR
214.2(h)(6)(v)(B), 8 CFR
214.2(h)(9)(iii)(B), and 8 CFR
214.2(h)(15)(ii)(C). H–2A workers may
be admitted to the United States for a
period of up to 1 week prior to the
beginning validity date listed on the
approved H–2A petition so that they
may travel to their worksites, but H–2A
workers may not begin work until the
beginning validity date. H–2A workers
may also remain in the United States 30
days beyond the expiration date of the
approved H–2A petition to prepare for
departure or to seek an extension of stay
or change of nonimmigrant status but
cannot work during this period. See 8
CFR 214.2(h)(5)(viii)(B).
H–2B workers may be admitted to the
United States for a period of up to 10
days prior to the beginning validity date
listed on the approved H–2B petition so

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65047

that they may travel to their worksites,
but H–2B workers may not begin work
until the beginning validity date. Under
current DHS regulations, H–2B workers
also may remain in the United States up
to 10 days beyond the expiration date of
the approved H–2B petition to prepare
for departure or to seek an extension of
stay or change of nonimmigrant status
and also cannot work during this
period. See 8 CFR 214.2(h)(13)(i)(A).
Unless otherwise authorized under 8
CFR 274a.12, H–2A and H–2B workers
do not have employment authorization
outside of the validity period listed on
the approved petition. See 8 CFR
214.2(h)(5)(viii)(B) and 8 CFR
214.2(h)(13)(i)(A).
The maximum period of stay for a
noncitizen in H–2 classification is 3
years (or 45 days in the U.S. Virgin
Islands).9 See 8 CFR 214.2(h)(5)(viii)(C),
8 CFR 214.2(h)(13)(iv), and 8 CFR
214.2(h)(15)(C). Generally, once a
noncitizen has held H–2 nonimmigrant
status for a total of 3 years, they must
depart and remain outside of the United
States for an uninterrupted period of 3
months before seeking readmission as
an H–2 nonimmigrant.10 See 8 CFR
214.2(h)(5)(viii)(C) and (h)(13)(iv).
C. H–2 2008 Final Rules
In December 2008, DHS published
two final rules providing that H–2
petitioners must meet certain
requirements for an H–2 petition to be
approved. See Final Rule Changes to
Requirements Affecting H–2B
Nonimmigrants and Their Employers,
73 FR 78104 (Dec. 19, 2008); Final Rule
Changes to Requirements Affecting H–
2A Nonimmigrants, 73 FR 76891 (Dec.
18, 2008) (collectively ‘‘H–2 2008 Final
Rules’’). Those rules addressed a
number of issues in the H–2 programs
9 Any time an H–2 worker spends in the United
States under section 101(a)(15)(H) or (L) of the Act,
8 U.S.C. 1101(a)(15)(H), (L), will count towards the
3-year limitation. See 8 CFR 214.2(h)(13)(iv). Time
spent in H–4 or L–2 status will not count towards
the 3-year limitation. See USCIS, Additional
Guidance on Determining Periods of Admission for
Foreign Nationals Previously Admitted as H–4
Nonimmigrants who are Seeking H–2 or H–3 Status
(PM–602–0092), https://www.uscis.gov/sites/
default/files/document/memos/2013-1111_H-4_
Seeking_H-2_or_H-3_Status_PM_Effective_2.pdf.
10 If the H–2 worker’s accumulated stay is 18
months or less, an absence of at least 45 days will
interrupt the 3-year limitation on admission. If the
accumulated stay is greater than 18 months, an
absence is interruptive if it lasts for at least 2
months. See 8 CFR 214.2(h)(5)(viii)(C) and (13)(iv);
see also 8 CFR 214.2(h)(13)(v) (also excepting from
the limitations under 8 CFR 214.2(h)(13)(iii) and
(iv), with respect to H–2B beneficiaries, workers
who did not reside continually in the United States
and whose employment in the United States was
seasonal or intermittent or was for an aggregate of
6 months or less per year, as well as workers who
reside abroad and regularly commute to the United
States to engage in part-time employment).

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such as requiring that H–2 petitions be
filed with a valid TLC approved by
either the DOL or GDOL, as appropriate,
prohibiting the imposition of certain
fees on H–2 workers, modifying
requirements to allow for unnamed H–
2 beneficiaries in the petition, and
amending the definition of ‘‘temporary
services or labor,’’ among other changes.
DHS, through this proposed
rulemaking, seeks to modify several
requirements implemented by the H–2
2008 Final Rules. The following
subsections describe those provisions as
they were finalized in the 2008 rules.

beneficiary in full or, where such fee or
compensation has not yet been paid by
the beneficiary, that the agreement has
been terminated. See 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1). Generally, the H–2
petition will be denied or revoked if the
petitioner knew or should have known
that the beneficiary has paid or agreed
to pay the prohibited fee as a condition
of employment (or, in the H–2B context,
as a condition of an offer of
employment). See 8 CFR
214.2(h)(5)(xi)(2)–(4) and 8 CFR
214.2(h)(6)(i)(B)(2)–(4).

1. Prohibited Fees in the H–2
Nonimmigrant Classifications
Under current regulations, USCIS may
deny or revoke a petition when the
beneficiary pays, directly or indirectly,
certain fees that are conditions of H–2A
employment or, for H–2B workers, as a
condition of an offer of employment.
See 8 CFR 214.2(h)(5)(xi) and 8 CFR
214.2(h)(6)(i). The current regulation at
8 CFR 214.2(h)(5)(xi) prohibits the
collection of job placement fees or other
compensation (directly or indirectly)
from the beneficiary at any time as a
condition of H–2A employment,
including before or after the filing or
approval of the petition. The prohibition
applies to the petitioner, agent,
facilitator, recruiter, or a similar
employment service. However, the
current regulation permits the collection
of the lesser of the fair market value or
actual costs of transportation and any
government-mandated passport, visa, or
inspection fees so long as the payment
of such fees is not prohibited by statute
or DOL regulations, unless the employer
agent, facilitator, recruiter, or similar
employment service has agreed with the
noncitizen to pay such costs and fees.
The current regulation at 8 CFR
214.2(h)(6)(i)(B) contains largely
identical language applicable to H–2B
petitions, but omits mention of the
‘‘Department of Labor.’’ 11
Under current DHS regulations, where
such prohibited fees have been collected
or the petitioner has entered into an
agreement to collect such prohibited
fees, including through a deduction or
withholding from a worker’s wages, an
H–2 petition will be denied or revoked
on notice unless the petitioner
demonstrates that, prior to the filing of
the petition, it has reimbursed the

2. H–2 Eligible Countries Lists
USCIS may generally only approve H–
2 petitions for nationals of countries
that the Secretary of Homeland Security,
with the concurrence of the Secretary of
State, has designated through a notice
published in the Federal Register as
countries eligible to participate in the
respective H–2A and H–2B programs.
See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8
CFR 214.2(h)(6)(i)(E)(1). This Federal
Register notice is effective for 1 year
after publication. See 8 CFR
214.2(h)(5)(i)(F)(2) and 8 CFR 214.2
(h)(6)(i)(E)(3). In designating countries
whose nationals can participate in the
H–2 programs, DHS takes into account
several factors including, but not
limited to: (1) the country’s cooperation
with respect to issuance of travel
documents for citizens, subjects,
nationals and residents of that country
who are subject to a final order of
removal; (2) the number of final and
unexecuted orders of removal against
citizens, subjects, nationals, and
residents of that country; (3) the number
of orders of removal executed against
citizens, subjects, nationals, and
residents of that country; and (4) such
other factors as may serve the U.S.
interest. See 8 CFR 214.2(h)(5)(i)(F)(1)(i)
and 8 CFR 214.2(h)(6)(i)(E)(1).
Petitioners who seek H–2 workers
from countries that are not designated as
eligible to participate in the applicable
H–2 program must meet additional
criteria showing that it is in the U.S.
interest to employ such workers. See 8
CFR 214.2(h)(5)(i)(F)(1)(ii) and 8 CFR
214.2(h)(6)(i)(E)(2). In determining what
is in the U.S. interest for purposes of
these provisions, the Secretary of
Homeland Security has sole and
unreviewable discretion to take into
account factors including, but not
limited to: (1) evidence from the
petitioner demonstrating that a worker
with the required skills is not available
either from among U.S. workers or from
among foreign workers from a country
currently on the lists described in 8 CFR
214.2(h)(5)(i)(F)(1)(i) and 8 CFR

11 The regulations at 20 CFR 655.20(o) (H–2B); 20
CFR 655.135(j) (H–2A); and 29 CFR 503.16(o) (H–
2B) contain similar prohibited fee provisions for H–
2 employers. In addition, the regulations at 20 CFR
655.20(j) and 29 CFR 655.16(j) (H–2B) and 20 CFR
655.122(h) (H–2A) prohibit, with certain
limitations, the collection of transportation and visa
fees.

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214.2(h)(6)(i)(E)(1); (2) evidence that the
beneficiary has been admitted to the
United States previously in H–2 status;
(3) the potential for abuse, fraud, or
other harm to the integrity of the
applicable H–2 visa program through
the potential admission of a beneficiary
from a country not currently designated
as eligible; and (4) such other factors as
may serve the U.S. interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(ii) and 8 CFR
214.2(h)(6)(i)(E)(2). Petitions for workers
from designated countries and
undesignated countries should be filed
separately. See 8 CFR 214.2(h)(2)(ii). H–
2 petitioners must name the H–2 worker
if the H–2 worker is a national of a
country that is not designated as an H–
2 participating country. See 8 CFR
214.2(h)(2)(iii). USCIS reviews each
petition naming a national from a
country not on the lists and all
supporting documentation and makes a
determination on a case-by-case basis.
Subsequent to the publication of the
H–2 2008 Final Rules, DHS has
published annual notices in the Federal
Register that designate certain countries
as participants in the H–2 programs. In
December 2008, DHS first published in
the Federal Register two notices:
Identification of Foreign Countries
Whose Nationals Are Eligible to
Participate in the H–2A Visa Program,
and Identification of Foreign Countries
Whose Nationals Are Eligible to
Participate in the H–2B Visa Program,
which designated 28 countries whose
nationals were eligible to participate in
the H–2A and H–2B programs. See 73
FR 77043 (Dec. 18, 2008); 73 FR 77729
(Dec. 19, 2008). The notices ceased to
have effect on January 17, 2010, and
January 18, 2010, respectively. DHS has
published a notice each year from 2010
through the present, in which various
countries have been added or removed
from the lists of countries eligible for
participation in the H–2 programs. DHS
published its most recent notice on
November 10, 2022, and announced that
the Secretary of Homeland Security, in
consultation with the Secretary of State,
identified 86 countries whose nationals
are eligible to participate in the H–2A
program and 87 countries whose
nationals are eligible to participate in
the H–2B program for 1 year ending
November 9, 2023. See Identification of
Foreign Countries Whose Nationals Are
Eligible To Participate in the H–2A and
H–2B Nonimmigrant Worker Programs,
87 FR 67930 (Nov. 10, 2022).
The notices provide examples of
specific factors serving the U.S. interest
that are taken into account when
considering whether to designate or
terminate the designation of a country,
which include, but are not limited to:

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fraud (such as fraud in the H–2 petition
or visa application process by nationals
of the country, the country’s level of
cooperation with the U.S. Government
in addressing H–2-associated visa fraud,
and the country’s level of information
sharing to combat immigration-related
fraud); nonimmigrant visa overstay rates
for nationals of the country (including
but not limited to H–2A and H–2B
nonimmigrant visa overstay rates); and
non-compliance with the terms and
conditions of the H–2 visa programs by
nationals of the country.
3. H–2A Employers Who are
Participants in Good Standing in EVerify
The 2008 H–2A final rule (but not the
H–2B final rule) included a provision
allowing H–2A workers who are
lawfully present in the United States to
begin work with a new petitioning
employer upon the filing of a new H–
2A petition naming the worker, before
petition approval, provided that the new
employer is a participant in good
standing in E-Verify.12 See 8 CFR
214.2(h)(2)(i)(D) and 8 CFR
274a.12(b)(21). In such a case, the H–2A
worker’s employment authorization
continues for a period not to exceed 120
days beginning on the ‘‘Received Date’’
on Form I–797, Notice of Action, which
acknowledges the receipt of the new H–
2A extension petition. Except for the
new employer and worksite, the
employment authorization extension
remains subject to the same conditions
and limitations indicated on the initial
H–2A petition. The employment
authorization extension will terminate
automatically if the new employer fails
to remain a participant in good standing
in E-Verify, as determined by USCIS in
its discretion, or after 15 days if USCIS
denies the extension request prior to the
expiration of the 120-day period.

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D. Importance of the H–2 Programs and
the Need for Reforms
DHS recognizes that the H–2A and H–
2B programs play a critical role in the
U.S. economy, allowing foreign workers
to fill temporary jobs for which U.S.
workers are not available and qualified.
Reflective of their importance, the H–2A
and H–2B programs have experienced
significant growth since DHS published
the H–2 2008 Final Rules. For instance,
DOS data indicate that the number of
H–2A visas issued has increased by over
365 percent over the last decade,
reaching 257,898 visas issued in fiscal
year (FY) 2021, compared to 55,384
12 See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 76891, 76905 (Dec. 8, 2008).

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visas issued in fiscal year 2011.13 With
regard to the H–2B program, because
Congress has capped the number of H–
2B visas available, the number of H–2B
visas issued has not increased at the
same rate as H–2A visas. Yet, DOS data
indicate that issuance of H–2B visas
nearly doubled between fiscal year 2011
(50,826 visas) and fiscal year 2021
(95,053 visas).14 Because the recent
demand for H–2B visas has regularly
far-exceeded the statutory cap, Congress
has repeatedly provided limited
authority to DHS, in consultation with
DOL and based on the needs of
American businesses, to increase the
number of H–2B visas available to U.S.
employers over the last several years.15
In addition, in recent years the
administration has sought to expand
interest in the H–2 programs as part of
its overall strategy to manage safe,
orderly, and humane migration to this
country.16 For instance, the U.S. Agency
13 See

DOS, Nonimmigrant Visas Issued by
Classification (Including Crewlist Visas and Border
Crossing Cards) Fiscal Years 2007–2011, https://
travel.state.gov/content/dam/visas/Statistics/
AnnualReports/FY2011AnnualReport/
FY11AnnualReport-Table%20XVI(B).pdf; DOS,
Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years
2017–2021, https://travel.state.gov/content/dam/
visas/Statistics/AnnualReports/
FY2021AnnualReport/FY21_%20TableXVB.pdf.
14 See DOS, Nonimmigrant Visas Issued by
Classification (Including Crewlist Visas and Border
Crossing Cards) Fiscal Years 2007–2011, https://
travel.state.gov/content/dam/visas/Statistics/
AnnualReports/FY2011AnnualReport/
FY11AnnualReport-Table%20XVI(B).pdf; DOS,
Nonimmigrant Visas Issued by Classification
(Including Border Crossing Cards) Fiscal Years
2017–2021, https://travel.state.gov/content/dam/
visas/Statistics/AnnualReports/
FY2021AnnualReport/FY21_%20TableXVB.pdf.
15 See Consolidated Appropriations Act, 2017,
Public Law 115–31, div. F, sec. 543; Consolidated
Appropriations Act, 2018, Public Law 115–141, div.
M, sec. 205; Consolidated Appropriations Act,
2019, Public Law 116–6, div. H, sec. 105; Further
Consolidated Appropriations Act, 2020, Public Law
116–94, div. I, sec. 105; Consolidated
Appropriations Act, 2021, Public Law 116–260, div.
O, sec. 105; sections 101 and 106(3) of Division A
of Public Law 117–43, Continuing Appropriations
Act, 2022, Public Law 117–43, div. A, secs. 101,
106(3); section 101 of Division A of Public Law
117–70, Further Continuing Appropriations Act,
2022, Public Law 117–70, div. A, sec. 101;
Consolidated Appropriations Act, 2022, Public Law
117–103, div. O, sec. 204; section 101(6) of Division
A of Public Law 117–180, Continuing
Appropriations and Ukraine Supplemental
Appropriations Act, 2023, Public Law 117–180, div.
A, sec. 101(6); Consolidated Appropriations Act,
2023, Public Law 117–328, div. O, sec. 303.
16 See Executive Order 14010, Creating a
Comprehensive Regional Framework to Address the
Causes of Migration, to Manage Migration
Throughout North and Central America, and to
Provide Safe and Orderly Processing of Asylum
Seekers at the United States Border (Feb. 2, 2021),
https://www.govinfo.gov/content/pkg/FR-2021-0205/pdf/2021-02561.pdf; National Security Council,
Collaborative Migration Management Strategy (July
2021), https://www.whitehouse.gov/wp-content/
uploads/2021/07/Collaborative-MigrationManagement-Strategy.pdf.

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65049

for International Development (USAID)
conducted significant outreach focused
on building government capacity to
facilitate access to temporary worker
visas under the H–2 programs.17 These
efforts have successfully encouraged
increased use of the H–2 programs when
there are not sufficient qualified and
available U.S. workers.18
At the same time, the administration
has consistently recognized the need to
balance the expanded use of the H–2
programs with greater protections for
workers. The National Security Council
noted in its Collaborative Migration
Management Strategy that expansion of
access to nonimmigrant work visas
‘‘must also address the vulnerability of
workers to abusive labor practices.’’ 19
In guidance promoting implementation
of best practices by employers and by
governments seeking to increase
participation in the H–2 visa programs,
17 In addition to other efforts, when exercising the
delegated authority Congress granted it under
separate legislation noted above to increase the
number of H–2B visas available in a given fiscal
year, DHS and DOL used that authority to create
specific H–2B visa allocations in furtherance of its
efforts to address irregular migration. See Exercise
of Time-Limited Authority To Increase the Fiscal
Year 2021 Numerical Limitation for the H–2B
Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 86 FR 28198 (May 25, 2021);
Exercise of Time-Limited Authority To Increase the
Fiscal Year 2022 Numerical Limitation for the H–
2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 4722 (Jan. 28, 2022);
Exercise of Time-Limited Authority To Increase the
Fiscal Year 2022 Numerical Limitation for the H–
2B Temporary Nonagricultural Worker Program and
Portability Flexibility for H–2B Workers Seeking To
Change Employers, 87 FR 6017 (Feb. 3, 2022)
(correction); Exercise of Time-Limited Authority To
Increase the Numerical Limitation for Second Half
of FY 2022 for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
30334 (May 18, 2022); Exercise of Time-Limited
Authority To Increase the Numerical Limitation for
FY 2023 for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022); and Exercise of Time-Limited
Authority To Increase the Numerical Limitation for
FY 2023 for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers; Correction,
87 FR 77979 (Dec. 21, 2022) (correction).
18 See USAID, Administrator Samantha Power at
the Summit of the Americas Fair Recruitment and
H–2 Visa Side Event, https://www.usaid.gov/newsinformation/speeches/jun-9-2022-administratorsamantha-power-summit-americas-fair-recruitmentand-h-2-visa (June 9, 2022) (‘‘Our combined efforts
[with the labor ministries in Honduras and
Guatemala, and the Foreign Ministry in El Salvador]
. . . resulted in a record number of H–2 visas
issued in 2021, including a nearly forty percent
increase over the pre-pandemic levels in H–2B visas
issued across all three countries.’’).
19 See National Security Council, Collaborative
Migration Management Strategy, https://
www.whitehouse.gov/wp-content/uploads/2021/07/
Collaborative-Migration-Management-Strategy.pdf
(July 2021).

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DOS, USAID, and DOL emphasized that
‘‘[e]xpanding access to [the H–2
programs] and protecting migrant
workers’ rights are two aspects of the
same agenda.’’ 20
Similarly, in proposing this rule, DHS
recognizes that stronger protections are
needed for the nonimmigrant workers
who participate in the H–2 programs.21
Numerous reports from Federal
Government entities, migrant worker
advocates, media, and other
stakeholders have noted frequent
violations of H–2 workers’ rights, both
in the United States and prior to
admission.22 For example, a Federal
Government report found that workers
may experience abuses before and after
entering the United States, and during
the course of their H–2 employment in
the United States.23 Reports from
advocacy groups found that many H–2
workers suffer at least one serious
violation of their rights (such as paying
prohibited recruitment fees or
significant wage violations) or a form of
20 See DOS, USAID, and DOL, Guidance on Fair
Recruitment Practices for Temporary Migrant
Workers (June 2022), https://www.dol.gov/sites/
dolgov/files/OPA/newsreleases/2022/06/
ILAB20220565.pdf; see also U.S. Dep’t of Agric.,
U.S. Department of Agriculture to Invest up to $65
Million in Pilot Program to Strengthen Food Supply
Chain, Reduce Irregular Migration, and Improve
Working Conditions for Farmworkers (June 10,
2022) (‘‘Strong working conditions are critical to the
resiliency of the food and agricultural supply chain.
Through this pilot program, [U.S. Department of
Agriculture] will support efforts to improve
working conditions for both U.S. and H–2A workers
and ensure that H–2A workers are not subjected to
unfair recruitment practices.’’), https://
www.usda.gov/media/press-releases/2022/06/10/
us-department-agriculture-invest-65-million-pilotprogram.
21 See, e.g., DHS, DHS Announces Process
Enhancements for Supporting Labor Enforcement
Investigations (Jan. 13, 2023), https://www.dhs.gov/
news/2023/01/13/dhs-announces-processenhancements-supporting-labor-enforcementinvestigations.
22 See, e.g., GAO, Closed Civil and Criminal Cases
Illustrate Instances of H–2B Workers Being Targets
of Fraud and Abuse (GAO–10–1053) (2010), https://
www.gao.gov/assets/gao-10-1053.pdf; GAO,
Increased Protections Needed for Foreign Workers
(GAO–15–154) (2015), https://www.gao.gov/assets/
gao-15-154.pdf; Centro de los Derechos del
Migrante, Inc. (CDM), Ripe for Reform: Abuses of
Agricultural Workers in the H–2A Visa Program
(2020) (noting prevalence of ‘‘systemic violations of
[H–2A] workers’ legal rights’’), https://
cdmigrante.org/ripe-for-reform/; Southern Poverty
Law Center, Close to Slavery: Guestworker
Programs in the United States (2013), https://
www.splcenter.org/sites/default/files/d6_legacy_
files/downloads/publication/SPLC-Close-to-Slavery2013.pdf (‘‘The current H–2 program. . ..is rife
with labor and human rights violations committed
by employers who prey on a highly vulnerable
workforce.’’); Daniel Costa, Temporary work visa
programs and the need for reform: A briefing on
program frameworks, policy issues and fixes, and
the impact of COVID–19, Economic Policy Institute
(Feb. 3, 2021), https://files.epi.org/pdf/217871.pdf.
23 See GAO–15–154 (2015), https://www.gao.gov/
assets/gao-15-154.pdf.

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coercion (such as threats, verbal abuse,
and withholding of documents) during
their employment in the United
States.24 These reports detail a wide
range of violations, from coercion to
paying illegal fees; wage theft; receiving
false job information; 25 discrimination
and harassment; 26 and being housed in
crowded, unsanitary, and degrading
conditions with limited food and water.
Other serious violations include forced
labor; being held captive without
personal documents; threats of arrest,
deportation, and violence toward the
workers or their families abroad;
kidnapping; sexual abuse; rape; and
even death.27 Recent court cases serve to
underscore the range and severity of
abuses and exploitation faced by H–2
workers in the United States.28
24 See Polaris, Labor Exploitation and Trafficking
of Agricultural Workers During the Pandemic 6
(2021) (reporting that available data on likely
victims of labor trafficking show that 99 percent
experienced some type of coercion), https://
polarisproject.org/wp-content/uploads/2021/06/
Polaris_Labor_Exploitation_and_Trafficking_of_
Agricultural_Workers_During_the_Pandemic.pdf,;
CDM, Ripe for Reform 4 (2020) (reporting data
showing that every worker interviewed, even those
most satisfied with their experience, suffered at
least one serious legal violation of their rights),
https://cdmigrante.org/ripe-for-reform/; Polaris,
Labor Trafficking on Specific Temporary Work
Visas (2022) (reporting that over 68 percent of H–
2B workers identified as likely victims of labor
trafficking reported experiencing coercion), https://
polarisproject.org/wp-content/uploads/2022/07/
Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf.
25 See GAO–15–154 (2015), https://www.gao.gov/
assets/gao-15-154.pdf; CDM, Fake Jobs for Sale:
Analyzing Fraud and Advancing Transparency in
U.S. Labor Recruitment 4 (2019), https://
cdmigrante.org/wp-content/uploads/2019/04/FakeJobs-for-Sale-Report.pdf.
26 See CDM, Ripe for Reform (2020), https://
cdmigrante.org/ripe-for-reform/. For a report
illustrating how women, in particular,
disproportionately face discrimination in the H–2B
program, see CDM, Breaking the Shell: How
Maryland’s Migrant Crab Pickers Continue to be
‘‘Picked Apart’’ (2020), https://cdmigrante.org/wpcontent/uploads/2020/09/Breaking-The-Shell.pdf.
27 See, e.g., Polaris, Labor Trafficking on Specific
Temporary Work Visas (2022), https://
polarisproject.org/wp-content/uploads/2022/07/
Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf; CDM, Ripe for Reform (2020),
https://cdmigrante.org/ripe-for-reform/; Polaris,
Labor Exploitation and Trafficking of Agricultural
Workers During the Pandemic 6 (2021), https://
polarisproject.org/wp-content/uploads/2021/06/
Polaris_Labor_Exploitation_and_Trafficking_of_
Agricultural_Workers_During_the_Pandemic.pdf.
28 See, e.g., Department of Justice (DOJ), U.S.
Attorney’s Office, Southern District of Georgia,
Three men sentenced to federal prison on charges
related to human trafficking: Each admitted to role
in forced farm labor in Operation Blooming Onion
(Mar. 31, 2022) (involving forced labor, keeping
workers in substandard conditions, kidnapping,
and rape, among other abuses), https://
www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking; DOJ, Three Defendants Sentenced in
Multi-State Racketeering Conspiracy Involving the
Forced Labor of Mexican Agricultural H–2A
Workers (Oct. 27, 2022) (involving forced labor,

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A U.S. Government study found that
the structure of the H–2A and H–2B
programs may create systematic
disincentives for workers to report or
leave abusive working conditions.29
One disincentive is that workers are
authorized to work only for the
petitioning H–2A or H–2B employer;
consequently, the workers cannot freely
leave to work for another employer, nor
do they feel free to report mistreatment
by their employer for fear of retaliation
or blacklisting (that is, exclusion from
future employment opportunities
through the same employer or
recruiter) 30 despite existing DOL
prohibitions on such retaliation.31
Losing their jobs means losing their
legal status and authorization to remain
in the United States, and potentially
their ability to work in the United States
in the future.32 According to the GAO,
workers also fear reporting violations to
law enforcement or government entities
due generally to their immigration
status and lack of knowledge about their
rights.33 Another significant
disincentive identified by the GAO is
the workers’ incurrence of prohibited
fees or subjection to other recruitment
abuses, as workers or their family
members may face retaliation from
recruiters or other actors in their home
countries if they do not repay these
debts.34
In a study conducted by migrant
worker advocates, a majority of H–2
imposing debts on workers, and subjecting workers
to crowded, unsanitary, and degrading living
conditions), https://www.justice.gov/opa/pr/threedefendants-sentenced-multi-state-racketeeringconspiracy-involving-forced-labor-mexican; DOL,
Order Finding Civil Contempt and Imposing Stop
Work Order, No. 1:19-cv-00007 (D. N. Mar. I. Jan.
21, 2021) (involving extensive wage violations,
substandard living conditions, and threats to
withhold food if workers stopped working, among
other abuses), https://www.dol.gov/sites/dolgov/
files/SOL/files/IPI%20-%20Stop
%20Work%20Order.pdf.
29 See GAO–15–154, at 37–38 (2015), https://
www.gao.gov/assets/gao-15-154.pdf.
30 See GAO–15–154, at 37–38 (2015), https://
www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for
Reform 4 (2020), https://cdmigrante.org/ripe-forreform/.
31 See 20 CFR 655.20(n); 655.135(h); and 29 CFR
503.16(n).
32 See CDM, Ripe for Reform 4 (2020), https://
cdmigrante.org/ripe-for-reform/; CDM, Recruitment
Revealed: Fundamental Flaws in the H–2
Temporary Worker Program and Recommendations
for Change 22–24 (2018), https://cdmigrante.org/
wp-content/uploads/2018/02/Recruitment_
Revealed.pdf.
33 See GAO–15–154, at 51 (2015), https://
www.gao.gov/assets/gao-15-154.pdf.
34 See GAO–15–154, at 37–38 (2015), https://
www.gao.gov/assets/gao-15-154.pdf; CDM,
Recruitment Revealed 22–24 (2018), https://
cdmigrante.org/wp-content/uploads/2018/02/
Recruitment_Revealed.pdf; CDM, Fake Jobs for
Sale, https://cdmigrante.org/wp-content/uploads/
2019/04/Fake-Jobs-for-Sale-Report.pdf.

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workers reported paying recruitment
fees, even though charging recruitment
fees to such workers violates current
U.S. immigration and labor
regulations.35 These types of fees
perpetuate the cycle of exploitation.
Reports indicate that many H–2 workers
incur substantial debts before they even
get to the United States.36 Some
recruiters target individuals already
living in impoverished conditions
abroad, often from rural or indigenous
communities, further heightening the
workers’ vulnerability to exploitation.37
Because they incur substantial debts in
connection with (or related to) their
seeking to come to this country as H–
2 workers, these workers face economic
hardship, and in many instances, debt
bondage when arriving in the United
States.38 As a result, these workers are
less able or willing to report or leave
35 See CDM, Recruitment Revealed 4, 16 (2018),
https://cdmigrante.org/wp-content/uploads/2018/
02/Recruitment_Revealed.pdf. This study focused
on recruitment in Mexico because Mexico is home
to the largest number of H–2 workers. The H–2
workers surveyed in this study worked in the U.S.
during or after 2006. See also 8 CFR 214.2(h)(5)(xi);
8 CFR 214.2(h)(6)(i); 20 CFR 655.20(o) and (p); and
20 CFR 655.135(j) and (k).
36 See, e.g., CDM, Ripe for Reform 19 (2020),
https://cdmigrante.org/ripe-for-reform/; CDM,
Recruitment Revealed 4, 16 (2018), https://
cdmigrante.org/wp-content/uploads/2018/02/
Recruitment_Revealed.pdf; GAO–15–154, at 28–29
(2015), https://www.gao.gov/assets/gao-15-154.pdf.
37 See CDM, Ripe for Reform 16 (2020), https://
cdmigrante.org/ripe-for-reform/. This report
highlighted how indigenous workers face
significant challenges primarily due to their
language and cultural differences.
38 See, e.g., Changes to Requirements Affecting H–
2A Nonimmigrants, 73 FR 8230, 8233 (Feb. 13,
2008) (‘‘USCIS has found that certain job recruiters
and U.S. employers are charging potential H–2A
workers job placement fees in order to obtain H–
2A employment. . . . USCIS has learned that
payment by these workers of job placement-related
fees not only results in further economic hardship
for them, but also, in some instances, has resulted
in their effective indenture.’’); GAO–15–154, at 30
(2015), https://www.gao.gov/assets/gao-15-154.pdf;
CDM, Recruitment Revealed 4 (2018), https://
cdmigrante.org/wp-content/uploads/2018/02/
Recruitment_Revealed.pdf (many H–2 workers
arrive in the United States in debt, which may lead
to situations of debt servitude or other abuse);
Daniel Costa, Temporary work visa programs and
the need for reform 20 (2021), https://files.epi.org/
pdf/217871.pdf (‘‘Many [workers] are required to
pay exorbitant fees to labor recruiters to secure U.S.
employment opportunities, even though such fees
are usually illegal. Those fees leave them indebted
to recruiters or third-party lenders, which can result
in a form of debt bondage.’’).
‘‘Debt bondage’’ is defined in 22 U.S.C. 7102(7)
as ‘‘the status or condition of a debtor arising from
a pledge by the debtor of his or her personal
services or those of a person under his or her
control as security for a debt, if the value of those
services as reasonably assessed is not applied
toward the liquidation of the debt or the length and
nature of those services are not respectively limited
and defined.’’

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poor working conditions or abusive
situations.39
While current regulations already
contain provisions on prohibited fees
intended to protect H–2 workers, DHS
recognizes that stronger protections are
needed to address many of the reported
widespread abuses and make DHS’s
authority to address these issues
explicit. Through this proposed
rulemaking, DHS seeks to clarify and
strengthen existing provisions on
prohibited fees, and furthermore,
implement significant new provisions to
increase DHS’s ability to deter and hold
accountable certain employers that have
been found to have committed labor law
violations and other violations relevant
to the H–2 programs, while providing
safeguards for workers reporting that
they have been subject to payment of
prohibited fees.
Aside from prohibited fees, there are
other harmful employer, recruiter, or
agent behaviors that DHS’s current
regulations do not address but that are
relevant to eligibility and, in some
instances, should warrant exclusion
from the H–2 programs. Multiple
sources have revealed flaws or gaps in
the H–2 framework that allow H–2
employers that have committed serious
labor law violations to continue using
the H–2 programs even after the
violations.40 For instance, a report from
an advocacy group highlighted how an
H–2 employer that was the subject of
over 80 complaints of unpaid wages and
violations of employment terms during
a single summer season continued using
H–2 program to employ H–2 workers.41
A news article detailed how a company
with a history of worker protection
violations and vehicle safety violations
(including for improper vehicle
maintenance and unsafe driving)
continued to receive approved TLCs to
employ H–2 workers, including within
3 months after it was found responsible
for a vehicle crash that killed some of
the H–2 workers it employed.42 A labor
39 See GAO–15–154 (2015), https://www.gao.gov/
assets/gao-15-154.pdf.
40 See, e.g., AFL–CIO, Comprehensive H–2B
Recommendations. See the docket for this
rulemaking for a copy of this letter; Farmworker
Justice, No Way to Treat a Guest: Why the H–2A
Agricultural Visa Program Fails U.S. and Foreign
Workers (2012), https://www.farmworkerjustice.org/
wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf; LIUNA, H–2B
Guest Worker Program: Lack of Accountability
Leads to Exploitation of Workers, https://
d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0eab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c279c4e15ce31.pdf.
41 See Farmworker Justice, No Way to Treat a
Guest (2012), https://www.farmworkerjustice.org/
wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf.
42 See Ken Bensinger, Jessica Garrison, Jeremy
Singer-Vine, The Pushovers: Employers Abuse

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union report listed numerous case
studies of H–2 employers that continued
to receive approved TLCs despite
multitudes of labor violations, some of
which were deemed ‘‘egregious’’ and
‘‘serious.’’ 43 While these studies
focused on available data related to
employers’ receipt of approved TLCs
from DOL, it is apparent to DHS that
these and other types of violations can
be directly relevant to whether an
employer has the ability and intent to
comply with DHS’s H–2 program
requirements. These types of violations
should therefore be considered by
USCIS in its adjudication of H–2A and
H–2B petitions, regardless of whether
DOL has taken action on the underlying
TLCs. The proposed provisions in this
rule, including new bars to approval for
prohibited fees as well as for certain
findings of labor law and other
violations, and holding employers
responsible for the actions of their
recruiters and others in the recruitment
chain, underscore DHS’s commitment to
addressing aspects of the H–2 programs
that may result in the exploitation of
persons seeking to come to the United
States as H–2 workers.44
In addition to providing greater
protection for a vulnerable population
of workers, the reforms proposed in this
rulemaking offer a number of benefits to
employers. DHS recognizes the
immense importance of the H–2A and
H–2B programs to U.S. employers that
are unable to fill temporary jobs with
qualified and available U.S. workers.
The proposed portability provision, in
addition to offering flexibility to
workers, would assist petitioners facing
worker shortages by allowing them to
more quickly hire H–2A and H–2B
workers who are already in the United
States without waiting for approval of a
new petition. In addition, as discussed
in greater detail below, both the
proposed elimination of the eligible
countries lists and the proposed
revision of the calculation of the
maximum period of stay for H–2
workers stand to reduce petitioner
Foreign Workers, U.S. Says, By All Means, Hire
More, BuzzFeed News (May 12, 2016), https://
www.buzzfeednews.com/article/kenbensinger/thepushovers.
43 See LIUNA, H–2B Abuse by Construction and
Landscaping Companies, https://
d3ciwvs59ifrt8.cloudfront.net/5ad8299b-5dba-47b29544-bd96627e284d/067fa0a5-659f-4113-8b25ac60c2060510.pdf.
44 See, e.g., DHS, Response to Senator Ossoff
letter (May 3, 2022), https://www.ossoff.senate.gov/
wp-content/uploads/2022/05/DHS-ResponseBlooming-Onion.pdf; DHS, For First Time, DHS to
Supplement H–2B Cap with Additional Visas in
First Half of Fiscal Year (Dec. 20, 2021), https://
www.uscis.gov/newsroom/news-releases/for-firsttime-dhs-to-supplement-h-2b-cap-with-additionalvisas-in-first-half-of-fiscal-year.

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burdens such as those associated with
information collected at the time of
filing and through subsequent RFEs,
increase access to workers, and improve
program efficiency. Further, with
respect to the H–2B program, the
proposed regulations are intended to
ensure that only those employers who
comply with the requirements of the H–
2B program will be able to compete for
the limited number of available capsubject visas, by precluding those
employers who fail to demonstrate an
intent to do so from participating in the
H–2B program.
IV. Discussion of Proposed Rule
A. Program Integrity and Worker
Protections
1. Payment of Fees, Penalties, or Other
Compensation by H–2 Beneficiaries
As discussed above, despite 2008
regulatory changes providing that
USCIS will deny or revoke a petition
when a beneficiary pays a fee as a
condition of H–2 employment, reports
from various sources indicate that the
collection of prohibited fees remains a
pervasive problem in the H–2A and H–
2B programs.45 Through this
rulemaking, DHS is proposing various
amendments to strengthen and clarify
the existing regulatory prohibitions, to
close potential loopholes, and to modify
the consequences for charging
prohibited fees to H–2 workers.

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a. Fees, Penalties, or Other
Compensation ‘‘Related To’’ H–2
Employment
The intent of the prohibited fee
provisions in the 2008 H–2 rules was, in
part, to establish measures to help avoid
economic hardship for H–2 workers and
combat effective indenture and similar
abuses against H–2 workers.46 This
45 See, e.g., CDM, Recruitment Revealed 16
(2018), https://cdmigrante.org/wp-content/uploads/
2018/02/Recruitment_Revealed.pdf; CDM, Ripe for
Reform 20 (2020), https://cdmigrante.org/ripe-forreform/; Polaris, Labor Trafficking on Specific
Temporary Work Visas 14 (2022), https://
polarisproject.org/wp-content/uploads/2022/07/
Labor-Trafficking-on-Specific-Temporary-WorkVisas-by-Polaris.pdf; Polaris, On-ramps,
intersections, and exit routes: A roadmap for
systems and industries to prevent and disrupt
human trafficking 41 (2018), https://
polarisproject.org/wp-content/uploads/2018/08/ARoadmap-for-Systems-and-Industries-to-Preventand-Disrupt-Human-Trafficking.pdf; GAO–10–
1053, at 4 (2010), https://www.gao.gov/assets/gao10-1053.pdf.
46 When initially proposing the prohibited fee
provisions, DHS explicitly noted these abuses and
stated that the provisions were ‘‘an effort to protect
[H–2] workers from such abuses.’’ Changes to
Requirements Affecting H–2A Nonimmigrants, 73
FR 8230, 8233 (Feb. 13, 2008); Changes to
Requirements Affecting H–2B Nonimmigrants and
Their Employers, 73 FR 49109, 49112 (Aug. 20,
2008).

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proposed rule is intended, among other
things, to foreclose claims that because
a worker agreed (or appears to have
agreed) to pay a prohibited fee, such
agreement cannot be considered to be a
condition of employment.
To strengthen the prohibited fee
provisions and establish substantial
uniformity with DOL’s prohibited fee
provisions, DHS proposes to modify its
provisions to state that fees paid by H–
2 workers to an employer, joint
employer, petitioner (including to its
employee), agent, attorney, facilitator,
recruiter, similar employment service,
related to such workers’ H–2
employment, are prohibited. Although
DHS used the phrase ‘‘as a condition of’’
in its 2008 final H–2A and H–2B rules,
DOL, in promulgating its 2008 H–2A
final rule, used instead the phrase
‘‘related to’’ when addressing which
costs and fees associated with
recruitment and employment are
prohibited.47 As DOL noted in 2008 and
reiterated at the time it updated its 2008
H–2A rule in 2010, the intent of the
prohibited fees provisions was to
‘‘requir[e] employers to bear the full cost
of their decision to import foreign
workers [as] a necessary step toward
preventing the exploitation of foreign
workers, with its concomitant adverse
effect on U.S. workers.’’ 48 DOL affirmed
these principles when it updated the H–
2A regulations in 2022.49 Similarly,
47 Current 20 CFR 655.135(j) (H–2A) and 20 CFR
655.20(o) (H–2B). Notably, with respect to H–2A
nonimmigrants, the Department of Labor has
explained that, even in the case of otherwise
permissible fees, ‘‘an employee may only pay such
fees if they are for services that are voluntarily
requested by the . . . employee. If an employee
lacks a meaningful opportunity and an independent
choice to refuse or decline the service which
requires the payment of the fee,’’ such fee is
prohibited. See U.S. Department of Labor, Wage
and Hour Field Assistance Bulletin 2011–2,
available at https://www.dol.gov/agencies/whd/
field-assistance-bulletins/2011-2 (addressing H–2A
fees). Further, DOL has explained that ‘‘[t]he
signing of a document by a prospective worker
stating that he/she has agreed to pay the fee does
not, in and of itself, establish that the fee is
voluntary.’’ Id. This proposed rule recognizes that
the concerns addressed by DOL with respect to the
H–2A program apply equally to the H–2B program,
and, as in the case of the H–2A program, this rule
would intend to foreclose claims that simply
because a worker agreed (or appears to have agreed)
to a fee, it cannot be considered to be prohibited.
48 Temporary Agricultural Employment of H–2A
Aliens in the United States, 75 FR 6884, 6925 (Feb.
12, 2010); Temporary Agricultural Employment of
H–2A Aliens in the United States; Modernizing the
Labor Certification Process and Enforcement, 73 FR
77110, 77158 (Dec. 18, 2008).
49 Temporary Agricultural Employment of H–2A
Nonimmigrants in the United States, 87 FR 61660,
61744 (Oct. 12, 2022) (revisions to 20 CFR
655.135(k) intended to ‘‘mak[e] it clear that foreign
labor contractors or recruiters and their agents are
not to receive remuneration from prospective
employees recruited in exchange for access to a job
opportunity or any activity related to obtaining H–
2A labor certification’’).

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DOL used the term ‘‘related to’’ rather
than ‘‘as a condition of’’ in its 2008 H–
2B final rule.50 By proposing to replace
the term ‘‘as a condition of’’ with
‘‘related to,’’ with respect to the scope
of the bar on payment of ‘‘prohibited
fees,’’ DHS is proposing to modify the
language of its H–2A and H–2B
prohibited fees rules to substantially
conform with DOL prohibited fee
regulations. Fees that are ‘‘related to’’
H–2 employment would include, but
not be limited to, the employer’s agent
or attorney fees, visa application and
petition fees, visa application and
petition preparation fees, and
recruitment costs 51; however, such fees
would not include those that are ‘‘the
responsibility and primarily for the
benefit of the worker, such as
government-required passport fees.’’ See
proposed 8 CFR 214.2(h)(5)(xi)(A) and 8
CFR 214.2(h)(6)(i)(B).52
DHS also seeks to clarify that the term
‘‘prohibited fee’’ would include any
‘‘fee, penalty, or compensation’’ related
to the H–2A or H–2B employment. See
proposed 8 CFR 214.2(h)(5)(xi)(A) and 8
CFR 214.2(h)(6)(i)(B). A prohibited fee
would include those collected either
directly (such as, for instance, through
a direct payment from the beneficiary to
the petitioner or the petitioner’s agent),
or indirectly (such as, for instance,
through a withholding or deduction
from the worker’s wages for a service
provided earlier by a third party).
To further strengthen the prohibited
fee provisions and establish substantial
uniformity with DOL’s prohibited fee
provisions, proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B) would have new
50 See former 20 CFR 655.22(j) available at Labor
Certification Process and Enforcement for
Temporary Employment in Occupations Other
Than Agriculture or Registered Nursing in the
United States (H–2B Workers), and Other Technical
Changes, 73 FR 78020, 78060 (Dec. 19, 2008); see
also current 20 CFR 655.20(o) and 29 CFR 503.16(o)
(both using the term ‘‘related to’’ and clarifying that
prohibited fees would broadly include ‘‘payment of
the employer’s attorney or agent fees, application
and H–2B Petition fees, recruitment costs, or any
fees attributed to obtaining the approved
Application for Temporary Employment
Certification’’). For readability purposes, this rule
refers to all of the H–2B-related provisions of 20
and 29 CFR as ‘‘DOL regulations’’ notwithstanding
DHS’s joint issuance of some rules affecting these
provisions.
51 See DOL, Fact Sheet #78D: Deductions and
Prohibited Fees under the H–2B Program, https://
www.dol.gov/agencies/whd/fact-sheets/78d-h2bdeductions.
52 DHS notes, however, that while certain fees are
not prohibited under this proposed rule, it is not
DHS’s intent to render a worker subject to any
unlawful treatment or harassment resulting from
the worker’s incurring debt from a petitioner
(including a petitioner’s employee), agent, attorney,
facilitator, recruiter, or similar employment service,
or employer or joint employer, to cover such
nonprohibited fees.

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references to a petitioner’s employee or
attorney as part of the list of individuals
who may not collect prohibited fees
from a beneficiary.53 As before, it is not
the intention of DHS to bar the payment
of fees to any agent, attorney, facilitator,
recruiter, or similar employment service
by the petitioner or employer, provided
such fees do not come directly or
indirectly from H–2 workers
themselves. DHS recognizes the role of
recruiters and similar employment
services in assisting employers in
finding H–2 workers. An employer may
hire a recruiter and pay the recruiter out
of its own funds, as long as it does not
pass this cost directly or indirectly on
to the worker(s).
b. Clarification of Acceptable
Reimbursement Fees
Further, it is not the intention of DHS
to pass to petitioners, employers, agents,
attorneys, facilitators, recruiters, or
similar employment services, the costs
of services or items that are truly
personal and voluntary in nature for the
worker. Despite the phrase related to,
not all payments made by prospective or
current H–2 workers would be
considered prohibited fees or payments
related to H–2 employment under the
proposed rule. Payments made
primarily for the benefit of the worker,
such as a passport fee, would not be
prohibited fees or payments related to
the H–2 employment under the rule and
would, therefore, permissibly be
considered the responsibility of the
worker.
The current regulations state that
prohibited fees do not include ‘‘the
lesser of the fair market value or actual
costs of transportation and any
government-mandated passport, visa, or
inspection fees, to the extent that the
payment of such costs and fees by the
beneficiary is not prohibited by statute
or DOL regulations, unless the employer
agent, facilitator, recruiter, or
employment service has agreed with the
[noncitizen] to pay such costs and fees.’’
8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). To simplify the
language related to acceptable
reimbursement fees and clarify that the
exception only applies to costs that are
truly for the worker’s benefit, DHS
proposes to replace the existing
regulatory language on this topic with
text stating that the provision would not
prevent relevant parties ‘‘from receiving
reimbursement for costs that are the
responsibility and primarily for the
benefit of the worker, such as
53 See 20 CFR 655.20(o), which applies to
prohibited fees by ‘‘[t]he employer and its attorney,
agents, or employees.’’

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government-required passport fees.’’
Proposed 8 CFR 214.2(h)(5)(xi)(A) and 8
CFR 214.2(h)(6)(i)(B). This proposed
language is derived from, and is
consistent with, DOL regulations on
prohibited fees for H–2B and H–2A
workers at 20 CFR 655.20(o), 29 CFR
503.16(o), and 20 CFR 655.135(j). The
proposed provision would clarify the
existing prohibition on a beneficiary’s
payment of costs required by statute or
regulation to be paid or otherwise
incurred by the petitioner (such as
certain transportation costs or, in the H–
2A context, certain housing costs).54
Specifically, the proposed language
would make clear that the passing of a
cost to the beneficiary that, by statute or
applicable regulations is the
responsibility of the petitioner, would
constitute a collection of a prohibited
fee by the petitioner. Proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). DHS has proposed the
phrase ‘‘applicable regulations’’ to
recognize that, in the H–2A context,
‘‘applicable regulations’’ would include
DHS and DOL regulations, and in the
H–2B context, ‘‘applicable regulations’’
would include DHS, DOL, and GDOL
regulations.
c. Prohibiting Breach of Contract Fees
and Penalties
DHS also proposes to clarify that
prohibited fees include any fees or
penalties charged to workers who do not
complete their contracts. Advocacy
groups have reported instances of
recruiters forcing, or threatening to
force, H–2 workers to pay large
‘‘breach’’ fees of up to thousands of
dollars for leaving employment before
the scheduled conclusion of work.55
DHS proposes to explicitly include a
‘‘fee or penalty for breach of contract’’
in the revised prohibited fee provision
in order to provide greater clarity for
stakeholders, and to emphasize the
prohibited nature of such fees. Proposed
54 See 8 CFR 214.2(h)(5)(xi)(A) (acceptable fees
exclude fees ‘‘to the extent that the passing of such
costs to the beneficiary is not prohibited by
statute’’) and 8 CFR 214.2(h)(6)(i)(B) (acceptable
fees exclude fees ‘‘to the extent that the payment
of such costs and fees by the beneficiary is not
prohibited by statute or Department of Labor
regulations’’). See also INA sec. 218(c)(4)
(‘‘Employers shall furnish housing in accordance
with regulations.’’) and 20 CFR 655.122(d)(1) (‘‘[t]he
employer must provide housing at no cost to H–2A
workers . . .’’ (italics added).
55 These concerns were raised by representatives
from Centro de los Derechos del Migrante, Inc. and
Farmworker Justice during a listening session held
by DHS on May 16, 2022, and were also raised by
Migration that Works in a letter to DHS dated May
17, 2022. See the docket for this rulemaking for
access to a transcript of the listening session and
a copy of the letter.

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8 CFR 214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B).
d. Strengthening the Prohibited Fees
Provisions
DHS is proposing to amend regulatory
language that currently allows
petitioners to avoid liability in certain
instances despite a USCIS
determination that the petitioner
collected or planned to collect
prohibited fees. Under the current
regulations, a petitioner who was found
to have collected or entered into an
agreement to collect a prohibited fee is
not subject to denial or revocation on
notice if the petitioner demonstrates
that it reimbursed the worker prior to
the filing of the petition or, if the fee has
not yet been paid by the worker, that the
agreement has been terminated. 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1). Similarly, if USCIS
determines that the petitioner knew or
should have known at the time of filing
that its agent, facilitator, recruiter, or
similar employment service collected or
entered into an agreement to collect
prohibited fees, the current regulations
include exceptions to the requirement
that USCIS deny or revoke on notice if
the petitioner demonstrates that such
fees were reimbursed, the agreement to
collect fees was terminated prior to
collection, or, in cases where such
payment or agreement was made after
the filing of the petition, that the
petitioner notified DHS of the
prohibited fees or agreement within 2
days of learning of them. 8 CFR
214.2(h)(5)(xi)(A)(2) and (4) and 8 CFR
214.2(h)(6)(i)(B)(2) and (4).
DHS is proposing to eliminate the
above-noted exceptions to prohibited
fee-related denials or revocations that
are based solely on a petitioner’s
reimbursement, pre-payment
cancellation of a prohibited fee
agreement, or notification to DHS.
Proposed 8 CFR 214.2(h)(5)(xi)(A)(1)
and (2) and 8 CFR 214.2(h)(6)(i)(B)(1)
and (2). Whereas reimbursement, prepayment cancellation, or notification to
DHS, by itself, currently allows a
petitioner to avoid a denial or
revocation, DHS is proposing to require
the petitioner to take additional,
significant steps to prevent the unlawful
collection of fees and thus avoid a
future denial or revocation and the
additional consequences that follow.
This change is appropriate because, in
such cases, petitioners (including their
employees) or their third-party
associates (including agents, attorneys,
facilitators, recruiters, or similar
employment services) have already
engaged in wrongdoing by taking
actions that violate longstanding

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requirements of the H–2 programs,
namely, collecting or taking steps
toward collecting prohibited fees. In
addition, the collection or agreement to
collect a prohibited fee has the potential
to harm an H–2 worker even if the fee
is later reimbursed or the agreement is
cancelled prior to collection, such as by
causing the worker to go into debt
related to the payment, or anticipated
payment, of the fee.56 DHS emphasizes
the importance of petitioners
reimbursing a worker who has paid a
prohibited fee because it mitigates the
harm done to the worker. DHS is
therefore proposing to incorporate
language in the proposed rule regarding
the impact reimbursement could have
with respect to the consequences for a
determination of prohibited fees, as
discussed below.
For situations in which a petitioner
itself is found to have collected or
entered an agreement to collect
prohibited fees, such as when an
employee of the petitioner engages in
such activity, DHS proposes to hold the
petitioner or its successor accountable
by denying or revoking its approved
petition and thereby making it subject to
additional consequences described
below, except in rare cases involving
extraordinary circumstances beyond the
petitioner’s control. Proposed 8 CFR
214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1). Specifically, a
petition filed by a petitioner found to
have collected or entered into an
agreement to collect prohibited fees
would be subject to denial or revocation
on notice and the resulting additional
consequence of a 1-year to 4-year bar to
approval of subsequent petitions.
Proposed 8 CFR 214.2(h)(5)(xi)(A)(1), 8
CFR 214.2(h)(5)(xi)(B), 8 CFR
214.2(h)(6)(i)(B)(1), and 8 CFR
214.2(h)(6)(i)(C). That petitioner may
only avoid such consequences if it
demonstrates, through clear and
convincing evidence in response to a
USCIS notice of intent to deny or
revoke, both that extraordinary
circumstances beyond its control
resulted in its failure to prevent
collection or entry into agreement for
collection of prohibited fees and that it
has fully reimbursed all affected
beneficiaries and designees. Proposed 8
CFR 214.2(h)(5)(xi)(A)(1) and 8 CFR
214.2(h)(6)(i)(B)(1). The determination
56 A study conducted by the advocacy group
Centro de los Derechos del Migrante, Inc. noted that
some H–2 workers who go into debt to cover preemployment expenses are vulnerable to predatory
lending practices such as high interest rates and
exploitative collateral requirements. See CDM,
Recruitment Revealed 18 (2018), https://
cdmigrante.org/wp-content/uploads/2018/02/
Recruitment_Revealed.pdf.

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as to whether a petitioner has met this
very high standard would be made on
a case-by-case basis. As a baseline, a
petitioner would need to first
demonstrate that the extraordinary
circumstances were rare and
unforeseeable, and that it had made
significant efforts to prevent prohibited
fees prior to the collection of or
agreement to collect such fees. As the
proposed standard would require
evidence of the petitioner’s significant
efforts to prevent prohibited fees, a
petitioner would need to demonstrate
that it took affirmative steps to prevent
its employees from collecting or
agreeing to collect such fees. The
petitioner’s mere lack of awareness of its
employee’s collection or agreement to
collect such fees would not be
sufficient.
In addition to the above, a petitioner
would further need to establish that it
took immediate remedial action as soon
as it became aware of the payment of the
prohibited fee. Moreover, a petitioner
would need to demonstrate that it has
fully reimbursed all affected
beneficiaries or their designees. The
petitioner would need to establish all of
the above elements in order to avoid
denial or revocation of its petition.
While USCIS may determine that denial
or revocation is not appropriate in such
an extraordinary case, petitioners would
still be accountable for reimbursing
workers in full irrespective of the
circumstances surrounding their own
prohibited fee collections or agreements.
To further ensure against a petitioner
avoiding liability for prohibited fees,
DHS proposes to change the standards
under which a petitioner may be held
accountable for the prohibited feerelated violations of its agents,
attorneys, facilitators, recruiters, or
similar employment services. Under
current regulations, in order to hold a
petitioner liable for such actions, USCIS
must make a determination that the
petitioner ‘‘knew or should have
known’’ about any such prohibited
collection or agreement that was made
prior to filing the petition, or that any
post-filing collection or agreement was
made ‘‘with the knowledge of the
petitioner.’’ 8 CFR 214.2(h)(5)(xi)(A)(2)
and (4) and 8 CFR 214.2(h)(6)(i)(B)(2)
and (4). This requirement can make it
difficult for USCIS to deny a petition,
even if there is evidence that prohibited
fees were collected. In practice, a
petitioner may be able to avoid a denial
or revocation based on its lack of
knowledge (whether or not as a result of
its failure to exercise due diligence) or
claimed lack of knowledge of the
practices of the third parties with whom
it has done business, such as by

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submitting evidence that the petitioner’s
contract with a recruitment service
includes a clause forbidding the
collection of prohibited fees.57
In proposing changes to the abovenoted provisions, DHS seeks to clarify
and emphasize that it is a petitioner’s
responsibility to conduct due diligence
to ensure that any third-party agent,
attorney, facilitator, recruiter, or similar
employment service with whom it
conducts business will comply with H–
2 program requirements, including the
prohibition on collection of fees related
to H–2 employment. This due diligence
obligation applies irrespective of
whether the employer is in contractual
privity with such third party or whether
such third party is located or operating
in the United States. Accordingly, DHS
is proposing to hold petitioners
accountable for any prohibited feerelated violation by these third parties,
with only an extremely limited
exception.
Specifically, under DHS’s proposed
provisions, any determination that an
H–2 worker has paid or agreed to pay
a prohibited fee to the petitioner’s agent,
facilitator, recruiter, or similar
employment service would result in
denial of the petition or revocation on
notice, ‘‘unless the petitioner
demonstrates to USCIS through clear
and convincing evidence that it did not
know and could not, through due
diligence, have learned of such payment
or agreement and that all affected
beneficiaries have been fully
reimbursed.’’ Proposed 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2). DHS is also
proposing to state that, by itself, a
written contract between the petitioner
and the third party stating that such fees
are prohibited will not be sufficient to
meet this standard of proof.58 While the
language of such a contract may be
considered, additional documentation
must be provided. Relevant
documentation could include evidence
57 See, e.g., International Labor Recruitment
Working Group, The American Dream Up for Sale:
A Blueprint for Ending International Labor
Recruitment Abuse 34 (2013) (noting employers’
evasion of H–2A and H–2B prohibited fee laws by
claiming they are unaware their workers were
charged recruitment fees), https://
migrationthatworks.org/reports/the-americandream-up-for-sale-a-blueprint-for-endinginternational-labor-recruitment-abuse/.
58 DOL already requires employers to
contractually forbid third parties whom they engage
for the recruitment of workers from seeking or
receiving payments or other compensation from
prospective employees. See 20 CFR 655.9(a), 20
CFR 655.20(p), and 20 CFR 655.135(k).
Accordingly, USCIS’s acceptance of such a contract
alone as meeting the proposed standard would
mean that nearly all petitioners could avoid
liability.

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e. Consequences of a Denial or
Revocation Based on Prohibited Fees

of communications showing the
petitioner inquired about the third
party’s past practices and payment
structure to ensure that it obtains its
revenue from sources other than the
workers and/or any documentation that
was provided to the petitioner by the
third party about its payment structure
and revenue sources. DHS seeks input
from the public regarding other types of
evidence that may be relevant and
available to meet the proposed standard.
Finally, DHS is proposing to add that,
in addition to petitioners, agents,
facilitators, recruiters, and similar
employment services, the prohibited fee
provision would apply to any joint
employers in the H–2A context,
including a petitioner’s member
employers if the petitioner is an
association of U.S. agricultural
producers, and any employers (if
different from the petitioner) in the H–
2B context. Proposed 8 CFR
214.2(h)(5)(xi)(A) and 8 CFR
214.2(h)(6)(i)(B). The regulations allow
an H–2A petition to be filed by either
the employer listed on the TLC, the
employer’s agent, or the association of
U.S. agricultural producers named as a
joint employer on the TLC. 8 CFR
214.2(h)(5)(i)(A). Similar to a
petitioner’s responsibility with the
listed third parties discussed above,
DHS seeks to clarify and emphasize that
an association of U.S. agricultural
producers named as a joint employer on
a TLC and other joint employers bear
responsibility to conduct due diligence
to self-police and ensure that its
member or joint employers will comply
with H–2A program requirements.
Likewise, in a job contracting scenario
in which a petitioner brings in H–2B
workers to work for one or more
employer-clients,59 DHS seeks to clarify
and emphasize that the petitioner is
responsible for ensuring that such
employers will comply with H–2B
program requirements. Therefore,
petitioners would be held accountable
for any collection or agreement to
collect prohibited fees by any such
employers and (for H–2A) joint
employers, ‘‘unless the petitioner
demonstrates to USCIS through clear
and convincing evidence that it did not
know and could not, through due
diligence, have learned of such payment
or agreement.’’ Proposed 8 CFR
214.2(h)(5)(xi)(A)(2) and 8 CFR
214.2(h)(6)(i)(B)(2).

Under the current regulations, during
the 1-year period following an H–2A or
H–2B denial or revocation for
prohibited fees, USCIS may only
approve a petition filed by the same
petitioner for the same classification if
the petitioner demonstrates either that
each affected beneficiary has been
reimbursed in full or that it made
reasonable efforts but has failed to
locate such beneficiary(ies). 8 CFR
214.2(h)(5)(xi)(C)(1) and 8 CFR
214.2(h)(6)(i)(D). The current
regulations specify that reasonable
efforts include contacting the
beneficiary’s known addresses. 8 CFR
214.2(h)(5)(xi)(C)(1) (with respect to H–
2A workers, reasonable efforts include
‘‘contacting any of the beneficiary’s
known addresses’’); 8 CFR
214.2(h)(6)(i)(D)(1) (with respect to H–
2B workers, reasonable efforts include
‘‘contacting all of each such
beneficiary’s known addresses’’). DHS is
proposing several changes to these
provisions to increase the consequences
and provide a stronger deterrent against
prohibited fee violations, to incentivize
reimbursement when such violations
occur, and to better ensure that
petitioners do not avoid the
consequences of a denial or revocation
for such violations.
First, DHS is proposing to create a 1year bar on H–2 petition approvals
following an H–2A or H–2B denial or
revocation based in whole or in part on
prohibited fees, or following the
petitioner’s withdrawal of an H–2A or
H–2B petition if the withdrawal occurs
after USCIS issues a request for
evidence or notice of intent to deny or
revoke the petition on such a basis.
Proposed 8 CFR 214.2(h)(5)(xi)(B) and 8
CFR 214.2(h)(6)(i)(C).
During this 1-year period, the
petitioner would be barred from
approval of any H–2A or H–2B petition,
regardless of whether beneficiaries are
reimbursed for payment of prohibited
fees. Proposed 8 CFR 214.2(h)(5)(xi)(B)
and 8 CFR 214.2(h)(6)(i)(C).60 This
proposed provision is meant to reflect
the serious nature of prohibited fee
violations, which are not only illegal but
also harmful to H–2 workers. As
advocacy groups have consistently
noted, recruitment fees put workers at
risk for exploitation because workers
who incur debt to cover such fees are
vulnerable to predatory lenders and are

59 H–2B job contractors and employer-clients
must meet the requirements of the definition of an
H–2 ‘‘employer’’ under 20 CFR 655.5 and 655.19.

60 USCIS would deny any such petition filed
during this period and would not refund the filing
fee. See 8 CFR 103.2(a)(1).

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at increased risk of debt bondage,
human trafficking, and other abuses.61
In addition, for the 3 years following
the 1-year bar, DHS proposes to allow
petition approval only if each affected
beneficiary (or the beneficiary’s
designee(s), if applicable) has been
reimbursed in full, with no exceptions.
See proposed 8 CFR 214.2(h)(5)(xi)(C)
and 8 CFR 214.2(h)(6)(i)(D). Given the
serious nature of prohibited fee
violations and the significant harm to
beneficiaries who are charged such fees,
as discussed above, it would not be
appropriate to allow a violator to avoid
consequences merely by contacting any
known addresses of affected
beneficiaries or claiming inability to
locate affected beneficiaries. Instead,
DHS intends the expanded 3-year time
period during which reimbursement
would be a condition to petition
approval, as well as the removal of the
exception for failure to locate the
beneficiary(ies), to provide a
significantly stronger incentive to
ensure that beneficiaries or their
designees are in fact reimbursed.
The proposed provision would clarify
that a petitioner may only provide
reimbursement of prohibited fees to a
beneficiary’s designee if a beneficiary
cannot be located or is deceased.
Proposed 8 CFR 214.2(h)(5)(xi)(A)(1)
and 8 CFR 214.2(h)(6)(i)(B)(1). As this
provision is not meant to create a
loophole for a petitioner to avoid
reimbursement of prohibited fees by not
attempting to locate a beneficiary, the
petitioner would need to demonstrate
61 See, e.g., CDM, Recruitment Revealed 18 (2018)
(‘‘High interest rates on loans put workers at risk
of becoming trapped in debt, and exploitative
collateral requirements can cause workers to lose
essential property, such as their vehicles or even
their homes. Moreover, when workers with abusive
loans arrive in the U.S. to work, they are faced with
an additional pressure to earn back the money they
borrowed in their country of origin.’’), https://
cdmigrante.org/wp-content/uploads/2018/02/
Recruitment_Revealed.pdf; CDM, Ripe for Reform
21 (2020) (‘‘Our surveys revealed that 26% of
workers interviewed were forced to pay recruitment
fees as high as $4,500. This practice makes workers
vulnerable to abuse. Charging workers for the right
to work is illegal and is a serious risk factor for
human trafficking. Workers are less free to leave an
abusive environment when they start the job
indebted.’’), https://cdmigrante.org/ripe-for-reform/;
Polaris, On-Ramps, Intersections, and Exit Routes
43 (2018) (‘‘The financial burdens of recruitment
fees can be devastating in and of themselves but
they are also—ironically—a necessary backdrop for
trafficking to occur.’’), https://polarisproject.org/wpcontent/uploads/2018/08/A-Roadmap-for-Systemsand-Industries-to-Prevent-and-Disrupt-HumanTrafficking.pdf; Polaris, Labor Trafficking on
Specific Temporary Work Visas 16 (2022) (‘‘Having
paid substantial fees in order to get the job—and
often having gone into debt to do so—leaves
workers with little choice but to try to recoup their
losses regardless of the conditions in which they are
working.’’), https://polarisproject.org/wp-content/
uploads/2022/07/Labor-Trafficking-on-SpecificTemporary-Work-Visas-by-Polaris.pdf.

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

that it made all possible efforts to locate
the beneficiary, and then after
exhausting such efforts to locate the
beneficiary, that it reimbursed the
appropriate designee. The proposed
provision would clarify that a
beneficiary’s designee(s) must be an
individual(s) or entity(ies) for whom the
beneficiary has provided the petitioner
or its successor in interest prior written
authorization to receive such
reimbursement on the beneficiary’s
behalf, as long as the petitioner or its
successor, its agent, any employer (if
different from the petitioner) or any
joint employer, attorney, facilitator,
recruiter, or similar employment service
would not act as such designee or derive
any financial benefit, either directly or
indirectly, from the reimbursement.
Proposed 8 CFR 214.2(h)(5)(xi)(A)(1)
and 8 CFR 214.2(h)(6)(i)(B)(1). The
requirement for ‘‘prior written
authorization’’ would better ensure
USCIS’s ability to determine whether
the petitioner in fact reimbursed the
appropriate designee. The prohibition
against the petitioner or its agent,
employer (if different from the
petitioner) or any joint employer,
attorney, facilitator, recruiter, or similar
employment service from acting as the
designee or deriving any financial
benefit, either directly or indirectly,
from the reimbursement would
foreclose the possibility that any of
these parties could serve as a designee
or would use the designee provision as
a way to benefit from not reimbursing
the beneficiary.
If this provision is finalized,
petitioners would be expected, as a
matter of best practice, to obtain in
writing the beneficiary’s full contact
information (including any contact
information abroad), early on during the
recruitment process, and to maintain
and update such information as needed,
to better ensure the petitioner’s ability
to fully reimburse the beneficiary, or the
beneficiary’s designee(s), for any sums
the petitioner may be liable to pay the
beneficiary. Petitioners would also be
expected to inform the beneficiary, in a
language the beneficiary understands, of
the beneficiary’s ability to name a
designee, and obtain full designee
information, early on during the
recruitment process, and to maintain
and update such information as needed
to ensure that the petitioner has in fact
complied with the reimbursement
requirement.
Following a denial or revocation (or
withdrawal) for prohibited fees under
the proposed provisions, the maximum
total period that a petitioner’s H–2
petitions would be denied if the
petitioner failed to fully reimburse its

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workers or their designees would be 4
years. DHS believes that this period is
sufficient to incentivize compliance
with the reimbursement requirement.
DHS invites comments as to the
proposed maximum 4-year bar to the
approval of an H–2A or H–2B petition
that would apply if the petitioner
cannot demonstrate that it has in fact
reimbursed the worker(s) or their
designee(s) in full for any prohibited
fees paid.
DHS is proposing to apply the above
consequences for prohibited fees not
only to the violating petitioner, but also
to its successor in interest in order to
prevent a petitioning entity from
avoiding liability by changing hands,
reincorporating, or holding itself out as
a new entity. Proposed 8 CFR
214.2(h)(5)(xi)(B) and (C) and 8 CFR
214.2(h)(6)(i)(C) and (D). DHS proposes
to define a successor in interest as an
employer that is controlling and
carrying on the business of a previous
employer, regardless of whether such
successor in interest has inherited all of
the rights and liabilities of the
predecessor entity. Proposed 8 CFR
214.2(h)(5)(xi)(C) and 8 CFR
214.2(h)(6)(i)(D). DHS proposes to
include the term ‘‘regardless of whether
such successor in interest has succeeded
to all of the rights and liabilities of the
predecessor entity’’ in order to prevent
the new entity from avoiding liability by
intentionally assuming only some of the
petitioner’s rights and liabilities.
Proposed 8 CFR 214.2(h)(5)(xi)(C) and 8
CFR 214.2(h)(6)(i)(D) further list factors
that USCIS may consider as relevant
when determining whether an entity
would be considered a successor in
interest. As made clear in the proposed
regulatory text, no one factor is
dispositive, and USCIS would make a
determination as to whether the entity
is a successor in interest, and is
therefore liable for reimbursement,
based on the circumstances as a whole.
These proposed factors are similar,
but not identical, to the factors listed at
8 CFR 214.2(w)(1)(xiv) for the CW–1
nonimmigrant program. They are also
similar, but not identical, to the factors
listed in DOL regulations for the H–2A
and H–2B programs. See, e.g., 20 CFR
655.103(b); 20 CFR 655.5; 29 CFR 501.3;
29 CFR 503.4. To the extent that the
proposed factors differ from the ones
currently in place at 8 CFR
214.2(w)(1)(xiv) and DOL regulations,
they generally flow from factors that are
currently in place. For example,
‘‘Familial or close personal
relationships between predecessor and
successor owners of the entity’’ under
proposed factor (ix) flows from the
current factors on whether the former

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management or owner retains a direct or
indirect interest in the new enterprise,
continuity of the work force, similarity
of supervisory personnel, and the ability
of predecessor to provide relief. ‘‘Use of
the same or related remittance sources
for business payments’’ under proposed
factor (x) flows from current factors on
use of the same facilities, substantial
continuity of business operations
similarities, and similarities in
products, services, and production
methods. Furthermore, USCIS’s
adjudicative experience has shown the
proposed factors in (ix)–(x) to be
relevant when determining the
relationship between entities and/or
individuals.
Finally, the proposed bars apply
across both H–2 programs, meaning that
an H–2B denial or revocation would
trigger the bars to H–2A approval under
proposed 8 CFR 214.2(h)(5)(xi)(B) and
(C), and an H–2A denial or revocation
would trigger the bars to H–2B approval
under proposed 8 CFR 214.2(h)(6)(i)(C)
and (D). Specifically, proposed 8 CFR
214.2(h)(5)(xi)(B) states that the bar
would apply within 1 year after the
decision denying or revoking on notice
‘‘an H–2A or H–2B petition on the basis
of paragraph (h)(5)(xi)(A) or (h)(6)(i)(B),
respectively, of this section’’ (emphasis
added). Likewise, proposed 8 CFR
214.2(h)(6)(i)(C) states that the bar
would apply within 1 year after the
decision denying or revoking on notice
‘‘an H–2B or H–2A petition on the basis
of paragraph (h)(6)(i)(B) or (h)(5)(xi)(A),
respectively, of this section’’ (emphasis
added). The additional 3-year bar at
proposed 8 CFR 214.2(h)(5)(xi)(C) and
(6)(i)(D) would similarly apply to both
classifications whether the underlying
petition that was denied or revoked for
prohibited fees was an H–2A or H–2B
petition. DHS is also proposing to apply
the bars across both classifications in
cases where a petitioner withdraws the
petition after USCIS has issued a notice
of intent to deny or revoke based on the
H–2A or H–2B prohibited fee
provisions.
2. Denial of H–2 Petitions for Certain
Violations of Program Requirements
In this proposed rule, DHS, pursuant
to its general authority under INA secs.
103(a) and 214(c)(1), as well as its
specific authority under INA sec.
214(c)(14)(A)(ii) with respect to the H–
2B program, is proposing to enhance
worker protections by introducing a
provision that allows for the denial of
H–2 petitions for employers that have
been found to have committed certain
labor law violations or otherwise
violated the requirements of the H–2
programs. See proposed 8 CFR

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214.2(h)(10)(iii).62 This proposed reform
is an important addition in DHS’s efforts
to improve the integrity of the H–2
programs and to protect H–2 workers by
allowing evaluation of a petitioner’s
past compliance with certain H–2
related laws prior to USCIS approving
H–2 petitions. As noted in earlier
sections, a worker’s H–2 status is tied to
the petitioning employer only, and
worker advocates have noted that the
structure of the programs makes H–2
workers vulnerable to exploitation and
abuse. It is necessary, therefore, that
USCIS have improved tools to properly
identify and vet employers that seek to
bring in H–2 workers. The consequences
of bad actors participating in the H–2
programs can be extremely harmful.63
This proposed provision reflects DHS’s
determination that an employer’s past
conduct in relation to respecting worker
rights, as well as in relation to ensuring
the safety and working conditions of its
past or current employees, is relevant to
petition eligibility as it may inform
USCIS of that employer’s present intent
and ability to comply with H–2 laws
and requirements. The phrase ‘‘H–2
laws and requirements’’ includes the
obligations and prohibitions specifically
outlined in statutes and DHS and DOL
regulations. In addition, employers in
the H–2 program are required to comply
with ‘‘all applicable Federal, State, and
local employment-related laws and
regulations, including health and safety
laws.’’ 64
The Secretary of Homeland Security’s
authority to deny H–2 petitions for
certain past violations of program
requirements is derived from the INA
and the HSA. Specifically, INA sec.
214(c)(1), 8 U.S.C. 1184(c)(1), states that
‘‘the question of importing any
62 As previously discussed, numerous studies and
news articles have recounted instances of
employers continuing to access the H–2 programs
despite their respective records of labor law and/
or safety violations. See, e.g., Farmworker Justice,
No Way to Treat a Guest: Why the H–2A
Agricultural Visa Program Fails U.S. and Foreign
Workers (2012), https://www.farmworkerjustice.org/
wp-content/uploads/2012/05/7.2.a.6-No-Way-ToTreat-A-Guest-H-2A-Report.pdf; LIUNA, H–2B
Guest Worker Program: Lack of Accountability
Leads to Exploitation of Workers, https://
d3ciwvs59ifrt8.cloudfront.net/b156551f-4cfc-4f0eab0f-1c05b2955a44/4d0e38cb-1c2b-4b12-924c279c4e15ce31.pdf.
63 See, e.g., DOJ, U.S. Attorney’s Office, Southern
District of Georgia, Three men sentenced to federal
prison on charges related to human trafficking:
Each admitted to role in forced farm labor in
Operation Blooming Onion (Mar. 31, 2022), https://
www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking. Also see the examples of abuse and
exploitation of H–2 workers highlighted in section
III.D, Importance of the H–2 Programs and the Need
for Reforms.
64 See 20 CFR 655.20(z), 29 CFR 503.16(z); see
also 20 CFR 655.135(e).

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[noncitizen] as a nonimmigrant under
subparagraph (H) . . . of section
101(a)(15) . . . in any specific case or
specific cases shall be determined by
the [Secretary of Homeland Security],
after consultation with appropriate
agencies of the Government, upon
petition of the importing employer.’’ 65
The same provision goes on to state,
‘‘The petition shall be in such form and
contain such information as the
[Secretary of Homeland Security] shall
prescribe.’’ In addition, with respect to
H–2B petitions in which DHS has found
a substantial failure to meet any
conditions of the petition or a willful
misrepresentation of a material fact, INA
sec. 214(c)(14)(A)(ii), 8 U.S.C.
1184(c)(14)(A)(ii), states in part that the
Secretary of Homeland Security, ‘‘after
notice and an opportunity for a
hearing’’ 66 . . . ‘‘may deny petitions
filed with respect to that employer. . .
during a period of at least 1 year but not
more than 5 years. . . .’’
The proposed provision is an
expansion of existing regulatory
authority that bars approval of H–2A
petitions for 2 years after an employer
or joint employer, or a parent,
subsidiary, or affiliate is found to have
violated INA sec. 274(a), 8 U.S.C.
1324(a) (criminal penalties for
unlawfully bringing in and harboring
certain noncitizens) or to have
employed an H–2A worker in a position
other than that described in the
nonimmigrant worker petition. See 8
CFR 214.2(h)(5)(iii)(B). The existing
provision at 8 CFR 214.2(h)(5)(iii)(B) is
insufficient to address serious violations
that occur in the H–2 programs, as it
applies only to the H–2A program and
does not include all of the types of
violations that can be relevant to H–2
program compliance. DHS proposes to
replace this existing provision with a
more comprehensive provision,
proposed 8 CFR 214.2(h)(10)(iii), that
includes both mandatory and
discretionary grounds for denial
depending on the type or severity of
violations, including mandatory denial
based on a final determination(s) that
the employer violated INA sec. 274(a),
65 See

also INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1).
does not read the phrase ‘‘notice and
opportunity for a hearing’’ in INA sec. 214(c)(14) as
requiring a formal hearing under 5 U.S.C. 556.
USCIS therefore proposes to utilize its existing
informal adjudications and appeals processes to
satisfy this ‘‘notice and opportunity for a hearing’’
requirement. See 8 CFR 103.2, 103.3. See generally
Michael Asimow, Admin. Conference of the U.S.,
‘‘Federal Administrative Adjudication Outside the
Administrative Procedure Act’’ (2019) (discussing
informal adjudication), at https://www.acus.gov/
sites/default/files/documents/
Federal%20Administrative
%20Adj%20Outside%20the%20APA%20%20Final.pdf.
66 USCIS

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and DHS is therefore proposing to
remove and reserve 8 CFR
214.2(h)(5)(iii)(B).
Additionally, under existing DHS
regulations at 8 CFR 214.1(k), USCIS
may deny for a period of 1 to 5 years
any petition filed for nonimmigrant
status under INA sec. 101(a)(15)(H)
upon the petitioner’s debarment by
DOL.67 DHS would retain the provision
at 8 CFR 214.1(k) and believes the
addition of proposed 8 CFR
214.2(h)(10)(iii) would complement that
provision, in part by allowing DHS to
address instances of past labor
violations that may result in the abuse
or exploitation of individuals seeking to
come to the United States as H–2
workers, but that may not have resulted
in debarment from the H–2 programs by
DOL.68 Further, proposed 8 CFR
214.2(h)(10)(iii) would provide greater
clarity to 8 CFR 214.1(k) regarding how
the bar under 8 CFR 214.1(k) would be
applied to H–2A and H–2B petitions, as
discussed below.
Under proposed 8 CFR
214.2(h)(10)(iii), USCIS would have
authority to deny H–2 petitions for
certain past violations. The proposed
provision sets out the conditions which
would mandate USCIS denial, as well as
instances in which USCIS would
evaluate relevant factors to determine
whether a discretionary denial is
warranted. The violation findings set
forth in proposed 8 CFR
214.2(h)(10)(iii)(A) are, by nature, so
egregious and directly connected to the
H–2 programs that they warrant
mandatory denial. In contrast, the
conditions set forth in 8 CFR
214.2(h)(10)(iii)(B) could potentially be
less egregious in nature or less directly
related to the H–2 programs, and
therefore, would require additional
analysis before determining whether a
denial is warranted. These proposed
provisions are discussed in more detail
in the following subsections. Note that
under proposed 8 CFR 214.2(h)(10)(iii),
USCIS would or could deny an H–2A
petition for a violation that occurred in
the H–2B program, and vice versa.
a. Mandatory Denial Based on Certain
Violations
Proposed 8 CFR 214.2(h)(10)(iii)(A)
states that USCIS will deny any H–2A
or H–2B petition filed by a petitioner, or
the successor in interest of a petitioner
as that term is defined in proposed 8
CFR 214.2(h)(5)(xi)(C)(2) and proposed
67 Exceptions to the bar under 8 CFR 214.1(k) are
made for status under INA secs. 101(a)(15)(H)(i)(b1),
(L), (O), and (P)(i).
68 A USCIS decision to deny a petition under
proposed 8 CFR 214.2(h)(10)(iii) would not
preclude a debarment action by DOL.

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8 CFR 214.2(h)(6)(i)(D)(2), that has been
the subject of one or more of the three
actions discussed below.
First, DHS proposes mandatory denial
based on a final administrative
determination by the Secretary of Labor
under 20 CFR part 655, subpart A or B,
or 29 CFR part 501 or 503, debarring the
petitioner from filing or receiving a
future labor certification, or a final
administrative determination by the
GDOL debarring the petitioner from
issuance of future labor certifications
under applicable Guam regulations and
rules, if the petition is filed during the
debarment period, or if the debarment
occurs during the pendency of the
petition. See proposed 8 CFR
214.2(h)(10)(iii)(A)(1). The proposed
provision is consistent with the existing
authority under 8 CFR 214.1(k) to deny
petitions based on debarment, but
provides greater clarity for H–2A and
H–2B petitioners. Specifically, while 8
CFR 214.1(k) states that, upon
debarment, USCIS may deny a petition
‘‘for a period of at least 1 year but not
more than 5 years,’’ proposed 8 CFR
214.2(h)(10)(iii)(A)(1) would clarify that
USCIS must deny H–2 petitions filed
during the specific debarment period set
forth by DOL or GDOL, assuming a final
administrative determination as
specified in proposed 8 CFR
214.2(h)(10)(iii)(A). In addition, the
proposed provision clarifies that it
applies to successors in interest of the
debarred petitioner, as well as in
instances when a debarment occurs
while a petition is pending before
USCIS. The current language at 8 CFR
214.1(k) would continue to govern how
DOL debarment of an employer from the
H–2 program would affect non-H–2
petition adjudications for petitions filed
by that employer under INA sec.
101(a)(15)(H) (except for status under
INA secs. 101(a)(15)(H)(i)(b1), (L), (O),
and (P)(i)).
As the second basis for mandatory
denial, DHS proposes to include denial
or revocation of a prior H–2A or H–2B
petition that includes a finding of fraud
or willful misrepresentation of a
material fact during the pendency of the
petition or within 3 years before the
filing of the petition. See proposed 8
CFR 214.2(h)(10)(iii)(A)(2). In order to
trigger a denial under this ground, the
USCIS decision on the prior petition
must explicitly contain a finding of
fraud or willful misrepresentation of a
material fact, although fraud or willful
misrepresentation of a material fact
need not be the only ground(s) for
denial or revocation. Furthermore, the
USCIS decision must be an
administratively final decision, meaning
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appeal or the time for filing a timely
administrative appeal has elapsed.69
Because of the inherently serious and
relevant nature of a finding that the
petitioner committed fraud or willfully
misrepresented information that was
material with respect to a prior benefit
request in the H–2 programs, it is
appropriate to exclude from the program
petitioners against whom USCIS has
recently made such a finding. As to how
recent such a finding must be in order
to impact adjudication, DHS is
proposing a 3-year timeframe as this
period captures an employer’s
reasonably recent activity, which is a
highly relevant consideration with
respect to a petitioner’s current
intention and ability to comply with
program requirements. The 3-year
period generally would be sufficient to
ensure that approval of an H–2 petition
would not be detrimental to the rights
of H–2 workers or the integrity of the H–
2 program.70 DHS seeks public input on
the proposed 3-year timeframe as an
appropriate length of time to impose.
Third, DHS proposes mandatory
denial based on a final determination of
a violation under INA sec. 274(a), 8
U.S.C. 1324(a),71 during the pendency
of the petition or within 3 years before
filing the petition. See proposed 8 CFR
214.2(h)(10)(iii)(A)(3). As noted above,
this proposed provision essentially
incorporates and replaces the portion of
the existing provision at 8 CFR
214.2(h)(5)(iii)(B) that bars approval of
H–2A petitions if an employer is found
to have violated INA sec. 274(a). It also
expands upon 8 CFR 214.2(h)(5)(iii)(B)
by making the bar also applicable to H–
2B petitions, applying it to successors in
interest, and extending the 2-year bar to
3 years to make the length consistent
with the length of the other proposed
mandatory denial periods. As above,
DHS seeks public input on this
proposed time period.
In determining whether one of the
proposed mandatory grounds for denial
listed in proposed 8 CFR
214.2(h)(10)(iii)(A) is applicable to the
instant petition, USCIS would not
revisit the underlying substantive
69 See generally 8 CFR 103.3 and 8 CFR 103.4
(setting forth the appeal process for petitioners after
a decision is issued).
70 The 3-year period is consistent with the time
period set forth in INA sec. 214(c)(14)(A)(ii) with
respect to the H–2B classification. Since similar
worker protection and program integrity concerns
apply to the H–2A program, it is appropriate to use
the same timeframe with respect to the H–2A
classification.
71 INA sec. 274, 8 U.S.C. 1324, is titled ‘‘Bringing
in and Harboring Certain Aliens,’’ and paragraph (a)
covers ‘‘Criminal Penalties’’ within that section.
INA sec. 274(a) is separate and distinct from INA
sec. 274A, 8 U.S.C. 1324a, which is titled
‘‘Unlawful Employment of Aliens.’’

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determination during adjudication of
the petition. That is, USCIS is not
proposing to re-adjudicate or make an
independent finding on the merits of the
underlying final administrative
determination, criminal conviction, or
civil judgment against the petitioner.
Rather, following issuance of a request
for evidence or notice of intent to deny
the petition and providing an
opportunity for the petitioner to
respond, USCIS would determine
whether such final determination,
conviction, or judgment was made
against the petitioner or its successor in
interest within the specified time
period. Upon a determination that any
of the proposed mandatory grounds for
denial listed in proposed 8 CFR
214.2(h)(1)(iii)(A) were triggered, USCIS
would provide notice to the petitioner
indicating that the ground had been
triggered and that the petition being
adjudicated as well as any pending or
subsequently filed H–2 petitions (by the
petitioner or a successor in interest) will
be denied on the same basis during the
applicable time period. See proposed 8
CFR 214.2(h)(10)(iii)(E)(1). The denial
notice would also inform the petitioner
of the right to appeal the denial to
USCIS’s Administrative Appeals Office
(AAO), including the ability to request
an oral argument pursuant to 8 CFR
103.3.72 Providing such notice would
inform the petitioner to refrain from
filing additional H–2 petitions that
would be subject to the mandatory
ground for denial, therefore saving the
petitioner from paying filing fees.
b. Discretionary Denial Based on Certain
Violations
In addition to the mandatory denial
provision at proposed 8 CFR
214.2(h)(10)(iii)(A), discussed in the
preceding subsection, DHS also
proposes a provision at 8 CFR
214.2(h)(10)(iii)(B) that would allow
USCIS to consider other past violations
and authorize discretionary denial in
such cases when USCIS determines that
the underlying violation(s) calls into
question the petitioner’s or successor’s
intention or ability to comply with H–
2 program requirements. This proposed
provision states that USCIS may deny
any H–2 petition filed by a petitioner, or
the successor in interest of a petitioner
as defined in proposed 8 CFR
214.2(h)(5)(xi)(C)(2) and proposed 8
CFR 214.2(h)(6)(i)(D)(2), that has been
the subject of one or more of the
enumerated actions, after evaluation of
72 The denial notice would also inform the
petitioner of the ability to file a motion to reopen
or reconsider under 8 CFR 103.5(a). The filing of
a motion would not stay the denial decision. 8 CFR
103.5(a)(1)(iv).

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relevant factors listed at proposed 8 CFR
214.2(h)(10)(iii)(C). The final
administrative actions listed in
proposed 8 CFR 214.2(h)(10)(iii)(B)
would be limited to those that have
occurred during the pendency of the
petition or within 3 years before the
filing the petition. DHS is proposing this
3-year period as such a period captures
an employer’s reasonably recent
activity, which is a highly relevant
consideration with respect to a
petitioner’s current intention and ability
to comply with program requirements.
The 3-year period generally would be
sufficient to ensure that approval of an
H–2 petition would not be detrimental
to the rights of H–2 workers or the
integrity of the H–2 program.73 DHS
welcomes public input on this proposed
timeframe.
First, DHS proposes to allow USCIS to
consider a discretionary denial when
the petitioner has been the subject of a
final administrative determination by
the Secretary of Labor or GDOL with
respect to a prior H–2A or H–2B TLC
that includes: (1) revocation of an
approved TLC under 20 CFR part 655,
subpart A or B, or applicable Guam
regulations and rules; (2) DOL
debarment under 20 CFR part 655,
subpart A or B, or 29 CFR part 501 or
503, or applicable Guam regulations and
rules, if the debarment period has
concluded before filing the petition; or
(3) any other administrative sanction or
remedy under 29 CFR part 501 or 503,
or applicable Guam regulations and
rules, including assessment of civil
money penalties as described in those
parts. See proposed 8 CFR
214.2(h)(10)(iii)(B)(1). This provision is
broader than proposed 8 CFR
214.2(h)(10)(iii)(A)(1) in that it
encompasses other administrative
actions beyond debarment by the
Secretary of Labor or GDOL. With
respect to debarment, the timing of the
debarment period is what differentiates
proposed 8 CFR 214.2(h)(10)(iii)(A)(1)
from proposed 8 CFR
214.2(h)(10)(iii)(B)(1)(ii). A debarment
period that began during the last 3 years
but has already concluded before the
filing of the H–2 petition would fall
under 8 CFR 214.2(h)(10)(iii)(B)(1)(ii)
and trigger a discretionary analysis,
while a debarment period that is active
when the H–2 petition is filed or while
it remains pending would fall under the
73 The 3-year period is consistent with the time
period set forth in INA sec. 214(c)(14)(A)(ii) with
respect to the H–2B classification. Since similar
worker protection and program integrity concerns
apply to the H–2A program, it is appropriate to use
the same timeframe with respect to the H–2A
classification.

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mandatory denial provision at proposed
8 CFR 214.2(h)(10)(iii)(A)(1).
As the second basis for discretionary
denial consideration, DHS proposes to
include a USCIS decision revoking the
approval of a prior petition that
includes one or more of the following
findings: the beneficiary was not
employed by the petitioner in the
capacity specified in the petition; the
statement of facts contained in the
petition or on the application for a TLC
was not true and correct, or was
inaccurate; the petitioner violated terms
and conditions of the approved petition;
or the petitioner violated requirements
of INA sec. 101(a)(15)(H) or 8 CFR
214.2(h). See proposed 8 CFR
214.2(h)(10)(iii)(B)(2). Unlike USCIS
decisions that include a finding of fraud
or willful misrepresentation of a
material fact, these revocation decisions
could, but would not always, be
relevant to a petitioner’s intent and
ability to comply with program
requirements. Inclusion of the phrase
‘‘the beneficiary was not employed by
the petitioner in the capacity specified
in the petition’’ essentially incorporates
the existing provision at 8 CFR
214.2(h)(5)(iii)(B) that bars approval of
H–2A petitions for 2 years if an
employer is found ‘‘to have employed
an H–2A worker in a position other than
that described in the relating petition’’
and expands it to include H–2B
petitions. However, unlike current 8
CFR 214.2(h)(5)(iii)(B), which imposes a
mandatory denial, discretion is
warranted when the beneficiary was not
employed by the petitioner in the
capacity specified in the petition (for
instance, the beneficiary was performing
different duties or working outside the
identified area of employment) because
the non-compliance could have
occurred for a number of reasons, not all
of which would call into question a
petitioner’s intent and ability to comply
with program requirements going
forward. In addition, the proposed
provision would allow consideration of
other bases for revocation as listed
above that could potentially relate to a
petitioner’s intent and ability to comply
with program requirements. For
instance, a USCIS revocation finding
that the statement of facts contained in
the petition or on the application for a
TLC was not true and correct 74 could be
based on a petitioner’s confiscation and
withholding of its H–2 workers’
passports, which is both unlawful and
harmful to workers,75 and therefore
74 See

8 CFR 214.2(h)(11)(iii)(A)(2).
part of the TLC application process,
petitioners are required to attest that they will
comply with relevant laws, including 18 U.S.C.
75 As

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65059

would be highly relevant to a
petitioner’s prospective intent and
ability to comply with program
requirements.
Third, DHS proposes to allow USCIS
to consider discretionary denial based
on any final administrative or judicial
determination (other than one described
in 8 CFR 214.2(h)(10)(iii)(A)) that the
petitioner violated any applicable
Federal, State, or local employmentrelated laws or regulations, including,
but not limited to, health and safety
laws or regulations. See proposed 8 CFR
214.2(h)(10)(iii)(B)(3). This catch-all
provision is consistent with existing
DOL regulations requiring compliance
with all such laws,76 and it recognizes
that numerous Federal agencies (such as
DOL’s Occupational Safety and Health
Administration (OSHA), the Department
of Transportation (DOT), and Federal
courts), State agencies (such as State
departments of labor, State departments
of transportation, and State courts), and
local agencies (such as those involved in
setting local housing standards) have
authority in areas affecting H–2
employers and workers. While DHS
recognizes that proposed 8 CFR
214.2(h)(10)(iii)(B)(3) could be broad in
its reach, the key word ‘‘applicable’’ and
phrase ‘‘may call into question a
petitioner’s or successor’s intention or
ability to comply,’’ would limit the
scope of final determinations that
USCIS may consider relevant. For
example, USCIS would likely not
consider a single de minimis OSHA
violation 77 or a single DOT violation for
poor vehicle maintenance that did not
result in risk or harm to workers as
necessarily relevant to the petitioner’s
intention or ability to comply with H–
2A program requirements. On the other
hand, if a petitioner has, for instance, a
history of serious OSHA violations for
failure to provide workers with personal
protective equipment or a history of
DOT violations for poor vehicle
maintenance and those vehicles were
continually used to transport the
company’s H–2 workers, resulting in the
death or injury of (or risk of death or
1592(a), with respect to prohibitions against
confiscating workers’ passports. See 20 CFR
655.20(z), 20 CFR 655.135(e); Form ETA–9142A, H–
2A Application for Temporary Employment
Certification, Appendix A, and Form ETA 9142B,
H–2B Application for Temporary Employment
Certification, Appendix B, available at https://
www.dol.gov/agencies/eta/foreign-labor/forms. See
also William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Public Law
110–457; 18 U.S.C. 1592(a).
76 See 20 CFR 655.20(z), 20 CFR 655.135(e).
77 De minimis OSHA violations ‘‘have no direct
or immediate relationship to safety and health.’’
DOL, Employment Law Guide, Safety and Health
Standards: Occupational Safety and Health, https://
webapps.dol.gov/elaws/elg/osha.htm.

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injury to) H–2 workers,78 then USCIS
would likely consider those violations
relevant to the petitioner’s intention or
ability to comply with H–2A or H–2B
program requirements under proposed 8
CFR 214.2(h)(10)(iii)(B)(3).
As the denials under proposed 8 CFR
214.2(h)(10)(iii)(B)(3) would be
discretionary, DHS is proposing that
USCIS would determine whether the
violations may call into question the
petitioner’s ability or intent to comply
with H–2 program requirements by
examining all relevant factors. Proposed
8 CFR 214.2(h)(10)(iii)(C) identifies
several factors that could be relevant to
the analysis and that USCIS may
therefore consider. The listed factors are
not exhaustive; additional relevant
factors that are not listed in the
proposed provision may be considered
by USCIS in the totality, but each one,
standing alone, would not be outcome
determinative. Further, not all factors
would be relevant in all cases, and
different factors may be weighted
differently depending on the
circumstances of each case. Any one of
the factors, such as the egregiousness
and willfulness 79 of the violation(s)
under proposed 8 CFR
214.2(h)(10)(iii)(C)(2) and (5), could be
given significant weight in reviewing
the totality of the facts presented, even
if other listed factors were absent. For
example, if the petitioner willfully
committed a violation that resulted in
the death of several H–2 workers, those
two factors alone (i.e., willfulness and
egregiousness of the violation leading to
the death of the workers) could be
sufficient to warrant a discretionary
denial under proposed 8 CFR
214.2(h)(10)(iii)(B), notwithstanding the
absence of other negative factors such as
a prior history of violations or
achievement of financial gain.
In applying the proposed
discretionary analysis, USCIS officers
would use the ‘‘preponderance of the
evidence’’ standard of proof.80 Under
this standard, the evidence must
demonstrate that the petitioner’s claim

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78 See

Ken Bensinger, Jessica Garrison, Jeremy
Singer-Vine, Buzz Feed News, The Pushovers:
Employers Abuse Foreign Workers, U.S. Says, By
All Means, Hire More (May 12, 2016) (describing an
example of such an incident), https://
www.buzzfeednews.com/article/kenbensinger/thepushovers.
79 Note that a finding of willfulness must be
explicitly stated in the final agency determination,
decision, or conviction. USCIS would not
independently make a finding of willfulness under
proposed 8 CFR 214.2(h)(10)(iii)(C)(5).
80 See Matter of Chawathe, 25 I&N Dec. 369, 376
(AAO 2010) (‘‘Except where a different standard is
specified by law, a petitioner or applicant in
administrative immigration proceedings must prove
by a preponderance of evidence that he or she is
eligible for the benefit sought.’’).

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that it is willing and able to comply
with the requirements of the H–2
program is ‘‘more likely than not’’
true 81 after taking into consideration the
prior violations and any relevant factors,
both negative and positive. While
USCIS officers would evaluate whether
the petitioner, more likely than not, will
comply with H–2 requirements, USCIS
officers would not revisit the merits of
the underlying final administrative or
judicial determination against the
petitioner.
When making a determination that
any of the proposed discretionary
grounds for denial listed in proposed 8
CFR 214.2(h)(10)(iii)(B) were triggered
and that the analysis warrants a
discretionary denial, the USCIS denial
notice would indicate that the triggering
of the discretionary ground for denial
may also apply in subsequent
adjudications of pending or future H–2
petitions, depending on the facts
presented with respect to each such
petition. See proposed 8 CFR
214.2(h)(10)(iii)(E)(2). The notice would
also inform the petitioner of the right to
appeal the denial to the AAO, and the
ability to request oral argument
pursuant to 8 CFR 103.3.82
Providing such notice would enable
the petitioner to consider the impact of
the discretionary denial on future H–2
petition adjudications. It is the intention
of DHS that the petitioner or the
petitioner’s successor in interest will
take corrective actions to bring itself
into, and continue to remain in,
compliance with H–2 program
requirements. Under this proposal,
USCIS would take into consideration
any such corrective action in
subsequent adjudications of H–2
petitions filed by the petitioner or a
petitioner’s successor in interest. See
proposed 8 CFR 214.2(h)(10)(iii)(C)(8).
During the discretionary denial period,
USCIS would consider all of the
relevant factors in each separate
adjudication when exercising its
discretion under proposed 8 CFR
214.2(h)(10)(iii)(B).
c. Convictions and Determinations
Against Certain Individuals
For the purposes of the mandatory
and discretionary denials discussed
above, DHS proposes to state that a
criminal conviction or final
administrative or judicial determination
against certain individuals will be
treated as a conviction or final
81 See Matter of Chawathe, 25 I&N Dec. at 376
(AAO 2010).
82 The 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).

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administrative or judicial determination
against the petitioner or successor in
interest. The proposed regulatory text
clarifies that this would include
convictions and determinations against
a person who is acting on behalf of the
petitioning entity, which could include,
among others, the petitioner’s owner,
employee, or contractor. The proposed
regulatory text would further clarify
that, with respect to discretionary
denials under proposed 8 CFR
214.2(h)(10)(iii)(B), this would also
include convictions and determinations
against any employee of the petitioning
entity who a reasonable person in the
H–2A or H–2B worker’s position would
believe is acting on behalf of the
petitioning entity. See proposed 8 CFR
214.2(h)(10)(iii)(D).
Because an employer can rightfully be
expected to exercise due diligence over
its employees or contractors acting on
its behalf, it would not be appropriate
to allow petitioners to avoid liability
merely because an individual acting on
the entity’s behalf, rather than the entity
itself, was the subject of the final
administrative or judicial action.
Indeed, some of the most egregious
violations, such as those resulting in
criminal convictions, involve actions
against individuals in addition to any
separate actions against the business
entity that may be listed as petitioner on
an H–2A or H–2B petition. For instance,
a recent high-profile investigation into
egregious violations in the H–2A
program resulted in criminal
convictions of several individuals
related, in part, to human trafficking
and forced labor committed against H–
2 workers.83 To the extent that
convicted individuals acted in their
capacity on behalf of petitioning
employers and resulted in violations of
H–2 program requirements, such
misconduct is entirely relevant to the
adjudication of future petitions by the
petitioning employers or their
successors. Whether the denial of future
petitions would be mandatory or
discretionary under the proposed
regulation would depend on the nature
of the specific convictions or final
administrative or judicial actions. In
other words, the mandatory bar would
apply if the relevant individual was the
subject of one or more actions listed in
proposed 8 CFR 214.2(h)(10)(iii)(A), and
USCIS would have the ability to deny as
83 See DOJ, U.S. Attorney’s Office, Southern
District of Georgia, Three men sentenced to federal
prison on charges related to human trafficking:
Each admitted to role in forced farm labor in
Operation Blooming Onion, https://
www.justice.gov/usao-sdga/pr/three-mensentenced-federal-prison-charges-related-humantrafficking (Mar. 31, 2022).

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a matter of discretion if the relevant
individual was the subject of one or
more actions listed in proposed 8 CFR
214.2(h)(10)(iii)(B).
Furthermore, for the purposes of
discretionary denials under proposed 8
CFR 214.2(h)(10)(iii)(B), proposed 8 CFR
214.2(h)(10)(iii)(D)(2) would include
convictions and determinations against
‘‘an employee of the petitioning entity
who a reasonable person in the H–2A or
H–2B worker’s position would believe is
acting on behalf of the petitioning
entity.’’ Because employers can
rightfully be expected to exercise due
diligence over its employees, it would
not be appropriate to allow petitioners
to avoid liability merely by claiming
that an employee was not acting on the
petitioner’s behalf. At the same time, to
guard against the risk that the petitioner
be liable for any and all unauthorized
actions of their employees, this liability
would apply only if a reasonable person
in the worker’s position would believe
that the employee was acting on behalf
of the petitioning entity. In addition,
because liability for this population
would be limited to the discretionary
denial provision, petitioners would
have an opportunity to provide
information regarding the circumstances
of the employee’s actions, and USCIS
would consider all relevant factors in
determining whether the petitioner had
established its intention and ability to
comply with H–2 program
requirements.
3. Investigation and Verification
Authority
Pursuant to its authorities under INA
secs. 103(a) and 214, 8 U.S.C. 1103(a)
and 1184, HSA sec. 451, 6 U.S.C. 271,
and 8 CFR part 103, among other
provisions of law, USCIS conducts
inspections, evaluations, verifications,
and compliance reviews, to ensure that
a beneficiary is eligible for the benefit
sought and that all laws have been
complied with before and after approval
of such benefits. These inspections,
verifications, and other compliance
reviews may be conducted
telephonically or electronically, as well
as through physical on-site inspections
(site visits). The existing authority to
conduct inspections, verifications, and
other compliance reviews is vital to the
integrity of the immigration system as a
whole, and to the H–2A and H–2B
programs specifically. In this rule, DHS
is proposing to add regulations specific
to the H–2A and H–2B programs to
codify its existing authority and clarify
the scope of inspections and the
consequences of a refusal or failure to
fully cooperate with these inspections.
See proposed 8 CFR 214.2(h)(5)(vi)(A)

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and 8 CFR 214.2(h)(6)(i)(F)(2). The
authority of USCIS to conduct on-site
inspections, verifications, or other
compliance reviews to verify
information does not relieve the
petitioner of its burden of proof or
responsibility to provide information in
the petition (and evidence submitted in
support of the petition) that is complete,
true, and correct.84
The proposed regulations would make
clear that inspections may include, but
are not limited to, an on-site visit of the
petitioning organization’s facilities,
interviews with its officials, review of
its records related to compliance with
immigration laws and regulations, and
interviews with any other individuals or
review of any other records that USCIS
may lawfully obtain and that it
considers pertinent to verify facts
related to the adjudication of the
petition, such as facts relating to the
petitioner’s and beneficiary’s eligibility
and continued compliance with the
requirements of the H–2 program. See
proposed 8 CFR 214.2(h)(5)(vi)(A) and 8
CFR 214.2(h)(6)(i)(F)(2). The proposed
provisions would also make clear that
an H–2A or H–2B petitioner and any
employer must allow access to all sites
where the labor will be performed for
the purpose of determining compliance
with applicable H–2A and H–2B
requirements. The word ‘‘employer’’
used in this context would include H–
2B job contractors and employer-clients
as reported on the temporary labor
certification 85 and H–2A contractors 86
and joint employers, including member
employers if the petitioner is an
association of agricultural employers.
The petitioner and any employers must
also agree to USCIS officials
interviewing H–2A or H–2B workers,
and any other similarly situated
employees working for the H–2A or H–
2B employer or joint employer, if
necessary, including in the absence of
the employer or the employer’s
representatives. The interviews may
take place on the employer’s property,
or as feasible, at a neutral location
agreed to by the employee and USCIS
away from the employer’s property. The
ability to inspect any and all of the
various locations where the labor will
be performed is critical because the
84 See 8 CFR 103.2(b). In evaluating the evidence,
the ‘‘truth is to be determined not by the quantity
of evidence alone but by its quality.’’ Matter of
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010)
(quoting Matter of E–M-, 20 I&N Dec. 77, 80
(Comm’r 1989)).
85 H–2B job contractors and employer-clients
must meet the requirements of the definition of an
H–2 ‘‘employer’’ under 20 CFR 655.5 and 655.19.
86 H–2A labor contractors must meet all of the
requirements of the definition of an H–2
‘‘employer’’ under 20 CFR 655.103 and 655.132.

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purpose of a site inspection is to
confirm information related to the
petition, and any one of these locations
may have information relevant to a
given petition. In addition, DHS
proposes to require access to the sites
where H–2A workers are housed. H–2A
petitioners are required to provide
housing to H–2A workers at no cost to
the workers. See INA sec. 218(c)(4) and
20 CFR 655.1304(d). While USCIS does
not, and would not, conduct inspections
regarding the standard of housing
provided, access to H–2A worker
housing is appropriate to ensure USCIS
has access to the workers themselves
during the course of compliance review
activities. In addition, the proposed
requirement that USCIS be allowed to
interview workers without the employer
or its representatives present is based on
reports indicating that H–2 workers may
currently underreport abuse for fear of
reprisal by employers.87 The presence of
employer representatives during such
interviews can reasonably be expected
to have a chilling effect on the ability of
interviewed workers to speak freely, and
in turn, impede the Government’s
ability to ensure compliance with the
terms and conditions of the H–2
program.
The proposed regulation also states
that if USCIS is unable to verify facts
related to the H–2 petition, including
due to the failure or refusal of the
petitioner or employer to cooperate in
an inspection or other compliance
review, then the lack of verification of
pertinent facts, including from failure or
refusal to cooperate, may result in
denial or revocation of any petition for
workers performing services at the
location or locations that are a subject
of inspection or compliance review. See
proposed 8 CFR 214.2(h)(5)(vi)(A) and 8
CFR 214.2(h)(6)(i)(F)(2). A
determination that a petitioner or
employer failed or refused to cooperate
would be case-specific but could
include situations where one or more
USCIS officers arrived at a petitioner’s
worksite, made contact with the
petitioner or employer and properly
identified themselves to a petitioner’s
representative, and the petitioner or
employer refused to speak to the officers
or were refused entry into the premises
or refused permission to review human
resources records pertaining to the
beneficiary(ies). Failure or refusal to
cooperate could also include situations
where a petitioner or employer agreed to
speak but did not provide the
87 See GAO–15–154, at 37 (2015), https://
www.gao.gov/assets/gao-15-154.pdf; CDM, Ripe for
Reform 27 (2020), https://cdmigrante.org/ripe-forreform/.

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information requested within the time
period specified, or did not respond to
a written request for information within
the time period specified. Before
denying or revoking the petition, USCIS
would provide the petitioner an
opportunity to rebut adverse
information and present information on
its own behalf in compliance with 8
CFR 103.2(b)(16).
This new provision would put
petitioners on notice of the specific
consequences for noncompliance,
whether by them or the employer, if
applicable. As stated above, relevant
employers would include H–2A labor
contractors and would also include joint
employers. It has long been established
that it is the petitioner’s burden to
establish eligibility for the immigration
benefit sought. If USCIS conducts a site
visit in order to verify facts related to an
H–2A or H–2B petition or to verify that
the beneficiary is being employed
consistently with the terms of the
petition approval, and is unable to
verify relevant facts and otherwise
confirm compliance, then the petition
may be properly denied or revoked.
This would be true whether the
unverified facts relate to a petitioner
worksite or another worksite at which a
beneficiary has been or will be placed
by the petitioner. It would also be true
whether the failure or refusal to
cooperate is by the petitioner or
employer.
4. H–2 Whistleblower Protection
As noted above, DHS is proposing to
provide H–2A and H–2B workers with
‘‘whistleblower protection’’ comparable
to the protection currently offered to H–
1B workers. See proposed 8 CFR
214.2(h)(20). Under current 8 CFR
214.2(h)(20), a qualifying employer
seeking an extension of stay for an H–
1B nonimmigrant worker, or a change of
status for a worker from H–1B status to
another nonimmigrant classification, is
able to submit documentary evidence
indicating that the beneficiary faced
retaliatory action from their employer
based on a report regarding a violation
of the employer’s labor condition
application (LCA) obligations. If DHS
determines such documentary evidence
to be credible, DHS may consider any
loss or failure to maintain H–1B status
by the beneficiary related to such
violation as an ‘‘extraordinary
circumstance’’ for purposes of 8 CFR
214.1(c)(4) and 8 CFR 248.1(b). Those
regulations authorize DHS to grant a
discretionary extension of H–1B stay or
a change of status to another
nonimmigrant classification even when
the worker has failed to maintain the
previously accorded status or where

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such status expired before the extension
of stay or change of status request was
filed.88
When it proposed the H–1B
whistleblower protection provision,
DHS noted that it was required under
the American Competitiveness and
Workforce Improvement Act of 1998
(ACWIA), Public Law 101–649, to create
a process under which an H–1B
nonimmigrant worker who files a
complaint with DOL regarding such
illegal retaliation, and is otherwise
eligible to remain and work in the
United States, could seek other
employment in the United States.89
While not similarly required by statute
in the H–2A and H–2B contexts, it is
appropriate to afford such protections to
H–2A and H–2B workers in light of the
vulnerability of H–2 workers to
exploitation and abuse as described at
length above. Given DHS’s role in
ensuring the integrity of the H–2
programs and consistent with its
statutory authorities under, e.g., INA
secs. 103(a) and 214, 8 U.S.C. 1103(a)
and 1184, it is within DHS’s authority
and interest to take steps to ensure that
program violations come to light.90 As
discussed previously, a GAO report has
noted that the incidence of abuses in the
H–2A and H–2B programs may
currently be underreported, in part due
to workers’ fear of retaliation by their
employer.91 The proposed
whistleblower provision, in conjunction
with other proposed changes in this
rulemaking, including those related to
grace periods and portability, may help
mitigate the above-discussed structural
disincentives that workers could face
with respect to reporting abuses.
In order to qualify under the new
provision at proposed 8 CFR
214.2(h)(20)(ii), DHS proposes requiring
‘‘credible documentary evidence . . .
indicating that the beneficiary faced
retaliatory action from their employer
based on a reasonable claim of a
88 See Retention of EB–1, EB–2, and EB–3
Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82452 (Nov. 18, 2016) (final rule); see
also INA sec. 212(n)(2)(C)(v), 8 U.S.C.
1182(n)(2)(c)(V).
89 See Retention of EB–1, EB–2, and EB–3
Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 80
FR 81900, 81920 (Dec. 31, 2015) (proposed rule)
(citing ACWIA sec. 413 (INA sec. 212(n)(2)(C), 8
U.S.C. 1182(n)(2)(C))).
90 See, e.g., Cheney R.R. Co., Inc. v. ICC, 902 F.2d
66, 69 (D.C. Cir. 1990) (‘‘[T]he contrast between
Congress’s mandate in one context with its silence
in another suggests not a prohibition but simply a
decision not to mandate any solution in the second
context, i.e., to leave the question to agency
discretion.’’).
91 See GAO–15–154, at 37 (2015), https://
www.gao.gov/assets/gao-15-154.pdf.

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violation or potential violation of any
applicable program requirements or
based on engagement in another
protected activity’’ to be submitted in
support of the relevant petition on the
beneficiary’s behalf seeking an
extension of stay or a change of status
to another classification. To allow
flexibility in the types of documentation
that may be submitted, DHS has not
proposed specifying any particular form
that a ‘‘claim’’ or the ‘‘credible
documentary evidence’’ must take. In
this respect, the proposed provision is
similar to the approach taken in the H–
1B whistleblower provision. In the
NPRM that included the H–1B
whistleblower provision, DHS noted
that ‘‘[c]redible documentary evidence
may include a copy of the complaint
filed by the individual, along with
corroborative documentation that such a
complaint has resulted in retaliatory
action against the individual . . . .’’ 92
In the final rule, DHS noted that it ‘‘has
not limited the scope of credible
evidence that may be included to
document an employer violation.
Rather, DHS generally requests credible
documentary evidence indicating that
the beneficiary faced retaliatory action
from their employer due to a report
regarding a violation of the employer’s
LCA obligations.’’ 93 Thus, while a
formal written complaint, if available,
would be acceptable under the proposed
H–2A and H–2B whistleblower
provision, DHS does not propose a
requirement that the submitted evidence
must include a formal written
complaint, written evidence that the
worker engaged in protected activity, or
another type of written report filed by
the affected H–2 worker. DHS notes that
a report could be made orally.
DHS is proposing some variations
from the language used in the existing
H–1B whistleblower provision in order
to increase H–2 workers’ protection
from threats that could chill workers
from exercising their rights. For
instance, the proposed H–2 provision
would specify that the claim could
relate to a violation ‘‘or potential
violation,’’ as long as such claim was
reasonable, to reflect that even if a
worker is mistaken about the existence
of a violation, a complaint regarding a
potential violation is protected from
retaliation. Proposed 214.2(h)(20)(ii).
Furthermore, a report (whether made
92 See Retention of EB–1, EB–2, and EB–3
Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 80
FR 81900, at 81920 (Dec. 31, 2015).
93 See Retention of EB–1, EB–2, and EB–3
Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82454 (Nov. 18, 2016).

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orally or in writing) is not required
under proposed 8 CFR 214.2(h)(20)(ii)
in that the retaliatory action could be
either based on ‘‘a reasonable claim’’ or
‘‘based on engagement in another
protected activity.’’ In this sense, the
proposed H–2 whistleblower provision
would be broader than the current H–1B
whistleblower provision. Under
proposed 8 CFR 214.2(h)(20)(ii), a report
would not be required if the H–2
petitioner demonstrates that the
retaliatory action was based on a
worker’s engagement in a protected
activity. Examples of protected activity
include making a complaint to a
manager, employer, a labor union, or a
government agency (including a
complaint where the worker reasonably
believes there is a violation or potential
violation of applicable program
requirements or based on engagement in
other protected activities but was
mistaken about the existence of a
violation or an adjudicator determines
that the employer did not violate the
applicable program, and an employer’s
mistaken belief that a worker has made
a complaint); cooperating with a
government investigation; requesting
payment of wages; refusing to return
back wages to the employer; complaints
by a third party on behalf of an
employee; consulting with a labor
agency; exercising rights or attempting
to exercise rights, such as requesting
certain types of leave; testifying at trial;
and consulting with an employee of a
legal assistance program or an attorney
on matters related to their
employment.94
DHS recognizes that employer
retaliation is not limited to termination
of employment and could include any
number of adverse actions, including
harassment, intimidation, threats,
restraint, coercion, blacklisting,
intimidating employees to return back
wages found due (‘‘kickbacks’’), or
discrimination, that could dissuade an
employee from raising a concern about
a possible violation or engaging in other
protected activity.95 These examples do
not identify all potential fact patterns
that could constitute retaliatory action.
To ensure flexibility, and to conform to
the current approach for H–1B petitions
at 8 CFR 214.2(h)(20), DHS is not
proposing to define ‘‘retaliatory action.’’
Finally, DHS notes that the proposed
94 See 20 CFR 655.135(h); 29 CFR 501.4(a); DOL
Wage and Hour Division (WHD), Field Assistance
Bulletin No. 2022–02, https://www.dol.gov/sites/
dolgov/files/WHD/fab/fab-2022-2.pdf.
95 See 81 FR 82408, 82428. Cf. Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(concluding that an adverse action is one that might
dissuade a reasonable worker from asserting his or
her rights).

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1. Grace Periods
DHS seeks to expand and harmonize
the grace periods afforded to H–2
workers. Expanding the length and
types of grace periods afforded to H–2
workers is intended to increase worker
flexibility, mobility, and protections.
Furthermore, harmonizing grace periods
for H–2A and H–2B workers should
reduce confusion and better ensure
consistency in granting the appropriate
grace periods.
First, DHS seeks to provide workers in
both H–2 classifications with an initial
grace period of up to 10 days prior to
the petition’s validity period. Currently,
an H–2A nonimmigrant will be
admitted for an additional period of ‘‘up
to one week’’ before the beginning of the
approved validity period, see 8 CFR
214.2(h)(5)(viii)(B), while an H–2B
nonimmigrant will be admitted for an
additional period of ‘‘up to 10 days’’
before the validity period begins, see 8
CFR 214.2(h)(13)(i)(A). Under proposed
8 CFR 214.2(h)(5)(viii)(B), DHS seeks to
extend the initial grace period for H–2A
nonimmigrants to up to 10 days to align
it with the initial 10-day grace period
already afforded to H–2B
nonimmigrants under current 8 CFR
214.2(h)(13)(i)(A). DHS would maintain
the initial 10-day grace period currently
afforded to H–2Bs at 8 CFR
214.2(h)(13)(i)(A) but proposes to codify
it at proposed 8 CFR
214.2(h)(6)(vii)(A).96
The initial 10-day grace period allows
H–2B nonimmigrant workers to make
necessary preparations for their
employment in the United States.
Because an initial 10-day grace period is
a reasonable period of time to allow for
preparation for employment in the

United States, DHS has previously
afforded the 10-day grace period to
other nonimmigrant classifications.97
For this reason, DHS now proposes to
extend this initial 10-day grace period to
H–2A workers to benefit workers and
employers. As with the existing initial
grace period for H–2A and H–2B
nonimmigrants, the proposed initial
grace period would apply to their
dependents in H–4 classification by
virtue of 8 CFR 214.2(h)(9)(iv) (‘‘The
spouse and children of an H
nonimmigrant, if they are accompanying
or following to join such H
nonimmigrant in the United States, may
be admitted, if otherwise admissible, as
H–4 nonimmigrants for the same period
of admission or extension as the
principal spouse or parent.’’).
DHS further seeks to harmonize the
grace periods by providing both H–2A
and H–2B nonimmigrants a grace period
of up to 30 days following the
expiration of the petition, subject to the
3-year limitation on stay. See proposed
8 CFR 214.2(h)(5)(viii)(B); proposed 8
CFR 214.2(h)(6)(vii)(A). Having
consistent grace periods for H–2A and
H–2B workers should reduce confusion
and better ensure consistency in
granting the appropriate grace periods.
Currently, H–2A nonimmigrants have a
30-day grace period following the
expiration of their petition under 8 CFR
214.2(h)(5)(viii)(B), while H–2B
nonimmigrants have a 10-day grace
period following the expiration of their
petition under 8 CFR 214.2(h)(13)(i)(A).
Under proposed 8 CFR
214.2(h)(6)(vii)(A), both H–2A and H–
2B nonimmigrants would have the same
initial grace period of up to 10 days
before the beginning of the approved
validity period and the same grace
period of up to 30 days following the
expiration of the H–2 petition.
The post-validity 30-day grace period
at current 8 CFR 214.2(h)(5)(viii)(B) was
provided to H–2A workers so that they
would have enough time to prepare for
departure or apply for an extension of
stay based on a subsequent offer of
employment.98 In establishing this 30day grace period for H–2A workers,
DHS also noted that this period would
facilitate the then newly provided
benefit of portability to E-Verify
employers.99 As DHS is now proposing
to extend portability to H–2B workers,
DHS proposes to also extend this 30-day

96 Currently, 8 CFR 214.2(h)(6)(vii) only applies
to traded professional H–2B athletes. DHS proposes
to move this existing provision into a new
paragraph (D) within 8 CFR 214.2(h)(6)(vii) and
would move provisions generally relating to H–2B
periods of admission and limits on stay under
current 8 CFR 214.2(h)(13) to proposed 8 CFR
214.2(h)(6)(vii)(A) through (C).

97 Nonimmigrants in the E–1, E–2, E–3, H–1B1,
L–1, O–1, and TN classifications are also afforded
an initial 10-day grace period under 8 CFR
214.1(l)(i).
98 See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 76891, 76903 (Dec. 18,
2008).
99 See id.

retaliatory action provision under 8 CFR
214.2(h)(20)(i)–(ii) would not preclude
other sets of facts from potentially
qualifying as ‘‘extraordinary
circumstances’’ under 8 CFR 214.1(c)(4)
and 8 CFR 248.1(b). For example, if an
H–2 worker is involved in a labor
dispute or terminates employment
because of unsafe working conditions,
that could still qualify as ‘‘extraordinary
circumstances’’ under 8 CFR 214.1(c)(4)
and 8 CFR 248.1(b) even if the worker
did not face retaliatory action from the
employer, as required under proposed 8
CFR 214.2(h)(20)(ii).
B. Worker Flexibilities

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grace period to H–2B workers in order
to facilitate the use of this benefit. As
proposed, USCIS will include such
grace period when extending workers’
H–2A or H–2B status or changing their
status to H–2A or H–2B status, subject
to the 3-year maximum limitation of
stay.
In this context, ‘‘subject to the 3-year
maximum limitation of stay’’ means that
an H–2 worker who has reached their 3year limitation of stay would not be
afforded a post-validity grace period, or
that an H–2 worker approaching their 3year limitation of stay may be afforded
a post-validity grace period of less than
30 days. Because grace periods count
towards an H–2 worker’s 3-year
limitation on stay, proposed 8 CFR
214.2(h)(5)(viii)(B) and proposed 8 CFR
214.2(h)(6)(vii)(A) would both state that,
following the expiration of the H–2A or
H–2B petition, the H–2 worker will be
admitted for an additional period of ‘‘up
to 30 days subject to the 3-year
limitation.’’ This would represent a
change from the language at current 8
CFR 214.2(h)(5)(viii)(B) and 8 CFR
214.2(h)(13)(i)(A) which do not contain
the same ‘‘up to’’ or ‘‘subject to’’
language with respect to the 30-day or
10-day post-validity grace period for H–
2A workers or H–2B workers, but would
clarify, consistent with USCIS practice,
that the general 3-year maximum limit
on H–2A or H–2B stay includes their
respective grace periods. Current USCIS
practice is to shorten the post-validity
grace period if the H–2 worker is
approaching their 3-year maximum
limitation of stay so that the total period
of stay does not exceed 3 years.
Proposed 8 CFR 214.2(h)(5)(viii)(B) and
proposed 8 CFR 214.2(h)(6)(vii)(A)
would conform with and clarify current
practice.100
Third, DHS seeks to provide a new
60-day grace period following a
cessation of H–2 employment, for
example, if the H–2 worker was
terminated, has resigned, or otherwise
ceased employment prior to the end
date of their authorized validity period.
Under proposed 8 CFR
214.2(h)(13)(i)(C), an H–2A or H–2B
beneficiary (and their dependents)
100 DHS believes its previous characterization of
the post-validity grace periods as ‘‘absolute’’ could
be erroneously construed as extending the
maximum period of H–2 stay beyond three years.
See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 8230, 8235 (Feb. 18, 2008)
(‘‘This rule proposes to extend the H–2A admission
period following the expiration of the H–2A
petition from not more than ten days to an absolute
thirty-day period. See proposed 8 CFR
214.2(h)(5)(viii)(B).’’). The reference to ‘‘an absolute
thirty-day’’ period should have read ‘‘a maximum
thirty-day period, subject to an absolute maximum
period of H–2A stay of three years.’’ This NPRM
proposes to clarify this point.

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would not be deemed to have failed to
maintain nonimmigrant status, and
would not accrue any period of
unlawful presence for purposes of
section 212(a)(9) of the Act, 8 U.S.C.
1182(a)(9), solely on the basis of a
cessation of the employment on which
the beneficiary’s classification was
based, for 60 consecutive days or until
the end of the authorized period of
admission, whichever is shorter. The
‘‘authorized period of admission’’ in
proposed 8 CFR 214.2(h)(13)(i)(C) refers
to the end date listed on a worker’s
Form I–94, which will normally be a
date 30 days after the end of the petition
validity period to account for the 30-day
grace period at proposed 8 CFR
214.2(h)(5)(viii)(B) or proposed 8 CFR
214.2(h)(6)(vii). Accordingly, an H–2
worker who ceases employment less
than 60 days before the end of the
period of admission will be afforded a
grace period through the remainder of
the authorized period of admission.
The 60-day grace period under
proposed 8 CFR 214.2(h)(13)(i)(C)
would be available only once during
each authorized period of admission. In
addition, an H–2 worker who already
had a 60-day grace period for cessation
of employment under proposed 8 CFR
214.2(h)(13)(i)(C) would not receive
another 30-day grace period under
proposed 8 CFR 214.2(h)(5)(viii)(B) or
proposed 8 CFR 214.2(h)(6)(vii) at the
end of the 60-day grace period.
Proposed 8 CFR 214.2(h)(13)(i)(C)
would offer relief to H–2 workers whose
employment ceased before the
expiration of their petition validity,
regardless of the reason for employment
cessation. The proposed 60-day grace
period may be used to seek new
employment, make preparations for
departure from the United States, or
seek a change of status to a different
nonimmigrant classification. For
example, an H–2 worker could use this
grace period to seek new employment
after leaving an abusive employment
situation, stopping work due to
unforeseen hazardous conditions, or if
their employer had to terminate
employment due to contract
impossibility.101 DHS is proposing this
60-day grace period following a
cessation of employment to allow H–2
workers sufficient time to respond to
sudden or unexpected changes related
to their employment. Because a
cessation of employment may come as
an unexpected and harsh burden on an
already financially vulnerable H–2
worker, and the likelihood that a 30-day
grace period would not be sufficient to
find new employment or make other
101 See

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appropriate arrangements, DHS is
proposing a 60-day grace period as
opposed to the shorter 30-day grace
period following the expiration of the
H–2 petition under proposed 8 CFR
214.2(h)(5)(viii)(B) or proposed 8 CFR
214.2(h)(6)(vii).
While the 60-day grace period at
proposed 8 CFR 214.2(h)(13)(i)(C)
would be similar to the one afforded to
nonimmigrants included under 8 CFR
214.1(l)(2), there are notable differences.
Unlike the grace period in 8 CFR
214.1(l)(2), the grace period at proposed
8 CFR 214.2(h)(13)(i)(C) would be set at
either 60 days or the end date of the
authorized period of admission,
whichever is shorter.’’ 102 DHS’s intent
in proposing a grace period that would
be set at either 60 days, or the end date
of the authorized period of admission if
shorter than 60 days, is to give more
certainty to affected H–2 workers of the
time they have in the grace period.
Giving more certainty of the length of
the grace period could help alleviate
some fears held by H–2 workers who are
facing abusive employment situations,
or otherwise wish to change jobs, but
are reluctant to leave such employment
due to uncertainty surrounding whether
they would benefit from a grace period
and how long the grace period would
be.
The rulemaking promulgating current
8 CFR 214.1(l)(2) explained that the 60day grace period is discretionary, and
that DHS may determine whether to
grant or shorten the grace period based
on an individualized assessment that
considers the totality of the
circumstances surrounding the
cessation of employment and the
beneficiary’s activities after such
cessation.103 While this reasoning
remains valid for highly skilled
nonimmigrants in the E–1, E–2, E–3, H–
1B, H–1B1, L–1, O–1, and TN
classifications, DHS believes this
reasoning is less persuasive for H–2
nonimmigrants who, as discussed
throughout this proposed rule, generally
are particularly vulnerable to abusive
labor practices. As such, it is our view
that H–2 workers would benefit greatly
from the increased certainty of this
proposed 60-day grace period.
DHS acknowledges that proposed 8
CFR 214.2(h)(13)(i)(C) would not
prevent an H–2 worker whose employer
had good cause to terminate their
employment from receiving the 60-day
grace period upon cessation of
102 Retention of EB–1, EB–2, and EB–3 Immigrant
Workers and Program Improvements Affecting
High-Skilled Nonimmigrant Workers, 81 FR 82398,
82438–39 (Nov. 18, 2016).
103 81 FR 82439.

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
employment. The rulemaking
promulgating current 8 CFR 214.1(l)(2)
explained that the ‘‘up to’’ language was
specifically intended to allow DHS to
shorten or entirely refuse the 60-day
grace period for violations of status,
unauthorized employment during the
grace period, fraud or national security
concerns, or criminal convictions,
among other reasons.104 However, DHS
believes that situations where it would
need to shorten or eliminate the grace
period for such reasons would be rare,
and that the importance of protecting
H–2 workers substantially outweighs
the risk that some H–2 workers who
might not be deserving would also
benefit from this proposed provision.
Further, the proposed limitation that
this grace period would apply ‘‘solely
on the basis of a cessation of
employment’’ (emphasis added) should
mitigate the risk that some workers
would try to use this grace period to
engage in unauthorized employment or
other unlawful behavior.
Proposed 8 CFR 214.2(h)(13)(i)(C)
would also specify that the H–2 worker
‘‘will not accrue any period of unlawful
presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9))’’ solely on the
basis of a cessation of employment. This
language is intended to assure H–2
workers that a cessation of employment,
in and of itself, would not automatically
start the accrual of unlawful presence.
While current 8 CFR 214.1(l)(2) does not
explicitly mention unlawful presence,
the phrase in current 8 CFR 214.1(l)(2)
‘‘shall not be considered to have failed
to maintain nonimmigrant status’’
already implies that the nonimmigrants
covered by that provision also will not
accrue unlawful presence solely on the
basis of a cessation of the employment.
Therefore, the inclusion of the phrase
‘‘will not accrue any period of unlawful
presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9))’’ in proposed 8
CFR 214.2(h)(13)(i)(C) would not
represent a substantive change from
current 8 CFR 214.1(l)(2).
Proposed 8 CFR 214.2(h)(13)(i)(C)
would not require H–2 workers to notify
DHS or USCIS that they are ceasing
employment in order to take advantage
of the new grace period. DHS notes that
it has not proposed to eliminate the
separate requirements that H–2A and
H–2B employers notify DHS when a
worker does not report for work, is
terminated, or the work is completed
more than 30 days early under 8 CFR
214.2(h)(5)(vi)(B) and 8 CFR
214.2(h)(6)(i)(F), as this information
collection continues to have value.
However, as is reinforced in the grace
104 81

FR 82438–39.

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period provision at proposed 8 CFR
214.2(h)(13)(i)(C), such notification by
an employer would not be considered
an indication that a worker is
immediately out of status. DHS notes
that in subsequent petitions on the
workers’ behalf, information or evidence
may be requested regarding the date of
cessation to demonstrate maintenance of
status (for instance, by showing that a
new petition requesting extension of
stay was filed within 60 days after the
beneficiary ceased employment with the
prior employer).
Fourth, DHS proposes to provide a
new 60-day grace period following the
revocation of an approved H–2 petition.
Under proposed 8 CFR 214.2(h)(11)(iv),
an H–2 beneficiary (and their
dependents) would not be deemed to
have failed to maintain nonimmigrant
status, and would not accrue any period
of unlawful presence under section
212(a)(9) of the Act (8 U.S.C. 1182(a)(9)),
solely on the basis of the petition
revocation for a 60-day period following
the revocation of the petitioner’s H–2
petition on their behalf, or until the end
of the authorized period of admission,
whichever is shorter. DHS is proposing
this additional 60-day grace period
following revocation of a petition
approval to give H–2 workers another
layer of protection and stability because
a worker cannot always anticipate if and
when the H–2 petition on their behalf
may be revoked, and moreover, if and
when the petitioning employer may
provide them with notification of the
petition revocation. This proposed 60day grace period would provide these
workers with additional time to make
arrangements for departure, to seek an
extension based on a subsequent offer of
employment, or seek a change of status
to a different nonimmigrant
classification. However, depending on
when a worker reaches their 3-year
maximum limitation of stay, the postrevocation grace period under proposed
8 CFR 214.2(h)(11)(iv) may be less than
60 days or may not be available.105 As
the post-revocation grace periods for
both H–2A and H–2B workers are
covered by proposed 8 CFR
214.2(h)(11)(iv), DHS is also proposing
to remove the current provision at 8
CFR 214.2(h)(5)(xii).106
105 As with current practice, all time spent in the
United States pursuant to the proposed 10-day, 30day, and 60-day grace periods described above
would be considered time spent in H–2A or H–2B
status and would count toward the 3-year limitation
of stay.
106 The existing provision at 8 CFR
214.2(h)(5)(xii) also includes language providing
that an employer’s H–2A petition is immediately
and automatically revoked if DOL revokes the
underlying TLC, but that language is not needed as

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None of the proposed grace periods
would independently authorize the
beneficiary to work. See proposed 8 CFR
214.2(h)(5)(viii)(B) (‘‘Unless authorized
under 8 CFR 274a.12, the beneficiary
may not work except during the validity
period of the petition.’’); proposed 8
CFR 214.2(h)(6)(vii) (‘‘Unless authorized
under 8 CFR 274a.12, the beneficiary
may not work except during the validity
period of the petition.’’); proposed 8
CFR 214.2(h)(11)(iv) (‘‘During such a
period, the alien may only work as
otherwise authorized under 8 CFR
274a.12.’’); and proposed 8 CFR
214.2(h)(13)(i)(C) (‘‘During such a
period, the alien may only work as
otherwise authorized under 8 CFR
274a.12.’’). In this regard, DHS proposes
to stay consistent with the current
framework for grace periods afforded to
H–2 workers at 8 CFR
214.2(h)(5)(viii)(B) (‘‘Unless authorized
under 8 CFR 274a.12 . . ., the
beneficiary may not work except during
the validity period of the petition.’’) 107
and 8 CFR 214.2(h)(13)(i)(A) (‘‘The
beneficiary may not work except during
the validity period of the petition.’’), as
well as the grace periods afforded to
other nonimmigrant classifications at 8
CFR 214.1(l)(1) (‘‘Unless authorized
under 8 CFR 274a.12, the alien may not
work except during the validity period
of the petition.’’) and 8 CFR 214.1(l)(2)
(‘‘Unless authorized under 8 CFR
274a.12, the alien may not work except
during such a period.’’). None of these
existing grace period provisions
independently authorize employment. It
has long been the policy of DHS that
grace periods do not authorize
employment.108
Nevertheless, stakeholders have
recommended that DHS provide a grace
period with employment
authorization.109 To the extent that
work authorization for H–2 workers
prior to or subsequent to petition
validity and after a petition is revoked
is permissible, consistent with INA sec.
it is covered by the existing provision at 8 CFR
214.2(h)(11)(ii).
107 The current provision at 8 CFR
214.2(h)(5)(viii)(B) contains a reference to
employment authorization under section 214(n) of
the Act. However, as that section of the Act relates
only to portability for H–1B nonimmigrants, DHS
proposes to eliminate that reference from proposed
8 CFR 214.2(h)(5)(viii)(B).
108 See, e.g., Retention of EB–1, EB–2, and EB–3
Immigrant Workers and Program Improvements
Affecting High-Skilled Nonimmigrant Workers, 81
FR 82398, 82439 (Nov. 18, 2016) (‘‘Consistent with
longstanding policy, DHS declines to authorize
individuals to work during these grace periods.’’).
109 See, e.g., Letter from Migration that Works to
DHS dated May 17, 2022; Letter from Centro de los
Derechos del Migrante, Inc. to DHS dated June 1,
2022. These letters are included in the docket for
this proposed rulemaking.

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214(c)(1), DHS does not consider a grace
period with employment authorization
to be feasible and therefore did not
propose such a provision in this NPRM.
For example, DHS considered
operational challenges and costs
associated with issuing appropriate
evidence of work authorization within
such a short period of time. DHS
ultimately determined that creating a
process whereby, upon cessation of
employment, a worker would file, with
fee, a request for work authorization for
a limited period of 60 days and receive
evidence of that work authorization
before the 60-day period had elapsed,
likely would not be an attractive option
for the filer nor operationally feasible
for the agency. DHS additionally
considered whether it should allow
work authorization without issuing an
actual employment authorization
document to the worker. DHS ultimately
determined this to be an unacceptable
potential solution in recognition of the
difficulties employers would face in
satisfying the employment verification
requirements of section 274A of the Act,
as well as the potential for abuse or
fraud inherent in allowing employment
authorization without proper
documentation.
DHS did consider different lengths of
time for the grace periods under
proposed 8 CFR 214.2(h)(11)(iv) and
proposed 8 CFR 214.2(h)(13)(i)(C),
specifically, 30 or 90 days. However,
DHS chose to propose 60 days in order
to be consistent with the grace period
already provided to other nonimmigrant
classifications and because 60 days
should allow sufficient time to respond
to sudden or unexpected changes
related to their employment.110

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2. Transportation Costs for Revoked H–
2 Petitions
In addition to the post-revocation
grace period discussed above, proposed
8 CFR 214.2(h)(11)(iv) would state that,
upon revocation of an H–2A or H–2B
petition, the petitioning employer
would be liable for the H–2 beneficiary’s
reasonable costs of return transportation
to their last place of foreign residence
abroad, unless the beneficiary obtains
an extension of stay based on an
approved petition in the same
classification filed by a different
employer. Such a requirement already
110 As stated in the final rule codifying the 60-day
grace period for cessation of employment under 8
CFR 214.1(l)(2) that applies to other nonimmigrant
classifications, 60 days allows ‘‘sufficient time to
respond to sudden or unexpected changes related
to their employment.’’ Retention of EB–1, EB–2, and
EB–3 Immigrant Workers and Program
Improvements Affecting High-Skilled
Nonimmigrant Workers, 81 FR 82398, 82438 (Nov.
18, 2016).

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exists at 8 CFR 214.2(h)(6)(i)(C) for H–
2B revocations, but not for H–2A
revocations. As DHS recognized when
promulgating 8 CFR 214.2(h)(6)(i)(C) in
2008, this requirement would
‘‘minimize the costs to H–2B workers
who are affected by the revocation of a
petition.’’ 111 This proposed provision is
necessary in light of the overall intent
of this regulation to provide protections
for both H–2A and H–2B workers from
bearing fees and costs that are primarily
for the benefit of their H–2 employers,
ensuring parallel treatment of
prohibited fees for both H–2A and H–2B
workers, and providing consistency
with current DOL regulations governing
return transportation fees with respect
to H–2A workers.112 Finally, DHS
proposes to codify this requirement
within 8 CFR 214.2(h)(11)(iv), which
deals generally with petition
revocations, rather than having
duplicate language in both 8 CFR
214.2(h)(5) and (6).
DHS is not proposing changes related
to transportation costs outside of the
revocation scenario. Under the existing
regulation at 8 CFR 214.2(h)(6)(vi)(E), an
employer is responsible for the return
transportation costs of an H–2B worker
if the worker is dismissed for any reason
other than if the worker ‘‘voluntarily
terminates his or her employment’’ prior
to the expiration of the validity period.
DHS notes that an H–2B worker who is
leaving an abusive employment
situation would not be considered to
have ‘‘voluntarily’’ terminated the
employment, so the employer’s
responsibility for transportation costs
would still apply. While there is no
parallel provision in the DHS H–2A
regulations, DOL H–2A regulations at 20
CFR 655.122(h)(2) and (n) already
render an employer responsible to pay
for return transportation costs when a
worker’s employment ends early, unless
the worker ‘‘voluntarily abandons
employment’’ or is terminated for cause
and the employer properly notifies DOL
and DHS of the separation, and related
DOL guidance clarifies that departure
due to intolerable working conditions
would not constitute voluntary
111 See

Changes to Requirements Affecting H–2B
Nonimmigrants and Their Employers, 73 FR 49109,
49113 (Aug. 20, 2008).
112 See current 20 CFR 655.122(h)(2). Subsequent
to DHS’s publication of its current H–2A
regulations in 2008, the Department of Labor
revised its H–2A regulations regarding return
transportation fees. See 87 FR 61660 (Oct. 12, 2022);
75 FR 6883 (Feb. 12, 2010); see also DOL Wage and
Hour Division, Field Assistance Bulletin, 2009–02,
available at https://www.dol.gov/sites/dolgov/files/
WHD/legacy/files/FieldAssistanceBulletin2009_
2.pdf; current 8 CFR 214.2(h)(5)(xi)(A) (specifically
limiting the payment of costs and fees by H–2A
beneficiaries to those not prohibited by DOL
regulations).

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abandonment.113 With respect to both
the H–2A and H–2B classifications, if
USCIS were to determine that an
employer failed to pay transportation
costs that were required under DHS or
DOL regulations, thereby passing the
costs on to H–2 workers, this failure
would constitute an indirect collection
of a prohibited fee under the provisions
at 8 CFR 214.2(h)(5)(xi)(A) or 8 CFR
214.2(h)(6)(i)(B), respectively, and
under the proposed regulations would
subject the employer to the resulting
consequences described in 8 CFR
214.2(h)(5)(xi)(B) and (C) or 8 CFR
214.2(h)(6)(i)(C) and (D). Alternately,
depending on the nature of any related
final determinations made by USCIS or
DOL, such action could potentially
make the employer subject to the
consequences described in 8 CFR
214.2(h)(10)(iii)(A) through (D), if
applicable.
3. Portability
To provide additional flexibility to H–
2 workers as well as to employers by
allowing workers in the United States to
begin new employment in the same
classification more expeditiously,
thereby avoiding gaps in employment
and potential hardship to workers, as
well as provide employers with better
access to available and willing workers,
DHS proposes to permanently provide
portability to H–2 workers. Specifically,
DHS proposes that an eligible H–2A or
H–2B nonimmigrant would be
authorized to start new employment
upon the proper filing of a nonfrivolous
H–2A or H–2B extension of stay petition
filed on behalf of the worker, or as of the
requested start date, whichever is later.
See proposed 8 CFR 214.2(h)(2)(i)(I);
proposed 8 CFR 274a.12(b)(21); see also
proposed 8 CFR 214.2(h)(2)(i)(D).114
Proposed 8 CFR 214.2(h)(2)(i)(I) would
define an ‘‘eligible H–2A or H–2B
nonimmigrant’’ as an individual: (1)
who has been lawfully admitted into the
United States in, or otherwise provided,
H–2A or H–2B nonimmigrant status; (2)
on whose behalf a nonfrivolous H–2A or
113 See DOL Wage and Hour Division, Field
Assistance Bulletin No. 2012–1 (Feb. 28, 2012) (‘‘[I]f
a worker departs employment because working
conditions have become so intolerable that a
reasonable person in the worker’s position would
not stay, the worker’s departure may constitute a
constructive discharge and not abandonment.’’),
https://www.dol.gov/agencies/whd/field-assistancebulletins/2012-1.
114 In addition to adding a reference to the newly
added portability provision, DHS’s proposed
changes to 8 CFR 214.2(h)(2)(i)(D) include replacing
the reference to ‘‘Form I–129’’ with a more general
reference to a petition ‘‘for a nonimmigrant
worker.’’ Where feasible, DHS prefers to change
specific form names to a more general reference in
case of future changes to the form name or number.

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H–2B petition 115 for new employment
has been properly filed, including a
petition for new employment with the
same employer, with a request to amend
or extend the H–2A or H–2B
nonimmigrant’s stay in the same
classification that the nonimmigrant
currently holds, before the H–2A or H–
2B nonimmigrant’s period of stay
authorized by the Secretary of
Homeland Security expires; and (3) who
has not been employed without
authorization in the United States from
the time of last admission through the
filing of the petition for new
employment.116
Currently, H–2A nonimmigrants only
have portability if they are porting to a
new employer that has enrolled in and
is a participant in good standing in EVerify, subject to any conditions and
limitations noted on the initial
authorization, except as to the employer
and place of employment. See 8 CFR
274a.12(b)(21). DHS initially limited H–
2A portability to E-Verify employers to
incentivize the use of E-Verify and to
reduce opportunities for unauthorized
workers to work in the agricultural
sector.117 However, because DHS is
seeking to increase the ability of H–2A
workers to change employers, especially
in circumstances where a worker is
facing dangerous or abusive working
conditions, the proposed portability
provision for H–2A workers would not
be limited to E-Verify employers, thus
allowing greater flexibility to workers.
See proposed 8 CFR 274a.12(b)(21).118
While H–2B nonimmigrants can
currently port to a new H–2B employer,
this portability flexibility is only
temporarily in place until the end of
January 24, 2024. In contrast, the
proposed portability provisions for both
H–2A and H–2B workers would be
115 For instance, the filing of a petition
unsupported by a temporary labor certification
would be considered frivolous.
116 This definition would be the same definition
of who is ‘‘eligible’’ for H–1B portability under 8
CFR 214.2(h)(2)(i)(H). More generally, the H–2
portability provisions at proposed 8 CFR
214.2(h)(2)(i)(I) substantively mirror the existing H–
1B portability provisions at 8 CFR 214.2(h)(2)(i)(H),
except that the H–2 portability provisions would
not refer to ‘‘concurrent’’ employment because H–
2 employment must be full-time, thereby
precluding concurrent employment. The H–2
portability provisions would also contain new
language at proposed 8 CFR 214.2(h)(2)(i)(I)(3).
117 See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 8230, 8235 (Feb. 13, 2008)
(NPRM); Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 76891, 76905 (Dec. 18, 2008)
(final rule).
118 DHS remains committed to promoting the use
of E-Verify to ensure a legal workforce; however,
DHS no longer believes it is appropriate to restrict
the benefit of portability to H–2A workers seeking
employment with E-Verify employers particularly
given the need to increase these workers’ mobility.

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permanent and would apply to new
employment in the same classification
with the same or different employer.
See proposed 8 CFR
214.2(h)(2)(i)(I)(1)(ii) (‘‘including a
petition for new employment with the
same employer’’). Further, current H–2A
portability is limited to a maximum of
120 days from the receipt date of the
new petition, see 8 CFR 274a.12(b)(21),
while the current temporary H–2B
portability is only valid for up to 60
days as of the receipt date of the new
petition or the start date on the new
petition, whichever is later, see 8 CFR
214.2(h)(29); 8 CFR 274a.12(b)(33). The
proposed H–2 portability that allows
new employment would continue as
long as the new H–2 petition remains
pending, and would automatically cease
upon the adjudication or withdrawal of
the H–2 petition. See proposed 8 CFR
214.2(h)(2)(i)(I)(2) and proposed 8 CFR
274a.12(b)(21).
In addition, the proposed portability
provision would not limit employment
to the conditions and limitations noted
on the initial authorization, but would
allow workers to perform entirely
different jobs within the same
nonimmigrant classification, while still
being afforded the protections of this
proposed rule. See proposed 8 CFR
274a.12(b)(21). Doing so would provide
more flexibility to employers and
workers, regardless of whether the
beneficiary would begin a new job with
the same employer or move to a new
employer. Specifically, while H–2A and
H–2B workers, among others, can
currently continue to work for the same
employer for a period not to exceed 240
days based on a timely filed extension
of stay pursuant to 8 CFR
274a.12(b)(20), that authorization is
limited to the conditions and limitations
noted on the initial authorization, and
therefore requires the worker to
continue to be employed in the position
described in the initially approved
petition. In contrast, the proposed
portability provision provides more
flexibility for both employers and
beneficiaries by allowing beneficiaries
to start working in the same or different
job within the same nonimmigrant
classification pursuant to a newly filed
nonimmigrant visa petition after that
petition is properly filed but before it is
approved. See proposed 8 CFR
214.2(h)(2)(i)(I).
The proposed provision also
addresses circumstances where there
may be successive portability petitions.
In those cases the ability to port would
end when any successive H–2A or H–
2B portability petition in the succession
is denied, unless the beneficiary’s
previously approved period of H–2A or

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H–2B status remains valid. See
proposed 8 CFR 214.2(h)(2)(i)(I)(4)(ii).
The denial of a successive portability
petition would not, however, affect the
ability of an H–2A or H–2B beneficiary
to continue or resume working in
accordance with the previously
approved H–2A or H–2B petition, if that
petition remains valid and the
beneficiary maintained H–2A or H–2B
status or a period of authorized stay and
has not been employed in the United
States without authorization. See
proposed 8 CFR 214.2(h)(2)(i)(I)(4)(iii).
Note that the portability provisions at
proposed 8 CFR 214.2(h)(2)(i)(I) would
not allow an H–2A worker to port to an
H–2B employer, or vice versa.
DHS is also proposing to clarify that
a beneficiary of an H–2 portability
petition generally is considered to have
been in a period of authorized stay
during the pendency of the petition and
generally will not be considered to have
been employed in the United States
without authorization. Specifically,
during the pendency of the H–2
portability petition, and
notwithstanding any subsequent denial
or withdrawal of that petition, a
beneficiary will not be considered to
have been in a period of unauthorized
stay during the pendency of the petition
and will not be considered to have been
employed in the United States without
authorization solely on the basis of
employment pursuant to that petition.
See proposed 8 CFR 214.2(h)(2)(i)(I)(3).
In addition, by filing a new H–2A or H–
2B petition supported by a valid
temporary labor certification on behalf
of the beneficiary seeking to port, the
petitioner and any employer agrees to
comply with the applicable H–2A or H–
2B program requirements. Therefore,
during the employment period when
that beneficiary is working while the H–
2 portability petition filed on the
beneficiary’s behalf is pending, the new
petitioner and any employer,119 as well
as the beneficiary, are subject to H–2A
or H–2B program requirements, as
applicable under the relevant program,
including worker protections, even if
the relevant petition is subsequently
withdrawn or denied. See proposed 8
CFR 214.2(h)(2)(i)(I)(3).
DHS believes that its proposal to
extend portability, particularly when
combined with the extended grace
periods, would benefit H–2 workers and
employers. These provisions would
work together to provide an H–2 worker
119 We note that in some cases, the petitioner may
be different from the employer, such as when the
petitioner is an association of agricultural
employers filing the petition on behalf of its
member-farmers as an agent, and not as a joint
employer.

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facing dangerous or abusive working
conditions, for instance, the ability to
leave their employer and still maintain
status for 60 days. If during those 60
days the worker finds a new H–2
employer, they could begin working for
that new employer immediately upon
the filing of a new nonfrivolous H–2
petition on the worker’s behalf.120 The
proposed portability provisions together
with the proposed grace period
provisions would therefore improve H–
2 worker flexibilities and protections.
In addition, employers would benefit
from these provisions by having more
time to recruit H–2 workers during the
extended grace periods and being able
to employ H–2 workers upon filing of
the petition rather than having to wait
for petition approval. For petitioners
seeking workers under the cap-subject
H–2B classification, this would also
serve as an alternative for those who
have not been able to find U.S. workers
and have not been able to obtain H–2B
workers subject to the statutory
numerical limitations.121

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4. Effect on an H–2 Petition of Approval
of a Permanent Labor Certification,
Immigrant Visa Petition, or the Filing of
an Application for Adjustment of Status
or an Immigrant Visa
DHS proposes to increase flexibility
by clarifying that an H–2 worker may
take steps toward becoming a lawful
permanent resident while still
120 When a qualifying H–2 petition is properly
filed on the H–2 nonimmigrant worker’s behalf
requesting a start date during this 60-day grace
period, DHS would consider the individual to no
longer be in the 60-daygrace period. As stated
above, during the time a qualifying H–2 petition
remains pending, the porting H–2 beneficiary
receives H–2 protections for that period. Further,
absent his or her violating the terms of his or her
authorized period of stay, the porting beneficiary
remains in a period of authorized stay.
121 In the recent joint TFRs providing
supplemental H–2B visas, which have included a
similar, but temporary, portability provision, DHS
and DOL have noted that portability is ‘‘an
additional option for employers that cannot find
U.S. workers.’’ Exercise of Time-Limited Authority
To Increase the Fiscal Year 2021 Numerical
Limitation for the H–2B Temporary Nonagricultural
Worker Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers,86 FR
281980, 28210 (May 25, 2021); Exercise of TimeLimited Authority To Increase the Fiscal Year 2022
Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 4722, 4736 (Jan. 28, 2022);
Exercise of Time-Limited Authority To Increase the
Numerical Limitation for Second Half of FY 2022
for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
30334, 30349 (May 18, 2022); Exercise of TimeLimited Authority To Increase the Numerical
Limitation for FY 2023 for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).

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maintaining lawful nonimmigrant
status.122 Under proposed 8 CFR
214.2(h)(16)(ii), the fact that DOL has
approved a permanent labor
certification, or that an immigrant visa
petition was filed by or on behalf of a
beneficiary, or that the beneficiary has
applied to adjust to lawful permanent
resident status or for an immigrant visa
would not, by itself, be a violation of H–
2 status or show an intent to abandon
a foreign residence. Such fact, standing
alone, would not constitute a basis for
denying an H–2A or H–2B petition or
the beneficiary’s admission in H–2A or
H–2B status, or a petition to change
status or extend status. USCIS would
consider such fact, however, together
with all other facts presented, in
determining whether the beneficiary is
maintaining H–2 status and has a
residence in a foreign country which he
or she has no intention of abandoning.
This change would therefore
complement DHS’s other proposals to
establish longer grace periods and
provide permanent portability
flexibility, all toward the goal of further
improving H–2 worker mobility.
Under existing regulations, approval
of a permanent labor certification, or the
filing of a preference petition for an H–
2A or H–2B worker currently employed
by or in a training position with the
same petitioner, is considered sufficient
reason, by itself, to deny the worker’s
extension of stay. 8 CFR 214.2(h)(16)(ii).
DHS acknowledges that, when it
finalized the current 8 CFR 214.2(h)(16)
in 1990,123 in response to a commenter’s
assertion that H–2 workers are capable
of simultaneously having the same
lawful temporary and permanent intent
as H–1B workers, the agency stated that
it could not extend the concept of
temporary/permanent intent to the H–2
classifications because ‘‘[c]ontinuing H–
2A and B status requires the employer’s
need for the services to remain
temporary.’’ 124 However, upon
consideration, DHS now recognizes that
this stated rationale conflates the
122 Similar flexibility is currently provided by
regulation to P nonimmigrants who, like H–2
nonimmigrants, are required to maintain a foreign
residence that they have no intention of
abandoning. INA sec. 101(a)(15)(P), 8 U.S.C.
1101(a)(15)(P); 8 CFR 214.2(p)(15). See also Matter
of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975)
(‘‘[T]he filing of an application for adjustment of
status is not necessarily inconsistent with the
maintenance of lawful nonimmigrant status.’’).
123 See Temporary Alien Workers Seeking
Classification Under the Immigration and
Nationality Act, 55 FR 2606, 2619 (final rule) (Jan.
26, 1990). This rule was issued by the former
Immigration and Naturalization Service (INS).
124 See Temporary Alien Workers Seeking
Classification Under the Immigration and
Nationality Act, 55 FR 2606, 2619 (final rule) (Jan.
26, 1990).

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beneficiary’s nonimmigrant intent with
the nature of the employer’s need.
Further, while at that time the agency
stressed the importance of not allowing
petitioners to circumvent the
requirement to demonstrate a temporary
need by petitioning for permanent status
on behalf of the worker even in a
different job,125 DHS now believes that
such a prohibition is overly broad and
that it is important to increase H–2
workers’ mobility to the extent possible,
particularly given the vulnerability of
H–2 workers to potential intimidation
and threats made on the basis of their
nonimmigrant status.126 The
requirements that an H–2A or H–2B
petitioner must establish temporary
and/or seasonal need, as applicable, will
remain covered by the provisions at 8
CFR 214.2(h)(5)(iv) and 8 CFR
214.2(h)(6)(ii), respectively.
5. Removing ‘‘Abscondment,’’
‘‘Abscond,’’ and Its Other Variations
DHS proposes a technical change that
would remove the words
‘‘abscondment,’’ ‘‘abscond,’’ and its
other variations from the H–2
regulations. More specifically, DHS
proposes to remove the definition of
‘‘abscondment,’’ replace the word
‘‘absconds’’ with the phrase ‘‘does not
report for work for a period of 5
consecutive workdays without the
consent of the employer.’’ This
replacement language is based on the
definition contained in current 8 CFR
214.2(h)(5)(v)(E) and (h)(6)(i)(F), and
would replace the phrase ‘‘fails to’’ with
‘‘does not,’’ among other related
changes. See proposed 8 CFR
214.2(h)(5)(vi)(B) and (E), 8 CFR
214.2(h)(5)(ix), and 8 CFR
214.2(h)(6)(i)(F). The words and phrases
relating to ‘‘abscondment’’ inherently
convey or imply wrongdoing by the H–
2 worker when in fact there could be
many legitimate reasons why an H–2
worker does not report for work,
including unsafe conditions at the work
site. Replacing these negatively charged
words with more neutral words and
phrases signifies DHS’s recognition that
each H–2 worker deserves to be treated
fairly and their situation should be
considered based on all of the relevant
circumstances.
Further, while DHS is not proposing
to eliminate or substantively change the
125 See Temporary Alien Workers Seeking
Classification Under the Immigration and
Nationality Act, 55 FR 2606, 2619 (final rule) (Jan.
26, 1990).
126 See, e.g., Polaris, On-ramps, intersections, and
exit routes 41 (2018), https://polarisproject.org/wpcontent/uploads/2018/08/A-Roadmap-for-Systemsand-Industries-to-Prevent-and-Disrupt-HumanTrafficking.pdf.

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notification requirements in 8 CFR
214.2(h)(5)(vi)(B) and 8 CFR
214.2(h)(6)(i)(F), DHS reiterates that it
does not consider the information
provided in an employer notification,
alone, to be conclusive evidence
regarding the worker’s current status or
the start date of the worker’s 60-day
grace period under proposed 8 CFR
214.2(h)(13)(i)(C), if applicable. If and
when a subsequent petition requesting
extension of stay or change of status is
filed for the beneficiary, the new
petitioner should provide information
or evidence regarding the timing of the
beneficiary’s cessation of prior
employment to demonstrate
maintenance of status. In the event that
the information in an employer
notification calls into question the
timing of cessation (for instance, if it
calls into question whether the grace
period ended prior to the filing of the
new petition), the new petitioner would
receive an opportunity to rebut that
information.

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C. Improving H–2 Program Efficiencies
and Reducing Barriers to Legal
Migration
1. Removal of the H–2 Eligible Countries
Lists Provisions
DHS, with the concurrence of the
Secretary of State, is proposing to
remove the regulations at 8 CFR
214.2(h)(5)(i)(F) and 214.2(h)(6)(E),
under which, as explained in more
detail above, USCIS generally may only
approve petitions for H–2A and H–2B
classification for nationals of countries
that the Secretary of Homeland Security,
with the concurrence of the Secretary of
State, has designated by notice
published in the Federal Register. This
yearly notice is often referred to as the
‘‘eligible countries lists.’’
Such designations must be published
as a notice in the Federal Register and
expire after one year. In designating
countries to include on the lists, the
Secretary, with the concurrence of the
Secretary of State, takes into account
factors including, but not limited to: (1)
the country’s cooperation with respect
to issuance of travel documents for
citizens, subjects, nationals, and
residents of that country who are subject
to a final order of removal; (2) the
number of final and unexecuted orders
of removal against citizens, subjects,
nationals, and residents of that country;
(3) the number of orders of removal
executed against citizens, subjects,
nationals, and residents of that country;
and (4) such other factors as may serve
the U.S. interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(i) and 8 CFR
214.2(h)(6)(i)(E)(1). Examples of specific

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factors serving the U.S. interest that are
taken into account when considering
whether to designate or terminate the
designation of a country include, but are
not limited to: fraud (e.g., fraud in the
H–2 petition or visa application process
by nationals of the country, the
country’s level of cooperation with the
U.S. Government in addressing H–2
associated visa fraud, and the country’s
level of information sharing to combat
immigration-related fraud),
nonimmigrant visa overstay rates for
nationals of the country (including but
not limited to H–2A and H–2B
nonimmigrant visa overstay rates), and
noncompliance with the terms and
conditions of the H–2 visa programs by
nationals of the country. See, e.g.,
Identification of Foreign Countries
Whose Nationals Are Eligible To
Participate in the H–2A and H–2B
Nonimmigrant Worker Programs, 87 FR
67930 (Nov. 10, 2022).
Removing the eligible countries lists
requirements would improve H–2
program efficiency by reducing burdens
on DHS, USCIS, and H–2 employers,
consistent with DHS’s goal of
streamlining the H–2 petition process.
Further, removal of the eligible
countries lists requirements would
enhance accessibility of the H–2
programs, consistent with DHS’s
commitment to eliminate unnecessary
barriers to legal migration and promote
regular migration.127 Along with the
removal of 8 CFR 214.2(h)(5)(i)(F) and
214.2(h)(6)(C), DHS proposes to revise 8
CFR 214.2(h)(2)(ii) and (iii) to eliminate
language about specific filing
requirements for workers from countries
that are not on the eligible country lists.
Removal of the eligible countries lists
requirements would free up DHS
resources devoted to developing and
publishing the eligible countries lists in
the Federal Register every year.
Currently, several DHS components and
agencies, as well as DOS, provide data,
collaboration, and research towards the
publication of the eligible countries
lists.
USCIS incurs burdens associated with
adjudicating waiver requests for
nationals of countries not on the eligible
countries lists. These waiver
adjudications are generally complex, as
127 See E.O. 14012 of February 2, 2021, at 86 FR
8277, Restoring Faith in Our Legal Immigration
Systems and Strengthening Integration and
Inclusion Efforts for New Americans, https://
www.federalregister.gov/documents/2021/02/05/
2021-02563/restoring-faith-in-our-legalimmigration-systems-and-strengthening-integrationand-inclusion-efforts; The White House, Los
Angeles Declaration on Migration and Protection
(June 10, 2022), https://www.whitehouse.gov/
briefing-room/statements-releases/2022/06/10/losangeles-declaration-on-migration-and-protection/.

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65069

they require officers to determine
whether it is in the U.S. interest for a
worker to be a beneficiary of such a
petition based on numerous factors,
including: whether a worker with the
required skills is not available from
among foreign workers from a country
currently on the respective lists;
whether the beneficiary has been
admitted to the United States previously
in H–2 status; the potential for abuse,
fraud, or other harm to the integrity of
the H–2 programs through the potential
admission of a beneficiary from a
country not currently on the lists; and
such other factors as may serve the U.S.
interest. See 8 CFR
214.2(h)(5)(i)(F)(1)(ii) and
214.2(h)(6)(E)(2). USCIS may incur
additional burdens by separating out
requests for workers who are nationals
on the respective eligible countries lists
and workers who are not nationals on
the respective eligible countries lists.
For instance, while USCIS recommends
that H–2A and H–2B petitions for
workers from countries not listed on the
respective eligible countries lists be
filed separately from petitions for
workers from countries on the
respective eligible countries lists, this is
not a current regulatory requirement.128
The eligible countries lists also create
burdens for petitioners. An unexpected
change in the lists from one year to the
next could impact a petitioner’s
operations or ability to plan for its
workforce. Further, petitioners incur
extra burdens to prepare a petition
requesting a worker from a country not
on the respective eligible countries list,
including naming each beneficiary,
providing initial evidence to support the
waiver request, and providing any
additional evidence requested by
USCIS. DHS recognizes that the
additional requirements imposed on
petitioners seeking workers from nonparticipating countries may be
burdensome to employers and delay
time-sensitive H–2 petitions,
particularly in the H–2A agricultural
program context, which is highly timesensitive. For instance, the time-delay
associated with issuance of a request for
additional evidence when the
petitioner’s initial evidence did not
establish the requisite U.S. interest to
have its H–2A petition approved, when
seeking nationals from countries not on
128 See 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.

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the list, could profoundly impact the
success of a harvest season. Eliminating
the eligible countries lists in the entirety
would therefore streamline
adjudications and benefit petitioners,
their prospective workers, and ease
burdens on DHS and USCIS.
DHS acknowledges that the eligible
countries lists have been used as a tool
to ‘‘encourage countries to work
collaboratively with the United States to
ensure the timely return of their
nationals who have been subject to a
final order of removal.’’ 129 In proposing
these regulations in 2008, DHS noted
that it had faced ‘‘an ongoing problem
of countries refusing to accept or
unreasonably delaying the acceptance of
their nationals who have been
removed,’’ and further noted that
‘‘Congress gave the Secretary of State
the authority to discontinue the
issuance of visas to citizens, subjects,
nationals, and residents of a country
upon notification by the Secretary of
Homeland Security that the government
of that country refuses to accept their
return’’ under INA sec. 243(d), 8 U.S.C.
1253(d).130 However, neither the
problem of countries refusing or
delaying acceptance of removed
nationals, nor the authority to
discontinue issuance of visas under INA
sec. 243(d), 8 U.S.C. 1253(d), is specific
or unique to the H–2A and H–2B
programs. Overall, DHS does not believe
that using participation in these
programs as a tool to address the
problem or that the limited benefits of
the eligible countries lists, outweigh the
burdens associated with administering
the eligible countries lists and the
benefits of eliminating the lists.
Similarly, to the extent that the
eligible countries lists have been used to
address concerns of fraud and abuse,
DHS believes that such concerns are
instead better addressed at the
petitioner level, rather than the country
level. As noted above, DHS has
referenced fraud concerns as among the
examples of specific factors serving the
U.S. interest that are taken into account
when considering whether to designate
or terminate the designation of a
country.131 Rather than seeking to
address such concerns using the eligible
countries lists, which affect all
129 See Changes to Requirements Affecting H–2B
Nonimmigrants and Their Employers, 73 FR 78104,
78110 (Dec. 19, 2008).
130 See Changes to Requirements Affecting H–2A
Nonimmigrants,73 FR 8230, 8234 (Feb. 13, 2008);
Changes to Requirements Affecting H–2B
Nonimmigrants and Their Employers, 73 FR 49109,
49111 (Aug. 20, 2008).
131 See, e.g., Identification of Foreign Countries
Whose Nationals Are Eligible To Participate in the
H–2A and H–2B Nonimmigrant Worker Programs,
87 FR 67930 (Nov. 10, 2022).

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petitioners seeking to hire workers from
a given country, DHS is proposing to
enhance program integrity through
various provisions in this proposed rule
that focus specifically on individual
petitioners that have violated program
requirements.132
DHS considered an alternative to
removing the provisions in title 8 of the
CFR designating certain countries as
eligible participants for the H–2
program. Under this alternative, instead
of automatic expiration after 1 year, the
H–2 eligible countries designations
would remain in effect until DHS, with
the concurrence of DOS, publishes new
designations of countries. This
alternative would also require that the
Secretary of Homeland Security, in
consultation with the Secretary of State,
review the lists no less than every 3
years, instead of the current 1 year,
following which review DHS could, if
necessary and with the concurrence of
DOS, publish new designations. Absent
the mandate to publish a new notice
annually, under this alternative DHS
and DOS would have greater flexibility
to consider important factors using more
timely and relevant data than the
current annual designation periods
allow.
Ultimately, however, DHS has
decided to forego this alternative and
instead proposes to remove in their
entirety the provisions requiring
designation of countries eligible to
participate in the H–2 programs. If DHS
were to adopt the alternative to
maintain the lists but simply amend the
timing of designating eligible countries,
the fundamental flaws of the provisions
would largely remain, namely, the
aforementioned significant burdens it
places on petitioners, USCIS, and DHS.
Furthermore, this alternative could lock
in place the lists for a longer period and
potentially tie the agency’s hands when
seeking to eliminate countries from the
lists or delay the inclusion of countries
for which favorable factors would
warrant designation on the lists.
132 For example, DHS removed Moldova from the
list of countries eligible to participate in the H–2A
program in 2021 based, in part, on DOS evidence
of agents in Moldova charging prohibited
recruitment fees. See Identification of Foreign
Countries Whose Nationals Are Eligible To
Participate in the H–2A and H–2B Nonimmigrant
Worker Programs, 86 FR 62559, 62561 (Nov. 10,
2021). While the proposed removal of the eligible
countries lists would mean that DHS could no
longer bar participation by nationals of a country
in which prohibited fees have been charged, the
proposed regulation includes provisions that
otherwise enhance DHS’ ability to enforce the
prohibition on prohibited fees.

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2. Eliminating the H–2 ‘‘Interrupted
Stay’’ Calculation and Reducing the
Period of Absence To Restart the 3-Year
Maximum Period of Stay Clock
DHS is proposing to eliminate the
regulations relating to absences from the
United States that will ‘‘interrupt’’ the
accrual of time toward an individual’s
total period of stay in H–2 status. See
proposed 8 CFR 214.2(h)(5)(viii)(C) and
(D); 8 CFR 214.2(h)(6)(vii)(A) through
(C); 8 CFR 214.2(h)(13)(i)(B); 8 CFR
214.2(h)(13)(iv); and 8 CFR
214.2(h)(13)(v). An individual’s total
period of stay in H–2A or H–2B
nonimmigrant status may not exceed 3
years. Under current regulations, an
individual who has spent 3 years in H–
2A or H–2B status may not seek
extension, change status, or be
readmitted to the United States in H–2
status unless the individual has been
outside of the United States for an
uninterrupted period of 3 months. See
8 CFR 214.2(h)(5)(viii)(C) and
214.2(h)(13)(iv). However, certain
periods of time spent outside the United
States are deemed to interrupt the
period of stay and temporarily ‘‘stop the
clock’’ toward the accrual of the 3-year
limit. See 8 CFR 214.2(h)(5)(viii)(C)
(relating to H–2A workers) and 8 CFR
214.2(h)(13)(v) (relating to H–2B
workers). Specifically, under current
regulations, a period of absence 133 from
the United States will interrupt the stay
of H–2 workers (the time periods are the
same for both H–2A and H–2B workers)
in the following circumstances:
• If the accumulated stay is 18
months or less, an absence is
interruptive if it lasts for at least 45
days.134
• If the accumulated stay is greater
than 18 months, an absence is
interruptive if it lasts for at least 2
months.135
If H–2 time is interrupted, time stops
accruing toward the H–2 worker’s 3-year
133 For purposes of interrupted stays, the terms ‘‘a
period of absence’’ or ‘‘an absence’’ refer to a single,
consecutive period of time spent outside of the
United States.
134 For purposes of interrupted stays, a day is a
full 24-hour period (from midnight to midnight)
outside the United States. USCIS calculates a travel
day to or from the United States as a full day in
the United States—even if the H–2 worker departs
at 12:01 a.m. See USCIS, Calculating Interrupted
Stays for the H–2 Classifications, https://
www.uscis.gov/working-in-the-united-states/
temporary-workers/h-2a-agricultural-workers/
calculating-interrupted-stays-for-the-h-2classifications.
135 For purposes of interrupted stays, a month can
be anywhere from 28 to 31 days, depending on
which month is used to calculate the interruption.
See USCIS, Calculating Interrupted Stays for the H–
2 Classifications, https://www.uscis.gov/working-inthe-united-states/temporary-workers/h-2aagricultural-workers/calculating-interrupted-staysfor-the-h-2-classifications.

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limit. Once the individual returns to the
United States in H–2 status, time toward
the 3-year limit begins to accrue again
from the point where it stopped.
However, if at any time the H–2 worker
is outside the United States for at least
3 months, their 3-year limit restarts from
the beginning upon the worker’s
readmission to the United States in H–
2 status.136
The current regulations regarding
interrupted periods of stay were
published in 2008.137 The regulations
made the time periods for interrupted
periods of stay consistent for H–2A and
H–2B nonimmigrants. In addition to
making the time periods consistent,
DHS explained in proposing the
regulations relating to H–2A workers
that the purpose was to ‘‘reduce the
amount of time employers are required
to be without the services of needed
workers and enable the employers to
have a set timeframe from which they
can better monitor compliance with the
terms and conditions of H–2A
status.’’ 138
However, the current regulations on
interrupted periods of stay have caused
confusion for employers and are
challenging for USCIS to implement.
The confusion often relates to the
different timeframes for an interrupted
stay—45 days or 2 months—that is
determined by the duration of the
accumulated stay—18 months or less, or
more than 18 months. Currently, in
order to accurately demonstrate when
an individual’s limit on H–2 status will
be reached, employers and workers
need to monitor and document the
accumulated time in H–2 status, track
when the amount of time required for an
interruptive stay changes from 45 days
to 2 months, and calculate the total time
in H–2 status across multiple time
periods following interruptive absences.
Adjudicators must also make these same
determinations in adjudicating H–2
petitions with named workers to assess
whether a beneficiary is eligible for the
requested period of stay. The varying
timeframes and starting and stopping of
the accumulated stay in H–2 status can
be confusing and frequently results in
RFEs in adjudicating H–2 petitions,
which leads to delays for employers and
workers and inefficiencies for USCIS. In
136 See USCIS, Calculating Interrupted Stays for
the H–2 Classifications, https://www.uscis.gov/
working-in-the-united-states/temporary-workers/h2a-agricultural-workers/calculating-interruptedstays-for-the-h-2-classifications.
137 See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 76891 (Dec. 18, 2008);
Changes to Requirements Affecting H–2B
Nonimmigrants and Their Employers, 73 FR 78104
(Dec. 19, 2008).
138 See Changes to Requirements Affecting H–2A
Nonimmigrants, 73 FR 8230, 8235 (Feb. 13, 2008).

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an effort to streamline the
administration of the H–2 programs,
DHS seeks to eliminate the current
interrupted stay provisions that
temporarily ‘‘stop the clock’’ toward the
accrual of the 3-year limit. Eliminating
these interrupted stay provisions would
reduce potential confusion for
employers and workers and simplify
USCIS adjudications, resulting in fewer
RFEs and greater efficiency in
adjudicating H–2 petitions.
Recognizing that the interrupted stay
provisions provide some benefit to H–2
workers and employers in the event of
a worker’s departure from the country,
DHS proposes to shorten the period of
absence that will reset the 3-year limit
of stay. Currently, once an H–2 worker
is outside the United States for an
uninterrupted period of 3 months
(‘‘period of absence’’), their 3-year
limitation on stay will restart from the
beginning upon that worker’s
readmission to the United States in H–
2 status.139 DHS proposes to shorten the
current 3-month period of absence to 60
days.
Under proposed 8 CFR
214.2(h)(5)(vi)(C) and (D) and 8 CFR
214.2(h)(6)(vii)(B) and (C), an
uninterrupted absence for the
designated period of at least 60 days
would in all cases ‘‘reset’’ the H–2
clock, allowing for an additional 3 years
in the United States in H–2 status upon
the worker’s readmission, regardless of
whether an H–2 worker has already
reached the 3-year maximum. This
change would make it easier to
determine how much time a given H–2
worker had remaining in H–2 status. For
example, if an employer knew that a
given worker had been outside the
United States for at least 60 days, the
employer would also know that the
worker’s H–2 clock had ‘‘reset’’ and thus
the worker would again be eligible to
spend up to 3 years in the United States
in H–2 status. There would be no need
for the employer or worker to look back
at periods of stay prior to that 60-day
absence to determine the amount of H–
2 time remaining. Resetting the clock at
60 days instead of 3 months is also
intended to benefit H–2 workers seeking
readmission in H–2 status by allowing
them the option to remain outside of the
United States for a shorter period of
time between periods of H–2
employment.
139 See 8 CFR 214.2(h)(5)(viii)(B) and 8 CFR
214.2(h)(13)(iv); see also USCIS, Calculating
Interrupted Stays for the H–2 Classifications (May
6, 2020), https://www.uscis.gov/working-in-theunited-states/temporary-workers/h-2a-agriculturalworkers/calculating-interrupted-stays-for-the-h-2classifications.

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Further, reducing the period of
absence from the United States from 3
months to 60 days would provide
workers and their employers with
greater flexibility while still ensuring
that such workers’ stay is temporary in
nature. The intent of having a required
period of absence is to ensure that the
H–2 worker qualifies as a nonimmigrant
and that their stay remains temporary in
nature. H–2 eligibility requires that
employment be seasonal or temporary.
See INA secs. 101(a)(15)(H)(ii)(a)–(b); 8
CFR 214.2(h)(5)(iv)(A); 8 CFR
214.2(h)(6)(i)(A). It also requires that the
beneficiary qualify as a nonimmigrant.
See INA secs. 101(a)(15)(H)(ii)(a)–(b). In
a 1987 interim final rule, the former INS
maintained the existing 3-year limit on
an H–2 worker’s stay, and also imposed
a new, but still ‘‘significant absence’’
standard of 6 months, in order to ensure
a meaningful interruption in the H–2A
worker’s employment in the United
States. Nonimmigrant Classes, 52 FR
20554 (June 1, 1987). The rule
explained: ‘‘If a significant absence is
not required, an alien would be able to
effectively bypass the limitation and
indefinitely work in the United States at
various temporary jobs by vacationing
abroad every three years.’’ 52 FR 20555.
The INA does not specify what length
of absence would be sufficient to ensure
that the H–2A or H–2B worker’s stay in
the United States is considered
temporary. The former INS, in its 1987
interim rule, chose to require a 6-month
period of absence. In doing so, however,
the agency did not state that 6 months
must be the absolute floor to ensure
compliance with the statute.
In 2008, this 6-month period of
absence was reduced to 3 months ‘‘in
order to reduce the amount of time
employers would be required to be
without the services of needed workers,
while not offending the fundamental
temporary nature of employment under
the H–2A program.’’ 140 Beyond that
140 See 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)

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general explanation, however, DHS, in
reducing the required period of absence
from 6 months to 3 months, did not
specifically explain how it arrived at 3
months as the appropriate period of
absence as opposed to another period of
time, nor did it state that 3 months is
the absolute floor for ensuring that an
H–2 worker’s stay is temporary in
nature.
It is DHS’s position that reducing the
current 3-month period of absence to 60
days would accomplish the same goal of
reducing the amount of time employers
would be required to be without the
services of needed workers, while still
ensuring adherence to the fundamental
requirement under the H–2 programs
that an H–2 worker’s period of
admission to this country be temporary
by continuing to impose a significant
absence.
The proposed regulation also clarifies
that, to avail itself of the benefits of this
provision, the petitioner must provide
evidence that the beneficiary had an
uninterrupted 60-day period of absence.
The proposed regulation would provide
examples of the types of evidence that
may be provided to establish a period of
absence from the United States. In
addition, DHS is proposing to move the
provisions relating to periods of absence
for H–2B workers from its current
location at 8 CFR 214.2(h)(13)(iv)–(v) to
proposed 8 CFR 214.2(h)(6)(vii)(C) in
order to consolidate provisions
regarding period of admission into one
section specific to H–2B workers and to
reflect the change from 3 months to 60
days.141 DHS proposes to keep the
proposed H–2A period of absence
provision under 8 CFR 214.2(h)(5)(viii)
but would move it to a new dedicated
subordinate paragraph (D) and revise
the language to reflect the change from
3 months to 60 days. The proposed
changes to the regulations regarding
calculation of stay would benefit the
agency, employers, and workers because
they would provide greater clarity for
employers and workers and greater
efficiency for DHS. DHS seeks
comments on all aspects of this
provision, and particularly the 60-day
(adopting the proposed reduction in waiting time
without change).
141 DHS is also proposing uniform evidentiary
requirements for demonstrating an H–2B worker’s
absence(s) from the United States. Currently, the
regulations require ‘‘clear and convincing proof’’ to
establish that an H–2B worker resides abroad and
commutes or is only seasonally or intermittently
employed in the United States for 6 months or less
per year, while the regulations only require
‘‘information about the alien’s employment, place
of residence, and the dates and purposes of any
trips to the United States’’ to show that an H–2B
worker has been absent long enough to reset or
interrupt the period of stay. See 8 CFR
214.2(h)(13)(v) and 214.2(h)(13)(i)(B), respectively.

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duration of absence that would reset the
clock for purposes of the 3-year
maximum period of stay.
As an alternative to the complicated
calculations needed to determine an
interrupted stay under the current H–2
framework, DHS considered adopting an
interrupted stay provision similar to the
current ‘‘recapture’’ provision for H–1B
beneficiaries. For H–1Bs, current DHS
regulations at 8 CFR 214.2(h)(13)(iii)(C)
generally state that time spent outside
the United States exceeding 24 hours by
a noncitizen will not be considered for
purposes of calculating the H–1B
beneficiary’s total period of authorized
admission. Furthermore, the time spent
physically outside of the United States
may be ‘‘recaptured’’ in a subsequent H–
1B petition on behalf of the noncitizen,
though it is the petitioner’s burden to
request and demonstrate the specific
amount of time for recapture on behalf
of the beneficiary. See 8 CFR
214.2(h)(13)(iii)(C)(1).
In the end, DHS chose to propose the
changes explained above rather than
match the H–1B provision because it
believes the H–1B provision to
‘‘recapture time’’ would be only a
minimally less confusing calculation for
petitioners and H–2 workers, as well as
for USCIS adjudicators. It is likely also
that because of the shorter duration of
H–2 petition validity periods relative to
those in the H–1B program, and perhaps
for other reasons specific to the different
classifications (e.g., different types of
occupations), fewer H–2 beneficiaries
travel outside of the United States or H–
2 beneficiaries travel abroad for fewer
days during their period of admission,
so the amount of time available for these
workers to ‘‘recapture’’ would be
minimal compared to H–1B
beneficiaries. DHS believes a single,
consistent standard under which an
uninterrupted absence of at least 60
days would reset the 3-year limitation
represents the best way to reduce
confusion, resulting in fewer RFEs and
greater efficiency in adjudicating H–2
petitions.
Finally, DHS seeks to make clarifying
edits at proposed 8 CFR
214.2(h)(5)(viii)(C)–(D) and 8 CFR
214.2(h)(6)(vii)(B)–(C). These edits
would clarify that any time spent in H–
2A or H–2B status would count toward
the 3-year limitation of stay, consistent
with current practice and other H–2
regulations governing the 3-year
limitation on stay.142
142 See 8 CFR 214.2(h)(13)(iv) (‘‘An H–2B alien
who has spent 3 years in the United States under
section 101(a)(15)(H) and/or (L) of the Act may not
seek extension, change status, or be readmitted to
the United States under sections 101(a)(15)(H) and/
or (L) of the Act unless the alien has resided and

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D. Severability
As stated at proposed 214.2(h)(30),
DHS intends for the provisions of this
proposed rule, if finalized, to be
severable from each other such that if a
court were to hold that any provision is
invalid or unenforceable as to a
particular person or circumstance, the
rule would remain in effect as to any
other person or circumstance. While the
various provisions of this proposed rule,
taken together, would provide
maximum benefit with respect to
strengthening program integrity,
increasing worker flexibility, and
improving program efficiency, none of
the provisions are interdependent and
unable to operate separately, nor is any
single provision essential to the rule’s
overall workability. DHS welcomes
public input on the proposed
severability clause at 8 CFR
214.2(h)(30).
E. Request for Preliminary Public Input
Related to Future Actions/Proposals
DHS is seeking preliminary public
input on ways to provide H–2 and other
Form I–129 beneficiaries with notice of
USCIS actions taken on petitions filed
on their behalf, including receipt
notices for a petition to extend, amend,
or change status filed on their behalf.
USCIS does not currently provide
notices directly to Form I–129
beneficiaries. DHS is aware that the lack
of petition information may leave Form
I–129 beneficiaries unable to verify their
own immigration status and susceptible
to employer abuse.143 DHS is also aware
been physically present outside the United States
for the immediately preceding 3 months.’’); 8 CFR
214.2(h)(15)(ii)(C) (‘‘The alien’s total period of stay
as an H–2A or H–2B worker may not exceed three
years’’) 8 CFR 214.2(h)(13)(i)(B) (‘‘When an alien in
an H classification has spent the maximum
allowable period of stay in the United States, a new
petition under sections 101(a)(15)(H) or (L) of the
Act may not be approved unless that alien has
resided and been physically present outside the
United States . . . for the time limit imposed on the
particular H classification. . . . A certain period of
absence from the United States of H–2A and H–2B
aliens can interrupt the accrual of time spent in
such status against the 3-year limit set forth in 8
CFR 214.2(h)(13).’’); see also USCIS, H–2A
Temporary Agricultural Workers, Period of Stay,
https://www.uscis.gov/working-in-the-united-states/
temporary-workers/h-2a-temporary-agriculturalworkers (‘‘A person who has held H–2A
nonimmigrant status for a total of 3 years must
depart and remain outside the United States for an
uninterrupted period of 3 months before seeking
readmission as an H–2A nonimmigrant.
Additionally, previous time spent in other H or L
classifications counts toward total H–2A time.’’).
143 See, e.g., DHS, Office of the Citizenship and
Immigration Services Ombudsman,
Recommendation to Remove a Barrier Pursuant to
Executive Order 14012: Improving U.S. Citizenship
and Immigration Services’ Form I–129 Notification
Procedures Recommendation Number 62 (Mar. 31,
2022), https://www.dhs.gov/sites/default/files/202203/CIS%20OMBUDSMAN_I-129_

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that having case status information
would promote the benefits intended by
the proposed portability provisions in
this rule, and more generally, improve
worker mobility and protections as
intended in this rule.
DHS is committed to addressing the
issue of beneficiary notification but is
not at this time proposing a specific
beneficiary notification process or
regulation. The agency continues to
research and consider the feasibility,
benefits, and costs of various options
separate and apart from this proposed
rule. At this time, DHS would like to
solicit preliminary public comments on
requiring H–2 petitioners to provide a
copy of the notice of USCIS actions to
beneficiaries in the United States
seeking extension or change of status.
This option is being considered for
potential future action separate from
this rulemaking. In addition, DHS is
interested in any other suggestions from
the public regarding ways to ensure
adequate notification to beneficiaries of
actions taken with respect to petitions
filed on their behalf.
Limiting this notification requirement
to beneficiaries in the United States
seeking extension or change of status is
intended to recognize the challenges
associated with providing notices to
unnamed H–2 workers. In addition,
DHS believes such notification may be
especially beneficial in the context of
extensions or changes of status. While
petition beneficiaries who are outside of
the United States will receive basic
petition information on Form I–94,
Arrival-Departure Record, and on their
BENEFICIARY_RECOMMENDATION_fnl_03-2022_
508.pdf (‘‘lack of direct notification may leave them
without status documentation, rendering them
noncompliant with the law, susceptible to abuse by
employers, and unable to access benefits requiring
proof of status’’). This report formally
recommended that USCIS directly notify
beneficiaries of Form I–129 actions taken in the
petition on their behalf. DHS also received several
stakeholder letters advocating for H–2 beneficiaries
to receive case status information. For example, see
the Letter from Migration that Works to DHS dated
May 17, 2022; Letter from Centro de los Derechos
del Migrante, Inc. to DHS dated June 1, 2022; Letter
from AFL–CIO to DHS; Farmworkers Justice
Comment to USCIS dated May 19, 2021. All of these
letters are included in the docket for this proposed
rulemaking. In addition, Members of Congress
recently indicated in explanatory remarks the need
to provide status documentation directly to certain
beneficiaries so that they can better understand
their immigration status. See Joint Explanatory
Statement to Department of Homeland Security
Appropriations Act, 2022, 168 Cong. Rec. H2395,
H2418 (daily ed. March 9, 2022) (‘‘USCIS shall also
establish a process whereby workers may confirm
that they are the beneficiaries of H–2A petitions and
can receive information about their own
immigration status, including their authorized
period of stay and the status of any requested visa
extensions.’’), available at https://
www.congress.gov/congressional-record/volume168/issue-42/house-section/article/H1709-1.

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nonimmigrant visa, beneficiaries who
are already in the United States must
rely entirely on petitioners and
employers to provide such
information.144 DHS recognizes this
option would leave open the possibility
that unscrupulous petitioners would not
comply with this requirement,
something DHS intends to forestall, but
believes it would still provide benefits
and worker protections while USCIS
continues to explore other options,
including the feasibility of technological
solutions that would allow USCIS to
directly notify beneficiaries or allow
beneficiaries to directly access case
status.145 DHS is particularly interested
in comments that cite evidence of the
expected costs and burdens on
petitioners as a result of such a
requirement, as well as comments and
evidence about the extent that such a
provision would benefit H–2 workers,
which DHS will take into consideration
when crafting potential future solutions
or regulatory proposals.
V. Statutory and Regulatory
Requirements
A. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory
Review)
Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O.
13563 (Improving Regulation and
Regulatory Review) and E.O. 14094
(Modernizing Regulatory Review) direct
agencies to assess the costs and benefits
of available regulatory alternatives. If a
regulation is necessary, these Executive
Orders direct that, to the extent
permitted by law, agencies ensure that
the benefits of a regulation justify its
costs and select the regulatory approach
that maximizes net benefits (including
potential economic, environmental,
public health and safety effects,
distributive impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. It explicitly draws attention
to ‘‘equity, human dignity, fairness, and
distributive impacts,’’ values that are
144 The Form I–797 approval notice instructs
petitioners that the lower portion of the notice,
including Form I–94, ‘‘should be given to the
beneficiary(ies).’’
145 See USCIS Memorandum, Response to
Recommendations on Improving Form I–129
Notification Procedures (Aug. 11, 2022), https://
www.dhs.gov/sites/default/files/2022-08/
SIGNED%20USCIS%20Response%20to%20Formal
%20Recommendation%20-%20Form%20I129.08122022_v2.pdf.

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difficult or impossible to quantify. All of
these considerations are relevant in this
rulemaking.
The Office of Management and Budget
(OMB) has designated this rule a
‘‘significant regulatory action’’ as
defined under section 3(f) of E.O. 12866,
as amended by E.O. 14094. Accordingly,
OMB has reviewed this regulation.
1. Summary of Major Provisions of the
Regulatory Action
As discussed in the preamble, DHS is
amending its regulations affecting
temporary agricultural and temporary
nonagricultural workers within the H–2
programs, and their employers. The
proposed rule seeks to better ensure the
integrity of the H–2 programs, enhance
protection for workers, and clarify
requirements and consequences of
actions incongruent with the intent of
H–2 employment. The provisions of this
proposed rule subject to this regulatory
analysis are grouped into four
categories: (1) integrity and worker
protections; (2) worker flexibilities; (3)
improving H–2 program efficiencies and
reducing barriers to legal migration; and
(4) forms and technical updates.
2. Summary of Costs and Benefits of the
Proposed Rule
This proposed rule would impose
new direct costs on petitioners in the
form of opportunity costs of time to
complete and file H–2 petitions and
time spent to familiarize themselves
with the rule. The quantifiable costs of
this rule that would impact petitioners
consistently and directly are the
increased opportunity cost of time to
complete Form I–129 H Classification
Supplement and opportunity costs of
time related to the rule’s portability
provision. Over the 10-year period of
analysis, DHS estimates the total costs
of the proposed rule would be
approximately $18,640,075 to
$24,901,101 (undiscounted). DHS
estimates annualized costs of this
proposed rule range from $1,998,572 to
$2,668,028 at a 3-percent discount rate
and $2,186,033 to $2,915,885 at a 7percent discount rate. In addition, the
rule results in transfers from consumers
to a limited number of H–2A and H–2B
workers that may choose to supply
additional labor. The total annualized
transfer amounts to $2,918,958 in
additional earnings at the 3-percent and
7-percent discount rate and related tax
transfers of $337,122 ($168,561 from
these workers + $168,561 from
employers). Fees paid for Form I–129
and premium processing as a result of
the proposed rule’s portability provision
constitute a transfer of $636,760 from

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petitioners of porting workers to USCIS
(3 and 7-percent annualized equivalent).
Certain petitioners may also incur
other difficult to quantify costs. For
example, certain petitioners may incur
additional opportunity costs of time
should they be selected for a
compliance review or a site visit. Other
petitioners may face stricter
consequences regarding prohibited fees,
or may opt to transport and house H–
2A beneficiaries earlier than they would
have otherwise based on the proposed
extension of the pre-employment grace
period from 7 to 10 days. In general,
petitioners who are found to be
noncompliant with the provisions of the
rule (or other existing authorities) may
incur costs related to lost sales,
productivity, or profits as well as

additional opportunity costs of time
spent attempting to comply with the
rule. Moreover, USCIS may incur
increased opportunity costs of time for
adjudicators to review information
regarding debarment and other past
violation determinations more closely,
issue RFEs or NOIDs, and for related
computer system updates.
The benefits of this proposed rule
would be diverse, though most are
difficult to quantify. The proposed rule
extends portability to H–2 workers
lawfully present in the United States
who are seeking to extend their stay
regardless of a porting petitioner’s EVerify standing, allowing for greater
consistency across portability
regulations and other nonimmigrant
worker categories. Beneficiaries would

also benefit from the extended grace
periods, the permanent ability to port,
the clarification that employers who
utilize porting workers must continue to
abide by all H–2 requirements regarding
worker benefits and protections, and
eliminating the interrupted stay
provisions and instead reducing the
period of absence out of the country to
reset their 3-year maximum period of
stay. The Federal Government would
also enjoy benefits, mainly through
bolstering existing program integrity
activities and providing a greater ability
for USCIS to deny or revoke petitions
for issues related to program
compliance. Table 2 provides a more
detailed summary of the proposed
provisions and their impacts.

TABLE—SUMMARY OF PROVISIONS AND IMPACTS
Purpose of
proposed provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(5)(vi)(A) and 8
CFR 214.2(h)(6)(i)(F).

DHS is proposing to add stronger language requiring petitioners or employers to both consent to
and fully comply with any USCIS audit, investigation, or other program integrity activity and clarify
USCIS’s authority to deny/revoke a petition if unable to verify information related to the petition,
including due to lack of cooperation from the petitioner or employer during a site visit or other
compliance review.

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

DHS is proposing to provide H–2A and H–2B workers with ‘‘whistleblower protection’’ comparable to
the protection currently offered to H–1B workers.

Cost:
• Cooperation during a site visit or compliance review may result in opportunity costs of time for
petitioners to provide information to USCIS during
these compliance reviews and inspections. On
average, USCIS site visits last 1.7 hours, which is
a reasonable estimate for the marginal time that a
petitioner may need to spend in order to comply
with a site visit.
• Employers that do not cooperate would face denial or revocation of their petition(s), which could
result in costs to those businesses.
Benefit:
• USCIS would have clearer authority to deny or
revoke a petition if unable to verify information related to the petition. The effectiveness of existing
USCIS program integrity activities would be improved through increased cooperation from employers.
Cost:
• Employers may face increased RFEs, denials, or
other actions on their H–2 petitions, or other program integrity mechanisms available under this
rule or existing authorities, as a result of H–2
workers’ cooperation in program integrity activity
due to whistleblower protections. Such actions
may result in potential costs such as lost productivity and profits to employers whose noncompliance with the program is revealed by whistleblowers.
Benefit:
• Such protections may afford workers the ability to
expose issues that harm workers or are not in
line with the intent of the H–2 programs while
also offering protection to such workers (therefore
potentially improving overall working conditions),
but the extent to which this would occur is unknown.

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TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(5)(xi)(A), 8 CFR
214.2(h)(5)(xi)(C), 8 CFR
214.2(h)(6)(i)(B), 8 CFR
214.2(h)(6)(i)(C), and 8 CFR
214.2(h)(6)(i)(D).

DHS is proposing significant revisions to the provisions relating to prohibited fees to strengthen the
existing prohibition on, and consequences for,
charging certain fees to H–2A and H–2B workers,
including new bars on approval for some H–2 petitions.

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

DHS is proposing to institute certain mandatory and
discretionary bars to approval of an H–2A or H–
2B petition.

8 CFR 214.2(h)(2)(ii) and (iii), 8
CFR 214.2(h)(5)(i)(F), and 8 CFR
214.2(h)(6)(i)(E).

Eliminate the lists of countries eligible to participate
in the H–2 programs.

8 CFR 214.2(h)(5)(viii)(B) and 8
CFR 214.2(h)(6)(vii)(A).
8 CFR 214.2(h)(11)(iv) and 8 CFR
214.2(h)(13)(i)(C).

Change grace periods such that they will be the
same for both H–2A and H–2B Programs.
Create a 60-day grace period following any H–2A or
H–2B revocation or cessation of employment during which the worker will not be considered to
have failed to maintain nonimmigrant status and
will not accrue any unlawful presence solely on
the basis of the revocation or cessation.

8 CFR 214.2(h)(11)(iv) ....................

Clarifies responsibility of H–2A employers for reasonable costs of return transportation for beneficiaries following a petition revocation.

Cost:
• Enhanced consequences for petitioners who
charge prohibited fees could lead to increased financial losses and extended ineligibility from participating in H–2 programs.
Benefit:
• Possibly increase compliance with provisions regarding prohibited fees and thus reduce the occurrence and burden of prohibited fees on H–2
beneficiaries.
Costs:
• USCIS adjudicators may require additional time
associated with reviewing information regarding
debarment and other past violation determinations more closely, issuing RFEs or NOIDs, and
conducting the discretionary analysis for relevant
petitions.
• The expansion of violation determinations that
could be considered during adjudication, as well
as the way debarments and other violation determinations would be tracked, would require some
computer system updates resulting in costs to
USCIS.
Benefit:
• Possibly increase compliance with H–2 program
requirements, thereby increasing protection of H–
2 workers.
Costs:
• None expected.
Benefits:
• Employers and the Federal Government will benefit from the simplification of Form I–129 adjudications by eliminating the ‘‘national interest’’
portion of the adjudication that USCIS is currently
required to conduct for beneficiaries from countries that are not on the lists.
• Remove petitioner burden to provide evidence for
beneficiaries from countries not on the lists.
• Petitioners may have increased access to workers potentially available to the H–2 programs.
• Free up agency resources devoted to developing
and publishing the eligible country lists in the
FEDERAL REGISTER every year.
Costs 146:
• H–2A employers may face additional costs such
as for housing, but employers likely would weigh
those costs against the benefit of providing employees with additional time to prepare for the
start of work.
Benefits:
• Provides employees (and their employers) with
extra time to prepare for the start of work. Provides clarity for adjudicators and makes timeframes consistent for beneficiaries and petitioners.
• Provides workers additional time to seek other
employment or depart from the United States if
their employer faces a revocation or if they cease
employment.
Costs:
• None expected since H–2A petitioning employers
are already generally liable for the return transportation costs of H–2A workers.
Benefits:
• Beneficiaries would benefit in the event that clarified employer responsibility decreased the incidence of workers having to pay their own return
travel costs in the event of a petition revocation.

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TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

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Provision

Expected impact of the
proposed provision

8 CFR 214.2(h)(16)(i) ......................

Clarifies that H–2 workers may take steps toward
becoming a lawful permanent resident of the
United States while still maintaining lawful
nonimmigtarant status.

8 CFR 214.2(h)(5)(viii)(C), 8 CFR
214.2(h)(6)(vii), and 8 CFR
214.2(h)(13)(i)(B).

Eliminates the ‘‘interrupted stay’’ calculation and instead reduces the period of absence to reset an
individual’s 3-year period of stay.

8 CFR 214.2(h)(2)(i)(D), 8 CFR
214.2(h)(2)(i)(I), and 8 CFR
274a.12(b)(21).

Make portability permanent for H–2B workers and
remove the requirement that H–2A workers can
only port to an E-Verify employer.

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Costs:
• None expected.
Benefits:
• DHS expects this could enable some H–2 workers who have otherwise been dissuaded to pursue lawful permanent residence with the ability to
do so without concern over becoming ineligible
for H–2 status.
Costs:
• Workers in active H–2 status who would consider
making trips abroad for periods of less than 60
days but more than 45 days, may be
disincentivized to make such trip.
Benefit:
• Simplifies and reduces the burden to calculate
beneficiary absences for petitioners, beneficiaries,
and adjudicators.
• May reduce the number of RFEs related to 3-year
periods of stay.
Transfers:
• As a result of a small number of H–2 workers at
the 3-year maximum stay responding to the proposed shorter absence requirement by working
30 additional days, DHS estimates upper bound
annual transfer payment of $2,918,958 in additional earnings from consumers to H–2 workers
and $337,122 in tax transfers from these workers
and their employers to tax programs (Medicare
and Social Security).
Costs:
• The total estimated annual opportunity cost of
time to file Form I–129 by human resource specialists is approximately $40,418. The total estimated annual opportunity cost of time to file Form
I–129 and Form G–28 will range from approximately $90,554 if filed by in-house lawyers to approximately $156,132 if filed by outsourced lawyers.
• The total estimated annual costs associated with
filing Form I–907 if it is filed with Form I–129 is
$4,728 if filed by human resource specialists. The
total estimated annual costs associated with filing
Form I–907 would range from approximately
$9,006 if filed by an in-house lawyer to approximately $15,527 if filed by an outsourced lawyer.
• The total estimated annual costs associated with
the portability provision ranges from $133,684 to
$198,851, depending on the filer.
• DHS may incur some additional adjudication
costs as more petitioners will likely file Form I–
129. However, these additional costs to USCIS
are expected to be covered by the fees paid for
filing the form.

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65077

TABLE—SUMMARY OF PROVISIONS AND IMPACTS—Continued
Purpose of
proposed provision

Provision

8 CFR 214.2(h)(2)(i)(I)(3) ................

Expected impact of the
proposed provision

DHS proposes to clarify that a beneficiary of an H–
2 portability petition is considered to have been in
a period of authorized stay during the pendency
of the petition and that the petitioner must still
abide by all H–2 program requirements.

Benefit:
• Enabling H–2 workers present in the United
States to port to a new petitioning employer affords these workers agency of choice at an earlier moment in time consistent with other portability regulations and more similar to other workers in the labor force.
• Replacing the E-Verify requirement for employers
wishing to hire porting H–2A workers with
strengthened site visit authority and other provisions that maintain program integrity would aid
porting beneficiaries in finding petitioners without
first needing to confirm if that employer is in good
standing in E-Verify. Although this change impacts an unknown portion of new petitions for
porting H–2A beneficiaries, no reductions in EVerify enrollment are anticipated.
• An H–2 worker with an employer that is not complying with H–2 program requirements would
have additional flexibility in porting to another employer’s certified position.
Transfers:
• Annual undiscounted transfers of $636,760 from
filing fees for Form I–129 combined with Form I–
907 from petitioners to USCIS.
Benefits:
• Provides H–2 workers with requisite protections
and benefits as codified in the rule in the event
that a porting provision is withdrawn or denied.
Costs:
• None expected.

Cumulative Impacts of Proposed Regulatory Changes
DHS proposes to make changes to the Form I–129, to effectuate the proposed regulatory
changes.

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

Costs:
• The time burden to complete and file Form I–129,
H Classification Supplement, would increase by
0.3 hours as a result of the proposed changes.
The estimated opportunity cost of time for each
petition by type of filer would be $15.28 for an HR
specialist, $34.25 for an in-house lawyer, and
$59.06 for an outsourced lawyer. The estimated
total annual opportunity costs of time for petitioners or their representatives to file H–2 petitions under this proposed rule ranges from
$745,330 to $985,540.
Costs:
• Petitioners or their representatives would need to
read and understand the rule at an estimated opportunity cost of time that ranges from $9,739,715
to $12,877,651, incurred during the first year of
the analysis.

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Source: USCIS analysis.

146 USCIS does not expect any additional costs to
H–2B employers as, generally, they do not have to
provide housing for workers. Employers are
required to provide housing at no cost to H–2A

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workers. See INA sec. 218(c)(4), 8 U.S.C. 1188(c)(4).
There is no similar statutory requirement for
employers to provide housing to H–2B workers,
although there is a regulatory requirement for an H–

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2B employer to provide housing when it is
primarily for the benefit or convenience of the
employer. See 20 CFR 655.20(b), (c); 29 CFR
531.3(d)(1); 80 FR 24042, 24063 (Apr. 29, 2015).

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
OMB A–4 ACCOUNTING STATEMENT TIME PERIOD: FY 2024 THROUGH FY 2033
[$ millions, FY 2022)]
Category

Minimum
estimate

Primary estimate

Maximum
estimate

Source
citation

Benefits
Monetized Benefits .....................................

N/A ............................................................

N/A

N/A

Regulatory Impact
Analysis (‘‘RIA’’).
RIA.

Annualized quantified, but unmonetized,
benefits.
Unquantified Benefits .................................

N/A ............................................................

N/A

N/A

Strengthened protections for workers who
expose program or labor law violations,
and for workers benefitting from increased grace periods; improvements
to program integrity from reduced incentives for employers to collect prohibited fees and increased incentives to
comply with program requirements; and
increased access to workers potentially
available to businesses that utilize the
H–2 programs.
Elimination of the eligible countries lists
would reduce burdens upon DHS,
USCIS, and H–2 employers. DHS
would focus these resources on continuing to identify human trafficking and
other forms of noncompliance with the
H–2 visa programs.

........................

........................

RIA.

$2.00
$2.19

$2.67
$2.92

RIA

........................

........................

RIA.

(3% and 7%) $2.92 ...................................

N/A

N/A

RIA.

(3% and 7%) $0.17 ...................................

N/A

N/A

RIA.

(3% and 7%) $0.17 ...................................

N/A

N/A

RIA.

(3% and 7%) $0.64 ...................................

N/A

N/A

RIA.

Costs
Annualized monetized costs (7%) ..............
Annualized monetized costs (3%) ..............
Annualized quantified, but unmonetized,
costs.

$2.33 .........................................................
$2.55 .........................................................
Increased cooperation with existing
USCIS site visits that average 1.7
hours in duration. Whereas 12-percent
of petitioners underestimated compliance burdens, additional costs to comply with existing program requirements
may occur.
Certain employers may incur costs (including, but not limited to, lost sales,
productivity, or profits and additional
opportunity costs of time) for failing to
comply with investigative or adjudicative actions undertaken due to the rule.

Qualitative (unquantified) costs ..................

Transfers
Annualized monetized transfers: From consumers to limited number of workers
supplying more labor.
Annualized monetized transfers: From limited number of H–2 workers to taxes.
Annualized monetized transfers: From limited number of H–2 employers to taxes.
Annualized monetized transfers: Fees from
petitioners to USCIS.

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Miscellaneous analyses/category
Effects
Effects
Effects
Effects

on
on
on
on

Effects

State, local, or tribal governments ..................................................................................................................
small businesses ............................................................................................................................................
wages ..............................................................................................................................................................
growth .............................................................................................................................................................

3. Background and Purpose of the Rule
The purpose of this rulemaking is to
modernize and improve the regulations
relating to the H–2A temporary

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agricultural worker program and the H–
2B temporary nonagricultural worker
program (collectively ‘‘H–2 programs’’).
Through this proposed rule, DHS seeks

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None
None
None
None

..........
..........
..........
..........

Source
citation
RIA.
RIA.
None.
None.

to strengthen worker protections and the
integrity of the H–2 programs, provide
greater flexibility for H–2A and H–2B
workers, and improve program

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
efficiency and reduce barriers to legal
migration.
The H–2A temporary agricultural
nonimmigrant classification allows U.S.
employers unable to find sufficient able,
willing, qualified, and available U.S.
workers to bring foreign nationals to the
United States to fill seasonal and
temporary agricultural jobs. To qualify
as seasonal, employment must be tied to
a certain time of year by an event or
pattern, such as a short annual growing
cycle or specific aspect of a longer cycle
and requires labor levels far above those
necessary for ongoing operations. To
qualify as temporary, the employer’s
need to fill the position will, except in
extraordinary circumstances, last no
longer than 1 year.
The H–2B visa classification program
was designed to serve U.S. businesses
that are unable to find a sufficient
number of qualified U.S. workers to
perform nonagricultural work of a
temporary or seasonal nature. For an H–
2A or H–2B nonimmigrant worker to be
admitted into the United States under
one of these nonimmigrant
classifications, the hiring employer is
required to: (1) obtain a TLC from DOL
(or, in the case of H–2B employment on
Guam, from the Governor of Guam); and
(2) file a Form I–129 with DHS. The

temporary nature of the services or labor
described on the approved TLC is
subject to DHS review during
adjudication of Form I–129.147
For the H–2B program there is a
statutory cap of 66,000 visas allocated
per fiscal year, with up to 33,000
allocated in each half of a fiscal year, for
the number of nonimmigrants who may
be granted H–2B nonimmigrant
status.148 Any unused numbers from the
first half of the fiscal year will be
available for employers seeking to hire
H–2B workers during the second half of
the fiscal year. However, any unused H–
2B numbers from one fiscal year do not
carry over into the next and will
therefore not be made available.149
4. Population
The proposed rule would impact
petitioners (employers) who file Form I–
129, Petition for a Nonimmigrant
Worker, seeking to bring foreign
nationals (beneficiaries or workers) to
the United States to fill temporary
agricultural and nonagricultural jobs
through the H–2A and H–2B visa
programs, respectively. This proposed
rule also would have additional impacts
on employers and workers presently in
the United States under the H–2A and
H–2B programs by permanently
providing ‘‘portability’’ to all H–2A and

65079

H–2B workers. Portability, for purposes
of this proposed rule, is the ability to
begin new qualifying employment upon
the filing of a nonfrivolous petition
rather than upon petition approval.
Workers may transfer, or ‘‘port,’’ to a
qualifying new job offer that is in the
same nonimmigrant classification that
the worker currently holds. Porting, as
proposed in this NPRM, does not
include transferring from one H visa
classification to another—for example,
from H–2A to H–2B or vice versa. The
new job offer may be through the same
employer that filed the petition or a
different employer after an H–2B
petition is filed. This proposed
provision would apply to all H–2A and
H–2B workers on a permanent basis,
whereas currently portability applies to
only certain H–2A workers and on a
time-limited basis to all H–2B
workers.150 Portability allows H–2A and
H–2B workers to continue to earn wages
and gaining employers to continue
obtaining necessary workers. Table 3
and Table 4 present the total
populations this proposed rule would
impact. For provisions impacting a
subset of these populations, the analysis
provides separate population totals,
when possible, for more specific
analysis.

TABLE 3—TOTAL H–2A PETITIONS RECEIVED USING FORM I–129 FOR TOTAL BENEFICIARIES WITH TOTAL APPROVED H–
2A PETITIONS AND BENEFICIARIES, FY 2013 THROUGH FY 2022
Total
petitions
received

Fiscal year
2013 .................................................................................................................
2014 .................................................................................................................
2015 .................................................................................................................
2016 .................................................................................................................
2017 .................................................................................................................
2018 .................................................................................................................
2019 .................................................................................................................
2020 .................................................................................................................
2021 .................................................................................................................
2022 .................................................................................................................
Total .................................................................................................................
10-year Average ..............................................................................................

Total
number of
beneficiaries

7,332
8,226
9,158
10,248
11,602
13,444
15,509
17,012
20,323
24,370
137,224
13,722

105,095
123,328
157,622
178,249
218,372
262,630
287,606
306,746
353,650
415,229
2,408,527
240,853

Total
petitions
approved
7,280
8,189
9,077
9,989
11,504
13,315
15,356
16,776
19,853
23,704
135,043
13,504

Total
beneficiaries
approved
104,487
122,816
155,683
172,661
216,000
258,360
282,133
300,834
339,419
396,255
2,348,648
234,865

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Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct. 18, 2022.

As shown in Table 3, the number of
Form I–129 H–2A petitions increased
from 7,332 in FY 2013 to 24,370 in FY
2022 while approved petitions
increased from 7,280 in FY 2013 to

23,704 in FY 2022.151 The number of
beneficiaries also increased over this
time period from 105,095 to 415,229
with approved beneficiaries increasing
from 104,487 to 396,255. Note that

petitioners can petition for multiple
beneficiaries on one petition, hence the
much larger number of beneficiaries to
petitions received and approved. On
average, 13,722 H–2A petitions were

147 Revised effective January 18, 2009 (73 FR
78104).
148 See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).
149 A 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).
150 See Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for
the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022) (providing temporary H–2B
portability to petitioners and H–2B nonimmigrant

workers initiating employment through the end of
January 24, 2024).
151 DHS notes that the number of filed H–2A
petitions has grown by an approximately 12.76
compound average growth rate between FY2013
and FY2022. DHS acknowledges that potential costs
may be underestimated in this analysis if historical
growth rates continue.

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

received for an average 240,853
beneficiaries and 13,504 H–2A petitions

were approved for an annual average of
234,865 beneficiaries.

TABLE 4—TOTAL H–2B PETITIONS RECEIVED USING FORM I–129 FOR TOTAL BENEFICIARIES WITH TOTAL APPROVED H–
2B PETITIONS AND BENEFICIARIES, FY 2013 THROUGH FY 2022
Total
petitions
received

Fiscal year
2013 .................................................................................................................
2014 .................................................................................................................
2015 .................................................................................................................
2016 .................................................................................................................
2017 .................................................................................................................
2018 .................................................................................................................
2019 .................................................................................................................
2020 .................................................................................................................
2021 .................................................................................................................
2022 .................................................................................................................
Total .................................................................................................................
10-year average ...............................................................................................

Total
number of
beneficiaries

4,720
5,314
5,412
6,527
6,112
6,148
7,461
5,422
9,160
12,388
68,664
6,866

81,220
91,150
93,160
114,181
110,794
113,850
128,122
95,826
160,790
185,705
1,174,798
117,480

Total
petitions
approved
4,546
5,132
5,165
5,946
5,860
5,941
7,337
5,269
8,937
12,120
66,253
6,625

Total
beneficiaries
approved
78,532
87,859
90,031
105,213
105,839
108,380
125,773
93,345
156,528
181,775
1,133,275
113,328

Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct. 18, 2022.

lotter on DSK11XQN23PROD with PROPOSALS2

Table 4 shows that the number of
Form I–129 H–2B petitions and number
of beneficiaries increased from FY 2013
through FY 2019, declined in FY 2020
due to labor market conditions during
COVID–19, and then increased again in
FY 2021 and FY 2022.152 As previously
discussed, the total number of H–2B
visas is constrained in recent fiscal
years by statutory numerical limits, or
‘‘caps,’’ with some exceptions, on the
total number of noncitizens who may be
issued an initial H–2B visa or otherwise
granted H–2B status during each fiscal
year.153 Whereas the exact statutory
limits (including any supplemental
limits) on H–2B visas are unknown for
FY 2024 and beyond, the receipts and
approvals seen in FY 2022 are assumed
to be a reasonable estimate of future H–
2B petitions and beneficiaries.
As these tables show, U.S. employers
and foreign temporary workers have
been increasingly interested in the H–
2A and H–2B programs from FY 2013 to
FY 2022 as evidenced by an increasing
number of petitions filed for an
increasing number of beneficiaries.
However, the H–2B program remains
constrained by the statutory cap of
152 Although Congress provided the Secretary of
Homeland Security with the discretionary authority
to increase the H–2B cap in FY 2020, the Secretary
did not exercise that authority. See Exercise of
Time-Limited Authority To Increase the Fiscal Year
2021 Numerical Limitation for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 86 FR 28202 (May 25, 2021).
153 On October 12, 2022, DHS announced that it
will make available to employers an additional
64,716 H–2B temporary nonagricultural worker
visas for fiscal year 2023. See DHS, DHS to
Supplement H–2B Cap with Nearly 65,000
Additional Visas for Fiscal Year 2023 (Oct. 12,
2022), https://www.dhs.gov/news/2022/10/12/dhssupplement-h-2b-cap-nearly-65000-additionalvisas-fiscal-year-2023.

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66,000 visas allocated per fiscal year,
provided for under INA sec.
214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B),
though Congress, through time-limited
legislation, has allowed, to date,
supplemental allocations beyond that
66,000 visa cap.154 The supplements
allocate additional visas for
nonimmigrants who may be granted H–
2B nonimmigrant status in each half of
a fiscal year.155
5. Cost-Benefit Analysis
The provisions of this proposed rule
subject to this regulatory analysis are
grouped into the following four
categories: (1) integrity and worker
protections; (2) worker flexibilities; (3)
improving H–2 program efficiencies and
reducing barriers to legal migration; and
(4) forms and technical updates. Each
subsection that follows explains the
154 See 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.
155 See INA sec. 214(g)(1)(B), (g)(10), 8 U.S.C.
1184(g)(1)(B), (g)(10).

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proposed provision, its population if
available, and its potential impacts.
a. Integrity and Worker Protections
To improve the integrity of the H–2
programs, DHS proposes to provide
clearer requirements for USCIS
compliance reviews and inspections, to
provide H–2A and H–2B workers
‘‘whistleblower protections,’’ revise the
provisions relating to prohibited fees,
and to institute certain mandatory and
discretionary bars to approval of an H–
2A or H–2B petition. We address each
of these provisions in turn below.
(1) USCIS Compliance Reviews and
Inspections
DHS is proposing new provisions
specific to the H–2A and H–2B
programs to conduct compliance
inspections, clarify the scope of
inspections, and specify the
consequences of a refusal or failure to
fully cooperate with such compliance
reviews and inspections. While no
inspection that the USCIS Fraud
Detection and National Security
Directorate (FDNS) conducts is
mandatory, if an inspection is
conducted, this provision would make
the successful completion of an
inspection required for a petition’s
approval.156 Inspections can include
site visits, telephone interviews, or
correspondence (both electronic and
mail).157 This regulatory change would
156 For more information on site visits, see USCIS,
Administrative Site Visit and Verification Program
(Sept. 9, 2019), https://www.uscis.gov/about-us/
directorates-and-program-offices/fraud-detectionand-national-security/administrative-site-visit-andverification-program.
157 The expected time burden to comply with
audits conducted by DHS and OFLC is 12 hours.
The number in hours for audits was provided by

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lotter on DSK11XQN23PROD with PROPOSALS2

apply to both pre- and post-adjudication
petitions, which would provide USCIS
the ability to either deny or revoke
petitions accordingly. This proposed
rule would provide USCIS with a
greater ability to obtain compliance
from petitioners and employers. Outside
of this proposed rulemaking, USCIS is
planning to conduct future site visits for
both H–2A and H–2B work sites, some
of which are expected to occur in late
FY 2023.
Data on H–2 program inspections are
limited and generally consist of site
visits. USCIS has conducted only 189
H–2A program site visits associated
with fraud investigations since calendar
year 2004. With respect to H–2B
program inspections, USCIS conducted
a limited site visit pilot in FY 2018 and
FY 2019 in which USCIS completed 364
(randomly selected) H–2B employment
sites for inspection and conducted site
visits.158 Of the site visits USCIS
conducted, USCIS officers were unable
to make contact with employers or
workers over 12 percent of the time (45
instances).159 On average, each site visit
took 1.7 hours.160 Of the limited number
of site visits USCIS has conducted thus
far, non-cooperation exists in at least
some cases. Cooperation is crucial to
USCIS’s ability to verify information
about employers and workers, and the
overall conditions of employment.
This proposed rule would provide a
clear disincentive for petitioners who do
not cooperate with compliance reviews
and inspections while giving USCIS a
greater ability to access and confirm
information about employers and
workers as well as identify fraud.
Employers who may be selected to
participate in such inspections may
incur costs related to the opportunity
cost of time to provide information to
USCIS instead of performing other
work. As discussed above, FDNS data
on previous H–2B site visits show that
the average site visit takes 1.7 hours.
DHS believes that, due to the rule’s
provisions clarifying the consequences
of a refusal or failure to fully cooperate
with compliance reviews and
USCIS, Service Center Operations. See Exercise of
Time-Limited Authority To Increase the Numerical
Limitation for FY 2023 for the H–2B Temporary
Nonagricultural Worker Program and Portability
Flexibility for H–2B Workers Seeking To Change
Employers, 87 FR 76816 (Dec. 15, 2022).
158 The 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.
159 Site visits can be categorized as
‘‘inconclusive’’ for a variety of reasons including,
but not limited to, noncooperation or a lack of
personnel (petitioner, beneficiary, or other relevant
personnel) present at the respective site.
160 Data from USCIS FDNS, Reports and Analysis
Branch.

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inspections, the rate of ‘‘inconclusive’’
site visits will be negligible. As such,
each site visit that warrants a conclusive
finding under the rule that would have
warranted an ‘‘inconclusive’’ finding
under the baseline scenario would
therefore cause a 1.7-hour time burden
to accrue to the respective petitioner
due the petitioner now expending time
cooperating that they would not have
under the baseline.
DHS cannot quantify these costs,
however, because the relevant hourly
opportunity cost of time is highly
specific to the affected petitioner and, as
such, any average would likely not be
informative. DHS expects the benefit of
participation in the H–2 program would
outweigh these costs, however.
Additionally, employers who do not
cooperate would face denial or
revocation of their petition(s), which
could result in costs to those businesses.
USCIS does not expect this proposed
provision would result in additional
costs to the Federal Government
because it would not require additional
resources or time to perform compliance
reviews and inspections and, at the
same time, USCIS is not proposing to
establish a particular number of
compliance reviews and inspections to
complete annually or increase the
number of compliance reviews and
inspections or the number of H–2
program site visits. A benefit is that
USCIS would have the authority to deny
or revoke a petition if unable to verify
information related to the petition.
Additionally, existing USCIS program
integrity activities would be made more
effective by additional cooperation from
employers.
DHS welcomes public comment on
the costs H–2 program employers and
workers would incur based on the
proposed changes related to compliance
reviews and inspections.
(2) Whistleblower Protections
DHS is proposing to provide H–2A
and H–2B workers with ‘‘whistleblower
protections’’ comparable to the
protections currently offered to H–1B
workers.161 For example, if an H–1B
worker (1) applies to extend their H–1B
status or change their nonimmigrant
status; (2) indicates that they faced
retaliatory action from their employer
because they reported an LCA violation;
and (3) lost or failed to maintain their
H–1B status, USCIS may consider this
situation to be an instance of
‘‘extraordinary circumstances’’ as
161 See 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.

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defined by sections 8 CFR 214.1(c)(4)
and 248.1(b). In addition, H–1B workers
normally are not eligible to extend or
change their status if they have lost or
failed to maintain their H–1B status.
However, if they can demonstrate
‘‘extraordinary circumstances,’’ USCIS
may use its discretion to excuse this
requirement on a case-by-case basis.
USCIS does not currently have data
specific to whistleblower protections for
the H–1B program nor does it have data
on other similar types of reports on
worker issues from the H–2
population.162 Therefore, it is possible
that whistleblower protections may
afford H–2 workers the ability to expose
issues that harm beneficiaries or are not
congruent with the intent of H–2
employment. This impact could,
potentially, improve working conditions
but the extent to which H–2 workers
would cooperate in program integrity
activities as a direct result of
prohibitions on specified employer
retaliations is unknown. It is also
possible that employers may face
increased RFEs, denials, or other actions
on their H–2 petitions, or other program
integrity mechanisms available under
this rule or existing authorities, as a
result of H–2 workers’ cooperation in
program integrity activity due to
whistleblower protections. Such actions
may result in potential costs such as lost
productivity and profits to employers
whose noncompliance with the program
is revealed by whistleblowers. The
Department invites comments from
petitioners regarding compliance costs
resulting from whistleblower
protections.
(3) Prohibited Fees
DHS is proposing to revise the
provisions relating to prohibited fees to
strengthen the existing prohibition on,
and consequences for, charging certain
fees to H–2A and H–2B workers,
including new bars on approval for
some H–2 petitions. The economic
impacts of these proposed changes are
difficult to assess because USCIS
currently does not have the means to
track or identify petitions associated
with the payment of prohibited fees.
Prohibited fees are paid by a worker and
include, but are not limited to,
withholding or deducting workers’
162 WHD prohibits retaliation and publishes fact
sheets and other resources online. See, e.g.,
Retaliation | U.S. Department of Labor (dol.gov);
WHD, Fact Sheet #77D: Retaliation Prohibited
under the H–2A Temporary Visa Program (Apr.
2012), https://www.dol.gov/agencies/whd/factsheets/77d-h2a-prohibiting-retaliation; Fact Sheet
#78H: Retaliation Prohibited under the H–2B
Temporary Visa Program, https://www.dol.gov/
agencies/whd/fact-sheets/78h-h2b-retaliationprohibited.

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wages; directly or indirectly paying a
recruiter, employer, agent, or anyone
else in the recruitment chain agent; or
paying for other work-related expenses
the employer is required by statute or
regulation to cover.
USCIS generally has no direct
interaction with beneficiaries, so it
currently depends in significant part on
findings by DOS consulates to
determine if prohibited fees have been
paid, usually in relation to applicant
interviews or investigations. For
example, the DOS Office of Fraud
Prevention, in collaboration with
several consulates in Mexico, confirmed
they do not have data on the average
number of prohibited fees charged nor
the amount paid.163 A consulate in
Mexico shared that during visa
interviews beneficiaries may disclose
the payment of prohibited fees, but
typically these admissions are for fees
paid to previous facilitators or
employers from returning applicants
who are going to work for a new
employer.164 This is likely due to
disincentives to admitting to the
payment of fees for current petitions for
fear of losing the proffered job
opportunity in the United States.165
DOS assumes it only receives reports
from a small fraction of the workers who
pay prohibited fees because they still
are able to obtain work and make more
money in the United States than they
would in Mexico regardless of whether
they pay fees or not leading some
workers to choose not to report the
prohibited fees.166 Further, DOS also
noted that workers usually only report
paying prohibited fees when fees are
increased, when they do not have the
money to pay the fee in a current year,
or they are excluded from being listed
on a petition.
Moreover, DOS noted that prohibited
fees are commonplace and pervasive in
the H–2 program, but that this issue
largely goes unreported.167 Consular
employees noted, in their experience,
that fees ordinarily range from $800 to
$1,000 for a beneficiary to be included
on a petition but that non-monetary
transfers may also occur.168
163 Information from email discussions. See DOS
Emails Re_Prohibited fees (H–2) (Sept. 19, 2022).
164 Id.
165 Workers have a disincentive to report
prohibited fees since regulations stipulate that a
visa should be denied to those admitting to paying
these fees.
166 Information from email discussions. See DOS
Emails Re_Prohibited fees (H–2) (Sept. 19, 2022).
167 Id.
168 In additional to the non-exhaustive list of
prohibited fees, there are also other types of nonfee payments, including favors, meals, or even the
transfer of livestock.

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Data on the prevalence of prohibited
fees is very limited. However, according
to one non-profit organization that
conducted a survey, about 58 percent of
H–2 workers reported paying a
prohibited fee.169 Since data on the
prevalence of prohibited fees is very
limited, we use the 58 percent estimate
as a primary estimate of beneficiaries
that may be subject to some form of
prohibited fee. Using this estimated
percentage, we can multiply by the total
number of FY 2022 beneficiaries to
consider the potential population
impacted by prohibited fees.170 If we
assume 58 percent of beneficiaries pay
an average fee of $900,171 we estimate
that prohibited fees (including those
incurred both within and outside of the
United States) may have cost H–2A
workers around $216.7 million and H–
2B workers around $96.9 million in FY
2022.172 If prohibited fees are a
prevalent problem on such an
economically significant scale, it may
not be reasonable to assume that this
rule would stop all fees paid by H–2
workers. However, for beneficiaries who
currently pay prohibited fees or could
pay them in the future, this proposed
provision seeks to minimize the
occurrence and burden of prohibited
fees on H–2 beneficiaries.
It is difficult to estimate the specific
impacts that this proposed change
would have, but DHS expects that
enhanced consequences for petitioners
would act as a deterrent to charge or
collect prohibited fees from H–2
workers. In addition, the harsher
consequences for employers charging
prohibited fees could, in conjunction
with whistleblower protections
proposed in this rule, reduce
disincentives for workers to report that
prohibited fees had been charged.
However, DHS is not able to estimate
whether and to what extent those
disincentives are expected to be
reduced. Consequently, under this
proposed rule, there would be
additional unquantifiable and nonmonetizable reductions in indenture
and harms from other more serious
169 See Centro de los Derechos del Migrante,
Recruitment Revealed: Fundamental Flaws in the
H–2 Temporary Worker Program and
Recommendations for Change. Not dated. Available
at https://cdmigrante.org/wp-content/uploads/
2018/02/Recruitment_Revealed.pdf. Last accessed
Mar. 31, 2023.
170 FY 2022 Total H–2A beneficiaries 415,229 ×
0.58 = 240,833 (rounded); FY 2022 Total H–2B
beneficiaries 185,705 × 0.58 = 107,709 (rounded).
171 We take an average of the range provided by
the consular office in Mexico: ($800+$1000)/
2=$900.
172 Calculations: Half of FY 2022 H–2A
beneficiaries 240,833 × $900 fee = $216.7 million
(rounded); Half of FY 2022 H–2B beneficiaries
107,709 × $900 fee = $96.9 million (rounded).

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abuses such as those discussed in
section III, Background.
DHS welcomes public comment on
the prevalence, population, and cost of
prohibited fees and their impacts on H–
2 workers.
(4) Mandatory and Discretionary Bars
As another integrity measure and
deterrent for petitioners that have been
found to have committed labor law
violations or abused the H–2 programs,
DHS is proposing to institute certain
mandatory and discretionary bars to
approval of an H–2A or H–2B petition.
The impacts of this proposed provision
are targeted at H–2 petitioners that have
committed serious violations or have
otherwise not complied with H–2
program requirements.
To understand the baseline, USCIS
has data on current debarments. USCIS
relies on debarment data shared by DOL
to determine the eligibility of certain H–
2 petitions. As of December 19, 2022,
there were 76 active debarments for
both the H–2A and H–2B programs.
Historically, from FY 2013 through FY
2022, USCIS has tracked a total of 326
recorded debarments for a company,
individual or agent as provided by DOL.
USCIS regularly performs additional
research to confirm debarment and
petitioner information to assist in
adjudications. For the period of
debarment, a petition covered by the
debarment may not be approved where
the debarred organization, or its
successor-in-interest in some limited
circumstances, whether or not having
the same name as that listed, is the
petitioner or employer.
Costs under this provision of the
proposed rule would be borne by such
petitioners or their successor in interest
through denials and bars to
participating in the H–2 program for a
period of between 1 to 5 years. More
petitioners may face financial losses as
a result of these bars because they may
lose access to labor for extended
periods, which could result in too few
workers, loss of revenue, and some
could go out of business. DHS expects
program participants to comply with
program requirements, however, and
notes that those that do not could
experience significant impacts due to
this proposed rule. DHS expects that the
proposed rule would hold certain
petitioners more accountable for
violations, including certain findings of
labor law and other violations, and
would result in fewer instances of
worker exploitation and safer working
environments for beneficiaries.
The Federal Government may
experience costs associated with
implementing this provision.

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Specifically, USCIS adjudicators may
require additional time associated with
reviewing petitioner information
relating to debarment by DOL and other
determinations of past violations more
closely (as they would now be able to
consider past noncompliance in the
current adjudications), issuing an RFE
or NOID, and, if the violation
determination is covered under the
discretionary bar provision, including
when debarment has concluded,
conducting the discretionary analysis
for relevant petitions. Additionally, the
proposed expansion of bases for
debarment as well as the way
debarments are tracked in current
USCIS systems would require additional
inter-agency coordination and
information sharing.
DHS welcomes public comments on
any costs resulting from these proposed
mandatory and discretionary bars to
employers, if the proposed bars are
adequate to address misconduct, and if
there are data available that should be
considered.

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b. Worker Flexibilities
DHS is proposing changes to provide
greater flexibility to H–2A and H–2B
workers by implementing grace periods,
clarifying the responsibility of H–2A
employers for reasonable costs of return
transportation for beneficiaries
following a petition revocation,
clarifying expressly that H–2 workers
may take steps toward becoming a
permanent resident of the United States
while still maintaining lawful
nonimmigrant status, and expanding job
portability. We address each of the
provisions regarding these worker
flexibilities in turn below.
(1) Grace Periods
DHS proposes to provide increased
flexibility for H–2 workers by extending
grace periods. Workers would not
experience an increase in work time due
to these extended grace periods. More
specifically, this rule proposes to
provide the same 10-day grace period
prior to a petition’s validity period that
H–2B nonimmigrants currently receive
to H–2A nonimmigrants, resulting in the
extension of the initial grace period of
an approved H–2A petition from 1 week
to 10 days. The proposed initial grace
period would also apply to their
dependents in the H–4 visa
classification. USCIS does not have data
on how early H–2 workers arrive in the
United States prior to a petition’s
validity period. As a result, we do not
know how many H–2B workers
currently or historically arrive up to 10
days prior to their employment start
date, nor do we know how many H–2A

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workers currently or historically arrive
a full week (7 days) early. Further, the
portion of the H–2A populations that
may benefit from this proposed
provision is unknown. Extending the
grace period prior to a petition’s validity
period for H–2A workers by 3 days may
result in additional costs to employers,
such as for housing.173 However, since
H–2A employers pay for and normally
arrange transportation to the worksite,
USCIS assumes employers would weigh
the costs of providing additional days of
housing to H–2A workers against the
benefit of providing their employees
with additional time to prepare for the
start of work. For example, it may be
beneficial for an employer to provide
workers additional time to adjust to a
new time zone or climate.
DHS also proposes to extend the 10day grace period following the
expiration of their petition from 10 days
to 30 days for H–2B nonimmigrants,
subject to the 3-year maximum
limitation of stay. USCIS does not have
data on the length of time H–2A or H–
2B workers typically spend in the
United States following the validity
period of a petition because departures
from the United States are not always
tracked. Unlike the general practice
regarding entries, departures are not
always tracked and do not typically
require an encounter with U.S. Customs
and Border Protection, so it is difficult
to determine when nonimmigrants leave
the United States. Therefore, the
population that may benefit from this
proposed provision is unknown.
However, because this proposed rule
would extend only the H–2B grace
period, USCIS does not expect any
additional costs to employers as they
generally are not required to provide
housing for their workers during the
time of employment or during the grace
period. The extended grace period for
H–2B workers would benefit the
workers by providing additional time to
prepare for departure or seek alternative
work arrangements such as applying for
an extension of stay based on a
subsequent offer of employment or
porting to a new employer.
Additionally, this proposed provision
would align the grace periods for H–2A
and H–2B workers so that they both are
afforded 10 days prior to the approved
validity period and 30 days following
the expiration of an H–2 petition,
thereby reducing confusion for potential
employers and better ensuring
173 H–2A workers must be provided housing. See
WHD, H–2A: Temporary Agricultural Employment
of Foreign Workers, https://www.dol.gov/agencies/
whd/agriculture/h2a.

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65083

consistency in granting workers the
grace periods.
DHS is also proposing to provide a
new 60-day grace period following a
cessation of H–2 employment or until
the end of the authorized period of
admission, whichever is shorter. USCIS
does not have data on H–2 employment
cessations and, therefore, the impact of
this provision on the portion of the H–
2A and H–2B populations is unknown.
However, this provision would likely
offer H–2 workers time to respond to
sudden or unexpected changes related
to their employment, regardless of the
reason for employment cessation. The
time could be used to seek new
employment, prepare for departure from
the United States, or seek a change of
status to a different nonimmigrant
classification.
DHS welcomes public comments on
any costs resulting from the proposed
grace period extensions from 1 week to
10 days prior to a petition’s validity
period for H–2A nonimmigrants and
from 10 days to 30 days following the
expiration of their petition for H–2B
nonimmigrants, subject to the 3-year
maximum limitation of stay. DHS also
welcomes public comments on the
proposed grace period of 60 days
following a cessation of H–2
employment or until the end of the
authorized period of admission,
whichever is shorter.
(2) Transportation Costs for Revoked H–
2 Petitions
DHS proposes to add language
clarifying that upon revocation of an H–
2A or H–2B petition, the petitioning
employer would be liable for the H–2
beneficiary’s reasonable costs of return
transportation to their last place of
foreign residence abroad. Under existing
20 CFR 655.20(j)(1)(ii) and 20 CFR
655.122(h)(2), as well as 8 CFR
214.2(h)(6)(i)(C) and 8 CFR
214.2(h)(6)(vi)(E), petitioning employers
are already generally liable for the
return transportation costs of H–2
workers, so this proposed change is not
expected to result in any additional
costs to employers.
(3) Effect on an H–2 Petition of
Approval of a Permanent Labor
Certification, Immigrant Visa Petition,
or the Filing of an Application for
Adjustment of Status or Immigrant Visa
DHS proposes to clarify that H–2
workers may take certain steps toward
becoming lawful permanent residents of
the United States while still maintaining
lawful nonimmigrant status. The
population impacted by this provision
can be seen in Table 5. Historical
receipts data for Form I–485

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(Application to Register Permanent
Residence or Adjust Status) show a 5year total of 9,748 receipts from

applicants with H–2A and H–2B status.
The annual average is 1,950 receipts.

TABLE 5—FORM I–485 RECEIPTS FROM APPLICANTS WITH H–2A AND H–2B STATUS, FY 2018 THROUGH FY 2022
Fiscal year
2018
2019
2020
2021
2022

Receipts

Approved

Denied

Admin
close/
withdraw

.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................

1,294
1,698
2,491
2,701
1,564

240
1,032
1,366
2,411
1,832

22
81
87
97
138

2
2
1
2
6

Total ..........................................................................................................................................
5-year average .................................................................................................................................

9,748
1,950

6,881
1,376

425
85

13
3

Source: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Nov. 4, 2022.

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USCIS does not have information on
how many H–2 workers have been
deemed to have violated their H–2
status or abandoned their foreign
residence. However, DHS expects this
could enable some H–2 workers who
have otherwise been dissuaded to
pursue lawful permanent residence with
the ability to do so without concern over
becoming ineligible for H–2 status. This
proposed rule would not expand the
underlying eligibility of H–2 workers for
lawful permanent resident status.
DHS welcomes public comments on
the impacts that may result from this
proposed provision to allow H–2
workers to take steps toward becoming
permanent residents of the United
States.
(4) Portability
DHS proposes to permanently provide
portability for eligible H–2A and H–2B
nonimmigrants. The population affected
by this provision are nonimmigrants in
H–2A and H–2B status who are present
in the United States on whose behalf a
nonfrivolous H–2 petition for new
employment has been filed, with a
request to amend or extend the H–2A or
H–2B nonimmigrant’s stay in the same
classification they currently hold, before
their period of stay expires and who
have not been employed without
authorization in the United States from
the time of last admission through the
filing of the petition for new
employment. Codifying this provision
in regulation for H–2 nonimmigrants
would provide stability and job
flexibility to the beneficiaries of
approved H–2 visa petitions. This
portability provision would facilitate
the ability of individuals to move to
more favorable employment situations
and/or extend employment in the
United States without being tied to one
position with one employer.
Additionally, DHS is proposing an

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additional portability provision that
would clarify that H–2 employers must
comply with all H–2 program
requirements and responsibilities (such
as worker protections) in the event that
a petition for a porting worker is
withdrawn or denied.
Currently, portability is available on a
permanent basis to H–2A workers, but
it is limited to E-Verify employers.174 EVerify is a DHS web-based system that
allows enrolled employers to confirm
the identity and eligibility of their
employees to work in the United States
by electronically matching information
provided by employees on the
Employment Eligibility Verification
(Form I–9) against records available to
DHS and the Social Security
Administration (SSA).175 DHS does not
charge a fee for employers to participate
in E-Verify and create cases to confirm
the identity and employment eligibility
of newly hired employees. Under this
proposed rule, employers petitioning for
a porting H–2A worker would no longer
need to be enrolled in E-Verify, but
would remain subject to all program
174 While unrelated to this NPRM, we note that
on April 20, 2020, a final rule published to
temporarily amend its regulations to allow H–2A
workers to immediately work for any new H–2A
employer to mitigate the impact on the agricultural
industry due to COVID–19. This temporary final
rule (TFR) was effective from April 20, 2020,
through August 18, 2020. See Temporary Changes
to Requirements Affecting H–2A Nonimmigrants
Due to the COVID–19 National Emergency, 85 FR
21739 (Apr. 20, 2020). Another TFR published
August 20, 2020, again allowing H–2A workers to
immediately work for any new H–2A employer.
That TFR was effective from August 19, 2020,
through August 19, 2023 and allowed employers to
request the flexibilities under this TFR by filing an
H–2A petition on or after August 19, 2020, and
through December 17, 2020. See Temporary
Changes to Requirements Affecting H–2A
Nonimmigrants Due To the COVID–19 National
Emergency: Partial Extension of Certain
Flexibilities, 85 FR 51304 (Aug. 20, 2020).
175 See DHS, About E-Verify, https://www.everify.gov/about-e-verify (last updated Apr. 10,
2018).

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requirements based on the approved
TLC and the filing of the H–2 petition.
Although there is no fee to use EVerify, this proposed requirement
would result in savings to newly
enrolling employers. Employers that
newly enroll in E-Verify to hire H–2
workers incur startup enrollment or
program initiation costs as well as
additional opportunity costs of time for
users to participate in webinars and
learn about and incorporate any new
features and system updates that EVerify may have every year. DHS
assumes that most employers that are
currently participating in E-Verify
would not realize cost savings of these
expenses since they previously incurred
enrollment costs and would continue to
participate in webinars and incorporate
any new E-Verify features and system
changes regardless of this proposed
rule.176 Additionally, DHS expects that
only those employers who would have
enrolled for the explicit purpose of
petitioning on behalf of a porting
employee would realize a cost savings
for verifying the identity and work
authorization of all their newly hired
employees, including any new H–2A
workers as a result of this proposed rule.
For employers currently enrolled in EVerify that choose to hire an H–2A
worker, the proposed rule would not
result in a cost savings to such
employers since they already must use
E-Verify for all newly hired employees
as of the date they signed the E-Verify
Memorandum of Understanding
176 Employers 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.

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65085

(MOU).177 Therefore, with or without
the proposed rule, an employer already
enrolled in E-Verify that chooses to hire
a porting H–2A worker would continue
to incur the opportunity cost of time to
confirm the employment authorization
of any newly hired employees.
Participating in E-Verify and
remaining in good standing requires
employers to enroll in the program
online,178 electronically sign the
associated MOU with DHS that sets the
terms and conditions for participation
and create E-Verify cases for all newly
hired employees. The MOU requires
employers to abide by lawful hiring
procedures and to ensure that no
employee will be unfairly discriminated
against as a result of E-Verify.179 If an
employer violates the terms of this
agreement, it can be grounds for
immediate termination from E-Verify.180
Additionally, employers are required to
designate and register at least one
person that serves as an E-Verify
administrator on their behalf.
For this analysis, DHS assumes that
each employer participating in E-Verify
designates one HR specialist to manage
the program on its behalf. Based on the
most recent Paperwork Reduction Act
(PRA) Information Collection Package
for E-Verify, DHS estimates the time
burden for an HR specialist to undertake
the tasks associated with E-Verify. DHS
estimates the time burden for an HR
specialist to complete the enrollment
process is 2 hours 16 minutes (2.26
hours), on average, to provide basic
company information, review and sign
the MOU, take a new user training, and
review the user guides.181 Once enrolled
in E-Verify, DHS estimates the time
burden is 1 hour to users who may
participate in voluntary webinars and
learn about and incorporate new
features and system updates to E-Verify
annually.182 This may be an
overestimate in some cases as webinars
are not mandatory, but we recognize
that some recurring burden to users

exists to remain in good standing with
E-Verify.
Cost savings due to this provision
relate only to the opportunity costs of
time to petitioners associated with the
time an employer would save by not
newly enrolling or participating in EVerify. In this analysis, DHS uses an
hourly compensation rate for estimating
the opportunity cost of time for an HR
specialist. DHS uses this occupation as
a proxy for those who might prepare
and complete the Form I–9,
Employment Eligibility Verification,
and create the E-Verify case for an
employer. DHS notes that not all
employers may have an HR specialist,
but rather some equivalent occupation
may prepare and complete the Form I–
9 and create the E-Verify case.
According to Bureau of Labor
Statistics (BLS) data, the average hourly
wage rate for HR specialists is $35.13.183
DHS accounts for worker benefits by
calculating a benefits-to-wage multiplier
using the most recent BLS report
detailing the average employer costs for
employee compensation for all civilian
workers in major occupational groups
and industries. DHS estimates the
benefits-to-wage multiplier is 1.45 and,
therefore, is able to estimate the full
opportunity cost per E-Verify user,
including employee wages and salaries
and the full cost of benefits such as paid
leave, insurance, and retirement, etc.184
Therefore, DHS calculates an average
hourly compensation rate of $50.94 for
HR specialists.185 Applying this average
hourly compensation rate to the
estimated time burden of 2.26 hours for
the enrollment process, DHS estimates
an average opportunity cost of time
savings for a new employer to enroll in
E-Verify is $115.12.186 DHS assumes the
estimated opportunity cost of time to
enroll in E-Verify is a one-time cost to
employers. In addition, DHS estimates
an opportunity cost of time savings
associated with 1 hour of each E-Verify
user to attend voluntary webinars and

learn about and incorporate new
features and system changes for newly
enrolled entities would be $50.94
annually in the years following
enrollment.
Newly enrolled employers would also
incur opportunity costs of time savings
from not having to enter employee
information into E-Verify to confirm
their identity and employment
authorization. DHS estimates the time
burden for an HR specialist to create a
case in E-Verify is 7.28 minutes (or
0.121 hours).187 Therefore, DHS
estimates the opportunity cost of time
savings would be approximately $6.57
per case.188 These employers would not
be able to verify the employment
eligibility information of newly hired
employees against government data
systems if they fail to register and use
E-Verify.
Table 6 shows the number of Form I–
129 H–2A petitions filed for extensions
of stay due to change of employer and
Form I–129 H–2A petitions filed for
new employment for FY 2018 through
FY 2022. The average rate of extension
of stay due to change of employer
compared to new employment was
approximately 6.7 percent over this time
period. USCIS also considered the
number of beneficiaries that correspond
to the Form I–129 H–2A petitions that
filed extensions of stay due to a change
of employer to estimate the average
number of beneficiaries per petition of
six. Table 6 also shows that although
petitions have been increasing for
extension of stay due to change of
employer, the number of beneficiaries
on each petition has declined from FY
2018 to FY 2022. This indicates that it
may be harder for petitioners to find
porting workers. One reason may be
because petitioners face certain
constraints such as the ability for
petitioners to access workers seeking to
port or a limited number of workers
seeking to port.

177 See DHS, About E-Verify, Questions and
Answers (last updated Sept. 15, 2022), https://
www.e-verify.gov/about-e-verify/questions-andanswers?tid=All&page=0.
178 See DHS, Enrolling in E-Verify, The
Enrollment Process (last updated Aug. 9, 2022),
https://www.e-verify.gov/employers/enrolling-in-everify/the-enrollment-process.
179 An 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.
180 See 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.
181 The USCIS Office of Policy and Strategy, PRA
Compliance Branch estimates the average time
burdens. See PRA E-Verify Program (OMB Control

Number 1615–0092) (Mar. 30, 2021). The PRA
Supporting Statement can be found at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=202103-1615-015,
under Question 12 (Last accessed Apr. 4, 2023).
182 Id.
183 See BLS, Occupational Employment and
Wages, May 2022, Human Resources Specialist (13–
1071), https://www.bls.gov/oes/2022/may/
oes131071.htm.
184 The benefits-to-wage multiplier is calculated
as follows: (Total Employee Compensation per
hour)/(Wages and Salaries per hour) = $42.48/
$29.32 = 1.45 (rounded). See BLS, Economic News
Release, Employer Cost for Employee
Compensation—December 2021, Table 1. Employer
costs per hour worked for employee compensation
and costs as a percent of total compensation:
Civilian workers, by major occupational and
industry group (Mar. 17, 2023), https://

www.bls.gov/news.release/archives/ecec_
03172023.pdf.
185 Calculation: $35.13 average hourly wage rate
for HR specialists × 1.45 benefits-to-wage multiplier
= $50.94 (rounded).
186 Calculation: 2.26 hours for the enrollment
process × $50.94 total compensation wage rate for
an HR specialist = $115.12.
187 The USCIS Office of Policy and Strategy, PRA
Compliance Branch estimates the average time
burdens. See PRA E-Verify Program (OMB Control
Number 1615–0092), March 30, 2021. The PRA
Supporting Statement can be found at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=202103-1615-015
under Question 12 (Last accessed Apr. 4, 2023)
188 Calculation: 0.121 hours to submit a query ×
$50.94 total compensation wage rate for an HR
specialist = $6.57 (rounded).

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TABLE 6—NUMBER OF FORM I–129 H–2A PETITIONS AND BENEFICIARIES FILED FOR EXTENSION OF STAY DUE TO
CHANGE OF EMPLOYER AND FORM I–129 H–2A PETITIONS FILED FOR NEW EMPLOYMENT, FY 2018—FY 2022

Fiscal year

2018
2019
2020
2021
2022

Form I–129
H–2A
petitions filed
for extension
of stay due to
change of
employer
A

Form I–129
H–2A
petitions filed
for new
employment

Rate of
extension to
stay due to
change of
employer
filings relative
to new
employment
filings

Number of
beneficiaries
corresponding
to Form I–129
H–2A
extension of
stay petitions
filed

Average
number of
beneficiaries
per petition
filed for
extension of
stay due to
change of
employer

B

C = A/B

D

E = D/A

.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................
.....................................................................................

425
626
915
1,334
1,526

10,841
12,177
12,989
15,128
18,093

0.039
0.051
0.070
0.088
0.084

3,566
4,265
5,995
7,226
7,250

8
7
7
5
5

Total ..............................................................................
5-year Average ....................................................................

4,826
965

69,228
13,846

........................
0.067

28,302
5,660

........................
6

Source: USCIS, Office of Policy and Strategy—C3, ELIS USCIS Data System, as of Oct. 18, 2022 and USCIS Analysis.

lotter on DSK11XQN23PROD with PROPOSALS2

DHS expects that existing H–2A
petitioners would continue to
participate in E-Verify and would thus
not realize a cost savings due to this
proposed rule. For employers that do
not yet port H–2A workers but do obtain
TLCs from DOL, they would experience
a cost-savings relevant to avoiding
enrollment and participation in E-Verify
but would not be able to verify the
employment eligibility information of
newly hired employees against
government data systems. However, for
employers that do not yet port H–2A
workers and do not yet obtain TLCs, the
cost-savings would be offset by their
need to submit DOL’s Employment and
Training Administration (ETA) Form
9142A. The public reporting burden for
Form ETA–9142A is estimated to
average 3.63 hours per response for H–
2A.189 Depending on the filer, the cost
to submit Form ETA–9142A is
estimated at $184.91 for an HR
specialist, $414.44 for an in-house
lawyer, and $ 714.57 for an out-sourced
189 See DOL, H–2A Application for Temporary
Employment Certification Form ETA–9142A (OMB
Control Number 1205–0466), Expires Oct. 31, 2025.
The PRA Supporting Statement can be found at
https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=202303-1205-002
under Question 12 (Last accessed Apr. 4, 2023); see
also DOL, Supplementary Documents, Appendix—
Breakdown of Hourly Burden Estimates, H–2A
Application for Temporary Employment
Certification Form ETA–9142A (OMB Control
Number 1205–0537), Id. at Section C. (Last accessed
Apr. 4, 2023). DOL estimates the time burden for
completing Form ETA–9142A is 3.63 hours,
including 0.33 hours to complete Form ETA–
9142A, 1.33 hours to H–2ALC Filing Requirements,
0.50 hours to complete Waiver for Emergency
Situations, 0.25 hours to complete Modify
Application/Job Order, 0.50 hours to complete
Amend Application/Job Order, and 0.50 hours to
complete Herder Variance Request.

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lawyer.190 Compared to the absolute
minimum opportunity cost of time to
enroll in, participate in an hour of
training, and submit one query in EVerify of $172.63,191 regardless of the
filer, a new H–2A porting employer
needing to obtain TLCs would not
experience a cost-savings in the first
year following this rule.192
By removing the requirement for a
petitioner to participate in E-Verify in
order to benefit from portability, this
provision may result in some increased
demand for H–2A petitioners to apply to
port eligible H–2A workers. DHS
expects H–2A petitioners that already
hire porting H–2A beneficiaries to
continue to use E-Verify in the future.
However, DHS is unable to estimate the
number of future employers that would
opt not to enroll in E-Verify in the
future as a result of this rule or how
many would need to obtain TLCs. DHS
does not expect any reduction in
protection to the legal workforce as a
result of this rule as some H–2A
petitioners would continue to use EVerify. Any new petitioners for porting
H–2A workers would still be required to
obtain TLCs through DOL, these H–2A
employers would be subject to the site
visit requirements and comply with the
terms and conditions of H–2
190 Calculations: 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).
191 Calculation: $115.12 enrollment + $50.94
annual training + $6.57 query submission =
$172.63.
192 DHS recognizes that the opportunity cost of
time would be higher than this absolute minimum
because employers would have more than one
employee and E-Verify participants are required to
query every employee.

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employment set forth in this NPRM and
under other related regulations, and the
porting worker would have already been
approved to legally work in the United
States as an H–2A worker.
Temporary portability for H–2B
workers has been provided as recently
as the FY 2023 H–2B Supplemental Cap
temporary final rule (TFR) and was
available under previous supplemental
caps dating back to FY 2021.193
However, data show that there is a
longer history of extensions of stay due
to changes of employer for H–2B
petitions filed even in years when
portability was not authorized.194 Since
it is difficult to isolate the impacts of
inclusion of temporary portability
provisions in the FY 2021 through FY
2023 H–2B Supplemental Cap TFRs
from the extensions of stay due to
changes of employer that would be
expected in the absence of this proposed
provision, we reproduce the FY 2023 H–
2B Supplemental Cap TFR’s analysis
here.195 Additionally, USCIS is unclear
how many additional H–2B visas
Congress would allocate in future fiscal
193 See Exercise of Time-Limited Authority To
Increase the Numerical Limitation for FY 2023 for
the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B
Workers Seeking To Change Employers, 87 FR
76816 (Dec. 15, 2022).
194 Id.
195 On May 14, 2020, a final rule published to
temporarily amend its regulations to allow H–2B
workers to immediately work for any new H–2B
employer to mitigate the impact on nonagricultural
services or labor essential to the U.S. food supply
chain due to COVID–19. Since the analysis is based
on annual fiscal years, data from the months
between May and September 2020 are not able to
be separated out to determine those early impacts
on portability. See Temporary Changes to
Requirements Affecting H–2B Nonimmigrants Due
to the COVID–19 National Emergency, 85 FR 28843
(May 14, 2020).

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years beyond the 66,000 statutory cap
for H–2B nonimmigrants.
The population affected by this
provision are nonimmigrants in H–2B
status who are present in the United
States and the employers with valid
TLCs seeking to hire H–2B workers. In
the FY 2023 H–2B Supplemental Cap
TFR, USCIS uses the population of
66,000 H–2B workers authorized by
statute and the 64,716 additional H–2B

workers authorized by the rule as a
proxy for the H–2B population that
could be currently present in the United
States.196 USCIS uses the number of
Form I–129 petitions filed for extension
of stay due to change of employer
relative to the number of petitions filed
for new employment from FY 2011
though FY 2020. This includes the 10
years prior to the implementation of the
first portability provision in an H–2B

65087

Supplemental Cap TFR. Using these
data, we estimate the baseline rate and
compare it to the average rate from FY
2011 through FY 2020 (Table 7). We
find that the average rate of extension of
stay due to change of employer
compared to new employment from FY
2011 through FY 2020 is approximately
10.5 percent.

TABLE 7—NUMBERS OF FORM I–129 H–2B PETITIONS FILED FOR EXTENSION OF STAY DUE TO CHANGE OF EMPLOYER
AND FORM I–129 H–2B PETITIONS FILED FOR NEW EMPLOYMENT, FY 2011 THROUGH FY 2020

Fiscal year

Form I–
129 H–2B
petitions
filed for
extension
of stay
due to
change of
employer

Form I–
129 H–2B
petitions
filed for
new employment

Rate of
extension
to stay
due to
change of
employer
filings relative to
new employment
filings

360
293
264
314
415
427
556
744
812
804
4,990

3,887
3,688
4,120
4,666
4,596
5,750
5,298
5,136
6,251
3,997
47,389

0.093
0.079
0.064
0.067
0.090
0.074
0.105
0.145
0.130
0.201
0.105

2011 .....................................................................................................................................................................
2012 .....................................................................................................................................................................
2013 .....................................................................................................................................................................
2014 .....................................................................................................................................................................
2015 .....................................................................................................................................................................
2016 .....................................................................................................................................................................
2017 .....................................................................................................................................................................
2018 .....................................................................................................................................................................
2019 .....................................................................................................................................................................
2020 .....................................................................................................................................................................
FY 2011 through FY 2020 Total ..........................................................................................................................

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Source: USCIS, Office of Performance and Quality—SAS PME C3 Consolidated, as of Oct. 10, 2022, TRK 10638

In FY 2021, the first year an H–2B
Supplemental Cap TFR included a
portability provision, there were 1,113
petitions filed using Form I–129 for
extension of stay due to change of
employer compared to 7,207 petitions
filed for new employment.197 In FY
2022, there were 1,791 petitions filed
using Form I–129 for extension of stay
due to change of employer compared to
9,233 petitions filed for new
employment.198 Over the period when a
portability provision was in place for H–

2B workers, the rate of petitions filed
using Form I–129 for extension of stay
due to change of employer relative to
new employment was 17.7 percent.199
This is above the 10.5 percent rate of
filings expected when there was no
portability provision in place. We
estimate that a rate of about 17.7 percent
should be expected in periods with a
portability provision in a H–2B
Supplemental Cap TFR that provides an
additional allocation of visas. Using
4,398 as our estimate for the number of

petitions filed using Form I–129 for H–
2B new employment in FY 2023, we
estimate that 462 petitions for extension
of stay due to change of employer would
be filed in absence of this rulemaking’s
portability provision. 200 201 With the
rule’s portability provision in effect, we
estimate that 778 petitions would be
filed using Form I–129 for extension of
stay due to change of employer.202 As a
result of this provision, we estimate 316
additional petitions using Forms I–129
would be filed.203 As shown in Table 12

196 This number may overestimate H–2B workers
who have already completed employment and
departed and may underestimate H–2B workers not
reflected in the current cap and long-term H–2B
workers. In FY 2021, USCIS approved 735 requests
for change of status to H–2B, and Customs and
Border Protection (CBP) processed 1,341 crossings
of visa-exempt H–2B workers. See USCIS,
Characteristics of H–2B Nonagricultural Temporary
Workers FY2021 Report to Congress, https://
www.uscis.gov/sites/default/files/document/
reports/H-2B-FY21-Characteristics-Report.pdf (Mar.
10, 2022). DHS assumes some of these workers,
along with current workers with a valid H–2B visa
under the cap, could be eligible to port under this
new provision. DHS does not know the exact
number of H–2B workers who would be eligible to
port at this time but uses the cap and supplemental
cap allocations as a possible proxy for this
population.

197 USCIS, Office of Performance and Quality,
SAS PME C3 Consolidated, data queried October
2022, TRK 10638.
198 USCIS, Office of Performance and Quality,
SAS PME C3 Consolidated, data queried October
2022, TRK 10638.
199 Calculation, Step 1: 1,113 Form I–129
petitions for extension of stay due to change of
employer FY 2021 + 1,791 Form I–129 petitions for
extension of stay due to change of employer in FY
2022 = 2,904 Form I–129 petitions filed extension
of stay due to change of employer in portability
provision years.
Calculation, Step 2: 7,207 Form I–129 petitions
filed for new employment in FY 2021 + 9,233 Form
I–129 petitions filed for new employment in FY
2022 = 16,440 Form I–129 petitions filed for new
employment in portability provision years.
Calculation, Step 3: 2,904 extensions of stay due
to change of employment petitions/16,440 new

employment petitions = 17.7 percent rate of
extension of stay due to change of employment to
new employment.
200 Calculation for expected petitions: 66,000
beneficiaries allowed by the annual statutory cap/
15.01 historical average of beneficiaries per petition
= 4,398 Forms I–129 filed due to the rule’s
portability provision (rounded).
201 Calculation: 4,398 Form I–129 H–2B petitions
filed for new employment × 10.5 percent = 462
estimated number of Form I–129 H–2B petitions
filed for extension of stay due to change of
employer, no portability provision.
202 Calculation: 4,398 Form I–129 H–2B petitions
filed for new employment × 17.7 percent = 778
estimated number of Form I–129 H–2B petitions
filed for extension of stay due to change of
employer, with a portability provision.

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45.84 percent of petitions using Form I–
129 will be filed by an in-house or
outsourced lawyer. Therefore, we expect
that a lawyer would file 145 of these
petitions and an HR specialist would
file the remaining 171.204 Similarly, we
estimated that about 93.57 percent of
petitions using Form I–129 for H–2B
beneficiaries are filed with Form I–907
to request premium processing. As a
result of this portability provision, we
expect that an additional 296 requests
using Form I–907 would be filed.205 We
expect lawyers to file 136 requests using
Forms I–907 and HR specialists to file
the remaining 160 requests.206
Petitioners seeking to hire H–2B
nonimmigrants who are currently
present in the United States in lawful
H–2B status would need to file Form I–
129 and pay the associated fees.207
Additionally, if a petitioner is
represented by a lawyer, the lawyer
must file Form G–28; if premium
processing is desired, a petitioner must
file Form I–907 and pay the associated
fee. We expect these actions to be
performed by an HR specialist, in-house
lawyer, or an outsourced lawyer.
Moreover, as previously stated, we
expect that about 45.84 percent of
petitions using Form I–129 would be
filed by an in-house or outsourced
lawyer. Therefore, we expect that 145
petitions would be filed by a lawyer and
the remaining 171 petitions would be
filed by an HR specialist. The
opportunity cost of time to file a Form
I–129 H–2B petition would be $236.36
for an HR specialist; and the
203 Calculation: 778 estimated number of Form I–
129 H–2B petitions filed for extension of stay due
to change of employer, with a portability
provision—462 estimated number of Form I–129 H–
2B petitions filed for extension of stay due to
change of employer, no portability provision = 316
Form I–129 H–2B petition increase as a result of
portability provision.
204 Calculation, Lawyers: 316 additional Form I–
129 due to portability provision × 45.84 percent of
Form I–129 for H–2B positions filed by an attorney
or accredited representative = 145 (rounded)
estimated Form I–129 filed by a lawyer.
Calculation, HR specialist: 316 additional Form
I–129 due to portability provision—145 estimated
Form I–129 filed by a lawyer = 171 estimated Form
I–129 filed by an HR specialist.
205 Calculation: 316 Form I–129 H–2B petitions ×
93.57 percent premium processing filing rate = 296
(rounded) Forms I–907.
206 Calculation, Lawyers: 296 Forms I–907 × 45.84
percent filed by an attorney or accredited
representative = 136 Forms I–907 filed by a lawyer.
Calculation, HR specialists: 296 Forms I–907—
136 Forms I–907 filed by lawyer = 160 Forms I–907
filed by an HR specialist.
207 The current filing fee for Form I–129 is $460
and employers filing H–2B petitions must submit
an additional fee of $150. See Instructions for
Petition for Nonimmigrant Worker Department of
Homeland Security, USCIS Form I–129, OMB
Control Number 1615–0009 (expires November 30,
2025), https://www.uscis.gov/sites/default/files/
document/forms/i-129instr.pdf.

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opportunity cost of time to file a Form
I–129 H–2B petition with accompanying
Form G–28 would be $624.51 for an inhouse lawyer and $1,076.77 for an
outsourced lawyer.208 Therefore, we
estimate the cost of the additional
petitions filed using Form I–129 from
the portability provision for HR
specialists would be $40,418.209 The
estimated cost of the additional
petitions filed using Form I–129
accompanied by Forms G–28 from the
portability provision for lawyers would
be $90,554 if filed by in-house lawyers
and $156,132 if filed by outsourced
lawyers.210
We previously stated that about 93.57
percent of Form I–129 H–2B petitions
are filed with Form I–907 for premium
processing. As a result of this provision,
we expect that an additional 296
requests for premium processing using
Form I–907 will be filed.211 We expect
136 of those requests would be filed by
a lawyer and the remaining 160 would
be filed by an HR specialist.212 The
estimated opportunity cost of time to
file Form I–907 would be about $29.55
for an HR specialist; and the estimated
opportunity cost of time for an in-house
lawyer to file Form I–907 would be
approximately $66.22 and for an
outsourced lawyer it would be about
$114.17.213 The estimated annual cost of
208 Calculation, HR Specialist: $50.94 hourly
opportunity cost of time x 4.64-hour time burden
for form I–129 = $236.36 estimated cost to file a
Form I–129 H–2B petition.
Calculation, In-house lawyer: $114.17 hourly
opportunity cost of time × 5.47-hour time burden
for form I–129 and Form G–28 = $624.51 estimated
cost to file a Form I–129 H–2B petition.
Calculation, outsourced lawyer: $196.85 hourly
opportunity cost of time × 5.47-hour time burden
for form I–129 and Form G–28 = $1,076.77
(rounded) estimated cost to file a Form I–129 H–2B
petition.
209 Calculation, HR specialist: $236.36 estimated
cost to file a Form I–129 H–2B petition × 171
petitions = $40,418 (rounded).
210 Calculation, In-house Lawyer: $624.51
estimated cost to file a Form I–129 H–2B petition
and accompanying Form G–28 × 145 petitions =
$90,554 (rounded).
Calculation, Outsourced Lawyer: $1,076.77
estimated cost to file a Form I–129 H–2B petition
and accompanying Form G–28 × 145 petitions =
$156,132 (rounded).
211 Calculation: 316 estimated additional Form I–
129 H–2B petitions × 93.57 percent accompanied by
Form I–907 = 296 (rounded) additional Form I–907.
212 Calculation, Lawyers: 296 additional Form I–
907 × 45.84 percent = 136 (rounded) Form I–907
filed by a lawyer. Calculation, HR specialists: 296
Form I–907—136 Form I–907 filed by a lawyer =
160 Form I–907 filed by an HR specialist.
213 Calculation, HR Specialist: $50.94 hourly
opportunity cost of time x 0.58-hour time burden
to file Form I–907 = $29.55 cost to file Form I–907.
Calculation, In-house lawyer: $114.17 hourly
opportunity cost of time x 0.58-hour time burden
to file Form I–907 = $66.22 cost to file Form I–907.
Calculation, outsourced lawyer: $196.85 hourly
opportunity cost of time x 0.58-hour time burden

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filing additional requests for premium
processing using Form I–907 if HR
specialists file would be approximately
$4,728.214 The estimated annual cost of
filing additional requests for premium
processing using Form I–907 would be
about $9,006 if filed by in-house
lawyers, and approximately $15,527 if
filed by outsourced lawyers.215
The estimated annual cost of this
provision ranges from $144,706 to
$216,805 depending on what share of
the forms are filed by in-house or
outsourced lawyers.216
The transfer payments from filing
petitions using Form I–129 for an H–2B
beneficiary include the filing costs to
submit the form. The current filing fee
for Form I–129 is $460 plus an
additional fee of $150 for employers
petitioning for H–2B beneficiaries.217
These filing fees are not a cost to society
or an expenditure of new resources but
a transfer from the petitioner to USCIS
in exchange for agency services. USCIS
anticipates that petitioners would file an
additional 316 petitions using Form I–
129 due to the portability provision in
the proposed rule. The annual value of
transfers from petitioners to the
Government for filing Form I–129 due to
the proposed rule would be
approximately $192,760.218
Additionally, employers may use
Form I–907 to request premium
processing of Form I–129 petitions for
H–2B visas. The current filing fee for
Form I–907 to request premium
processing for H–2B petitions is
$1,500.219 Based on historical trends,
to file Form I–907 = $114.17 cost to file Form I–
907.
214 Calculation, HR specialist: $29.55 to file a
Form I–907 × 160 forms = $4,728 (rounded).
215 Calculation, In-house lawyer: $66.22 to file a
Form I–907 × 136 forms = $9,006 (rounded).
Calculation for an outsourced lawyer: $114.17 to
file a Form I–907 × 136 forms = $15,527 (rounded).
216 Calculation for HR specialists and in-house
lawyers: $40,418 for HR specialists to file Form I–
129 H–2B petitions + $90,554 for in-house lawyers
to file Form I–129 and the accompanying Form G–
28 + $4,728 for HR specialists to file Form I–907
+ $9,006 for in-house lawyers to file Form I–907 =
$144,706.
Calculation for HR specialists and outsourced
lawyers: $40,418 for HR specialists to file Form I–
129 H–2B petitions + $156,132 for outsourced
lawyers to file Form I–129 and the accompanying
Form G–28 + $4,728 for HR specialists to file Form
I–907 + $15,527 for outsourced lawyers to file Form
I–907 = $216,805.
217 See Instructions for Petition for Nonimmigrant
Worker Department of Homeland Security, USCIS
Form I–129, OMB Control Number 1615–0009
(expires Nov. 30, 2025), https://www.uscis.gov/
sites/default/files/document/forms/i-129instr.pdf;
see also INA sec. 214(c)(13), 8 U.S.C. 1184(c)(13).
218 Calculation: 316 petitions × $610 per petition
= $192,760.
219 See Instructions for Request for Premium
Processing Service, USCIS Form I–907, OMB
Control Number 1615–0048 (expires Nov. 30, 2022),

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DHS expects that 93.57 percent of
petitioners would file a Form I–907 with
Form I–129. Applying that rate to the
expected number of filings of Form I–
129 petitions would result in 296
requests for premium processing using
Form I–907 filed due to the rule.220 We
estimate that the annual transfers from
petitioners to the Federal Government
related to filing Form I–907 due to the
rule would be approximately
$444,000.221 The undiscounted annual
transfers from petitioners to the Federal
Government due to the rule are
$636,760.222 223
Portability is a benefit to employers
that cannot find U.S. workers, and as an
additional flexibility for H–2 employees
seeking to begin work with a new H–2
employer. This rule would allow
petitioners to immediately employ
certain H–2 workers who are present in
the United States in H–2 status without
waiting for approval of the H–2 petition.
DHS welcomes public comments on
the annual time burden associated with
users remaining in good standing with
E-Verify as well as the impacts of
permanent portability on H–2
petitioners and beneficiaries.
c. Improving H–2 Program Efficiencies
and Reducing Barriers to Legal
Migration
This section is divided into two
subheadings where each provision and
its expected impacts are discussed.
DHS’s proposals include the following:
(1) removing the eligible countries lists;
and (2) eliminating the calculation of
interrupted stays and reducing the
period of absence that would reset an
individual’s 3-year maximum period of
stay.
(1) Eligible Countries Lists

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USCIS is proposing to remove the lists
that designate certain countries as
eligible to participate in the H–2
programs. Currently, nationals of
countries that are not eligible to
participate in the H–2 programs may
still be named as beneficiaries on an H–
2A or H–2B petition. However,
petitioners must: (1) name each
https://www.uscis.gov/sites/default/files/document/
forms/i-907instr.pdf.
220 Calculation: 316 petitions × 93.57 Form I–907
rate = 296 Forms I–907 (rounded).
221 Calculation: $1,500 per petition × 296 Forms
I–907 = $444,000.
222 Calculation: $192,760 + $444,000 = $636,760.
223 It is possible that the combination of porting
workers and workers availing themselves of
increased grace periods may increase tax transfers
from workers to the Federal Government. DHS
cannot estimate the magnitude of these transfers,
however, because of a lack of detailed data
regarding the workers utilizing these provisions
separately or jointly.

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beneficiary who is not from an eligible
country; and (2) provide evidence to
show that it is in the U.S. interest for the
individual to be the beneficiary of such
a petition. USCIS also recommends that
H–2A and H–2B petitions for workers
from countries not listed on the
respective eligible countries lists be
filed separately.224
To understand the population of
beneficiaries who come from countries
not on the eligible countries lists and
the petitioners who apply for these
workers, we considered historical data
from FY 2013 through FY 2022 on the
beneficiary country of birth for both H–
2A and H–2B receipts by fiscal year.225
The data are extremely limited, with an
average of 77 percent and 75 percent of
H–2A and H–2B receipts, respectively,
missing the beneficiary country of birth.
Data are primarily limited because of
the high percentage of H–2 petitions
filed requesting unnamed beneficiaries.
Additionally, this data is input
manually, with only certain fields
entered. Country of birth is not a
mandatory field and tends to be blank.
On the eligible countries lists
published November 10, 2021, FY
2022 226 data did not identify any H–2A
beneficiaries with a country of birth
from 55 of 85 eligible countries.227
Additionally, 30 petitions with 141
beneficiaries from 12 countries were not
on the eligible countries list. Of the 86
eligible countries for H–2B
beneficiaries, the FY 2022 data did not
identify any beneficiaries with a country
of birth from 43 of these countries. It
also showed that there was only a total
of 12 petitions with 79 beneficiaries
from five countries not on the eligible
countries list.
From these limited data, we can see
that USCIS does receive petitions for
224 See Instructions for Petition for Nonimmigrant
Worker Department of Homeland Security, USCIS
Form I–129, OMB Control Number 1615–0009
(expires November 30, 2025), https://
www.uscis.gov/sites/default/files/document/forms/
i-129instr.pdf.
225 Country of citizenship data is available for
about 20 percent of the H–2A category but not for
the H–2B category. For consistency and because
there is slightly more data available, we use country
of birth data in this analysis.
226 The most recent publication of the eligible
countries lists for H–2A and H–2B visa programs
was published on November 10, 2022. See
Identification of Foreign Countries Whose Nationals
Are Eligible To Participate in the H–2A and H–2B
Nonimmigrant Worker Programs, 87 FR 67930 (Nov.
10, 2022). For the purpose of this analysis, we rely
on the eligible countries lists from 2021 because we
have data from FY 2022 that would include any
impacts of that prior lists on the behavior of
petitioners and their beneficiaries.
227 See Identification of Foreign Countries Whose
Nationals Are Eligible to Participate in the H–2A
and H–2B Nonimmigrant Worker Programs, 87 FR
67930 (Nov. 10, 2022).

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beneficiaries outside of those on the
eligible countries lists. However, it is
unclear if the lists may act as a deterrent
with the additional burden on
petitioners. The data provide some
insight into the potential concentration
of H–2 visas in FY 2022, where the
greatest number of petitions had
beneficiaries listed with Mexico as their
country of birth (1,628 petitions and
30,075 H–2A beneficiaries, and 1,523
petitions and 21,136 H–2B beneficiaries,
respectively). However, because only
about 12 percent of H–2A beneficiaries
and 29 percent of H–2B beneficiaries in
FY 2022 had a country of birth listed,
it is difficult to draw any strong
conclusions.
As stated earlier, USCIS recommends
that H–2A and H–2B petitions for
workers from countries not listed on the
respective eligible countries lists be
filed separately. USCIS does not have
data on the number of H–2 employers
that file petitions separately for workers
from countries not listed on the
respective eligible countries lists from
those on the eligible countries lists. For
those that file separately, though, this
proposed provision would result in
saved fees.228 The current base fee to
file Form I–129 is $460. Employers
filing H–2B petitions must also submit
an additional fee of $150. Therefore,
employers currently filing separate
petitions could save $460 per H–2A
petition and $610 ($460 + $150) per H–
2B petition.229
To produce the eligible countries lists
each year, several DHS components and
agencies provide data, collaboration,
and research. For DHS, this includes
months of work to gather
recommendations and information from
offices across U.S. Immigration and
Customs Enforcement (ICE), CBP, and
USCIS, compile statistics, and cooperate
closely with DOS. Research in these
efforts focuses on topics including
overstays, fraud, human trafficking
concerns, and more. However, some of
the work involved in creating the
eligible countries lists is duplicative,
time-consuming, and limited in its
response to ever-changing global
dynamics. For example, DOS already
performs regular national interest
assessments and would not approve H–
228 See 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.
229 See Instructions for Petition for Nonimmigrant
Worker Department of Homeland Security, USCIS
Form I–129, OMB Control Number 1615–0009
(expires Nov. 30, 2025), https://www.uscis.gov/
sites/default/files/document/forms/i-129instr.pdf.

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2 work visas that it deems problematic
regardless of the country’s standing on
the eligible countries lists.
Benefits of this proposed provision
include freeing up resources currently
dedicated to publishing the eligible
countries lists every year, which could
be used more effectively on other
pressing projects across DHS and DOS.
This change would also reduce the
burden on petitioners that seek to hire
H–2 workers from countries not
designated as eligible since they would
no longer need to meet additional
criteria showing that it is in the U.S.
interest to employ such workers. This
provision would also increase access to
workers potentially available to
businesses that utilize the H–2
programs.
DHS welcomes public comments on
impacts on petitioners, beneficiaries,
and the Federal Government resulting
from the proposal to eliminate the
eligible countries lists.
(2) Eliminate Interrupted Stays and
Reduce Period of Absence
DHS is proposing to eliminate the
‘‘interrupted stay’’ calculation and
reduce the period of absence from the
United States from 3 months to 60 days
to reset an individual’s 3-year period of
stay.230 Under current regulations, an
individual’s total period of stay in H–2A
or H–2B nonimmigrant status may not

exceed 3 years. Currently, an individual
who has spent 3 years in H–2A or H–
2B status may not seek extension,
change status, or be readmitted to the
United States in H–2 status unless the
individual has been outside of the
United States for an uninterrupted
period of 3 months. In the proposed
rule, the total period of stay of 3 years
would remain unchanged, but the
period of absence that would reset an
individual’s 3-year period of stay would
be reduced. For ease of understanding,
the term ‘‘clock’’ will be used in this
section to describe the 3-year maximum
period of stay for an H–2 worker and the
term ‘‘absence’’ will generally be used
in place of ‘‘interruption.’’ As critical
context, the estimated population
impacted by this proposed change is
constrained because the DOL-certified
seasonal or temporary nature of H–2A
and H–2B labor needs means that,
currently, most beneficiaries’ clocks are
effectively reset each year upon
completion of the first and only
petitioner’s labor need and subsequent
departure from the country. Instructions
on DOL’s Foreign Application Gateway
(FLAG) state that petitioners’ certified
seasonal or temporary labor needs must
not exceed 9 months for H–2B labor
certifications and should not normally
exceed 10 months for H–2A
certifications, so there would be no

direct impacts nor costs to an employer
from the proposed simplifications to the
existing definition of absence for the
purpose of resetting the 3-year clock.231
Additionally, under this proposed
simplification, USCIS would no longer
recognize certain absences as an
‘‘interrupted stay’’ for purposes of
pausing the calculation of the 3-year
limit of stay. Thus, if a worker leaves
the United States for less than 60 days,
the absence would not pause the 3-year
maximum period of stay clock nor
extend the timeframe in which a worker
could work in H–2 status upon their
return from abroad. This change to the
calculation of interrupted stay is not
expected to impact the two current
subset populations of H–2A and H–2B
workers whose accumulated stay is 18
months or less whose clock currently
pauses when they leave the United
States for at least 45 days but less than
3 months, and those whose accumulated
stay is greater than 18 months but less
than 3 years. Under this proposed rule,
the 3-year clock would no longer pause,
as it does now, when an individual
leaves the United States for the period
of time specified in rows 2 and 3 of
Table 8; rather, the 3-year clock would
now reset following an uninterrupted
absence of 60 days, irrespective of the
individual’s period of accumulated stay
in the United States.

TABLE 8—H–2 CLOCK AND ABSENCES FROM THE UNITED STATES DURING A 3-YEAR MAXIMUM PERIOD OF STAY.
Proposal and impact to H–2 workers and employers
Time worked in H–2 status

Current clock reset or
interruption *

Proposed absence counted as
reset

Cost

Benefit

3 years ......................................

Reset at 3 months ...................

Reset at 60 days .....................

N/A

18 months or less .....................

Interruption pause accrues at
45 days, but less than 3
months.
Interruption pause accrues at 2
months, but less than 3
months.

Reset at 60 days .....................

N/A

30 fewer days required to reset
clock.
N/A.

Reset at 60 days .....................

N/A

N/A.

More than 18 months, but less
than 3 years.

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Source: USCIS analysis.
* An interruption is when the 3-year clock is paused, meaning the period of time outside the United Stated, the absence, isn’t counted towards
3-year maximum period of stay.

USCIS next considers a potential
subpopulation of workers who, under
the baseline, might port from one

petitioning employer with a labor
certification to a subsequent petitioner
with a temporary labor certification

three or more times in an effort to
maximize earnings over the 3-year
(1,095 days) limit. USCIS does not have

230 USCIS 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-2classifications.
231 See DOL, H–2A Temporary Labor Certification
for Agriculture Workers (‘‘The need for the work
must be seasonal or temporary in nature [. . .]
normally lasting 10 months or less’’ for H–2A
Temporary Certification For Agriculture Workers),
https://flag.dol.gov/programs/H-2A (last visited
May 31, 2023); DOL, H–2B, Temporary Labor
Certification for Non-Agriculture Workers (‘‘The
employer’s job opportunities must be. . .
[t]emporary (9 months or less, except one-time

occurrences)’’), https://flag.dol.gov/programs/H-2B
(last visited May 31, 2023). DOL regulations at 20
CFR 655.6(b) limit an H–2B period of need to 9
months, except where the employer’s need is based
on a one-time occurrence, but due to an
appropriations rider that is currently in place, DOL
uses the definition of temporary need as provided
in 8 CFR 214.2(h)(6)(ii)(B), which does not list a 9
month limit. Consolidated Appropriations Act
2023, Public Law 117–328, Division H, Title I, Sec.
111.

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data on the size of the H–2A or H–2B
worker populations that currently leave
the United States while in H–2 status or
for how long. Without information on
the number of workers who experience
absences from the United States, it is
not possible to predict additional
impacts to the behavior of H–2 visa
holders and the petitioners with DOLcertified seasonal or temporary labor
needs, however, the observed rates of
porting shown in Tables 6 and 7 suggest
beneficiaries porting more than 3 times
without leaving the country is small to
non-existent at present. DOL requires
H–2A and H–2B employers to pay
workers at least the highest of the
prevailing wage rate obtained from the
ETA or the applicable Federal, State, or
local minimum wage.232 Additionally,
we know that the Fair Labor Standards
Act covers requirements for all workers
in the United States with respect to
overtime and a job offer must always be
consistent with Federal, State, and local
laws.233
To estimate the potential impacts
from a small number of H–2 workers
choosing to provide 30 additional days
of labor every 3 years, we first consider
wages. The Federal minimum wage is
currently $7.25.234 While using the
Federal minimum wage may be
appropriate in some instances, DHS
recognizes that many States have higher
minimum wage rates than the Federal
minimum. Therefore, DHS believes that
a more accurate and timely estimate of
wages is available via data from the
Department of Labor. More specifically,
DHS uses the most recent wage data
from DOL’s Bureau of Labor Statistics’
(BLS) National Occupational
Employment and Wage Estimates. DHS
believes that the unweighted, 10th
percentile wage estimate for all
occupations of $13.14 per hour is a
reasonable lower bound for the
population in question.235 DHS
232 See 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.
233 See WHD, Wages and the Fair Labor
Standards Act, https://www.dol.gov/agencies/whd/
flsa (last visited Dec. 15, 2022).
234 See 29 U.S.C. 206, ‘‘Minimum wage,’’ https://
www.gpo.gov/fdsys/pkg/USCODE-2011-title29/
html/USCODE-2011-title29-chap8-sec206.htm
(accessed Dec. 15, 2022). See also WHD, Minimum
Wage, https://www.dol.gov/general/topic/wages/
minimumwage (the minimum wage in effect as of
Dec. 15, 2022).
235 See Occupational Employment and Wage
Estimates United States. May 2022. BLS,
Occupational Employment Statistics program, All
Occupations, available at https://www.bls.gov/oes/
2022/may/oes_nat.htm#00-0000 (last visited July
28, 2023).

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accounts for worker benefits by
calculating a benefits-to-wage multiplier
using the most recent BLS report
detailing the average employer costs for
employee compensation for all civilian
workers in major occupational groups
and industries. DHS estimates the
benefits-to-wage multiplier is 1.45 and,
therefore, is able to estimate the full
opportunity cost per applicant,
including employee wages and salaries
and the full cost of benefits such as paid
leave, insurance, and retirement, etc.236
Although the Federal minimum wage
could be considered a lower bound
income for the population of interest,
DHS calculates the total rate of
compensation for the 10th percentile
hourly wage is $19.05, which is 81.3
percent higher than the Federal
minimum wage.237
DHS does not rule out the possibility
that some portion of H–2A and H–2B
employees might earn more than the
10th percentile wage, but without
empirical information, DHS believes
that including a range with the lower
bound relying on the 10th percentile
wage with benefits of $19.05 is
justifiable for both H–2A and H–2B
workers. For H–2A workers, DHS uses
an upper bound wage specific to
agricultural workers of $17.04.238 DHS
calculates the average total rate of
compensation for agricultural workers
as $24.71 per hour, where the mean
hourly wage is $17.04 per hour worked
and average benefits are $7.67 per
hour.239 For H–2B workers, DHS relies
on the average wage rate for all
occupations of $29.76 as an upper
bound in consideration of the variance
in average wages across professions and
236 The

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.
237 Calculations (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.
238 The 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.
239 Calculation of the weighted mean hourly wage
for agricultural workers: $17.04 per hour × 1.45
benefits-to-wage multiplier = $24.71 (rounded).

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States.240 Therefore, DHS calculates the
average total rate of compensation for all
occupations as $43.15 per hour, where
the mean hourly wage is $29.76 per
hour worked and average benefits are
$13.39 per hour.241
Since DHS calculated absences from
the United States centered on calendar
days, and wage estimates are
specifically linked to hours, we apply
the scalar developed as follows.
Calendar days are transformed into
workdays to account for the actuality
that typically, 5 out of 7, or 71.4
percent, of the calendar week is allotted
to work-time, and that a workday is
typically 8 hours.242 Thus, in limited
instances, individuals resetting their
clock at or immediately after the 1,095th
day of the 3-year limitation may be
afforded an opportunity to work 30
additional calendar days, or
approximately 21 days of H–2. DHS
notes that some H–2 workers may work
more days or hours per week in some
instances. Additionally, if overtime
hours are worked, DHS has no basis for
which to measure the extent to which
this may occur among these
populations. Based on the 10th
percentile wage (lower bound), each
calendar day generates about $108.81 in
relevant earnings for potential H–2
workers. It follows that for the upper
wage bounds that each calendar day
generates about $141.14 per H–2A
worker and about $246.47 per H–2B
worker in relevant earnings.243 Over 30
potential workdays, this equates to a
lower bound of $3,264 in additional
earnings with upper bounds of $4,234
for H–2A workers and $7,394 for H–2B
workers (see Table 9).244
240 The 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.
241 The calculation of the weighted mean hourly
wage for applicants: $29.76 per hour × 1.45
benefits-to-wage multiplier = $43.15 (rounded) per
hour.
242 USCIS 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.
243 Calculations: E10th percentile wage (lower
bound): 0.714 × 8 hours per day × $19.05 wage =
$108.81 (rounded). H–2A average wage for
agricultural workers (upper bound): 0.714 × 8 hours
per day × $24.71 wage = $141.14 (rounded). H–2B
average wage for all occupations (upper bound):
0.714 × 8 hours per day × $43.15 wage = $246.47
rounded.
244 Calculations: t10th percentile wage (lower
bound): $108.81 × 30 days = $3,264 (rounded). H–
2A average wage for agricultural workers (upper
bound): $141.14 × 30 days = $4,234 (rounded). H–

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
TABLE 9—EARNINGS ESTIMATES FOR H–2 WORKERS WITH 30 ADDITIONAL DAYS.
Hourly wage

Calendar
day scalar

Work hours

Daily additional
wages

Additional
wages for
30 days

Additional taxes

A

B

C

D=A×B×C

E = D × 30

F = E × 15.3%

0.714
....................
....................

8
....................
....................

Lower Bound ........................................................
H–2A Upper Bound ..............................................
H–2B Upper Bound ..............................................

$19.05
24.71
43.15

$108.81
141.14
246.47

$3,264
4,234
7,394

0*
0*
1,131

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Source: USCIS analysis.
* H–2A workers and employers are not subject to U.S. social security and Medicare taxes.

In instances where an employer with
a DOL-certified temporary labor need
cannot transfer the 21 days of work onto
other H–2 workers, DHS acknowledges
that this additional work may result in
additional tax revenue to the
government. It is difficult to quantify
income tax transfers because individual
tax situations vary widely,245 but DHS
estimates the potential payments to
other employment tax programs, namely
Medicare and Social Security, which
have a combined tax rate of 7.65 percent
(6.2 percent and 1.45 percent,
respectively).246 While H–2A wages are
exempt from these taxes, H–2B wages
are not.247 With both the employee and
employer paying their respective
portion of Medicare and Social Security
taxes, the total estimated tax transfer for
Medicare and Social Security is 15.3
percent.248 DHS recognizes this
quantified estimate is not representative
of all potential tax losses by Federal,
State, and local governments and we
make no claims this quantified estimate
includes all tax losses. We continue to
acknowledge the potential for additional
Federal, State, and local government tax
losses in the scenario where a company
cannot transfer additional work onto
current employees and cannot hire
replacement labor for the position the
H–2 worker is absent. As seen in Table
9, tax transfers could range from $0 for
H–2A workers and up to $1,131 for H–
2B workers over a 30-day period.
One benefit of this proposed
provision is that it would make it easier
for DHS, petitioners and beneficiaries to
calculate when a beneficiary reaches
their 3-year limit on stay, irrespective of
how long the individual has been in the
United States in H–2 status. As

described earlier, to accurately
demonstrate when an individual’s limit
on H–2 status will be reached,
employers and workers currently need
to monitor and document the
accumulated time in H–2 status and
calculate the total time in H–2 status
across multiple time periods following
interruptive absences. USCIS
adjudicators must also make these same
determinations in adjudicating H–2
petitions with named workers to assess
whether a beneficiary is eligible for the
requested period of stay. No longer
needing to monitor absences from the
United States of less than 60 days
simplifies calculations for employers,
workers, and adjudicators. Additionally,
DHS expects that USCIS adjudicators
may issue fewer RFEs related to the 3year maximum period of stay to workers
with absences, which would reduce the
burden on employers, workers, and
adjudicators and save time in processing
petitions. As shown in Table 10, RFEs
related to the 3-year maximum period of
stay have increased since FY 2020 for
H–2A workers and have generally
remained stable at between 200 to 300
each year since FY 2020 for H–2B
workers.

2B average wage for all occupations (upper bound):
$246.47 × 30 days = $7,394 (rounded).
245 See Quentin Fottrell, More than 44 percent of
Americans pay no federal income tax, MarketWatch
(Aug. 28, 2019), https://www.marketwatch.com/
story/81-million-americans-wont-pay-any-federalincome-taxes-this-year-heres-why-2018-04-16.
246 The 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.
247 See 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).
248 Calculation: (6.2 percent Social Security +
1.45 percent Medicare) × 2 employee and employer
losses = 15.3 percent total estimated tax transfer
payment to government.

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TABLE 10—RFES RELATING TO 3YEAR MAXIMUM STAY FOR H–2
WORKERS—Continued
Fiscal year
5-Year Average ................

H–2A
169

H–2B
298

SOURCE: USCIS Office of Policy and Strategy—C3, ELIS USCIS Data System as of Oct.
8, 2022.

While it is not clear how many RFEs
are directly related to the calculation of
interruptions while in H–2 status, as
opposed to RFEs for those who may be
reaching the maximum 3-year period of
stay generally, DHS anticipates that
eliminating the calculation for
interrupted stays would at least render
some RFEs unnecessary.249 This would
in turn reduce the burden on employers,
workers, and adjudicators associated
with calculating interruptions and
through subsequent RFEs and petitions
could be processed more expeditiously.
Collectively, Tables 6, 7, and 10
indicate very few H–2 workers approach
the 3-year limitation despite existing
potential to port from certified
temporary labor need for 3 years before
exiting the country for 90 days.
Nevertheless, USCIS has considered as
an upper bound, possible additional
TABLE 10—RFES RELATING TO 3YEAR MAXIMUM STAY FOR H–2 earnings and related labor market
impacts should workers already
WORKERS
approaching the 3-year limit respond to
this proposed change by working 30
Fiscal year
H–2A
H–2B
additional days at the end of their 1,095
2018 ..................................
63
134 days or at the start of their subsequent
2019 ..................................
53
649 3-year period. Recall that if the worker
2020 ..................................
22
207 intended to return to their home country
2021 ..................................
272
292 before 3-years, as most do upon
2022 ..................................
436
208 completing their temporary labor for the
Total ..................................
846
1,490 initial petitioner, this change has no

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249 On July 25, 2022, USCIS extended its COVID–
19-related flexibilities for responding to RFEs
through October 23, 2022. This provides recipients
an additional 60 calendar days after the due date
on an RFE to provide a response. Ultimately, while
this flexibility may prove helpful to petitioners it
also adds up to an additional 2 months of time to
the adjudication process. See USCIS, USCIS
Extends COVID–19-related Flexibilities (July 25,
2022), https://www.uscis.gov/newsroom/alerts/
uscis-extends-covid-19-related-flexibilities.

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
impact to the employer nor to wages
earned by the worker. Multiplying the
169 H–2A subpopulation in Table 10 by
$4,234 in additional wages for 30 days
in Table 9 bounds potential additional
annual earnings at $715,546.
Additionally, the 298 H–2B population
in Table 10 multiplied by $7,394 in
Table 9 bounds additional annual H–2B
earnings at $2,203,412 with estimated
tax transfers of $337,122. For H–2A and
H–2B workers, the total impact from
this change is $2,918,958 in additional
earnings and $337,122 in tax transfers
($168,561 from workers + $168,561 from
employers).
d. Other Impacts of the Proposed Rule

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(1) Form I–129 Updates
The costs for this form include filing
costs and the opportunity costs of time
to complete and file the form. The
current filing fee for Form I–129 is $460
and the estimated time needed to
complete and file Form I–129 is 2.34
hours.250 There is an additional $150 fee
for employers filing H–2B petitions.251
There is also an estimated time burden
of 2 hours for petitioners to complete
the H classification supplement for
Form I–129. The total time burden of
4.34 hours for Form I–129 also includes
the time for reviewing instructions, to
file and retain documents, and submit
the request. In this proposed rule, the
fees for Form I–129 and the H
classification supplement and time
burden for Form I–129 would remain
unchanged, only the estimated burden
to complete the H classification
supplement would change. This
proposed rule would increase the public
reporting burden for the H Classification
Supplement by 0.3 hours to a total 2.3
hours. This added time would result in
a total time burden of 4.64 hours for
Form I–129 H–2 petitioners. The
petition must be filed by a U.S.
employer, a U.S. agent, or a foreign
employer filing through the U.S. agent.
8 CFR 214.2(h)(2). DHS was unable to
obtain data on the number of Form I–
129 H–2A and H–2B petitions filed
directly by a petitioner and those that
are filed by a lawyer on behalf of the
petitioner. Therefore, DHS presents a
range of estimated costs, including if
only human resource (HR) specialists
250 The public reporting burden for this form is
2.34 hours for Form I–129 and an additional 2
hours for H Classification Supplement. See
Instructions for Petition for Nonimmigrant Worker
Department of Homeland Security, USCIS Form I–
129, OMB Control Number 1615–0009 (expires Nov.
30, 2025), https://www.uscis.gov/sites/default/files/
document/forms/i-129instr.pdf.
251 Id.

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file Form I–129 or if only lawyers file
Form I–129.252 Further, DHS presents
cost estimates for lawyers filing on
behalf of petitioners based on whether
all Form I–129 petitions are filed by inhouse lawyers or by outsourced
lawyers.253 DHS presents an estimated
range of costs assuming that only HR
specialists, in-house lawyers, or
outsourced lawyers file these forms,
though DHS recognizes that it is likely
that filing will be conducted by a
combination of these different types of
filers.
To estimate the total opportunity cost
of time to petitioners who complete and
file Form I–129, DHS uses the mean
hourly wage rate of HR specialists of
$35.13 as the base wage rate.254 If
applicants hire an in-house or
outsourced lawyer to file Form I–129 on
their behalf, DHS uses the mean hourly
wage rate of $78.74 as the base wage
rate.255 DHS multiplied the average
hourly U.S. wage rate for HR specialists
and for in-house lawyers by the
benefits-to-wage multiplier of 1.45 to
estimate the full cost of employee
wages. The total per hour wage is $50.94
for an HR specialist and $114.17 for an
in-house lawyer.256 In addition, DHS
recognizes that an entity may not have
in-house lawyers and therefore, seek
outside counsel to complete and file
Form I–129 on behalf of the petitioner.
Therefore, DHS presents a second wage
rate for lawyers labeled as outsourced
lawyers. DHS estimates the total per
hour wage is $196.85 for an outsourced
lawyer.257 258 If a lawyer submits Form
252 For

the purposes of this analysis, DHS
assumes a human resource specialist, or some
similar occupation, completes and files these forms
as the employer or petitioner who is requesting the
H–2 worker. However, DHS understands that not all
entities have human resources departments or
occupations and, therefore, recognizes equivalent
occupations may prepare these petitions.
253 For 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.
254 See BLS, Occupational Employment and
Wages, May 2022, Human Resources Specialist (13–
1071), https://www.bls.gov/oes/2022/may/
oes131071.htm.
255 See BLS, Occupational Employment and
Wages, May 2022, Lawyers (23–1011), https://
www.bls.gov/oes/2022/may/oes231011.htm.
256 Calculation for the total wage of an in-house
lawyer: $78.74 × 1.45 = $114.17 (rounded).
257 Calculation: Average hourly wage rate of
lawyers × Benefits-to-wage multiplier for

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65093

I–129 on behalf of the petitioner, Form
G–28 (Notice of Entry of Appearance as
Attorney or Accredited Representative),
must accompany the Form I–129
submission.259 DHS estimates the time
burden to complete and submit Form G–
28 for a lawyer is 50 minutes (0.83
hours, rounded).260
Since only the time burden for the H
Classification Supplement would
change, this analysis only considers the
additional opportunity cost of time for
0.3 hours as a direct cost of this rule.
Therefore, the added opportunity cost of
time for an HR specialist to complete
and file Form I–129 for an H–2 petition
is $15.28, for an in-house lawyer to
complete and file is $34.25, and for an
outsourced lawyer to complete and file
is $59.06.261
DHS expects this rule would impose
costs on the population of employers
that currently petition for H–2 workers;
an estimated 36,758 petitioners.262 We
expect filing would be performed by a
HR specialist, in-house lawyer, or
outsourced lawyer, and this would be
done at the same rate as petitioners who
file a Form G–28;
To properly account for the costs
associated with filing across the entire
H–2 population, DHS must calculate a
weighted average rate for G–28 filing
across the separate H–2A and H–2B
populations. Table 11 and Table 12
show the recent G–28 filing trends for
each separate H–2 population.
outsourced lawyer = $78.74 × 2.5 = $196.85
(rounded).
258 The ICE ‘‘Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter’’ used
a multiplier of 2.5 to convert in-house attorney
wages to the cost of outsourced attorney based on
information received in public comment to that
rule. We believe the explanation and methodology
used in the Final Small Entity Impact Analysis for
that rule remains sound for using 2.5 as a multiplier
for outsourced labor wages in this rule, see https://
www.regulations.gov/document/ICEB-2006-00040922, at page G–4 (Sept. 1, 2015).
259 USCIS, Filing Your Form G–28 (Aug. 10,
2020), https://www.uscis.gov/forms/filing-yourform-g-28.
260 See 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.
261 HR specialist calculation: $50.94 × (0.3 hours)
= $15.28.
In-house lawyer calculation: $114.17 × (0.3 hours)
= $34.25.
Outsourced lawyer calculation: $196.85 × (0.3) =
59.06 (rounded).
262 Calculation: 24,370 H–2A + 12,388 H–2B =
36,758 H–2 petitioners in FY 2022 as estimated as
the population who would be most likely be
affected by this rule.

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TABLE 11—FORM I–129 H–2A PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28, FY 2017–2021

Fiscal year

2017 .............................................................................................................................................
2018 .............................................................................................................................................
2019 .............................................................................................................................................
2020 .............................................................................................................................................
2021 .............................................................................................................................................
2017–2021 Total ..........................................................................................................................

Number of
form I–129 H–
2A petitions
accompanied
by a form G–
28

Total number
of form I–129
H–2A petitions
received

Percent of
form I–129 H–
2A petitions
accompanied
by a form G–
28

1,648
2,166
2,617
2,854
3,322
12,607

11,602
13,444
15,509
17,012
20,323
77,890

14.20
16.11
16.87
16.78
16.35
16.19

SOURCE: USCIS, Office of Policy & Strategy—C3, ELIS USCIS Data System.

TABLE 12—FORM I–129 H–2B PETITION RECEIPTS THAT WERE ACCOMPANIED BY A FORM G–28, FY 2018–2022

Fiscal year

2018 .............................................................................................................................................
2019 .............................................................................................................................................
2020 .............................................................................................................................................
2021 .............................................................................................................................................
2022 .............................................................................................................................................
2018—2022 Total ........................................................................................................................

Number of
form I–129 H–
2B petitions
accompanied
by a form G–
28

Total number
of form I–129
H–2B petitions
received

Percent of
form I–129 H–
2B petitions
accompanied
by a form G–
28

2,625
3,335
2,434
4,230
5,978
18,602

6,148
7,461
5,422
9,160
12,388
40,579

42.70%
44.70
44.89
46.18
48.26
45.84

SOURCE: USCIS, Office of Performance and Quality, SAS PME C3 Consolidated, Data queried 10/2022, TRK 10638.

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Using the data from Table 11 and
Table 12, DHS calculates that the
weighted average rate of G–28 filing
across the entire H–2 population is
26.34%.263
Therefore, we estimate that 9,682
lawyers would incur additional filing
costs and 27,076 HR specialists would
incur additional filing costs.264
The estimated total opportunity cost
of time for 27,076 HR specialists to file
petitions under this proposed rule is
approximately $413,721.265 The
estimated annual opportunity cost of
time for 9,682 lawyers to file petitions
under this proposed rule is
approximately $331,609 if they are all
in-house lawyers and $571,819 if they
are all outsourced lawyers.266 The
estimated annual opportunity costs of
263 Calculation: Step 1. 12,607 H–2A petitions
with G–28 + 18,602 H–2B petitions with G–28 =
31,209 H–2 petitions with G–28; Step 2. 77,890 total
H–2A petitions + 40,579 total H–2B petitions =
118,469 total H–2 petitions; Step 3. 31,209 H–2
petitions with G–28/118,469 total H–2 petitions =
.2634 (rounded).
264 Calculation for lawyers: 36,758 H–2
petitioners × 26.34 percent represents by a lawyer
= 9,682 (rounded) represented by a lawyer.
Calculation for HR specialists: 36,758 H–2
petitioners—9,682 represented by a lawyer = 27,076
represented by a HR specialist.
265 Calculation: $15.28 additional burden ×
27,076 HR specialists = $413,721.
266 Calculations: $34.25 additional burden × 9,682
in-house lawyers = $331,609; $59.06 additional
burden × 9,682 outsourced lawyers = $571,819
(rounded).

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time for petitioners or their
representatives to file H–2 petitions
under this proposed rule ranges from
$745,330 to $985,540.267
(2) Technical Definitional Updates
There is a technical update proposed
in this rule for clarification purposes to
remove the phrase ‘‘abscond’’ and the
definition of ‘‘abscondment.’’ DHS
expects these proposed changes would
have only marginal impacts.
(3) Familiarization Costs
DHS expects this rule would impose
one-time familiarization costs associated
with reading and understanding this
rule on the population of employers that
currently petition for H–2 workers; an
estimated 36,758 petitioners.268 We
expect familiarization with the rule
would be performed by a HR specialist,
in-house lawyer, or outsourced lawyer,
and this would be done at the same rate
as petitioners who file a Form G–28.An
estimated 26.34 percent would be
performed by lawyers and the remaining
73.66 percent by an HR specialist..
Therefore, we estimate that 9,682
267 Calculation: HR specialists $413,721 + inhouse lawyers $331,609 = $745,330; HR specialists
$413,721 + outsourced lawyers $571,819 =
$985,540.
268 Calculation: 24,370 H–2A + 12,388 H–2B =
36,758 H–2 petitioners in FY 2022 as estimated as
the population who would be most likely to read
this rule.

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lawyers would incur familiarization
costs and 27,076 HR specialists would
incur familiarization costs.269
To estimate the cost of rule
familiarization, we estimate the time it
would take to read and understand the
rule by assuming a reading speed of 238
words per minute.270 This rule has
approximately 56,000 words.271 Using a
reading speed of 238 words per minute,
DHS estimates it would take
approximately 3.92 hours to read and
become familiar with this rule.272 The
estimated hourly total compensation for
a HR specialist, in-house lawyer, and
outsourced lawyer are $50.94, $114.17,
and $196.85 respectively. The estimated
opportunity cost of time for each of
these filers to familiarize themselves
with the rule are $199.68, $447.55, and
269 Calculation for lawyers: 36,758 H–2
petitioners × 44.43 percent represents by a lawyer
= 9,682 (rounded) represented by a lawyer.
Calculation for HR specialists: 36,758 H–2
petitioners × 9,682 represented by a lawyer = 27,076
represented by a HR specialist.
270 Marc Brysbaert (April 12, 2019), How many
words do we read per minute? A review and metaanalysis of reading rate, https://doi.org/10.1016/
j.jml.2019.104047 (accessed Dec. 15, 2022). We use
the average speed for silent reading of English
nonfiction by adults.
271 Please note that the actual word count of the
proposed rule may differ from the estimated length
presented here.
272 Calculation: 56,000 words/238 words per
minute = 235 (rounded) minutes. 235 minutes/60
minutes per hour = 3.92 (rounded) hours.

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
$771.65 respectively.273 The estimated
total opportunity cost of time for 27,076
HR specialists to familiarize themselves
with this rule is approximately
$5,406,536. Additionally, the estimated
total opportunity cost of time for 9,682
lawyers to familiarize themselves with
this rule is approximately $4,333,179 if
they are all in-house lawyers or
$7,471,115 if they are all outsourced
lawyers. Thus, the estimated total
opportunity costs of time for petitioners
or their representatives to familiarize
themselves with this rule ranges from
$9,739,715 to $12,877,651, incurred the
first year of the period of analysis.274

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e. Total Costs of the Rule
In the previous sections we presented
the estimates of the impacts of the
proposed rule. The quantifiable costs of
this rule that would impact petitioners
consistently and directly are the costs
associated with an increased
opportunity cost of time to complete
Form I–129 H Classification
Supplement and opportunity costs of
time related to the rule’s portability
provision. Annual costs due to the rule
range from $890,036 to $1,202,345
depending on the filer.275 Over the 10year period of analysis, DHS estimates
the total costs of the proposed rule
would be approximately $18,640,075 to
$24,901,101 (undiscounted).276 DHS
estimates annualized costs of this
proposed rule range from $1,998,572 to
$2,668,028 at a 3-percent discount rate
and $2,186,033 to $2,915,885 at a 7percent discount rate. The midpoint of
these ranges, $2,333,300 at a 3-percent
discount rate and $2,550,959 at a 7percent discount rate is presented as the
primary estimate.
In addition, the rule results in
transfers from consumers of goods and
services to a limited number of H–2A
273 Calculation: Total respective hourly
compensation HR $50.94 × 3.5 hours = $199.68, Inhouse Lawyer $114.17 × 3.92 = $447.55, or
Outsourced Lawyer $196.85 × 3.92 hours = $771.65.
274 Calculation, lower bound: $5,406,536
familiarization costs, HR Representative +
$4,333,179 familiarization costs, in-house lawyer =
$9,739,715. Calculation, upper bound: $5,406,536
familiarization costs, HR Representative +
$7,471,115 familiarization costs, outsourced lawyer
= $12,877,651.
275 Calculation, lower bound: $745,330 annual
costs from marginal OCT to file Forms I–129 +
$144,706 in costs due to the portability provision
= $890,036 annual costs in years 1 through 10.
Calculation, upper bound: $985,540 annual costs
from marginal OCT to file Forms I–129 + $216,805
in costs due to the portability provision =
$1,202,345 annual costs in years 1 through 10.
276 Calculation, lower bound: familiarization costs
of $9,739,715 (year 1) + $890,036 annual costs due
to the rule (year 1–10) = $18,640,075 over 10-year
period of analysis. Calculation, upper bound:
familiarization costs of $12,877,651 (year 1) +
$1,202,345 annual costs due to the rule (year 1–10)
= $24,901,101 over 10-year period of analysis.

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and H–2B workers that may choose to
supply additional labor. The total
annualized transfer amounts to
$2,918,958 in additional earnings at the
3-percent and 7-percent discount rate
and related tax transfers of $337,122
($168,561 from these workers +
$168,561 from employers).
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996, requires Federal
agencies to consider the potential
impact of regulations on small
businesses, small governmental
jurisdictions, and small organizations
during the development of their rules.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. An
‘‘individual’’ is not defined by the RFA
as a small entity and costs to an
individual from a rule are not
considered for RFA purposes. In
addition, the courts have held that the
RFA requires an agency to perform an
initial regulatory flexibility analysis of
small entity impacts only when a rule
directly regulates small entities.
Consequently, any indirect impacts
from a rule to a small entity are not
considered to be costs for RFA
purposes.
This proposed rule may have direct
impacts to those entities that petition on
behalf of H–2 workers. Generally,
petitions are filed by a sponsoring
employer who would incur some
additional costs from the Form I–129 H
Classification Supplement burden
change and familiarization of the rule.
Petitioning employers may also incur
costs they would not have otherwise
incurred if they opt to transport and
house H–2A workers earlier as well as
opportunity costs of time if they are
selected to participate in compliance
reviews or inspections that are
necessary for the approval of a petition.
Therefore, DHS examines the direct
impact of this proposed rule on small
entities in the analysis that follows.
1. Initial Regulatory Flexibility Analysis
(IRFA)
Small entities primarily impacted by
this proposed rule are those that would
incur additional direct costs to complete
an H–2 petition. DHS conducted an
analysis using a statistically valid
sample of H–2 petitions to determine
the number of small entities directly
impacted by this proposed rule. These

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65095

costs are related to the additional
opportunity cost of time for a selected
small entity to complete the updated
Form I–129 H Classification
Supplement proposed in this rule. DHS
welcomes any public comment on the
methodology and conclusions on the
number of small entities estimated and
the impacts to those small entities.
a. A Description of the Reasons Why the
Action by the Agency is Being
Considered
The purpose of this rulemaking is to
modernize and improve the regulations
relating to the H–2A temporary
agricultural worker program and the H–
2B temporary nonagricultural worker
program.
b. A Succinct Statement of The
Objectives of, and Legal Basis for, the
Proposed Rule
DHS objectives and legal authority for
this proposed rule are discussed in the
preamble of this proposed rulemaking.
c. A Description of and, Where Feasible,
an Estimate of the Number of Small
Entities to Which the Proposed Changes
Would Apply
DHS conducted the analysis using a
statistically valid sample of H–2
petitions to determine the maximum
potential number of small entities
directly impacted by this proposed rule.
DHS used a subscription-based online
database of U.S. entities, Hoovers
Online, as well as two other openaccess, free databases of public and
private entities, Manta and Cortera, to
determine the North American Industry
Classification System (NAICS) code,
revenue, and employee count for each
entity.277 In order to determine the size
of a small entity, DHS first classified
each entity by its NAICS code, and then
used Small Business Administration
(SBA) guidelines to note the requisite
revenue or employee count threshold
for each entity.278 Some entities were
classified as small based on their annual
revenue and some by number of
employees.
277 The 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.
278 The Small Business Administration (SBA) has
developed size standards to carry out the purposes
of the Small Business Act and those size standards
can be found in 13 CFR, section 121.201. At the
time this analysis was conducted, NAICS 2017
classifications were in effect. SBA size standards
effective August 19, 2019, https://www.sba.gov/
sites/default/files/2019-08/SBA%20Table%20
of%20Size%20Standards_
Effective%20Aug%2019%2C%202019.pdf.

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Using FY 2018 to FY 2022 data on H–
2A petitions, DHS collected internal
data for each filing organization.279 Each
entity may make multiple filings. For
instance, there were 90,658 H–2A
petitions filed over the 5 fiscal years,
but only 13,244 unique entities that
filed H–2A petitions. DHS devised a
methodology to conduct the small entity
analysis based on a representative,
random sample of the potentially
impacted population. To achieve a 95
percent confidence level and a 5 percent

confidence interval on a population of
13,244 entities, DHS determined that a
minimum sample size of 374 entities
was necessary. However, DHS drew a
sample size 10 percent greater than the
minimum statistically valid sample for
a sample size of 411 in order to increase
the likelihood that our matches would
meet or exceed the minimum required
sample.280 Of the 411 entities sampled,
387 instances resulted in entities
defined as small (see Table 13). Of the
387 small entities, 344 entities were

classified as small by revenue or
number of employees. The remaining 63
entities were classified as small because
information was not found (either no
petitioner name was found, or not
enough information was found in the
databases). A total of 24 entities were
classified as not small. Therefore, of the
13,244 entities that filed at least one
Form I–129 in FYs 2018 through 2022,
DHS estimates that 96 percent or 15,636
entities are considered small based on
SBA size standards.281

TABLE 13—SUMMARY AND RESULTS OF SMALL ENTITY ANALYSIS OF H–2A PETITIONS
Parameter

Quantity

Population—H–2A petitions .............................................................................................................................................
Population—Unique H–2A Entities ..................................................................................................................................
Minimum Required Sample .............................................................................................................................................
Selected Sample ..............................................................................................................................................................
Entities Classified as ‘‘Not Small’’:
by revenue ................................................................................................................................................................
by number of employees ..........................................................................................................................................
Entities Classified as ‘‘Small’’:
by revenue ................................................................................................................................................................
by number of employees ..........................................................................................................................................
because not enough information found in databases ..............................................................................................
Total Number of Small Entities ........................................................................................................................................

Proportion
of sample
(percent)

90,658
13,244
374
411

....................
....................
....................
100

23
1

6
0

281
43
63
387

69
11
16
a 96

Source: USCIS analysis.
a Calculation: 69 percent (Entities classified as small by revenue) + 11 percent (Entities classified as small by number of employees) + 16 percent (Entities classified as small because no information found in database) = 96 percent (total number of small entities, rounded).

As previously stated, DHS classified
each entity by its NAICS code to
determine the size of each entity. Table

14 shows a list of the top 10 NAICS
industries that submit an H–2A petition.

TABLE 14—TOP 10 NAICS INDUSTRIES SUBMITTING FORM I–129 FOR H–2A PETITIONS, SMALL ENTITY ANALYSIS
RESULTS
Rank

1
2
3
4
5
6
7
8
9
10

NAICS
code
111998
N/A
561499
111331
112111
112990
111421
424910
112112
561990

NAICS U.S. industry title

Frequency

All Other Miscellaneous Crop Farming ...........................................
Unclassified Establishments ............................................................
All Other Business Support Services ..............................................
Apple Orchards ...............................................................................
Beef Cattle Ranching and Farming .................................................
All Other Animal Production ............................................................
Nursery and Tree Production ..........................................................
Farm Supplies Merchant Wholesalers ............................................
Cattle Feedlots ................................................................................
All Other Support Services ..............................................................

79
25
15
12
12
9
8
8
7
7

Size
standards in
millions of
dollars a

Size
standards in
number of
employees a

$1.0
8.0
16.5
1.0
1.0
1.0
1.0
....................
8.0
12.0

....................
....................
....................
....................
....................
....................
....................
200
....................
....................

Percent

19.2
6.1
3.6
2.9
2.9
2.2
1.9
1.9
1.7
1.7

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Source: USCIS analysis.
The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act and those size
standards can be found in 13 CFR, section 121.201. At the time this analysis was conducted, NAICS 2017 classifications were in effect.

DHS used the methodology developed
for H–2A petitions for H–2B petitions as
well. Using FY 2018 to FY 2022 data on
H–2B petitions, DHS collected internal
data for each filing organization.282 Each

entity may make multiple filings. For
instance, there were 40,579 H–2B
petitions filed over these 5 fiscal years
by 8,506 unique entities. DHS devised a
methodology to conduct the small entity

analysis based on a representative,
random sample of the potentially
impacted population. To achieve a 95
percent confidence level and a 5 percent
confidence interval on a population of

279 USCIS Office of Policy and Strategy, C3, ELIS
(Oct. 19, 2022).
280 Calculation: 368 + (368 × 10 percent) = 405.

281 Calculation: 13,244 entities × 96 percent =
12,714 small entities (rounded).

282 USCIS Office of Policy and Strategy, C3, ELIS
(Oct. 19, 2022).

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
8,506 entities, DHS determined that a
minimum sample size of 368 entities
was necessary. DHS created a sample
size 10 percent greater than the
minimum statistically valid sample for
a sample size of 368 in order to increase
the likelihood that our matches would
meet or exceed the minimum required
sample.283 Of the 405 entities sampled,

384 instances resulted in entities
defined as small (see Table 15). Of the
384 small entities, 307 entities were
classified as small by revenue or
number of employees. The remaining 46
entities were classified as small because
information was not found (either no
petitioner name was found, or not
enough information was found in the

65097

databases). A total of 21 entities were
classified as not small. Therefore, of the
8,506 entities that filed at least one
Form I–129 in FY 2018 through FY
2022, DHS estimates that 95 percent or
8,175 entities are considered small
based on SBA size standards.284

TABLE 15—SUMMARY AND RESULTS OF SMALL ENTITY ANALYSIS OF H–2B PETITIONS
Parameter

Quantity

Population—H–2B petitions .............................................................................................................................................
Population—Unique H–2B Entities ..................................................................................................................................
Minimum Required Sample .............................................................................................................................................
Selected Sample ..............................................................................................................................................................
Entities Classified as ‘‘Not Small’’:
by revenue ................................................................................................................................................................
by number of employees ..........................................................................................................................................
Entities Classified as ‘‘Small’’:
by revenue ................................................................................................................................................................
by number of employees ..........................................................................................................................................
because not enough information found in databases ..............................................................................................
Total Number of Small Entities ........................................................................................................................................

Proportion
of sample
(percent)

40,579
8,506
368
405

....................
....................
....................
100

20
1

5
0

307
31
46
384

76
8
11
a 95

Source: USCIS analysis.
a Calculation: 76 percent (Entities classified as small by revenue) + 8 percent (Entities classified as small by number of employees) + 11 percent (Entities classified as small because no information found in database) = 95 percent (total number of small entities, rounded).

As previously stated, DHS classified
each entity by its NAICS code to
determine each business’ size. Table 16

shows a list of the top 10 NAICS
industries that submit an H–2B petition.

TABLE 16—TOP 10 NAICS INDUSTRIES SUBMITTING FORM I–129 FOR H–2B PETITIONS, SMALL ENTITY ANALYSIS
RESULTS
Rank

NAICS
code

1
2
3
4
5
6
7

561730
541320
721110
N/A
722511
713910
236115

8
9
10

424460
238160
561990

NAICS U.S. industry title

Size
standards in
millions of
dollars a

Size
standards in
number of
employees a

56
55
22
19
12
12
10

8.0
8.0
35.0
8.0
8.0
16.5
39.5

....................
....................
....................
....................
....................
....................
....................

13.8
13.6
5.4
4.7
3.0
3.0
2.5

9
6
6

....................
16.5
12.0

100
....................
....................

2.2
1.5
1.5

Frequency

Landscaping Services .....................................................................
Landscape Architectural Services ...................................................
Hotels (except Casino Hotels) and Motels .....................................
Unclassified Establishments ............................................................
Full-Service Restaurants .................................................................
Golf Courses and Country Clubs ....................................................
New Single-Family Housing Construction (except For-Sale Builders).
Fish and Seafood Merchant Wholesalers .......................................
Roofing Contractors ........................................................................
All Other Support Services ..............................................................

Percent

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Source: USCIS analysis.
a The Small Business Administration (SBA) has developed size standards to carry out the purposes of the Small Business Act and those size
standards can be found in 13 CFR section 121.201. At the time this analysis was conducted, NAICS 2017 classifications were in effect.

Because the random sample is drawn
from the H–2 petitioner population atlarge, it is not practical to estimate small
entities’ representation within this
noncooperative subpopulation. Thus,
the IRFA assumes 12 percent of small
entities, like larger entities, may have
underestimated the reasonable, existing
compliance burden of site visits and
283 Calculation:

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368 + (368 × 10 percent) = 405.

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thus incur some additional compliance
costs.
Petitioner-employers are not expected
to be impacted by proposed changes to
the interrupted stay calculation. USCIS
cannot determine how beneficiaries’
behavior would change as a result of
this simplification to the USCIS
calculation. If indirectly impacted

industries have evidence to the
contrary, this IRFA affords the public
the opportunity to comment upon this
rationale before DHS would begin work
on the FRFA. DHS welcomes public
comments on this issue. Similarly, DHS
does not expect flexibilities that allow
beneficiaries to arrive in-country earlier
would impose any compliance costs

284 Calculation: 8,506 entities × 95 percent =
8,175 small entities (rounded).

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upon industries that choose to petition
for or employ H–2 workers.
Table 3 shows that an average 13,722
H–2A petitions are received annually.
Table 13 shows that 96 percent of
entities that petition for H–2A workers
are considered small based on SBA size
standards. Therefore, DHS reasonably
assumes that of the 13,722 H–2A
petitions received, 13,500 285 petitions
are submitted by small entities.
Table 4 shows that USCIS receives an
average of 6,866 H–2B petitions
annually. Table 15 shows that 95
percent of entities that petition for H–
2B workers are considered small based
on SBA size standards. Therefore, DHS
reasonably assumes that of the 6,866 H–
2B petitions received, 6,523 286 petitions
are submitted by small entities.
d. A Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the
Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will
Be Subject to the Requirement and the
Type of Professional Skills
This proposed rule does not impose
any new or additional direct ‘‘reporting’’
or ‘‘recordkeeping’’ requirements on
filers of H–2 petitions. The proposed
rule does not require any new
professional skills for reporting. As
discussed, to the extent that existing
statutorily and regulatorily authorized
site visits described in the current Form
I–129 instructions result in neither a
finding of compliance nor
noncompliance (described throughout
this rule as noncooperation), the
proposal to revoke or deny petitions
may result in unquantified additional
compliance burdens to those petitioners
that underestimate the reasonable
burden of compliance with
unannounced site visits. Under the
proposed rule, a petitioner that was
selected for a site visit and would not
have cooperated under the baseline
would face an (up to) 1.7-hour marginal
time burden (on average) in order to
comply with the provisions of the rule.
Also, the provisions of this proposed
rule regarding prohibited fees and labor
law violations (see proposed 8 CFR
214.2(h)(5)(xi)(A) through (C), 8 CFR
214.2(h)(6)(i)(B) through (D) regarding
prohibited fees. See proposed 8 CFR
214.2(h)(10)(iii) regarding labor law
violations) would subject petitioners,
including small entities, to future bars
to petition approval should they engage
285 Calculation:

13,722 petitions received
annually × 96 percent = 13,173 submitted by small
entities (rounded).
286 Calculation: 6,866 annually selected petitions
× 95 percent = 6,523 submitted by small entities
(rounded).

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in activities that are prohibited by the
proposed rule.
Denial or revocation of petitions for
noncooperation with existing site visit
and verification requirements is
expected to impact 12 percent of
petitioners who, despite agreeing to
permit the statutorily and regulatorily
authorized site visits on their Form I–
129 petition, yielded inconclusive (‘‘not
defined’’) site visit results. Petitioners
that do not cooperate with all site visit
requirements may have underestimated
the reasonable compliance burden they
assented to, and, due to this proposed
rule, would experience or expect to
experience additional compliance
burden associated with unchanged site
visits and verification activities. DHS
notes that employers who do not
cooperate would face denial or
revocation of their petition(s), which
could result in costs to those businesses
such as potential lost revenue or
potential lost profits due to not having
access to workers.
Furthermore, the proposed rule
causes direct costs to accrue to affected
petitioners due to opportunity costs of
time from both marginal time burden
increases (for H Classification
Supplement to Form I–129) and
increased filing volumes (additional
Forms I–129 filed due to the rule’s
portability provision).
The increase in cost per petition to
file the H classification supplement for
Form I–129 on behalf of an H–2 worker
is the additional opportunity cost of
time of 0.3 hours. As previously stated
in Section d(1) of the regulatory impact
analysis, this proposed rule will add
$15.28 287 in costs if an HR specialist
files, $34.25 288 in costs if an in-house
lawyer files, and $59.06 289 in costs if an
outsourced lawyer files.
In all instances, USCIS acknowledges
that several aspects of the rule impose
costs on affected entities. USCIS has
determined, however, that these costs
are outweighed by the benefits of
increased program integrity and
compliance. USCIS has considered
opportunities to achieve the rule’s
stated objectives while minimizing costs
to small entities and welcomes public
comment.

287 HR specialist calculation: $50.94 × (0.3 hours)
= $15.28 (rounded).
288 In-house lawyer calculation: $114.17 × (0.3
hours) = $34.25 (rounded).
289 Outsourced lawyer calculation: $196.85 × (0.3)
= $59.06 (rounded).

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e. An Identification of All Relevant
Federal Rules, to the Extent Practical,
That May Duplicate, Overlap, or
Conflict With the Proposed Rule.
DHS is unaware of any duplicative,
overlapping, or conflicting Federal
rules, but invites any comment and
information regarding any such rules.
f. Description of Any Significant
Alternatives to the Proposed Rule That
Accomplish the Stated Objectives of
Applicable Statutes and That Minimize
Any Significant Economic Impact of the
Proposed Rule on Small Entities
DHS considered alternatives to
elements of the proposed rule that
would minimize the impact on small
entities while still accomplishing the
rule’s objectives, such as improving the
integrity and efficiency of the H–2
program. First, USCIS acknowledges
that, as discussed above, the vast
majority (approximately 96% of H–2A
petitioners and 95% of H–2B
petitioners) of affected petitioners are
small businesses. Therefore, costs due to
the rule would necessarily be borne by
those small businesses. Minimizing any
costs due to the rule would therefore
compromise the ability of this
regulation to effectively address the
goals stated in the preamble.
USCIS considered not proposing
regulations that would revoke or deny
petitioners refusing to cooperate with
current statutorily and regulatorily
authorized USCIS site visit and
verification activities. Roughly 12
percent of current H–2 site visits are
inconclusive due to noncooperation on
the part of petitioners. USCIS’s inability
to reach a conclusion concerning
compliance or noncompliance
concerning petitioners that triggered a
site visit is critical to oversight of the
program and integrity measures. The
compliance burden for a small entity is
not the duration of the site visit and
verification activities, but rather the
discrepancy between what USCIS and
the assenting petitioner estimated such
reasonable compliance burdens to be.
USCIS will not consider permitting any
small entity to willfully violate the
statutory and regulatory requirements
explained in the existing Form I–129
instructions, thus the IRFA alternative
considered was rejected for failing to
meet the rule’s objective of improving
H–2 program integrity. Furthermore, 12
percent of USCIS resources dedicated
toward investigating noncompliance
with H–2 program requirements are
sunk, resulting in no findings. USCIS
investigative officers are an important
tool and a scarce resource. These
investigatory resources could be made

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more effective if, at some additional
compliance costs to would-be
noncooperative small entities, USCIS
was able to reach a finding. For this
reason, USCIS rejected the IRFA
alternative for failing to meet the rule’s
objective of improving H–2 efficiency
with respect to USCIS investigative
resources.
Finally, an additional objective of the
rule is enhancement of worker
protections. The IRFA alternative of
minimizing additional compliance
burdens to 12 percent of entities from
site visits and verification activities was
rejected because it risks undermining
the impacts of other proposed
provisions of this rule that are expected
to achieve greater protections for
workers who report violations.
Furthermore, DHS considered not
expanding porting to minimize those
impacts to small entities, but concluded
that the availability of porting is integral
to accomplishing the objectives of
enhancing program integrity and
increasing worker protections.
C. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and Tribal governments.
Title II of UMRA requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed rule, or final rule
that may result in a $100 million or
more expenditure (adjusted annually for
inflation) in any one year by State, local,
and Tribal governments, in the
aggregate, or by the private sector.290
In addition, the inflation-adjusted
value of $100 million in 1995 is
approximately $192 million in 2022
based on the Consumer Price Index for
All Urban Consumers (‘‘CPI–U’’).291
The term ‘‘Federal mandate’’ means a
Federal intergovernmental mandate or a
290 2

U.S.C. 1532(a).
U.S. Department of Labor, BLS,
‘‘Historical Consumer Price Index for All Urban
Consumers (CPI–U): U.S. city average, all items, by
month,’’ available at www.bls.gov/cpi/tables/
supplemental-files/historical-cpi-u-202212.pdf (last
visited Jan. 19, 2023). Calculation of inflation: (1)
Calculate the average monthly CPI–U for the
reference year (1995) and the current year (2022);
(2) Subtract reference year CPI–U from current year
CPI–U; (3) Divide the difference of the reference
year CPI–U and current year CPI–U by the reference
year CPI–U; (4) Multiply by 100 = [(Average
monthly CPI–U for 2022 ¥ Average monthly CPI–
U for 1995)/(Average monthly CPI–U for
1995)] *100 = [(292.655 ¥ 152.383)/152.383] *100 =
(140.272/152.383) *100 = 0.92052263 *100 = 92.05
percent = 92 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995
dollars *1.92 = $192 million in 2022 dollars.

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291 See

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Federal private sector mandate.292 The
term ‘‘Federal intergovernmental
mandate’’ means, in relevant part, a
provision that would impose an
enforceable duty upon State, local, or
Tribal governments (except as a
condition of Federal assistance or a duty
arising from participation in a voluntary
Federal program).293 The term ‘‘Federal
private sector mandate’’ means, in
relevant part, a provision that would
impose an enforceable duty upon the
private sector (except as a condition of
Federal assistance or a duty arising from
participation in a voluntary Federal
program).294
This proposed rule does not contain
such a mandate, because it does not
impose any enforceable duty upon any
other level of government or private
sector entity. Any downstream effects
on such entities would arise solely due
to their voluntary choices, and the
voluntary choices of others, and would
not be a consequence of an enforceable
duty imposed by this rule. Similarly,
any costs or transfer effects on State and
local governments would not result
from a Federal mandate as that term is
defined under UMRA.295 The
requirements of title II of UMRA,
therefore, do not apply, and DHS has
not prepared a statement under UMRA.
DHS has, however, analyzed many of
the potential effects of this action in the
regulatory impact analysis above.
D. Executive Order 13132 (Federalism)
E.O. 13132 was issued to ensure the
appropriate division of policymaking
authority between the States and the
Federal Government and to further the
policies of the Unfunded Mandates Act.
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. DHS does not
expect that this rule would impose
substantial direct compliance costs on
State and local governments or preempt
State law. Therefore, in accordance with
section 6 of Executive Order 13132, it is
determined that this proposed rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
292 See

2 U.S.C. 1502(1), 658(6).
U.S.C. 658(5).
294 2 U.S.C. 658(7).
295 See 2 U.S.C. 1502(1), 658(6).
293 2

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E. Executive Order 12988 (Civil Justice
Reform)
This proposed rule meets the
applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This proposed rule would not have
Tribal implications under Executive
Order 13175, Consultation and
Coordination with Indian Tribal
Governments, because it would not have
a substantial direct effect on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
G. National Environmental Policy Act
DHS and its components analyze
proposed actions to determine whether
the National Environmental Policy
Act 296 (NEPA) applies to them and, if
so, what degree of analysis is required.
DHS Directive 023–01, Rev. 01
(Directive) and Instruction Manual 023–
01–001–01, Rev. 01 (Instruction
Manual) 297 establish the procedures
DHS and its components use to comply
with NEPA and the Council on
Environmental Quality (CEQ)
regulations for implementing NEPA.298
The CEQ regulations allow Federal
agencies to establish in their NEPA
implementing procedures categories of
actions (‘‘categorical exclusions’’) that
experience has shown normally do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require preparation of an Environmental
Assessment (EA) or Environmental
Impact Statement (EIS).299 Instruction
Manual, Appendix A, Table 1 lists the
DHS categorical exclusions.
Under DHS NEPA implementing
procedures, for an action to be
categorically excluded, it must satisfy
each of the following three conditions:
(1) The entire action clearly fits within
one or more of the categorical
exclusions; (2) the action is not a piece
of a larger action; and (3) no
extraordinary circumstances exist that
296 See Public Law 91–190, 42 U.S.C. 4321
through 4347.
297 See DHS, Implementing the National
Environmental Policy Act, DHS Directive 023–01,
Rev 01 (Oct. 31, 2014), and DHS Instruction Manual
Rev. 01(Nov. 6, 2014), https://www.dhs.gov/
publication/directive-023-01-rev-01-andinstruction-manual-023-01-001-01-rev-01-andcatex.
298 See 40 CFR parts 1500 through 1508.
299 See 40 CFR 1501.4(a).

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create the potential for a significant
environmental effect.300
This proposed rule includes a number
of proposed regulatory improvements. If
finalized, it will improve program
integrity while increasing flexibility,
efficiency, and improving access to the
H–2 programs. Specifically, DHS
proposes to clarify the fees prohibited
under H–2 regulations, strengthen the
prohibition on collecting such fees from
H–2 workers, extend grace periods for
H–2 workers to give them the same
amount of flexibility to come to the
United States early and prepare for
employment, and to remain in the U.S.
after their employment ends to prepare
for departure or seek new employment.
The proposed rule also includes a new,
longer grace period for H–2 workers
whose employment terminated early.
DHS also proposes to make portability
permanent in the H–2 programs, and to
allow H–2 workers to take steps toward
becoming permanent residents of the
United States while still maintaining
lawful nonimmigrant status. DHS
further proposes efficiencies in H–2
program administration by eliminating
the H–2 eligible countries lists and the
H–2 ‘‘interrupted stay’’ provisions and
reducing the period of absence needed
to reset a worker’s 3-year maximum
period of stay.
DHS is not aware of any significant
impact on the environment, or any
change in the environmental effect from
current H–2 program rules, that will
result from the proposed rule changes.
DHS therefore finds this proposed rule
clearly fits within categorical exclusion
A3 established in the Department’s
implementing procedures. Instruction
Manual, Appendix A.
The proposed amendments, if
finalized, would be stand-alone rule
changes for USCIS H–2 programs and
are not a part of any larger action. In
accordance with the Instruction Manual,
DHS finds no extraordinary
circumstances associated with the
proposed rules that may give rise to
significant environmental effects
requiring further environmental analysis
and documentation. Therefore, this
action is categorically excluded and no
further NEPA analysis is required.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule. In
preparation for the submission, all
agencies are required to submit the
proposed new, revised or discontinued
300 See

Instruction Manual, section V.B.2 (a-c).

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information collections for public
comment. The paragraphs below
summarize the changes proposed to
OMB Control Number 1615–0009,
Petition for Nonimmigrant Worker
(Form I–129).
DHS and USCIS invite the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice is published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–0009 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
(1) Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology
(e.g., permitting electronic submission
of responses).
Overview of information collection:
(1) Type of Information Collection:
Revision of a Currently Approved
Collection.
(2) Title of the Form/Collection:
Petition for Nonimmigrant Worker.
(3) Agency form number, if any, and
the applicable component of DHS
sponsoring the collection: I–129; USCIS.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract:
Primary: Business or other for-profit.
USCIS uses the data collected on this
form to determine eligibility for the
requested nonimmigrant petition and/or
requests to extend or change
nonimmigrant status. An employer (or
agent, where applicable) uses this form

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to petition USCIS for a noncitizen to
temporarily enter as a nonimmigrant
worker. An employer (or agent, where
applicable) also uses this form to
request an extension of stay or change
of status on behalf of the nonimmigrant
worker. The form serves the purpose of
standardizing requests for
nonimmigrant workers and ensuring
that basic information required for
assessing eligibility is provided by the
petitioner while requesting that
beneficiaries be classified under certain
nonimmigrant employment categories. It
also assists USCIS in compiling
information required by Congress
annually to assess effectiveness and
utilization of certain nonimmigrant
classifications.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection I–129 is 294,751 and the
estimated hour burden per response is
2.34 hours; the estimated total number
of respondents for the information
collection E–1/E–2 Classification
Supplement to Form I–129 is 4,760 and
the estimated hour burden per response
is 0.67 hours; the estimated total
number of respondents for the
information collection Trade Agreement
Supplement to Form I–129 is 3,057 and
the estimated hour burden per response
is 0.67 hours; the estimated total
number of respondents for the
information collection H Classification
Supplement to Form I–129 is 96,291
and the estimated hour burden per
response is 2.3 hours; the estimated
total number of respondents for the
information collection H–1B and H–1B1
Data Collection and Filing Fee
Exemption Supplement is 96,291 and
the estimated hour burden per response
is 1 hour; the estimated total number of
respondents for the information
collection L Classification Supplement
to Form I–129 is 37,831 and the
estimated hour burden per response is
1.34 hours; the estimated total number
of respondents for the information
collection O and P Classifications
Supplement to Form I–129 is 22,710
and the estimated hour burden per
response is 1 hour; the estimated total
number of respondents for the
information collection Q–1
Classification Supplement to Form I–
129 is 155 and the estimated hour
burden per response is 0.34 hour; and
the estimated total number of
respondents for the information
collection R–1 Classification
Supplement to Form I–129 is 6,635 and

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65101

the estimated hour burden per response
is 2.34 hours.

Number of
respondents

Form name/form No.

Currently
approved
burden
estimates

New burden
estimates
Difference
(in hours)

Avg. burden
per response
(in hours)
Petition for Nonimmigrant Worker (Form I–129) .............................................
E–/E–2 Classification Supplement to Form I–129 ...........................................
Trade Agreement Supplement to Form I–129 .................................................
H Classification Supplement to Form I–129 ....................................................
H–1B and H–1B1 Data Collection and Filing Fee Exemption Supplement ....
L Classification Supplement to Form I–129 ....................................................
O and P Classifications Supplement to Form I–129 .......................................
Q–1 Classifications Supplement to Form I–129 ..............................................
R–1 Classifications Supplement to Form I–129 ..............................................

(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 1,101,697 hours. This is an
increase from the current estimate of
1,072,810 burden hours annually. The
overall change in burden estimates
reflects the proposed changes in the rule
related to the removal of the list of
countries of citizenship section on the
form and eligible countries list from the
instructions, addition of question on
exception to the three-year limit and
requests for evidence, rewriting of
questions and instructional content on
prohibited fees and evidence and other
H–2A and H–2B violations, addition of
clarifying language to H–2A and H–2B
petitioner and employer obligations
questions, addition of questions and
reformatting for the joint employer
section, removal of E-Verify and
corresponding H–2A petitions
instructions, addition of instructional
content in the recruitment of H–2A and
H–2B workers section, removal of
instructional content on interrupted
stays, and addition of clarifying
language to the notification
requirements instructional content.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $70,681,290.
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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.

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294,751
4,760
3.057
96,291
96,291
37,831
22,710
155
6,635

8 CFR Part 274a
Administrative practice and
procedure, Aliens, Cultural exchange
program, Employment, Penalties,
Reporting and recordkeeping
requirements, Students.
Regulatory Amendments
Accordingly, DHS proposes to amend
chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 214—NONIMMIGRANT CLASSES
1. The authority citation for part 214
continues to read as follows:

2.34
0.67
0.67
2
1
1.34
1
0.34
2.34

0
0
0
0.3
0
0
0
0
0

Avg. burden
per response
(in hours)
2.34
0.67
0.67
2.3
1
1.34
1
0.34
2.34

k. Removing and reserving paragraph
(h)(6)(i)(E);
■ l. Revising paragraph (h)(6)(i)(F);
■ m. Revising paragraph (h)(6)(vii);
■ n. Adding paragraph (h)(10)(iii);
■ o. Adding paragraph (h)(11)(iv);
■ p. Revising paragraphs (h)(13)(i), (iv)
and (v);
■ q. Revising paragraph (h)(16)(ii) and
adding (h)(16)(iii);
■ r. Revising paragraph (h)(20); and
■ s. Adding paragraph (h)(30).
The revisions and additions read as
follows:
■

■

Authority: 6 U.S.C. 202, 236; 8 U.S.C.
1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1188, 1221, 1281, 1282, 1301–1305, 1357,
and 1372; sec. 643, Pub. L. 104–208, 110 Stat.
3009–708; Pub. L. 106–386, 114 Stat. 1477–
1480; section 141 of the Compacts of Free
Association with the Federated States of
Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau,
48 U.S.C. 1901 note and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C.
1806).

2. Section 214.2 is amended by:
a. Revising paragraph (h)(2)(i)(D);
b. Redesignating paragraph (h)(2)(i)(I)
as paragraph (h)(2)(i)(J), and adding a
new paragraph (h)(2)(i)(I);
■ c. Revising paragraphs (h)(2)(ii) and
(iii);
■ d. Removing paragraph (h)(5)(i)(F);
■ e. Removing and reserving paragraph
(h)(5)(iii)(B);
■ f. Revising paragraphs (h)(5)(vi)(A),
(B)(1)(i) and (iii), and removing
(h)(5)(vi)(E);
■ g. Revising paragraphs (h)(5)(viii)(B)
and (C) and adding (D);
■ h. Revising paragraphs (h)(5)(ix) and
(xi);
■ i. Removing paragraph (h)(5)(xii);
■ j. Revising paragraphs (h)(6)(i)(B)
through (D);
■
■
■

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§ 214.2 Special requirements for
admission, extension, and maintenance of
status.

*

*
*
*
*
(h) * * *
(2) * * *
(i) * * *
(D) Change of employers. If the alien
is in the United States and seeks to
change employers, the prospective new
employer must file a petition for a
nonimmigrant worker requesting
classification and an extension of the
alien’s stay in the United States. If the
new petition is approved, the extension
of stay may be granted for the validity
of the approved petition. The validity of
the petition and the alien’s extension of
stay must conform to the limits on the
alien’s temporary stay that are
prescribed in paragraph (h)(13) of this
section. Except as provided in
paragraph (h)(2)(i)(I) of this section, 8
CFR 274a.12(b)(21), or section 214(n) of
the Act, 8 U.S.C. 1184(n), the alien is
not authorized to begin the employment
with the new petitioner until the
petition is approved. An H–1C
nonimmigrant alien may not change
employers.
*
*
*
*
*
(I) H–2A and H–2B portability. An
eligible H–2A or H–2B nonimmigrant is

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authorized to start new employment
upon the proper filing, in accordance
with 8 CFR 103.2(a), of a nonfrivolous
H–2A or H–2B petition on behalf of
such alien requesting the same
classification that the nonimmigrant
alien currently holds, or as of the
requested start date, whichever is later.
(1) Eligible H–2A or H–2B
nonimmigrant. For H–2A and H–2B
portability purposes, an eligible H–2A
or H–2B nonimmigrant is defined as an
alien:
(i) Who has been lawfully admitted
into the United States in, or otherwise
provided, H–2A or H–2B nonimmigrant
status;
(ii) On whose behalf a nonfrivolous
H–2A or H–2B petition for new
employment has been properly filed,
including a petition for new
employment with the same employer,
with a request to amend or extend the
H–2A or H–2B nonimmigrant’s stay in
the same classification that the
nonimmigrant currently holds, before
the H–2A or H–2B nonimmigrant’s
period of stay authorized by the
Secretary of Homeland Security expires;
and
(iii) Who has not been employed
without authorization in the United
States from the time of last admission
through the filing of the petition for new
employment.
(2) Length of employment.
Employment authorized under this
paragraph (h)(2)(i)(I) automatically
ceases upon the adjudication or
withdrawal of the H–2A or H–2B
petition described in paragraph
(h)(2)(i)(I)(1)(ii) of this section.
(3) Application of H–2A or H–2B
program requirements during the
pendency of the petition. The petitioner
and any employer is required to comply
with all H–2A or H–2B program
requirements, as applicable under the
relevant program, with respect to an
alien who has commenced new
employment with that petitioner or
employer based on a properly filed
nonfrivolous petition and while that
petition is pending, even if the petition
is subsequently denied or withdrawn.
During the pendency of the petition, the
alien will not be considered to have
been in a period of unauthorized stay or
employed in the United States without
authorization solely on the basis of
employment pursuant to the new
petition, even if the petition is
subsequently denied or withdrawn.
(4) Successive H–2A or H–2B
portability petitions. (i) An alien
maintaining authorization for
employment under this paragraph
(h)(2)(i)(I), whose status, as indicated on
the Arrival-Departure Record (Form I–

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94), has expired, will be considered to
be in a period of stay authorized by the
Secretary of Homeland Security for
purposes of paragraph (h)(2)(i)(I)(1)(ii) of
this section. If otherwise eligible under
this paragraph (h)(2)(i)(I), such alien
may begin working in a subsequent
position upon the filing of another H–
2A or H–2B petition in the same
classification that the nonimmigrant
alien currently holds or from the
requested start date, whichever is later,
notwithstanding that the previous H–2A
or H–2B petition upon which
employment is authorized under this
paragraph (h)(2)(i)(I) remains pending
and regardless of whether the validity
period of an approved H–2A or H–2B
petition filed on the alien’s behalf
expired during such pendency.
(ii) A request to amend the petition or
for an extension of stay in any
successive H–2A or H–2B portability
petition requesting the same
classification that the nonimmigrant
alien currently holds cannot be
approved if a request to amend the
petition or for an extension of stay in
any preceding H–2A or H–2B portability
petition in the succession is denied,
unless the beneficiary’s previously
approved period of H–2A or H–2B
status remains valid.
(iii) Denial of a successive portability
petition does not affect the ability of the
H–2A or H–2B beneficiary to continue
or resume working in accordance with
the terms of an H–2A or H–2B petition
previously approved on behalf of the
beneficiary if that petition approval
remains valid, and the beneficiary has
either maintained H–2A or H–2B status,
as appropriate, or been in a period of
authorized stay and has not been
employed in the United States without
authorization.
*
*
*
*
*
(ii) Multiple beneficiaries. More than
one beneficiary may be included in an
H–1C, H–2A, H–2B, or H–3 petition if
the beneficiaries will be performing the
same service, or receiving the same
training, for the same period of time,
and in the same location.
(iii) Naming beneficiaries. H–1B, H–
1C, and H–3 petitions must include the
name of each beneficiary. Except as
provided in this paragraph (h), all H–2A
and H–2B petitions must include the
name of each beneficiary who is
currently in the United States, but need
not name any beneficiary who is not
currently in the United States. Unnamed
beneficiaries must be shown on the
petition by total number. USCIS may
require the petitioner to name H–2B
beneficiaries where the name is needed
to establish eligibility for H–2B

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nonimmigrant status. If all of the
beneficiaries covered by an H–2A or H–
2B temporary labor certification have
not been identified at the time a petition
is filed, multiple petitions for
subsequent beneficiaries may be filed at
different times but must include a copy
of the same temporary labor
certification. Each petition must
reference all previously filed petitions
associated with that temporary labor
certification.
*
*
*
*
*
(5) * * *
(vi) * * *
(A) Consent. In filing an H–2A
petition, a petitioner and each employer
consents to allow Government access to
all sites where the labor is being or will
be performed and where workers are or
will be housed and agrees to fully
cooperate with any compliance review,
evaluation, verification, or inspection
conducted by USCIS, including an onsite inspection of the employer’s
facilities, review of the employer’s
records related to the compliance with
immigration laws and regulations, and
interview of the employer’s employees
and any other individuals possessing
pertinent information, which may be
conducted in the absence of the
employer or the employer’s
representatives, as a condition for the
approval of the petition. The interviews
may be conducted on the employer’s
property, or as feasible, at a neutral
location agreed to by the employee and
USCIS away from the employer’s
property. If USCIS is unable to verify
facts, including due to the failure or
refusal of the petitioner or employer to
cooperate in an inspection or other
compliance review, then such inability
to verify facts, including due to failure
or refusal to cooperate, may result in
denial or revocation of any H–2A
petition for H–2A workers performing
services at the location or locations that
are a subject of inspection or
compliance review.
(B) * * *
(1) * * *
(i) An H–2A worker does not report to
work within 5 workdays of the
employment start date on the H–2A
petition or within 5 workdays of the
start date established by their employer,
whichever is later;
*
*
*
*
*
(iii) The H–2A worker does not report
for work for a period of 5 consecutive
workdays without the consent of the
employer or is terminated prior to the
completion of agricultural labor or
services for which they were hired.
*
*
*
*
*
(viii) * * *

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Federal Register / Vol. 88, No. 181 / Wednesday, September 20, 2023 / Proposed Rules
(B) Period of admission. An alien
admissible as an H–2A nonimmigrant
will be admitted for the period of the
approved petition. Such alien will be
admitted for an additional period of up
to 10 days before the beginning of the
approved period for the purpose of
travel to the worksite, and up to 30 days
subject to the 3-year limitation in
paragraph (h)(5)(viii)(C) of this section
following the expiration of the H–2A
petition for the purpose of departure or
to seek an extension based on a
subsequent offer of employment. Unless
authorized under 8 CFR 274a.12, the
alien may not work except during the
validity period of the petition.
(C) Limits on an individual’s stay.
Except as provided in paragraph
(h)(5)(viii)(B) of this section, an alien’s
stay as an H–2A nonimmigrant is
limited by the period of time stated in
an approved petition. An alien may
remain longer to engage in other
qualifying temporary agricultural
employment by obtaining an extension
of stay. However, an individual who has
held H–2A or H–2B status for a total of
3 years may not again be granted H–2A
status until such time as they remain
outside the United States for an
uninterrupted period of at least 60 days.
Eligibility under this paragraph
(h)(5)(viii)(C) will be determined during
adjudication of a request for admission,
change of status or extension. An alien
found eligible for a shorter period of H–
2A status than that indicated by the
petition due to the application of this
paragraph (h)(5)(viii)(C) will only be
admitted for that shorter period.
(D) Period of absence. An absence
from the United States for an
uninterrupted period of at least 60 days
at any time will result in the alien
becoming eligible for a new 3-year
maximum period of H–2 stay. To
qualify, the petitioner must provide
evidence documenting the alien’s
relevant absence(s) from the United
States, such as, but not limited to,
arrival and departure records, copies of
tax returns, and records of employment
abroad.
(ix) Substitution of beneficiaries after
admission. An H–2A petition may be
filed to replace H–2A workers whose
employment was terminated earlier than
the end date stated on the H–2A petition
and before the completion of work; who
do not report to work within 5 workdays
of the employment start date on the H–
2A petition or within 5 workdays of the
start date established by their employer,
whichever is later; or who do not report
for work for a period of 5 consecutive
workdays without the consent of the
employer. The petition must be filed
with a copy of the temporary labor

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certification, a copy of the approval
notice covering the workers for which
replacements are sought, and other
evidence required by paragraph
(h)(5)(i)(D) of this section. It must also
be filed with a statement giving the
name, date and country of birth,
termination date, and the reason for
termination, if applicable, for such
worker and the date that USCIS was
notified that the worker was terminated
or did not report for work for a period
of 5 consecutive workdays without the
consent of the employer. A petition for
a replacement will not be approved
where the requirements of paragraph
(h)(5)(vi) of this section have not been
met. A petition for replacements does
not constitute the notification required
by paragraph (h)(5)(vi)(B)(1) of this
section.
*
*
*
*
*
(xi) Treatment of petitions and alien
beneficiaries upon a determination that
fees were collected from alien
beneficiaries—(A) Denial or revocation
of petition for prohibited fees. As a
condition to approval of an H–2A
petition, no job placement fee, fee or
penalty for breach of contract, or other
fee, penalty, or compensation (either
direct or indirect), related to the H–2A
employment (collectively, ‘‘prohibited
fees’’) may be collected at any time from
a beneficiary of an H–2A petition by a
petitioner, a petitioner’s employee,
agent, attorney, facilitator, recruiter, or
similar employment service, or by any
employer (if different from the
petitioner) or any joint employer,
including a member employer if the
petitioner is an association of U.S.
agricultural producers. The passing of a
cost to the beneficiary that, by statute or
applicable regulations is the
responsibility of the petitioner,
constitutes the collection of a prohibited
fee. This provision does not prohibit
petitioners (including its employees),
employers or any joint employers,
agents, attorneys, facilitators, recruiters,
or similar employment services from
receiving reimbursement for costs that
are the responsibility and primarily for
the benefit of the worker, such as
government-required passport fees.
(1) If USCIS determines that the
petitioner or any of its employees,
whether before or after the filing of the
H–2A petition, has collected, or entered
into an agreement to collect, a
prohibited fee related to the H–2A
employment, the H–2A petition will be
denied or revoked on notice unless the
petitioner demonstrates through clear
and convincing evidence that
extraordinary circumstances beyond the
petitioner’s control resulted in its failure

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65103

to prevent collection or entry into
agreement for collection of prohibited
fees, and that it has fully reimbursed all
affected beneficiaries or the
beneficiaries’ designees. To qualify for
this exception, a petitioner must first
establish the circumstances were rare
and unforeseeable, and that it had made
significant efforts to prevent prohibited
fees prior to the collection of or
agreement to collect such fees. Further,
a petitioner must establish that it took
immediate remedial action as soon as it
became aware of the payment of the
prohibited fee. Moreover, a petitioner
must establish that it has fully
reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be
located or are deceased, that it has fully
reimbursed their designees. A designee
must be an individual or entity for
whom the beneficiary has provided the
petitioner or its successor in interest
prior written authorization to receive
such reimbursement, as long as the
petitioner or its successor in interest, or
its agent, employer (if different from the
petitioner), or any joint employer,
attorney, facilitator, recruiter, or similar
employment service would not act as
such designee or derive any financial
benefit, either directly or indirectly,
from the reimbursement.
(2) If USCIS determines that the
beneficiary has paid or agreed to pay a
prohibited fee related to the H–2A
employment, whether before or after the
filing of the H–2A petition, to any agent,
attorney, employer, facilitator, recruiter,
or similar employment service, or any
joint employer, including a member
employer if the petitioner is an
association of U.S. agricultural
producers, the H–2A petition will be
denied or revoked on notice unless the
petitioner demonstrates to USCIS
through clear and convincing evidence
that it did not know and could not,
through due diligence, have learned of
such payment or agreement and that all
affected beneficiaries or their designees
have been fully reimbursed. A written
contract between the petitioner and the
agent, attorney, facilitator, recruiter,
similar employment service, or member
employer stating that such fees were
prohibited will not, by itself, be
sufficient to meet this standard of proof.
(B) 1-year bar on approval of
subsequent H–2A petitions. USCIS will
deny any H–2A petition filed by the
same petitioner or a successor in
interest within 1 year after the decision
denying or revoking on notice an H–2A
or H–2B petition on the basis of
paragraph (h)(5)(xi)(A) or (h)(6)(i)(B),
respectively, of this section. In addition,
USCIS will deny any H–2A petition
filed by the same petitioner or successor

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in interest within 1 year after
withdrawal of an H–2A or H–2B
petition that was withdrawn following
USCIS issuance of a request for
evidence or notice of intent to deny or
revoke the petition on the basis of
paragraph (h)(5)(xi)(A) or (h)(6)(i)(B),
respectively, of this section.
(C) Reimbursement as condition to
approval of future H–2A petitions—(1)
Additional 3-year bar on approval of
subsequent H–2A petitions. For an
additional 3 years after the 1-year period
described in paragraph (h)(5)(xi)(B) of
this section, USCIS will deny any H–2A
petition filed by the same petitioner or
successor in interest, unless the
petitioner or successor in interest
demonstrates to USCIS that the
petitioner, successor in interest, or the
petitioner’s or successor in interest’s
agent, facilitator, recruiter, or similar
employment service, or any joint
employer, including a member
employer if the petitioner is an
association of U.S. agricultural
producers, reimbursed in full each
beneficiary, or the beneficiary’s
designee, of the denied or revoked
petition from whom a prohibited fee
was collected.
(2) Successor in interest. For the
purposes of paragraphs (h)(5)(xi)(B) and
(C) of this section, successor in interest
means an employer that is controlling
and carrying on the business of a
previous employer regardless of
whether such successor in interest has
succeeded to all of the rights and
liabilities of the predecessor entity. The
following factors may be considered by
USCIS in determining whether an
employer is a successor in interest; no
one factor is dispositive, but all of the
circumstances will be considered as a
whole:
(i) Substantial continuity of the same
business operations;
(ii) Use of the same facilities;
(iii) Substantial continuity of the work
force;
(iv) Similarity of jobs and working
conditions;
(v) Similarity of supervisory
personnel;
(vi) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(vii) Similarity in machinery,
equipment, production methods, or
assets required to conduct business;
(viii) Similarity of products and
services;
(ix) Familial or close personal
relationships between predecessor and
successor owners of the entity; and
(x) Use of the same or related
remittance sources for business
payments.

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(6) * * *
(i) * * *
(B) Denial or revocation of petition for
prohibited fees. As a condition of
approval of an H–2B petition, no job
placement fee, fee or penalty for breach
of contract, or other fee, penalty, or
compensation (either direct or indirect),
related to the H–2B employment
(collectively, ‘‘prohibited fees’’) may be
collected at any time from a beneficiary
of an H–2B petition by a petitioner, a
petitioner’s employee, agent, attorney,
facilitator, recruiter, or similar
employment service, or any employer (if
different from the petitioner). The
passing of a cost to the beneficiary that,
by statute or applicable regulations is
the responsibility of the petitioner,
constitutes the collection of a prohibited
fee. This provision does not prohibit
petitioners (including its employees),
employers, agents, attorneys,
facilitators, recruiters, or similar
employment services from receiving
reimbursement for costs that are the
responsibility and primarily for the
benefit of the worker, such as
government-required passport fees.
(1) If USCIS determines that the
petitioner or any of its employees,
whether before or after the filing of the
H–2B petition, has collected or entered
into an agreement to collect a prohibited
fee related to the H–2B employment, the
H–2B petition will be denied or revoked
on notice unless the petitioner
demonstrates through clear and
convincing evidence that extraordinary
circumstances beyond the petitioner’s
control resulted in its failure to prevent
collection or entry into agreement for
collection of prohibited fees, and that it
has fully reimbursed all affected
beneficiaries or the beneficiaries’
designees. To qualify for this exception,
a petitioner must first establish that the
circumstances were rare and
unforeseeable, and that it had made
significant efforts to prevent prohibited
fees prior to the collection of or
agreement to collect such fees. Further,
a petitioner must establish that it took
immediate remedial action as soon as it
became aware of the payment of the
prohibited fee. Moreover, a petitioner
must establish that it has fully
reimbursed all affected beneficiaries or,
only if such beneficiaries cannot be
located or are deceased, that it has fully
reimbursed their designees. A designee
must be an individual or entity for
whom the beneficiary has provided the
petitioner or its successor in interest
prior written authorization to receive
such reimbursement, as long as the
petitioner or its successor in interest, or
its agent, employer, attorney, facilitator,
recruiter, or similar employment service

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would not act as such designee or derive
any financial benefit, either directly or
indirectly, from the reimbursement.
(2) If USCIS determines that the
beneficiary has paid or agreed to pay
any employer, agent, attorney,
facilitator, recruiter, or similar
employment service a prohibited fee
related to the H–2B employment,
whether before or after the filing of the
H–2B petition, the H–2B petition will be
denied or revoked on notice unless the
petitioner demonstrates to USCIS
through clear and convincing evidence
that it did not know and could not,
through due diligence, have learned of
such payment or agreement and that all
affected beneficiaries or their designees
have been fully reimbursed. A written
contract between the petitioner and the
facilitator, recruiter, or similar
employment service stating that such
fees were prohibited will not, by itself,
be sufficient to meet this standard of
proof.
(C) 1-year bar on approval of
subsequent H–2B petitions. USCIS will
deny any H–2B petition filed by the
same petitioner or a successor in
interest within 1 year after the decision
denying or revoking on notice an H–2B
or H–2A petition on the basis of
paragraph (h)(6)(i)(B) or (h)(5)(xi)(A),
respectively, of this section. In addition,
USCIS will deny any H–2B petition
filed by the same petitioner or successor
in interest within 1 year after
withdrawal of an H–2B or H–2A
petition that was withdrawn following
USCIS issuance of a request for
evidence or notice of intent to deny or
revoke the petition on the basis of
paragraph (h)(6)(i)(B) or (h)(5)(xi)(A),
respectively, of this section.
(D) Reimbursement as condition to
approval of future H–2B petitions —(1)
Additional 3-year bar on approval of
subsequent H–2B petitions. For an
additional 3 years after the 1-year period
described in paragraph (h)(6)(i)(C) of
this section, USCIS will deny any H–2B
petition filed by the same petitioner or
successor in interest, unless the
petitioner or successor in interest
demonstrates to USCIS that the
petitioner or successor in interest, or the
petitioner’s or successor in interest’s
agent, facilitator, recruiter, or similar
employment service, reimbursed in full
each beneficiary, or the beneficiary’s
designee, of the denied or revoked
petition from whom a prohibited fee
was collected.
(2) Successor in interest. For the
purposes of paragraphs (h)(6)(i)(C) and
(D) of this section, successor in interest
means an employer that is controlling
and carrying on the business of a
previous employer regardless of

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whether such successor in interest has
succeeded to all of the rights and
liabilities of the predecessor entity. The
following factors may be considered by
USCIS in determining whether an
employer is a successor in interest; no
one factor is dispositive, but all of the
circumstances will be considered as a
whole:
(i) Substantial continuity of the same
business operations;
(ii) Use of the same facilities;
(iii) Substantial continuity of the work
force;
(iv) Similarity of jobs and working
conditions;
(v) Similarity of supervisory
personnel;
(vi) Whether the former management
or owner retains a direct or indirect
interest in the new enterprise;
(vii) Similarity in machinery,
equipment, production methods, or
assets required to conduct business;
(viii) Similarity of products and
services;
(ix) Familial or close personal
relationships between predecessor and
successor owners of the entity; and
(x) Use of the same or related
remittance sources for business
payments.
*
*
*
*
*
(F) Petitioner agreements and
notification requirements—(1)
Agreements. The petitioner must notify
DHS, within 2 workdays, and beginning
on a date and in a manner specified in
a notice published in the Federal
Register if: An H–2B worker does not
report for work within 5 workdays after
the employment start date stated on the
petition; the nonagricultural labor or
services for which H–2B workers were
hired were completed more than 30
days early; or an H–2B worker does not
report for work for a period of 5
consecutive workdays without the
consent of the employer or is terminated
prior to the completion of the
nonagricultural labor or services for
which they were hired. The petitioner
must also retain evidence of such
notification and make it available for
inspection by DHS officers for a 1-year
period beginning on the date of the
notification.
(2) Consent. In filing an H–2B
petition, the petitioner and each
employer (if different from the
petitioner) consent to allow Government
access to all sites where the labor is
being or will be performed and agrees to
fully cooperate with any compliance
review, evaluation, verification, or
inspection conducted by USCIS,
including an on-site inspection of the
employer’s facilities, review of the

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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.

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65105

(C) Period of absence. An absence
from the United States for an
uninterrupted period of at least 60 days
at any time will result in the alien
becoming eligible for a new 3-year
maximum period of H–2 stay. The
limitation in paragraph (h)(6)(vii)(B) of
this section will not apply to H–2B
aliens who did not reside continually in
the United States and whose
employment in the United States was
seasonal or intermittent or was for an
aggregate of 6 months or less per year.
In addition, the limitation in paragraph
(h)(6)(vii)(B) of this section will not
apply to aliens who reside abroad and
regularly commute to the United States
to engage in part-time employment. To
qualify, the petitioner must provide
evidence documenting the alien’s
relevant absence(s) from the United
States, such as, but not limited to,
arrival and departure records, copies of
tax returns, and records of employment
abroad.
(D) Traded professional H–2B
athletes. In the case of a professional H–
2B athlete who is traded from one
organization to another organization,
employment authorization for the player
will automatically continue for a period
of 30 days after the player’s acquisition
by the new organization, within which
time the new organization is expected to
file a new application or petition for H–
2B nonimmigrant classification. If a new
application or petition is not filed
within 30 days, employment
authorization will cease. If a new
application or petition is filed within 30
days, the professional athlete will be
deemed to be in valid H–2B status, and
employment will continue to be
authorized, until the petition is
adjudicated. If the new petition is
denied, employment authorization will
cease.
*
*
*
*
*
(10) * * *
(iii) H–2A and H–2B violators—(A)
USCIS will deny any H–2A or H–2B
petition filed by a petitioner, or the
successor in interest of a petitioner as
defined in paragraphs (h)(5)(xi)(C)(2)
and (h)(6)(i)(D)(2) of this section, that
has been the subject of one or more of
the following actions:
(1) A final administrative
determination by the Secretary of Labor
under 20 CFR part 655, subpart A or B,
or 29 CFR part 501 or 503 debarring the
petitioner from filing or receiving a
future labor certification, or a final
administrative determination by the
Governor of Guam debarring the
petitioner from issuance of future labor
certifications under applicable Guam
regulations and rules, if the petition is

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filed during the debarment period, or if
the debarment occurs during the
pendency of the petition; or
(2) A final USCIS denial or revocation
decision with respect to a prior H–2A or
H–2B petition that includes a finding of
fraud or willful misrepresentation of a
material fact during the pendency of the
petition or within 3 years prior to filing
the petition; or
(3) A final determination of
violation(s) under section 274(a) of the
Act during the pendency of the petition
or within 3 years prior to filing the
petition.
(B) Except as provided in paragraph
(h)(10)(iii)(A) of this section, USCIS may
deny any H–2A or H–2B petition filed
by a petitioner, or the successor in
interest of a petitioner as defined in
paragraphs (h)(5)(xi)(C)(2) and
(h)(6)(i)(D)(2) of this section, that has
been the subject of one or more of the
following actions during the pendency
of the petition or within 3 years prior to
filing the petition. USCIS may deny
such a petition if it determines that the
petitioner or successor has not
established its intention or the ability to
comply with H–2A or H–2B program
requirements. The violation(s)
underlying the following actions may
call into question a petitioner’s or
successor’s intention or ability to
comply:
(1) A final administrative
determination by the Secretary of Labor
or the Governor of Guam with respect to
a prior H–2A or H–2B temporary labor
certification that includes:
(i) Revocation of an approved
temporary labor certification under 20
CFR part 655, subpart A or B, or
applicable Guam regulations and rules;
(ii) Debarment under 20 CFR part 655,
subpart A or B, or 29 CFR part 501 or
503, or applicable Guam regulations and
rules, if the debarment period has
concluded prior to filing the petition; or
(iii) Any other administrative sanction
or remedy under 29 CFR part 501 or
503, or applicable Guam regulations and
rules, including assessment of civil
money penalties as described in those
parts.
(2) A USCIS decision revoking the
approval of a prior petition that
includes one or more of the following
findings: the beneficiary was not
employed by the petitioner in the
capacity specified in the petition; the
statement of facts contained in the
petition or on the application for a
temporary labor certification was not
true and correct, or was inaccurate; the
petitioner violated terms and conditions
of the approved petition; or the
petitioner violated requirements of

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section 101(a)(15)(H) of the Act or this
paragraph (h); or
(3) Any final administrative or
judicial determination (other than one
described in paragraph (h)(10)(iii)(A) of
this section) that the petitioner violated
any applicable employment-related laws
or regulations, including health and
safety laws or regulations.
(C) In determining whether the
underlying violation(s) in paragraph
(h)(10)(iii)(B) of this section calls into
question the ability or intention of the
petitioner or its successor in interest to
comply with H–2A or H–2B program
requirements, USCIS will consider all
relevant factors, including, but not
limited to:
(1) The recency and number of
violations;
(2) The egregiousness of the
violation(s), including how many
workers were affected, and whether it
involved a risk to the health or safety of
workers;
(3) Overall history or pattern of prior
violations;
(4) The severity or monetary amount
of any penalties imposed;
(5) Whether the final determination,
decision, or conviction included a
finding of willfulness;
(6) The extent to which the violator
achieved a financial gain due to the
violation(s), or the potential financial
loss or potential financial injury to the
workers;
(7) Timely compliance with all
penalties and remedies ordered under
the final determination(s), decision(s),
or conviction(s); and
(8) Other corrective actions taken by
the petitioner or its successor in interest
to cure its violation(s) or prevent future
violations.
(D) For purposes of paragraph
(h)(10)(iii) of this section, a criminal
conviction or final administrative or
judicial determination against any one
of the following individuals will be
treated as a conviction or final
administrative or judicial determination
against the petitioner or successor in
interest:
(1) An individual acting on behalf of
the petitioning entity, which could
include, among others, the petitioner’s
owner, employee, or contractor; or
(2) With respect to paragraph
(h)(10)(iii)(B) of this section, an
employee of the petitioning entity who
a reasonable person in the H–2A or H–
2B worker’s position would believe is
acting on behalf of the petitioning
entity.
(E)(1) With respect to denials under
paragraph (h)(10)(iii)(A) of this section,
USCIS will inform the petitioner of the
right to appeal the denial under 8 CFR

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103.3, and indicate in the denial notice
that the mandatory ground of denial
will also apply in the adjudication of
any other pending or future H–2
petition filed by the petitioner or a
successor in interest during the
applicable time period.
(2) With respect to denials under
paragraph (h)(10)(iii)(B) of this section,
USCIS will inform the petitioner of the
right to appeal the denial under 8 CFR
103.3, and indicate in the denial notice
that the discretionary ground of denial
may also apply in the adjudication of
any other pending or future H–2
petition filed by the petitioner or a
successor in interest during the
applicable time period.
(11) * * *
(iv) Effect of H–2A or H–2B petition
revocation. Upon revocation of the
approval of an employer’s H–2A or H–
2B petition, the beneficiary and their
dependents will not be considered to
have failed to maintain nonimmigrant
status, and will not accrue any period of
unlawful presence under section
212(a)(9) of the Act (8 U.S.C. 1182(a)(9)),
solely on the basis of the petition
revocation for a 60-day period following
the date of the revocation, or until the
end of the authorized period of
admission, whichever is shorter. During
such a period, the alien may only work
as otherwise authorized under 8 CFR
274a.12. The employer will be liable for
the alien beneficiary’s reasonable costs
of return transportation to their last
place of foreign residence abroad, unless
such alien obtains an extension of stay
based on an approved petition in the
same classification filed by a different
employer.
*
*
*
*
*
(13) * * *
(i) General. (A) An H–3 beneficiary
will be admitted to the United States for
the validity period of the petition, plus
a period of up to 10 days before the
validity period begins and 10 days after
the validity period ends. The
beneficiary may not work except during
the validity period of the petition.
(B) When an alien in an H
classification has spent the maximum
allowable period of stay in the United
States, a new petition under section
101(a)(15)(H) or (L) of the Act may not
be approved unless that alien has
resided and been physically present
outside the United States, except for
brief trips for business or pleasure, for
the time limit imposed on the particular
H classification. Brief trips to the United
States for business or pleasure during
the required time abroad are not
interruptive, but do not count toward
fulfillment of the required time abroad.

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A certain period of absence from the
United States of H–2A and H–2B aliens,
as set forth in 8 CFR 214.2(h)(5)(viii)(D)
and 8 CFR 214.2(h)(6)(vii)(C),
respectively, will provide a new total of
3 years that H–2A or H–2B status may
be granted. The petitioner must provide
information about the alien’s
employment, place of residence, and the
dates and purposes of any trips to the
United States during the period that the
alien was required to reside abroad.
(C) An alien admitted or otherwise
provided status in H–2A or H–2B
classification and their dependents will
not be considered to have failed to
maintain nonimmigrant status, and will
not accrue any period of unlawful
presence under section 212(a)(9) of the
Act (8 U.S.C. 1182(a)(9)), solely on the
basis of a cessation of the employment
on which the alien’s classification was
based, for 60 consecutive days or until
the end of the authorized period of
admission, whichever is shorter, once
during each authorized period of
admission. During such a period, the
alien may only work as otherwise
authorized under 8 CFR 274a.12.
(D) An alien in any authorized period
described in paragraph (C) of this
section may apply for and be granted an
extension of stay under 8 CFR
214.1(c)(4) or change of status under 8
CFR 248.1, if otherwise eligible.
*
*
*
*
*
(iv) H–3 limitation on admission. An
H–3 alien participant in a special
education program who has spent 18
months in the United States under
sections 101(a)(15)(H) and/or (L) of the
Act; and an H–3 alien trainee who has
spent 24 months in the United States
under sections 101(a)(15)(H) and/or (L)
of the Act may not seek extension,
change status, or be readmitted to the
United States under sections
101(a)(15)(H) and/or (L) of the Act
unless the alien has resided and been
physically present outside the United
States for the immediate prior 6 months.
(v) Exceptions. The limitations in
paragraphs (h)(13)(iii) and (iv) of this
section will not apply to H–1B and H–
3 aliens who did not reside continually
in the United States and whose
employment in the United States was
seasonal or intermittent or was for an
aggregate of 6 months or less per year.
In addition, the limitations will not

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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.
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(16) * * *
(ii) H–2A or H–2B classification. The
approval of a permanent labor
certification, the filing of a preference
petition for an alien, or an application
by an alien to seek lawful permanent
residence or an immigrant visa, will not,
standing alone, be the basis for denying
an H–2 petition, a request to extend
such a petition, or an application for
admission in, change of status to, or
extension of stay in H–2 status. The
approval of a permanent labor
certification, filing of a preference
petition, or filing of an application for
adjustment of status or an immigrant
visa will be considered, together with
all other facts presented, in determining
whether the H–2 nonimmigrant is
maintaining his or her H–2 status and
whether the alien has a residence in a
foreign country which he or she has no
intention of abandoning.
(iii) H–3 classification. The approval
of a permanent labor certification, or the
filing of a preference petition for an
alien currently employed by or in a
training position with the same
petitioner, will be a reason, by itself, to
deny the alien’s extension of stay.
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*
(20) Retaliatory action claims. (i) If
credible documentary evidence is
provided in support of a petition
seeking an extension of H–1B stay in or
change of status to another classification
indicating that the beneficiary faced
retaliatory action from their employer
based on a report regarding a violation
of that employer’s labor condition
application obligations under section
212(n)(2)(C)(iv) of the Act, USCIS may
consider a loss or failure to maintain H–
1B status by the beneficiary related to
such violation as due to, and
commensurate with, ‘‘extraordinary
circumstances’’ as defined by
§ 214.1(c)(4) and 8 CFR 248.1(b).

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65107

(ii) If credible documentary evidence
is provided in support of a petition
seeking an extension of H–2A or H–2B
stay in or change of status to another
classification indicating that the
beneficiary faced retaliatory action from
their employer based on a reasonable
claim of a violation or potential
violation of any applicable program
requirements or based on engagement in
another protected activity, USCIS may
consider a loss or failure to maintain H–
2A or H–2B status by the beneficiary
related to such violation as due to, and
commensurate with, ‘‘extraordinary
circumstances’’ as defined by
§ 214.1(c)(4) and 8 CFR 248.1(b).
*
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(30) Severability. The Department
intends that should any of the
[amendments made by ‘‘Modernizing
H–2 Program Requirements, Oversight,
and Worker Protections’’], be held to be
invalid or unenforceable by their terms
or as applied to any person or
circumstance they should nevertheless
be construed so as to continue to give
the maximum effect to the provision(s)
permitted by law. If, however, such
holding is that the provision(s) is
wholly invalid and unenforceable, the
[amendments to those provision(s)]
should be severed from the remainder of
[the rule], and the holding should not
affect the remainder of the sections
amended [by the rule] or the application
of the provision(s) to persons not
similarly situated or to dissimilar
circumstances
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
3. The authority citation for part 274a
continues to read as follows:

■

Authority: 8 U.S.C. 1101, 1103, 1105a,
1324a; 48 U.S.C. 1806; Pub. L. 101–410, 104
Stat. 890, as amended by Pub. L. 114–74, 129
Stat. 599; Title VII of Pub. L. 110–229, 122
Stat. 754; Pub. L. 115–218, 132 Stat. 1547; 8
CFR part 2.

4. Section 274a.12 is amended by
revising paragraph (b)(21) to read as
follows:

■

§ 274a.12 Classes of aliens authorized to
accept employment.

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(b) * * *

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

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(21) A nonimmigrant alien within the
class of aliens described in 8 CFR
214.2(h)(1)(ii)(C) or 8 CFR
214.2(h)(1)(ii)(D) for whom a
nonfrivolous petition requesting an
extension of stay is properly filed
pursuant to 8 CFR 214.2 and 8 CFR
103.2(a) requesting the same
classification that the nonimmigrant
alien currently holds. Pursuant to 8 CFR

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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

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withdrawal of the H–2A or H–2B
petition;
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Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
[FR Doc. 2023–20123 Filed 9–18–23; 8:45 am]
BILLING CODE 9111–97–P

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