The Department of Homeland Security (DHS) has unveiled a proposed rule that aims to modernize the H -2A agricultural worker program and the H-2B nonagricultural worker program. The proposed rule, announced on September 18, 2023, is designed to bolster worker protections and streamline various program processes.  The announcement follows on the heels of the publication last week by the U.S. Department of Labor of a proposed rule to bolster protections for H-2A farmworkers.

DHS’s proposed rule would grant whistleblower protections to H-2 workers, clarify and enforce prohibitions on employers collecting certain fees from H-2 workers, and introduce grace periods for H-2 workers seeking new employment or immigration status.

As a benefit to employers, the rule would make H-2 portability permanent, allowing all employers (not just those enrolled in the E-Verify system) facing worker shortages to hire H-2 workers already lawfully in the United States while their petitions are pending. Currently, only those employers enrolled in E-Verify may hire H-2 workers as soon as a petition is filed. Others must wait for the petition to be adjudicated.

The 60-day public comment period following the publication of the Notice of Proposed Rulemaking in the Federal Register provides an opportunity for stakeholders to contribute their perspectives on these proposed changes. Western Growers and allied organizations will be submitting comments.