The Department of Homeland Security (DHS) has issued a final rule, “Modernizing H–2 Program Requirements, Oversight, and Worker Protections,” which introduces significant updates to the H-2A and H-2B visa programs. Effective January 17, 2025, the rule aims to bolster program integrity and strengthen worker protections while introducing greater flexibility for both workers and employers. 

Key Enhancements to Worker Protections 

• Fee Prohibitions: 
  • Employers, recruiters, and agents are expressly prohibited from charging fees to workers for H-2 employment. This includes penalties for contract breaches. 
  • Workers may only incur costs that are personal and voluntary, such as passport fees, while employers are responsible for reimbursing required expenses like visa fees. 
• Whistleblower Safeguards:
  • The rule extends protections to workers who report program violations, guarding them against retaliation and aligning H-2 protections with those already established for H-1B workers. 
• Increased Oversight: 
  • Employers must now comply with enhanced compliance reviews, including on-site inspections. Non-cooperation or failure to provide requested information can result in petition denial or revocation. 

New Worker Flexibilities 

• Extended Grace Periods: 
  • Workers are granted up to 10 days before the start and 30 days after the end of their employment authorization. Additionally, terminated workers have a new 60-day grace period to find new employment or prepare for departure. 
• Job Portability: 
  • Workers may begin new employment upon filing of a petition by a new employer, streamlining workforce transitions and minimizing disruption. 
• Employment Termination Protections: 
  • The rule removes language around “abscondment,” clarifying that worker departure from employment alone does not imply wrongdoing. 
• Clarifying “Dual Intent” for Green Card Applicants: 
  • The rule provides assurance that H-2A workers seeking to adjust their immigration status through the PERM, EB-3, or other “green card” pathways will not be penalized for steps taken to obtain lawful permanent residency. Workers will not be deemed to have violated their H-2A status solely for initiating or pursuing these processes. 

Employer Compliance and Integrity Measures 

• Stricter Petition Denials: 
  • Employers with a history of labor law violations or fraudulent practices may face mandatory denials of petitions for up to three years. 
  • Discretionary denials are also permitted for employers failing to demonstrate intent or ability to comply with program requirements. 

• Streamlined Rules: 
  • The rule simplifies procedures, such as reducing the time workers must spend outside the U.S. to reset the three-year H-2 status clock from three months to 60 days.  

New Form I-9

Due to the changes, there will be a new I-129 in effect 30 days after publication, January 17, 2025. Current forms will not be accepted after that date. A new form will be published soon on uscis.gov. WG will circulate updated information once available. 

What This Means for Agricultural Employers 

Some of these changes are expressions of existing law. Other changes signify increased accountability and enhanced protections within the H-2A program.  As always, employers using the H-2A program must maintain rigorous compliance standards. 

Western Growers is here to assist its members in understanding and implementing these changes. Members seeking to gain access to a reliable and legally compliant workforce are eligible to use the expert H-2A application filing assistance offered by Western Growers H-2A Services. If you have questions or need support, please contact our team.