Rachel Browning’s Legal Blog

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is implementing changes to the H-2A regulations that will simplify the hiring process of temporary and seasonal agricultural workers and facilitate the H-2A process for employers by removing certain limitations, thereby hopefully encouraging lawful employment of available foreign workers.  These changes stem from the commitment made by The Bush Administration in August 2007, after Congress failed to pass comprehensive immigration reform, to presumably deal with some of these labor shortages and challenges.  The final rule supplements the extensive reforms of the H-2A program included in the Department of Labor’s new regulations.

U.S. employers may file an H-2A petition with USCIS if they have a shortage of available U.S. workers to fill temporary or seasonal agricultural jobs. Once the petition is approved, the employers can hire foreign workers to fill those jobs for a limited period of time. The final rule includes mechanisms to enhance the integrity of the program, increase protection of U.S. workers, and protect H-2A workers from employer and recruiter abuse.

The “Final Rule” includes the following new strategies:

•      Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;

•      Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;

•      Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status;

•      Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, (as opposed to having to wait for an approval), provided the new employer is participating in USCIS’ E-Verify Program.

•      Prohibiting H-2A employers and recruiters from imposing fees on prospective H-2A workers as a condition of employment;

•      Requiring an approved temporary labor certification in connection with all H-2A petitions;

•      Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and

•      Permitting the approval of H-2A petitions only for nationals of certain countries designated as important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

·         This rule will also establish a land-border exit system pilot program requiring H-2A workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.

These reforms could serve as an important step in improving what many on both sides of the immigration debate consider is a broken and out-dated system.  Of course, it’s one thing to have new-and-improved regulations; but quite another to enforce them.  Furthermore, real and comprehensive reform will require not just new rules and regulations, but also vigilance in their compliance and enforcement, on the part of workers, employers, our elected officials, and the general public.  Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation.