DHS Proposes Changes to the H-2A Temporary Agricultural Worker Program

Earlier today, the U.S. Department of Homeland Security (DHS) announced a series of proposed changes that would enable a more streamlined hiring process for temporary/seasonal workers hired to work in the U.S. under the H-2A visa category. These modifications would accomplish a number of things, including reducing certain limitations and delays U.S employers face and enabling employers more flexibility in petitioning for multiple, unnamed agricultural workers.

The proposed changes would also extend the amount of time a temporary agricultural worker could stay in the U.S. after the end of their employment period from 10 to 30 days. The changes would reduce the time a temporary agricultural worker is required to wait outside of the U.S. before again being eligible to return under H-2A status from six to three months. Finally, the proposed changes would enable H-2A workers to shift from one H-2A employer to a new, petitioning employer prior to approval of that change by USCIS, as long as that employer is a participant in USCIS’ E-Verify program.

“These proposed changes are designed to provide an efficient and secure program for farmers to legally fulfill their need for agricultural workers within the law rather than outside the law,” said Michael Chertoff, Secretary of DHS. “This common-sense simplification of H-2A will provide farm employers with a more orderly and timely flow of legal workers, while continuing to protect the rights of laborers and promoting legal and secure methods for determining who is coming into the country.”

The proposed rule to amend the H-2A program also includes certain provisions to tighten up the security and integrity of the visa program. Changes to current regulations regarding security/integrity issues include: requiring employers to attest to the scope of the proposed H-2A employment and their use of recruiters to find H-2A workers; limiting the employers’ and recruiters’ ability to charge fees to prospective H-2A workers; getting rid of employers’ ability to file H-2A petitions without first having an approved temporary labor certification; and restricting the approval of an H-2A petition from individuals from countries that consistently refuse or unreasonably delay the repatriation of their nationals.

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