Note: The following article was written by Elissa Taub, an Immigration Attorney for Siskind Susser Bland.  If you have any questions or comments regarding this piece, you can contact her at etaub@visalaw.com.  

Over the years, US agricultural employers have faced a shortage of US workers who are able, willing and qualified to fill agricultural jobs.  Those employers often turn to foreign labor to accomplish these tasks.  The H-2A temporary agricultural worker program was created to meet the agriculture industry’s need for legal seasonal and temporary labor.   The H-2A program has been used sparingly by US agricultural businesses, in part, because of the high costs and the onerous regulatory requirements and restrictions placed both on the H-2A employers and on the H-2A nonimmigrants.  

H-2A regulations are issued by both the US Department of Labor ("USDOL") and the USCIS.  USDOL’s regulations cover the labor certification process through which employers must show that there are no US workers able, willing and qualified to fill the available positions.  In late 2007, USDOL proposed its own set of minor rule changes for the H-2A program.  Once a labor certification is granted, the H-2A employer must petition USCIS on Form I-129 for approval of the visas.   

USCIS regulations cover almost every aspect of the H-2A petition process.  For instance, they limit the use of unnamed and multiple beneficiaries in a petition; require that all foreign nationals covered by one petition entered the US at a single port of entry; and limit the ability of H-2A workers to freely change employers.  To combat the deterrent effect of this regulatory scheme, USCIS has issued long-awaited proposed rule changes that aim to make the process more attractive to US employers.  Overall, these changes will hopefully make the H-2A process more user-friendly.

H-2A Portability  

One of the more interesting aspects of the proposed rule is its portability provision.  The new rule would allow H-2A workers to begin working for a new employer that is a registered user of USCIS’s E-Verify system while waiting for the approval of a petition to change employers and extend their status.  During this portability time, the worker may work for the new employer for up to 120 days from the received date on the I-797 showing that the petition to change employers was received by USCIS.  Clearly, USCIS is using this provision as an extra incentive for employers to register with E-Verify.

Land Border Exit System Pilot  

Another interesting aspect to the new rules, which is clearly aimed at ensuring the continued lawful status of H-2A workers, is the Land Border Exit System Pilot.  The Department of Homeland Security is establishing this program in recognition that, oftentimes, foreign nationals forget to surrender their I-94 cards upon departing the US .  With this new pilot program, whose details will be determine by CBP, an individual admitted on an H-2A visa at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographic and/or biometric information upon departure at the conclusion of their authorized period of stay.  USCIS also is considering including H-2B visa holders (temporary non-agricultural workers) in this pilot program.

Labor Certifications  

USCIS is using the proposed rule changes to get out of the business of evaluating labor certification applications.  At present, USCIS regulations allow an employer to submit a denied labor certification along with its H-2A petition, and USCIS has the discretion to approve the visas despite the labor certification denial.  The proposed rule ends this procedure and requires that all H-2A petitions be submitted with an approved labor certification.  

Similarly, the proposed rule will provide for the immediate and automatic revocation of an H-2A petition where USDOL revokes a labor certification in response to the employer’s violation of the terms of that labor certification.

Beneficiaries  

Current USCIS regulations require that all beneficiaries be named in the H-2A petition, which can be troublesome if last minute changes occur.  The proposed rule continues to require employers to name those employees who are currently in the US, but it eliminate the requirement for those employees located outside the US at the time of the petition.  By not having to name those employees who are located abroad, employers presumably will have more flexibility in recruiting workers who are able to begin working on the date of need.  

In addition, current regulations require all beneficiaries in a single petition to enter the US through a single port-of –entry.  USCIS seems to have realized that this requirement was not only burdensome, but also expensive, for employers who had to file multiple petitions for the same worksite because they were hiring workers who ultimately would enter the country at different ports-of-entry.  Under the proposed rule, employers could petition for all H-2A workers in a single petition regardless of their intended port-of-entry.

Payment of Fees  

In the proposed rule changes, USCIS admits its knowledge that certain job recruiters and US employers are requiring potential H-2A workers to pay job placement fees to obtain H-2A employment.  USCIS has learned that these fee payments not only are economically burdensome but also, in some instances, leads to the workers effectively becoming indentured servants.   

USCIS’ proposed rule seeks to end these fee payment by providing for the denial or revocation of any H-2A petition if it determines that 1) an alien beneficiary has paid or agreed to pay any such fee or other form of compensation, whether directly or indirectly, to the petitioner, or 2) that the petitioning employer is aware that the alien beneficiary has paid or agreed to pay a fee to any facilitator, recruiter or similar employment service, in connection with obtaining H-2A employment.  The proposed rule also provides for a thirty-day grace period in which those H-2A workers whose H-2A visas are later revoked because of this rule can obtain new employment, apply for an extension of stay or leave the US .  

In addition, the proposed rule will require three related attestations from each H-2A employer.  First, each employer must attest that it has not received and does not intend to receive any fee, compensation or other form of remuneration from the workers it intends to hire or from any person, agency or other entity.  Second, each employer would have to attest to whether it used a facilitator, recruiter or other similar employment service to locate foreign workers to fill the H-2A positions and if so, identify those facilitators, recruiters or services.  Finally, each employer will have to attest that it understands and will abide by the H-2A program requirements and limitations.

Notifications and Damages  

Presently, H-2A regulations require employers to notify USCIS when an employee does not report for work or absconds after entering the country.  These regulations impose onerous timing and information requirements with which most employers are unable to comply.  The proposed rule seeks to eliminate this problem by narrowing the notification requirements to include the following situations:  1) where an H-2A worker fails to report to work within five days of the employment start date; 2) the employment terminates more than five days early; or 3) the H-2A worker absconds from the worksite.  The new regulations will also define the term "abscond."  

In addition, the rule will increase the penalty for failing to meet the notification requirement from $10 to $500 per instance "because the $10 amount is not a sufficient deterrent against noncompliance."

Nationals of Countries That Refuse Repatriation  

The proposed rule will provide that H-2A petitions will be denied for nationals of countries that either consistently deny or unreasonably delay the prompt return of their citizens.  A list of such countries will be issued by the Department of Homeland Security.

Periods of Admission and Interruptions  

Currently, H-2A employees enjoy a 10-day grace period of lawful admission following the expiration of their visas.  The proposed rule would extend that grace period to an absolute 30 days.