Mark A Ivener, A Law Corporation

DHS Issues H-2A Final Rule

The Department of Homeland Security (DHS) has amended its H-2A regulations regarding temporary and seasonal agricultural workers and their U.S. employers. The final rule, effective January 17, 2009, lengthens the amount of time an agricultural worker may remain in the U.S. after his or her employment has ended and shortens the time period that an agricultural worker whose H-2A nonimmigrant status has expired must wait before he or she is eligible for H-2A nonimmigrant status again.

The rule also provides temporary employment authorization for agricultural workers seeking an extension of their H-2A nonimmigrant status through a different U.S. employer, provided that the employer is a registered user in good standing with the E-Verify employment eligibility verification program.

In addition, the rule modifies the current notification and payment requirements for employers when a worker fails to show up at the start of the employment period, an H-2A employee’s employment is terminated, or an H-2A employee absconds from the worksite. The rule also requires certain employer attestations and precludes the imposition of fees by employers or recruiters on prospective beneficiaries.

Under the final rule, the DHS also will revoke an H-2A petition if the Department of Labor revokes the petitioner’s underlying labor certification.

Finally, the rule establishes criteria for a pilot program under which workers admitted on certain temporary worker visas at a port of entry participating in the program must also depart through a port of entry participating in the program and present designated biographical information upon departure. U.S. Customs and Border Protection (CBP) will publish a notice designating which temporary workers must participate in the program, which ports of entry are participating in the program, and the types of information that CBP will collect from the departing workers.

Nationals from the following countries are eligible to participate in the H-2A visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

The DHS also published a notice, effective January 17, 2009, announcing the manner in which petitioners must notify U.S. Citizenship and Immigration Services regarding their employment of agricultural workers in H-2A nonimmigrant status or job placement fee information. Among other things, the regulations require H-2A petitioners to provide notification to DHS within two work days in the following instances:

  • when an H-2A worker fails to report to work within five work days of the employment start date on the H-2A petition or within five work days of the start date established by the petitioner, whichever is later;
  • when the agricultural labor or services for which H-2A workers were hired is completed more than 30 days early; or
  • when the H-2A worker absconds from the worksite or is terminated before the completion of agricultural labor or services for which he or she was hired.

The regulations also require H-2A petitioners to retain evidence of the notification filed with DHS for a one-year period beginning from the date of the notification. Petitioners who use a different employment start date than that stated on the H-2A petition must retain evidence of the changed start date and make such evidence available for inspection by DHS officers for a one-year period beginning on the newly established employment start date.

Additional Resources:
H-2A Eligible Countries

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.