On December 18, 2024, the U.S. Department of Homeland Security (DHS) published the final version of the H-2 program modernization rule. The final rule amends DHS regulations for both H-2A (temporary agricultural workers) and H-2B (temporary nonagricultural workers). While the final rule harmonizes many of the provisions between the programs, the rule also includes strict requirements and penalties for employers that violate the requirements of these programs.

Quick Hits

• DHS’s new final rule expands DHS’s authority to conduct site visits and impose penalties on employers that fail to follow the requirements of the program.
• The final rule expands H-2 worker flexibility and portability, includes expanded grace periods at the beginning and end of the H-2 petition validity period, and establishes the ability of an eligible H-2 nonimmigrant worker to begin working for a new employer upon the filing of a nonfrivolous H-2A or H-2B petition requesting an extension or amendment of stay if the H-2 worker is already in the United States in H-2 status.
• The rule also updates the rules regarding the length of time an H-2 worker must spend outside the United States to be eligible for a new three-year term and eliminates the prior calculation of “interrupted stay.”

The final rule, “Modernizing H-2 Program Requirements, Oversight, and Worker Protections,” will take effect on January 17, 2025, thirty days after its publication in the Federal Register.

DHS stated that the purpose of the...

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