DHS attempting to improve certain visa processes

Atlanta, GA – There was immigration news from the federal government related to the temporary visa process and worker protections.

Department of Homeland Security attempting to make changes to some visas

The Department of Homeland Security (DHS) announced a significant step towards enhancing worker protections and modernizing the H-2A temporary agricultural and H-2B temporary nonagricultural worker programs on September 18, 2023 [1]. The proposed rulemaking aims to improve the efficiency and flexibility of these programs while providing better safeguards for temporary workers.

Secretary of Homeland Security Alejandro N. Mayorkas emphasized the vital role played by H-2A and H-2B visa recipients in seasonal and agricultural sectors and outlined the proposed reforms as essential for addressing worker shortages and ensuring worker protections. The reforms also align with the Biden-Harris administration’s commitment to safeguarding the American economy, security, and values.

The H-2 programs allow U.S. employers to hire foreign nationals for temporary positions when there’s a shortage of qualified American workers. Employers must file Form I-129 and obtain certification from the Department of Labor, demonstrating the unavailability of U.S. workers and the absence of adverse impacts on wages and working conditions.

Key highlights of the proposed rule include:

• Protection Against Exploitation: Employers who violate program requirements, including failing to adhere to program rules, may become ineligible for visas. The proposed rule strengthens the prohibition on employer-imposed fees, preventing the collection of such fees from H-2 workers to avoid exploitative debts.
• Flexibility for H-2 Workers: The rule enhances worker flexibility by extending grace periods for job-seeking, preparation for departure from the U.S., or seeking a change in immigration status, ensuring increased clarity and protection for H-2 workers.
• Permanent H-2 Portability: The rule offers benefits to employers by making H-2 portability permanent, allowing employers to hire H-2 workers already in the U.S. while their petitions are pending, thereby addressing labor shortages more effectively.
• Whistleblower Protections: The proposed rule includes whistleblower protections to shield workers from exploitative employer conduct.

The growth of the H-2 programs in recent years prompted this modernization effort, aligning with the Biden-Harris Administration’s broader strategy to manage migration safely and address labor shortages facing U.S. businesses.

Following the release of the notice of proposed rulemaking (NPRM), a 60-day public comment period will commence, providing stakeholders and the public an opportunity to provide feedback and input on the proposed changes. These reforms are poised to enhance the H-2 programs, ensuring they remain effective tools for addressing labor shortages while prioritizing worker rights and protections.

What kind of visas are available for temporary workers in the United States?

The United States offers several types of visas for temporary workers to meet the diverse labor needs of its economy. These visas are designed to allow foreign nationals to work in the U.S. temporarily, often in occupations where there is a shortage of qualified American workers. Here are some of the key types of visas available for temporary workers in the United States:

• H-1B Visa: The H-1B visa is for foreign workers in specialty occupations that require a high level of specialized knowledge, typically in fields like technology, engineering, or medicine. It is often used by employers to hire skilled professionals for a specific job.
• H-2A Visa: The H-2A visa is specifically for temporary agricultural workers. It allows U.S. employers to bring in foreign agricultural workers to fill seasonal or temporary jobs in farming and related industries.
• H-2B Visa: The H-2B visa is for temporary nonagricultural workers. Employers can use this visa to hire foreign workers for nonagricultural jobs, such as landscaping, hospitality, construction, and manufacturing, when they can’t find qualified American workers.
• L-1 Visa: The L-1 visa is for intracompany transferees. It allows multinational companies to transfer certain employees from their foreign offices to their U.S. offices for a temporary period. There are two categories: L-1A for managers and executives, and L-1B for employees with specialized knowledge.
• TN Visa: The TN visa is available to Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA), formerly known as NAFTA. It allows professionals in certain occupations to work temporarily in the U.S.
• O Visa: The O visa is for individuals with extraordinary ability or achievement in fields such as science, arts, education, business, or athletics. It’s often used for performers, researchers, and professionals at the top of their respective fields.
• P Visa: The P visa is for athletes, entertainers, and artists coming to the U.S. temporarily to perform, compete, or work in their field. There are various P visa categories, including P-1 for athletes and teams, P-2 for artists and entertainers in reciprocal exchange programs, and P-3 for culturally unique performers.
• E Visa: The E visa is for treaty traders (E-1) and treaty investors (E-2) from countries with which the U.S. has a relevant treaty. It allows individuals to engage in trade or invest a substantial amount of capital in a U.S. business.
• J-1 Visa: The J-1 visa is for exchange visitors who come to the U.S. to participate in approved exchange programs. These programs can cover a wide range of activities, including study, research, teaching, and cultural exchange.
• H-3 Visa: The H-3 visa is for individuals coming to the U.S. to receive training that is not available in their home country. It’s often used for trainees in various fields, from agriculture to healthcare.

These are some of the main categories of temporary worker visas available in the United States. Each visa type has specific eligibility criteria and requirements, and the application process can be complex. Employers seeking to bring in temporary workers typically need to submit petitions on behalf of the foreign workers, and it’s important to ensure compliance with U.S. immigration laws and regulations throughout the process.

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Firm contact info:

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404-816-8611

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Sources:

1. https://www.dhs.gov/news/2023/09/18/dhs-issues-proposed-rule-modernize-h-2-temporary-visa-programs-and-strengthen