DHS Proposes Reforms to the H-2 Nonimmigrant Visa Programs

The Center for Immigration Studies (CIS) submitted a public comment last week to strengthen the U.S. Department of Homeland Security (DHS)’s proposal to reform the H-2A and H-2B nonimmigration visa programs. The proposal, titled “Modernizing H-2 Program Requirements, Oversight, and Worker Protections”, attempts to mitigate the exploitation of foreign workers by amending regulations to expand H-2 visa holders’ flexibilities; eliminate the requirement that foreign countries meet minimum compliance and cooperation standards in order for their nationals to be eligible to participate in a H-2 program; and clarify that employers may not ask workers to pay certain prohibited fees, among other reforms.

In our comment, however, CIS argued that DHS’s proposal did not go far enough to address the serious violations of labor, criminal, and immigration law that are facilitated by the H-2 programs and the federal government’s failure to engage in meaningful audits of the programs. Moreover, CIS suggested that DHS withdraw unauthorized provisions that, if promulgated, will transform the H-2 programs into “dual intent” programs by improperly encouraging temporary workers to apply for adjustment of status (green cards) while in the United States on nonimmigrant visas.

CIS also urged DHS to maintain and strengthen its standards for country eligibility in the H-2 programs, as well as impose stronger penalties on employers found to have violated existing requirements of either program. Additionally, CIS argued that rather than remove requirements that certain employers participate in E-Verify, CIS believes that DHS require all employers that hire H-2 workers to participate in the free eligibility-verification program.

Finally, CIS recommended that DHS work with the U.S. Department of Labor to make additional reforms the guestworker programs by:

• Requiring employers to pay H-2 workers higher wages;
• Requiring USCIS to prioritize the selection of H-2B petitions for employers in industries with the greatest need for workers;
• Amending DHS’s deferred action program to include only those aliens who report unauthorized employment or violations of law that result in prosecution;
• Reining in law-violators’ ability to petition for H-2 workers;
• Creating a formal complaint intake system for DOL’s website, SeasonalJobs.dol.gov; and
• Resuming and expanding worksite enforcement.

Without serious deterrence measures in place, including robust enforcement efforts, the H-2 nonimmigrant visa programs remain vulnerable to fraud and abuse.