Even the H-2 Visas Are Getting Modernized: What Does This Mean for Skilled and Unskilled Workers?

As the immigration system in the United States continues to undergo scrutiny, it is slowly evolving one category at a time. Most recently, on September 18, 2023, the Department of Homeland Security issued a proposed rule to bring the H-2 Temporary Visa Program up-to-date, strengthening protections for these workers and making other much-needed changes. What does this modernization attempt mean for skilled and unskilled workers? We’ll break down the changes here.

The H-Visa Categories

What are the “H” visa categories, anyway? The US uses this system as a way to permit employers to hire foreign workers while still ensuring the American economy and the general workers are not harmed in the process.

There are different types of work visas, each geared towards a distinct employment class. The H-1B visa is one of the most popular, as it allows employers to hire skilled foreign nationals for specialty occupations temporarily. This category is highly policed, as beneficiaries and employers must meet specific requirements, including pay minimums and benefits. There is a set number of these visas allotted each year unless the employer is cap-exempt. (The H-1B visa is a variant of the H-1B but applies only to nationals of Chile and Singapore.)

The H-2 visa is a category designed for temporary immigrants seeking seasonal agriculture or other short-term work. H-2A visas are allocated to temporary agricultural workers, and H-2B visas are given to temporary workers who perform other services or labor that is temporary or seasonal in nature.

To qualify for any of these categories, the petitioner (employer) must prove that there aren’t enough workers in the US who are available, willing, and qualified to do the job and that hiring these foreign nationals won’t adversely affect the working conditions or wages of US workers employed in similar positions.

Provisions for H-2 Visa Workers

H-1B workers have long been seen as essential workers providing highly skilled talents that expand the US economy. Because of this, these workers have regulations in place that ensure they receive high wages commensurate with their job, experience, and qualifications (and paid back to the US in the form of applicable taxes). In short, H-1B visa holders benefit from nearly all work and home policies as their American counterparts.

But there haven’t been as many protections granted to H-2 visa holders. They’ve had no whistleblower protections from misconduct from employers or colleagues, as well as an outdated code of conduct. However, thanks to the new measures taken by DHS, that is changing.

Modernized Temporary Worker Programs

The Department of Homeland Security’s new notice of proposed rulemaking (NPRM), published on September 18, 2023, included suggested changes that would improve and modernize the H-2A and H-2B visa programs.

With these changes, workers would have more flexibility in their employment and living situations. Protections against exploitative conduct, including the rights provided to whistleblowers, would be added.

Making the program more flexible will allow more temporary workers to help address the significant American worker shortage. Additionally, this category of worker is often vulnerable in their careers and exposed to poor working conditions and low wages, even with the visa requirements. Instead of reporting these poor working environments, the workers often keep quiet for fear of losing their visas.

Employers filing for a Petition for a Nonimmigrant Worker (Form I-129) attest that there are not enough qualified workers in the US willing and available to fill the position. They also attest that hiring foreign workers won’t adversely affect the working conditions or payscale of current workers employed in similar positions in the country.

With the new proposed regulations, violators of the H-2B requirements may become ineligible for the visas available. The rules also clarify the consequences that an employer would incur should they attempt to collect fees from employees in exchange for the job. H-2 workers should not incur debts or be abused by employers to obtain work. Additionally, H-2 workers will have an extended grace period to find new employment or change their immigration status.

Employers also benefit from the proposed changes. H-2 portability would be a permanent adjustment, letting employers who have worker shortages hire H-2 workers currently in the US legally while awaiting the new H-2 petition’s approval.

What’s Next?

Both the H-1B and H-2 programs continue to grow, and demand for these limited visas remains high. We can continue to expect changes under the Biden Administration as access to the H-2 program expands as part of the strategy to address worker shortages.

In the meantime, skilled workers seeking temporary and possibly permanent entry into the US can work with our legal experts at Visa2Us to navigate the changing legislation. Our professional attorneys are available all day, every day, to ensure you have answers to your questions and suggestions on how to move forward with your career goals quickly.

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H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

I-485 Adjustment of Status

I-485 Adjustment of Status

Submit a form I-485 application to apply for lawful permanent resident status.

National Interest Waiver (NIW)

National Interest Waiver (NIW)

An applicant must either hold an advanced degree or have an exceptional ability in their field that would substantially benefit the U.S. to be qualified.