September 20, 2023

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The Department of Homeland Security (DHS) recently proposed a rule to modernize and reform the H-2A and 2B nonimmigrant worker programs. Since its proposal, the White House Office of Management and Budget reviewed and approved the rule. These reforms intended to provide more protections for these temporary workers. According to the reform, it would improve working conditions, pay, and other factors.

The H-2A program is a vital source of labor for many employers in the agricultural sector. This fact has proven more crucial as employers have increased their need for these workers. In the 2021 fiscal year, the Department of Labor (DOL) certified 317,000 workers in this program. However, the program faces considerable criticism. Despite its popularity, some have complained that it allows employers to abuse and exploit migrants.

The DOL finalized a rule to address these concerns in October 2022. It intended to improve protections for migrant farm workers. Such protections included safe housing and updating bond requirements. These changes would ensure that guest workers receive the correct pay owed to them.

The rule would accomplish the following:

• Improve safety and health protections for workers housed in rental or public accommodations. 
• Streamline and update bond requirements for labor contractors to better hold them accountable; clarify joint-employer status for employers and associations. 
• Clarify the housing certification process to allow state and local authorities to conduct housing inspections. 
• Establish explicit authority to debar attorneys and agents for their misconduct, independent of an employer’s violations. 
• Make electronic filing mandatory for most applications to improve employers’ processing efficiency.
• Modernize the methodology and procedures for determining the prevailing wage to allow state workforce agencies to produce more prevailing wage findings.

Should the DHS’s proposal publish as a final rule, it would provide many protections for H-2A and 2B workers. It also intends to reduce the inefficiencies of the program. Accompanying it is a proposal by the DOL. The DOL plans to provide protections for temporary agricultural workers. However, this rule is still under review by the White House.

Employers should make necessary adjustments to their employment policies in preparation for the DHS’s rule taking effect. They should also prepare for the complications often accompanying the hiring process, such as the employment eligibility verification (Form I-9) process. Due to the ever-shifting regulations, this process has proven challenging and riddled with litigation.

The best way to correctly complete Form I-9 is to use an electronic I-9 management system. This system will guide employers through the entire process, store the forms, and provide alerts when action is needed to maintain compliance.

Streamline your hiring process with an automated employment eligibility verification and ensure compliance today with I-9Compliance.

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