On Dec. 18, 2024, the Department of Homeland Security (“DHS”) published a rule entitled Modernizing H-2 Program Requirements, Oversight, and Worker Protections, 89 FR 103202 (December 18, 2024) (“Final Rule”) with an effective date of January 17, 2025. This rule impacts BOTH H-2A and H-2B employers .
This Final Rule, among other things, provides that DHS must deny H-2 petitions of employers who have been debarred from the H-2 programs by the Department of Labor or have had an H-2 petition revoked by DHS for willful misrepresentation of a material fact in the petition, or have been found to have criminally employed an alien.
In addition, the Final Rule gives DHS discretionary authority to deny H-2 petitions of employers who have been found by another agency to have committed any labor law violation, with a three year look back. In determining if the violations above rise to the level of USCIS denying a petition they will look at a case-by-case basis of the following:
(i) The recency and number of violations;
(ii) the egregiousness of the violation(s), including how many workers were affected, and
whether it involved a risk to the health or safety of workers; overall history or pattern
of prior violations;
(iii) the severity or monetary amount of any penalties imposed;
(iv) whether the final determination, decision, or conviction included a finding of
willfulness;
(v) the extent to which the violator achieved a financial gain due to the violation(s), or
the potential financial loss or potential financial injury to the workers;
(vi) timely compliance with all penalties and remedies ordered under the final
determination(s), decision(s), or conviction(s); and
(vii) other corrective actions taken by the petitioner or its successor in interest to cure its
violation(s) or prevent future violations.
This presents problems with the additional discretion for DHS to further examine facts of infractions without clear lines and includes within their definition of “willfulness” as “knowing” and/or “reckless disregard” rather than the traditional “intent” requirement to meet this standard.
Finally, if DHS finds that an H-2 worker paid an “illegal” fee for the job opportunity or that an employer has not taken affirmative actions to ensure no fees have been paid, and if fees have been paid and the H-2 worker has not been reimbursed (regardless of to whom the fee was paid), the employer could face denial of their H-2 petition for up to 5 years. Even employers that have recruiters under contract that prohibit these sorts of fees is not enough under this rule, more “due diligence” which is ill defined will be required. Complication matters worse, fees required by corrupt individuals within foreign governments will expose liability to employers according to the rule and we have evidence of that in Guatemala (see Appendix A).
We are seeking to invalidate the Final Rule by challenging DHS’s authority to usurp other Executive agencies final determinations on labor law violations to impose additional unbargained-for penalties after the fact. Often employers choose to settle rather than fight an investigation into their business practices because it makes good economic sense to end the investigation. DHS should not, and cannot under its statutory authority, be misusing economic decisions when adjudicating an immigration benefit.
In addition, the “illegal” fees that are collected from third parties in the recruitment chain cannot be an employer’s responsibility. DHS is attempting to make employers strictly liable for these “illegal” fees that are charged by individuals and government actors and that are many steps removed from the employer’s control. This is wrong and cannot be held against an employer who has no reason to know about the “illegal” fees that may have been charged and has no way to prove a fee has not been charged other than the word of an H-2 worker.
Through this action we are seeking to expedite the summary judgment phase of litigation and have a hearing on the merits as quickly as possible, also reaching out to the Trump Administration to rescind this rule promptly. When we are successful, this illegal and unconstitutional rule will be vacated and DHS will return to the statutory function of determining the admissibility of non-immigrants, instead of transforming itself into another labor law enforcement agency.
The Federation of Employers and Workers of America (FEWA), National Association of Landscape Professionals (NALP), Outdoor Amusement Business of America (OABA) and the Seasonal Employment Alliance (SEA) will be filing suit against the Biden Administration prior to President-Elect Trump taking office, for strategic legal and political reasons.
We are looking, not to necessarily add Plaintiffs at this point (if interested please let us know) but to contribute financial assistance to our efforts. Donations of $5,000 or more will be provided:
- Participation in calls with our legal team
- Provided regular written updates
- Credit with your membership for your participation in these efforts by listed as a “Contributor” on written updates
We encourage and anticipate other national and state associations, H2 agents, and employers to assist in funding the litigation efforts through the Save H2B Fund. Any amount is appreciated. Checks can be made payable to:
Save H2B Fund
Attn: Arnulfo Hinojosa
2901 Bucks Bayou Road
Bay City, TX 77414
For more information contact Arnulfo Hinojosa (FEWA)