U.S. Citizenship and Immigration Services (USCIS) should create a 60-day “grace period” of authorized status for H‑2A and H‑2B workers to find subsequent jobs, and it should allow the job to start as soon as a petition is filed on their behalf.

H‑2A and H‑2B workers can only receive an H‑2 visa or status to perform temporary agricultural or nonagricultural jobs if USCIS approves a petition filed on their behalf from a U.S. employer.[1] The petition is the basis for the worker’s status, meaning that if an employer no longer wants to employ them, they lose their status and right to remain in the country.[2] If they do violate their status, they can be banned from the H‑2 program for 5 years.[3] This puts H‑2 workers at a disadvantage bargaining with their employers, knowing that they cannot walk away from their position without another H‑2 employer already lined up to hire them. USCIS could help reduce this imbalance by guaranteeing that H‑2 workers will not lose their H‑2 status for at least 60 days if they quit their H‑2 job.

A grace period would allow workers to quit and find legal jobs with better pay or working conditions. This could improve working conditions for both H‑2 and U.S. workers in similar positions by encouraging market competition for workers. USCIS currently provides H‑2A workers 30 days to find subsequent legal employment at the conclusion of the H‑2A job and provides H‑2B workers 10 days,[4] but as applied now, these periods only kick in at the end of the petition validity period. If an H‑2 worker left their job early because they felt mistreated, USCIS regulations require employers to report the worker as an “absconder,”[5] and the agency to revoke the petition if the worker is no longer employed by the employer.[6] USCIS could immediately change the interpretation of the existing post-petition periods by policy memo, but a rule creating a longer grace period would produce a better policy with a stronger legal foundation.

In 2008, USCIS did create a 30-day grace period for H‑2A workers but only when USCIS terminates the petition because the worker paid a fee or because DOL revoked the employer’s labor certification.[7] In 2016, USCIS created a more useful and better reasoned 60-day grace period for E‑1, E‑2, E‑3, H‑1B, H‑1B1, L‑1, O‑1 or TN workers, saying that the period would “afford eligible high-skilled workers sufficient time following a cessation of employment to pursue other employment opportunities, seek a change or extension of status, or make the preparations necessary to depart the country.”[8] The 60-day grace period applies to any cessation of employment, empowering H‑1B workers to negotiate more fairly with their employers.

USCIS should not provide fewer protections to H‑2 workers who generally have far fewer resources—financially or otherwise—in the United States than to highly paid H‑1B workers. USCIS should treat both groups equally and create a grace period for H‑2 workers. At the same time, the only way to make a grace period workable given the bureaucratic reality is to allow H‑2 workers changing jobs to start working as soon as their new employer files a petition on their behalf, which is also the case for H‑1B workers. Without this provision, the grace period would almost always run out before the H‑2 petition is approved.

During the COVID-19 emergency, USCIS introduced temporary rules to permit H‑2 employment on the date that USCIS acknowledges receipt of an H‑2 petition for workers in industries critical to the food supply. USCIS states that the temporary rules were intended “to provide agricultural employers with an orderly and timely flow of legal foreign workers, thereby protecting the integrity of the nation’s food supply chain and decreasing possible reliance on unauthorized aliens.” But the emergency only highlights the preexisting need to make these rules permanent for all H‑2 workers. Nothing in the goals of the temporary rules is limited to an emergency setting. Creating greater H‑2 portability would benefit both employers and employees alike.

Simultaneously, USCIS—which has joint rulemaking authority over the H‑2B labor certification program—and DOL should also fast-track labor certifications for H‑2 workers already in the United States to facilitate easier transitions between H‑2 jobs. All H‑2 certification applications for workers in the United States should be treated as emergency requests not subject to the normal filing deadline.[9] Taken together, the grace period, faster labor certification processing, and immediate work authorization based on an approved petition would create a more competitive environment for H‑2 workers, allowing them to assert their rights and find the most economically productive employment in the United States.

This was submitted as part of a comment on USCIS’s Federal Register request for comments on ways to improve legal immigration.