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H2B Visa - What impact did the DHS’ final rule have on H2B visa requirements?

 

Late last year, the Department of Homeland Security (DHS) published a final rule, “Changes to Requirements Affecting H-2B Nonimmigrants,” which gave the Secretary of Homeland Security the authority to publish a list of ‘designated’ countries whose residents could be beneficiaries of H-2B visas. The initial list, published in January, lists countries that are ‘essential’ for the H-2B program’s success and have indicated their cooperation in the repatriation of any of their residents that have received final orders of removal from the US.

 

Under current regulations, only nationals of the countries on this list (or those that have made special arrangements with DHS) may apply for and be approved for H-2B status.

 

Why did the DHS publish this rule?

 

The DHS final rule is meant to strengthen the integrity of the H-2B program, and encourage and facilitate the lawful employment of foreign workers, as well as provide important protections to both US and foreign workers.

 

The DHS H-2B country list was publishes as a notice in the Federal Register and became effective January 18, 2009. The comments to the notice clarify that the list is valid for one year from its effective date. Presumably, DHS will publish the list of eligible countries each year in a notice in the Federal Register.

 

In this article we will discuss the additional requirements for the foreign nationals participating in the H-2B visa program who are not from a country on the list of eligible countries.

 

Recap of the basics of the new H-2B Visa Program:

Residents of the following countries are eligible to participate in the H-2B program for the coming year (through January 18, 2010):

 

Argentina	Australia	Belize
Brazil	Bulgaria	Canada
Chile	Costa Rica	Dominican Republic
El Salvador	Guatemala	Honduras
Indonesia	Israel	Jamaica
Mexico	Moldova	New Zealand
Peru	Philippines	Poland
Romania	South Africa	South Korea
Turkey	Ukraine	United Kingdom

 

Additional requirements for beneficiaries who are not from a country on the list of eligible countries:

 

In the instance of an employer who intends to hire a foreign national from a country not currently listed, the employer will have the burden of presenting additional documentation in support of the petition. This evidence includes:

 

In adjudicating the petition the USCIS will take into consideration the potential for abuse, fraud, or other harm to the integrity of the H-2B program through the potential admission of a beneficiary from a country not currently on the list; and consideration of such other factors as may serve the US interest.

 

Let’s now take a look at some of the other key areas of the DHS final rule and its subsequent impact on both employers and their potential employees.

 

Key areas of reform covered in the Final Rule include:

• Allows H-2B petitioners to specify only the number of positions sought and not name the individual aliens except where an intended alien beneficiary is already present in the United States, or where an alien is from a country not eligible for participation in the H-2B program;
• Reduces from six months to three months the time an H-2B worker who has spent three years in the US in H-2B status must reside and be physically present outside the United States before he or she is eligible to obtain a new H-2B visa and return to the US;
• Reduces the period of time a foreign national must spend outside the US to interrupt the accrual of time towards the 3-year maximum period of stay in H-2B status;
• Prohibits H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;
• Requires an approved temporary labor certification in connection with all H-2B petitions;
• Beginning with petitions filed for H-2B workers for Fiscal Year 2010, prohibits H-2B petitioners from requesting an employment start date on the Form I-129, "Petition for a Nonimmigrant Worker," that is different than the date of need stated on the approved temporary labor certification;
• Amends the definition of "temporary services or labor" to allow US employers and eligible foreign workers the maximum flexibility to complete projects that could be for a specific one-time need of up to 3 years, without demonstrating extraordinary circumstances;
• Requires employers to notify USCIS when H-2B workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite;
• Permits the approval of H-2B petitions only for nationals of certain countries designated as participating countries by the Secretary of Homeland Security, in consultation with the Secretary of State, and appearing on a list to be published annually in the Federal Register;
• Delegates to the Department of Labor the statutory authority to impose certain administrative remedies and/or penalties where a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentations of a material fact in such petition is found; and
• Establishes a land-border exit system pilot program, which requires H-2B workers admitted through a port of entry participating in the pilot program to also depart through a participating port and to present designated biographic and/or biometric information upon departure.

 

Conclusion:

 

The net effect of the new rule appears to benefit foreign nationals seeking to enter the US in H-2B status, however it will be harder to gain approval of a petition for an alien not from a country on the approved list. Unfortunately, neither DHS nor DOL has given us any idea as to how we are supposed to show that you cannot find a qualified employee in the US or one of the designated countries. We will continue to watch the situation and let you know as soon as we find out anything.