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Changes in immigration that impact your life.
Q & As: USCIS to Streamline H-2B
Visa Procedures
December 18, 2008
When U.S. employers have a shortage of available U.S. workers to fill
temporary nonagricultural jobs, they may file an H-2B petition
with U.S. Citizenship and Immigration Services (USCIS) for permission
to employ foreign workers to perform that work in the United States.
Once the petition is approved, eligible workers may be admitted to the
United States in H-2B nonimmigrant status.
On Aug. 20, 2008, USCIS announced a number of proposed rule changes to provide
U.S. employers with a streamlined process to hire temporary non-agricultural
workers under the H-2B program. USCIS provided a 30-day comment period in the
proposed rule, which ended on Sept. 19, 2008. USCIS received 119 comments.
After considering the comments, USCIS has modified some of the proposed changes
and finalized the rule, adopting many of the regulatory amendments set forth
in the proposed rule.
QUESTIONS AND ANSWERS
Q: What is the H-2B classification?
A: The H-2B nonimmigrant classification applies to aliens seeking to perform
non-agricultural labor or services of a temporary nature in the United States.
The H-2B petition must establish that the petitioner’s need for the services
or labor is temporary, regardless of whether the underlying job can be described
as permanent or temporary. The petitioner’s need is considered temporary
if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent
need.
Q: What is the process for obtaining H-2B status?
A: Prospective employers of H-2B workers must first obtain certification from
the U.S. Department of Labor (DOL) (or Governor of Guam) that (1) there are not
sufficient U.S. workers who are able, willing, qualified, and available to do
the temporary work; and (2) the employment of H-2B aliens will not adversely
affect the wages and working conditions of similarly employed U.S. workers. H-2B
workers are employment authorized for a period not to exceed the period of employment
certified by DOL (or Governor of Guam).
Once the employer has obtained an approved temporary labor certification, the
employer may file a Form I-129, "Petition for a Nonimmigrant Worker," with
USCIS to classify the individual as an H-2B worker. If the petition is approved,
the worker may apply for an H-2B visa at a U.S. embassy or consulate abroad.
If the worker is already in the United States and in a valid nonimmigrant status,
the petitioner may also request a change of nonimmigrant status to H-2B or an
extension of the worker’s current H-2B nonimmigrant stay.
Q: Can an H-2B worker extend his or her stay?
A: An employer may request that USCIS extend a beneficiary’s H-2B stay
on the basis of a temporary labor certification with the same or a new employer
for an uninterrupted period of up to three years in H-2B status.
Q: Which proposed amendments are adopted in the final rule?
A: The final rule retains several provisions from the proposed rule without any
further changes:
- Reduces from six months to three months the time an H-2B worker who
has spent three years in the U.S. must reside and be physically present
outside the United States before he or she is eligible to re-obtain
H-2B status;
- Prohibits H-2B employers and recruiters from imposing certain fees
on prospective H-2B workers as a condition of securing employment;
- Eliminates USCIS’ current authority to adjudicate H-2B petitions
where the Secretary of Labor or the Governor of Guam has not granted
a temporary labor certification;
- Enhances employer sanctions by imposing debarment provisions. If
the Department of Labor finds that a petitioner substantially failed
to meet any of the conditions of the H-2B petition or willfully misrepresented
a material fact in such petition, USCIS may deny certain petitions
filed by that petitioner for a period of at least 1 year but not more
than 5 years. This debarment process is covered by the Department of
Labor’s final H-2B regulations, which are being published in
the Federal Register on [date]. H-2B employers who have been
debarred by the DOL under these provisions are ineligible to obtain
a temporary labor certification for the period determined by DOL. Because
a temporary labor certification is required to qualify for H-2B classification,
these employers will not be eligible to file H-2B petitions during
the DOL imposed debarment period.
- Beginning with petitions filed for workers for Fiscal Year 2010,
prohibits H-2B employers from requesting an employment start date on Form
I-129 that is different from the date of need stated on the accompanying
approved temporary labor certification;
- Clarifies USCIS’ authority to issue a notice of denial or revocation
of a Form I-129 if USCIS determines that the statements on the petition
or application for labor certification are inaccurate or fraudulent,
or misrepresent a material fact;
- Establishes a land-border exit system pilot program under which H-2B
workers admitted through a participating port of entry must also depart
through that participating port of entry and present, upon departure,
designated biographical information, possibly including biometric identifiers;
- Amends the current definition of "temporary services or labor" to
include a specific one-time need of up to three years, without requiring
the employer to demonstrate extraordinary circumstances;
- Reduces the minimum period spent outside the United States that would
be considered interruptive of accrual of time towards the three-year
limit; and
- Allows the substitution of beneficiaries who were previously approved
for consular processing, but have not been admitted, with aliens who
are currently in the United States.
Q: What modifications from the proposed rule are included in the
final rule?
A: Among other things, the final rule will:
- Remove the separate attestation requirement contained in the proposed rule
and amend the Form I-129, "Petition for Nonimmigrant Worker," to
include the attestation provisions.
- Offer H-2B petitioners a means to avoid denial or revocation of the H-2B
petition in cases where USCIS determines that the petitioner discovers after
filing that the worker paid or has agreed to pay to a third party prohibited
fees as a condition of obtaining H-2B employment.
- Permit the approval of H-2B petitions only for nationals of certain countries
important to the operation of the program and appearing on a list to be published
annually in the Federal Register. The initial list of participating
countries to be published simultaneously with the Final Rule includes Mexico,
Jamaica, and 26 others. DHS may allow on a case-by-case basis a worker from
a country not on the list to be eligible for the H-2B program if such participation
is in the U.S. interest;
- Require H-2B employers whose petitions have been denied or revoked based
on the payment of prohibited fees to demonstrate, as a condition of approval
of H-2B petitions filed within one year of the denial or revocation, that
the H-2B workers have been reimbursed or the H-2B workers cannot be located
despite the petitioner’s reasonable efforts.
- Require petitioners to provide notification to USCIS within 2 work days
in the following instances: (a) where an H-2B worker fails to report to work
within five work days of the employment start date on the H-2B petition;
(b) where the non-agricultural labor or services for which H-2B workers were
hired is completed more than 30 days earlier than the end date stated on
the H-2B petition; or (c) where the H-2B worker absconds from the worksite
or is terminated prior to the completion of the non-agricultural labor or
services for which he or she was hired;
- Provide that an employer may not file an H-2B petition more than 120 days
before the date of the employer’s actual need for the beneficiary’s
services or labor, as identified on the temporary labor certification. This
ensures consistency between USCIS and DOL regulations.
- Provide USCIS the flexibility to require H-2B petitioners to name beneficiaries,
if located outside the United States, in the event that Congress reauthorizes
the returning worker provisions or enacts similar legislation exempting certain
H nonimmigrants from the numerical limits.
- Not adopt the proposed provision to preclude an alien from being accorded
H-2B status if USCIS finds that the alien has, at any time during the past
5 years, violated any of the terms or conditions of the current or previously
accorded H-2B status, other than through no fault of the alien.
Q: What effect will the new rule have on the H-2B cap?
A: The Immigration and Nationality Act, as amended, provides an annual limitation
(or "cap") on the number of aliens who may be accorded H-2B nonimmigrant
status to 66,000 per fiscal year, with 33,000 aliens allocated H-2B nonimmigrant
status the first half of the fiscal year and 33,000 allocated the second half
of the fiscal year. This final rule does not increase the H-2B cap limits, nor
does it change the H-2B visa allocation process under the cap.
Q: How will the final rule protect the rights of U.S. and alien workers?
A: The rule will no longer allow U.S. employers to file an H-2B petition unless
the Secretary of Labor or the Governor of Guam has granted a temporary labor
certification. As noted above, if an H-2B worker was charged a fee by the petitioner
as a condition of securing the employment, or if a labor recruiter, with the
knowledge of the petitioner, demanded a payment from a worker as a condition
of selection for the petitioner’s H-2B workforce, the rule will provide
USCIS the authority to deny or revoke the petition. As a precondition to approval
of any subsequent H-2B petitions filed within one year of the denial or revocation,
the employer would have to show that it reimbursed the alien for such fees or
that the H-2B worker cannot be located despite the petitioner’s reasonable
efforts to do so.
Q: How will the final rule strengthen enforcement and ensure the integrity
of the H-2B program?
A: The Final Rule will permit the approval of H-2B petitions only for nationals
of certain countries important to the operation of the program and appearing
on a list to be published in the
Federal Register. In adding new countries
to the list in order to allow the participation of their nationals in the program,
DHS will consider a variety of factors, including a country’s cooperation
with respect to the issuance of travel documents for individuals subject to a
final order of removal. It also requires that employers notify USCIS when an
H-2B worker fails to show up for work, is fired, or absconds. Finally, the rule
will establish a land-border exit system pilot program under which H-2B workers
admitted through a port of entry participating in the program must also depart
through a port of entry participating in the program and present, upon departure,
designated biographical information, possibly including biometric identifiers.
Q: When will the final rule go into effect?
A: The rule will go into effect 30 days from the date of the publication in the
Federal
Register. Existing H-2B regulations and policies will remain in effect until
the effective date of the final rule.
Q: Will the Department of Labor be publishing a final rule addressing
the H-2B program as well?
A: Yes. As noted above, the Department of Labor’s final rule was posted
in the
Federal Register on Dec. 18, 2008, and is scheduled to be published
on Dec. 19, 2008. It will go into effect on Jan. 18, 2009.
Q: Where can I locate information regarding the current proposed rule
addressing the H-2B program?
A: The final rule can be reviewed on the USCIS Web site.