Changes in immigration that impact your life.
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:
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.
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