From the
Editor's Desk
It's the end of summer and we're back with lots of new and interesting information and important updates from the world of the H-2B. One thing we know for sure: employers wishing to hire foreign workers to fulfill their seasonal work requirement must be having a great time! And even the workers would be pleased. The reason..? Well, for the first time in the recent history of immigration the H-2B Cap has been opened for two periods. The USCIS is still accepting H-2B visa petitions for the second half of fiscal year 2009 and is also accepting petitions for the first half of fiscal year 2010.
On September 8, 2009, USCIS updated the count for H-2B petitions received and counted towards the H-2B cap for fiscal year 2010 employment. Because there are still visas available for the second half of fiscal year 2009 USCIS reopened the filing period, however, these petitions must be filed and adjudicated by September 30, 2009. If you have any desire to use these open slots there is little time left in which to apply. USCIS is currently accepting petitions for the 2nd half of fiscal year 2009 and the 1st half of fiscal year 2010.
The other major news item in the H-2B world this month is the issuance of a clarification by USCIS. On August 29 USCIS issued a notice regarding the filing of "master" petitions by associations for their members. The notification was issued to provide additional information to the public on the regulatory requirements for associations acting as agents for non-agricultural temporary employees. USCIS hopes that this clarification will help employers and associations avoid unnecessary denials of individual H-2B petitions that may be otherwise approvable.
USCIS has seen an increase in a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than file an individual petition some employers have joined other members of an association in seeking H-2B non-agricultural workers via a "master" petition filed by their association. Because of the exiting regulatory scheme for H-2B workers most associations cannot meet the definition of "employer." USCIS noted that "whether any association meets the requirements to file an H-2B petition as an agent, the burden is on the association, as the petitioner, to demonstrate that the type of workers sought in their petitions are either traditionally self-employed and/or that the alien beneficiaries of the petition use agents to arrange short-term employment on their behalf with numerous employers.
Absent a showing in the H-2B petition that such workers meet either of these two criteria, a petition filed by an industry association would be subject to denial." USCIS did note that many of these petitions would be approvable if they were filed by the individual employers. The USCIS did go on to say that any cases involving "master" petitions that may have been inadvertently approved will not be subject to revocation, unless there is a showing of some other error, fraud or misrepresentation.
In some general immigration news of note, President Obama is still pushing for comprehensive immigration reform. While he does not think that a reform bill can be passed by the end of the year he is confident that draft legislation can be completed so that Congress can take it up after their Christmas break. We will keep an eye on this for you.
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News Bulletin
H-2B Visas Still Available for Second Half of FY2009 and First Half of FY2010
The USCIS has recently updated the count of H-2B visa received and counted towards the FY2010 employment. On August 6, 2009 USCIS announced that it had reopened the filing period for fiscal year 2009. There are still visas available for the second half of fiscal year 2009. However, these petitions must be filed and adjudicated by 30 September 2009. Therefore, there is little time in which to apply. USCIS is currently accepting petitions for the 2nd half of fiscal year 2009 and the 1st half of fiscal year 2010.
DOL Announces Public Briefings on Using the New H-2B Temporary Labor Certification
DOL will hold two public briefings in Boston and Chicago on using the new H-2B temporary labor certification process for occupations other than agriculture or registered nursing.
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Featured Article
Working on H-2B Visa - Know the Do's and Don'ts of the Workplace
This month's feature article lay out many of the 'Dos and Don'ts of the Workplace for H-2B visa holders.' We have often come across situations where new workers lack basic understanding about how they ought to behave at the work place or at social gatherings. This especially applies to temporary H-2B workers.
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Questions and Answers
Question: I have been offered a job by an employer in the US an a plasterer and need a visa to start work ASAP. the employer is willing to sponsor me but I need to know which is the best route, could I start on the H-2B visa proving the employer has a peak load of work at present and if things work out for both and I settle could we then go onto EB-3 status?
Ans: The quickest way for you to enter the US to work as a plasterer would be through the H-2B. As you are aware this is for temporary seasonal, one-time need, or peak load work. Unfortunately, if you come on an H-2B you cannot later ask for permanent residence through the same employer in the same job. The labor certification completed by the employer for the H-2B states that the job is temporary, while the labor cert for the EB-3 (employment-based 3rd preference) category must be for a full time permanent job. By certifying initially that it is temporary the employer forecloses the ability to seek a permanent position.
More Q&A
H2B Myths and Reality
Myth: H-2B Program Continues the Trend of "Out-Sourcing" Jobs
Reality: If anything the H-2B program should be considered "In-Sourcing" jobs. Taxes are paid to the US government, FICA is paid into the Social Security System with the employee having little hope of ever collecting, and businesses keep flowing with the essential workers they need. It can be argued that unemployment will rise without the H-2B program, as many seasonal business owners will no longer be able to operate without it. |
