On December 19, 2008, U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor’s (DOL) Employment and Training Administration issued a joint final rulemaking that alters the H-2B non-agricultural temporary worker visa program. H-2B workers are available for non-agricultural industries, including trucking, for employment periods of up to one year. USCIS and DOL are instituting several changes, many of which will make the H-2B process easier for employers who wish to employ foreign workers. The new regulations took effect on January 18, 2009. All USCIS functions will change that day, however DOL is instituting a transition period for employers applying for a labor certification. Applications with employment dates before October 1, 2009 will apply under the current system. Applications with employment dates on or after October 1, 2009 will be governed by the new regulations. The changes to the program are summarized below, divided into changes in the government administration, changes that fall on employers, and changes that affect H-2B aliens.
Changes at USCIS:
- USCIS will work with the Department of State to publish a list of countries from which H-2B workers can be hired. This list will be published at a future date in the Federal Register.
Changes at DOL:
- Applying for a labor certification work start date before October 1, 2009:
- Same process – Employer applies to State Workforce Agency for prevailing wage; conducts recruitment under the State agency’s observation; if unable to hire U.S. workers, State agency forwards application to DOL for certification of need of foreign workers.
- Applying for a labor certification work start date on or after October 1, 2009:
- Employer applies to Department of Labor’s Employment & Training Administration for a prevailing wage and must advertise for U.S. workers at that wage. If unable to find workers, employer documents process and submits application to DOL.
Changes affecting employers:
- Currently, when an employer petitions to hire H-2B workers, the company must request the specific visa applicants by name. The notice eliminates this requirement, allowing companies to specify only the number of positions to be filled. Companies hiring H-2B workers already resident in the U.S. must still petition to hire the worker by name.
- The changes propose to allow USCIS to deny or revoke an H-2B petition if it determines that the employer knows or reasonably should know that the alien worker has agreed to pay a fee (or other form of compensation) to the petitioner, the petitioner’s agent, or to any facilitator/recruiter/similar employment service in connection to obtaining H-2B employment. Passport fees, visa processing fees, transportation, and other items normally borne by a worker in taking on new employment may be billed to the worker.
- The new regulations stipulate that employment dates for an H-2B visa hire must coincide with those listed on the DOL temporary labor certification.
- The changes expand the “limited period of time” definition for H-2B applicable work to a period of up to three years. For periods of eighteen months or longer, employers must continue to look for domestic workers and must receive an annual DOL certification that domestic workers are not available.
- Under the new rules, employers must provide written notice to USCIS within two business days and retain a photographic copy for one year of the notice if an H-2B employee:
- Fails to report for work within 5 dates of the date of employment
- The non-agricultural service is completed more than 30 days early
- The H-2B worker absconds or is terminated from work on the site
- Employers that are found to be in violation of the H-2B rule will be invalid to hire H-2B workers for at least one year and up to five years. USCIS is planning to share authority to impose these penalties with DOL.
Changes affecting H-2B visa holders:
- The notice requires H-2B visa holders admitted to the U.S. at a port of entry participating in a land-border exit system pilot project to follow the requirements of that pilot program. Such pilot projects are based on the US-VISIT pilot projects and will be announced in future Federal Register notices by CBP. Only workers who normally would enter the U.S. through a port of entry participating in the pilot program will be required to participate in the pilot.
- H-2B aliens will be allowed in the U.S. for periods of employment up to 3 years. Currently, the visas are good for three years, but employment with a single company may not exceed one year.
- H-2B visa holders currently have a 3 year ceiling on their employability in the U.S. before they must begin a 6 month “waiting period” before applying for a new H-2B visa. The rule reduces this waiting period to three months.
- The changes align the H-2B program “stop the clock” provisions for time spent outside the U.S. with those of the H-2A agricultural worker program.
- H-2B violating workers will be barred from receiving a new H-2B visa for a period of five years unless the worker can prove the violation was through no fault of their own.
A full copy of the USCIS rulemaking is available online at http://edocket.access.gpo.gov/2008/pdf/E8-30098.pdf and the DOL rulemaking is at http://edocket.access.gpo.gov/2008/pdf/E8-29995.pdf. The list of countires whose nationals can participate in the H-2B program is available at http://edocket.access.gpo.gov/2008/pdf/E8-30114.pdf.