• USCIS Issues Final Rule on Hiring H-2B Temporary Non-Agricultural Workers
  • February 5, 2009 | Author: Nelli Nikova
  • Law Firm: Bracewell & Giuliani LLP - Houston Office
  • On January 18, 2009, a new Final Rule will come into effect on hiring H-2B temporary non-agricultural workers. This program allows employers who cannot fill temporary non-agricultural jobs with U.S. workers to seek permission to fill those positions with foreign workers. The Final Rule, which was first proposed in August 2008, retains many of the provisions of the proposed rule but also some new modifications.

    The Final Rule on hiring H-2B workers includes the following provisions.

    The definition of "temporary services or labor" now includes a specific one-time need of up to three years, without requiring the employer to demonstrate extraordinary circumstances.

    Eligible Foreign Nationals
    H-2B petitions will be approved 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. Among the initial list of 28 participating countries to be published simultaneously with the Final Rule are Mexico and Jamaica. On a case-by-case basis, however, DHS may allow a worker from a country not on the list to be eligible for the H 2B program if it determines that such participation is in the U.S. interest.

    Time Limits

    • An employer may not file an H-2B petition more than 120 days before the date of the employer's actual need for the worker's services or labor, as identified on the temporary labor certification. The start date on the Form I-129 should be the same as the start date stated on the accompanying labor certification.
    • H-2B workers who have spent three years in the U.S. must now reside outside the U.S. three months (rather than six months) before reapplying for H-2B status.
    • The minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit is reduced.
    • Petitioners must provide notification to the USCIS within two 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 the worker was hired.

    Procedural Requirements

    • As noted above, U.S. employers are no longer allowed to file an H-2B petition unless the Secretary of Labor or the Governor of Guam has granted a temporary labor certification.
    • Under a land-border exit system pilot program to be established, H-2B workers who are admitted through a participating port of entry will be required also to depart through that same port of entry and present, upon departure, certain biographical information, which may include biometric identifiers.
    • Workers who were previously approved for consular processing, but have not been admitted, may be substituted for aliens who are currently in the United States.
    • The separate attestation requirement contained in the proposed rule is now incorporated it into the Form I-129 "Petition for Nonimmigrant Worker."
    • USCIS may 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.

    Prohibited Activity and Sanctions

    • The USCIS no longer has authority to adjudicate H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification.
    • The penalties that may be imposed on employers who "substantially" fail to meet H-2B petition requirements or "willfully misrepresent a material fact" in a petition are increased to include debarment. The USCIS may deny certain petitions filed by that petitioner for a period of at least 1 year but not more than 5 years.
    • The USCIS also has the authority to issue a notice of denial or revocation of a Form I 129 if the agency determines that the statements on the petition or application for labor certification are inaccurate or fraudulent, or misrepresent a material fact.
    • H-2B employers and recruiters may not impose certain fees on prospective H-2B workers as a condition of securing employment. However, employers are provided a way to avoid denial or revocation of the H-2B petition in cases where USCIS determines that the employer 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.
    • Employers whose petitions have been denied or revoked based on the payment of prohibited fees must demonstrate that, as a condition of approval of H-2B petitions filed within one year of the denial or revocation, the H-2B workers have been reimbursed or the H-2B workers cannot be located despite the petitioner's reasonable efforts.

    Notably, the Final Rule omits a provision contained in the proposed rule that would have precluded an alien from being accorded H-2B status if USCIS found that the alien had, 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.

    The Final Rule does not increase the H-2B cap limits or change the H-2B visa allocation process under the cap, which currently is 66,000 per fiscal year, with 33,000 aliens allocated H-2B nonimmigrant status during the first half of the fiscal year and 33,000 allocated during the second half of the fiscal year.

    The Final Rule, which is scheduled to go into effect on January 18, 2009, can be reviewed at www.uscis.gov.