The U.S. Citizenship and Immigration Services (USCIS) recently withdrew a regulation which it proposed in January 2005 would have significantly modified the H-2B program. The H-2B program applies to foreign workers who perform non-agricultural temporary labor or services. The proposed rule would have established a one-step petition process for U.S. employers seeking H-2B workers thereby eliminating the need for U.S. employers to apply for a temporary labor certification from the U.S. Department of Labor (DOL). However, instead of implementing this streamlined approach to this H-2B program, the USCIS withdrew the regulation and instead has released a new proposed H-2B regulation which would be more restrictive than the previous regulation.
The regulation would make some of the following changes to the H-2B category:
- The proposed regulation would allow U.S. employers to file an H-2B petition without including the names of all of the beneficiaries when the petition requests multiple beneficiaries. Previously, the USCIS could require employers to evidence emergent circumstances prior to approving an H-2B petition without naming all the beneficiaries.
- The proposed regulation will reduce the amount of time that an H-2B worker has to remain outside the United States after being present in the United States for a maximum period of stay of three years in the H-2B category. The proposed regulation will reduce the required absence from six months to three months.
- The proposed regulation would require U.S. employers to first obtain a temporary labor certification from the DOL prior to filing the H-2B petition. If the DOL refuses to issue the temporary labor certification, the proposed regulation would eliminate the option for employers to file the H-2B petition with a DOL Non-Determination Notice and have the USCIS Administrative Appeals Office (AAO) review the accuracy of the determination prior to the adjudication of the H-2B petition.
- The proposed regulation would not allow employers to use a different employment start date than the one initially requested on the temporary labor certification application. The USCIS has indicated that it is proposing this modification to prevent the practice of employers that have longer temporary needs from being able to use a temporary labor certification under a different quota than what was initially requested on the temporary labor certification based upon the requested start date. The USCIS indicated that this modification would be more equitable for employers who have a shorter need. The example provided by the USCIS in the proposed regulations is of an employer with a need from January 1st through October 30th. This employer would be able to file a temporary labor certification with the DOL on September 1st. If the H-2B quota for the first half of the government’s fiscal year was met before the employer could file the H-2 petition with the USCIS, this employer would under the current regulations still be able to file a H-2B petition with the USCIS requesting an April 1st start date to take advantage of the second half of the fiscal year H-2B quota. However, if the proposed regulation is implemented in its current format, the employer would not be able to file a petition under the second half of the fiscal year H-2B quota because the start date on the temporary labor certification would be prior to April 1st. The only exception to this proposed rule would be for employers who initially filed an H-2B petition for fewer of the maximum number of H-2B workers indicated on the temporary labor certification and then wanted to file a second H-2B petition to recapture the remaining available slots. The USCIS indicated that in this one very limited exception, the employer could file a second H-2B petition with a start date which would make the positions available under the current quota.
- The proposed regulation would require employers to pay the entire cost of the H-2B process, including attorneys fees, filing fees, recruiting costs, travel agent fees, transportation costs, etc. The employer will be required to complete an attestation as part of the process confirming that it has not required the H-2B worker to pay the costs in the process. Additionally, if the employer has used a recruiter, the employer will be required to provide the information about the recruiter. The employer will also have to attest whether it believes to the best of its knowledge that any fees were paid or asked of the H-2B workers by such third party recruiters, and if so, whether the employer has reimbursed the H-2B worker for these costs. Finally, the employer will be required to attest that it will not materially change the terms and conditions provided on the H-2B petition and temporary labor certification including but not limited to an H-2B worker’s duties, place of employment or the entities for which the duties will be performed.
- The proposed regulation would require employers to notify the USCIS within 48 hours of an H-2B worker failing to report within five days of the employment start date, the early completion of the assignment for which the H-2B worker was hired, or if the H-2B worker absconds from the work site prior to the completion of the services for which he or she was hired. If the H-2B worker violates the conditions of his/her H-2B status, other than through no fault of his or her own, the worker could be barred from the H-2B program for five years.
- The proposed regulation would also establish an H-2A and H-2B exit pilot program. The proposed rule indicates that Customs and Border Protection (CBP) would publish a notice in the Federal Register designating which temporary workers would have to participate in the pilot program and the procedure for participating in the pilot program.
- The proposed regulation would modify the definition of temporary need from the current general limitation of one year to a "limited period of time" which is defined as a period of need that will end in the near, definable future. However, the DOL has not indicated that it will be modifying its definition of a temporary need. Therefore, unless the DOL also modifies its definition of temporariness, the DOL may still refuse to issue temporary labor certifications for most H-2B employment needs requesting a period in excess of ten months.
The comment period on the proposed regulations is thirty days. However at the end of the comment, it may still take years for the USCIS and DOL to issue final regulations which hopefully modernize the H-2B program. However, it is unknown whether this is a Bush Administration priority so that the release of at least an interim final regulation implementing the new H-2B program is released prior to the Bush Administration leaving office.