The U.S. Department of Homeland Security (DHS) issued a final rule, effective January 18, 2009, amending its regulations concerning temporary nonagricultural workers and their U.S. employers. The H-2B temporary nonagricultural worker program authorizes U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. In terms of its key provisions, the final rule:  

  • Requires an approved temporary labor certification in conjunction with all H-2B petitions;
  • Permits services or labor to be considered temporary if, in the case of a one-time event, they last up to three years;
  • Generally removes the requirement for H-2B petitioners to specify on petitions the names of prospective H-2B workers who are outside of the United States, unless the prospective worker is from a country not eligible to participate in the H-2B program;
  • Prohibits H-2B petitioners from requesting an employment start date on Form I-129, Petition for a Nonimmigrant Worker, that is different from the date of need listed on the approved temporary labor certification, beginning with petitions filed for workers for fiscal year 2010;
  • Provides that DHS will publish a list of countries whose nationals are eligible to participate in the H-2B program, although a worker from a country not on the list may be eligible to participate in the H-2B program if, in the discretion of the Secretary of Homeland Security, such participation is in the U.S. interest;
  • Precludes employers from passing the cost of recruiter fees to prospective H-2B workers as a condition of an offer of employment, although employers and H-2B workers may agree, if otherwise permissible by statute, that certain transportation costs and government-imposed fees will be borne by H-2B workers;
  • Requires H-2B petitioners to notify DHS, within two work days, when the H-2B worker fails to report for work within five work days of the employment start date, completes the work more than 30 days early, is terminated prior to the completion of the work, or absconds from the worksite, and further requires the petitioner to retain evidence of such notification for one year;
  • Reduces the period of time spent outside of the United States that interrupts the accrual of the three-year maximum period of stay in H-2B status;
  • Reduces from six months to three months the period of time that an individual who has held H-2B status for a total of three years must remain outside of the United States, before he or she may be granted an extension of nonimmigrant stay, change of status, or readmission to the United States in any H or L nonimmigrant status; and
  • Establishes a pilot exit control program for certain H-2B workers, by requiring them to report their departure at designated ports of entry and to present designated biographic and/or biometric information upon departure