December 23, 2008

H-2B Temporary Non-Agricultural Worker Program: Steamlined Procedures

Changes have been made to the requirements affecting H-2B beneficiaries and their employers. The Final Rule will supplement the extensive reforms of the H-2B program that are included in the Department of Labor’s final rule scheduled to be published on Dec. 19, 2008.

The H-2B nonagricultural temporary worker program allows 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. Key changes in the Final Rule include:

• H-2B petitioners no longer need to name the individual aliens, exception is when alien beneficiary is already in US or where alien is from a country not eligible to participate in H-2B program.
• H-2B workers who have spent 3 years in the US only need 3 months time physically present outside of the US to re-obtain H-2B status. Previous requirement was 6 months.
  The period of time spent outside the United States that interrupts accrual towards the 3-year maximum period of stay in H-2B status has been reduced.
• H-2B employers and recruiters are prohibited from imposing certain fees on prospective H-2B workers as a condition of securing employment.
• An approved temporary labor certification is required in connection with all H-2B petitions.
  Beginning with petitions filed for workers for Fiscal Year 2010, prohibiting H-2B petitioners from requesting an employment start date on the Form I-129 that is different than the date of need stated on the approved temporary labor certification.
• Amending the definition of “temporary services or labor” to allow U.S. employers and eligible foreign workers the maximum flexibility to complete projects that could be for a specific one-time need of up to 3 years without demonstrating extraordinary circumstances.
• Employers must notify USCIS when H-2B workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite;
  Permitting the approval of H-2B petitions only for nationals of certain countries designated as participating countries by the Secretary of Homeland Security, in consultation with the Secretary of State, and appearing on a list to be published annually in the Federal Register.
• DOL has the statutory authority to impose certain administrative remedies and/or penalties where a substantial failure to meet any of the conditions of the H-2B petition or a willful misrepresentations of a material fact in such petition is found. And
• Establishing a land-border exit system pilot program.
• Allows the substitution of beneficiaries approved for consular processing, but have not been admitted, with aliens who are currently in the US.
  

This final rule will become effective 30 days after it is posted in the Federal Register.