H2B Proposed Rule Changes

In a Leadership Journal entry issued by the Acting Director of the U.S. Citizenship and Immigration Services (USCIS), several rule changes to the H-2B program were proposed. Little about the program has changed to accommodate employers’ needs or improvement in worker protections. The Department of Homeland Security (DHS) is proposing to amend its regulations affecting temporary non-agricultural workers within the H-2B nonimmigrant classification and their U.S. employers. In order to better serve those participating in the program, they propose measures to remove unnecessary limitations, prevent fraud and abuse, and ultimately protect foreign workers.

The entry indicated that the proposed modifications would:
 Relax the current limitations on the ability of U.S. employers to petition for unnamed workers;
 Reduce from six months to three months the amount of time an H-2B worker whose status has expired must wait outside the U.S. before he/she is eligible to obtain status under the H or L classifications;
 Require employer attestations on the scope of the H-2B employment, and on the use of recruiters to locate beneficiaries, and provide for denial or revocation of an H-2B petition if an H-2B worker was charged a fee in connection with the employment either (a) by the petitioner, or (b) by a recruiter where the petitioner knew or reasonably should have known that the recruiter was charging such fees;
 Eliminate the ability of employers to file an H-2B petition without an approved temporary labor certification;
 Preclude changing the employment start date after the temporary labor certification is certified by the Department of Labor;
 Require employer notifications to the Department of Homeland Security when H-2B workers fail to show up for work, are terminated, or abscond from the worksite;
 Change the definition of “temporary employment” to clearly define that employment is of a temporary nature when the need for the employee will end in the near, definable future and to eliminate the requirement that employers show “extraordinary circumstances” to be eligible to hire H-2B workers where a one-time need for the workers is longer than one year but shorter than three years;
 Prohibit the approval of H-2B petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
 Establish a land-border exit system pilot program under which H-2B workers admitted through a port of entry participating in the program must also depart through a port of entry participating in the program. Upon departure, they must present designated biographical information, possibly including biometric identifiers.

Joanthan Scharfen, Acting Director of USCIS, accepted comments and feedback from the general public regarding the proposed H-2B rule changes. Once they have had time to review the comments, the rule will be finalized and published with an effective date.

Federal Register – Proposed H2B Rule Changes