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NEW H-2B RULE ABOUT TO BE PUBLISHED

By Greg Siskind

pHere is USCIS#39; summary of the changes. I#39;ll have more to say after I#39;ve gone through the full text of the new rule./pp#0160;#0160;#0160; * Reduces from six months to three months the time an H-2B worker who has spent three years in the U.S. must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2B status;#0160; /pp#0160;#0160;#0160; * Prohibits H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;/pp#0160;#0160;#0160; * Eliminates USCIS? current authority to adjudicate H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification; /pp#0160;#0160;#0160; * Enhances employer sanctions by imposing debarment provisions.#0160; If the Department of Labor finds that a petitioner substantially failed to meet any of the conditions of the H-2B petition or willfully misrepresented a material fact in such petition, USCIS may deny certain petitions filed by that petitioner for a period of at least 1 year but not more than 5 years.#0160; This debarment process is covered by the Department of Labor?s final H-2B regulations, which are being published in the Federal Register on [date].#0160; H-2B employers who have been debarred by the DOL under these provisions are ineligible to obtain a temporary labor certification for the period determined by DOL.#0160; Because a temporary labor certification is required to qualify for H-2B classification, these employers will not be eligible to file H-2B petitions during the DOL imposed debarment period. /pp#0160;#0160;#0160; * Beginning with petitions filed for workers for Fiscal Year 2010, prohibits H-2B employers from requesting an employment start date on Form I-129 that is different from the date of need stated on the accompanying approved temporary labor certification;/pp#0160;#0160;#0160; * Clarifies USCIS? authority to issue a notice of denial or revocation of a Form I-129 if USCIS determines that the statements on the petition or application for labor certification are inaccurate or fraudulent, or misrepresent a material fact;/pp#0160;#0160;#0160; * Establishes a land-border exit system pilot program under which H-2B workers admitted through a participating port of entry must also depart through that participating port of entry and present, upon departure, designated biographical information, possibly including biometric identifiers;#0160; /pp#0160;#0160;#0160; * Amends the current definition of ?temporary services or labor? to include a specific one-time need of up to three years, without requiring the employer to demonstrate extraordinary circumstances;/pp#0160;#0160;#0160; * Reduces the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit; and/pp#0160;#0160;#0160; * Allows the substitution of beneficiaries who were previously approved for consular processing, but have not been admitted, with aliens who are currently in the United States./pp#0160;#0160;#0160; * Remove the separate attestation requirement contained in the proposed rule and amend the Form I-129, ?Petition for Nonimmigrant Worker,? to include the attestation provisions./pp#0160;#0160;#0160; * Offer H-2B petitioners a means to avoid denial or revocation of the H-2B petition in cases where USCIS determines that the petitioner 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./pp#0160;#0160;#0160; * Permit the approval of H-2B petitions 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.#0160; The initial list of participating countries to be published simultaneously with the Final Rule includes Mexico, Jamaica, and 26 others.#0160; DHS may allow on a case-by-case basis a worker from a country not on the list to be eligible for the H-2B program if such participation is in the U.S. interest;/pp#0160;#0160;#0160; * Require H-2B employers whose petitions have been denied or revoked based on the payment of prohibited fees to demonstrate, as a condition of approval of H-2B petitions filed within one year of the denial or revocation, that the H-2B workers have been reimbursed or the H-2B workers cannot be located despite the petitioner?s reasonable efforts./pp#0160;#0160;#0160; * Require petitioners to provide notification to USCIS within 2 work days in the following instances:#0160; (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 he or she was hired;/pp#0160;#0160;#0160; * Provide that an employer may not file an H-2B petition more than 120 days before the date of the employer?s actual need for the beneficiary?s services or labor, as identified on the temporary labor certification.#0160; This ensures consistency between USCIS and DOL regulations./pp#0160;#0160;#0160; * Provide USCIS the flexibility to 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./pp#0160;#0160;#0160; * Not adopt the proposed provision to preclude an alien from being accorded H-2B status if USCIS finds that the alien has, 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. /pp#0160;#0160;#0160; * Reduces the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit; and/pp#0160;#0160;#0160; * Allows the substitution of beneficiaries who were previously approved for consular processing, but have not been admitted, with aliens who are currently in the United States./p

Full post as published by Greg Siskind's Blog on December 18, 2008 (boomark / email).