USCIS Proposes Changes to H2B Program

The United States Citizenship and Immigration Services recently issued its proposed rules to change the current H2B program.  The public is invited to comment on these proposed changes within 30 days of the notice of the proposed rulemaking.  Afterwards, the USCIS will review the comments, finalize and publish the “final rule,” which will include an effective date.  Thus, employers should anticipate a change in the requirements and procedures for the H2B program in the near future.

The USCIS has planned significant changes to the H2B program.  Some of the key proposals include:

Revising the definition of temporary employment so that the petitioner would no longer be required to show “extraordinary circumstances” in requesting a period of employment that is more than one year. Under the new rule, an employer would need to show that a worker is needed to fill a job for a limited period of time, i.e., a period of need that will end in the near, definable future.  According to the USCIS, the near, definable future could potentially include a period that could last up to 3 years.

Permitting employers to specify only the number of positions sought, rather than naming specific individuals (except for those who are already present in the United States).

Requiring employers to attest to the scope of the H2B employment and the use of recruiters to locate H2B workers. The USCIS suggests that employers be prohibited from charging potential H2B workers job placement fees.  The proposed rule lists as a ground of denial or revocation of an H2B petition if it is determined that the employer knows or reasonably should know that the H2B worker paid or has agreed to pay any fee or other form of compensation to the employer or the employer’s agent (including recruiters) in connection with obtaining H2B employment.

Requiring an approved temporary labor certification with the H2B petition. Currently, if the U.S. Department of Labor denies the temporary labor certification, an employer may still file the H2B petition as long as it includes countervailing evidence to overcome the issuance of a Non-Determination Notice.

Reducing from 6 months to 3 months the amount of time an H2B worker whose status has expired must wait outside the U.S. before becoming eligible to obtain H or L classification.

Requiring employers to notify the Department of Homeland Security when H2B workers fail to show up for work, are terminated, or abscond from the worksite.

The USCIS explained that its proposed changes are necessary to accommodate better the needs of employers and workers utilizing the H2B program.
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