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H-2B Proposed Rule Changes: Your Feedback Welcome

In my most recent entry, I discussed steps that USCIS has been taking to upgrade our capacity to process naturalization applications. Today, I'd like to address proposed rule changes to existing H-2B regulations designed to streamline that important program.

Since its inception in 1986, the H-2B program has proven popular among businesses in non-agricultural industries such as landscaping, hospitality and construction. Little about the program has changed to accommodate employers' needs or improve worker protections. In order to better serve those participating in the program, we are proposing measures to remove unnecessary limitations, prevent fraud and abuse, and protect workers.

Beyond this general announcement, I would also like to share the specifics of the proposed rule changes and ask that you provide your feedback by submitting comments to the proposed rule.

Our 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 United States before he or she is eligible to again 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.

It is important to note that these proposals are not yet in effect and that the current rules governing the H-2B program remain in place. In the meantime, there will be a 30-day comment period. Once public comments are received and reviewed, we will finalize and publish the rule with an effective date.

With that in mind, I look forward to your comments and feedback and appreciate your interest in the Leadership Journal.

Jonathan Scharfen,
Acting Director, US Citizenship & Immigration Services

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