Labor and USCIS Adopt Major Changes

to H-2B Temporary Worker Program

Labor and USCIS Adopt Major Changes to H-2B Temporary Worker Program - USCIS and the Labor Department have jointly adopted sweeping changes to the process by which employers petition for seasonal non-farm workers. Most significantly, State Workforce Administrations (SWAs) will no longer participate in determining prevailing wages or facilitating the recruitment process. In the past, time consuming and inconsistent state procedures have resulted in businesses in states providing more efficient or sympathetic processing having a greater likelihood of securing H-2B visas from the limited pool than those recruiting in inefficient states.

The H-2b petition process requires two steps: obtaining a temporary labor certification from Labor, and then petitioning USCIS for final approval. Under prior rules, the SWA played a major role in defining the position, establishing the prevailing wage, managing the recruitment process, and submitting the case to DOL’s certifying officer, who either certified or denied the application. Once certified, the employer files a petition with USCIS, which relies heavily on the DOL’s certification, but which it is free to ignore.

The new process cuts the SWAs out of the process entirely. Instead, DOL has adopted an employer certification-based approach by which the employer obtains prevailing wage and classification determinations directly from DOL, conducts the recruitment themselves according to detailed DOL rules, then files an on-line application with DOL certifying compliance with those rules. During the adjudication process, DOL may request evidence supporting compliance with the recruitment requirements.

On approval, the employer will then file with the USCIS who will process the petition and either approve or deny, as it has in the past.

Other modifications to the H-2B process adopted by USCIS include:

• Reducing from six months to three months the amount of time an H-2B employee must spend abroad between maximum periods of stay in order to obtain an additional three years of status;
  
• Prohibiting H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;
  
• Requiring H-2B employees to be nationals of countries designated as participating in the H-2B program;
  
• Permitting debarment of non-complying employers from future participation in the H-2B program;
  
• Permiting employers to establish a one-time need for temporary employment of up to three years without demonstrating extraordinary circumstances;
  
• Allowing for substitution of workers abroad;
  
• Permitting employers to specify the number of required employees without requiring identification by name; and
  
• Placing primary enforcement responsibility with the Department of Labor.

The H-2B program authorizes up to 66,000 non-farm workers to work in the United States as seasonal or peak load employees of petitioning employers. The new rule takes effect on January 18, 2009.

In a related development, the Labor Department has issued new rules applicable to the hiring of H-2A temporary agricultural workers, which take effect January 17, 2009. The United Farm Workers is seeking an injunction barring implementation of the rules, asserting that they overly favor employers at the expense of U.S. workers.

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