Temporary Workers Get Protection Under New H-2B Rules

By Reuben S. Seguritan

January 01, 2009

Temporary workers under the H-2B program will get more protection from abusive employers under the revised regulations recently promulgated by the Department of Homeland Security and the Department of Labor.

The H-2B visa is for nonagricultural temporary workers who enter the U.S. to perform jobs that are a one-time occurrence, seasonal, peak-load or intermittent.

Typical jobs in the H-2B classification include those in hotels/motels, restaurants, country clubs, resorts and theme parks, construction and retail stores.

The annual quota allocation of 66,000 will not be increased. As of December 26, 2008, 29,702 petitions have been counted towards the 33,000 cap allotted for the second half of fiscal year 2009.

The new rules will enhance the integrity of the H-2B program by preventing fraud and will strengthen enforcement.

Employers petitioning for H-2B workers must first secure a certification from the Department of Labor (DOL) that there are not sufficient U.S. workers who are able, willing, qualified and available to perform the job and that their employment will not adversely affect the wages and working conditions of U.S. workers similarly employed.

The DOL will centralize the processing and require the employers to conduct pre-filing recruitment. The DOL may conduct post adjudication audits and penalize employers that fail to comply with the rules.

Once the labor certification is obtained, the employer will file an I-129 petition with the United States Citizenship and Immigration Services (USCIS). If the petition is approved, the worker will apply at a U.S. consulate abroad. If he/she is in the U.S. and is in valid status, the worker may change to H-2B or extend his/her current H-2B.

The rules revise the definition of temporary services to include a specific one-time need of up to three years without a demonstration of extraordinary circumstances.Substitution of beneficiaries will also be allowed.

Under the old rules, the H-2B holder after three years would have to leave the U.S. and stay outside the U.S. for at least six months before being eligible to re-obtain H-2B status. The new rules reduce this time frame to three months.

The prospective H-2B employer may specify only the number of positions to be filled without having to name the prospective worker/s in the petition except when the beneficiary is already in the U.S., or from a country not eligible to participate in the H-2B program. A list of participating countries will be simultaneously published with the Final Rule. Those from countries not on the list may still be eligible for H-2B but will be adjudicated on a case-by-case basis.

The H-2B employers and recruiters are not allowed to impose certain fees to H-2B workers as a condition of securing employment. This is a ground of denial or revocation of the H-2B. The employer, however, may refile the H-2B petition within one year of the denial or revocation and show that the H-2B worker has been reimbursed or cannot be located despite the employer’s reasonable effort as a precondition for approval of the H-2B petition.

Sanctions will be imposed on H-2B employers if found to have failed to meet any condition of the H-2B or if they had willfully misrepresented a material fact in the petition. The sanction includes debarment from obtaining temporary labor certification for a period determined by the DOL. The debarment period may be for at least one year but not exceeding five years. The employer will be unable to bring in H-2B workers during this period of debarment.

By the start of fiscal year 2010, the start-up date indicated on the Form I-129 petition should match the date stated on the accompanying temporary labor certification.

Employers are required to notify the USCIS within two working days in case the H-2B worker failed to report to work within five working days from the employment start date indicated in the petition; or if the work for which the H-2B workers were hired is completed more than 30 days earlier than the end date indicated in the petition, or if the H-2B worker absconds or is terminated prior to the completion of the job for which he/she was hired.

A land-border exit system pilot program would be established that would require H-2B workers admitted through a participating port of entry to also leave through a participating port and to present the designated biographic and/or biometric information upon departure.