On August 20th, 2008 the United States Citizenship and Immigration Services (USCIS) agency made two announcements that will have huge impacts on the H-2B immigration – first to withdraw the 2005-issued proposed rule changes to H-2B program, and the second to introduce the new proposed changes to H-2B program.
The proposed changes for H-2B program put forward in January 2005 had suggested making procedural change such as eliminating the temporary labor certification requirement. Today’s announcement in effect means that USCIS will abandon that approach. Instead the new rule proposes a two-tier system, while retaining the current procedural requirements. However, India’s past record as a country that has refused to “repatriate its nationals” may cost it heavily under the new rules.
The H-2B non-immigrant temporary worker program allows US employers to bring foreign nationals to America to fill non-agricultural temporary jobs for which US workers are not available.
Significant Proposed Changes
Let’s quickly take a look at what the new two-tier system will mean for the H-2B program. According to USCIS acting director Jonathan Scharfen, the new changes will include
- Allowances will be made in the regulation to allow employers to petition for unnamed foreign employees
- The current limit of 6 months time that an H-2B worker needs to spend outside of US between his h-2b status expiration and re-eligibility to apply under H or L status will be reduced to three months
- Employers will be required to provide attestations on the scope of the H-2B employment, its use of recruiters and on the fact that the recruiter did not receive any fee from the beneficiary.
- An approved temporary labor certification will be made the mandatory pre-requirement for filing an H-2B petition
- Once the temporary labor certification is approved, the employment start date mentioned on it cannot be changed for any reason
- Employers will be required to notify DHS of no-shows, fired or absconding employees
- The definition of “temporary employment” will be more clearly defined to eliminate the need to cite “extraordinary circumstances” when an employment requirement is for more then one year, but less then three.
- H-2B approvals will no longer be granted to petitioners from countries which are blacklisted for consistently refusing and unreasonably delaying repatriation of their nationals
- A land-border exit system will be establish, under which a H-2B worker admitted through a port of entry participating in the program must also depart only through a port of entry in the program.
India worried about changes?
India is certainly worried about these changes as along with China and Iran, it is among the eight countries that have been blacklisted as countries that are determined to be consistently refusing or unreasonably delaying repatriation of workers under deportation orders. As we mentioned above, the new rule proposes to not to grant H-2B approvals to petitioners from these countries. If the rule goes through as it is, India will be hard pressed to get out that list. As of now, Indian nationals form a large percentage of H-2B petitioners each year.
The proposed rule change is now on its 30-day public trial, where the people are invited for submitting comments. Once public comments are received and reviewed, USCIS will finalize and publish the rule with an effective date. We urge our readers to take the time to comment on this law and make sure the new rules are just and fair to all.