USCIS Suggests Changes for H-2B Program

New rules have been proposed that are designed remove “unnecessary limitations” and improve temporary workers’ rights. The United States Citizenship and Immigration Services (USCIS) announced a series of proposed rule changes that would streamline procedures for hiring foreign workers under the H-2B program.

The proposed rule changes would:

• Reduce the time H-2B workers must wait outside the United States at the end of their visa's validity before they are eligible to re-apply under an H or L class visa from six months to three months
• Require employers to give a detailed description of the H-2B employment and outline their use of recruiters to locate H-2B workers
• Punish employers and recruiters who require payment from prospective H-2B workers in connection with or as a condition of an offer of H-2B employment
• Require an approved "temporary labor certification" in connection with all H-2B applications
• Prevent, with limited exception, the change of the employment start date after the grant of the temporary labor certification
• Require employers to notify the Department of Homeland Security when H-2B workers fail to show up for work, are terminated, or leave the worksite without notification
• Change the definition of "temporary employment" to provide that a job is of a temporary nature when the worker will end in the near, definable future
• 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 that consistently refuse or unreasonably delay repatriation of their citizens
• Establish a "land-border exit system" test program, which requires temporary workers admitted through a port of entry participating in the test program to also depart through a participating port and to present designated biographic and/or biometric information upon departure

The rule changes are part of a general attempt to improve visa programs for temporary workers while the debate on U.S. immigration reform continues to stall in Congress. The changes are meant to supplement the proposal made by the Department of Labor in May, which called for improvements to the application process and increased worker protections.

The proposal came two weeks after the USCIS announced that the H-2B cap has been met for the first half of the 2009 fiscal year.