Mark A Ivener, A Law Corporation

USCIS Proposes Changes to H-2B Temporary Nonagricultural Worker Program, Withdraws Earlier Proposed Rule

U.S. Citizenship and Immigration Services (USCIS) published a proposed rule on August 20, 2008, that would streamline procedures for hiring workers under the H-2B program, supplementing the changes the agency proposed last spring. The H-2B nonimmigrant temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which U.S. workers are not available.

The most important changes include:

  1. The employer’s “temporary need” for a worker could be as long as three years. Until now, it has been believed widely that the need could not exceed nine months per stay, followed by a hiatus of at least three months. This has limited the number of assignments for which the H-2B is attractive, but many employers have projects that could end within three years, followed by a three-month absence from the US. Specifically, USCIS proposes changing the definition of “temporary employment” to include jobs for which the work 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 for up to three years.
  2. The wait outside the U.S. for those who want to switch from H-2B to H-1B or L-1 visas would be reduced to three months (instead of the current six months).

These two changes, if implemented, would make the H-2B visa a viable option for many more jobs with U.S. employers, including professional occupations with project-based timelines. Several other provisions are proposed for purposes of fraud prevention in the H-2B program.

The agency also withdrew an earlier proposed regulation published in 2005 that would have established a one-step petition process for U.S. employers seeking H–2B temporary workers, eliminating the need for employers to apply for a labor certification; required electronic filing of the Petition for a Nonimmigrant Worker, Form I–129, within 60 days in advance of the requested employment start date; eliminated the use of agents as H–2B petitioners; and established new management mechanisms. In light of the public’s comments, USCIS said it is no longer moving forward with the proposed rule as designed and will publish a new proposed rule for public comment. (PDF)

USCIS will accept public comments until September 19, 2008, on the new proposed rule, which is published here. The notice is available here. A fact sheet is available as a PDF.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.