Mark A Ivener, A Law Corporation

DHS Issues Final Rule, Notice on H-2B Temporary Nonagricultural Workers

The Department of Homeland Security (DHS) has amended its H-2B regulations regarding temporary nonagricultural workers and their U.S. employers. The final rule, effective January 18, 2009, generally removes the requirement for H-2B petitioners to state on petitions the names of prospective H-2B workers who are outside the U.S. The rule also reduces the waiting period from six months to three months for an H-2B worker who has reached his or her maximum three-year period of stay in H-2B nonimmigrant status before such person may seek an extension of nonimmigrant stay, change of status, or readmission to the U.S. in any H or L nonimmigrant status.

The rule also adjusts the definition of “temporary services or labor,” which is generally defined as a period of one year but could be for a specific one-time need of up to three years. The rule also eliminates the DHS’s current practice of adjudicating H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification. The rule also prohibits H-2B petitioners from requesting an employment start date on the Petition for a Nonimmigrant Worker (Form I-129) that differs from the date of need listed on the approved temporary labor certification. The final rule requires H-2B petitioners to notify the DHS when the H-2B worker fails to report for work, is terminated before completing the work for which he or she was hired, or absconds from the worksite.

The final rule also precludes employers from passing the cost of recruiter fees charged by a petitioner, agent, facilitator, recruiter, or similar employment service to prospective H-2B workers as a condition of an offer of H-2B employment. Under this rule, however, employers and H-2B workers may agree that certain transportation costs and government-imposed fees be borne by H-2B workers, if the passing of such costs to these workers is not prohibited under the Fair Labor Standards Act or any other statute.

Moreover, the rule enforces existing penalties in the case of an employer who fails to meet any of the conditions of the H-2B petition, or who willfully misrepresents a material fact in the H-2B petition. Employers who fail to meet the H-2B conditions or who willfully make material misrepresentations on an H-2B petition may be precluded from approval for a period of up to five years of any H (except H-1B1), L, O, or P-1 nonimmigrant visa petition, or any immigrant visa petition described in section 204 of the INA.
Nationals from the following countries are eligible to participate in the H-2B visa program:

Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

This rule also provides that DHS will publish a notice in the Federal Register listing the countries that the Departments of Homeland Security and State have designated as eligible for their nationals to participate in the H-2B program.

Finally, this rule establishes a pilot exit control program for certain H-2B workers, by requiring them to report their departures at designated ports of entry. U.S. Customs and Border Protection (CBP) published a notice in the Federal Register describing the procedures and requirements for participation in this pilot program (PDF).

The DHS also published a separate notice, effective January 18, 2009, announcing the manner in which H-2B petitioners must notify U.S. Citizenship and Immigration Services regarding their employment of nonagricultural workers in H-2B nonimmigrant status or job placement fee information. Among other things, the notice sets forth the procedures for H-2B petitioners to notify USCIS when:

  • an H-2B worker fails to report to work within five work days of the employment start date on the H-2B petition;
  • when the temporary labor or services for which H-2B workers were hired is completed more than 30 days early; or
  • when the H-2B worker absconds from the worksite or is terminated before the completion of the temporary labor or services for which he or she was hired.

Regulations require H-2B petitioners to retain evidence of such notification sent to USCIS for a one-year period.

The notice further provides the procedures for H-2B petitioners to notify USCIS, after an H-2B petition has been filed, within two work days of learning that an H-2B worker paid a fee or other compensation to a facilitator, recruiter, or similar employment service as a condition of the offer of obtaining the H-2B employment.

Additional Resources:

Final Rule
Official Notices
Eligible H-2B countries list

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About the Author

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