Family Law & Divorce

Divorce in Minnesota

Custody and Parenting Time

Child Support

Other Family Law Issues

Immigration

Work Visas & Green Cards

Family & Green Cards

Deportation

U.S. Immigration Issues – Other

Business Litigation

Criminal Defense

Lawyers serving individuals throughout the Twin Cities Metro Area, including:

H-2B Regulations – New

Minneapolis, Minnesota Immigration Lawyers

An H-2B classification applies to an alien who is coming temporarily to the United States to perform nonagricultural work of a temporary or seasonal nature, if there are not sufficient workers who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such services or labor. This classification does not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession. The temporary or permanent nature of the services or labor described on the approved temporary labor certification are subject to review by USCIS. This classification requires a temporary labor certification issued by the Secretary of Labor or the Governor of Guam prior to the filing of a petition with USCIS.

This rule is effective January 18, 2009.

The new rule generally removes the requirement for H-2B petitioners to state on petitions the names of prospective H-2B workers who are outside the United States and reduces the existing obligatory waiting period from 6 months to 3 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 United States in any H or L nonimmigrant status. The rule provides a more flexible 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 3 years.

The new rule eliminates 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 Form I-129, Petition for a Nonimmigrant Worker, that is different than the date of need listed on the approved temporary labor certification. The final rule requires H-2B petitioners to notify DHS when the H-2B worker fails to report for work, is terminated prior to the completion of the work for which he was hired, or absconds from the worksite. This 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, 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 the existing penalties at section 214(c)(14) of the Immigration and Nationality Act (INA) in the case of an employer who fails to meet any of the conditions of the H-2B petition, or who willfully misrepresented 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, under the statute, be precluded from approval for a period of up to 5 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, they may file with DHS.

The H-2B nonimmigrant classification applies to aliens seeking to perform nonagricultural labor or services of a temporary nature in the United States. Immigration and Nationality Act (the Act or INA) sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b); see 8 CFR 214.1(a)(2) (designation for H-2B classification). The H-2B program is most frequently used by businesses in seasonal industries that have a difficult time locating temporary workers.

H-2B No-Show, Termination, or Abscondment Notification Requirements

The final rule requires petitioners to provide notification to DHS, within two work days, beginning on a date and in a manner specified in a notice published in the Federal Register, in the following instances: (a) When an H-2B worker fails to report to work within 5 work days of the employment start date on the H-2B petition; (b) when the temporary labor or services for which H-2B workers were hired is completed more than 30 days earlier than the date specified by the petitioner in its H-2B petition; or (c) when the H-2B worker absconds from the worksite or is terminated prior to the completion of the temporary nonagricultural labor or services for which he or she was hired. 8 CFR 214.2(h)(6)(i)(E). The final rule clarifies that the H-2B worker must report to work within 5 "work days" of the employment start date, rather than the proposed 5 days. The H-2B petitioner must report a violation to DHS within two work days, rather than the proposed 48 hours. The final rule adopts the term "work days" to ensure that the reporting deadlines are clear to H-2B petitioners. "Work day," in general, means the period between the time on any particular day when such employee commences his or her principal activity or activities and the time on that day at which he or she ceases such principal activity or activities

Petition Filing Period

This final rule modifies the current regulations governing the filing period for H petitions to provide for a separate filing period for H-2B petitions. See 8 CFR 214.2(h)(9)(i)(B). This procedural change is necessary to ensure parity between DHS and related DOL regulations. Under the new DOL regulations, an employer cannot start recruiting (initiate advertising) for the nonagricultural positions any earlier than 120 days ahead of the date of stated employment need. However, under current DHS regulations, an employer must file an H-2B petition along with a DOL-approved temporary labor certification, yet may file the petition up to 6 months ahead of the date of actual employment need. 8 CFR 214.2(h)(9)(i)(B).

This final rule adopts the proposed requirement that an H-2B petition identify an employment start date that is the same as the date of employment need stated on the approved temporary labor certification. New 8 CFR 214.2(h)(6)(iv)(D). Considering this requirement, it would be procedurally impossible for a petitioner to file an H-2B petition any sooner than the earliest date upon which it is able to start recruiting for a nonagricultural position. Therefore, this final rule modifies 8 CFR 214.2(h)(9)(i)(B) to provide that an employer may not file, and USCIS may not approve, an H-2B petition more than 120 days before the date of the employer's actual need for the beneficiary's temporary nonagricultural worker services, as identified on the temporary labor certification.

Naming Beneficiaries Exempt From the Numerical Limits

The final rule retains the proposal to allow certain H-2B petitioners to specify only the number of positions sought, without naming individual H-2B workers, unless they are already in the United States. A few commenters were concerned about how the provision allowing petitioners to include unnamed beneficiaries in the H-2B petition would be impacted by a possible reauthorization of the "returning worker" provisions. New 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(vi)(C). The returning worker provisions expired September 30, 2007. INA sec. 214(g)(9), 8 U.S.C. 1184(g)(9) (2007). Under these provisions, H-2B aliens who were already counted towards the H-2B numerical limit during one of the 3 fiscal years preceding the fiscal year of the requested employment start date were not counted again against the numerical limit. While the returning worker provisions have expired, their future reauthorization is possible. To ensure that DHS is able to implement any future reauthorization of these provisions, this final rule provides DHS the flexibility to collect information needed about the alien beneficiary to establish eligibility as a returning worker.

Permitting H-2B Petitions for Nationals of Participating Countries

The final rule modifies the proposal to preclude DHS from approving an H-2B petition filed on behalf of aliens from countries that consistently deny or unreasonable delay the prompt return of their citizens, subjects, nationals, or residents who are subject to a final order of removal from the United States. Instead of publishing a list of countries that refuse repatriation, DHS will publish in a notice in the Federal Register a list of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible for its nationals to participate in the H-2B program. In designating countries to allow the participation of their nationals in the H-2B program, DHS, with the concurrence of the Department of State, will take into account factors including, but not limited to, the following: (1) The country's cooperation with respect to the issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. Initially, the list will be composed of countries that are important for the operation of the H-2B program and are cooperative in the repatriation of their nationals. The countries included on the list are the countries whose nationals contributed the vast majority of the total beneficiaries of the H-2B program during the last three fiscal years.

Employment Start Date

The final rule retains the provision in the proposed rule prohibiting the employer from requesting an employment start date on Form I-129 that is different from the date of need listed on the accompanying approved temporary labor certification. See new 8 CFR 214.2(h)(6)(iv)(D). As noted below, to ease the initial difficulties in administering this provision, it will take effect starting with the filing period for the first half of fiscal year (FY) 2010.

Absconder reporting

This rule requires an employer to notify DHS within two work days if: (1) An H-2B worker fails to report for work within 5 days after the employment start date, (2) the services for which H-2B workers were hired is completed more than 30 days early, (3) an H-2B worker leaves the worksite (for a period of 5 consecutive work days without the consent of the employer), or (4) an H-2B worker is terminated prior to the completion of the services for which he or she was hired.

Employee Recruiters

DHS has no reliable data on the number of firms that recruit H-2B employees, but DHS research in this area indicates that the majority of new, and many returning, H-2B employees have utilized such a service in their home countries. This rule does not prohibit firms from charging nonimmigrant workers for some services, such as: preparation of the worker's income tax return; certain transportation costs (except where the passing of such costs to the worker is prohibited by statute); lodging; food; clothing; translation services; or other services for which the value is generally known based on an existing market or can be readily quantified, and which are not charged as a condition of the employee being referred to a petitioner.

Naming beneficiary

H-2B petitions must include the name of each beneficiary who is currently in the United States, but need not name any beneficiary who is not currently in the United States. Unnamed beneficiaries must be shown on the petition by total number. USCIS may require the petitioner to name H-2B beneficiaries where the name is needed to establish eligibility for H-2B nonimmigrant status. If all of the beneficiaries covered by an H-2B temporary labor certification have not been identified at the time a petition is filed, multiple petitions for subsequent beneficiaries may be filed at different times but must include a copy of the same temporary labor certification. Each petition must reference all previously filed petitions associated with that temporary labor certification. H-2B petitions on behalf of workers who are not from a country that has been designated as a participating country in accordance with paragraphs (h)(5)(i)(F)(1) or (h)(6)(i)(E)(1) of this section must name all the workers in the petition who fall within these categories. All H-2B petitions must state the nationality of all beneficiaries, whether or not named, even if there are beneficiaries from more than one country.

Employment start date

Beginning with petitions filed for workers for fiscal year 2010, an H-2B petition must state an employment start date that is the same as the date of need stated on the approved temporary labor certification. A petitioner filing an amended H-2B petition due to the unavailability of originally requested workers may state an employment start date later than the date of need stated on the previously approved temporary labor certification accompanying the amended H-2B petition.

Substitution of beneficiaries

Beneficiaries of H-2B petitions that are approved for named or unnamed beneficiaries who have not been admitted may be substituted only if the employer can demonstrate that the total number of beneficiaries will not exceed the number of beneficiaries certified in the original temporary labor certification. Beneficiaries who were admitted to the United States may not be substituted without a new petition accompanied by a newly approved temporary labor certification.

To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are outside of the United States, the petitioner shall, by letter and a copy of the petition approval notice, notify the consular office at which the alien will apply for a visa or the port of entry where the alien will apply for admission. The petitioner shall also submit evidence of the qualifications of beneficiaries to the consular office or port of entry prior to issuance of a visa or admission, if applicable.

To substitute beneficiaries who were previously approved for consular processing but have not been admitted with aliens who are currently in the United States, the petitioner shall file an amended petition with fees at the USCIS Service Center where the original petition was filed, with a copy of the original petition approval notice, a statement explaining why the substitution is necessary, evidence of the qualifications of beneficiaries, if applicable, evidence of the beneficiaries' current status in the United States, and evidence that the number of beneficiaries will not exceed the number allocated on the approved temporary labor certification, such as employment records or other documentary evidence to establish that the number of visas sought in the amended petition were not already issued. The amended petition must retain a period of employment within the same half of the same fiscal year as the original petition. Otherwise, a new temporary labor certification issued by DOL or the Governor of Guam and subsequent H-2B petition are required.

Limitation on admission

An H-2B alien who has spent 3 years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under sections 101(a)(15)(H) and/or (L) of the Act unless the alien has resided and been physically present outside the United States for the immediately preceding 3 months.

These rules drastically change the H2B process.  Employers who wish to consult with an attorney on these matters should contact Vincent Martin at www.cundyandmartin.com.  Vincent is a partner, immigration lawyer, and head of the Immigration Practice Group at Cundy & Martin, LLC, located in Bloomington, MN, a suburb of Minneapolis.  952-746-4111