Proposed H2B Changes
Posted Feb 04, 2005
The U.S. Citizenship and Immigration Services (USCIS) issued a proposed rule on January 27, 2005 substantially revising the procedures in H2B cases. Since this is merely a proposed rule, these provisions do not become effective until the rule is finalized and published in the Federal Register.
MurthyDotCom and MurthyBulletin readers should be clear that the H2B category is not to be confused with the H1B for temporary professional workers. The H2B category is for purely temporary and seasonal nonagricultural workers. This category is commonly used in the resort, fishery, and lumber industries, as well as other seasonal industries like landscaping. The H2B cap or limit was reached this fiscal year on January 3, 2005. The unavailability of these workers has created anxiety within the industries that use these workers in the spring and summer. The proposed changes would, essentially, eliminate the need for a labor certification in most H2B cases. The currently required labor certification would be replaced by certain labor attestations by the employer. The new procedures would also utilize eFiling in an effort to expedite processing.
Elimination of Labor Certification Requirement
The changes in the procedure would create a one-step process for these applications. At the present time, it is a two-step process, requiring first the issuance of a labor certification from the Department of Labor (DOL) following recruitment efforts. This is not the same as a labor certification used in a green card case, but the procedures are similar in many respects. It is entirely different from the Labor Condition Application (LCA) that is used in H1B cases. Under the new proposed regulation, the labor certification would be eliminated in most situations. The DHS states that the reason for this is to eliminate certain barriers that discourage the use of the program. We note that the current requirements are not conducive to employers interested in only hiring small numbers of H2B workers. The burden of obtaining the labor certification for a job that must be short term in nature is too great when only one or two workers are involved. Most companies that use these programs are filing for significantly larger numbers of workers.
Anti-Fraud Provisions
The proposed regulations put certain protections in place to safeguard the eFiling process. There are provisions in the proposed regulation to protect against fraud and abuse of the program. These include the ability of the USCIS to deny or revoke an approval if there are inaccurate or fraudulent statements or other misrepresentations of material fact in an H2B petition. The USCIS is also seeking to add new provisions to establish a process for denying all petitions, both immigrant and nonimmigrant, filed by a particular employer for a specified period of time, if the employer has not complied with the attestation conditions. This is known as debarment. There are proposed audit procedures on the part of the DOL in connection with the attestation process. The USCIS proposes that they have a separate audit and debarment process when the petitioner's statements on the Form I-129 are fraudulent, or otherwise contain misrepresentations.
Counting Against the H2B Cap
Similar to the H1Bs, there is a cap on the number of H2Bs in any fiscal year. The H2B cap is 66,000. Considered significant to many are the proposed changes to the counting procedures. This is important in light of the cap issue. The changes propose that amendments to petitions that are already approved will not count against the cap. There is also a separate provision for exempting fish roe processors, fish roe technicians, or supervisors of fish roe processing from the cap. As stated above, H2Bs are often used in jobs of this nature. Therefore, this exemption may open up available numbers for employers in other industries.
As previously explained, this regulation is only a proposal at this time. Until the regulation is final, the existing provisions remain in effect. The deadline for comments is February 28, 2005 so employers or others affected by these proposals need to voice their views so that the DOL can consider them before finalizing the rules. The complete regulation, as well as instructions on submitting comments, is available on the Federal Register Website by searching the January 27, 2005 Federal Register under "Department of Homeland Security." So get involved in the democratic process!
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