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USCIS Finalizes Streamlining
Procedures for H-2B Worker Program
On December 19, 2008, US Citizenship and Immigration
Services (USCIS) published a final rule that will change the
requirements affecting H-2B beneficiaries and their
employers. Existing H-2B regulations and policies will
remain in effect until January 18, 2009, when the Final Rule
goes into effect. Key areas of the final rule include: Allowing H-2B petitioners to specify only the number of
positions sought and not name the individual aliens except
where an intended alien beneficiary is already present in
the U.S.; or where an alien is from a country not eligible
for participation in the H-2B program; Reducing the time an H-2B worker who has spent three years
in the U.S. must reside and be outside the U.S. before he or
she is eligible to re-obtain H-2B status from six months to
three months; Reducing the period of time spent outside the U.S. that
interrupts accrual towards the 3-year maximum period of stay
in H-2B status; Prohibiting H-2B employers and recruiters from imposing
certain fees on prospective H-2B workers as a condition of
securing employment; Requiring an approved temporary labor certification in
connection with all H-2B petitions; Beginning with petitions filed for workers for Fiscal Year
2010, prohibiting 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 stated on the approved temporary labor certification; Amending the definition of “temporary services or labor”
to allow U.S. employers and eligible foreign workers the
maximum flexibility to complete projects that could be for a
specific one-time need of up to 3 years without
demonstrating extraordinary circumstances; Requiring employers to notify USCIS when H-2B workers fail
to show up for work, complete the work more than 30 days
early, are terminated, or abscond from the worksite; Permitting the approval of H-2B petitions only for
nationals of certain countries designated as participating
countries by the Secretary of Homeland Security, in
consultation with the Secretary of State, and appearing on a
list to be published annually in the Federal Register. The
initial list of participating countries designated as
important to the operation of the program and to be
published simultaneously with this Final Rule, includes
Mexico, Jamaica, and 26 others. DHS may allow on a
case-by-case basis a worker from a country not on the list
to be eligible for the H-2B program if such participation is
in the U.S. interest; Delegating to the Department of Labor (DOL) the statutory
authority to impose certain administrative remedies and/or
penalties where a substantial failure to meet any of the
conditions of the H-2B petition or a willful
misrepresentations of a material fact in such petition is
found; and Establishing a land-border exit system pilot program,
which requires H-2B workers admitted through a port of entry
participating in the pilot program to also depart through a
participating port and to present designated biographic
and/or biometric information upon departure.
Advanced Authorization Required
for Visa Waiver Program Travelers
As of January 12, 2009, foreign nationals planning on
traveling under the visa waiver program must register as
soon as possible for travel clearance through an online
program Electronic System for Travel Authorization (ESTA).
Travelers will have to obtain clearance before boarding a
carrier bound for the U.S. Travelers are advised to submit
their applications in advance of travel, no later than 72
hours before departing for the United States. Under recently-enacted legislation, new requirements stipulate that U.S. employers who are acting as federal contractors are required to use E-Verify to confirm employment eligibility for its employees, regardless of citizenship. The USCIS has issued recent clarification on the circumstances surrounding these new requirements, which will become effective on February 20, 2009. The CIS urges affected federal contractor employers to register in advance of the effective date, to allow sufficient time to become familiar with the E-Verify system. The CIS instructs that any employers currently enrolled in E-Verify who subsequently become or became federal contractors can update their company profile via their E-Verify account. Such employers do not need to create “new” E-Verify accounts. Employers who are awarded federal contracts who have not yet enrolled in E-Verify are required to enroll in the program within 30 days of contract award date. The new legislation also creates changes in the requirements as to who is subject to verification under E-Verify. Under the new rule, federal contractor employers are required to initiate verification queries within 90 days of enrollment for all employees who are working on the contract. This is a departure from traditional E-Verify requirements, which limited mandatory inquiries to new hires. After initiating inquiries for all existing employees on the contract, federal contractor employers are also required to initiate verification on new hires within three business days of the employee start date. To help ensure this timeline is met, CIS indicates these inquiries can be initiated before the start date where the employee has both accepted the job offer, and completed a Form I-9. This requirement as to new hires, unlike the retroactive provision above, is applied to ALL new hires: not just those assigned to work on the contract. Lastly, federal contractor employers required to enroll in and utilize E-Verify, who complete their federal contracts, are at that time free to end participation in E-Verify. They can do so via the appropriate “request termination” link within the E-Verify system. Consulates Start Using Electronic Form DS-160
On April 29, 2008, the U.S. Department of State (DOS)
announced the creation of Form DS-160, an electronically
filed non-immigrant visa application form. Form DS-160 will
ultimately take the place of currently used Forms DS-156,
DS-157, DS-158, and other related forms such as the DS-156E,
DS-156K, and DS-156V.
On January 8, 2009, U.S. Citizenship and Immigration
Services (USCIS) announced that it has received a sufficient
number of petitions to reach the congressionally mandated
H-2B cap for the second half of Fiscal Year 2009 (FY2009).
February 2009 Visa Bulletin Released
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