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.
Travelers can register at
https://esta.cbp.dhs.gov/. The application will ask for
biographic and passport information, as well as information
about his/her basic eligibility to use the visa waiver
program, such as previous visa denials, prior arrests and
convictions and presence of certain diseases. U.S
destination, flight information and other travel details are
asked for on a voluntary basis. Once an application has been
submitted it will be checked against the appropriate
national security and law enforcement databases.
When the application to ESTA is approved, an ESTA travel
authorization will remain valid for up to two years or until
the traveler’s passport expires, which ever occurs first.
Authorization may be used on multiple trips during the
validity period. The traveler will not need to re-register
until their passport has expired or their two-year
authorization has expired.
The countries that are required to register with the ESTA
are as follows: Andorra, Australia, Austria, Belgium,
Brunei, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia,
Lithuania, Liechtenstein, Luxembourg, Malta, Monaco,
Netherlands, New Zealand, Norway, Portugal, San Mariano,
Singapore, Slovenia, Slovak Republic, South Korea, Spain,
Sweden, Switzerland and the United Kingdom.
The ESTA registration does not guarantee that a foreign
national will be admitted to the United States. Visa waiver
program travelers remain subject to inspection upon arrival
and may be denied entry at the discretion of U.S. Border
officials.
New E-Verify Requirements for Federal Contractors to Begin
Soon
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.
However, the U.S. consulates and embassies are not being
required to use Form DS-160 at the same time, so its use
will be gradual. At this time, the only U.S. consulates
using the new form are:
CANADA
Montreal (effective October 22, 2008)
Vancouver (effective October 22, 2008)
HONG KONG S.A.R. (effective November 24, 2008)
MEXICO
Ciudad Juarez (effective January 20, 2009)
Matamoros (effective January 20, 2009)
Monterrey (effective April 18, 2008 – pilot program)
Nuevo Laredo (effective April 18, 2008 – pilot program)
As the use of Form DS-160 becomes more widespread, it is
more important than ever to check for the most recent
instructions on each consulate’s website prior to applying
for a visa.
H-2B Cap Met for 2009
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).
USCIS notified that January 7, 2009 was the “final receipt
date” for new H-2B worker petitions requesting employment
start dates prior to October 1, 2009. The “final receipt
date” is the date on which USCIS determines that it has
received enough cap-subject petitions to reach the limit of
33,000 H-2B workers for the second half of FY2009. USCIS
will reject petitions for new H-2B workers seeking
employment start dates prior to October 1, 2009 that arrive
after January 7, 2009.
As in previous years, USCIS may apply a computer-generated
random selection process to all petitions that are subject
to the cap and received on January 7, 2009 in order to
select the number of petitions needed to meet the cap. USCIS
will reject, and return the fee, for all cap-subject
petitions not randomly selected.
The second half of FY2009 was reached later than the second
half of FY2008, when the cap was reached as early as January
2, 2008.
February 2009 Visa Bulletin Released
The U.S. Department of State (DOS) has
issued its Visa Bulletin for February 2009. Priority
dates have advanced for some employment-based
categories, but they have also retrogressed for
“other workers” in the third preference category.
Immigrant visa numbers are now available to
employment-based second (EB-2) preference workers
from China with priority dates of January 1, 2005,
or earlier, and for EB-2 workers from India with
priority dates of January 1, 2004, or earlier.
The Visa Bulletin summarizes the availability of
immigrant visa numbers for the calendar month. Visa
Bulletin cut-off dates are determined by the foreign
worker’s “priority date,” generally established by
the filing of the labor certification application
with the U.S. Department of Labor (DOL), or Form
I-140, Immigrant Petition for Alien Worker, with the
U.S. Citizenship and Immigration Services (USCIS).
|
Employment-Based |
All Other Countries |
China (mainland born) |
India |
Mexico |
Philippines |
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
1/1/2005 |
1/1/2004 |
C |
C |
|
3rd |
5/1/2005 |
10/1/2002 |
10/15/2001 |
4/1/2003 |
5/1/2005 |
|
Other Workers |
3/15/2003 |
10/1/2002 |
10/15/2001 |
10/15/2001 |
3/15/2003 |
|
4th |
C |
C |
C |
C |
C |
|
Certain Religious Workers |
C |
C |
C |
C |
C |
|
5th |
C |
C |
C |
C |
C |
|
Targeted Employment Areas/Regional Centers |
C |
C |
C |
C |
C |