January 8, 2009 - Herndon, Va.
Second Half of Fiscal Year 2009 Cap Reached: New Rules to Come Into Effect
On January 8, 2009, the Department of Homeland Security (DHS) announced that the 33,000 cap for the second half of fiscal year 2009 was reached yesterday, January 7, 2009, meaning that many of you may not get the H-2B workers you need without immediate congressional action.
Congress must act now in order to save the landscape industry and other seasonal employers from economic disaster. Companies cannot absorb two consecutive years of financial losses resulting from Congress' failure to renew the law and provide small businesses with a reliable and legal source of seasonal labor. In tough economic times, Congress must recognize the importance of the H-2B program to small businesses and their American workforce. PLANET continues to vigorously lobby Congress on the need for an immediate H-2B fix.
It is important to communicate early with members of Congress about the need for immediate action on H-2B. In addition, if your representatives or senators are new to Congress, it is important to introduce them to your business and the H-2B program. Because this is a new session of Congress, all bills must be introduced and assigned new numbers. We hope our H-2B bill will be introduced soon in both Houses with as many co-sponsors as possible.
Please call your representatives and senators through the congressional switchboard at (202) 225-3121, and ask them to renew the H-2B returning worker exemption immediately. You may look up your elected officials at the PLANET Legislative Action Center. Ask to speak to the staff person in charge of immigration issues. Tell the staff person what the lack of H-2B workers has meant for your business and your employees, and explain the devastating impact of not having H-2B workers in 2009. Please stress the importance of H-2B workers to your company, your American workers, and your local community. In addition, please send letters to your members of Congress through the PLANET Web site.
In addition to the continued pressure on the program because of the cap, employers will soon have to comply with new program requirements. The Department of Homeland Security (DHS) and Department of Labor (DOL) issued final rules related to H-2B program administration on December 19, 2008. The rules go into effect on January 18, 2009. While the rules make changes to program administration and enforcement, they do not impact the 66,000 program cap. The cap and the expired exemption for returning workers can only be changed by Congress.
Under the new rules, DHS delegated additional enforcement authority to DOL. The rules also prohibit recruiters or employers from collecting application or recruitment fees from H-2B workers. In addition, the rules establish an attestation process and change the role of the State Workforce Agencies. The main provisions of the rules are listed below.
The final DHS rule includes the following:
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Allows H-2B petitioners to list unnamed beneficiaries, except where an intended alien beneficiary is already present in the United States; or where an alien is from a country not eligible for participation in the H-2B program. The rule contains a provision that allows for the naming of returning workers on petitions in the event that Congress reinstates the H-2B returning worker exemption.
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Reduces from six months to three months the time an H-2B worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2B status.
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Prohibits H-2B employers and recruiters from imposing fees on prospective H-2B workers as a condition of securing employment.
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Eliminates USCIS' current authority to adjudicate H-2B petitions where the Secretary of Labor or the Governor of Guam has not granted a temporary labor certification.
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Provides DOL with the authority to impose administrative remedies and/or penalties when it determines that H-2B employment conditions are not met or that an H-2B petition contains a willful misrepresentation of a material fact including a debarment process in which employers may be prohibited from using an H (except H-1B1), L, O or P-1 visa program from one to five years.
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Beginning with petitions filed for workers for fiscal year 2010, prohibits H-2B employers from requesting an employment start date on Form I-129 that is different from the date of need stated on the accompanying approved temporary labor certification.
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Establishes a land-border exit system pilot program under which H-2B workers admitted through a participating port of entry must also depart through the same port of entry.
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Amends the current definition of "temporary services or labor" to include a specific one-time need of up to three years.
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Permits 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 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.
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Require petitioners to provide notification to USCIS within 2 work days in the following instances:
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Where an H-2B worker fails to report to work within five work days of the employment start date on the H-2B petition;
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Where the labor or services for which H-2B workers were hired is completed more than 30 days earlier than the end date stated on the H-2B petition; or
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Where the H-2B worker absconds from the work site or is terminated prior to the completion of labor or services for which he or she was hired.
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In order to ensure consistency with DOL regulations, provides that an employer may not file an H-2B petition more than 120 days before the date of the employer's actual need for the beneficiary's services or labor, as identified on the temporary labor certification.
Click here to view the final rule and supporting DHS materials.
The DOL rule includes the following:
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Requires employers to submit their H-2B applications directly with the DOL's Employment and Training Administration, instead of filing at both the state and federal levels.
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Requires employers to attest that they have complied with all the H-2B program's requirements and submit evidence of their recruitment efforts along with their application.
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Gives DOL the authority (delegated from DHS) to enforce the terms of conditions of
H-2B employment. DOL may debar for up to three years employers, attorneys, and agents found to have committed fraud or willful misrepresentation concerning the H-2B employment-based immigration program, or failed to cooperate with DOL audits or investigations. In addition, DOL may also reinstate illegally laid off U.S. workers, assess civil monetary penalties up to $10,000, and award back wages for violations of the program.
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Prohibits H-2B recruiters and employers from passing along application and other costs to H-2B workers participating in the program.
Click here to view the final DOL rule.
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