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The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and willing U.S. workers available to U.S. businesses for the remainder of the fiscal year and that these businesses may suffer “irreparable harm” if they are unable to hire additional workers.

The annual cap for H-2B visas is 66,000, with half available during the first half of the fiscal year, and the remainder available during the latter half. The annual cap of 66,000 was reached on March 13, 2017, and in May 2017 Congress delegated authority to the DOL to determine whether the numbers should be increased. With the additional 15,000 visas added, employers, who can begin submitting petitions this week, will need to attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B workers for the 2017 fiscal year. This attestation will appear on the form that will be filed with the petition. There has also been a new tip line to report general H-2B abuse and employer violations and the information can be submitted to ReportH2BAbuse@uscis.dhs.gov.

On April 15, 2015, Chief Judge M. Casey Rodgers of the federal district court in the Northern District of Florida extended the stay discussed in a March 18, 2015, blog post until May 15, 2015, thus allowing the Department of Labor (DOL) to continue accepting and processing H-2B prevailing wage and temporary labor certification applications.

DOL submitted its final rules on H-2B wage methodology and its H-2B comprehensive rule to the Office of Management and Budget on April 13, 2015.

U.S. Citizenship and Immigration Services (USCIS) announced March 17, 2015, that it would start adjudicating H-2B petitions again via regular processing. USCIS continues to suspend premium processing on H-2B petitions.

As reported in a blog post March 12, 2015, USCIS and the U.S. Department of Labor (DOL) stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications because of a federal court ruling that vacated the DOL’s 2008 H-2B regulations. The DOL filed an unopposed motion to stay the March 4, 2015, federal court order until April 15, 2015. DOL’s motion indicated that USCIS would resume adjudicating H-2B petitions based on temporary labor certifications issued by the DOL. On March 18, 2015, the federal court granted DOL’s motion and stayed its injunction until April 15, 2015, stating, “given that there are numerous United States employers who rely on the H-2B program to fill their temporary labor needs, the Court agrees that the requested temporary relief is warranted.”

DOL announced March 13, 2015, that it and the Department of Homeland Security intend to issue a joint interim final rule by April 30, 2015, that is consistent with the federal court’s decision.

As a result of a federal court ruling last week, the U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of Labor (DOL) have shut down the seasonal employment work visa (H-2B) program. USCIS stopped processing H-2B petitions and the DOL stopped accepting and/or processing applications for H-2B prevailing wages and temporary labor certifications.

On March 4, 2015, in Perez v Perez, the Northern District of Florida vacated DOL’s 2008 H-2B regulations stating that the DOL lacks authority under the Immigration and Nationality Act to issue H-2B regulations. The basis for the ruling is that Congress did not give DOL formal rulemaking authority regarding the H-2B program. Rather, USCIS retains rulemaking authority over the H-2B program, with DOL playing a consulting role.

Neither agency has indicated when it will re-start processing. DOL states that it is “considering its options in light of the court’s decision” and USCIS states that it cannot process applications because H-2B “petitions require temporary labor certifications issued by DOL.”

Meanwhile, hundreds of employers are unable to utilize the H-2B program, which is critical to companies in seasonal industries, such as tourism, agriculture, forestry, and construction.  There are efforts forming to help relieve the situation legislatively and through the courts.

 

On Feb. 21, 2012, the Secretary of Labor issued a Final Rule (Rule) that sought to overhaul the temporary, non-agricultural foreign worker H-2B program for seasonal workers. The rule was preliminarily enjoined by a Federal District Court Judge in the Northern District of Florida barring the Department of Labor from implementing the rule. The 11th Circuit then affirmed the injunction, and on Dec. 18, 2014, Chief Judge Rodgers vacated the H-2B rule and permanently enjoined the DOL from implementing the rule. (See previous stories here and here.)  On behalf of the litigants, Greenberg Traurig and C.J. Lake challenged the Rule in federal court and have obtained the permanent injunction. A copy of the decision can be found here.

 

 

 

U.S. Citizenship and Immigration Services (USCIS) reminded employers this week that Guam’s and CNMI’s five-year H-1B and H-2B cap exemptions will end on December 31, 2014. With a sharp increase in U.S. military-related projects in Guam of late, employers in the country are experiencing a shortage of lesser-skilled and highly-skilled workers, from construction workers through to accountants and engineers. Although officials in Guam are lobbying hard for an extension of the exemption, so far all efforts have been in vain as the Congressional deadlock on all immigration-related bills is halting a range of business immigration initiatives, including the renewal of Guam’s exemption. The major concern for those lobbying for an extension of the exemption is that there will be no action on any immigration-related reform until after the November mid-term elections, and there is no guarantee that Congress will act to extend the exemptions during the few days it is in session after the November election.

Continue Reading Guam and CNMI Employers Beware: H-1B and H-2B Exemptions End Dec. 31

On September 12, 2014, USCIS released the updated “Cap Count” for the H-2B Non-immigrant Visa. The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Additionally, any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. However, it is important to note that there is no “carry over” of unused H-2B numbers from one fiscal year to the next.

As of September 12, 2014, USCIS has approved 26,193 H-2B beneficiaries for the second half of FY2014, while 229 remain pending. Further, according to the same report, USCIS has approved 5,014 H-2B beneficiaries for the first half of FY2015, while 1,322 remain pending.

On Oct. 23, 2023, the Department of Homeland Security (DHS) announced the Notice of Proposed Rulemaking (NPRM) to amend H-1B regulations. The purpose of the NPRM is threefold: 1) to modernize and improve the efficiency of the H-1B program; 2) to provide greater benefits and flexibilities; and 3) to improve integrity measures. This proposed regulation is open for public comment until Dec. 22, 2023. Comments can be submitted through the Federal eRulemaking Portal, referencing DHS Docket No. USCIS-2023-0005. 

The proposed rule will not take effect until the comment period ends and DHS publishes a final regulation. It is not clear if new provisions will be implemented in time for the upcoming cap registration season in March 2024.

This blog post summarizes the proposal’s key points.

  1. Modernization and Efficiencies

DHS intends to streamline requirements for the H-1B program with the following proposals:

Revisions to the definition of ‘Specialty Occupation.’ U.S. Citizenship and Immigration Services (USCIS) seeks to revise the regulatory definition and standards for a “specialty occupation” by clarifying the following:

  • There must be a direct relationship between the required degree field and the duties of the position.
  • A position will not qualify as an H-1B Specialty Occupation if it solely requires a general degree without further specialization (i.e., business administration, an unspecified quantitative field, or an engineering degree in any field of engineering).
  • Multiple degree fields required will not automatically disqualify the petition, but the petitioner has the burden of proof to explain how those disparate fields of study relate to the job duties.

Amend the Criteria for Specialty Occupation Positions. USCIS seeks to revise the criteria for specialty occupations by clarifying the following in the NPRM:

  • Currently, the regulatory criteria states that a bachelor’s degree is “normally” required for the position. The proposed rulemaking seeks to clarify that “normally” does not mean “always.”
  • Historically the regulations utilized a four-prong analysis to determine whether a position qualified as a specialty occupation. The proposed rule seeks to change this to a three-prong analysis by consolidating the second prong into the fourth.
  • When a beneficiary is staffed at a third party, DHS seeks to add the phrase “or third party if the beneficiary will be staff to that third party.” This change would allow the petitioner to use the third party’s typical requirements to prove specialty occupation.

Amended Petitions. Currently, an H-1B amendment is required when there is a material change in the terms of the H-1B employment, including a change in job duties, change in the worksite location outside the geographic area of employment, change in hours, or other changes that impact the conditions outlined in the underlying approved H-1B petition. The proposed rule seeks to clarify when an amended petition must be filed if there is a change in the worksite location. It also seeks to clarify when an amended or new petition is required for short-term placement of H-1B workers. The NPRM proposes the following: 

  • Any change in worksite location that reflects a material change requires a new petition.
  • A new or amended petition must be filed before the change takes place.
  • An amended or new petition is not required when the beneficiary is going to a non-worksite location to participate in employee development.

Deference. The proposed rule seeks to codify existing deference policy where adjudicators generally should defer to a prior determination involving the same parties and underlying facts if there is no material change. Codifying the deference policy is designed to better ensure consistent adjudications.

Maintenance of Status. According to the proposed rule, evidence of maintenance of status must be included with the initial filing of petitions that request to extend or amend the beneficiary’s stay. The NPRM also clarifies:

  • Petitioners should provide evidence with the initial filing, rather than waiting for a request for evidence.
  • The changes would impact the following employment-based classifications: E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, and TN nonimmigrants.
  • Such evidence may include paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders.

Eliminating the Itinerary Requirement for H Programs. The proposed regulation seeks to eliminate the itinerary requirement for H-1B and H-2 petitions, as the information provided in an itinerary is largely duplicative of information already provided in the Labor Condition Application (LCA).

Validity Expires Before Adjudication. DHS proposes to allow H-1B petitions to be approved or have their requested validity period dates extended if USCIS adjudicates and deems the petition approvable after the initially requested validity period end-date, or the period for which eligibility has been established, has passed. This generally would occur if USCIS deemed the petition approvable upon a favorable motion to reopen, motion to reconsider, or appeal.

  1. Benefits and Flexibilities

DHS proposes to modernize the definition of employers who are exempt from the annual statutory limit on H-1B visas and provide further benefits and flexibilities in the regulations. The proposed regulation allows additional flexibility for both beneficiaries and nonprofit and government research organizations.

H-1B Cap Exemptions. The NPRM proposes the following:

  • Replace “primarily engaged” and “primary mission” with “fundamental activity.” Such change would allow flexibility for beneficiaries whose work contributes (but does not predominately further) the qualifying organization’s purpose.
  • Clarify that a qualifying employer can have more than one “fundamental activity.”
  • Change the phrase “the majority of” to “at least half” to permit beneficiaries flexibility to qualify for cap-exempt status if they spend 50% of their time performing job duties at a qualifying research organization and 50% at a cap-exempt employer.
  • Clarify that performing at least 50% of the duties at a qualifying cap-exempt employer does not mean those duties need to be performed physically onsite.
  • Eliminate the requirement that the petitioner must show a direct correlation between the beneficiary’s duties and the essential purpose, mission, objectives, or functions of the qualifying organization.
  • Amend the definition of “nonprofit or tax exempt organizations” and eliminate the requirement to provide an IRS letter demonstrating the petitioner has been approved as a tax exempt organization “for research or educational purposes.” The petition still needs to provide documentation that it meets this requirement, but it does not need to be in the form of an IRS letter.

Automatic Extension of Authorized Employment. DHS proposes to provide flexibilities and address “cap-gap” issues by extending F-1 status and related work authorization until April of the relevant fiscal year. Currently, cap-gap is provided only until Oct. 1 of the relevant fiscal year.

Start Date Flexibility for Certain H-1B Cap-Subject Petitions. DHS also proposes greater flexibility on the requested H-1B employment start date listed on the Form I-129 petition to permit start dates that are after Oct. 1. Specifically:

  • The H-1B petition must be a nonfrivolous filing.
  • The requested start date cannot be more than six months beyond the filing date of the petition.
  • If the H-1B petition with the underlying cap-gap extension is denied before April 1, the cap-gap would end, and the F-1 student would have 60 days to depart the United States or take other action to maintain their status in the country.
  1. Integrity

DHS proposes to address H-1B Cap registration “abuse” by changing the way USCIS selects registrations. Several anti-fraud safeguards would be made to the current registration system to bolster the selection process and reduce the possibility of misuse and “gaming” of the system.

H-1B Registration System. Each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. 

  • DHS proposes to select registrations by unique beneficiary rather than by registrations. Each unique individual would be entered into the selection process once, regardless of how many registrations were submitted on their behalf.
  • Related entities would not be allowed to submit multiple registrations for the same beneficiary.
  • The NPRM seeks to codify USCIS’s authority to deny an H-1B petition, or revoke an approved H-1B petition, if the underlying registration contains a false attestation or is otherwise invalid.

Beneficiary-Centric Selection. Beneficiaries would be allowed to have more than one registration submitted on their behalf, but each beneficiary would be entered in the selection process only once. Thus, if a random selection were necessary, selection would be based on each unique beneficiary, rather than each registration.

  • Previously, registrants have been able to bypass the passport requirement by indicating that they do not have a passport. The proposed regulation would require registrants to have a valid passport at the time of registration.
  • These changes may provide beneficiaries with greater autonomy with respect to their H-1B employment.

Bar on Multiple Registrations Submitted by Related Entities. Currently, DHS does not allow related entities to file multiple petitions for the same beneficiary. The proposed change would also bar related entities from submitting multiple registrations.

Registrations with False Information or that Are Otherwise Invalid. Currently, the regulations state if the petition contains material that is not true and correct, inaccurate, fraudulent, or misrepresents a material fact, the petition is subject to grounds for denial or revocation. DHS seeks to codify those requirements and extend the same requirements to the information provided in the registration. Furthermore, if a petitioner submits more than one registration per beneficiary in the same fiscal year, the proposed regulations will consider all of the registrations to be invalid.

Alternatives Considered. DHS plans to continue using the registration system and will not revert to the old paper-based filing system. Efforts will be made to continue to enhance the registration system, and DHS welcomes public comment on this issue.

Provisions to Ensure Bona Fide Job Offer for a Specialty Occupation Position. The proposed rule would codify USCIS’s authority to request contracts, work orders, or similar evidence to establish the contractual relationship between all parties as well as state the minimum educational requirements to perform the job duties. The rule also seeks to codify the requirement that the petitioner establish that non-speculative employment exists at the time of filing the petition. The NPRM would:

  • Provide USCIS authority to ensure the LCA properly supports and corresponds with the petition.
  • Alter the definition of “United States Employer” and remove the reference to Employer-Employee relationship from the definition.
  • Codify the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States and add clarification that the bona fide job offer may include “telework, remote work, or other off-site work in the United States.”
  • Add a new requirement that the petitioner has a legal presence in the United States.

Beneficiary-Owners. DHS proposes to clarify that beneficiary-owners may be eligible for H-1B status even when the beneficiary possesses a controlling interest in that petitioner.

  • Conditions would apply when the beneficiary owns more than 50% or has more than 50% of the voting rights of the petitioner. Conditions would not apply if the beneficiary does not own a controlling interest.
  • The beneficiary must perform specialty occupation duties more than 50% of the time and can also perform non-specialty occupation duties that involve owning and operating the business.
  • Validity period of such petitions would be limited to 18 months. Subsequent extensions would not be limited and could be approved for up to three years.

Site Visits. DHS proposes to codify its existing authority to conduct site visits to maintain the integrity of the H-1B system. The NPRM would:

  • Establish consequences for failure to comply with site visits, including denial or revocation of the petition.
  • Clarify that public inspections would include onsite visits, interviews with officials, review of records related to compliance or any records USCIS deems pertinent to the facts related to the petition, as well as interviews with any individual.
  • Clarify that inspections may occur at the petitioner’s headquarters, satellite locations, or any location where the beneficiary will work, including the beneficiary’s home or third-party worksites.

Third Party Placement. DHS proposes to clarify that if an H-1B worker will be placed at a third party’s organization, USCIS will consider the requirements of that third party, and not the petitioner, to determine whether the position is a specialty occupation.

The Department of Homeland Security (DHS) has announced a proposed rule aimed at modernizing the H-2 temporary visa programs, which include the H-2A visa for agricultural workers and the H-2B visa for short-term, seasonal, non-agricultural temporary workers. This rule intends to modify the programs to provide greater flexibility and protections for temporary workers, enhance program efficiency, and safeguard vulnerable workers from exploitation and abuse. Secretary of Homeland Security Alejandro N. Mayorkas emphasized the importance of these reforms in addressing worker shortages and ensuring the rights and welfare of temporary workers.

Strengthening Worker Protections

The proposed rule introduces several key provisions aimed at strengthening worker protections and ensuring their well-being:

  1. Whistleblower Protections: Currently, only H-1B visa holders have whistleblower protections, preventing employers from retaliating against workers who report violations of visa stipulations. The proposed rule would extend these protections to H-2A and H-2B visa holders, addressing documented risks of exploitation, trafficking, and abuse faced by these workers.
  2. Prohibition of Employer-Imposed Fees: The rule would clarify and enforce prohibitions on employers collecting certain fees from H-2 workers.
  3. Greater Flexibility for H-2 Workers: The proposed rule introduces grace periods for H-2 workers to seek new employment, prepare for departure from the United States, or pursue a change of immigration status.
  4. H-2 Portability: Making H-2 portability permanent would enable employers facing worker shortages to hire H-2 workers who are already legally in the United States while their H-2 petition is pending, providing employers with a valuable resource to address labor gaps.

DHS’s proposed rule represents a significant step toward modernizing the H-2 temporary visa programs. As the public comment period begins, stakeholders and interested parties have the opportunity to provide their input on these changes.

Immigration Provisions in the Upcoming Appropriations Bills

  • As Congress prepares to finalize the appropriations bills for the upcoming fiscal year, many groups are working to include immigration provisions in the legislation. These provisions could include the Afghan Adjustment Act, legislation for DACA beneficiaries and other Dreamers, EB-5 reform and corrections, and immigrant visa relief. Given the possibility of a government shutdown as a result of the appropriations bills, immigration provisions may not be included
  • The House Appropriations Committee has already passed its version of the Department of Homeland Security (DHS) appropriations bill, which includes a provision to exempt returning H-2B workers from the 66,000 cap on the total number of noncitizens who may receive an H-2B visa. The Senate Appropriations Committee is currently considering its own version of the bill, and it is expected to include similar language.
  • The House Appropriations Subcommittee that oversees Department of Labor (DOL) funding passed a bill that would continue some H-2B regulatory relief provisions. It would allow for staggered crossing for seafood workers, allow the limited use of prevailing wage surveys, provide for a maximum 10-month season, and prohibit DOL from enforcing the corresponding employment of three-quarters guarantee provisions of the current H-2B regulations.
  • The Senate Committee bill also includes report language asking the DOL to submit reports related to the semi-annual visa distribution, the economic impact of the program by state, estimated visa demand, and labor violations of H-2B and H-2A users. It also expresses support for visas set aside for workers from the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

DHS Overwhelmed by Applicants for Humanitarian Parole Program

  • The Biden administration announced a new humanitarian parole program earlier this year for nationals of Cuba, Haiti, Venezuela, and Nicaragua. While the program authorizes humanitarian parole for 30,000 applicants per month, since January 2023, DHS has allegedly received more than 1.5 million applicants for the program. Customs and Border Protection (CBP) has released the number of applications processed each month for January through April 2023, as follows:

The published reports for May and June do not include numbers for this program.

  • In May 2023, CBP released a statement describing the system put in place to review and approve the large amount of applications – 50% of applications will be processed based on date of filing and 50% will be selected randomly. Many applicants have not received any notice from CBP, indicating an overwhelming backlog.
  • The humanitarian parole program is designed to help individuals fleeing violence and persecution, but the current backlog is hindering its success.

New I-9 Form and the new document inspection procedures

  • On Aug. 1, 2023, USCIS implemented updates to the Form I-9, Employment Eligibility Verification. The revised form includes a new alternative document examination procedure, allowing employers enrolled in E-Verify to review copies of identity and employment authorization documents, instead of requiring in-person document inspection and verification.
  • To utilize the new alternative document inspection process, employers enrolled in E-Verify must retain copies of all documents examined and conduct a live video interaction with the employee. Employers who used E-Verify during the COVID-19 flexibilities period can implement the new alternative procedure starting Aug. 1, 2023, to satisfy the physical document examination requirement, which must be completed by Aug. 30, 2023.
  • The revised Form I-9 introduces changes to streamline the process, reducing the form to a single-sided sheet and making it fillable on tablets and mobile devices. The “Preparer/Translator Certification” and Section 3 pertaining to Reverification and Rehire are now separate supplements, and the “Lists of Acceptable Documents” page has been updated to include some acceptable receipts.
  • These changes aim to bring greater flexibility and convenience to employers while maintaining the security and accuracy of the employment eligibility verification process. While employers can continue using the current form (edition date 10/21/19) until Oct. 31, 2023, from Nov. 1, 2023, onwards, all employers must transition to using the new Form I-9.
  • Employers should familiarize themselves with these changes and consider implementing new procedures to ensure compliance with the revised Form I-9 and the alternative document examination process.

Processing Backlogs Create Delays to the Green Card Process

  • The U.S. immigration system is facing a serious backlog in the processing of employment-based immigrant visas. This backlog is due to a number of factors, including the Department of Labor’s slow processing of PERM labor certifications and prevailing wage requests, the high volume of pending I-140 petitions at USCIS, and the limited number of EB-2 and EB-3 visas available annually.
  • As a result of this backlog, individuals starting the PERM process today can expect to wait several years before they will become eligible for consular processing or adjustment of status. For individuals from high-demand countries like India and China, the wait times are even longer.
  • This backlog is impacting businesses that rely on immigrant workers. Many businesses are unable to hire the skilled workers they need because of the long wait times for visas, leading to job loss and negative economic effects.
  • With legislation, Congress could recapture unused immigrant visas and/or eliminate derivative family members for the visa count and increase visa numbers. This would allow more individuals to immigrate to the United States and help to address the labor shortage.

IER Focuses on Employer Recruitment and I-9 Practices

The Department of Justice’s Immigrant and Employee Rights Section (IER) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. The following summarizes recent settlements with the business community. 

  • Mountain Prairie Holdings agreed to undergo training and make policy changes before hiring any more employees, be subject to departmental monitoring, and pay a civil penalty of $7,588. The company was found to have discriminated against a work-authorized asylum applicant as part of its pattern or practice of requiring certain non-U.S. citizens to show specific documents to prove their work authorization because of their citizenship status.
  • Treacy Enterprises agreed to pay a civil penalty and change its recruiting practices to avoid future discriminatory postings. The company was found to have violated the Immigration and Nationality Act’s antidiscrimination provision by requiring a lawful permanent worker to provide more documents than necessary to prove their permission to work.
  • N2 Services, Inc. agreed to pay a civil penalty, post notices informing workers of their rights, train its staff, review and revise its employment policies and training materials, and be subject to departmental monitoring for two years. The company was found to have discriminated against workers based on their citizenship status when it published a discriminatory job advertisement online that required applicants to have a temporary work authorization status called Optional Practical Training.
  • Ten employers agreed to pay civil penalties totaling $464,360 and change their recruiting practices to avoid future discriminatory postings. These employers were found to have posted job advertisements with unlawful citizenship status restrictions on a college recruiting platform.

The DOJ’s settlements with these employers are a reminder that the department is committed to investigating employers that discriminate against workers based on their citizenship status. Employers are encouraged to review their recruitment policies and advertisements to confirm that they are in compliance.