On August 22, the Department of Homeland Security’s (DHS) US Citizenship and Immigration Services (USCIS) bureau proposed rule changes to the H-2B visa program.

Jonathan Scharfen, acting director of USCIS, wrote that “little about the program has changed to accommodate employers' needs or improve worker protections” since the program’s inception in 1986. “In order to better serve those participating in the program, we are proposing measures to remove unnecessary limitations, prevent fraud and abuse, and protect workers.”

The proposed rule changes would:
• Reduce from six months to three months the amount of time an H-2B worker whose status has expired must wait outside the U.S. before he or she is eligible to again obtain status under the H or L classifications;
• Relax the current limitations on the ability of U.S. employers to petition for unnamed workers;
• Require employer attestations on the scope of the H-2B employment and the use of recruiters to locate beneficiaries and provide for denial or revocation of an H-2B petition if an H-2B worker was charged a fee in connection with the employment either (a) by the petitioner, or (b) by a recruiter where the petitioner knew or reasonably should have known that the recruiter was charging such fees;
• Eliminate the ability of employers to file an H-2B petition without an approved temporary labor certification;
• Preclude changing the employment start date after the temporary labor certification is certified by the Department of Labor;
• Require employer notifications to the Department of Homeland Security when H-2B workers fail to show up for work, are terminated, or abscond from the worksite;
• Change the definition of "temporary employment" to clearly define that employment is of a temporary nature when the need for the employee will end in the near, definable future and to eliminate the requirement that employers show "extraordinary circumstances" to be eligible to hire H-2B workers where a one-time need for the workers is longer than one year but shorter than three years;
• Prohibit the approval of H-2B petitions for nationals of countries determined to be consistently refusing or unreasonably delaying repatriation of their nationals; and
• Establish a land-border exit system pilot program under which H-2B workers admitted through a port of entry participating in the program must also depart through a port of entry participating in the program. Upon departure, they must present designated biographical information, possibly including biometric identifiers.

The H-2B nonimmigrant classification applies to foreign workers coming to the US temporarily to perform temporary, non-agricultural labor or services. According to the Department of Labor Employment and Training Administration, the top three occupations for which US employers utilize the H-2B program are landscape laborers, housekeeping cleaners and construction workers. The number of H-2B visas available annually are capped at 66,000. During the past several fiscal years, the demand for new H-2B workers has exceeded these limits.

NSBA encourages those who are interested to submit written comments to the USCIS on or before September 19, 2008.