Here is USCIS' summary of the changes. I'll have more to say after I've gone through the full text of the new rule.
* Reduces from six months to three months the time an H-2B worker who has spent three years in the U.S. must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2B status;
* Prohibits H-2B employers and recruiters from imposing certain fees on prospective H-2B workers as a condition of securing employment;
* 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;
* Enhances employer sanctions by imposing debarment provisions. If the Department of Labor finds that a petitioner substantially failed to meet any of the conditions of the H-2B petition or willfully misrepresented a material fact in such petition, USCIS may deny certain petitions filed by that petitioner for a period of at least 1 year but not more than 5 years. This debarment process is covered by the Department of Labor’s final H-2B regulations, which are being published in the Federal Register on [date]. H-2B employers who have been debarred by the DOL under these provisions are ineligible to obtain a temporary labor certification for the period determined by DOL. Because a temporary labor certification is required to qualify for H-2B classification, these employers will not be eligible to file H-2B petitions during the DOL imposed debarment period.
* 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;
* Clarifies USCIS’ authority to issue a notice of denial or revocation of a Form I-129 if USCIS determines that the statements on the petition or application for labor certification are inaccurate or fraudulent, or misrepresent a material fact;
* Establishes a land-border exit system pilot program under which H-2B workers admitted through a participating port of entry must also depart through that participating port of entry and present, upon departure, designated biographical information, possibly including biometric identifiers;
* Amends the current definition of “temporary services or labor” to include a specific one-time need of up to three years, without requiring the employer to demonstrate extraordinary circumstances;
* Reduces the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit; and
* Allows the substitution of beneficiaries who were previously approved for consular processing, but have not been admitted, with aliens who are currently in the United States.
* Remove the separate attestation requirement contained in the proposed rule and amend the Form I-129, “Petition for Nonimmigrant Worker,” to include the attestation provisions.
* Offer H-2B petitioners a means to avoid denial or revocation of the H-2B petition in cases where USCIS determines that the petitioner discovers after filing that the worker paid or has agreed to pay to a third party prohibited fees as a condition of obtaining H-2B employment.
* Permit the approval of H-2B petitions only for nationals of certain countries important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with the 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;
* Require H-2B employers whose petitions have been denied or revoked based on the payment of prohibited fees to demonstrate, as a condition of approval of H-2B petitions filed within one year of the denial or revocation, that the H-2B workers have been reimbursed or the H-2B workers cannot be located despite the petitioner’s reasonable efforts.
* Require petitioners to provide notification to USCIS within 2 work days in the following instances: (a) where an H-2B worker fails to report to work within five work days of the employment start date on the H-2B petition; (b) where the non-agricultural 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 (c) where the H-2B worker absconds from the worksite or is terminated prior to the completion of the non-agricultural labor or services for which he or she was hired;
* Provide 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. This ensures consistency between USCIS and DOL regulations.
* Provide USCIS the flexibility to require H-2B petitioners to name beneficiaries, if located outside the United States, in the event that Congress reauthorizes the returning worker provisions or enacts similar legislation exempting certain H nonimmigrants from the numerical limits.
* Not adopt the proposed provision to preclude an alien from being accorded H-2B status if USCIS finds that the alien has, at any time during the past 5 years, violated any of the terms or conditions of the current or previously accorded H-2B status, other than through no fault of the alien.
* Reduces the minimum period spent outside the United States that would be considered interruptive of accrual of time towards the three-year limit; and
* Allows the substitution of beneficiaries who were previously approved for consular processing, but have not been admitted, with aliens who are currently in the United States.
