Homeland Security proposes changes to temporary worker program

Last week, the Homeland Security Department's U.S. Citizenship and Immigration Services bureau proposed rule changes to the visa program that allows U.S. employers to hire temporary workers for nonagricultural jobs. The proposal would complement rule changes the Labor Department put forward earlier this year.

The 22-year-old H-2B visa program was designed to fill temporary jobs, often in the hospitality or construction industries, for which U.S. citizens are not available. The proposed changes would give employers more flexibility in filling temporary jobs, reduce wait times for prospective workers, and crack down on employers and recruiters who demand payments from workers in exchange for jobs.

Temporary employment is defined as "a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need," according to the rule. Three agencies oversee the H-2B program: The Labor Department issues temporary labor certifications and monitors compliance with employment laws; Citizenship and Immigration Services adjudicates H-2B petitions; and, if the petitions are approved, the State Department issues visas to the workers at consulates overseas.

"Little about the program has changed [since its inception in 1986] to accommodate employers' needs or improve worker protections," said Jonathan Scharfen, acting director of CIS, writing in Homeland Security's leadership blog Wednesday. "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."

CIS wants to eliminate the current requirement that employers name the individuals they seek to hire and instead specify only the number of positions they want to fill. Because the process can take up to several months, many employers start the certification and petitioning process several months ahead of when they actually need the workers. By the time petitions are approved, many workers have found jobs elsewhere and are no longer available.

"By eliminating the requirement to name beneficiaries outside the United States on the petition, [CIS] believes that H-2B employers would have more flexibility to recruit foreign workers who are actually interested in and available on the date of the stated need," the bureau wrote in the rule change notice.

The proposed changes also would prohibit the approval of H-2B petitions for workers from countries that consistently refuse or unreasonably delay repatriation of their nationals when they are deported from the United States. Several lawmakers have pushed for that change. India and China are among the countries most likely to be affected by the change, officials said.

The rules changes also would create a land-border exit system pilot program. H-2B workers admitted through a port of entry participating in the pilot program also would have to depart through a participating port and present designated biographic or biometric information when they leave.

Under the H-2B program, before employers can seek foreign workers they must receive certification from the Labor Department documenting a shortage of U.S. workers for the positions they seek to fill. In May, Labor proposed rule changes aimed at eliminating duplicative processes shared by the department and state workforce agencies. The comment period for the proposed changes closed July 7 and the department now is reviewing the comments, said Jennifer Kaplan, a Labor spokeswoman. Officials were unable to estimate when the final rule would be published, she said.

Both Labor and Homeland Security want to require employers to attest, under threat of fines and other penalties, that they have complied with all H-2B program requirements. In addition, the rule changes would prohibit employers from passing along application fees and other costs to foreign workers participating in the program and curtail abuses related to visa selling that could lead to human trafficking and indenture.

Labor wants to prohibit employers, attorneys or agents from participating in the program for up to three years if they are found to have committed fraud or willfully misrepresented issues related to the program, or if they fail to cooperate in audits or investigations.