By Bernice Santiago • Pacific Sunday News
The Department of Homeland Security has implemented new rules for the H-2B worker program, which became effective in January.
There are now restrictions on which countries can send temporary non-agricultural workers: the United States will not allow China, Hong Kong, Thailand, Taiwan and India to send H-2 workers this year, said immigration attorney Nelson J. Xu, with L.A. Baumann & Associates.
The list of countries is revisited and updated every year, he said.
The main sources for H-2B workers for Guam have been the Philippines and mainland China, Xu said, with smaller numbers from Japan and Korea.
Because China can't send workers, U.S. employers will have to find alternative sources in countries not on the list, he said.
"Most likely, the Philippines will see increased H-2B workers," he said.
There are new reporting requirements as well, said Xu.
For instance, if workers fail to report to work within five days of the employment start date, employers need to notify U.S. Citizenship and Immigration Services, according to a Department of Homeland Security's U.S. Citizenship and Immigration Services notice.
Xu said this requirement can complicate the process for Guam employers and H-2B workers.
H-2B workers may have difficulty arriving for the start date, he said, because the process for obtaining a visa stamp can take a long time. In some countries, "people have to wait a month, or a month and a half to have an interview at a U.S. Embassy," Xu said.
It's important for employers to start early, he said, and not only get approval from the USCIS, but also to go through counsel processing as quickly as possible.
Early completion
New regulations also require U.S. employers to notify USCIS when temporary labor is completed more than thirty days early, and when H2-workers are fired from a project or simply disappear, Xu said. Employers must send notifications within 2 work days of the event by e-mail. If e-mail isn't possible, notices need to be postmarked within two work days.
H-2B workers cannot pay fees associated with their recruitment, according to the USCIS notice.
"A lot of the fees were passed to the employees, and they came into Guam and the U.S. deeply in debt," Xu said.
The new regulation is meant to "discourage the exploitation of these workers," he added.
Employers would pay any recruitment fees, and pay for an H-2B worker's return trip to the home country, Xu said. H-2B workers pay visa fees, as well as the one-way ticket to Guam or the mainland U.S. from their country of origin.
One requirement that has been relaxed, Xu said, is the length of time that employers can claim for a project. Old requirements limit employers to a yearlong project, in order to declare that project "temporary." Now, Xu said, employers can say that they have employment needs for a temporary labor project that can run as long as three years, Xu said.
H2-B visas still last one year, Xu said. Those visas can be renewed every year for a three-year duration. Renewals are not subject to the H2-B quotas that limit the amount of workers who enter the country.
Exit requirementUnder the new rules, H-2 workers need to leave the United States for three months if they wish to return, after reaching the three-year limit, Xu said. Old regulations required a stay outside of the U.S. for six months. These H-2 workers would then need to apply as new H-2 workers, and would then be subject to the H-2B worker quota.
Aside from the change in this regulation, "the changes largely will adversely affect the projects," Xu said. The increased restrictions and reporting requirements make the process more difficult for employers, he said.
'Closely monitored'
The H2-B worker program "is a very closely monitored program," Xu said. Both the Guam Department of Labor and the Department of Homeland Security conduct frequent inspections of labor projects.
The major underlying reason for all of these restrictions, Xu said, is that the agencies don't want H-2B employees to work on projects not approved by the Department of Labor, or replace qualified U.S. workers in available jobs.
During the application process, employers need to justify their need for alien workers, Xu said, and there is "strict local testing of the labor market" before approval.
The U.S. has set the H-2B worker cap at 66,000 new employees per year, according to Xu. New workers enter the country in April and October. The filing process to petition for nonimmigrant workers begins four months before those dates. The Guam Department of Labor has been screening applications for temporary labor certificates early, in order to expedite the first part of the application process. On November 28, the U.S. will exempt the CNMI and Guam from the 66,000 H-2B worker cap, according to Pacific Daily News Files.
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