Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

The U.S. Department of Labor has provided notice that beginning January 1, 2010, the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk Center in Washington, D.C. will receive and process prevailing wage determination requests for use in H-1B, H-1B1, H-1C, H-2B, E-3 and permanent labor certification programs. In the same notice, the DOL provides guidance about prevailing wage determinations for applications in the Commonwealth of the Northern Mariana Islands, which have been accepted at the center since November 28, 2009.

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Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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The United States Citizen and Immigration Services (USCIS) reported promising news for foreign nonagricultural workers who possess valid, temporary labor certificates and who are seeking a fiscal year 2009 H-2B visa. Due to a decrease in requests, approximately 25,000 visas remain available for 2009, more than one-third of those available under the Congressionally mandated cap. Therefore, USCIS has reopened the filing period.

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis.

To obtain a fiscal year 2009 H-2B Visa, Form I-129 (PDF) petitions must be received and approved by USCIS before October 1, 2009. Because the average processing time is two months, it is unlikely that regularly submitted petitions would be approved before the October 1 deadline, so USCIS is recommending that petitioners use its premium processing service which has an average processing time of 15 calendar days.

Petitions for a fiscal year 2009 H-2B visa must include the following:

• A mark in red ink that the petition requests a 2009 fiscal year start date.
• An employment start date before October 1, 2009.
• A valid, temporary labor certificate issued by the U.S. Department of Labor indicating a fiscal year 2009 employment start date that is valid for the entire period of requested employment.
  • NOTE: The U.S. Department of Labor advises employers to file temporary labor certificate requests at least 60 days before the need for the employee. If a certificate is not presently possessed, it would appear unlikely, even if using premium processing, that one could be obtained in time to submit with a fiscal year 2009 H-2B petition.

Petitions requesting an employment start date before October 1, 2009 that are received on or after October 1, 2009, or petitions that are incomplete, will not be approved. Petitions requesting an employment start date on or after October 1, 2009 will be considered for a fiscal year 2010 H-2B visa.

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The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H-2B labor certifications. In response to questions raised regarding the application of the new regulations, the DOL has released (PDF) a list of “Frequently Asked Questions” (FAQs).

The FAQs cover the following topics:

• Transition to new procedures (for applications filed on or after January 18, 2009 for employment with start dates before October 1, 2009);
• Prevailing wage;
• Form ETA9142;
• Recruitment;
• Recruitment fees; and
• Former regulations vs. new regulations.
   

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The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. Continue reading about these bills on Littler's Washington DC Employment Law Update blog.

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A press release issued by the office of Senator Barbara A. Mikulski (D-Md.) states that Senator Mikulski, along with Senator Benjamin L. Cardin (D-Md.) and Congressman Frank M. Kratovil, Jr. (D-Md.), sent a letter to the Department of Labor and the Department of Homeland Security urging them to “use all means necessary” to protect small businesses throughout the country so they can keep their doors open this year. The reason for their concern is that, as of January 8, 2009, the U.S. Citizenship and Immigration Services (USCIS) had already received enough applications to exceed the cap for H2B visas for the second half of fiscal year 2009.

Senator Mikulski said,

Companies in Maryland and around the country are unable to get the H2B visas, and workers, that they need and depend on because of bureaucratic slowdowns. Small and seasonal businesses are counting on us. We need this problem resolved quickly so we can reward people who are playing by the rules, instead of letting them down.
 

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On January 8, 2009, US Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated H-2B cap for the second half of Fiscal Year 2009. Accordingly, January 7, 2009 was the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2009. USCIS states that it will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2009, that arrive after January 7, 2009.

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