The Department of Homeland Security has released its guidelines on how to file petitions for H-2B workers. The U.S. Citizenship and Immigration Services (USCIS) is now accepting applications for new and repeat H-2B workers.
As required by the Save Our Small and Seasonal Businesses Act of 2005, the USCIS is accepting filings for about 35,000 new workers for fiscal year 2005, along with additional returning workers who participated in the H-2B program between October 1, 2001 and September 30, 2004. Returning workers will not count toward the annual 66,000 cap.
In a petition for a work start date before October 1, 2005 (fiscal year 2005), all returning workers must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004. In a petition for a work start date on or after October 1, 2005 (fiscal year 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.
Any worker not certified as a "returning worker" will be subject to the numerical limitation for the relevant fiscal year.
Petition forms must include a certification from the employer that the workers listed have entered the United States in H-2B status, or changed to H-2B status during one of the last three fiscal years.
The list must include the full name of the worker. If the petition seeks change of status of the worker within the United States, it must include evidence of previous H-2B admissions, such as a visa or a copy of I-94 admission document.
Each petition must include a labor certification from the Department of Labor. A single petition may benefit more than one worker, including unnamed workers in "special filing situations" for business reasons.
A petition approval notice will list any returning workers, who must be prepared to show proof of their previous H-2B admissions, such as a visa or a copy of I-94 admission document. The State Department will confirm prior visas through its electronic system, and that alone may be sufficient. But failure to show these documents may result in denial of visa or admission.
In addition to the normal filing costs, each petition must include an additional fraud prevention and detection fee of $150. This fee is per petition, regardless of the number of workers benefiting from the petition.
NUMERICAL LIMIT CUT-OFFS
When any H-2B numerical limitation has been reached, USCIS will reject any additional H-2B petition filings that are subject to numerical limits. For fiscal year 2006 filings, the Act provides that the numerical limit for the first 6 months of the fiscal year shall be no more than 33,000, with the remaining 33,000 H-2B numbers to be allocated on or after April 1, 2006.
Employers should note that the Act contains new sanctions and penalties up to $10,000 per violation for failure to meet any of the H-2B petition conditions, and for willful misrepresentation of a material fact. These new sanctions provisions become effective October 1, 2005.