DECEMBER 22, 2008

ISSUE 1249

U.S. Citizenship and Immigration Services recently announced changes to H-2A regulations that they hope will streamline the hiring process of temporary and seasonal agricultural workers. This final rule is designed to facilitate the H-2A process for employers by removing certain limitations.

The final rule will:

• Allow petitioners to file a petition, using a copy of the previously approved temporary labor certification, to replace an H-2A worker who fails to report to work or who absconds.

• Authorize the denial or revocation of H-2A petitions where the petitioner knows or should reasonably know that the H-2A worker has paid or agreed to pay certain prohibited fees as a condition of obtaining H-2A employment.

• Allow H-2A workers to legally remain in the United States for an additional 30 days if a petition is revoked based on the revocation of temporary labor certification.

• Clarify that USCIS will deny H-2A non-immigrant status based on a finding that the worker violated any condition of H-2A status within the past five years unless the violation occurred through no fault of the worker. The “no fault” clause relating to the worker’s status violation was not included in the proposed rule.

• Eliminate the requirement that aliens petitioned for by a U.S. employer all be processed by the same embassy or consulate or, where a visa is not required, apply for admission at the same port of entry.

• Extend from 10 days to 30 days the amount of time an H-2A worker may remain in the United States after the end of employment.

• Reduce from six months to three months the amount of time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she is eligible to re-obtain H-2A status.

This regulation becomes effective on Jan. 14, 2009, and contains many improvements over the present regulation.