The U.S. Department of Labor (DOL) has proposed rules to update and modernize the process of obtaining H-2B Temporary Workers.  Non-immigrants who come to the United States to work on a temporary basis often enter on an H-2B visa.  These foreign nationals must be entering on the basis that the employer's need is a "one-time" occurrence, a seasonal need, a peak load time, or an intermittent need.  Typically, H-2B Temporary Workers come from industries such as landscaping, agriculture, hospitality, and construction.
 
Currently, the DOL requires that employers submit their applications for the Temporary Workers to the State Workforce Agency (SWA) no more than 120 days from the start date of the position.  Once the application has been submitted, the SWA contacts the employer to begin the recruitment process.  Once completed, a recruitment summary regarding U.S. applicants is submitted and, in most cases, the application is then forwarded to the DOL.  The DOL then reviews the Application and supporting documentation and then either certifies or denies the Application.       
 
The proposed changes would centralize the process and reduce processing times, which have recently exceeded sixty days.  All current employer obligations and requirements will remain the same.  However, the procedure will change to an "attestation-based process," meaning that rather than providing all recruitment documentation, employers will simply assert that proper recruitment took place.  Also, pre-filing recruitment will be allowed.  Pre-filing recruitment can be completed no more than 120 days prior to the start date, though the actual recruitment process remains unchanged from the current process. 

Upon completion of the recruitment, the new application for Temporary Employment Certification will be submitted directly to the DOL.  In addition to this new process, the DOL has also included post-adjudication audits in the proposed changes. This will be conducted on randomly-selected applications, as well as on adjudicated applications that meet certain criteria. 
 
Please contact us if you would like more information about this new process or any assistance with obtaining H-2B Temporary Workers.                         

High demand for visa numbers in the third employment-based preference (EB-3) (skilled workers, professionals and other workers) is expected to bring the entire category to its annual numerical limit of 140,000 by the end of June.  As a result, this category will become unavailable beginning July 1 through the end of the government's fiscal year (September 30, 2008). 

This means that from July through September 2008, individuals in the EB-3 category will be unable to file Applications to Adjust Status (I-485's), and those who already have I-485's on file or who have chosen to visa process in their home countries will not be granted Permanent Resident status unless a visa number has already been assigned to them. 
 
Adjustment of Status Applications will continue to be accepted and receipted through the end of June for EB-3's with a priority date prior to the cut-off dates described in the June 2008 Visa Bulletin:  March 22, 2003 for China mainland-born; November 1, 2001 for India, July 1, 2002 for Mexico; and March 1, 2006 for the Philippines and all other chargeability areas; and, January 1, 2003 for Other Workers.    
 
However, on October 1, 2008, the EB-3 preference availability will return to the cut-off dates established in June 2008.
 
Visa numbers for the First Preference (EB-1) (persons of extraordinary ability, outstanding professors and researchers and multinational organization executives and managers) remain available in July.  Visa numbers will remain current in July for the Second Preference (EB-2) (members of the professions holding advanced degrees or persons of exceptional ability), except for those EB-2's from India and China (main-land born).  For the latter, visa numbers are available only for those with priority dates before April 1, 2004.

The "business" authorized by a B-1 visa or the Visa Waiver Program typically includes conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not authorize gainful employment in the U.S.  The business visitor must continue to be paid by the property or office abroad.  He or she must also be entering the U.S. for only a limited period of time, intend to leave the U.S. at the conclusion of his or her stay, and is required to maintain a foreign residence abroad for the duration of the business visit.
 
U.S. officials are particularly concerned with ensuring that the individual is not "performing services" in the U.S.  For example, if a visitor is sent to the U.S. to help oversee a project and is merely offering advice and consultation on the project, that is acceptable B-1 visitor activity.  However, if the assignment becomes more involved and the individual begins to assist in the actual performance of services, he or she may be crossing the B-1 acceptable activity line by going from providing advice to providing services in the U.S.  Perhaps the best way to determine whether the visitor is "performing services" is to examine his or her role at the U.S. company.  If the employee's role is critical to the project and he or she would have to be replaced if they stopped performing that role, then he or she is usually deemed to be "working."
 
Business visitors usually must obtain a B-1 visa at a U.S. Consulate or Embassy abroad prior to entering the U.S.  If they already possess a B-1 visa, they may apply for entry at a porty of entry.  In addition, nationals from some countries may enter utilizing the Visa Waiver Program as a business visitor.  In order to apply at the Consulate or at the port of entry, the employee should first obtain a letter from the company containing details regarding the nature of the employee's duties in the U.S.  The employee must then take the letter to the port of entry or Consulate and submit it with the required forms and documentation.  Ultimately, U.S. consular officers and immigration border officials have broad discretion in implementing rules for business visitors.  If ever there is a doubt that the employee may be coming to the U.S. to "perform services" or that the U.S. entity may have some direction and control over the employee's activities, it is important to supply that employee with appropriate documentation clearly defining the nature of the activity and establishing the their ties to their home country.

Companies that support "gaming" the system and having their employee enter on a visitor status because it is quicker and easier to obtain, may be jeopardizing that employee's ability to obtain future U.S. visas.
 
Please contact Grzeca Law Group if you have any questions about acceptable B-1 visitor activities or if you would like assistance preparing necessary documentation.