Lev Kobrin
02-25-2012, 08:24 AM
DOL issues Final Rule amending H-2B Regulations
February 21, 2012
The Department of Labor has issued a Final Rule amending the regulations governing the labor certification process for the temporary employment of H-2B foreign workers in the U.S. The new regulations will go into effect on April 23, 2012, and until April 23, 2012, the H-2B application process will be administered in accordance with the current regulations.
The new rule contains many significant changes from the current regulations. Under the new rule, the application process is bifurcated into a registration phase, which addresses the employer’s temporary need, and an application phase, which addresses the labor market test. Employers are required to submit an H-2B Registration and receive an approval before submitting an Application for Temporary Employment Certification and conducting the U.S. labor market test.
The registration would be valid for a period of up to 3 years, enabling employers to begin the application process at the second phase without having to reestablish temporary need for the second and third years of registration if there is no significant change in conditions.
Under the new rule, the employer must demonstrate, and not merely attest, that it was unable to locate sufficient number of U.S. workers. The Employer is also required to pay or reimburse to the beneficiary, the full cost of visa and visa-related expenses.
New DOS Rule to allow L Visas to be issued for up to 5 years
February 15, 2012
DOS has passed a new rule that permits the issuance of L visas with validity periods based on the visa reciprocity schedule, which for certain countries, can be for a period up to 5 years. Under the current DOS regulations, L visa duration is limited to the validity period of the L-1 petition. DOS has now passed a new rule, changing this regulation to delink visa and petition validity periods. Thus, under the new rule, L visas shall have the validity period based on reciprocity.
This change would benefit L-1 beneficiaries who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in their approved L-1 petition, and who have extended their stay on L-1 status while in the United States. Specifically, L-1 beneficiaries from countries like Australia, Argentina, Japan, Germany, UK, Italy, South Korea, and India, among others, can now be issued L visas with validity periods of up to 5 years, even if validity period of their L-1 petitions is for a lesser duration.
However, not every L-1 beneficiary would benefit from this change. Visa reciprocity schedule for countries like Russia, China and Brazil, provide for lesser periods of visa validity, and therefore, L-1 beneficiaries from those countries would be issued L visas with validity periods of up to 2 years, even if validity period of their L-1 petitions is for a higher duration.
It must be noted that this change affects only the validity period of the L-1 visa, and does not alter the period of time that an L-1 nonimmigrant can stay in the United States. The total period of stay may still not exceed five years for aliens employed in a specialized knowledge capacity, or seven years for aliens employed in a managerial or executive capacity.
February 21, 2012
The Department of Labor has issued a Final Rule amending the regulations governing the labor certification process for the temporary employment of H-2B foreign workers in the U.S. The new regulations will go into effect on April 23, 2012, and until April 23, 2012, the H-2B application process will be administered in accordance with the current regulations.
The new rule contains many significant changes from the current regulations. Under the new rule, the application process is bifurcated into a registration phase, which addresses the employer’s temporary need, and an application phase, which addresses the labor market test. Employers are required to submit an H-2B Registration and receive an approval before submitting an Application for Temporary Employment Certification and conducting the U.S. labor market test.
The registration would be valid for a period of up to 3 years, enabling employers to begin the application process at the second phase without having to reestablish temporary need for the second and third years of registration if there is no significant change in conditions.
Under the new rule, the employer must demonstrate, and not merely attest, that it was unable to locate sufficient number of U.S. workers. The Employer is also required to pay or reimburse to the beneficiary, the full cost of visa and visa-related expenses.
New DOS Rule to allow L Visas to be issued for up to 5 years
February 15, 2012
DOS has passed a new rule that permits the issuance of L visas with validity periods based on the visa reciprocity schedule, which for certain countries, can be for a period up to 5 years. Under the current DOS regulations, L visa duration is limited to the validity period of the L-1 petition. DOS has now passed a new rule, changing this regulation to delink visa and petition validity periods. Thus, under the new rule, L visas shall have the validity period based on reciprocity.
This change would benefit L-1 beneficiaries who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in their approved L-1 petition, and who have extended their stay on L-1 status while in the United States. Specifically, L-1 beneficiaries from countries like Australia, Argentina, Japan, Germany, UK, Italy, South Korea, and India, among others, can now be issued L visas with validity periods of up to 5 years, even if validity period of their L-1 petitions is for a lesser duration.
However, not every L-1 beneficiary would benefit from this change. Visa reciprocity schedule for countries like Russia, China and Brazil, provide for lesser periods of visa validity, and therefore, L-1 beneficiaries from those countries would be issued L visas with validity periods of up to 2 years, even if validity period of their L-1 petitions is for a higher duration.
It must be noted that this change affects only the validity period of the L-1 visa, and does not alter the period of time that an L-1 nonimmigrant can stay in the United States. The total period of stay may still not exceed five years for aliens employed in a specialized knowledge capacity, or seven years for aliens employed in a managerial or executive capacity.