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DHS Plans Changes for H-4 Spouses, H-1C Nurses, H-2B Wages
 

By Roy Maurer  7/22/2013
 
 

The U.S. Department of Homeland Security’s spring 2013 regulatory agenda, released July 3, 2013, contains 52 items from the department’s immigration-related agencies, including proposed rules clarifying Form I-9 violations, providing work authorization to H-4 dependent spouses of H-1B visa holders, renewing the H-1C nurse visa and amending regulations governing the calculation of prevailing wages under the H-2B guest worker program.

Final Rules

A few rules that U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) will be implementing in the coming months are relevant to HR professionals. These include:

  • By October 2013, CBP will set the eligibility requirements and the application procedures and fees for the U.S. Asia-Pacific Economic Cooperation Business Travel Card Program. The program will enable eligible travelers to use fast-track immigration lanes in cooperating Asia-Pacific nations.
  • The extension of U.S. immigration law to the Commonwealth of the Northern Mariana Islands by December 2013.
  • A July 2014 final rule implementing the Legal Immigration Family Equity Act, which will allow the spouses and children of lawful permanent residents to live and work in the United States while waiting for a green card.
  • The finalization of interim regulations, by July 2014, precluding employers from filing duplicate petitions on behalf of the same foreign temporary worker subject to the annual H-1B numerical cap.
  • A final rule, planned for July 2014, implementing the Nursing Relief for Disadvantaged Areas Act, which created the H-1C nonimmigrant nurse visa in 1999 in response to the shortage of qualified nurses in many regions of the United States. To qualify for the H-1C visa, 500 of which are granted annually, a nurse must be licensed or have obtained a nursing degree in the U.S. and must pass the NCLEX-RN exam. Nurses with an H-1C visa may work in the United States for up to three years. USCIS stopped accepting new H-1C petitions after Dec. 21, 2009, when Congress failed to reauthorize the program.

Proposed Rules

USCIS proposes to extend employment authorization to certain H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent-resident status through employment. “Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high-demand skills to remain in the country and help spur the innovation and growth of U.S. companies,” USCIS said.

A Notice of Proposed Rulemaking is scheduled for October 2013 proposing to amend regulations that clarify certain Form I-9 paperwork failures and violations. According to the agenda, this proposed rule would define a substantive violation and a technical or procedural failure and delineate the circumstances in which an employer may be subject to penalties or not, due to a good-faith attempt to comply when completing the form.

Another rule planned for October 2013 would allow students on F-1 visas with degrees in science, technology, engineering or mathematics to take advantage of a 17-month optional practical training extension to gain experience in those fields.

And USCIS proposes to amend its regulations affecting high-skilled workers from Chile and Singapore (H-1B1), Australia (E-3), the Commonwealth of the Northern Mariana Islands (CW-1), and outstanding professors and researchers (EB-1) by November 2013.

The rule would reconcile the regulations for these classifications with existing regulations for other similarly situated classifications “by removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications,” according to DHS.

Prevailing Wages for H-2B Workers

Work continues on the wage methodology for the H-2B program under the department’s long-term goals. The Departments of Homeland Security and Labor wish to finalize an interim rule, issued in April 2013, which established a new methodology for calculating prevailing wages under the H-2B guest worker program.

Under the rule, the Labor Department will use the Occupational Employment Statistics wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act or employer-provided surveys, depending on the circumstances, to determine prevailing wages for employers seeking to hire H-2B workers.

The rule also clarifies that Homeland Security is the executive agency charged with making determinations on eligibility for H-2B classification, after consulting with Labor about the methodology for setting the prevailing wages.

According to both agencies, determining the prevailing wage is crucial to Labor’s consultation with Homeland Security over whether the employer petitioning for the visas has tried unsuccessfully to recruit U.S. workers and that the employer will pay workers at least the prevailing wage rate.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

Related Articles:

DHS Rules, Programs Revealed Amid Immigration Reform Talks, SHRM Online Global HR, February 2013

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