Summary: U.S. Citizenship and Immigration Services (USCIS) should defer to the Department of Labor’s determination of whether an H‑2A or H‑2B job is “temporary” and automatically approve all H‑2 petitions without substantive review if the employer plans to name the specific worker only at the consulate abroad.

H‑2A agricultural or H‑2B nonagricultural employers must receive a temporary labor certification from the Department of Labor (DOL) showing that no qualified U.S. workers are available for the job. As part of its review, DOL first determines whether the job is “temporary” based on employer‐​provided evidence like payroll and tax documents.[1] If DOL certifies the job, employers file a petition requesting USCIS grant status to the workers. USCIS has chosen to again conduct a second review to determine whether the job is temporary, sometimes requiring different evidence from DOL.[2]

USCIS’s second review is burdensome and unnecessary. Even though USCIS approved 99 percent of petitions, it issued requests for evidence (RFEs) to 17 percent of H‑2B employers and 10 percent of H‑2A employers in 2020.[3] The USCIS Ombudsman has found numerous cases of USCIS adjudicators issuing RFEs for already‐​submitted evidence or evidence for issues that are legally irrelevant.[4] The Ombudsman has said that “delays at any point in the process can have severe economic consequences for U.S. employers” exactly because the work is short‐​term and time‐​sensitive.[5] USCIS should amend its regulations to defer to DOL to determine whether an H‑2 job is temporary.

Employers must also attest to USCIS that they did not receive any fees that H‑2 workers paid to get the job in prior years (or documenting that it has repaid any such fees).[6] USCIS should also allow DOL to enforce this requirement at the labor certification stage for unnamed petitions because its regulations also contain the same prohibition on job placement fees.[7] Employers do not need to list the specific names of the workers they plan to hire on “unnamed” USCIS petitions, so after deferring to DOL on these issues, USCIS has no further need to substantively review the petition.

Thus, once DOL approves an H‑2 labor certification, USCIS should automatically approve all unnamed H‑2 petitions without any review. USCIS already automatically revokes H‑2 petitions when a labor certification is revoked, but a comparable provision in the opposite direction would be a better reform.[8] DOL should have employers state on the labor certification whether they plan to file an unnamed petition on its labor certification, collect any information necessary for USCIS, and forward any such approved labor certification directly to USCIS. USCIS then can immediately and automatically approve the petition and forward the approval to the consular affairs and the employer.[9]

Automatically approving unnamed H‑2 petitions would save employers time and money, preserve agency resources, and reduce the usual H‑2 filing fees.

This was submitted as a comment on USCIS’s federal register request for ideas to reduce barriers to legal immigration.

[4] U.S. Citizenship and Immigration Services Ombudsman, “Annual Report 2015,” June 29, 2015; and U.S. Citizenship and Immigration Services Ombudsman, “Annual Report 2016,” June 29, 2016.

[5] U.S. Citizenship and Immigration Services Ombudsman, “Annual Report 2014,” June 27, 2014.

[6] U.S. Citizenship and Immigration Services, “Form I‑129, Petition for Nonimmigrant Worker,” 2020, 18; H‑2A: 8 CFR § 214.2(h)(5)(xi)(A) (2019); and H‑2B: 8 CFR § 214.2(h)(6)(i)(B) (2019).

[7] H‑2A: 20 CFR § 655.135(j) (2019); and H‑2B: 20 CFR § 655.20(o) (2019).

[9] At that point, the employer could pay the $150 H‑2B fraud fee required by 8 USC § 1184(c)(13). Failure to pay the fee by the job start date would be grounds for revocation of the petition.