Changes to Requirements Affecting H-2B Nonimmigrants

August 19, 2008 Regulatory Management Division U.S. Citizenship and Immigration Services Department of Homeland Security 111 Massachusetts Avenue, NW, 3008 Washington, DC 20529 Attn: DHS Docket No. USCIS–2007–0058; RIN 1615–AB67 Re: Changes to Requirements Affecting H–2B Nonimmigrants and Their Employers To Whom It May Concern: The National Federation of Independent Business (NFIB) and the NFIB Small Business Legal Center are pleased to submit comments to the U.S. Citizenship and Immigration Services (USCIS) on its Notice of Proposed Rulemaking (NPRM), "Changes to Requirements Affecting H–2B Nonimmigrants and Their Employers." NFIB is the nation's leading small business association, with offices in Washington, D.C., and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB's mission is to promote and protect the right of our members to own, operate and grow their businesses. NFIB represents 350,000 small businesses. The average member has about six employees and 90 percent of NFIB's membership has fewer than 20 employees. NFIB's average member has gross receipts of $350,000-$500,000 per year. The NFIB Small Business Legal Center is a 501(c)(3) public interest law firm created to protect the rights of America's small business owners by providing advisory material on legal issues and by ensuring that the voice of small business is heard in the nation's courts. NFIB has long been a supporter of the H-2B program, and has on several occasions asked Congress to increase the number of visas available. As the USCIS notes in its NPRM, the H-2B visa program is enormously popular with small businesses in non-agricultural industries because it provides these businesses a supply of labor that would not exist without the program. H-2B workers fill jobs where American business has found a shortage of able, willing, and qualified employees to fill temporary non-agricultural jobs. The USCIS proposes changes to this program that will directly impact small businesses throughout America. The purpose of these comments is to let the USCIS know how this proposal will affect those businesses. Changes Benefitting Small Businesses NFIB was pleased to see that several aspects of the proposal would make it easier for small business to utilize the H-2B visa program. In particular, NFIB would like to express its support for the following proposals: •Allowing unnamed beneficiaries: The USCIS is proposing to allow employers petitioning for aliens to fill H–2B positions "to specify only the number of positions sought and not name the individual alien(s), except where the alien is already present in the United States." NFIB believes that the current process — which can take several months — can make it difficult to name potential beneficiaries that will actually be able to start on the date needed. This USCIS proposal will allow greater flexibility for employers to recruit workers interested and available to start on the date needed. •Reducing the post-H-2B waiting period: The USCIS proposes to reduce this period from the current six-month period to three months. NFIB supports this proposal, as it will reduce the amount of time employers would be required to be without the services of needed workers. •Definition of temporary need: The USCIS proposes to define a temporary job as one which is filled for a "limited period of time." Subsequently, the USCIS proposes to define "limited period of time" as a "period of need that will end in the near, definable future." Furthermore, the USCIS expressly states that this includes work for a one-time project that may be longer that one year, but not exceed three years. NFIB supports these changes, because they provide clarification for business owners and also recognizes that some projects — such as large construction projects — may take longer than one year bu…